No Lie with Brian Tyler Cohen - Supreme Court takes up the single most dangerous case yet

Episode Date: July 3, 2022

The Supreme Court has agreed to weigh in on arguably the most dangerous case yet. Brian interviews former federal prosecutor Glenn Kirschner about who Trump likely pardoned and how we know, whether there’s any reason the DOJ wouldn’t indict Trump, and what Trump’s legal recourse would be if he’s actually charged. And Michigan Law School professor Leah Litman joins to discuss whether the federal government can use federal land to offer abortion care, whether states can try to ban medication abortion, and the chilling new case that they just put on the docket for next term.Donate to the "Don't Be A Mitch" fund: https://secure.actblue.com/donate/dontbeamitchShop merch: https://briantylercohen.com/shopYouTube: https://www.youtube.com/user/briantylercohenTwitter: https://twitter.com/briantylercohenFacebook: https://www.facebook.com/briantylercohenInstagram: https://www.instagram.com/briantylercohenPatreon: https://www.patreon.com/briantylercohenNewsletter: https://www.briantylercohen.com/sign-upWritten by Brian Tyler CohenProduced by Sam GraberRecorded in Los Angeles, CASee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Today we're going to talk about arguably the most dangerous case yet that the Supreme Court agreed to weigh in on. I interview former federal prosecutor Glenn Kirshner about who Trump likely pardoned and how we know, whether there's any reason that the DOJ wouldn't indict Trump, and what Trump's legal recourse would be if he's actually charged. And I'm joined by Michigan Law School Professor Leah Lippman to discuss if the federal government can use federal land to offer abortion care, whether states can try to ban medication abortion, and the chilling new case that they just put on the docket for next term. I'm Brian Tyler Cohen, and you're listening to No. lie.

So we've spoken at length about the spate of recent Supreme Court decisions, including the gun decision in New York that would allow people to carry firearms in public, the case limiting the EPA's ability to enforce the Clean Air Act, and of course the one overturning row. I honestly think that these are going to be the issues that define the upcoming midterms, and rightfully so. Like, these are part and parcel of the Republican agenda. This extremist court has opened the floodgates to extremist state legislators and

governors to force an unpopular agenda on their constituents. Like, it's not just the Supreme Court. This is all happening in a coordinated effort by Republican operatives whose only goal here is to impose minoritarian rule, basically far-right Christian nationalist rule on a country where 70% of people oppose it. But I don't want to talk about those cases. I actually want to talk about a case that the Supreme Court's decided to take up for its next term. And that is Moore versus Harper. And I promise you, you will be hearing a lot about this case. It's basically looking to reinstate gerrymandered Republican maps that were struck down by the state's Supreme Court in North Carolina, even though in that ruling, the judges wrote that the Republican-led

legislature, quote, subordinated traditional neutral redistricting criteria in favor of extreme partisan advantage for the GOP. But the plaintiffs are arguing in this case that this court, or really any state court, has no authority of the state legislature when it comes to elections. Basically, they're saying that when it comes to elections, the state legislature has the first and last word, which, you know, is convenient if you're a Republican and your party already has majorities in the legislatures in most states because of gerrymandering, which is, you know, one of the exact issues at hand here. In other words, Republicans gerrymandered their districts, gained majorities, and are now looking to use those majorities to pass new maps and enact new laws

that will make it impossible for Democrats to ever have a fighting shot to take those majorities away. And now, they want this 6'3 far-right court to make sure that no one can stop them. So this case involves a theory called the independent state legislature doctrine, which my guest, Leah Lippman, will talk about in more detail in our interview coming up, but that theory basically says that state courts would no longer have the ability to strike down laws that violate their state constitutions, and governors would no longer have the ability to veto election laws passed by the legislature. Again, it would make state lawmakers the ones with the first and last word in elections, even if the laws they're passing violate their own state constitutions.

And if you're thinking, what's the point of having state constitutions if the legislature doesn't have to abide by it and the courts don't have the ability to check their power. Yeah, that's a great question. And just to be clear, in case there's any doubt as to why this case is being brought right now at this moment in time, first off, it's pretty obvious that this 6-3 conservative court would likely rule in favor of North Carolina Republicans. But more importantly, look at the states like Pennsylvania and Wisconsin and Michigan. All of them have Democratic governors and all of them have Republican-led legislatures. It is not an accident that the plaintiffs here are looking to give legislatures in three of the most critical swing states, all of the power over issues

concerning elections, and leave the governors with no recourse. Like, this isn't about any governing philosophy. It's just another deliberate effort by Republicans looking for any tortured legal theory in support of a conclusion. They need to give power to Republican-led legislatures, and so they'll debut all of this fancy legalese about the independent state legislature doctrine. That's all bullshit. And this case wouldn't have been introduced in a million years if Democrats ran these

state legislatures. This is about Republicans recognizing that having state courts and governors to be able to check their abuses of power prevented them from stealing the election in 2020. And so they're trying to fix that ahead of 2022 and 2024, period. And so knowing that this case is coming and knowing that the 6-3 court is highly, highly, highly likely to rule in favor of the Republicans who brought this case, and knowing what a death now this would be for democracy, our only option here is to expand the court. And I know I sound like a broken record because I've said in the past that even if we get a bigger majority in the Senate and eliminate the filibuster and pass the Women's Health Protection Act, that this court won't allow it to stand. And so we have to expand the court to codify Roe.

But I think the argument can be made that this is even more dire. And that's not to downplay the significance of overturning Roe. It's just to say that once Republicans are given carte blanche to rig the rules of elections in their favor, then voters won't be able to elect people who would protect abortion rights. Voters wouldn't be able to elect people who'd protect any rights. This is foundational. Everything else stems from the ability to have free and fair elections. And if the Supreme Court validates the Republican Party's efforts to make it so that they can rig any map without consequence, then that is how representative democracy dies. So again, I know I sound like a broken record, but there is nothing more important than holding our House majority this November

and expanding our Senate majority, eliminating the filibuster, and most importantly, expanding this court so that these far-right radicals don't have the ability to give Republicans the green light to just assume full control across the country. We've got this shot, and that's it. And we can stop this, but it's going to take all of us staying involved and not sitting this one out in November. Next step is my interview with Glenn Kirshner. Now, we've got 30-year former federal prosecutor and host of Justice Matters on YouTube.

My friend Glenn Kirshner, Glenn, thanks for coming back on. Great to be with you, Brian. So let's start off first with pardons. We've heard a lot about pardons lately. we know that Rudy Giuliani and Mark Meadows requested one, along with testimony that Matt Gates, Marjor Taylor Green, Biggs, Gosar, Brooks, all requested ones as well. Is there any indication to suggest whether they were granted those pardons that they were requested? And how would you know? So this is going to be the big reveal. When people begin to be on the receiving end of indictments

and let's hope they are sometime soon, what they'll do is they'll pull a pardon out of their back pocket and they'll claim that the government is prohibited from prosecuting them because they have a pardon. The way we should know, Brian, is there's an office of the pardon attorney at the Department of Justice. And there is a whole bunch of rules and procedures and protocol in place by which applications for a pardon are vetted through the office of the pardon attorney. They're investigated, recommendations are made to the president. and then once granted, they are recorded. So everybody knows precisely what the president is doing on the pardon front. However, all of that is waivable by the precedent.

So, you know, if you listen to what people who used to work at the office of the pardon attorney say, they say virtually the president could doodle a pardon on a cocktail napkin, or worse, he could deliver an oral pardon. And there is nothing to say in the law or the Constitution that that would not be a validly delivered pardon. So how would we know? We would know if they followed procedures, which we know they didn't. There are another couple of indicators, though, based on what we have learned, that suggests some people may have pardons. One of the things a pardon does is it extinguishes your right against self-incrimination, your Fifth Amendment right under the Constitution.

So in theory, if you have a presidential pardon, you can't go in to a hearing, whether a congressional hearing or a criminal proceeding, and invoke the fifth. Why? Because you don't have a fifth. Now, let's use that data point and look at what some of the people have done when they've been called to testify before the January 6th Select Committee. Jeffrey Clark, he pled the fifth. That suggests he has no pardon. pled the fifth. No pardon. John Eastman pled the fifth. No pardon. Who didn't plead the fifth? Much to my surprise, Rudy Giuliani. We know Rudy Giuliani has a Fifth Amendment right against self-incrimination because he's being investigated by the Department of Justice. Most directly, the Southern District of New York U.S. Attorney's Office, which more than a year ago now acquired a search warrant to seize Rudy Giuliani's electronic devices because a judge concluded there was probable cause that there was evidence of crime in Rudy's electronic devices. So for openers right there, Rudy Giuliani has a Fifth Amendment right against self-incrimination,

but he did not invoke it based on what we know of his appearance before the January 6th committee. That's a data point, Brian, suggesting he has a pardon. It doesn't guarantee that he does because he could just be that reckless after. all, we know Rudy, but who are the other people who went in and testified rather than invoking their fifth? Jared Kushner, Don Jr., Ivanka. And here is, to me, the most compelling data point. What did Kellyanne Conway reveal in her book? Now, if we credit what she says, they may be alternative facts, we don't know, but Kellyanne Conway in her book said,

at the end of his term, Donald Trump, you know, ambled up to me and said, I'm going to use her word. Hey, honey, you want to pardon? Everybody needs one. And she reports that she said, Mr. President, unless you know something, I don't know. I don't think I need one. So no, thank you very much. She said she politely declined. But what does that tell us? If Donald Trump is ambling up to people who are, who are first, removed from him and from his inner circle, like a Kelly Ann Conway, do we really think he didn't give his own lawyer, Rudy Giuliani, who did all that corrupt bidding for him, his own family members? Do we really think he exercised sound judgment and restraint and didn't give them pardons? Well, I guess that would beg the question, then, with regard to Eastman and Clark

and Flynn, why not give them pardons? Like, what does he have to lose by hand? ending them out to the rest of these guys, the people who were on his team, who were helping navigate or create this whole election theft scheme. Because as a prosecutor, I would argue that when one co-conspirator delivers a pardon to another co-conspirator, it is deeply incriminating evidence. And a judge, 10 times out of 10, would rule it was admissible to show that they were in the conspiracy together and he was trying to give his co-conspirator a pass. Because if his co-conspirator doesn't get a pass, gets prosecuted, or pressured, threatened with prosecution, what is that co-conspirator going to do?

Going to flip against Donald Trump. And remember, I am loath. I'm going to hesitate before I say this. I am loathe to quote Bill Barr's authority for anything. But even Bill Barr testified under oath that if a president delivered a pardon to somebody in exchange for that person's silence about the president's crimes, that would be. a criminal offense. Even corrupt Attorney General Bill Barr recognizes that. So you're saying that Donald Trump left his co-conspirators out to dry, how unlike him while trying to save his own ass. I guess with regard to these specific people who sought the

pardons, we know that seeking a pardon is evidence of consciousness of guilt. Does that play into a prosecutor's judgment in terms of handing down an indictment? It does. So the Supreme Court many years ago in a case in which the litigant was a guy named George Burdick. He was a newspaper man in New York. The Supreme Court said two things about pardons. It said that a pardon is some indication of guilt. The precise language is they say a pardon carries with it an imputation of guilt. The second thing they said is accepting a pardon is some admission of guilt. If I were a prosecutor and I knew it, let's take a concrete example, Brian. We know Steve Bannon got a partner.

from Donald Trump because he was indicted federally. He was being prosecuted for stealing from Donald Trump's base by creating this bogus We Build the Wall Foundation. How unseemly is it that Donald Trump pardoned Bannon for stealing from Trump's base? We don't know if Bannon got to keep the money. Donald Trump did it from his own base. So I guess what's Steve Bannon doing it, you know? Fair enough.

What was I thinking? But now we know Bannon is being investigated for state crimes in connection with that what was basically a financial fraud scheme. Because one thing I can promise you, when somebody like Steve Bannon commits federal financial crimes, including federal tax fraud, he absolutely commits state tax fraud as well. And fortunately, the New York authorities are potentially pursuing charges against Bannon in New York state court. If I were the prosecutor, I would say to the state court judge, you know, judge, the Supreme

Court has said receiving a pardon, accepting a pardon is an admission of guilt. We want to introduce into evidence against Steve Bannon in his state case the fact that he accepted the federal pardon for virtually identical crimes. I think the judge would rule in favor of the prosecution. Yeah, that's actually, that's a pretty brilliant point that I hadn't thought of it all. Just a quick question on that. There wouldn't be any degree of like double jeopardy by virtue of charging Bannon with the same crime on the state level as he was charged on the federal level, would there? Double jeopardy only applies when you're dealing with one jurisdiction or one sovereign. So you can't try somebody twice for the same crime in federal court and you can't charge them or try them twice for the same crime in state court. But double jeopardy does not cross jurisdictional line. So sometimes you can be prosecuted. in federal court and then prosecuted for identical conduct in state court. Now, in terms of this latest hearing with Cassidy Hutchinson as the witness,

she revealed that Trump knew that the protesters were armed and he still wanted security measures waived. And she testified that he wanted to join the protesters as they marched to the capital. Basically him physically leading an insurrection. Does that prove criminal conspiracy? Well, it doesn't prove conspiracy because conspiracy. because conspiracy would be an agreement, a criminal agreement between two or more people. What it does prove is it provides additional proof of Donald Trump's treason. And I use that word advisedly.

But even before I get there, I think it provides further proof of a seditious conspiracy as it relates to the proud boys and the oathkeepers potentially because they were armed. They were in the crowd. They've already been charged with seditious conspiracy. fortunately, members of both organizations are cooperating with prosecutors. So I think before too long we're going to hear about the links that are being built to guys like Bannon and Roger Stone and perhaps directly to Meadows and right into the Oval Office. We have to wait to see how the evidence plays out in that regard. But I think it also ups the criminal ante with respect to the evidence of inciting an insurrection, inciting a riot, which is a different charge, and indeed

inciting an armed insurrection. And there's another crime that I think is directly in play that we haven't heard much about after Cassidy Hutchinson talked about how he knew his supporters were armed with assault rifles, pistols, and other weapons. He said, take down the metal detectors, let them in, and then we will all march to the Capitol. As you say, that is him intending to lead an armed attack on the Capitol. So there's a crime called 18 United States Code. 11. And it is assaulting a government official. And let's think about Mike Pence, because Mike Pence was in the performance of his official duties, certifying Joe Biden's win. And 18 U.S.C. 111 says, if you assault or otherwise interfere, impede, or obstruct an official, a government official during the

course of their duties or because of their official duties, you're guilty of assaulting a public official. And it's an eight-year offense unless weapons are involved. If weapons are involved, it's a 20-year offense. Now, you can only stack up so many charges on Donald Trump. You can only confine him for but one lifetime. But boy, it is a smorgasbord of criminal charges against Donald Trump. Yeah. Now, explain the process to me. Let's say on some planet in a far away galaxy, Donald Trump gets charged by the DOJ. What happens next and what recourse does Trump have? What happens next?

And I would bet a dollar. That's my betting limit. I'm not a high roller that Donald Trump delivered himself a pardon because when was he ever going to forego a good grift? Right. His advisors could have told him all day long, Mr. President, we think a self-pardon is a bad thing because you're actually admitting your own guilt by pardoning yourself. He did it. He has it in his back back pocket. I am convinced. So the first thing he would do is he would pull out that pardon and then the Department of Justice would have to litigate whether a presidential self-pardon is constitutional. There's no legal authority. There's no precedent because a court has never taken that issue up. But there is an office of legal counsel opinion that is a product of the Watergate days that says summarily a presidential self-pardon is not permitted. because no man can be a judge in his own case. That and it's completely devoid of legal reasoning or

authority. So I don't think it's, it's really worth the paper it's written on. But the Department of Justice, Office of Legal Counsel, at least in the 70s, took that position. So I think a court would strike down a presidential self-pardon. Then the next thing is he would be hauled into court. He would be arraigned on the indictment. The judge would make what is probably not the difficult decision about whether to detain him pending trial or put him on release, home detention, electronic monitoring pending trial, which would be my bet, although I think he has earned pre-trial detention in my estimation. And then motions would be set, litigated, and a trial date would be set. And here's one thing I am sure of. We can impanel a fair and impartial jury to try Donald Trump. I am.

convinced of that from spending 30 years picking juries in the courts of Washington, D.C. Can they appeal the verdict in a jury trial? Yes. You can always appeal a guilty verdict. The defendant's appellate rights are vast. The prosecution's appellate rights are very limited. Usually if the judge makes a pretrial ruling that is dispositive of the case, for example, if a judge ruled in pretrial litigation that I don't think you can try a former president and dismissed the indictment, that would be an appealable ruling by the prosecutors, but appealable rulings by prosecutors are very few and far between. What's the end of the line in terms of an appeal? Like, how far does Trump, can Trump go

in terms of, let's say, all the stars align and he does, and the jury does find him guilty, how far can he go? In theory, he can go all the way up to the Supreme Court. He would go from the federal district trial court to the D.C. Federal Circuit Court of appeals and then up to the Supreme Court if the Supreme Court decided to exercise jurisdiction. There are thousands of cases appealed to the Supreme Court every year, and they only accept review of a very small fraction of those cases, because most cases don't present an important constitutional issue to be resolved. Now, if we convicted a former president, I'm quite sure the Supreme Court would want to weigh in, right? Here's the good news. And, you know, I have not been pulling out the O word

optimism all that much recently, but the court, in my opinion, held fast in the election challenge cases, right? They did not accept review in a single case that was attacking Joe Biden's win. Why? Well, one would like to think because there were no significant constitutional issues to be litigated, I think there's something else at play. If the Supreme Court accepted review of a case and did something that installed Donald Trump as a de facto dictator, you know what dictators have no need for? Supreme Court's. A Supreme Court. So I don't trust the good judgment, the honor or the ethics of the Supreme Court as presently constituted, but I do trust that they are so power hungry and egomaniacal and they so dearly covet their power that they will not

do anything that runs the risk of installing Trump back into the presidency to make him a dictator. Yeah, well, maybe eight of them. Can't say as much for all nine. You know, more broadly in these hearings, we've learned that Trump knew the truth about election fraud. He knew the truth about the outcome, about the danger posed by these protesters, about the illegality of John Eastman's scheme for Mike Pence, and yet he continued to lie and incite violence regardless. Is there any reason that you could find that the DOJ would not indict Trump? Is there, you know, are there any potential holes in the DOJ's case against him? No. This case, based on the public reporting alone, is stronger than the vast majority of

cases I tried as a career prosecutor. If the DOJ does... declines to prosecute Donald Trump, it will be a political decision. It will not be a decision based on the facts and based on an application of the law to those facts. But given some of these recent revelations together with witness tampering, which is a big deal and should be handled in a way very different from the other substantive crimes that Donald Trump committed, I don't think the Department of Justice can decline to prosecute Donald Trump and retain any modicum of legitimate as a law enforcement agency. And I think Merrick Garland is keenly interested in the legitimacy of the Department of Justice as an institution. And the only way to retain that legitimacy

is by holding Trump accountable for his crimes. So Mike Flynn pleaded the fifth when asked if he believes in a peaceful transition of power. What was your response to that moment? My response to that moment was, and I'm a former Army Jag prosecutor, I tried court martial cases back in the 80s into the early 90s, Mike Flynn should be restored to active duty and should be court-martialed, period. And there are cases, appellate court cases that stand for the proposition that that is a lawful process, that the military can restore to active duty, a retired officer, and can prosecute him for his crimes, including crimes he committed while retired. We are paying his retirement salary. And he is saying, I would incriminate myself if I

answered the question whether I believe in the peaceful transition of presidential power. That's an abomination. And that it's an obscenity for a retired military flag officer to give that kind of an answer. Okay. So let's finish off with this. More than ever before, people have been writing to me that they're scared about what's going on, that they feel powerless. Like, I've been doing these videos for years, even in the depths of the Trump administration, it never felt so dire. Obviously, the Supreme Court has a lot to do with that, too. But also the way that Trumpism has pervaded almost every race across the country as we head

into midterms now. What do you say to people who see how dismal things have been going, you know, who are looking for some reassurance? So it's hard to reassure them substantively because DOJ has lingered far too long without charging any of the command structure of the insurrection. I still believe that's coming. But what I tell people is engage, engage, engage. So one of the things I did was I printed out from the Virginia government website a stack of voter registration forms, check your local state rules, regulations, and statutes to make sure you're not running a foul of them. And I choose

to act as my own little mobile voter registration unit. I don't care. if it's the grocery store, the gas station, or wherever. I'm like, are you registered to vote? Are you interested in registering to vote? Because I have a form here, and I'm happy to help you fill it out if you need help. If everybody engaged, Brian, I think, and it's not, this is not just window dressing. I mean, if everybody engaged like that, you know, we could probably vote in numbers too big to rig and too real to steal, notwithstanding the state legislatures, you know, determination to nullify our votes, we can overcome that. And that kind of engagement, I think, makes you feel good, gives you purpose, and it's motivating. That's something you can do

concretely to kind of hold at bay the despair and desperation. We are on the exact same page on this. People have asked me, you know, like, what can they do? I said, number one, the very first thing that you can do is just be responsible for your circle of people and just find a couple people who haven't voted. I mean, we all have somebody in our family and our group of friends who, you know, doesn't vote, who is more apolitical, who sees themselves as like more in the middle of both sides, you know, like everybody has that person. But if you look at Wisconsin, for example, Biden won the election in Wisconsin by three votes per precinct. That's it. So, like, if you don't think that you can have a huge impact by just finding one or two or three people

in your circle who you can convince to vote or not in your circle, like you've said, if you're just, you know, out and about, it can have a big. big impact. And so that's the number one thing I would say as well is just to get people involved in this process. So you're exactly on the mark there. Glenn, I'll leave it there because I know I could ask you questions all day long and you probably want to go have meals and whatnot. So thank you for all of your time. I appreciate it. And real quick, let us know, let people watching and listening know where they can find more of you. Yeah, they can find me on the social media platforms. I think that's what they call them. I'm still playing catch up on social

media. But on YouTube, I have a YouTube channel called Justice Matters, but I think everything is run under Glenn Kershner 2. So Glenn Kershner 2 on Twitter, on Instagram, on YouTube, or just put my name in, put Justice Matters in, and it will pop up. It's always free to subscribe. And that's where I get to air out the legal issues of the day, seven days a week. Put a little bit more meat on the bones than I get in the three minutes. I'm on with MSNBC each day. So if you want to get a little, a fuller explanation of the legal issues of the day. I invite you to come on over to YouTube to Justice Matters. That's Glenn G-L-E-N-N-N. Glenn, thanks so much for taking the time. I appreciate it. Thanks, Brian.

Now we've got Michigan Law School Professor and host of the strict scrutiny podcast, Leah Littman. Thanks for coming back on. Thanks so much for having me. So I want to discuss some of the recent Supreme Court rulings, but I actually want to start with a case that I think is just as dangerous. That's Moore v. Harper. It's a case that the court has agreed to hear for its next term. It was brought by Republicans in North Carolina who say that state courts should have no say on whether voting laws they write or the maps that they adopt are constitutional. Basically would allow a Republican state legislature to have the final say, no matter how gerrymandered or voters suppressed their states are. How much of a blinking red light

is that case? I mean, this is huge. Some people are calling it the coup case, and the case rests on what is called the independent state legislature theory. The idea that the federal constitution allows state legislatures and state legislatures alone, no other office of the state to make the rules regarding federal elections. So in the context of this case, the state Supreme Court invalidated the state's legislative maps on the basis of the state constitution. It said partisan gerrymandering is unconstitutional under our state constitution. And what the Republicans are asking the Supreme Court to say is that state constitutions cannot constrain state legislatures when they are making the rules regarding federal elections. But that's, that's insane. Like, of course state

constitutions constrain state legislatures. That's part of, you know, the state governmental system. If that were the case, I mean, if they weren't constrained by their own constitution, I mean, wouldn't that undermine all statutes contained within state constitutions? Like, wouldn't, I mean, talk about slippery slope, right? Is that, am I on the mark here? So they're asking for this special rule only about the rules regarding federal elections. So what they say is, you know, the Constitution singles out state legislatures and those are the only body of the state. So state constitutions can bind state legislatures in all of the other areas, except when it comes to federal elections. But these elections also occur with statewide positions. So it's not just federal, you know,

federal positions that are being impacted here. No. Well, so one of the problems with this theory is it could result in the states having to operate two different sets of rules for federal elections versus state elections. Imagine you have a voter identification requirement and a state court strikes it down, you know, under the state constitution. Then that would mean the state legislature's voter identification requirement would apply for federal elections, but it wouldn't for state elections. That's just chaos. And now what would it mean in terms of sending electors? Because I know that there's been, you know, grumblings about that. Like, I know they'd be able to determine how elections are run. But, I mean, how much latitude exactly would this give state legislatures on the electors front?

Yeah. So the idea that a state legislature can appoint electors, notwithstanding the votes that have already been cast, is a very warped variant of the independent state legislature theory. Now, they're related, you know, they all kind of rest on this idea that the state legislature has plenary authority, like this super expansive authority over federal elections. But, you know, they could be distinct and they are distinct, you know, under the case that's going to the Supreme Court, it's about whether state constitutions can invalidate, you know, state election rules before an election that wouldn't necessarily, you know, lead to a state legislature being able to throw out votes that are already cast. But they are Yeah, I guess it'll be our funeral if we're sitting here saying, well, at least they're, at least they're separate and one will never impact the other. Cut two. So now switching gears, you know, we've got Dobbs. That was the case that overturned Roe. First off, you know, I would recommend people watching and listening visit Votesaveamerica.com slash row if you're looking for ways to fight back, you know, against the attack on abortion rights. Your show strict scrutiny is part of crooked media that's responsible for Vote Save America. You know, Votesave America is. one of, if not the best tool that we have. So the questions that have popped up, and I'm not sure that you can answer these, but I think that it's worth asking them anyway. First, does the U.S. have the authority to install abortion clinics on federal property in states that have banned abortion? And is that property truly federal and, like, beyond the jurisdiction of the states? So the federal government could do that, but I don't think that doing so would actually ensure

access to safe and legal abortion for two reasons. One is that under a federal law known as the assimilative crimes act, federal law incorporates the law of the state where the federal property is located onto the federal property. Now, that wouldn't be a problem during the Biden administration because the Biden administration would just say, obviously, we're not going to prosecute people for violations of this federal law, you know, for performing abortions. But the problem is the statute of limitations under most federal law is five years. That means you have five years to prosecute a crime after it's been committed. So let's imagine, you know, Trump is elected to a second term in office or Ron DeSantis is elected after Biden administration, right, is finished. Then they could prosecute

abortion providers who performed abortions on federal land, even if the Biden administration wasn't doing so. And so that's not a plan that actually ensures access to safe and legal abortion without exposing providers to criminal liability. Could they then get those abortions and then be pardoned or granted clemency by a Biden administration for all the people who did take advantage of, you know, using those federal properties to get abortions while he was president? So that might address the federal aspects, or like the federal crimes, but there are also real possibilities of possible state criminal proceedings. So imagine, you know, someone living in a state that has banned abortion goes on to federal land in order to obtain an abortion. They would still have taken some

steps and possibly made an agreement to have an abortion while they were on state land. And if that's right, then the state could prosecute them for obtaining or administering an abortion and the president doesn't have the authority to pardon people for state crimes. What about Native Americans, like putting abortion clinics on reservations? Is that property truly sovereign and beyond the jurisdiction of the state? Or is it kind of in the same ballpark as the federal property? So unfortunately, in light of the Supreme Court's decision from this past week in Castro Huerta versus Oklahoma, the Supreme Court held that states have concurrent jurisdiction on tribal.

lands on reservation lands for crimes involving non-Indians, even if, you know, the victim of the crime is Native American. And so that possibility also isn't, you know, one that would actually ensure access to abortion. What about the fact that Merrick Garland has announced that states can't ban FDA-approved abortion pills like Miffa-Pristone? Is that something that you think would hold up when it's inevitably challenged in court? Like, is this something that people should get now and stock up on, for example? So I hope it would hold up, and I believe that under the law as it stands today, once the FDA approves a drug and approves a treatment plan for how that drug should

be administered, then states can't prohibit it and basically take away the FDA's authority to do that. That being said, you know, there are these kind of two pathways that states might use. to, again, impede access to medication abortion. One is the major questions doctrine, which the Supreme Court just relied on this past week in order to invalidate the, you know, former Obama administration's clean power pan for clean power plant for regulating greenhouse gases. Under that doctrine, agencies can't adopt or pursue major questions or major initiatives without clear, explicit authorization from Congress. And I frankly don't know if the Supreme Court would say,

you know, the legality of an abortion is a major question that Congress didn't explicitly authorize the FDA to address, or at least to address, you know, while preempting, that is not allowing states to enforce contrary law. That's kind of one obstacle. The other is some states adopted kind of general abortion bans and did so before the FDA approved Mithopristone and medication abortion. And so for those state laws, it's not totally clear, like, if the FDA's permission to use the drug does preempt these state laws predating the, like, approval for medication abortion. And so, you know, do I think the FDA is correct? Yes. Am I confident that this Supreme Court will say states can enforce bans on medication abortion? No.

At this point, is there, is there any real relying? And I know this is a broader question. But like, is there any real relying on good law when confronted with the question about what the Supreme Court is going to do? Like, this has always been what the FDA has followed, even in instances where it was challenged. It was always upheld this way. And now, I mean, everything kind of goes out the window. So it's kind of just like having six Ron DeSantis's on the Supreme Court who can just kind of make it up as they go.

So is there at this point, like, do we just have to assume? And I feel like I'm just answering my own question, but you just have to assume that that anything challenged at the Supreme Court that doesn't comport with the conclusion that they've already made is going to get struck down or is, you know? I mean, I think that is a safe presumption, at least, given all of what they did this past term. You know, they're throwing out administrative agencies authority. They're throwing out precedents protecting the right to an abortion. They're undoing a century old gun control restriction in New York. You know, they threw out, you know, the idea that states didn't have

concurrent jurisdiction over native lands. So they are broadly refashioning the law in their preferred direction. I think there are some things that, you know, the federal government could do that are more likely to succeed. But I think the confrontation with the Supreme Court is not something that a Democratic administration and the Democratic Party can just ignore. So that brings me to the obvious here, which is the question of how do we fix it? And I think that at, you know, at this point, like I said, you know, even if we are able to expand our Senate majority and hold the house and eliminate the filibuster and pass the Women's Health Protection Act, for example, the Supreme Court won't allow it to stand. It's clear the Supreme Court won't allow the federal

government to combat climate change. They won't, you know, that they'll probably gut what's remaining of the Voting Rights Act and make these far right state legislatures, the final arbiter of their own maps, allowing them to entrench their own power completely. unchecked. Is the one and only option here to expand the court? I mean, I think that is an option that ensures democratic legislation will actually get a fair shot at the Supreme Court. I also frankly think that's an option that ensures the court's powers could be curved. You know, some people have proposed the idea that Congress could try to strip the Supreme Court's jurisdiction to decide whether the Women's Health Protection Act is constitutional. But I don't know that that would actually

solve the problem because what would prevent the Supreme Court from invalidating that legislation, you know, stripping their jurisdiction to decide the constitutionality of federal abortion protection. So I think no matter what you want to do, if it's protect voting rights, if it's expand access to abortion, protect access to abortion, or if it is to alter the Supreme Court's role in our constitutional democracy, all of those paths go through the Supreme Court. Because I feel like at this point, Republicans have figured out a way to completely circumvent both any Democratic majority in Congress and the fact that we have a Democratic president by by just basically putting any law forward, no matter how far right, how extreme, how unconstitutional,

how illegal it is, knowing that, you know, it may get struck down at a district court, it may get struck down in an appeals court. But when, if and when it inevitably gets to the Supreme Court, they'll just uphold it with no, like I said, no concern for precedent or any legal basis, really. And so there is no need. I mean, if you're a Republican, there's no need for to even have a majority in Congress or the presidency because you can just put forward any bat-shit crazy law that you want, knowing that it's not going to be up to Congress to litigate this. It'll just be up to the courts to strike it down, strike it down until it gets to the Supreme Court, and then they'll uphold it. Right. And on top of that, it also means the Republican Party

doesn't have to amend statutes that it doesn't like. You know, it doesn't have to propose a bill to repeal the Voting Rights Act. It doesn't have to propose a bill to reduce the, you know, EPA's ability to address climate change. It can just ask the Supreme Court to do that and to nullify and significantly water down, you know, the statutes that we have now. Now, just the general question will end with this. You know, you focused heavily on the court. I've had you on, after almost every major court decision. What's it like for you to see an institution that you obviously have reverence for, you know, devolve basically into into the Republican, House Freedom Caucus? So I'm not totally sure, I would say, I have a ton of reverence for the Supreme Court.

You know, I've said that, so I clerked on the Supreme Court during October term 2011 when the court heard the first constitutional challenge to the Affordable Care Act, the minimum coverage requirement, and only by a bare majority, did it uphold that provision after, you know, invalidating the Medicaid expansion in part. And I think I have always since that point been extremely nervous and skeptical about the court's authority. And the last 10 years, have, I think, proven all of my worst fears correct and made it really impossible to just say everything at the court is fine. Things are normal. We should accept the way things are and how powerful the court has become. Yeah, we'll leave it there. Leah Littman, thank you so much for the work you're doing. And of course, if anybody listening or watching wants to hear more, there's the strict scrutiny podcast. So thank you again. Thanks so much for having me. Thanks again to Leah. Okay, happy fourth, everyone. Thanks for listening. Talk to you next week.

You've been listening to No Lie with Brian Tyler Cohen. Produced by Sam Graber, music by Wellesie, interviews captured and edited for YouTube and Facebook by Nicholas Nicotera, and recorded in Los Angeles, California. If you enjoyed this episode, please subscribe on your preferred podcast app. Feel free to leave a five-star rating and a review, and check out Brian Tyler Cohen.com for links to all of my other channels.