Supreme Court Showdown: Religion, Rights, and the Rule of Law

Welcome to Amicus, a law review with Jim Santel, Civic Media's weekly review and discussion of some of the most significant news stories in the areas of law, government, courts, and the aspiration for justice.

And now, here's your host, Jim Santel.

This is amicus a lot of you on the broadcast stations of civic media and yes, my name is Jim Santel I am your host for this hour and also next hour this as always is our weekly weekend review of all things related to the rule of law the administration of justice and the intersection with government federal state and local Once again, I am so delighted that you have chosen to spend some of your weekend hours your precious time

in engagement with me on these many important issues that affect our lives and our livelihoods on a regular basis.

As always, as always, our syllabus, our academic approach to this discussion, this exposition, this ride through rule of law issues is premised upon the major news stories of this past week.

And yes, indeed, as always, there have been a lot of them.

And we are going to begin exactly, exactly,

where we left off in our last weekend broadcast, and that is with the United States Supreme Court, those nine members of the highest court who continue to affect our lives and our livelihoods in ways seen and also unseen.

And we're going to talk a bit about that, and in particular, something that's significant that happened late last week, the previous week, called the Decision Conference.

I'm gonna talk a little bit about the things that came out of that conference.

a little bit of speculation about something else that may have happened during the course of that non-private proceeding among the justices.

And then we're going to talk about other things in the public domain related to the United States Supreme Court.

That includes oral arguments that they had again just this past week, one involving one of their favorite topics, and that is religion.

This having to do with a religious exercise, right?

a challenge posed by a former state prisoner.

We'll talk all about that and the likely disposition of that case based upon the reception that that particular challenger, that former prisoner, bringing a civil religious exercise case into the federal courts, what the Supreme Court will likely do on that particular matter.

We're also going to talk about SNAP.

And even as we know that the government is now going back into business after the longest shutdown in American history, we know that many of these programs still have to rev up again, have to be refunded, and that includes SNAP.

We have talked a lot about that, not only in connection with the importance of that supplemental nutrition.

program for 42 million Americans, but also the intersection of that program so much in the news these days with the United States.

Supreme Court, and we're going to talk a bit about what Katanji Brown Jackson did.

We mentioned this in last weekend's broadcast, a little bit more exposition because of some of the reporting, some of the interpretation of what she did, which was not intuitive, and we'll discuss exactly why Katanji Brown Jackson, yes indeed for a time, stayed the lower court orders coming out of the First Circuit, coming out of a district court in Rhode Island,

why she did that and the advantages that came out of that procedural mechanism that in the end were intended to support.

support the SNAP program and the funding of it as we know those issues still percolating up and about inside government probably probably now leaving the United States Supreme Court and maybe the lower courts as well but not without a lot of history as is always the case.

In connection with history we're also going to talk about another petition that the current president his name is Donald Trump as you know has made to the Supreme Court in connection with that

judgment, that civil judgment, actually one of two civil judgments, entered against him by federal courts with respect to claims made by E. Jean Carroll.

She recall is that journalist, she's that writer, that author who alleged and received damages against Donald Trump for defamation.

in connection with her initial claim that he had sexually assaulted her in a Bergdorf Goodman store in Manhattan back in the 1990s, then lied about that, misrepresented what had happened, and also called her some names along the way.

She, of course, went into federal courts, plural, and has gotten a couple of judgments against the president in the amounts of millions of dollars.

We'll remind you more about that in just a few moments.

And as a result of the unfavorable judgment that is to Donald Trump, the president, even in his official capacity, has now asked the Supreme Court to review those lower court affirmations.

of the judgments entered with respect to and in favor of Eugene Carroll against Donald Trump.

He has now once again asked the Supreme Court to review those cases, and in particular, one of them having to do with a $5 million judgment entered against him.

We'll talk about that as well.

All things related to the Supreme Court, related to that tangentially, of course, other powers of the executive branch, judicial branch, legislative branch, and that includes

includes inside of Article 2 of the Constitution the capacity of the president.

to issue pardons.

He is continuing to do that this past week in a way that has no impact.

None whatsoever, not just largely symbolic, but vacant in terms of their impact, issuing pardons with respect to people who have been a part of state prosecutions, but not federal prosecutions.

We'll talk about the civics related to that and the reason why those pardons, although they grabbed a lot of headlines,

are in fact not as significant as the president might like to think that they are.

We're also, of course, going to talk about U.S.

Attorney's offices as well, in connection with the continuing prosecution there in the Eastern District of Virginia.

Two prosecutions, one of them.

against James Comey, the former director of the FBI, another of them against Letitia James.

She, as you know, is the attorney general of the state of New York.

Both criminal prosecutions brought against them different cases, different kinds of prosecutions, but both premised upon the request of this president that his political adversaries

both of them fall in those categories, that both of them be prosecuted the response by the United States Attorney in eastern Virginia.

The answer was yes, prosecutions go forward, and just this past week.

hearings in front of a federal judge about whether or not the United States attorney will talk more about her, give you additional insight into her status, whether her status, whether official status of that U.S.

attorney can be supported, or whether, according to the defense, in both of those cases,

She, in fact, has no authority to go forward and prosecute these cases from the start, that going forward in the federal district court just across the river from Washington, D.C., while other motions also pending in that district as to those two defendants.

That is a lot, as I often say, and it is a lot, and in amicus here, a law review, we are committed.

by virtue of our name, friend, Amicus Curie, friend of the court.

to assist and provide information so that you can make intelligent judgments and decisions and render your own independent opinions about what's going on inside the rule of law these days, not without a lack of foundation and with and with a good deal of support and information coming from this broadcast.

Once again, thank you so very much for being a part of our initiative to provide that amicus a la review mission.

to make it real here in Wisconsin and beyond.

Let's begin once again with the United States Supreme Court and a court that once again continues to be very, very active.

We have talked in recent times about the fact that in this new term, it is now the 2025, 2026 term of the United States Supreme Court, a brand new term effective the first Monday in October.

That Monday, of course, was Monday.

October 6th.

Since that time, there have been 10 different days, including days of just this past week in which the Supreme Court has entertained oral argument.

We have talked a lot about the cases already on the 45 case docket of the Supreme Court, and we have talked also about many

not all of those oral arguments over the period of those past days when the Supreme Court has appeared and entertained these oral arguments in connection with the merits of the cases in front of them.

And significantly, the word merits.

These are all the so-called merits cases.

These are the cases in which the Supreme Court has said previously, yes, will grant the rites of certiorari as you all know well.

You have been schooled in through this.

This broadcast and others in what the Latin means, in what the legal jargon means, that is the permission, that's the authorization by the Supreme Court to take these cases up and to hear them.

Most often they deny those applications and they say, no, we're not going to take them.

Up until now in this term, the Supreme Court has decided to take some 45 different cases.

We've talked about a lot of those and we're going to talk about one in particular.

that was the focus of oral argument just this past week, a religious case.

After, after this week, the Supreme Court does not go dormant.

They continue to work and indeed continue to have what are called decision conferences here in November and in December and January, February, March, April, May, June.

throughout the remaining months of this term, and actually the term goes beyond June, but we anticipate that the great majority, if not all of the opinions on this merit docket, will be issued by sometime before July 1 of 2026.

And so along the way, after they have these oral arguments in which they publicly, as we have spoken on this broadcast, talk about, argue about,

contest the issues and examine with the attorneys who are appearing in front of them the merits of the positions presented to them, they ask tough questions, they ask easy questions and they often give you a very good sense of where they're going.

We have talked at great length about this tariffs case that was the subject of this major oral argument of the week before the last one.

and specifically gave you an awful lot of information about the merits of that particular oral argument, played for you some of the specific exchanges between justices like Amy Coney Barrett and the attorneys, between another justice named Neil Gorsuch and the attorneys, between the justices themselves back and forth, a bit of humor during the course of that tariff-related oral argument as well.

And based upon that,

It certainly does appear, not just to me, but to an awful lot of people who are court watchers.

It seems as if the Supreme Court, at least a majority of them, maybe five, maybe six, maybe seven at the outside, would determine in the end, based upon the oral argument and the hints and the questions that they articulated, that they are in fact going to say that the President's invocation of the statute that he is invoking

to justify his tariffs is not applicable.

The Constitution requires that this as a tax, as they said, is required to be passed, if at all, by the United States Congress under Article 1.

And in the wake of that, once again, an awful lot of prediction, including mine, that the Supreme Court, stunningly,

but perhaps appropriately, constitutionally, is going to find that those tariffs have been unconstitutional.

When we come back, I'll tell you what happened likely in a decision conference of the past week here on Amicus, a law review.

My name is Jim Santel and this is Amicus on the broadcast stations of Civic Media.

Honor that you have once again chosen to spend some time in...

Exploration of these major rule of law issues talking in particular about the United States Supreme Court providing some civics insight some law school stuff as we sometimes do on this broadcast in the wake of the oral arguments of this term and in previous terms There have been ten of those days of oral arguments in this term alone, but in the wake of all of those historically

The members of the Supreme Court go into private session and during the months of October and yes November in the past several weeks there have been four different days.

There'll be five altogether by the time November turns into December, but up to this point, four days, all of them Fridays, October 10th, October 17th, November 17th, and November 14th, when the Supreme Court, after having heard oral arguments of the previous week, then gathers in private session.

There are certainly notes taken of those meetings by law clerks and by the Supreme Court justices themselves, but they're not public proceedings.

And unlike the oral arguments, regrettably, you can't go online and hear what they said during the course of those oral arguments.

These are private sessions, but we've got a pretty good sense of what they do.

And the reason for their having these particular conferences in the immediate aftermath of their oral arguments and that is.

to talk about what they just heard.

To vote on what their positions will be to determine whether or not there is an identifiable, a coherent majority.

What the vote may be.

what the discussion going forward might be all about.

And indeed, if there is some resolution of the very cases that they have just heard in oral argument, some decisions about who's going to author the majority opinion, who's going to author the dissenting opinions, how that's all going to be played out.

And the point of all of that is that in the wake of this very important discussion,

in the oral arguments, the public proceedings of last week on tariffs.

The Supreme Court on the 7th of November, a couple of days after that, had one of these important conferences.

And it is highly likely, although it is speculative, that during the course of that conference, that non-public discussion among them, and yes indeed, what you like to be a fly on the wall of those discussions,

During the course of that discussion, that conference of the 7th of November, highly likely that the Chief Justice conducted a vote.

on the oral arguments of the previous week, we talked about those, and that almost certainly included the oral argument on tariffs.

On whether or not the president does have the statutory authority, the constitutional authority to do what he has been doing for much of the past 10 months, and that is negotiating, imposing, rescinding, reimposing, and engaging in tariffs issues in a way that at least superficially and clearly in the Constitution

It is reserved for the United States Congress.

They highly likely voted on that case already, or at least disgusted in great detail.

And it's entirely possible that even as we gather together to engage in discussions of this sort here on this broadcast and go about our lives, the decision may have already been made.

on that important tariffs issue.

And it may well be that an assignment has been made to author, again, the majority opinion, whether that is a five to four, six to three, seven to two, nine to zero opinion, highly unlikely, but possible.

Highly likely, however, that someone among those justices is right now responsible for authoring a majority opinion based upon that conference discussion of late last week.

And also then,

a discussion about what the dissenters will probably say and do and who among those dissenters will author the dissenting opinions that's probably happened and so it underscores once again the notion that on any of these cases subject to oral argument they're now submitted to the court they're now under advisement as the chief justice repeatedly says at the end of these oral arguments and are subject to

review by them in the wake of those oral arguments, and then the announcement of decisions into the public domain.

That could happen this week, next month.

Three months from now, six months from now, with respect to these major issues involving tariffs, and as we talked before, about the future of the Voting Rights Act of 1964, this issue about whether or not Section 2 of the Voting Rights Act will stand up under the scrutiny of recent review.

Those kinds of cases have time elements to them, and it's entirely likely that as to both of them, decisions internal to the Supreme Court have been made.

and that right now the Scriveners, the Supreme Court Justices, and yes indeed their law clerks, are hard at work putting together the decisions that will be released publicly at some point down the road.

That's what a decision conference is all about.

And so it is significant that those kinds of decisions in a couple of the most important cases among the 45, presumably at some point,

60, maybe 70 cases, those cases may have already been decided and are simply awaiting disclosure.

We do know, however, that coming out of that discussion and that decision conference of a week ago Friday, there were some public things.

And both of them have gotten appropriately the attention of the media and they're made public by the clerk of the United States Supreme Court.

Let's talk about both of those important decisions that came out.

one of them had to do with a petition for review filed by Kim Davis.

We have talked about her many times before.

She's the former Kentucky County clerk who gained national notoriety way back in 2015 when she defied a court order and refused to issue same-sex licenses to marriage licenses because of her religious beliefs.

She asked the Supreme Court to reverse an order.

that required her to pay about $300,000 to a couple that was denied a marriage license and to overturn the same-sex marriage ruling from way back in 2015.

Supreme Court took that up at the decision conference of late the previous weeks and said no.

We're not reviewing that and denied her request to revisit the same sex marriage decision of 2015.

When we come back, I'll tell you about something else that the Supreme Court announced from its decision conference of just that past Friday as Amicus continues.

This is amicus a lot of you at the broadcast stations of civic media my name Jim Santel your host this hour and next hour as well beginning our discussion of rule of law and justice issues again on Capitol Hill and the United States Supreme Court the things that it did in public the things that it did not do in public we know that one of the things that it did privately but announced then their decision publicly was to deny this request of Kim Davis

this former Kentucky clerk who defied the same-sex marriage requirements because of her alleged religious beliefs.

They said no to her.

They said, we're not going to review that case.

And plainly, she, among many other thousands of people, disappointed by the fact that her particular somewhat peculiar case, a case involving principally this civil judgment against her, but also she spent six days incarcerated based upon her failure to do the ministerial task

that she was assigned to do, all of that wrapped up in this case, not going any further before the United States Supreme Court.

Significantly, Amy Coney Barrett, in her recent memoir, indicated how she would likely have voted on this, and she probably voted, again, in this decision conference, not to take this case.

She said, during the course of her recent memoir, that there are certain fundamental rights the court has recognized, she said, including the rights to marry.

to engage in sexual intimacy, to use birth control and raise children.

She said, those are certain fundamental rights that the court has recognized unlikely that she would vote to overturn them.

She distinguished those from some other rights that, as she wrote in her memoir, are subject to what she described as a more complicated moral debate.

And she said, more open to interpretation by the court, including matters involving abortion.

and also suicide.

So a little bit of a sense from her in the public domain about how she would have voted and likely did vote on this application by Kim Davis.

We don't know exactly what the discussion was all about, but plainly, a majority of the Supreme Court likely said, no, we're not doing this.

What does it take?

It takes four members of the Supreme Court to say yes.

And so something in that area, something less than four, had to vote against Kim Davis in order for the case to go to proceed as it did, which is no further review in the United States Supreme Court.

Same-sex marriage remains a privacy right as established by Obergefell in 2015 in that lofty opinion authored by...

the Supreme Court majority at that time, talking about the dignity of human beings and the access of this fundamental right, the right to marry to all people, including same-sex couples, that remains the law of the land.

by virtue of the Supreme Court decision and also by some legislation that the United States Congress also passed legislatively across the parking lot from the Supreme Court, passing a law not too long ago, also affirming that right, giving that right, making it clear

to Americans across all states and all territories that that right exists and doing it based upon a legislative enactment.

And so same-sex marriage in this term, and not subject to reversal, even though we suspect there are at least one or two justices,

maybe including someone like Sam Alito, like Clarence Thomas, Clarence Thomas in particular, who has expressed interest in reviewing many of these privacy rights cases.

There's something else, there's something else that the Supreme Court did in that decision conference of over a week ago, because it announced that it did in fact grant the right of

one set of parties to hear a case to be challenging before the Supreme Court, a case involving the counting and the timing of mail-in ballots received after Election Day.

The Supreme Court announcing this past Monday after its decision conference of the previous Friday that it is in fact going to hear this challenge to the Mississippi law.

a Mississippi law that could in fact upend similar measures in some dozens of states, even before the 2026 election, about the timing of the counting of votes.

The case once again, like the other matters before the Supreme Court, and you remember what those are, the court has already included in its review through oral argument this lawsuit over who can sue to challenge Illinois.

mail-in ballot rules, and that, of course, seemingly suggesting the Supreme Court is going to permit that particular congressman to pursue his lawsuit challenging the Illinois ballot rules there that have a 15-day post-election day period during which ballots can be counted.

This is another one.

This is a challenge to Mississippi's counting of mail-in ballots.

Mississippi has a five-day grace period, which is similar to ones in place in many other states, and that allows elections officials to count ballots that have been mailed by Election Day but arriving a few days later.

The other major case, again, already referenced in this very broadcast, is this major case coming out of Louisiana.

That's the case challenging those congressional district maps about whether or not two majority black districts are properly described properly outlined by the legislature upon court order or whether or not whether or not that was wrong for them to do under the Voting Rights Act or if indeed the Voting Rights Act is now an antiquated piece of legislation no longer compelling.

that legislatures and the people who draw the lines for congressional districts need to be concerned about race anymore.

A huge case, again, depending upon when it is issued, could affect dramatically the 2026 election, as will this other case now coming out of Mississippi, having to do with the timing, the period of time during which election officials can count ballots received.

after Election Day.

The question there, once again, based upon the fact that a federal trial court judge upheld Mississippi's law, finding that the state met federal requirements for elections because the mail-in ballots had to be postmarked by Election Day.

And under the law, no ballots cast or mailed after that day are counted.

Interestingly, a three-judge panel out of the Fifth Circuit, we've talked a lot about the Fifth Circuit Court of Appeals, New Orleans-based.

reviewed that as a part of its routine work and sided with the Republican National Committee, one of the parties to that lawsuit, the appeals court striking down Mississippi's grace period and saying, nope.

You've got to address all of the mail-in ballots.

You've got to count all of them on election day.

You can't wait.

You can't wait post-election day for those that might arrive five days after election day itself.

That's the issue that's now before the United States Supreme Court.

And that's what they decided to hear in one of their most recent decision conferences on Friday.

They're going to take up this issue about whether or not the Mississippi law does

in fact have merit, whether or not it has to be overturned based upon the meaning of what is election day.

What are the understandings about the importance of individual votes?

What are the practical realities of the particular Mississippi law here that once again permits the counting of votes in this five-day post-election day grace period?

That now on the docket, that is now on the docket, hasn't yet been decided will be the subject of an oral argument.

down the road all of that coming out of this decision conference of more than a week ago about which we do not have a lot of visibility aside from the fact that they're certainly deciding presumably on these kinds of cases announcing them with what they are and are not going to take and also presumably making some initial decisions about the oral arguments and so and so just this past week just this past week in cases before the supreme

Court, the Supreme Court.

addressing a number of them, and we're going to focus on one in particular on Monday of this past week.

But in addition to that major religious case, the Supreme Court also heard oral argument in a case called Geo Group versus Monarch Menacal.

It concerns something called the collateral order doctrine.

And this is a question, it's a legal question, that has split the circuits on whether or not a government contractor's claim of sovereign immunity

is appealable under what's called the collateral order doctrine.

Yes, that's thick, that's a lot.

But it underscores the fact that the Supreme Court will undertake to review cases in which the various circuits around the country have come down on different sides of the same issue.

That's one of those.

They reviewed that on Monday.

On Wednesday, they reviewed a case, one of them involving, again, discretionary sentences and reductions under

federal law case called Fernandez versus United States, whether the Second Circuit, reviewing a case coming out of that particular circuit, recognizes some non-statutory limitations on what information a court can consider.

in determining whether there are extraordinary and compelling reasons warranting sentence reductions under federal law.

It's a sentencing reduction question.

And what is the authority?

What is the permissible ambit of a district court judge in taking on some additional information in making a sentencing decision?

That was Fernandez, much related to it, but a different question also on Wednesday, a case called Rutherford v. United States.

And there, once again,

Something of a split in the circuits for circuits permit but six or six circuits do not Permit a district or to consider some disparities Created by what's called the first step back You may recall this was a major piece of legislation signed by the president under his first term and it establishes again some sentencing provisions and whether or not extraordinary compelling reasons warrant a sentence reduction again

Similar to but a different question slightly than the one raised in Fernandez, that case again, Rutherford, the court obviously taking on both of those cases on the same day because they raise sentencing issues and need to send some messages to the lower district courts about the kinds of things that they can consider when it comes to sentencing determinations.

Now.

Here's the big one, and this was Monday morning, November 10th.

I'm gonna spend a little bit more time talking about it because it is significant to understand what the Supreme Court appears to have done in this major case called Landor versus Louisiana Department of Corrections and Public Safety.

It involves something called the Religious Land Use and Institutionalize a Persons Act of 2000.

It is a major case.

And the reason why it is so significant, actually several reasons.

One is it underscores once again the fascination.

Some might even say somewhat of the continuing focus, maybe even obsession of the Supreme Court on religious issues.

They do a lot of these cases.

And this is the next one in the series.

Often, as we have spoken in the past, this Supreme Court

If challengers raise the freedom of exercise of religion under the First Amendment as a reason to attack to challenge a particular government governmental action We've seen that coming out of Colorado for example We've seen that coming out of other states around the Union if in fact challengers bring a case to the Supreme Court having to do with religion more often than not religion wins and An awful lot of criticism of the Supreme Court for that as they change if you will in many ways

the standards by which religious issues are resolved.

Supreme Court just this past week addressing another religious case, but here almost certainly indicating that they will not permit these particular religious claims to go forward.

And when we come back and talk more about this case involving a Rastafarian,

We'll tell you all about that case and why it is the Supreme Court will probably shut down and say no to him about the possibility of pursuing those claims in court going forward.

Stay with us here on Amicus, a law review.

My name is Jim Santel and this is Amicus, a lot of you on the broadcast stations of Civic Media.

We are spending more time, necessarily, importantly, talking about what your United States Supreme Court has done in recent days, including oral arguments.

Again, no decisions made, at least not publicly, at the time of the oral arguments, or even in the decision conferences afterwards, no public releases, but highly likely that this case, like the other cases,

probably already the subject of decision by the Supreme Court, and in this particular instance is one of the rare cases in which the Supreme Court, at least majority of it, may well say that the particular petitioner here who is raising a religious exercise claim is out of luck.

And that, of course, would run not necessarily contrary, but certainly bring it outside of the ambit of many other recent cases.

You may recall Supreme Court in recent years has done a lot to bolster religious rights.

In many ways, articulating a new standard, which we have not seen in previous years, and that is the question whether or not a particular restriction on the capacity to exercise your religion, the capacity of a particular faith under the establishment clause, even whether there's discrimination against faith.

discrimination against a religious belief and under those circumstances, religion cases and those premised bond faith almost always have won.

Here, we've got an exception to that.

We've got an exception to those cases where you may recall a couple of terms ago, the court said a high school football coach had a constitutional right to play at the 50 yard line in a public school after his team's games.

That an establishment clause case, right?

You may recall as well.

the court sided with a Texas death row inmate who wanted his pastor to touch him and pray aloud at the time of his execution.

Many other cases in the recent docket of the Supreme Court in which religious rights win.

Apparently not here.

So how does this come about?

The petitioner, his name is Damon Landor, L-A-N-D-O-R.

And when Mr. Landor was, he was a incarcerated defendant, he is incarcerated in the Louisiana...

correction system.

He's transferred in 2020 to the Raymond LeBord Correctional Center.

That's in a place called Cottonport, Louisiana.

At the time of his transfer, Mr. Lander, who is a Rastafarian,

hands the prison guard proof of his religious accommodations that his jailers are obliged to follow and that in particular is a court decision way back in 2017 he's got it with him and he says you know I know I have my dreadlocks I know they're very long

And at that point, they reached almost to his knees, if not beyond that.

But he's got this court decision.

He says that the state policy of cutting the hair of incarcerated Rastafarians violates federal protections for religious exercise.

So he hands that order.

to his jailers and says on this basis, although you may not like it, the reality is that my religious beliefs affirmed by a court way back in 2017, mandate you not, that you not cut my dreadlocks.

He presents that as a part of his serving his five month sentence.

He carries this legal opinion into that transferred facility.

And what happens?

What happens is that two guards handcuffed Mr. Lander to a chair.

They restrained him and they forcibly shaved him bald.

Contrary to the order given to the jailers based upon the prior court ruling.

So what happens?

What happens?

Well, once again, the plaintiff here, Mr. Lander, sues as all of the religious faith adherents do.

challenging the actions by these state officials under something called the Religious Land Use and Institutionalized Persons Act.

And what is that?

Well, that's a federal law.

It's a federal law that requires states to protect the religious rights of individuals in state institutions.

I'll say that again.

It mandates that state officials, including jailers,

protect the religious rights of individuals, people who are imprisoned, who are detained in state institutions.

Sounds like it applies, does it not?

And in a separate case, again, to give you some reference about all this, the Supreme Court ruled in 2020 that a related statute but not invoked here from 1993 is called the Religious Freedom Restoration Act.

permitted individuals to sue to obtain money damages against federal officials in their individual capacities.

So what's the difference?

Well, there is a difference according to the Supreme Court.

And how does this oral argument proceed on Monday?

There is horror, there is shock.

And virtually all the Supreme Court justices, including Amy Coney Barrett, expressed their views that this event, holding him down, shaving his dreadlocks, is horrific.

And Amy Coney Barrett, for example, says several times that the facts of this case are egregious.

That's her word as she announces her visceral response to what these jailers did.

But Justice Barrett...

along with Justice Neil Gorsuch, Brett Kavanaugh, arguably others repeatedly asked Lander's lawyer and also the Trump administration, interestingly, the Trump administration joining, joining Damon Lander in asking for permission for this lawsuit to go ahead.

Why?

Because the administration wants appropriately for people that have access to the courts to advance their

claims under the First Amendment.

The Trump administration allied with Mr. Lander.

And during the course of the oral argument, the Trump administration and Lander's lawyer is not getting a good reception from the majority of the Supreme Court, undeniably.

Three justices of the Supreme Court, Elena Kagan, Sonia Sotomayor, Gitanji Brown Jackson, suggested the law was quite clear.

And Justice Sotomayor, for example, says, generally speaking, if you're a prison official, you know you're working in a prison and you are bound by law to pay damages if you violate the law.

So you've got at least three votes in favor of Mr. Lander and the administration.

But you've got others who are opposed to that.

They describe the lack of notice to states that their employees could be on the hook.

to pay money damages.

When we come back, I'll give you some final perspective on that case involving Damon Lander, and then we'll talk more about what's going on before the Supreme Court in the public domain here on Amicus, a lot of you.

Welcome to Amicus, a law review with Jim Santel, Civic Media's weekly review and discussion of some of the most significant news stories in the areas of law, government, courts, and the aspiration for justice.

And now, here's your host, Jim Santel.

this is amicus a lot of you this is the second hour of amicus a lot of you our weekly weekend review of all things related to the rule of law and justice the administration of justice the aspiration for justice in america that's what we think our supreme court our legislature and our executive branch should all be focused upon

All members of our elected, appointed offices and agencies around the nation, the state offices, all of them in ways big and small should be focused upon.

Justice equal justice under law that is inscribed into the front the facade of the Supreme Court building there in Washington DC We are talking a lot about the public and the non-public things that the Supreme Court has done in the past week or so Including this major oral argument involving a now former innate mate named Damon Landor he was actually at the oral argument this past Monday his

Harris begun to grow back in, not nearly as long as it was, before he was strapped down and physically restrained, before the jailers there in his incarcerated capacity in Louisiana shaved his dreadlocks, shaved him bald.

Again, all the members of the Supreme Court in ways articulate and clear.

said this was horrific, this was egregious.

However, they then moved on to the question about whether or not the particular statute under which he challenged this, that is the Religious Land Use and Institutionalized Persons Act, does in fact permit him to gain judgment, to get damages against his jailers.

During the course of all of this litigation, Mr.

Landor had previously said that when he was strapped down and shaved, he said, I felt like I was raped, he said, and the guards, they just in care.

They will treat you any kind of way.

They knew better, he said, than to cut my hair, but they did it anyway, suing the warden then and guards under this statute.

a lot of that reference that reference to the horror of what had happened here invoked by the justices across the board including Sonia Sotomayor and Elena Kagan and Katanji Brown Jackson who suggested that under these facts and under the law that if you violate the law the constitutional right that that prisoners have under the First Amendment you should pay damages their position was quite clear there will be at least three votes in favor

of Mr. Lander and also in favor of the Trump administration.

However, it appears once again the majority of the Supreme Court, including justices Amy Coney Barrett and Neil Gorsuch and Brett Kavanaugh, focusing upon a notice issue.

They described a lack of notice here to the states that their employees, including jailers, the people who held Mr.

land or down and shaved his dreadlocks whether there was notice to those employees and absent that notice could they be on the hook could they be subject to paying money money damages for violations of federal religious protections the appeals courts considering this question including including the fifth circuit court of appeals

The same court that had ruled that the law protected Rastafarian prisoner's dreadlocks said it emphatically condemned the lander's treatment, but there the judges, the lower court judges coming out of the Fifth Circuit had said they were bound by past precedent under this particular statute.

And that president did not allow this kind of litigation against state officials.

The statute that Lander relied on was meaningfully different from others.

The panel wrote and did not authorize his lawsuit.

The same words placed in different contexts sometimes mean different things, said the Fifth Circuit Court of Appeals.

Comes up from the Fifth Circuit.

and comes to the Supreme Court of the United States of America, where it appears that at least Justices Barrett, Gorsuch, and Kavanaugh, probably including the others as well, are ready to vote against the position of Mr. Lander.

And say that again, because of the notice, because of the configuration of the language of this particular statute,

He does not have the right to recover.

Justice Amy Coney Barrett says this.

She says it's hard to see how it could be clear to the states.

She's talking once again about the notice requirement when all of the law went the other way.

She's talking once again about precedent.

Justice Kavanaugh says the hard part, as I see it, for your case, again, speaking to Lander, for me,

is that you need a clear statement of that, which is missing here.

And again, we don't know exactly what the Supreme Court will do, presumably in the same decision conference in which they denied Kim Davis's right to go ahead, in which they probably made a decision on tariffs, in which they said that, yes, indeed, we are going to be reviewing this Louisiana

polling case, the ballot counting case for absentee ballots.

In the course of that, highly likely the Supreme Court also took a vote on this issue about whether or not the prison guards should be exposed to monetary damages under this statute that Mr. Landard premised his lawsuit on.

Seems that they will say no to him.

We don't know when they're going to issue that opinion, like the other opinions, but likely that they will do it.

Sometime before June, it enters the large category of religious cases that the Supreme Court focuses on.

Here you've got a rare instance, likely, in which the Supreme Court is going to say no, that under the particular statute, and yes, under the First Amendment, Mr. Lander, a Rastafarian, does not have the right to go ahead and sue Louisiana prison officials.

As a result of their doing this to him, shaving the dreadlocks off of his head.

Interesting issues related to prisoners, religious freedoms, which they have under the law, which they have under the Constitution, and interpretation that probably will go against Mr. Lander as the Supreme Court decides this case.

Let's talk about something else that's coming into the Supreme Court for the review, presumably, at another one of these decisions conferences.

And yes, they've got yet another one scheduled.

They did one not only at the end of this past week, but also again on the 21st of November.

Then they're...

not quiet, but they're not having decision conferences.

Presumably they're writing some of the opinions following up on decisions that they're making during the course of these decision conferences in December to give you some sense about their calendar.

The early December days the first second and third they've got oral arguments scheduled a decision conference on Friday the 5th and in the 8th 9th and 10th more oral arguments will talk about all of those Another decision conference on the 12th likely in one of those decision conferences They're also going to take up another request from the president

of the United States of America.

As you know, the president has on a routine basis in the past 10 months or so routinely gone, routinely gone to the Supreme Court in these cases involving emergency docket applications.

And he has asked them basically to stay.

to suspend, to stop the lower courts from doing what they've been doing in all varieties of things, including, for example, that major case involving the Federal Trade Commission, and whether or not the President has the capacity to fire one of the commissioners, that was on the emergency docket, now converted, converted into a merits decision type case, and presumably also going to be scheduled for oral argument.

Other cases going to be

presented to the court for its continuing review as this goes forward, as this process of reviewing incoming cases and reviewing exactly what it is that the Supreme Court will place on its docket in the future.

So one of those cases, again, goes back to decisions made by juries, federal juries in the past.

You recall, well, the name E. Jane Carroll, the

Petitioner, the plaintiff in that case, alleged in writings, in public statements, that in the mid-1990s, the President of the United States of America, before he was in that posture, when he was a private citizen in New York, came upon her in the Bergdorf-Goodman store in Manhattan, and sexually assaulted her in a dressing room.

She made that allegation.

and talked about it publicly.

The president, now while he's in office during the course of his first term, comes forward and says, not only is that not true, not only is that a lie, but this never happened, and in fact says some other things about the physical appearance of Eugene Carroll, all of which, all of which lead her

to file a defamation action against him.

And in those particular cases that go in and out of the federal courts, she's in front of juries, variously the Department of Justice is and is not representing the president, again, variously in favor of and in opposition to the notion that somehow his defamation is a part of his official capacity.

Initially, the administration under Donald Trump, his first term, said, yes, we'll defend you.

That was later rescinded during the course of the end of the Trump administration, also during the Biden administration, private representation, when Donald Trump comes back into office, the Department of Justice resumes representing him in what is plainly a non-official case, even so.

Even so, based upon all of that history, based upon the fact that you have at least two federal juries imposing judgments against him of tens of millions of dollars, this particular case, five million dollars entered by a federal judgment, a federal court, affirmed by appeals courts in both of these cases, this five million dollar case, now the subject of a request by Donald Trump.

Who is our president?

For review by the Supreme Court, asking the United States Supreme Court to review this case, decided unfavorably to him in which a $5 million jury verdict was affirmed by the lower courts.

The questions, of course, may be involving the law of defamation, may be somewhat involving issues related to the staleness of the underlying claims, none of which are real, none of which are substantive.

and substantively significant, all of that suggesting the Supreme Court should not, should not grant a writ of certiorari, should not give the president the capacity to argue this case before the highest court in the land.

What should happen here based upon the merits of this for anyone in this kind of a case?

This case should remain closed.

It should remain at the appeals court levels, where the appeals court have summarily and in great, great detail, both of those have said the lower court judgments need to stand.

The jury verdicts of millions of dollars against the president for his defamation of Eugene Carroll need to remain in place.

That's what the Supreme Court should do by virtue of saying no.

We're not going to review this case.

It should remain where it is, and not take its place among the increasing number of merits cases, merits docket cases on the Supreme Court's list for review.

But, just this past week, again, Donald Trump, as he can do, as any litigant can do, this presumably plainly more in his private capacity than his official capacity, asking the Supreme Court for a review.

and the Supreme Court once again now in one of these upcoming decision conferences has to make that determination.

The Supreme Court did some other things this past week in connection with what remains one of the biggest news items of recent times having to do with the SNAP program and food stamps, as they're sometimes known, and the capacity of the federal government, the administration, the Department of Justice to reach into surplus funds available when an administration, when a government is no longer budgeted, if you will.

You know well where this comes from.

And when we come back, I'll tell you more about the genesis of this particular case coming out of a district court in Rhode Island, the First Circuit, and what Katanji Brown Jackson did last weekend in connection with the review of this case, all of that coming up on Amicus, a law review.

My name is Jim Santel.

This is Amica Salaro View on the broadcast stations of Civic Media.

Talking all things Supreme Court because they've been doing a lot of things, lots of things going on on Capitol Hill, both publicly and privately.

This is public.

And yet, subject to a lot of misinterpretation about exactly what has been happening here, we have talked at great length about what the district court and what the appeals court has been doing in connection with SNAP funds, that SNAP amount of money, the supplemental nutrition assistance program that have been the subject of so much review and so much debate, and a program that provides...

necessary nutrition and food for about 42 million Americans.

The question is whether or not in the wake of the recent suspension, the recent suspension of government functions generally and the lack of a budget, the shutdown, whether or not the administration could seize and go into those reserve funds made available for precisely this purpose, about $8 billion needed every month to support.

the supplemental nutrition assistance program, this SNAP program here, and about $5 billion of that available to keep it afloat, even during an appropriations lapse, even during a shutdown of this sort.

So what happens?

We've got federal judges, including a federal judge in Rhode Island.

who looks at all of this and says that in fact, Mr. President, you need, you've got the legal authority and directing, directing the administration to go into that reserve fund.

and find the monies to keep things afloat.

His name, actually on two occasions, Judge John McConnell tells the administration, directs the White House, to tap those accounts at the Agriculture Department, funding the SNAP benefits in their entirety, or at least in almost all of their entirety.

What happens, of course, is that that petition, that litigation, that judgment from the lower court,

the decision of Judge McConnell, that is a subject of a petition and appeal to the First Circuit Court of Appeals.

And the Court of Appeals itself takes a look at that and basically says, yes indeed, we're affirming what the lower court has said that the funds need to be made available.

While that is happening, while all of that is going on,

the President of the United States of America through his Solicitor General, through the Department of Justice, does what he has done in many other cases, and that is he files an emergency appeal to the United States Supreme Court.

This is all happening last weekend, and we talked somewhat about this as it was breaking last week during the course of our broadcast.

And what happens is this, every single circuit in the nation has assigned to it a particular Supreme Court Justice.

during the seventh circuit, our justice is Amy Coney Barrett.

And so, if there needs to be some immediate action, ours pending, decisions need to be made very, very quickly, a particular Supreme Court justice has the authority to enter orders to make certain that things are addressed.

And in this particular case, Justice Katanji Brown Jackson,

entered an order that stayed the lower court opinions.

She basically seemingly, seemingly sided with the administration that was again maintaining that it could not dig into these reserve funds contrary to what the district court had said, contrary to what the first secret had at least initially said in its disposition of this case.

So what happens is that Amy Coney Barrett publicly says, I'm going to enter a stay.

of the lower court decisions.

And that surprised an awful lot of people.

But in fact, in fact, what Justice Jackson is doing here and what she did here was wise.

And it was even strategically deft.

It not only sped things up, but also slowed things down in ways that are important.

Because what happened here...

is that while Justice Jackson stayed the decision of the lower court before the Supreme Court by doing that she did a couple of things she accomplished first the notion the the accomplishment was keeping this decision from review by all of the other Justices that probably would have entered a stay anyway, but perhaps done it under circumstances

other than what she has done.

And so she not only keeps this matter in her particular docket, but she also says to the First Circuit Court of Appeals, decide this and decide this quickly.

That's where the fast portion of this comes in.

And she does that why for a couple of reasons.

Once again, she plainly wants to develop a record as this matter comes forward to the United States Supreme Court in a more substantively appropriate way, permitting the

Circuit Court of Appeals to issue a judgment in the way that they should, permitting the process to go forward as it should in all of these cases and along the way.

My read on this, also telling the administration that we need to get back to that process, where a trial court decides the cases initially, appeals courts review them, and then they get appealed, if at all, to the United States Supreme Court.

Absent this quick emergency relief that is being sought repeatedly by the White House.

So, Katangi Brown Jackson's decision, while it seemed to be one,

that supported the administration's decision not to go ahead and not to get these reserve funds out to 42 million Americans in fact was wise and in fact supported that very position by virtue of doing something legally procedurally that brought this matter back to the Supreme Court

in a way that was more cognizable and understandable.

So what happens in the wake of that?

Well, we know what happens.

Again, many things this past weekend, and that includes, of course, a decision by the United States Congress, the Senate, the House, very controversial, we know, basically, to end the shutdown.

And because of that, because of that, almost certainly, the SNAP funds will now begin to flow once again, the $8 billion for the agriculture department available.

And as a result of that, most of the argument again brought to the Supreme Court by the administration for review, most of that mooted going forward.

But when we come back, I'll tell you about a footnote to all of this that underscores even inside the litigation, the position of this administration.

as an amicus, a law review continues here on Civic Media.

This is Amica Zalora View.

My name is Jim Santel talking all about the United States Supreme Court and making some sense, some good sense about what Justice Katanji Brown Jackson did about a weekend or so ago in staying the decision of the lower courts with respect to those snap funds.

She structured this as I was saying in a way that she was able to control the timing.

of the Supreme Court's forthcoming review at the time, and also creates some pressure, that it slows something down, but also creates some pressure in the lower court, the First Circuit, to develop its full record so that when it comes back to the court.

There is a better record upon which the Supreme Court members can review and decide the case.

While all that is going on again, two significant things happen.

One is there is an agreement on Capitol Hill to end the shutdown, which basically requires now that the funds flow once again.

in SNAP and in other areas, but even while that's going ahead, even before the president signs off on that reopening of the government, the administration through the Solicitor General continuing to petition the Supreme Court to overturn, to halt, to stay the decisions of the lower court saying the funds are available.

Now, in fairness, the Solicitor General does drop some references in his

latest petition in which he says all of this may well be mooted but while it's not mooted continue continue Supreme Court to overturn and not endorse what the lower courts have said about the capacity of the Agriculture Department to get these funds to Americans.

It's an interesting reflection of this administration's position even inside the pleadings that they're filing and also it is important to recognize that in this time of Donald

Trump.

And in this time, and we were spending so much focus of our national attention and our national education on how these things work, important to dig into why it is that Supreme Court justices do things, not necessarily on the superficial level, intuitive, but making perfect sense when you get deeper into the weeds.

So Katanji Brown Jackson, again, someone who would have

had the Supreme Court had the capacity before it to decide the case at large if you will on the merits certainly would have supported the lower courts the decision that she made to stay the lower courts simply a strategic move to ensure that the record is complete and it was before the Supreme Court almost in a way that was more complete for its review all of that coming out of the United States Supreme Court let's go down the street a bit

And let's talk more about the United States Department of Justice.

Things going on there on a regular basis.

We have talked before about various firings, suspensions of US Department of Justice lawyers for doing various things, saying things in court, writing things in court.

We know that a little over a week ago, a couple of Justice Department DC based prosecutors there were placed on leave, almost certainly going to be terminated after they filed.

some court papers in a case involving a defendant named Taylor Toronto, and they be referenced to his previous involvement in the January 6th Capitol riot, the siege, the insurrection, and they called it a riot in their pleadings, in their sentencing memorandum to the court.

As a result of that,

The United States Department of Justice, or the Deputy Attorney General, the Attorney General, suspended them for calling January 6th a riot.

They resubmit the pleading without that language, this all in connection with the sentencing for what it's worth, which is a lot of a defendant.

who was previously pardoned by the president, who is now back in harm's way, if you will, by virtue of his being charged subsequently in another case, and thus the sentencing of him proceeding there in the District of Columbia, resulting in the suspension, likely the termination of two prosecutors because

of their describing January 6th in the way that they did.

Let's talk about another case that we have spoken about before, and this involves another prosecutor, this one in Manhattan in the Southern District of New York.

Her name is Maureen Comey, and yes indeed, she is the daughter of the former FBI director.

She is the daughter of the defendant in that case pending in the Eastern District of Virginia.

alleging that he made false statements to the committee of the United States Senate in responding to a question of one of the senators.

In September, you may recall, as we described on this broadcast, Maureen Comey, a federal prosecutor responsible for some major prosecutions there in the Southern District of New York, was suspended.

And because of that suspension,

Principally because her last name was and is Comey.

She has brought a lawsuit and the lawsuit of course is alleging that her her termination is is unlawful She is suing the Trump administration after she was fired again a couple of months ago Saying that this action of the Department of Justice firing her was in retaliation for

who she is and what her last name is.

She notes in the lawsuit that an independent agency is known as the Merit Systems Protection Board.

We typically have dealt with this kind of thing and that she would have followed that process, the Merit Systems Protection Board, the MSPB.

You're probably already thinking, I've heard that before.

And the reason why that's significant is because this is one of those independent agencies, apart from the White House itself, that was attacked by the president.

the president by virtue of his terminating members of the Merit Systems Protection Board, the leadership there, firing a member of it in particular in February because of that rendering the board unable and capable of legally functioning and therefore, and therefore when Marine Comey comes forward and attacks her firing,

She doesn't go to the Merit Systems Protection Board.

She files this lawsuit in federal court, accusing the Department of Justice of firing her without cause.

She's also asking to be reinstated.

It is significant.

It is significant that in the wake of that lawsuit being filed, the Department of Justice, and this is the big news, almost as big as the filing of the lawsuit itself,

Even while her father's criminal case continues to move forward, we'll talk about that in eastern Virginia, the United States Department of Justice is struggling to find someone inside the Department of Justice who can handle the defense of this lawsuit brought by Marine Comey.

And that is because, according to many people inside, and frankly viewing from the outside, that the Department of Justice is unable to identify people in the offices that would normally handle this, who have got the ethical capacity to do it, who have got the inclination to do it.

And in particular, looking around, apparently to this day, inside the Department of Justice for a unit to properly represent the government, the Justice Department, in this case defending the Department of Justice.

Office in the Brooklyn office in New York City decided

that they should keep this case at arm's length, didn't want anything to do with it.

Two of the people with knowledge of that matter, and speaking again to some reporters, said that the Brooklyn and the Manhattan office had close connections, including some personal ties among some of the lawyers.

And the fact that their investigations can be intertwined makes that Brooklyn office inappropriate to represent civilly the Department of Justice in this matter.

Both offices, as they said, work with the same FBI squads.

And as they note, Ms.

Comey would from time to time coordinate with the Brooklyn office prosecutors, effectively making them incapable, not legally and certainly not professionally, but ethically prohibited from representing the government.

There's another branch we've talked about called the Federal Programs Branch.

It's inside the United States Department of Justice.

It's not a U.S.

Attorney's Office unit.

It's inside Maine Justice.

And they're not handling the lawsuit either.

And it's interesting because while she's not seeking any money back, she wants other than her back pay and reimbursement for illegal fees, but she has asked the court to find that the Trump administration has acted unconstitutionally and illegally.

And because of that, the federal program's branch might otherwise have been the unit to represent the Department of Justice and defend against this lawsuit.

But once again, the federal programs branch apparently

moving very far away from anything related to this case does not want to represent the government in this.

Some federal prosecutors saying that under the Trump administration, there are entire U.S.

attorney's offices that are now avoiding cases like this, in part because it's difficult for individual prosecutors within those offices to decline to handle these kinds of matters.

Traditionally, prosecutors

in these offices could ask to be off a case with few repercussions, citing the subject matter if their personal situation conflicts or they've got some ethical concerns.

But early in this administration, again, this attorney general issued a memorandum.

requiring attorneys to do whatever was asked of them by supervisors or risk discipline.

And so that the easiest way, the connection of all of these various things that are being talked about in the public domain about the incapacity of the Department of Justice to represent, in this case, the interests of the Department of Justice, the way to bring this all together.

And the easiest way in the end to shield individual lawyers in these offices from the professional consequences of handling these kinds of cases is for the entire office to avoid handling the case.

That's what we apparently see going on here in and through the Department of Justice.

And as of this time...

This major lawsuit filed by Marine Comey, challenging once again her abrupt firing by the Department of Justice, saying it was retaliation asking for back pay, no further damages, but asking for a remedy that includes her reinstatement.

unclear who's representing the Department of Justice and the United States in this case the court asking now the Department of Justice to provide information about who the lawyers are who are going to be appearing in the court to represent the government in that matter a sign an indication of the challenges presented not only by the repeated terminations and departures of

attorneys throughout the Department of Justice, but also this larger issue related to the ethical requirements that attorneys have inside the Department of Justice and the concerns that they have about appearing on behalf of the government in a case like this, probably many of them looking at a case like this and saying,

I don't see the defense and finding from their own examination that it is indefensible and therefore in good conscience, in good ethics cannot represent the Department of Justice, the government in these matters.

It is a fascinating and troubling report on what's going on inside the Department of Justice these days.

struggling to find lawyers, to find attorneys who will handle the defense of the lawsuit brought by Marine Comey, alleging improper firing and seeking the return of her position in her professional capacity.

Let's talk more about James Comey, her father, again, in this probably related, but

structurally and technically unrelated criminal prosecution.

And that's pending in the Eastern District of Virginia.

It is significant, of course, that in that case in recent days, a magistrate judge, his name is William Fitzpatrick, repeatedly expressed his frustration with the prosecution, the criminal prosecution of James Comey.

He is berating the government in that case, as we reported before, talking about the failures of the Department of Justice to live up to its responsibilities.

When we come back, we'll talk more about what that magistrate judge did and significantly what another federal judge did in Alexandria, Virginia late this past week in connection with a challenge to the prosecution authority in and of itself.

All of that on Amicus, a lot of you.

This is Amicus, a lot of you.

My name is Jim Santel.

This is the final segment of our weekly weekend broadcast talking about now the criminal prosecution, yes, of James Comey, the former FBI director in eastern Virginia, and also, also in an interesting combination, the parallel prosecution of...

Leticia James, she is the Attorney General of the State of New York.

We'll talk about something that happened late this week in which the cases were effectively combined for the review of a major dispositive issue.

I prefer the break talking about the earlier appearances of the Department of Justice and

and the defense attorneys for James Comey.

In front of a magistrate judge named William Fitzpatrick, he is berating the Justice Department.

Here we do have lawyers who are showing up.

He talks about the fact that apparently the Department of Justice decided to indict first and investigate second.

That is a very stunning allegation made by a presiding judge.

And in particular, he is admonishing.

and berating and criticizing the Department of Justice attorneys for their apparent failure to turn over some communications, what's called discovery, that it had seized from a confidant of James Comey's.

His name is Daniel Rickman.

He is this law professor at Columbia University as a part of this internal investigation of leaks into the Russia investigation.

It's very complicated, and yet it's not.

the upshot of what the magistrate judge was doing was you've got to turn over information that enables the defense to defend the case.

That's the law.

That's constitutional.

That's legal.

And the judge, the magistrate judge, upset previously with the Department of Justice for failing to abide by its obligations in the prosecution against James Comey.

And there's another piece of this.

We've talked about this as well.

Both James Comey

and Letitia James filing these motions challenging, challenging the capacity of the assigned United States attorney, the interim U.S.

attorney, whose name is Lindsay Halligan, to bring this case at all.

You know the story on all of this.

She's brought in after her predecessor looks at these cases and says, there's nothing to prosecute here.

The president becomes angry, and the U.S.

attorney resigns, the president maintains.

He fired that U.S.

attorney, the U.S.

attorney, finding, based upon his own investigation, there's nothing here to prosecute James Comey or Letitia James Four.

Lindsay Halligan installed in that position as a subsequent interim United States attorney.

And she does within days, hours almost, presents to a grand jury.

indictments first against James Comey and then following that against Letitia James James Comey false statements in front of a Senate panel a judiciary committee

talking with him about representations that he made about the media.

As to Letitia James, you know this well as to an allegation that she is engaged in mortgage fraud.

And we've talked about some of the substantive problems with both of those cases along the way, the attorneys for both of them saying that because of the way in which Lindsay Halligan, this second interim United States attorney was appointed because her appointment again, 120 days.

was on top of the previous appointment of the prior U.S.

attorney, it is invalid.

Now the rules and the laws and the structure of statutes with respect to the appointments of interim U.S.

attorneys, all of that is very complicated.

And it's not worth even going down that rabbit hole.

Other than to say that by stacking these two 120-day periods, the allegation is the claim is by the defense attorneys that Ms.

Heligan had no authority

to enter into the grand jury, had no authority to seek the return of the indictments against either one of them, and indeed, in a stunning series of discussions, a hearing brought together by US District Judge Cameron McGowan Curry.

She is the judge who is now presiding over this issue about the authority of the US Attorney to prosecute this case and whether...

whether, if in fact there's no authority to do that, these cases should be dismissed.

The U.S.

District Judge Cameron Curry, while she didn't issue a decision in the wake of her lengthy hearing of just this past week, hours long, she said she plans to issue a decision by Thanksgiving or so on whether or not to disqualify.

to find that the U.S.

attorney there had no authority from her post, and it became fairly clear during the course of the argument in front of her.

that the judge here was at least very, very skeptical of the Department of Justice arguments for keeping Lindsay Halligan as the prosecutor in these James Comey and Letitia James cases.

And again, what was the argument all about?

It's involving this intertwined notion, these processes through which interim U.S.

attorneys

are appointed.

How does that happen?

Well, we know well that a president nominates U.S.

attorneys just like federal judges and marshals confirmed by the Senate when there are vacancies in those positions, whether at the end of a presidential term or during the course of a term, there are circumstances under which the president can appoint through the Department of Justice.

and interim U.S.

attorney, but you can't do it in multiple tranches, if you will.

And there, the judge said that there were some significant periods of time that were missing in all of this.

She also looked at the grand jury materials and also expressed questions about the way in which all of this was happening.

She says, it became obvious to me that the attorney general could not review the material because of some missing minutes during the course of the grand jury proceeding.

She could not have, she reviewed the witness testimony and all of that suggesting that this judge, again, who's going to decide on the issue of authority and what happened before the grand jury in the presentation of these cases to the grand juries there, whether all of this is legal or not.

Now, obviously, the Department of Justice taking the position that, yes, indeed, President has the capacity to do this, pushing back on this notion.

Judge, once again, being very skeptical about that and seemingly entertaining with some positive response what the defense attorneys were saying.

We may have a decision on this by Thanksgiving.

In the meantime, we'll continue to monitor this and many other cases involving the rule of law and justice here on this broadcast, Amicus, a lot of you.

Have a good weekend, everybody.