Pod Save America - What It Would Take to Rein in ICE

Episode Date: January 18, 2026

How can we hold ICE legally accountable? Can federal agents be prosecuted? Will Renee Good's family ever see justice? Strict Scrutiny's Leah Litman stops by the pod to talk to Alex Wagner about the legal avenues available to rein in ICE. The two break down ICE's recent actions in Minneapolis, Trump's threat  to invoke the Insurrection Act, and the Justice Department's push to investigate Renee Good's widow.For a closed-captioned version of this episode, click here. For a transcript of this episode, please email [e-mail] and include the name of the podcast.  Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.

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best home security system five years running. No long-term contracts, no hidden fees, just really good protection. Get 50% off any new system at simplysafe.com slash crooked. That's simplysafe.com slash crooked. There's no safe like SimplySafe. Welcome to Pod Save America. I'm Alex Wagner. As most of the country now knows, last week an ICE officer shot and killed Renee Nicole Good, prize-winning poet, hobby guitarist, wife, and mother of three. Fallout has been massive. People across the country are stunned by what happened in Minneapolis and what continues to unfold in the state. state. They have been perhaps equally shocked by the reaction from the White House.

DHS secretary Christy Knoem declared that Good was a domestic terrorist. Vice President J.D. Vance said ICE agents should have absolute immunity. And the Justice Department is now pushing to investigate Goode's widow, Rebecca Good, instead of the ICE officer who killed Renee Nicole Good. A decision that's resulted in the resignation of six career prosecutors from the U.S. Attorney's Office in the state, including the acting U.S. attorney from Minnesota, himself, Joseph Thompson, who, by the way, was a Trump appointee. The problem with the administration's attempt to offer its own politically convenient reality here

is that Renee Good's killing was caught on video. It has now been seen by millions of people, and their verdict seems pretty clear. Most Americans reject the idea that Good was a domestic terrorist. A CNN poll found that registered voters called the E. incident inappropriate by a 2-1 margin, 56% to just 26%. Meanwhile, people in Minnesota have taken to the streets to protest what is literally a 3,000 agent ICE invasion into their state. That response has only escalated tensions. Federal agents have been filming protesters and pulling them

from their cars and slamming them to the ground. In one case, a protester was shot in the leg. It is pretty clear that ICE, with the support of this White House, is using extraordinary and extreme force here, all while allegedly pursuing criminals and the, quote, worst of the worst. But if protesters are getting arrested and shot and killed, what tools are left to stop a masked and seemingly lawless federal force? Are there legal avenues available to anyone to push back against ICE? How do you stop mercenaries if the guy they're working for is the president of the United States? And what happens when that guy threatens to invoke the Insurrection Act? And when and how will Renee Goods family ever get justice? Joining me today to help answer those questions and so many more

is Crooked's very own Leah Littman, who is host of strict scrutiny, a professor of law at the University of Michigan Law School and author of the book Lawless. Leah, it is always so great to talk with you, but especially after this week, I have so many legal questions. First of all, how the fuck is this happening in the United States of America? But that's more than just a legal question. That's an everything question. But let's start first where at the place where I think a lot of people found themselves perhaps

most alarmed, which is the thing that's, I get, oh, Grant, always worry some when Trump says it. but especially right now. And that was his threat this week on truth social to invoke the Insurrection Act. If, quote, Minnesota officials don't act to stop the professional agitators. Just as a side note, there are no professional agitators. Can you give us a kind of legal breakdown on what it actually means to invoke the Insurrection Act and what powers that actually confers? Yes. So the significant upshot of the Insurrection Act is.

is it provides an exception to what's known as the Posse Cometatus Act. That is the law that generally forbids the federal military from engaging in ordinary law enforcement. Basically, it prevents the federal government from deploying troops to arrest people for a violating federal law or, you know, an immigration offense or you name it. So right now, you know, we have already seen the disastrous effects of these surges of deployments of ICE officers, BP officers, HSI officers. And the concern is what if you then add on or replace them with the federal military, which isn't trained to do ordinary law enforcement? They're not necessarily trained in how to de-escalate situations. And so that is, I think, the practical on-the-ground effect of invoking the insurrection act. It allows the president to use them.

military in ways that he has thus far not and basically been prohibited from doing. I have to ask because when he says he's going to invoke it, what does that mean? Like, is that, is Congress anywhere involved in any of this? So the Insurrection Act is an act. It's a law. And as a law, it lays out the circumstances and conditions under which the president can invoke the Insurrection Act. there's really an open question about whether courts can review the president's determination that the prerequisites for invoking the Insurrection Act are indeed satisfied.

There's also the related question of if they can review that determination, will they give the president deference? That is the benefit of the doubt and all of those kind of related questions. And historically, you know, the insurrection act is so rarely used. The most significant precedent we have on it actually comes from an opinion of the executive branch, the Department of Justice, you know, back from the civil rights era. And what that memo concluded is the Insurrection Act is really designed to allow the president to deploy the military when state and local officers are affirmatively engaged in or facilitated. the private violence that the president is concerned with. So think about, for example, the segregationists of, you know, the Jim Crow era who attempted to block, you know, together with private mobs, students from going to integrated schools. Those are the circumstances in which presidents are historically invoking the Insurrection Act and as a legal matter are thought to have the authority to invoke the Insurrection Act. And there are. precisely zero circumstances on the ground that suggest Minnesota is anywhere near approaching that situation. Instead, all of the evidence is state and local law enforcement are trying to de-escalate

the situation, allow federal law enforcement to do their job, but also enforce state law in the process. And there's just no indication that they aren't capable of doing so either. I guess one of the things I, you mentioned that, you know, it's a law and therefore maybe subject to judicial oversight. Who would have standing to sort of sue to stop the president from invoking the Insurrection Act? Would the state of Minnesota? So I think a bunch of different entities. One would be the state of Minnesota because we have already seen the injuries to the state from the mass deployment and surge of ICE officers.

Businesses in Minnesota have shut down. hospitals are limited. State public services are feeling the strain. It is more difficult for the state to enforce state law, given the violations that the federal officers themselves, you know, are engaged in. So it's clear that this surge and deployment, you know, injures the state. So the state is one possible entity. It is also possible, you know, that individual citizens or religious organizations or other groups that are being harmed by, you know, the tariff. targeting of different communities and the obstruction of public services in the state could also

sue. So those are two, yeah, different categories. We sit here, we're recording on Friday the 16th of January and Minneapolis and St. Paul Public Schools are offering virtual learning, I think until mid-February, because there's so many children and parents who are terrified of going to school. And one would assume that they would have standing to say, hey, this, you know, whatever, ramping this up if you do invoke the Insurrection Act is causing great harm to our children's education. Exactly. And nobody hates a school closure more than the right wing, so that would be an interesting moral conundrum for them. I mean, the last time I believe in American president invoked the Insurrection Act was George H.W. Bush during the L.A. riots, right? Yes. How did that happen?

It was actually at the request of state officials. So he had their consent. So this is an instance where the state is basically saying, we don't have this. Can you help us out? And that is consistent with the tradition that the Insurrection Act reflects, which is not using the federal military to overpower state law enforcement when they can handle it. Oh, imagine that. The invitation of the state, back when invites were when consent mattered. Yeah, exactly. But prior to that, it was kind of, I was looking at a timeline, thank you, USA Today, of when it was most invoked. And it looked like the 1870s was kind of the high watermark for the invocation of the Insurrection Act. Exactly. What's going on in the 1870s? It's literally the aftermath of the Civil War.

Civil war, exactly. And, you know, the continued rebellion of the former Confederate states. So, yes, the Insurrection Act is used at that time. Unbelievable. I mean, as I said, we're recording this. It's important to timestamp the recording because the situation is so kinetic. And new videos emerge, it feels like, every day. I mean, just a few days ago, there's a video of federal agents seen on video dragging a woman from her car,

doing a protest and throwing her to the ground as they try and clear the streets. And I'm reminded as these videos come across the transom of the words of the governor of Minnesota earlier this week, who said, if you see ICE agents hit record, which is something people are doing and props to them because that's not without some potential peril. But I wonder, you know, if you're a layperson and you're living in one of these neighborhoods or even if you're not, what levers exist for people outside of government to hold ICE accountable beyond their camera phones? I mean, I guess I just want to emphasize the power of the camera phone because in the short term, you know, it is possible that those cameras could provide evidence in state criminal cases, you know, against officers or in civil litigation against them. But even if that doesn't happen in the short term, I hold out hope that they would be useful in some sort of accounting for what is going on once we make it through this. And whether that is, you know, some equivalent of a truth and reconciliation commission, you know, where we acknowledge, you know, what the Trump administration was doing and the harms, you know, that caused different communities and people. In the future times when he's no longer in power and we kind of wake up from the fever dream. Ooh, Leah, keep talking about that. I'm manifesting. It's one of my New Year's resolutions.

Right on, sister. You know, I don't want people to feel like, oh, I just have my camera or my camera phone. Like, is it even worth it? You know, I do think that that is important. Like, You should do that. You know, beyond that, I think it's tough. You know, public shaming sometimes works. We've also seen the videos, right, of the Minnesota Nice approach, which is calling ICE Nazis and telling them to get the fuck out of here. You know, I'd have to think that if you go to work every day and people are screaming

at you, you stink. get out of here. Maybe that's a deterrent, right, to continuing with that job. Now, of course, they are being way overcompensated and, you know, they're allowing anyone in. So it's unclear, you know, what effect that will have. But, you know, public shaming, you know, that sometimes works. I think another thing is, you know, calling state, local and federal representatives because they are in a position to potentially bring litigation, you know, in the event that Democrats retake Congress to hold hearings, right, to pass laws that actually would limit the ICE practices, that we are seeing. So I think continuing to express to, you know, political representatives that this

is an issue that matters and that there are things you can do about it, that's important. And then beyond that, you know, this isn't really holding people accountable. But I do think there are ways that we as a community can support one another and protect the people who are most vulnerable, whether that is neighborhood patrols, whether that is churches delivering food, you know, whether that is agreeing to help someone take their kid to school, you know, or run errands for them. There are many different ways that, like, we can all step in and provide, you know, some sort of safety net. Right. It's not just, it's not just trying to minimize the power and terror of ICE. It's also trying to strengthen the resolve and resilience of the community itself. Yeah. You mentioned they're not

trained. And that, I think, is like something that is quite clearly, it's obvious when you look at these videos. Yes. ProPublica has some essential, really urgent reporting this week about ICE agents using banned chokeholds on American citizens. Yep. And I would assume that, you know, because it is explicitly banned in the DHS policy guidebook or whatever it's officially called, does that then make it easier for those families and those victims to take their case against ICE to court? I know we're going to get into the difficulty of civil suits with federal agents in a second,

but just using explicitly banned maneuver seems like it opens up a portal that maybe doesn't always exist. Yes, that's certainly going to be helpful persuasive evidence in the event you can actually get a court to hear the merits of your claim. That is also potentially helpful in defeating a defense of qualified immunity, which are oftentimes very strong and, you know, will out a bunch of. of meritorious suits, but showing that the officers are in violation of a policy that they are supposed to follow can be helpful in overcoming that defense. So yes, it's helpful. It's just not the full solution to all of the obstacles to that kind of litigation. Yeah, I mean, we're going to get to J.D. Vance's assertion that ICE has absolute immunity. But I do, you know, like I do wonder when you see these people being abducted and detained and arrested and violently thrown to the ground in

establishments, like the one I'm talking about, the chokehold video that is part of the ProPublica reporting, happens in a restaurant supply store. A lot of this stuff happens right around or actually inside businesses. And I wonder from a legal standpoint, whether business owners have more agency in preventing ice from acting so aggressively or maybe stopping the raid entirely. I mean, how would that, how does What can happen in that space? Sure. So, you know, a business owner can restrict entry onto their premises. So some businesses post signs, you know, ICE officers aren't allowed in with an administrative warrant rather than a judicial warrant. You know, we have also seen ICE just frankly overpower, you know, individuals and barge in, you know, without warrants and whatnot. But that's not to say, you know,

business owners can't at least, you know, say this is the policy, you know, we're not allowing you in without some sort of judicial warrant. You know, another thing. that they can do. And just to stop you for one second, often ICE doesn't have warrants, right? They're just randomly picking out places where it feels like there might be undocumented residents hanging out, looking for work or actually working, right? So that's not nothing that business owners can say you can't come in here without a warrant because that slows the process down to the very least, right? Exactly. And slowing it down is hugely helpful. And then they can also refuse service to ICE officers, right? No cookies for you. You know, that also, you know, is going to

to minimize traffic in the store. And so that, you know, it's something else that they can do. Well, that's meaningful also because last night there was a report that ICE officers arrested workers at a Mexican restaurant after the ICE officers had just eaten at the Mexican restaurant. As if kind of like they wanted like, I don't know, tacos and like went in, had the tacos and we're like, you know what? Why don't we grab some migrants here as long as we're done with our barbacoa?

Yes. So that too, right, isn't, you know, meaningless, you know, just saying, like to make their lives more unpleasant. Exactly. Exactly. No cookies for you. slowing it down. Pots of America is brought to you by dose. Can we talk about the most underrated organ in your body, Tommy?

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You know, I, I, as we talk about sort of what's happening on the streets, there's also the reality of what's unfolding behind closed doors. And I think if you have been disturbed by the treatment of both American citizens and non-citizens alike on the streets of Minneapolis or another major American city, there is reporting out this week about what's going on in ICE detention center. that is very alarming. 2025 was the deadliest year for ICE in two decades. There were 32 deaths in ICE custody. There have been several just this year alone,

and we're on the 16th day of January. What checks are supposed to be in place as far as detention? And I would assume this is all subject to congressional oversight. Yes. So congressional oversight is supposed to be one check. That's why we've seen representatives show up to ICE detention facilities. and demand to inspect them. That's also why this administration is pushing back on that because they don't actually want any oversight.

They don't want it to come out, you know, what is happening in these detention facilities and detention centers. But congressional oversight, congressional hearings, you know, if Congress sees something going on, they can yank back ISIS funding and say, look, okay, we are not going to give you this money unless you offer, you know, the following protections, you know, for people who you are arresting, detaining. and stopping. So congressional oversight and, you know, Congress actually exercising oversight powers, whether that is limiting funding, conducting hearings, and whatnot, those are all possibilities. But if you're in Congress, can you not go to an ICE attention center and demand to get let in? So that is what the law says. That is part of an appropriations rider. And yet, yet, the administration has refused entry and indeed is prosecuting, you know, one of the Democrats. Democratic representatives, La Monica McIver, who showed up to an ICE facility and attempted to engage in some oversight. You know, she was initially refused entry.

There was a skirmish involving, you know, Newark Mayor Rosbaraka. Yeah. She was subsequently let in. And then afterwards, you know, they are charging her with assaulting an ICE agent. Which is like up is down, down is up. We are officially through the looking glass. When you talk about the tactics, I mean, we were talking about Congress's role in all this. the fact that they're not trained.

And I just feel like that's another subject for Congress, right? Like if we want ICE agents to receive proper training and I don't know, not use ban chocolds and like use the most extraordinary and extreme measures to detain people who are largely peaceful, like what does that look like? It does it just have to be, you know, House Republicans and Senate Republicans agreeing that this is un-American and this shouldn't happen in doing something legislatively about it? Or what is the process? you know, after January 2027, you know, it doesn't look like that. And, you know, a Democratic-controlled

House and Democratic-controlled Senate, you know, could pass funding restrictions on ICE, you know, so long as ICE doesn't institute training and certain protections. Now, the president is likely to veto it, but, right, I still think it is important to, like, press the case for, look, we are just trying to ensure that basic principles of due process are being followed and that we are not housing people, right, in these grotesque conditions, you know, there was a report, a medical examiner concluded that one of the people in ICE detention, he ruled his death a homicide. So, you know, that has to be the sort of thing that politicians, you know, find worth fighting for and they are willing to continue to appear at these facilities. And, you know, if and when they get a majority, you know,

they attempt to provide some oversight and then also some accountability, you know, and actually allowing potential litigation against ICE officers to go forward. And yeah, we still, I mean, the person who was reportedly killed was, I believe, strangled to death, but also had a sort of violent criminal record, which makes it not okay to kill him in jail under federal custody, but it does make it politically more complicated for Democrats to rush to his defense, I think, or anyone to rush to his defense, not that that is warranted necessarily, but it makes a casualist a little bit more complicated. I mean, big picture here, like, as we look at the state of Minnesota, right? I mean, what legal recourse does the state actually have here? And let me just drill down on that a little bit more and say, could in theory, because this is something that's been floated in multiple interviews I've heard with the mayor, Jacob Fry, if not the police chief, can the local police in Minneapolis go after ICE agents? Yes. You know, federal officers are not allowed to violate state and local criminal law. Now, prosecuting those officers is difficult because what happens,

is they argue as a defense that they were merely carrying out their federal duties. And when, you know, state law, a state criminal statute conflicts with a federal statute authorizing an ICE officer to do A, B, or C, the federal law is going to win out. But that just means those cases come down to, was the ICE officer acting within the scope of their powers? Were they doing things that were reasonably necessary to carry out their response? I think from videos, it is clear they are going way beyond that. But that's just part of what makes those cases difficult is they are often litigated in terms of was the officer doing, you know, something that is reasonably necessary to carry out their duties. And it's not often, you know, that you have, frankly, this brazen or this widespread of federal officers so systematically going. beyond the scope of their duties. And so the fact that we haven't seen that many state prosecutions of federal officers, that's just because historically, you know, the federal government doesn't behave like this. Those were the before times. Right. When you didn't have basically Trump's masked thugs out there just ripping people from their cars and places of work and places of worship and hospitals. Okay, let's talk about the aftermath of the shooting, right? Because an interesting thing happened at the U.S. Attorney's Office. Six federal prosecutors resigned this week over the

Justice Department's handling of Renee Good and her case, and specifically the Justice Department's push to investigate Becca Good, who is Renee Good's wife, at the same time refusing to open an investigation into the ICE agent who shot Renee Nicole Good. First of all, your just reaction to that. And what legal grounds do they have to just have such an asymmetrical and unusual? pursuit in terms of their investigation. That was so galling to read. I mean, I cannot imagine being a person who was willing to move forward with an investigation into the widow of the shooting victim rather than the person that shot her. You know, this is very much part of their campaign to dehumanize, you know, their victims.

It doesn't really matter who the victim is. If you get in their way, their view is you've lost all of your rights. You've lost your humanity. And they can just tar and feather you with whatever label strikes them as convenient. And they will lie their way through it and use the full force of the federal government to try to do so. that was one of the more horrifying, I think, things that has come out about this administration in an administration that finds new horrors every hour of every day. And, you know, for me during the first Trump administration, the child separation policy was one of the more

just horrific, grotesque policies. And I remember thinking at the time, anyone who was involved in that should never again be welcome in polite society. That hasn't panned out. No, Stephen Miller. Still there. Certainly hope that this time around, like anyone who thinks it is remotely appropriate to use law enforcement powers against the widow rather than the ICE officer, like, they just cannot be eligible for any future position of authority. You know, as far as, you know, the legal questions of how can they do this, not to take it all back to the Supreme Court, but to take it all back to the Supreme Court. You know, in the court's absolutely horrifying immunity decision in Trump versus United States, they went out of their way to affirm that

investigative and prosecutorial functions were the core exclusive power of the executive branch and president. And so exclusive to the president, Congress can't pass laws that limit the president. exercise of those functions. And in that very case, there were allegations that the investigations were shams, that the threatened prosecutions were for improper purposes. What did the Supreme Court say? That doesn't matter. That doesn't make them beyond the scope of the president's power. So I guess it's not that surprising after you have the Supreme Court tell Donald Trump. you can use your federal law enforcement power to target anyone you want for any reason that he would go ahead and do that.

I mean, just the Roberts Court coming back to just make things just a little bit worse every single fucking time. But six federal prosecutors are signing from the case. These were career prosecutors. One of them was the acting U.S. attorney who was appointed by Trump and is involved in another case that Trump is really obsessed with. But first, just what are the implications of the case moving forward if you lose like the six top people in the office who are supposed to be pushing the investigation forward? I mean, hopefully that slows it down. So that's one potential benefit. You know, a second potential benefit is something we've seen play out in his effort to install his former personal lawyer slash insurance lawyer, Lindsay Halligan, you know, into a position of authority, which is if it's only dumb hacks that you can find to do the job, they're not going to do it well. And so it's.

it's quite possible that any attempt they might make at actually doing a prosecution or securing an indictment wouldn't fly because it stumbles on their inability to dot their eyes, cross their teas, and read. And then, you know, the final kind of thing it might do is it just colors the public atmosphere and potential assessment of a claim of like vindictive prosecution, right? If like all the career prosecutors resign because they're uncomfortable handling this case. And that's pretty good evidence to the judge, that this case stinks. Oh, that's really interesting. I mean, also, if the whole point of the investigation is to have sort of the final word on what really went down, this is a great way to engender public confidence in the report.

Psych, no, it's not. It's like the very opposite of that. Nobody is going to take this and say this is a genuinely like nonpartisan independent report that seeks to find the truth. This is a tool for Trump to, you know, act politically in his own favor. Joseph Thompson, who's the acting U.S. attorney for the state of Minnesota, who just resigned because of the way the DOJ was prosecuting this case, was also the lead prosecutor in the, I think it's the Feeding Our Future case where 58 people were convicted in a scheme to steal $300 million from government child nutrition programs.

There are still 20 more defendants who are awaiting trial. Trump is upset. I actually think in addition to George Floyd and that unfolding in Minnesota, the involvement, potentially of Somali immigrants in all of this, the sort of racial underpinnings that sort of color the dynamic in Minnesota right now. He loves speaking ill of immigrants and brown people and they're both there in Minnesota. I mean, I think that's this case is in many ways why he's been most recently attracted to the state. And now the guy that pursued the case that was leading the investigation has left. Does that derail that case a little bit? I mean, it's going to slow it down. I mean, not that I'm a fan of fraud. It's just the way in which there's clear partisanship that's like the judicial system is being employed for partisan political gain and, you know, entire communities are being painted with a broad brush in really deleterious way, really in a really bad way, and in a really divisive and cruel way. That is the not good part of this case. Pursuing justice for fraud is a good thing. But,

yes. Sorry, to my original question, how does that affect the pursuit of this case and the prosecution of this case? So at a minimum is going to slow it down, right? Because if you change out, right, all the prosecutors who all of a sudden have to get up to speed on the case, familiarize themselves with it, They are going to have to take time to do that. But second is what you were just saying is this further politicization of the Department of Justice is going to undermine public confidence in that case, even though, you know, there are very serious real allegations of fraud, you know, that deserve to be held accountable. But when you just destroy public confidence in institutions like DOJ, that doesn't go away, even if, you know, the stopped clock occasionally has. has a meritorious case or two that it pursues. Potsave America is brought to you by Armour Colostrum, feeling sluggish, bloated, not like yourself. Life bombards us with silent threats, processed foods, artificial light, and modern stressors disrupt your gut, drain your energy, and weaken your immune health. Your body isn't broken, it just needs the right inputs.

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harassing, whether it's Renee Good's widow or her child or any of the other people who are family members of the victim here. There's the fact that the FBI shutting out men of Minnesota police and their investigative agencies. The FBI taking it. The FBI taking over the entire investigation. How unusual is that from a legal perspective? It's very unusual, at least in cases like this, where there's just no reason to suspect that, you know, the state law enforcement apparatus is compromised, right, or somehow engaged in the commission of the crime. You know, it's state and local law enforcement that have primary responsibility for investigating crimes. You know, the vast majority of people who are detained and have criminal convictions,

have them by virtue of state and local law and state and local prosecutors. So these are individuals who have more experience and more familiarity with the locale, the people who are potential witnesses, the communities. And so it is not common to just entirely exclude, right, this very helpful, you know, array of experts who have expertise and perspectives that you lack. And, you know, the lack of cooperation between state and federal law enforcement, you know, was also one of the signal flaws that led to the creation of the Department of Homeland Security. The idea was, you know, they would ensure there would be continued cooperation and communication

between state and federal authorities. But obviously, that proved inconvenient at this moment. And so they just dispose of, you know, that project. That's so insane. I had, of course, like all my 9-11, 9-11 happened 120 years ago. Yeah, of course, DHS was created to solve that problem. and it's just been recreated single-handedly by the Trump administration. But, I mean, when you screw over the people that need to be helping you and the people who's files and evidence you need, that's probably going to hamstring the FBI's investigation, no? I would think so.

But, again, they're not engaged in a serious investigation. Right. You know, they are just engaged in an effort to try to find some way to smear Renee Good and to come up with heavily doctor footage that suggests the ICE officer, you know, wasn't at fault. And so they probably don't really care. I mean, they definitely don't care about actually uncovering what happened. Because if they did, they wouldn't have released real-time statements that already stated their predetermined conclusions. They wouldn't have excluded these law enforcement officials, you know, from participating in the investigation. So all of their behavior to date just suggests they don't really care. What's the timeline do you think for this investigation? I mean, I can't remember, I mean, with high-profile

cases like this, what is, what, what, what, what, what, what, what, what, what, what, what kind of month turn around are we looking at? Um, I really don't know. I'm not sure that there is like any sort of, like, standard across high-profile cases, you know, it probably depends on, you know, whether they feel like they have spoken to everyone on scene, whether they have collected all available video. So it's a little bit hard to know exactly, you know, what it might take. I mean, part of it is also going to depend on some of these high profile cases often involve hate crime charges, and those often take longer because they require uncovering additional evidence of motive. And so, you know, could it be, again, that they are looking for some evidence related to that?

I don't know. That could prolong an investigation. So it's a little difficult to say, like, we should expect it to be, you know, wrapped up within this window or that. something tells me it's not going to be done on an expeditious timeline. Yeah. I mean, there's one thing that I find very hard to swallow and that it just sounds like, you know, first of all, the trauma itself was so profound, right? Renee Good is shot through windshield and killed in front of her family. And then her family, her widow, is now the focus of a federal investigation,

which is also known as a federal smear campaign. Right. And the government has so much power in this scenario. And yet Renee Good, the family of Renee Good, has so few, has very little recourse to seek justice from the federal government and from ICE. Why, first of all, why is that? Yeah. So as we were kind of previewing earlier, there are a bunch of obstacles that, again, getting back to the Supreme Court, the Supreme Court has created to actually sue federal officers. for violating your rights. Now, Congress, you know, in the aftermath of the Civil War, passed this law called Section 1983. It's a general civil rights statute. And that's the law that allows you to sue state and local officers who violate your constitutional rights.

That's what's called a cause of action. Like, it is the legal authorization to bring suit. Congress has not passed a similar law that allows you to sue federal officers for violating your constitutional rights. So what happens then? Well, back in the good old days, you know, the Supreme Court stepped into the breach in a case Bivens versus six unnamed agents of the FBI. The Supreme Court said when your rights are violated by a federal officer and you don't have another remedy, then you can sue those officers for damages. You know, the Bivens case was, you know, some law enforcement officers who break into a guy's house, you know, ransack it, force him to stand naked.

And then they don't try him for anything. And oftentimes when the government violates the Fourth Amendment, they do so in the course of obtaining evidence that they use at your trial. So what's your remedy then? It is asking the court to exclude that evidence. That remedy isn't available if you're not charged with the crime. And so in Bivens, the Supreme Court said, for people like Bivens, it's damages. or nothing. And in that circumstance, we recognize that courts have the authority to afford traditional forms of relief like damages. So that used to be the case. This court hates Bivens.

They have basically limited it. And precedent. I'm just saying, right, and precedent. The law, the rule of law, accountability for government officers. The list goes on. Democracy, multiracial democracy. How long do we have? And they've said, you know, unless you are suing a federal officer for a constitutional violation that basically is on all fours and exactly like one of the three prior cases where we have recognized a Bivens cause of action, you're out of luck. And so, you know, because we are seeing this unprecedented surge in immigration enforcement, engaging in unprecedented constitutional violations, there aren't prior Bivens cases that say you can sue an officer under these circumstances, even though,

like Bivens, you know, for Renee Nicole Good and her family, it is Bivens or nothing. Why did Congress not pass a law that matched a law that was passed in the post, in the reconstruction era? So I think there are several different explanations. One is so long as the Supreme Court was like filling in the gap, it was just a less pressing need because there weren't this slew of cases, constitutional violation after constitutional violation, way. the court was saying, you have no remedy. You can't sue the officer. So I think that's part of it. And then honestly, kind of like the lead up to the Supreme Court overruling Roe versus Wade, people failed to appreciate the direction that the court was headed in, right? Like they didn't see where the court was going when they actually had the opportunity to do something, you know, when they had the supermajority in the Senate, you know, and could have passed, you know, federal protections for abortion rights, federal protections for individual. whose constitutional rights are violated by federal officers. So that's the kind of, you know, hindsight's 2020 sad aspect of the story. The positive spin I am choosing to put on it is as follows. This is one of those rare circumstances where Congress can easily fix something the Supreme Court has fucked up. All they need to do is just pass a law, amend 1983, and say applies to federal officers too. And that

fixes the problem. Right. That was actually the op-ed by two law professors. this week who suggested that Congress should pass something called the Renee Good Civil Rights Act, basically to account for the gaping hole that exists in our judicial system, which makes it very impossible, I should say, in this day and age to sue federal officers for wrongdoing. I mean, so that would just be an act of Congress. So simple, so easy, Leah. Yeah, I'll just snap my fingers. Or maybe if everyone in the world claps their hands at the same time, a Congress will appear. Oh, my Lord. Okay. I mean, that then gets me to sort of a big, question here because you've said to a number of answers you have invoked the highest court

in the land, the Supreme Court. And I think the lowest court in my estimation, but seriously, girl preach. For a long time, it's felt like the courts have been the bulwark against the Trump administration, right, especially in the immediate aftermath of inauguration day, right? They're preventing executive overreach or the hollowing out of federal agencies. But that, I think, thinking that the courts are always there as a failsafe doesn't really hold up. I mean, New York Times report recently found that Trump's, the appellate judges that he has picked have ruled in his favor 112 times compared to the 13 times they have ruled against him. So give me your sort of like big picture analysis on how the courts are functioning here in terms of where they've slowed or

blocked his agenda and where they've ultimately given him a hallpocket. I think the federal trial courts have done a really admirable job in generally trying to hold the president and the administration accountable to the law. And I think it's no accident that that is why we have also seen the Supreme Court steadily narrowing the power of district courts, you know, to issue nationwide injunctions or to issue other forms of relief, you know, that would be effective against this administration. I also think it's no accident that we are seeing this administration put forward even more extreme nominees than they did during the first administration. You know, the ones who are voting for them, you know, 90 plus percent of cases. You know, who are some of the people they have appointed to the federal courts in the second term? Amel Beauvais, you know, the guy who literally came up with a strategy of trying to evade court orders and allegedly, reportedly, said, we'll just say, fuck you to the courts. That guy.

Cool, cool, cool, no, that guy. Now on the Court of Appeals. Exactly. Lifetime tenure. The guy who also attended a Trump rally after he became a federal judge. You know, there are also people that they have put up for the federal district courts who have described themselves as zealots on the issue of fetal personhood. The idea that the Constitution requires abortion to be illegal nationwide. So they are slowly transforming the federal courts, particularly the lower federal courts that have proven effective.

at checking this administration. So you're right, we can't count on the federal courts to always be there. You know, we have to take a belt and suspenders approach to thinking about our rights. You know, as we were talking about, Congress should have codified protections for Roe, you know, not just relied on the idea that the Supreme Court was always going to stick to precedent. And we also need to think about what these institutions should look like in the post-Trump world. Because, you know, again, thinking proactively, we should think about how can we, safeguard our institutions and like harden our democracy so that we don't slip back into this when we finally pull ourselves out. In the after times when he's no longer president and there's a truth and reconciliation committee and we begin to rebuild our democracy. You'll hear a little bit

more from Leah in one quick sec, but first on the latest episode of my show, Runaway Country, I interview Michael Moore, the former chief of police for the LA Police Department because he offers some very interesting and I'm going to say controversial perspective on how law enforcement is looking at the events of last week and understanding what exactly happened to Renee Nicole Good. And then the bulwarks Tim Miller joins me to question the parallel realities Americans appear to be living in despite ample video footage and even in cases of life or death. We take visits from Earth 1 to Earth 2. Tune in to Runaway Country wherever you get your podcasts or check it out on YouTube. POSA of America is brought to you by Sundays. New Year, New You should always include eating better, right?

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dogs.com slash crooked 30, Sundays for dogs.com slash crooked 30 or use the code crooked 30 at checkout. I just want to get your thoughts since I have you here as our legal eagle on some really high profile cases that are making their way through the courts. On Tuesday, Scotis Wade in for the first time on trans athletes participating in women's sports. And for years, most of those decisions have been left to state and local organizations, right? But the Trump administration is pushing to make the ban a federal issue. And some sources say that justices appear inclined to uphold it. I can't imagine the Roberts Court. What's your feeling on how that's going to shake out? I think the best case scenario

is the justices say the state bans on trans girls and trans women, you know, participating in sports, don't violate Title IX, the federal law that prohibits sex discrimination in, you know, educational institutions and services. That's the absolute. slued best case. From there, it only gets worse. It's possible they will also say these bands don't violate the Constitution's equal protection clause. That would be worse because it would foreclose, you know, another potential claim that could be used to challenge these bans. The lower court in this case suggested they needed more evidence in order to weigh that claim. And so the idea that the Supreme Court will just go ahead and resolve it

after the lower court said, we need more evidence, right? Should be some indication of how aggressive, right, they are inclined to be with respect to trans rights. And then still worse is the possibility, oh, yeah, that they're not going to do it in this case, but there's a possibility that some justice floats the possibility that Title IX itself forbids the participation of trans girls and trans women in women sports.

And so then it's not just, you know, that you can't challenge states where, you know, states have laws that ban trans girls and trans women. It's also that states won't be allowed to include trans girls and trans women. So that's the range of possibilities, rooting for the first one real hard. Wow. It feels like the federal government has real leverage over states where this is being fought out. Education Department is also fighting Maine, California, Minnesota over efforts to cut off federal funding because those states allow trans girls to compete on girls sports teams, right? That's those are, this is sort of a parallel situation. It's a multi-front litigation.

You know, they are also targeting hospitals, you know, that provide gender affirming care and research universities. You know, they are targeting schools, you know, that, again, you know, provide inclusive policies, you know, for trans students and trans-assies. and trans athletes. So they are engaged in this all-out war on the existence of, you know, trans people and their ability to basically participate in society. I mean, I feel like, well, the connective tissue between what's happening with that group of people and what's happening with migrants and brown people in the country is just a sort of brutalization and a diminution of their humanity. And I worry that the impunity with which this administration is going after people they deem not worthy of belonging in this country, that that is going to give them

license to, I don't know, legally be as aggressive as they possibly can be and shoot for the moon in terms of punishing or otherwise dehumanizing people that don't fit within their political agenda. I mean, that actually really worries me, that they see what they can do in a place like Minneapolis and they're like, oh yeah, you think we can get trans girls out of sports? Yeah, we're going to do that plus plus. Exactly. I mean, I think people have noticed this in the case of Renee Nicole good, right? Like, it didn't really matter who she was. She's a white woman. She is now the enemy, you know, and they are just willing to lump in anyone who, again, they like harbor animus toward or who criticizes them or tries to stand in their way. Like, they will dehumanize all of those people and just like attempt to normalize the state violence, you know, against them. Well, and they're betting that the fact that Renee Nicole Good was a lesbian gives them a pass to torture her family in the wake of her death and smear her name and her story nationally with the full force of the federal government, right? And nothing's going to stop them in the same way that if you're an observer standing there with your camera phone and we've seen videos of this this week, they can push you down to the ground regardless of whether you're, you know, following the law and an American citizen and have every right to be doing what you're doing, there's just a sense of lawlessness. that is held on the part of the law itself.

It is terrifying, Leah. I mean, it's absolutely terrifying. And the idea that there is no longer a consensus in this country that federal agents shouldn't be going door to door, car to car, hauling people out, throwing them on the ground and assaulting them. I mean, I would have thought, you know, before January of 2025, if you just showed anyone a video and you didn't tell them, right, who the officer was and who the target was, everybody would say, we don't do that here, that's not okay. And now they have polarized this,

where again, they are asking for permission from their ideological allies to engage in this kind of violence against anyone and everyone. And it is clear there is just no low they won't stoop to in order to, you know, traffic in some ostensible justification, you know, for what they're doing. Let me ask you one more question just as I think about this because you're doing, you're conjuring the specter of a future where there is no Trump administration and I want to live in that future for just a moment. But if you're Christy Knoem or Stephen Miller, who's the, you know, sort of one of the architects of all of this. And it's like, one could say knowingly and willfully recruiting people who are either unqualified or uninterested in

following the rules and violating the rights of American citizens. Like, are you hoping that Trump's preemptively pardoning you before you before he leaves office? And what is your expectation? Because so much of this feels like, okay, for now, you guys can do this because the circumstances are in your favor, right? But there is going to come a time for accountability. And there is going to come a time for the legal and judicial system to hold you responsible for, for the crimes that have been committed in the country's name. So like, what's your expectation as far as Trump's exit and like with this stuff in his rear review mirror, what's legally possible for him to do? I mean, I would assume everyone in the administration gets a preemptive pardon.

What do you, what do you would imagine that scenario was like? It's possible that that's what they are hoping for and that that's what they will get. But honestly, I also think they are telling themselves two things. One is that Democrats just don't have the spine. They don't have the backbone. they would never, right, actually hold anyone meaningfully legally accountable. I mean, you had to drag Merrick Garland's DOJ, right, for years in order to get them, you know, to potentially investigate Donald Trump's role in January 6th. And so I think they can look at past practice and be like, okay, like we're dealing with these spineless people. You know, they're not actually going to do anything. So that's probably part of it. And then I think another, you know, more terrible. lens is they don't really imagine or see a world where Republicans are no longer in power. They are acting like they will have a stranglehold on power for the foreseeable future. And so they're just not bothering to worry themselves with the possibility of a regime that isn't controlled, you know, by someone like Stephen Miller or J.D. Vance or, you know, whatever creepy weirdo, you know, is milling about with them. Well, I'm here to say that what we have seen and part of the reason you see some, some semblance of a spinal cord in Congress is because the people, the citizens of this country are out there on the streets, people who are not normally out there with camera phones following a line of ICE officers as they inflict terror upon communities. They are enraged. They are engaged. I sound like I'm running for office. But they're there. You know, people have their eyes open. into this stuff. And if the Trump administration thinks that the citizenry will go quietly

into this good night, I think they got something else coming for them. Yeah, from your lips. Oh, my God. Leah, it is such a joy. I mean, it's not a joy to talk about this stuff, but it is so helpful and it's great to see you. But it's also so important to get a real sort of legal understanding of what's possible and what isn't possible, the challenges and also the opportunities that exist for all of us as we witness and, you know, bear witness to this insane chapter of American history. So thank you, my friend, for your time and your brilliance. And everybody should listen to strict scrutiny because it's the best. Well, thank you. Happy to come back anytime. And, you know, if you are looking for something to call your

representative about, call them about a bivance fix. Call them about abolishing qualified immunity for ice. You know, you name it. There are specific asks you can make, you know, in order to build a movement around and to organize people around. Just, we're going to put that at the bottom of the screen. Just call your representative and ask for a Bivens fix. 1-800. No, I don't know. It's not a 1-800.

It should be just to get to the switchboard, but you have to look up your representative's phone number, but do it because it's worth it because fuck. These are the times to make big calls. Leah, thank you. Thank you. That is our show for today. Thank you, Leah Littman, for joining me. John, John and Tommy will be back in your feeds on Tuesday.

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