Strict Scrutiny - Will Trump Succeed in Rigging the Midterms?

Episode Date: August 3, 2026

Huge news for lawyers: You can now listen to Strict Scrutiny for CLE credits in California, New York, Texas, Pennsylvania, Illinois, Virginia, North Carolina, Georgia, Washington, and Oregon! More info at crooked.com/strict_cleKate and Leah have good news and bad news. The good: The Paramount/Warner Brothers merger is on hold, the Tate brothers are facing extradition, and Todd Blanche’s nomination for AG has hit a roadblock. The bad: …Everything else. They also cover the ongoing prosecution of Jim Comey for seashell art, and speak with UCLA Law’s Rick Hasen about Trump’s effort to assert presidential control over federal elections. Then, Kate checks in with Farah Diaz-Tello, senior counsel and legal director for If/When/How, on what she and her colleagues are seeing when it comes to the use of the criminal law to target both abortion and people who experience pregnancy loss after Dobbs.Favorite things: Kate: Olga Dies Dreaming, Xochitl Gonzalez; A Setback for the MAGA Media Takeover, Michelle Goldberg (NYT); Dancing to Stave Off Dementia, Emily Goligoski (Harper's Bazaar); Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law, Jerry L. Mashaw Leah: Music, Fashion, Film, Charli xcx; Who's the Clown?, Audrey Hobert; This Is the Plan: How to End America's Meltdown and Save Democracy, Ben Wikler; Why Do We Tolerate Elon Musk's Racist Commentary?, Jamelle Bouie (New York Times); Supreme Court Job Approval Slumps to Record Low (Gallup) Rick: Jo Nesbø's Detective Hole (Netflix); Lucky (Apple); The Elephants in the Room: How Trump Voters Seized the Party from Republican Leaders, Seth Masket; Backlash Presidents: From Transformative to Reactionary Leaders in American History, Julia R. Azari Follow us on Instagram, Threads, and BlueskyGet tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.comBuy Melissa’s book, The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern ReaderBuy Leah’s book, Lawless, now out in paperbackFollow us on Instagram, Threads, and BlueskyFor a transcript of an episode of Strict Scrutiny please email [e-mail]

Strict scrutiny is brought to you by Americans United for separation of church and state. It's everywhere right now, a celebration of America's 250th, and we're in the thick of it this month. Christian nationalists are using this milestone not to unite but to divide, or pushing the lie that America was founded to be a Christian nation, where just one religious movement gets to decide who fully belongs, instead of the truth that America was founded as a democracy committed to liberty and justice for all. That's propaganda, not patriotism. It's a dangerous lie meant to justify censorship, discrimination, attacks on public schools, assaults on LGBTQ plus rights, restrictions on reproductive freedom, and government favoritism toward one

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By supporting AU, you're committing to stand up and protect church-state separation in every area of life. Learn more about how you can support and how AU protects everyone's rights at AU.org slash cricket. Mr. Chief Justice, I please support. It's an old joke, but when I argue, man argues against two. beautiful ladies like this, they're going to have the last word. She spoke not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

Hello and welcome back to strict scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your host today. I'm Kate Shaw. And I'm Leah Littman. As you can tell, we are continuing our summer of rotating responsibilities, but fear not, you will get Melissa back next week. And before you know it, the three of us will be back in the usual swing of things. But here's what we've got in store for you today. We are going to start with the week's big legal and law-adjacent news. We're then going to have a conversation about what exactly the president is trying to do and what he has gone running to the Supreme Court to ask for its blessing to do when it comes to voting and in particular voting in the fast-approaching mid-term elections. For that conversation, we will be joined by UCLA's Rick Hassan, friend of the show, and one of the nation's leading experts on election law.

And finally, we will bring you a conversation Kate recently had with the legal director of the organization if, when, how, about what they are seeing and working on when it comes to the use of criminal law to target both abortion and people who experience pregnancy loss in the wake of Dobbs. So stay tuned for that. Okay, but before we get to the substance of the show, we have some exciting news. Leah mentioned this last week. I am excited to talk about it, too, because we're working on this for AWR. If you are a lawyer looking for fun, new ways to get your CLE credits, you can now get those by listening to our podcast. We just launched our first course that's eligible for CLE credit. It is our SCOTUS term recap episode.

It came out in the first week of July, and it is now approved in California, New York, Texas. Wow, this is more than last week. This is exciting. Pennsylvania, Illinois, Virginia, North Carolina, Georgia, Washington, and Oregon. And we'll keep you posted as more states are added. This is an experiment. This is something new we're trying. And if enough people sign up, we will hopefully get to maybe add some more states and

definitely add more episodes in the future. So to listen to the show for CLEC credit, if you haven't had a chance to listen to it or if you did, but we talk so fast, you probably wanted to listen to it a second time anyway. You can do that and get some CLE credits when you do. So you can go to crooked.com slash strict underscore CLE. Again, crooked.com slash strict underscore CLE. And you can learn more. and buy the course there. Once you have purchased, you will head over to our partners at Lawline,

which is an accredited CLE provider responsible for CLE administration to access it for course credit. So happy continuing educationing. I love that it's now available for CLE credit in Texas. I just think this is the best thing to do. Feels a little trolley, doesn't it? CLEC credits by listening to strict scrutiny. But now on to the news. So we're going to start with an important piece of good news, and there have been some bright spots recently, so I guess this is one of them. And that piece of good news is the announcement that the Paramount Warner Brothers merger is on hold. So this is a huge victory, although at least right now it may be a temporary one.

And it's a victory that could have significant consequences for both news and entertainment. And honestly, that means for democracy, which is obviously very much impacted by the information environment that we all live in. And the fact that this merger is on hold is a huge credit to the state attorneys general that spearheaded the litigation, as well as the attorneys and Hollywood figures who really built a constituency and put pressure on states to make this move. Better listen for the win. Indeed. Just the background here at issue is the effort by Paramount, which is technically now Paramount Skydance after a 2024 merger, to acquire Warner Brothers. And Warner Brothers includes CNN and HBO and Warner Brothers pictures and just tons of other really important. important entities. So back in 2025, Warner Brothers was looking for a merger. And initially, it looked

like Netflix was going to be the lucky winner. But Paramount, which is run by the billionaire Trump buddy David Ellison, ended up topping the Netflix bid and emerging victorious. Paramount already includes CBS, Paramount Plus, tons of other properties. And this acquisition slash merger would make it an absolute behemoth in the news and entertainment space and possibly one with a very particular orientation since Ellison is a well-known supporter of Trump. And we've all seen what's happened to CBS news, aka now free press or the Federalist but on TV, under Ellison's stewardship. Last month, the Trump DOJ, not surprisingly, gave its blessing to the merger, despite what struck some people as pretty serious potential problems under federal antitrust laws, which are, among

other things, supposed to protect against too much consolidation in any particular industry. Side note, this is part of why the loss of agency independence is a problem, or at least an illustration of the problem, because a formerly independent agency, the Federal Trade Commission, FTC, also has authority over antitrust enforcement, but now that the Supreme Court has solved the separation of powers by giving the president control over the administrative state, except the Federal Reserve Board, the president can impress demands on the Federal Trade Commission more easily as well. Right. So this wholly controlled federal government of one Donald Trump, again, not surprisingly, blessed this merger. But a group of state attorneys general,

which included California Attorney General Rob Bonta, former guests at our San Francisco live show, filed a lawsuit raising their own antitrust concerns. They argued that allowing the deal to go forward would, quote, extinguish competition in big parts of Hollywood, and it would harm consumers, particularly moviegoers and cable customers, really across the United States. So they pointed out that this proposed deal would combine two of the five legacy Hollywood studios, two of the five providers of basic cable, two of the five major film distributors, really reducing competition in all of those areas. They also noted that Paramount and Warner Brothers, right, the would-be mergers, have long been

competitors, and that kind of competition has actually been good for the industry and for consumers. So they say in their complaint, basically, like, this is why the stakes are so high. And I want to quote from it here, quote, Film and television are not commodities. They are a principal means by which Americans encounter stories, ideas, and perspectives beyond their own experience. The competitive health of markets, where professionally created media is produced, distributed, and exhibited, determines not only price quality and output, but the breadth of voices and viewpoints that reach the public.

Close quote. Like we said, like genuine democracy implications. The states asked for a TRO, a temporary restraining order, to prevent the deal from closing. And in July, a California district judge granted that request for two weeks. And then last week, Paramount announced that it would be pausing the deal pending the outcome of the trial that is now scheduled for next June. It's possible that as negotiations unfold pre-trial, CNN could be spun off. And that would be huge. It's also possible other changes could be made or the deal might fail completely. But what looked like a fate accompli is very much not.

And that's because of a bunch of hardworking lawyers devising a six. serious legal challenge and filing it in the lower federal courts where law still happens. Once again, the lesson is, if you fight, you will sometimes win. Indeed. So next piece of news we wanted to mention is the arrest last week of the Brothers Tate, that is Andrew and Tristan. If you are fortunate enough not to know anything about these guys, these are Manosphere figures who glorify and encourage, including broadcasting these views to millions,

tens of millions of boys and men, a violently toxic brand of men. a violently toxic brand of masculinity and misogyny. So that's them. And these brothers found themselves arrested in Florida on charges of rape and sex trafficking in the UK. And just a quick digression. So I said maybe you haven't heard about the Tates. I actually had heard about them a little bit.

But the first time I really encountered them was a few years ago when I was unfortunate enough to spend some time reading about them in conjunction with a book review that Leah and Melissa and I wrote of Josh Hawley's manhood. That's the title of his book. subtitle is the masculine virtues America needs. And in that review essay for the Michigan Law Review, which was titled, and I think, am I remembering correctly this was entirely credit to Melissa for this excellent title? Absolutely, yes.

Of might and men. We referred to Holly as an aspiring thinking man's Andrew Tate, which I think I still stand by, although he does in the book go out of his way to criticize some of Tate's violence and explicit misogyny. But anyway, my point is I distinctly remember that kind of like research jaunt being my first exposure to both the term and the place of the manosphere. And again, that's a few years back. It has been regrettably much harder to avoid since then. Yeah, that was a formative experience, I would say. And in some ways, it's led me, I have a manosphere adjacent slash manosphere-related project,

or at least a project that touches on the manosphere that's in the works that I hope to be able to announce next month. And that is how I came across the Bill Pulte, with a swinging delto emblazoned with Bill Pulte Fux clip. Be very glad you were not hosting with me that week, Kate, as I sprung that one on Melissa with zero warning. I was not on that episode, but I of course listened to it. And I remember Melissa like listening and then saying something like, what the fuck did you just make me listen to? Basically, speechless, I would have melted into the floor. I am not sorry that I was not co-hosting that episode.

I'm sort of sorry that I had to kind of listen to it. But I also really can't wait because I also know nothing about this project. And I am excited for you to announce it to the world and also to us. Yeah. So anyways, back to the Tate's. Yes. These vial figures are extremely well connected in Trump world. Earlier in the administration, according to reporting by the New York Times, Megan Tuey

and Isabella Kwai, lobbying by the Trump administration led to the lift of a travel ban in Romania, where the brothers were living at the time and where they were under investigation for coercing women into pornography and in one case allegedly raping and beating a 15-year-old girl. After the travel restrictions were lifted, the Tate's returned to the U.S. where they've been in Florida and D.C. moving about freely, including in MAGA circles. There have also been more allegations of abuse here, though these arrests don't grow out of those allegations. Instead, the 38 new charges filed in the United Kingdom, bringing the total number of U.K. charges to 59. The Tates are in federal custody in Florida as the UK extradition process plays out.

I believe as part of that process, a judge is going to have to determine they're eligible for extradition and then Britain, you know, that they have enough to actually extradite them. Right now it seems that the Tate's one-time friends in the administration, Don Jr., Baron, Alina Haba, they're staying quiet as the Tates are held in custody. Carolyn Levitt has also said from the White House podium last week that the White House would not interfere in the extra addition process, but we will see if that holds. Strict scrutiny is brought to you by Wild Alaskan Company. We only cook fish for meat at home, but sometimes it's really hard to count on the grocery stores, at least here in Michigan, to have the fish I want. And I'm me, so I want what I want and nothing else will do.

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Another piece of news we wanted to mention Leah actually mentioned this briefly last week, but we wanted to spend another minute on the withdrawal of the subpoena. The administration issued to the New York Times over the Times as reporting on security concerns about the Katari jet that is maybe the new Air Force one. I feel like now there are some doubts about that. Anyway, as Leah recounted with guest host Emily Amick, the withdrawal of the subpoenas came after a truly unbelievable hearing at which DOJ lawyers acknowledged all, kinds of things lawyers don't typically do, like omitting the fact that at issue were journalist records. That was in one request. They also mistakenly included reporter's spouses and, in one case, a parent in a records request. And then they just generally made a hash of procedures and

protocols and the rule of law. So fortunately, after being basically filleted by the district judge during this hearing last week, the government voluntarily withdrew the subpoenas. But as one of the times lawyers noted in the hearing, these kinds of efforts can have chilling effects on vigorous reporting whatever the ultimate legal disposition. And that seems to be the point. So while we obviously, you know, celebrate the withdrawal of these subpoenas, it is an outrage that they were issued at all. And as a postscript to the episode involving these subpoenas, the White House has now announced that Katari Force One will actually be offline for a stretch for some security upgrades. Carol Levitt referred to this as plain maxing. I mean,

this is just the worst timeline, I know. But anyway, the point here is that that seems to fully vindicate the Times' as reporting about the security concerns that were what prompted these short-lived subpoenas in the first place. We also have some developments in the seashells by the Seashore Instagram Jim Comey post 8647 case. And yes, that is the description. So on the topic of government misconduct, there were some big developments this week in the case against former FBI director Jim Comey for his Instagram photo of some seashells spelling out 8647. Comey, represented by legendary Chicago lawyer and former special counsel, Pat Fitzgerald, is trying to get the case against him dismissed on the grounds of selective prosecution and

vindictive prosecution. And in support of that motion Fitzgerald filed an affidavit on Wednesday walking through a lot of the events in the case and they are wild. So just a few highlights. First, Trump is all up in this investigation, begging for details of the FBI's Comey interview from Air Force One, obviously a presidential priority, not like anything else is happening right now. Second, the feds allegedly tracked the location of Comey's phone, despite people inside the Secret Service saying it was, quote, a bad idea and legally dubious to do that. And to get authorization to do this, they told a judge that such surveillance, quote, related to an emergency involving danger of death or serious physical injury to a person,

necessitating disclosure without delay of information relating to that emergency. I'm sure that representation is going to go over super well with a federal judge, as you saw from the New York Times hearing. And especially where you literally have communications in writing where you have members of the Secret Service saying that this is legally dubious. Exactly. Then they just go ahead and did it. Yes. And then part of what they did was surveillance. that was conducted, and that included a visit that Comey and his wife paid to the grave of their

deceased son. I know. That was one of many truly stunning details in this like 20 plus page affidavit. Okay. But the maybe best part I thought, I don't know if you read this entire affidavit with your jaw on the floor on Wednesday the way I did. I think I read it Thursday, but yeah. Okay. But this was, this was just like truly wild, but this detail in particular. So basically, the feds are so desperate to corroborate this notion that is obviously at the heart of their theory of the case that 8647 conveys a threat of violence, that they paid a visit to one Sammy the Bull Gravano, a former New York Mafia underboss who eventually turned cooperator and finally helped the feds bring down legendary mob boss, John Gotti of the Gambino Crime Family. This is an enormous event in like the history of New York City in the 1980s. And one fun fact that I did not know about Sammy the Bull Gravado is that so he turns state's witness, he really does bring Gotti down.

And in the course of his really critical testimony, he is asked how many murders he participated in during the course of his involvement in organized crime. And the answer he gives is 19. 19 murders. Okay. So this is the guy. Great witness. The federal government goes to to help shore up their case against former FBI director, Jim Comey.

So Gravano had been in witness protection for a while, but I think, you know, very shortly thereafter emerge. And it's like now just back in the general public. And I gather is now like kind of a MAGA guy. And so he was, I guess, happy to receive a visit for 25 minutes of conversation with some agents and basically said to them, Yeah, 86. That generally means to get rid of someone. And as a gangster, he was providing his expert opinion that it means to kill. Okay, this, I shit you not, is who is shaping up to be the star witness against Jim Comey.

You truly cannot make this up. It turns out that despite the unimpeachable testimony of The Bull, running searches of FBI records of like various mafia cases that the FBI and DOJ handled, turned up zero references to 86, which again, the theory that is being advanced here and that Gravano was seemed to be trying to corroborate is that Comey, as a former mob prosecutor, among other things, would have to be familiar with this in-group use of 86 and thus knew that he was conveying a threat to President Trump when photographing and posting the photograph of the seashells. Anyway, in addition to that episode, which again is my favorite, there also is, I think, some pretty compelling evidence of selectivity, which is that Amazon vendors sell a lot of

items of various sorts that have 8645, 86447, so Trump, and then Biden, and then Trump again. And the number, I gather, is if you add all of those different 86s together, like north of 200,000, and there have been zero, count them zero law enforcement inquiries to Amazon over a single one of those products. I'm shocked. So this is the pending motion to dismiss the current prosecution against Jim Comey on the grounds that the prosecution is selective and vindictive. There's also a motion to dismiss the prosecution on the grounds that the indictment is facially insufficient and a violation of the First Amendment protections for speech. There's also a pending motion to unseal the grand jury transcripts. And we know those grand jury transcripts sometimes go kabum,

we saw on the Broadview Six case and many others. So this particular motion is on the grounds that the known irregularities in the old case against Comey out of Virginia, that was the perjury case that Lindsay Halligan bungled, including through some pretty wild misconduct before the grand jury. That included vouching, misstating the law, you know, fairly normal fare for these Trump folk. And together with some of what's come out in discovery here, you know, they are asking the judge to authorize Comey to have access to. the transcripts. That may never happen because the case might be dismissed first, but I'm flagging that for now, that we are going to need to set aside a lot of time for it if we do

get those transcripts, because my guess is they are going to be really epic. I feel very cross-p pressured here because I do think that this is a ridiculous bogus case that should be dismissed at the earliest possible juncture. On the other hand, I think that both like the kind of prurient entertainment value, but also like maybe the shaming value of shaming the Justice Department officials who, whoever they were and whatever they did in front of the grand jury, I just think we know that there's a lot of dodgy stuff happening in these grand juries. I feel like there could be some real utility in seeing that. So I don't know what to root for. So remind me of the chronology in the Broadview Six case, because there was a hearing at which the

judge basically got the prosecution to agree to withdraw charges. But then I thought the transfers were released. So I'm not sure one's necessarily... You're totally right. Yeah. Yeah. That's definitely right. So I think it could be we get why not both. Yeah, you're totally right. Okay. Some other news, I don't know if this is exactly news, but the formal announcement of it or making it explicit is news. And that's the Trump administration admitted to canceling federal grants to Democratic-leaning, democratic voting states. This, of course, is another abuse of government power.

And this is just bombshell reporting that confirmed something that, as I was suggesting, had been pretty clear already, but is now beyond dispute. And that is when the administration canceled hundreds of grants last fall for clean energy projects, it targeted blue states or states that voted for Kamala Harris. The government admitted that the terminated grants, with one exception, all, quote, had a recipient location and or at least one place of performance in a state that awarded its electoral votes to Kamala Harris in the 2024 election and has two Democratic caucusing senators, end quote. These terminations, the government noted, were not, quote, based on any programmatic statutory cost reduction or performance-based factor,

i.e., they just did it for... This is what you often refer to as just he admitted it? OMG, he admitted it. Yes, exactly. Nailed that, nailed that, Kate. Thanks. And this, again, should be a presidency ending scandal, that the president is withholding canceling federal funds, not for any reason related to the actual substance or use of those

federal funds, but just to penalize people who did not support him politically. Again, I just go back to the small scandal of Richard Nixon having, you know, what now are like mere pennies to gin up dirt on political opponents. And now you have Donald Trump literally canceling energy-sustaining grants to states and programmatic grants. And it's just appalling. Yep. Yeah. Wanted to remind everyone that one Pam Carlin professor at Stanford Law School tried to warn us. So she testified at Donald Trump's impeachment. Oh, that was in the house. Right. She was testifying in the house. That was amazing testimony. Right. Exactly. And during that testimony, she said, quote, imagine living in a part of Louisiana or Texas that's prone to devastating hurricanes and flooding.

What would you think if you lived there and your governor asked for a meeting with a president to discuss getting disaster aid that Congress has provided for? What would you think if that president said, I would like you to do us a favor. Now, she was talking about the possible favor of beginning an investigation into a political opponent, but the point still stands. We knew he was going to do this because he already did it. And that should have been disqualifying. It is. And it has just only exponentially increased this second time around. I'll be honest, I'd forgotten about that testimony, but it was great then. Seared into my mind. Prescient. Yeah. So last piece of big news we wanted to cover was a Blanche confirmation question mark update. So AG nominee, acting attorney general, Todd Blanche, aka I'm his lawyer, or was his lawyer, that guy is right now facing sort of uncertain prospects in his quest to become the actual Senate confirmed attorney general of these United States. So we're recording this episode on Thursday afternoon.

And as of now, there is a real question whether Trump has the votes to get him confirmed. Now, there should be many, many reasons not to confirm Todd Blanche, but we don't want, nor do we have time for a four-hour episode. So we will just focus on what seems to have the most legs, which is the appalling slush fund slash immunity deal that purported to, quote, settle the $10 billion lawsuit that Trump filed against his own IRS. us. Recall that as the initial pushback to the announcement of that deal got steam, Blanche went before Congress. This is an earlier testimony, not his confirmation hearing, and he assured them that the fund was not going forward. Then jump ahead to the actual confirmation hearing, outgoing Texas Senator John Cornyn seemed less than fully satisfied by just taking Todd's word that the fund wasn't happening and made clear that he wanted something in writing to that effect.

it seems the administration, or maybe just one Donald Trump, does not want to provide that. So we may be at kind of an impasse. Now, I'm not totally sure about the math, but I think with Mitch McConnell out and not voting, and every Democrat presumably voting against Blanche, if you don't have Collins, who I think needs to vote against Blanche to have a chance to win her Senate seat, and Murkowski, who seems to have some real doubts anyway, then Blanche absolutely needs both Cornyn and Tillis, the two outgoing Republican senators who are pretty clearly on the fence. So I don't know. Seems like a real question. And on Wednesday night, we learned that the committee vote that had been scheduled had been delayed. And that is likely because, seems to be because there just were not the votes. So it's not clear that Blanche is going to get a vote before August and the ultimate fate of his nomination isn't clear. This cancellation, of course, was followed by a Trump truth post on Thursday. I am just going to quote it, quote, Todd Blanche is a star and everyone knows it. He has the potential to go down as one of the greatest.

attorney generals of all time. That's obviously capitalized. However, John Cornyn of Texas and Tom Tillis of North Carolina, both of whom I refuse to endorse, also capitalize, and whose political careers have been ended by my action, are refusing to vote for this great nominee, who will remain in any event as acting. Remember, both Cornyn and Tillis voted for Merrick Garland, blah, blah, blah, I have no objection to temporarily withdrawing Todd's name if they do not do the right thing and putting him back after Cornyn and Tillis are out of office. What that seems to suggest to me is that Donald Trump is so attached to his dead slush fund that's supposed to be dead and the promise of immunity that he's willing to throw his attorney general nominee and nomination under the bus

over it. Like he would rather withdraw the nomination and keep the prospect of this deal and hopefully count on a different constituted Republican control. Senate after the midterms because you know Kent Paxton would be down with that. Absolutely. And whatnot. So I am so. I am so. Yeah.

It does seem like he, you know, that Blanche was literally up there saying, no, it's dead, dead, dead. In order to get confirmed and Trump may just not agree with that. It may have just been entirely self-serving. I'm also though, I'm so curious about Cornyn and his motivations and his expectations here. So like, was he just making a kind of pro forma gesture of. principle and actually expected some paper to emerge that would give him the cover that he felt he needed, you know, in terms of his conception of self and standing and whatever else,

to vote yes on Blanche. Or did he actually realize he was going to throw a wrench in the whole thing? I am genuinely unsure. But this is incredibly revealing that this fairly straightforward ask, which is to just formalize what Blanche has always said, I don't need to formalize it. I've said it in sworn testimony. That's as good as a written document. But I actually turns out maybe it's not. Yeah, no, I agree. I'm also kind of curious what Cornyn wanted and might expect. But who knows, like maybe his vote alone might not be enough. We shall see. Yeah. And this news item, right, so that this potential nomination going down in flames over this IRS lawsuit and deal is a nice opportunity for us to note that the article that we author, the two of us and Melissa, titled

Unsettling the Presidency and forthcoming in the Northwestern University Law Review is now up on SSRN. We've mentioned it a couple times in the show. We have now finally posted it. And it talks at length about the president's abuse of judicial and quasi-judicial processes, of which this whole IRS episode is really just the most egregious example. Anyway, it's up there. You can read it if you'd like to. It's still in edits with Northwestern. So if you read it and you have feedback for us, please feel free to let us know. Yes. One other update on the liquor cabinet, someone who's actually in the liquor cabinet,

and that is Secretary whale juice, bear caucus, raw milk, RFK Jr., is reportedly going to be hosting a cooking show. This cannot be true. This is like an onion piece, no? No, it was recorded in the Hill. And I will try hate watching it once, and that will probably be it. But I am curious. This reminds me if I once or twice took one for the team and listened to an episode of, I think, the now defunct Ted Cruz podcast called Cruise Control.

Do you remember he had a podcast? He goes. And I don't think he does anymore. But I listened to an episode or two anyway. And for the team, these are the things we do. So, Leah, thank you very much for volunteering as tribute. He's posted this episode on YouTube, and I haven't watched it yet because this like just happened. Oh, yeah.

Oh, yeah. We don't know what he cooks, do we? I don't because I haven't watched it. All right. Next episode. I don't think it's, I don't know, like raccoon penis or something, but I don't know. Can't rule it out. Yeah.

Anyway, well, we will revisit on a future episode what exactly the recipes are. But in the meantime, stay tuned for our conversation with Rick Hassan about the president's effort to undermine the midterm elections. Strict scrutiny is brought to you by Remy. I'm intense. The world is what it is. This combines for a lot of stress and not a lot of outlets for the stress, which can mean some stress-induced teeth clenching. Chomp, chom, chom. Seriously, I didn't realize how much I was clenching until some of my stretching classes included self-masages, self-face massages. And I was like, why would I need that? Turns out I do because I stress clench. And Remy helps protect my teeth using their custom night guard, along with over 350,000 Americans. Remi nightguards are the only DA cleared and clinically tested at home impression kit night guards on the market. Not only do they help prevent teeth damage from grinding, they also help reduce jaw tension and facial muscle strain and improve your sleep quality. You'll get the same professional quality and comfort as a night guard from the dentist

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Your menopause specialized doctor will tailor your skin care to your needs. Plus, you get $0 unlimited messaging with your doctor. Head to m-y-a-l-l-o-y.com and use code strict to get $20 off your first order. And now, the president's Hail Mary application to the Supreme Court to allow him to enforce his voting slash anti-voting executive order. And for this conversation, we are delighted to be joined by our friend, Rick Hassan, Professor and Founding Director of the Safeguarding Democracy Project at UCLA. Rick, welcome to the show. It's great to be back with you. So, Rick, we want to talk to you about the application that Trump filed last week in the Supreme Court in Trump v. California.

So at issue in that application is the March executive order that would largely assert presidential control over federal elections, which, just as a reminder to our listening to our listening to it, under the Constitution are the province of the states subject to congressional but very much not presidential override. Okay, before we get into the details of the application that's pending before the Supreme Court, can you just remind us what this executive order purports to do? So this is Trump's second executive order. There was an earlier one on voting in 2025. Parts of that were put on hold or killed by courts, finding that the president didn't have authority to do certain things. The key parts of the second executive order relate to

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

So reading between the lines, it seems to be. saying if a state doesn't match its list to the DHS list or doesn't sufficiently explain why someone's on their list but not the DHS list, they could be criminally liable. So that's the citizenship piece. Yeah. And then there's also, you know, the implicit threat of, and we won't deliver your ballots if you don't do what we want as well. But there's also kind of a broader attack on mail-in voting in the executive order as well, right? So, yeah, so the executive order purports to require new security measures on mail-in ballots, including something called an intelligent barcode, which allows for better ballot tracking. Some states already do this. Not all states do. The 23 states and District of Columbia

that are the plaintiffs in the California v. Trump case, a lot of them don't do this, and they've already purchased their envelopes for use in November. Yeah. So at every stage, opportunities abound for huge amounts of disenfranchisement, which is probably the point. And so unsurprisingly, a number of states whose election administration would be impacted by the implementation of this executive order filed suit in late June. There was a decision out of a Massachusetts district court in joining parts of the executive order. What did that district court opinion say, Rick? So what makes this case weird procedurally is that the executive order says USPS and DHS, you need to start a rulemaking process and your rules need to say X. Well, the rules have not come out yet.

Now, we're, you know, getting into August here when states are heavily into actually getting their elections running. So we're really running up against the clock here, but there's no rule yet from DHS or from U.S.B.S. And I believe that the U.S.PS was supposed to have that rule out by July 29th, and it's not out. And so what the district court said, was this is already hurting the states. They've got to divert resources to prepare for the possibility. This rule is going to require what the executive order says should be required. And that's costing them money. It's costing them time. They have uncertainty. They've got standing. No more rulemaking. This can't go forward in time for this election. But maybe we'll see what happens later on.

Once the rule comes out, as to future elections, that's a subject for a different day. Right. So, yeah, this is what's so sort of strange about the posture of this case, and we'll talk about the application in a second. But everything you're describing, as Leah just mentioned, seems like it has the potential for enormous disenfranchisement. The federal government, like this federal government, which we've just talked about, is like a clown show in all kinds of ways, is supposed to produce the authoritative list of voters, which states already have on their own, and then provide that to states. And states then have the burden of explaining any divergence, their lists, which are probably much better, and the federal list, which are cobbled together from federal data. But it's there. It's enormous potential for destabilization. But as you said, the rules that are directed by the EO haven't yet been promulgated. So that is sort of the strangeness of the posture right now. Okay. So district court says, notwithstanding the fact the rules are not there. This is already burdening the states. You know, there's a controversy here. They're standing here. We can enjoin at least for this election cycle, the implementation of these new

rules. The appeals court declined to stay that district court order. And I was going to ask, what did the administration do then? But of course, that's a rhetorical question because what it always does is it runs to SCOTUS to ask SCOTUS to bail it out. And that's what it did with the application that it filed. But as we were just sort of alluding to, the application actually isn't squarely about the underlying legality of the executive order, right, or about the president's authority to make these sweeping changes to federal elections. It's mostly an argument that the suit is premature. So can you elaborate a little bit on that? Yeah, I go even further than your question. I'd say that they don't defend the order at all, except at the most general level to say that

the president has an interest in assuring that laws are followed and there's election integrity, which is true as far as it goes. So the argument is no standing. It's not right yet. You can't really sue because we don't know what the rules are going to be. So I say some weird things. They say, well, the executive order only directed what should be in the proposed rulemaking, as opposed to what's in the final rule. And that rulemaking has to be, according to the executive order, consistent with law. So maybe the Postal Service is not going to come up with a rule at all. So let's let this process go forward. And as to the questions of the list that DHS is going to come up with the non-citizens, It says, well, you know, it's really speculative to think that there's going to be criminal prosecutions.

This doesn't direct anybody to do anything. You create a list. We create a list. There's a bunch of lists out there. That's all. No harm. Now, what's really, I think, interesting here is the injunction issued by the district court and the order that failed to stay at the First Circuit says, you know, this is only for the 23 states and D.C. So the other states are still potentially bound by this.

nothing's stopping these rules from coming out and they're not out yet. So it would be nice to know what the rules are. I'm wondering if they're just holding those rules so that the plaintiffs in this case can't go to Scots and say, look, now we see what the rules are. Here's our concrete injury. Wow. Yeah. So Justice Jackson has ordered a response to this application. It's due this week. I know predictions are always hazardous, Rick, but when do you think the court might likely rule? And do you have any predictions for how the court might rule? So let me step back for a second and talk about that other case that's happening in the D.C. circuit. So this was a case brought by political organizations. And the district court, Judge Nichols, said, you know, you, Democratic organizations, you haven't shown you're facing any harm yet. We don't know what the rule looks like yet. Unlike the election officials who have to prepare ballots, you don't have to do anything. And the D.C. Circuit, in a panel opinion, I think it was a Biden judge, an Obama judge, and a Trump judge, they all agreed, this is premature. But they dropped a little hint there. And they said, of course, if the government comes through and they actually have a rule and it's really burdensome on. the states. That would be a pretty good reason for us to act expeditiously and maybe stop that rule from going into effect. So, you know, I could easily see the Supreme Court doing the same thing saying, hey, it's premature for states to bring this, but come back in a week. So that could

happen. That would be kind of maybe, you know, I can imagine our Roberts Kagan compromise behind the scenes, like express real reservations about the merits. but say no stay just yet. The fact, Justice Jackson has done this before, the fact that she gave up what I would consider a more leisurely time, a full week to respond, maybe indicates that she doesn't think that this is so urgent for the federal government,

or maybe she's shared the timeline with the justice and they agree. I mean, this is a key point. The Solicitor General asked for an immediate administrative stay, and just to explain that, he wanted to be able to keep going forward with the rulemaking while the justices continued this. And the court said no. So that's kind of a very small, thin read on which to say maybe the court's going to deny this. But the bottom line is even if the court says government, you can go forward and come up with your rule, that's just kind of punting this down the line for a week.

And I think there's going to be a very strong case to enjoin the final rules if, you know, if there's a reversal here. And that's because aside from the disenfranchisement point, it's too late. Kate, you mentioned, you know, how good a job is the government going to do in coming up with these lists. The USPS has never had to decide which mail it gets to deliver. It's never administered elections. We know the THS's list is full of false positives. and missing people and people who are naturalized and people with same names. And so it's just a, you know, I think the Latin term is a shit show of what we would end up seeing

if this was actually tried to be implemented for November. So even when this came out in the spring, I thought there's no way, even if courts allow this, that it could actually happen in time. So you did say, I think, Rick, initially, that you wouldn't be that surprised if the court does stay the district court injunction, which would be, even if not a sign that ultimately they're going to be able to implement these crazy provisions for November, that at least for now, they can move forward. And what does that mean in terms of the burden on states to begin to think about how they would come into compliance if the Supreme Court does allow the implementation of this order before November?

It seems insane to contemplate, but I think we have to. Well, I think they have to prepare as though it may come out. But there's going to be a point in time where this can't be. So ballots need to be printed. They need to be put into envelopes. There need to be return envelopes, printed, right? And I think maybe it was Massachusetts. One of the states had spent $3 million on envelopes.

You know, it's like it's expensive to run an election. And there's these tremendous reliance costs. And so they would have to keep incurring those costs, which is a reason why the court might just decide, this is too close to the election. It should not happen. But I think the standing arguments are not frivolous, the rightness arguments are not frivolous, and so it's possible the court looks for a compromise here.

But the telling point that they kind of back away from what the orders are going to do, you know, and they don't defend on the merits what those proposed rules would do. They don't even mention what they would do. They say, oh, the president wants certain things to be done and doesn't explain what even those things are. So, I mean, that really is a tell, I think, that they know that there's, weakness. It reminds me the birthright citizenship case, where it was really all about, you know, the Casa case, not the, not the Barbara case, but the earlier case where the question was, you know, can you issue a universal injunction? Like a procedural thing, they went all in on procedure and they

won on procedure and then ultimately lost on the merits nine months late. Right. But, and I had the same thought. It does feel like they are running that playbook again, coming up to the Supreme Court with a basically purely procedural argument that doesn't really focus on the substantive, you know, underlying substantive legality, and maybe this ends up the same way. Maybe they get a short-term procedural win. They ultimately lose on the substance. But just as having this uncertainty out there with respect to the meaning of the citizenship clause of the 14th Amendment, I think did real damage in even more concrete terms here. Like the protracted uncertainty has real costs. And so I just, it makes me very nervous to hear you say, like, yeah, the administration might notch a short-term

victory here. And so, you know, I think that it would be crazy for them to win at all. And I think it's really, I guess, important for us to underscore the two things. One, the court should be criticized forcefully if it allows even a week or two of implementation. I mean, not, again, rulemaking implementation. It's not that the states have to do anything immediately, but they do have to engage in readiness immediately. So that that's something that we should criticize forcefully, but also understand that that does not mean. ultimately that this executive order actually goes into effect. Can I add one other example to the mix?

And it's not just the birthright kind of process that this was calling to mind for me, where the administration got a short-term procedural RIN that allowed them to come up with some guidance for how it would implement this wildly illegal order, that it was then never given the chance to implement, which I think could be the same here. It was also reminding me of the challenge to the mass firings and agency reorganizations, where the Supreme Court also granted a stay application after a lower court hadn't joined an executive order. And it did so partially on the ground that that executive order, asking for these mass layoffs and reorganizations, had directed everything to be done in accordance with law. Just like this executive order directs, you know, all rulemaking to be done in accordance with law.

And so I'm also very worried that there's going to be this two-step where they give the administration this may be temporary win. There are some noises about what the administration might do. That creates chaos that I don't know if it all can just be put back in the bottle if and when the court goes ahead and blocks the order and the relevant rules later on. Totally. And one more thing, just as a former White House lawyer, can I just say that as consistent with existing law or that kind of thing is like pro forma for executive orders? They always say that.

So that's not like any kind of concession that they're going to pull back on like the full maximalist implementation of what they're trying to. do. Like, that's just always in the orders. Okay, so Rick, can we ask you to situate this executive order and the fight against it in the larger context of this administration's efforts to interfere with slash undermine the upcoming midterm elections? This is not like a one-off. Yeah, that's true. Let me just go back for a second and respond to your earlier point. Yeah. The kind of delay that we might see in the context of this executive order is going to be much shorter than what we saw in the birth rights citizenship case, because the rule's going to have to come out within a couple of weeks.

And it's even in the papers, the application, they say, by mid-August, we need to know what the rules are. So it's not going to be a very long delay. If it happens, that that might militate the Supreme Court just putting the stay in now because they know it's coming back to them on an even shorter fuse in a couple of weeks. The other thing I would say is that for the remaining states, the 27 remaining states, they're going to have to hustle too. And I think they're not going to want to have to do this either to get their mail-in ballots out. And so I wonder if behind the scenes, this rule is not even going to come out. So, you know, I just, I just can't see how it's actually going to get implemented. So as much as I share with you disdain for what the administration is trying to do,

I'm a little bit less concerned that it's actually going to lead to these lists coming out and actual disenfranchisement. Yeah. So it now has to the kind of bigger picture. Yeah. Yeah. So I think we need to understand the unique point we are in American history, where the greatest threat to the integrity of American elections is the federal government. So the federal government that was the one that came in and sent registrars down to Alabama to assure that black voters could be enfranchised in the 1960s, and that observed elections, and the federal government that has been doing cybersecurity assistance for states and localities, and that has been providing guidance on the best voting machines through the Election Assistance Commission. All of this is being

dismantled. So Trump fired the commissioners on the Election Assistance Commission. It's a question whether that's allowed or not. Is this a slaughter case or a Cook case or something else? He's decimated CISA, which is the agency that deals with cybersecurity. So if it's actually serious about dealing with election problems, he would do something positive to try to help states have secure elections. He's doing the opposite. He's using his bully pulpit. This is one of the most important things to undermine confidence in the fairness and integrity of the process. And he's just trying at every stage to get the Senate to pass the Save America Act, which would be hugely disenfranchising. And I should say, voter ID laws have not all proven to be so disenfranchising. There's a lot of counter-mobilization things that take place.

but documentary proof of citizenship laws, which require you to produce a birth certificate or a naturalization certificate and maybe a marriage license in order to register to vote, those would be hugely disenfranchised and we know from experiences in Kansas and elsewhere. So he's trying the full court press. And I'm worried after the election

there are all kinds of things that he could try to do if it's a close election for control of Congress, including trying to seize ballots, including trying to lean on election officials that was just a poll that came out from Gallup where I think over a majority of Americans are worried that there's going to be pressure on election officials to do the wrong thing. I mean, so it is just, we are in a terrible state where the federal government is of the greatest threat to the integrity. The good news is there are three bulwarks against interference.

There are the courts who've done a pretty good job so far against election subversion, even as they've done a horrendous job on voting rights more generally. the states, because we have this diffused power, Trump can't just go in and cancel elections if he wants, declare some emergency like some people are worried about. The states and localities run elections. And then ultimately, it's the people. So if Trump is stupid enough to try and send ICE agents to the polls, I think you're going to see people forming human chains and getting, you know, they will crawl over glass to vote. And I think it would actually have the opposite effect. And I just say many of the disenfranchising things that Trump is trying to do are most likely to hurt the base. of Trump's support. And it's really counterproductive, and I think it just shows it's not very smart

political strategy. In addition to a moral abomination. Moral constitutional, legal. No, I know it does, but it can't hurt to say it again. But yes, also may be counterproductive for him politically. Yes. Rick Hassan, always great to learn from your expertise before we let you go. Can we ask you to stick around and join us for recommendations or your favorite things of the past week? Sure. Awesome. Okay. So I will kick it off. I am finally reading the novel that's a couple years old now. Olga dies dreaming by Shoshal Gonzalez about halfway through and really, really enjoying it. I want to shout out Michelle Goldberg's column from last week on the blocking of the Paramount Merger, which we talked about earlier in the episode. He says a great shout out to our friend Norm Eisen, who's dubbed, I think it's the Attorney General of the legal response to Trump. Anyway, really like that. Mark Ruffalo makes a cameo. Anyway, very good column. Also, on a more serious note, a wonderful piece by Emily Goligowski. Can ballet help in the fight against Alzheimer's? A beautiful piece about dementia and Alzheimer's and movement and embodied kind of practice is actually maybe a way to stave that off.

And then finally, I am rereading Jeremy Shaw's masterful creating the administrative constitution. And I am just getting enraged afresh over the abomination that is the opinion in slaughter. Like this austere conception of presidential power and control that is the slaughter majority opinion just could not be. less faithful to the actual reality of the standing up of the federal government and personnel within the federal government that the first decades of our history reflect. So if you want to get even mad or about slaughter, or just because it's an excellent book and you haven't read it, pick up Jerry Meshaw's creating the administrative constitution. So my recommendations, I've got some music. Charlie XX, new album, music, fashion film, been described as

slacker girl rock. I like that. Also, Audrey Hobart, who's the clown, not as new, but just gotten into it recently. And then Ben Wickler's recent book, This Is the Plan, and Jamal Bowie's column, why do we tolerate Elon Musk's racist commentary? Great question. He's got some important analysis. And finally, a recent Gallup survey shows that the Supreme Court's approval has sunk to a record low, 33%. Wow. Lower than Trump by a couple points, right? That's really saying something. I think Trump... I think he's around the same. Yeah, I don't know. Yeah. All right. Sorry, Rick, over to you. So when I'm trying to not think about Donald Trump, I've been watching Detective Holi on Netflix, which is kind of a Norwegian noir serial killer type escapist thing, and lucky on Apple TV, which is a pretty good distraction. I've been writing a book for the last couple of years on American democracy from 1964 to 2024. I'm working the first draft of the last chapter on the 2024 election. I've been reading a couple of books.

to explain Trump's hostile takeover the Republican Party. One is by Seth Maskett called The Elephants in the Room. That is a great book, which includes surveys of local Republican party officials and what they think, and just, you know, how much Trump has been able to get around the traditional Republican hierarchy. The other book is by Julia Azari, who's a political scientist as well. She's at Marquette, and she wrote a book called Backlash President. which is it goes back, you know, a long time, back to Lincoln and Johnson talks about, you know,

when a president tries to achieve racial justice, whether that's Abraham Lincoln or Barack Obama, that are often met in response with a backlash president, whether that's Andrew Johnson or Donald Trump, and that often leads to impeachment, and it's kind of cycle in American history, and it kind of puts the current moment into a broader historical American perspective.

All right, well, those are great recommendations. Rick, thank you so much again for joining us. We're going to take a quick break, and after the break, my conversation with Farah Diaz-Tayo, senior counsel and legal director for the organization If, When, How. Strict scrutiny is brought to you by Honey Love. So one of my co-hosts, I'm not sure if I'm allowed to say which one, didn't ask for permission. Anyways, they were a huge Honey Love fan. So I was super excited to get to try a product and came in with high expectations.

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Treat yourself to the most advanced bras and shapewear on the market. Use our exclusive link to save 20% off Honeylove at Honeylove.com slash strict. That's Honeylove.com slash strict. After you check out, they'll ask where you heard about them. Please support our show and tell them we sent you. Experience the new standard and comfort and support with honey love. Welcome back to strict scrutiny. I am your lone host for this segment, Kate Shaw, and I am delighted to be joined by Farah Diaz Teo, who is the senior counsel and legal director at if when how lawyering for reproductive justice. She works there on strategic litigation, policy advocacy, and applied research to end reproductive criminalization and ensure liberty and dignity during pregnancy and all of its outcomes. Farah, welcome to strict scrutiny.

Hi, glad to be here. Okay, we're really happy to have you here because every summer since 2022, when the court overturned Roe v. Wade in Dobbs v. Jobs'Hels' organization, we've done deep dives on various aspects of the post-Dobbs landscape. We've had guests from other organizations working on various aspects of reproductive rights and justice, so places like the Center for Reproductive Rights and ACLU and Planned Parenthood and National Women's Law Center. for folks who don't know your organization, if when, how, can you start by just telling us a little bit about it? What's its background? And what sort of work did you primarily do before 2022? So we do direct legal services and strategic advocacy in service of reproductive justice to end state violence in people's reproductive lives. So we want to ensure that people are able to make decisions about their bodies and their families and whether they carry pregnancies to,

term or not and the ability to do so with dignity and be able to do that without interference or violence from the state. We use all the tools of lawyering to do that. We do litigation, including criminal defense and civil rights litigation. We run the repro legal helpline, which serves as a direct source for people to get legal assistance and legal referrals. We run a bail fund that helps people who are ensnared in criminalization and policy advocacy. And we do all of this also with a network of law students and lawyers and legal advocates across the country who can be mobilized in service of ensuring that people's reproductive lives are free from state violence. And so the organization has been around for a while now.

It's a little over 20 years and it's been through multiple iterations. And when we first started out, it was really an organization that was about organizing on law school campuses to get more classes about reproductive rights to really train lawyers in reproductive rights issues. It was law students for choice at the beginning. And through various evolutions, it was law students for reproductive justice, reflecting and understanding that true freedom isn't just about abortion rights, but it was really about the full spectrum of people's ability to make decisions about their lives and their bodies. And in 2019, I joined the organization. I was with a group called the SIA legal team, which is the self-induced abortion.

legal team, which was, I guess, a sort of repro legal startup addressing criminalization of self-managed abortion. And we joined If One How and brought litigation and policy advocacy to an organization that had mostly been organizing among the legal profession. And so now we do all of those things together and really try to use all of the tools at lawyers' disposal to help improve people's lives in these really critical moments where we see, unfortunately, they're increasingly facing violence by the state. Okay, so that's a great sort of history of the trajectory of the organization. I think I, like many people who went to law school, first became aware of it, I think maybe just after I was in or at the end of my time in law school, as, you know, kind of chapters cropped up all over the country of students who are interested in abortion, reproductive justice more broadly. And there are still chapters on lots of, and I don't know about all, but at least many law school campuses.

Okay, but this is sort of implicit in what you said at the end, but maybe starting in 2019 and I think increasingly in the wake of Dobbs, you all have pivoted to providing various kinds of legal services. And one kind of critical aspect of your work, as I understand it now, is actual criminal defense. And so before Dobbs, there was still criminalization of various aspects of pregnancy, of drug use during pregnancy. right. So the criminal law did not just spring to life after 2022 when Dobbs removed constitutional protections for abortion. But there has certainly been much more serious efforts to criminalize because you don't have the constitutional backstop of Roe versus Wade as imperfect and flawed in so many ways as it was. It did act as something of a shield against certain kinds of criminalization. And of course, in the wake of Dobbs, many states move to restrict or prohibit virtually entirely or entirely abortion within their borders. So what does kind of abortion criminal defense look like in the wake of Dobbs and today? Tell us about that work and maybe tell us about a couple of the representations that you all have handled. I think it's great. It's important that you mentioned that this is something that was going on before Dobbs. And even within the history of the organization, the SEAL legal team was founded in 2015, was working on these issues. We started taking on cases when I joined in 2016. This is work that I've been doing myself since 2009. And And so I think that's surprising to a lot of people who really think of criminalization of abortion, of abortion seekers is something that really emerged from Dobbs. And certainly it's something that has intensified since then. We have seen the nature of the types of charges that are used really change.

We've seen prosecutors evolve what they're doing. So what reproductive criminal defense looks like? I mean, it looks a lot like criminal defense that you see, you know, across the country in courtrooms every single day, but it raises some particular issues. And, you know, this is a situation that's unique because it is one in which people are being charged with a crime for something that they did with their own body, which is typically not something that our law allows. And, you know, in the, in the pantheon of things, it might be surprising to people about this. It might be surprising to most people to find out that ending one's own pregnancy actually isn't a crime in any state in the country but Nevada right now.

Nevada is the only state that still has a crime on the books that penalizes people, charges them with a felony, actually, for ending a pregnancy after 24 gestational weeks. In many other states, it is a crime to facilitate or to perform an abortion, but actually criminalizing the individual who seeks to end a pregnancy. That is something that you're saying is actually far more rare. It's really just the state of Nevada that at least on the books has a specific crime for doing that. Exactly.

That's right. And that's something that goes back, you know, all the way to the common law. That when we say abortion is a crime or we're criminalizing abortion, we mean something that a person does to the body of another person, not something that a person does to their own body. And so what that means is that prosecutors really have to contort the law and contort the facts to punish somebody for having ended their own pregnancy. And so it's really using the legal system as a tool to enact abortion stigma and go after people using crimes. You know, for instance, one of the crimes that we see used frequently is that.

concealing birth, which is these laws, a little more than a dozen states have such laws on the books that stem from laws from the 1700s and the 1800s that were intended to criminalize how to wedlock births. And this was based on a theory that somebody who had given birth out of wedlock was more likely to kill an infant. And so essentially the state can do an end run around the necessity of proving that a person actually did homicide. You know, that's the fundamental tenet of the criminal law, right, is you have to like prove beyond a reasonable doubt that the person did the thing they're accused of doing. Well, a sort of neat patch for that that they thought up back in the 1800s, some genius thought up back in the 1800s was, you know, to say, well, we're just going to charge you with a crime,

whether or not this, you know, an infant was born alive. And so these laws remain on the books, you know, a lot of times the laws, you know, they just languish there until some creative prosecutor decides that they want to dredge these laws out of antiquity and use them to punish somebody for something. There's no other law at their disposal to do so. And then, you know, other types of crimes that we see laws that prohibit abuse of a corpse or, you know, the laws that are about really about desecrating bodies and that are intended to, you know, hamfistedly, admittedly, rectify the harm. that comes to the families of people who are deceased, the harm that they experience from having their loved ones' body mistreated and desecrated. And instead, that's being used against people, you know, for instance, for experiencing a pregnancy loss and then privately disposing of the remains like on their own property or, you know, we've seen situations where law enforcement have gone in

and yanked the toilet and, you know, sort of excavated somebody's plumbing to pull fetal remains out to charge them of the crime after the experience a pregnancy loss. And so this is one of those things that really evolves in the aftermath of Dobbs is that, you know, as there's a, there's a paradox in policy, which is after Dobbs, the loss of that constitutional backstop meant that states were racing to put in the most draconian abortion ban so they could. And many of them had this political compromise that said, we're going to make it a crime to do. And, we're going to make it a a crime to do an abortion. We're going to put you in prison for 99 years. It's going to be tantamount to homicide. We're going to, you know, really throw the book at people who do abortions.

But we're going to put in their provisions that say that the abortion seeker can't be charged with a crime, can't be charged as an accomplice, isn't in a face of liability, all of these things so that they can say, oh, no, we would never, we would never criminalize somebody who has ended their own pregnancy. But then what you see on the ground is prosecutors using these other types of laws and saying, no, this isn't about punishing abortion. We would never. What we're doing is we're punishing somebody because they behaved incorrectly. And so that not only sweeps in people who ended their pregnancies, but people who have lost pregnancies as well. And so, I mean, a case that really sticks out to me, it breaks my heart, is the woman whose case we worked on who was ambivalent about

pregnancy, as many people are for a lot of legitimate reasons. She had a lot of legitimate reasons to be ambivalent about a pregnancy. She was already living in poverty, doing her best to take care of the children she already had and just could not carry this pregnancy to term. And the things that she tried to do in order to end the pregnancy are things that would not end a pregnancy. She took cinnamon pills hoping that that would end the pregnancy.

You know, they advised pregnant people don't lift heavy things. So she was lifting heavy objects, right? And all the hoping and praying in the world is not going to end someone's pregnancy, right? Or else if it did, if it ever that, easy as lifting heavy objects, we wouldn't be in the crisis that we're in today. Then she experiences stillbirth. And because of the fact that she had been ambivalent about that pregnancy, prosecutors, well, this case was really actually driven by a police officer who had a personal

vendetta. This is like very clear. This person had a personal vendetta and, you know, kept approaching the prosecutor's office to get them to charge her with a crime. And, you know, the way that she was caught was because she had buried the remains of her baby, whom she gave a name, buried on private property, and had erected across and had posted on Facebook, because she had been encouraged by people in a pregnancy loss support group to, like, create a place where she could go and memorialize her loss. And so, like, I mean, I think this is the most human thing in the world is that even, even, even, even, even, when a person feels ambivalent about a pregnancy, when they lose that pregnancy, they still mourn that and grieve that. And her grief was used to punish her, really robbing her of the dignity of that grief. Her story fortunately has a happy ending. You know, she pleaded guilty and that was set aside on the basis of ineffective assistance of counsel, which is extraordinarily rare, which just goes to show like what a tremendous miscarriage of justice this was. no pun intended, God. And, you know, eventually she received restitution from the state because of this wrongful incarceration. Wow, prasuation.

So, okay, well, that is obviously a very upsetting story. And it's so you said Nevada is the setting. And I think that in the kind of, in particular in the post-Dob's landscape, we have this sense that there are awful things like you're describing happening, but that they're happening in Texas and Georgia and like a handful of other places, is that accurate? Or are these prosecutor targeting using these like really old statutes of women who either have induced abortions or have just had pregnancy losses? Like how broadly are we seeing this happen? Yeah. So there are definitely clusters.

And I would say the clusters align with where people are less likely to have. have access to health care systems, where people are, you know, less likely to be able to access abortion care, where people are less likely to be able to access pregnancy-related care. And states where we hear from the most on our helpline are the states that you would expect, you know, states like Texas, Georgia, Florida, North Carolina, right? States where people's access to care even prior to Dobbs was pretty abysmal and now is virtually non-existent. But, I mean, I will say, like, this is something it can happen anywhere over the course of my career. You know, I've definitely, I've worked on cases in New York. I've worked on cases in California.

I think it's important to remember that a prosecutor's fidelity of their idea to law and order isn't necessarily something that's dictated by politics. And, you know, we've had prosecutors who say, I'm pro-choice. My, you know, my wife held a fundraiser for Planned Parenthood. This is not about criminalizing abortion. This is about somebody who did something wrong. And, you know, the state needs to respond to that. And so, I mean, I think it really speaks to the fact that we have to be continually vigilant everywhere we are. And also just I think that's maybe that's one of the lessons from Dobbs, too, is that, like, you know, stare decisis can be yanked out from under you.

The opposition wishes and works hard enough. And so that means that we cannot afford to be. asleep at the wheel in any way, right? I mean, so we can't afford to have laws like the types of laws that are used against people now to punish them in the aftermath of an abortion or a pregnancy loss. Like, there's no excuse to continue to have these laws on the books when we know exactly how they're used against people. Right. I think that's such a broad, important point, which is I think that, right, while Roe was the law of the land, legislators in a lot of states, like, just didn't think they needed to repeal a lot of the laws that were. impossible to actually enforce under Roe. There's obviously an argument that Congress should have

codified a federal protection for abortion. But again, in the kind of world of Roe, it didn't seem to a lot of people necessary. And I think both repealing the kind of damaging and destructive laws and codifying either by statute or in constitutions protections while you have political power is critical because the judicial wins can and do change quickly. So I do think that's a really important takeaway. And it sounds like in a lot of the cases that you're seeing, the cost of just not worrying about cleaning up statute books that contain these like really appalling, you know, once-dormant laws is sort of being born by the individuals that are reaching out to you guys for legal help. Okay, so two other things I wanted to ask you about. One, you mentioned the hotline. Can you

tell us a little bit about your hotline? And then bail is something that I know that individuals charged with different kinds of reproductive crimes have had to come up with. What is your role in bail funds? I love to talk about the helpline because I am really part of the work that my colleagues on the helpline do. So they essentially, they provide legal services for any variety of issues that a person might have related to their abortion, their pregnancy loss, their birth. When the helpline first started out in, I think in 2018, was when we took our first call, it was really created to address people's concerns about criminalization for self-managing abortion. And especially in the aftermath of Dobbs, when you have a name that is as broad as

the repro legal helpline, you're going to get a lot of different types of repro legal issues that people have. So it wasn't just people who were concerned about ending a pregnancy, whether they could get in trouble for ordering abortion pills, you know, those sorts of questions that people have. Just the general, is abortion even legal in my state, right? But you were hearing from people who were being denied care, people who were really struggling to figure out, you know, what even was available to them in their state, people who were being sent into the parking lot to bleed out until, you know, they could qualify for miscarriage management. So recently, we spoke to abortion every day about a case that came up where a person was pursued by the state for trying to help. her daughter access abortion care and the fee state violence from the family regulation system. And the young person wasn't able to get the abortion that she needed because of the state's interference. So really the variety of issues that we see, you know, is not just restricted to people unable to

access abortion care of being criminalized for doing so. It's people who are afraid that they're, you know, people whose immigration status is now being called in a question because of decisions that they've made in their reproductive lives. People who are, you know, losing their children, right? Like, these are all reproductive justice issues. It's not, it's not just about abortion care. So we really... So you can handle, you take calls and you can provide people with some guidance or direction sort of for problems or questions running kind of the gamut that you just sort of walked through. Yeah. So they're able to provide rapid legal response. They may refer folks for criminal defense to our litigation team, or they may also draw upon our network of lawyers, law students,

and advocates to place people, refer them out to cases because we have lawyers across the country. So if it's an issue that's not specifically something we work on, something that's within our capacity, we can help them find a lawyer who's going to understand the issues underlying this, right? Because it's not all lawyers are the same. And so our team that runs our network, does a really good job of ensuring that people are going to, if we refer somebody from the Repro Legal Helpline, they're going to be met with somebody who's going to take their case and is going to deal with them with compassion without stigma or judgment. Yeah. And so, I mean, the numbers of calls really exploded after 22. I think that since jobs, they've answered more than 12,000 calls.

and calls from all across the country, they're able to answer people's legal questions across the country and in U.S. territories. And they've supported over 2,500 callers from Texas alone. I pick on Texas because it's my home state. But yeah, so the work is really critical work so that people know that they're not alone. And I think that that's one of the most important things

is that, like, you know, fundamentally, nobody should need a lawyer to get an abortion. But if people are having an issue, the state, you know, if they are facing state violence, they should be able to have a lawyer who's going to, who's going to understand them, meet them where they're at and provide rapid support. And so that's what they do. Okay. Well, we will, of course, include a link to the repo helpline in our show note. So people are able to access that if they meet it. And there are the bail fund. So if people are targeted for any of, this conduct find themselves actually incarcerated and needing to post bail, I gather you guys are also able to help there. Yes, yes, absolutely. And this is something that's really critical in these cases. So across the board, people are more likely to stay out from behind bars if they are banking their communities while they're waiting for their case to be resolved. And, you know, in some of the cases that I worked on, from the time of arrest to the time that their case is resolved, I've had clients who have been incarcerated for three years more, right?

Like, this can take a very long time. If somebody's not able to afford the costs of their own freedom. And so that's why the Repro Legal Defense Fund exists. In 2025, alone, they paid out $2.3 million in bail and bond. I mean, our system of cash bail is one that's really designed. to extract money from people who can least afford it. So we stand with them and provide more than just that as well because there are many other costs that are associated with being involved in the criminal legal system, in the family regulation

system. Very often, you know, people need things like money for their cell phone to be able to like talk to their attorney and raise their defense or they may have to pay for the costs of being under community supervision, so having to pay for the cost of an ankle monitor, having to pay, you know, pay fees related to drug tests, other things like that. And these are the things that the RIPRO Legal Defense Fund helps people, helps people bear those costs so that they're more likely to be able to fight and win the case against them. Okay, what in this really difficult line of work that you do is giving you hope right now. I feel like we all need places to look for

hope because the work is essential and it's helpful if we can find these points of light. So what gives you hope? Yeah. One of the things that's giving me a lot of hope right now is the real groundswell of support and the outpouring of solidarity that we've seen from people in other countries. Being a Mexican descent myself and having grown up in Texas, the cross-border solidarity between activists in Texas and activists in Mexico and, you know, especially in a moment where we were facing such retroaggression and they had made so much progress in the law and sort of the, you know, the message of solidarity that's like, we have, we have been where you are. We have solutions. We have support and we're not going to let borders stop us. Abortion is something that has always happened

since before the law had anything to say about it. And it's unstoppable. And, you know, we're there for you. I think that's something that's been really incredibly moving. And I think, you know, that's something that wasn't restricted to them. It continues to the present day. And seeing, you know, the ways in which our movements have learned and evolved and really sort of reached out. I think, you know, there is nothing that is good about Roe being overturned. They're like, I'm not going to be one of those people who's like, well, you know, there's a silver lining there. But what it did do was it forces to look for other solutions and really look beyond American exceptionalism and see what other worlds are out there. And so, you know, the fact that we are now really contending with that

in a serious way, I think that's something that gives me hope, especially in the moment where, you know, I mean, the rise of fascism, like all the many, the parade of horribles that we're seeing right now. seeing that we can envision other futures, I think is really giving me help. Right. I think it is true that the attacks on all the freedoms are connected on democracy, on liberty, on autonomy, on reproductive freedom, and that that's true here and that that's true elsewhere. And there are places that feel like they are on the other side of something truly horrifying, and we are on the wrong side of it. And yet, like, learning about how one makes a path out from sort of other traditions is incredibly helpful and important right now. So that kind of cross-border solidarity, I think, is a lesson about kind of repro justice and also a broader kind of lesson. Maybe the last tiny question is how can people who are hearing about the work that you all are doing help?

So there are lots of ways folks can help. If you are interested in this, if you feel like this is the work for you in your life, please come join us. We have a network that includes law school chapters. I'm sure probably you have a lot of legal nerds sitting right now. I think, you know, your constituent. And our server, there's a, there's a overlap. So if there's a chapter on your law school campus, join it. If there is not, you can start it. We can help you do that. If you are a lawyer or even an advocate, you don't have to be a lawyer. You can join our network so that you can help. You can be one of the people who provides direct support when people need it. And then, you know, certainly I always have to make a plug for just supporting the work of the repro. legal defense fund, donate to the defense, that's, you know, your dollars are extraordinarily important. The person who du Rexit says it costs the state nothing to ask for $2 million. It costs us $2 million.

And so certainly, like if you want to provide that support, that is something where certainly, it is deeply meaningful to the people who receive that help. So. Great. And on the student chapter point, shout out to the 10 student chapter, they've been doing these regulatory comments for the last year or two. And they've done like incredible comments when the administration is proposing various kinds of measures to kind of push back and help create a record for litigation, really important work. And yeah, so find your chapter or start one if there isn't, if you are a law student or on campus at a law school. All right. Well, we'll have to leave it there. Farah Diaz-Tayo. Thank you so much for the work that you do and for joining me for this conversation. Such a pleasure. That's all for this week. Stay tuned. We'll be back in your earholes next week. with Melissa in the chair. Strict scrutiny is a crooked media production. Our show is produced by Melody Raoul and Michael Goldsmith.

Music by Eddie Cooper. Our team includes Matt DeGroote, Ben Hethko, Johanah Case, Kenny Moffat, Adam Lippert, and Eric Schute. Our production staff is proudly unionized with the Writers Guild of America East.