Ankush Khardori talks about the Merrick Garland DOJ and the (dim) prospects of real accountability for the Trump regime. Articles discussed include Merrick Garland’s Moderation to Excess and Who Will Answer For this Cruelty? Read more of his writings at khardori.com.
Then, Tony Norman talks about his recent article Fugitive Slave Act Redux: On the run in Texas … and America. Read more of his writings at the Pittsburgh Post-Gazette and follow him on Twitter at @Tony_NormanPG.
LIVE FORUM: Tuesday September 21 7-9PM ET
Abortion Rights Emergency Town Hall
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Co-Sponsored by Refuse Fascism and The RNL Show
Hosted by our pal & co-initiator @SunsaraTaylor
Music for this episode: Penny the Snitch by Ikebe Shakedown.
Sun, 9/19 2:56PM • 1:02:46
Ankush Khardori 00:00
The consequences of not taking a firmer approach is we’re just going to see some more elaborate version of this the next time… The lack of accountability, it’s very dangerous. It opens up our legal system and our democracy to serious long term risks.
Tony Norman 00:17
Stripping abortion rights from women, that’s just part and parcel of a program and worldview to make America great again, as it were… None of this is an accident. All of this is about restoring the hegemony of white power.
Sam Goldman 00:53
Welcome to Episode 77 of the Refuse Fascism podcast. This podcast is brought to you by volunteers with Refuse Fascism. I’m Sam Goldman, one of those volunteers, and host of the show. Refuse Fascism exposes, analyzes, and stands against the very real danger and threat of fascism coming to power in this country. In today’s episode, we’re sharing two interviews.
First, we’re sharing a conversation I recently had with DC-based lawyer Ankush Kardori, who has written at length about the Department of Justice’s refusal to prosecute Trump. Then you’ll hear from Tony Norman, a columnist for The Pittsburgh Post Gazette. I chatted with him about a column he wrote earlier this month on the parallels between the 1850’s Fugitive Slave Act and today’s Texas abortion ban SB8.
I do want to say something briefly regarding the so-called Justice for January 6 rally and what I feel are some wrong conclusions people are making. According to Reuters, police and media vastly outnumbered protesters at the Capitol on Saturday at a sparsely attended rally of approximately 200 people; supporters of those who participated in the violent fascist coup attempt on January 6 who were trying to overturn Trump’s election defeat. Some people are summing up that this was a flop – and it was – and therefore Trump’s influence is waning, that Trumpism fascism is losing steam. But how many times has this been said to the detriment of humanity, with a pandemic still raging, in large part due to millions delusionally refusing to take the life saving COVID vaccine? Is Trump’s influence really waning and the fascist moment shrinking?
With state legislators in Florida, Texas, Mississippi and elsewhere advancing patriarchal, immigrant-bashing, racist transphobic legislation, censoring the mildest criticisms of American history, is Trump’s influence really waning and the fascist movement shrinking? With the GOP purged of anyone disloyal to the big lie of Trump’s stolen election and dead set on undermining the legitimacy of any future elections, is Trump’s influence really waning and the fascist movement shrinking? We have no evidence thus far that his influence is waning, and lots that he’s retaining power within and over the Republi-fascist party and fascist base of tens of millions. This could change, that said, even if he as an individual becomes less influential, that alone won’t undo the fascist character and agenda of the GOP and the fascist movement in this country. It’s time to get real, folks. The threat still looms, and we still have a role to play.
Now, here’s my interview with Ankush Kardori. Today, we’re talking about an aspect of fascism. We’ve said before that when we’re talking about fascism, we’re not talking about the worst insult that we can sling. We’re talking about equality of change and how society is governed. And this is what’s critical that once in power once they consolidate rule, fascism’s defining feature is the essential elimination of the rule of law and democratic and civil rights. Fascism foments and relies on xenophobic nationalism, racism, misogyny and the aggressive reinstitution of oppressive “traditional” values. Truth is obliterated, and fascist mobs and threats of violence are unleashed to build their movement and consolidate power. Today, we’re talking about accountability, or lack thereof, the rule of law and what you do when you’re faced with a movement running roughshod on the Constitution and legal norms. To do that, I’m talking with Ankush Khardori, who’s an attorney and former federal prosecutor who specialized in fighting fraud. He’s written some really insightful pieces that you can read in the Washington Post, The Wall Street Journal, The Atlantic, New York Magazine, New Republic, Politico, Slate, many other places. And in fact, today I’m going to reference a couple pieces that he wrote for the New York Review of Books. Welcome. Thanks so much for joining us.
Ankush Khardori 05:20
Thanks for having me.
Sam Goldman 05:22
Let’s start with a topic that we’ve kind of discussed previously, but I think is worth coming back to. You wrote at length about the issues with the Department of Justice headed by Merrick Garland, touching on their failure to act to prosecute a number of crimes committed by the Trump regime, including the child separation policy, the Trump family’s financial misdeeds and corruption, the DOJ’s continued defense of Trump in the defamation suit brought by E. Jean Caroll; their suppression of a memo that Bill Barr relied on; his decision to not prosecute Trump for obstruction of the Mueller investigation; and perhaps most importantly, the lack of transparency around investigations of those who led the January 6 attack on the Capitol. While 500 low level people were arrested, there is no indication that any elected representatives, members of the Trump regime or other ring leaders are going to be investigated or prosecuted. So I’m just wondering, what is going on here? Why is this, and is there part of the “this” that we’re missing?
Ankush Khardori 06:28
I think if you’re looking at the landscape, and you’re unhappy, I don’t think you’re missing anything. I think you’re right to be unhappy and displeased. What is happening is an interesting question. If you think about why none of these things are happening, I think the general orientation that Merrick Garland has to accountability issues is looking forward, not back. That phraseology kind of got discredited after George W. Bush and the Obama administration — look forward and not back — so people don’t use those words anymore, but functionally, I think we are seeing a replay of that playbook with all of its attendant harms. And you know, I don’t think it’s much of a surprise, because I think Garland signaled this approach during his confirmation hearing. I wrote a piece for the New Republic about it because I was surprised and not happy about what he was suggesting. I think he has a very outmoded and incorrect view that anything that might generate political controversy is inherently “political,” and something you should be reluctant to do. I think that there are certain areas in which the Garland Justice Department has undertaken actions that are “political,” including filing the lawsuit against Texas, filing the lawsuit on voting rights in Georgia. I tend to attribute those actions more to the people around him, including Vanita Gupta, Lisa Monaco, and Kristen Clark, who leads the Civil Rights Division.
But I think on the key questions, the most high level questions, that pose issues of accountability surrounding the last administration, whether it’s people who were operating in the last administration as employees or cabinet members, or Trump itself, I think that Garland’s signal that he’s now following through on, a real reticence about rocking the boat in that area on the theory that doing so will prevent the country from unifying and turning the page and restoring norms and whatnot. These are all cliches by now, and cliches I didn’t like at any point in which they were being rolled out, but I think he told us what to expect. I think, quite frankly, I didn’t pick him to implement this kind of worldview. There was a recording shortly after the election in which advisors have reportedly said, basically, Biden doesn’t want his administration to be bogged down by investigations of his predecessor. And I thought that was a really unfortunate fact and sign and unfortunately, everything has flowed from that premise. I think it’s as simple as that. I hate to be psychological about it, and I wish I could attribute more high-minded kind of legal disputes or doctrines, but in my most recent piece for the Review I did my best to put the best face on it from his perspective and explain why I thought that was wrong. I think it’s fundamentally a significant reluctance to open those things up in ways that might upset Republicans, conservatives or people who supported Trump.
Sam Goldman 09:15
What you’re saying reminded me of two things. One was one of the things that I really appreciated about that piece in The New York Review is where you were talking about what the Obama administration and their refusal to have accountability, what door they left open for, in my opinion, fascist to walk right on through. Ankush wrote in this piece, “Most importantly, many people, myself included, believe that the Obama administration’s light touch in this area, most notably on the subject of torture, and the torture memos, facilitated the mayhem and vindictiveness of the Trump administration. The next Trump-like figure or Trump himself again could act in even more destructive ways if Biden’s administration cements a de facto policy of immunity for executive branch officials.” I thought that these stakes were made so clear. You could see what the legacy of not holding Bush accountable, what that meant for Trump and how freed up that whole regime is. First of all, they don’t care. They don’t care about the consequences. Then there are no consequences. They’re prophetic in that way. I think you spoke to something that I don’t think that we paid enough attention to, which was that Garland was chosen for this role. That is something that this show has not paid enough attention to. We are not, again, to be clear, calling Biden a fascist at all.
The road the Biden administration is trying to get people on is a road of calls for unity. That’s a big part of what they’re doing. And part of that is unity, with who? With people who don’t care about the rule of law. Unity with people who sought to hang the Vice President. Unity with people who want Nancy Pelosi dead, people who wanted to overturn a fair and free election. That’s what they want unity with; with white supremacists, unity with misogynists, unity with xenophobes. What that amounts to is, you’re only going to get reconciliation on the fascists’ terms, it’s not going to be on your terms. It’s going to constantly be you, the ones seeking the unity, making the concessions. We’ve learned in the past year, especially, why you can’t work with those who are part of what I would call the Republi-fascist party. They have no desire to collaborate unless you’re going along with their program. With that being the case or the reality as it stands now, I think that the stakes of having no accountability are extremely high. I was wondering what your thoughts are. I’m not asking you to be predictive, but from your legal perspective, what effects do you see for there being no consequences, let’s say for the January 6 coup attempt? I know you don’t have a crystal ball, but what are you thinking?
Ankush Khardori 12:16
It’s a very good question. I think what people like Biden and Garland would say on the question of who are we proposing to unify with, they would say it’s with people in the Republican party who we don’t regard as kind of irretrievable, misogynist, or racist or whatever. I think, regardless of the merits of that position, on so many of these things, we’re kind of in the land of controversies where I don’t think that there’s room for a real good faith disagreement. You take January 6, I think it was an appalling attack on our government. Fortunately, things were not even worse. But of course, there was violence, there was destruction of property, and people did die. And we came disturbingly close to a point in modern history that I don’t think we’ve seen before, where transition of power in this country was seriously in question. Right now, the Justice Department is prosecuting the people who were present, not everyone, but a significant proportion. I think they just exceeded 600 arrests. If you take a snapshot now, people say, well, this is just low-level people and that’s a problem. Some of the people who are more generous to the administration would say, well, just low-level people now, but you know, they need time to work their way up to more senior people within the hierarchies of some of these groups like Oathkeepers.
I’m a little skeptical of that. I don’t think it’s moving quickly enough on that front to give me serious hope that we’re going to see much movement in that direction. But who knows? To my mind, we already have enough information to conduct an investigation into Trump’s conduct on that day, and those are the people who are in the White House on that day. There is no working your way up into that part of the misconduct; the hierarchy of wrongdoers. You can just start there. If you think about sort of a drug conspiracy case, you might have a bunch of low-level people who are dealing drugs. You can go round them up and prosecute them. If you happen to get the drug boss on a wiretap, you don’t just say, well, let’s hold off and see if we can work our way up there, build our case and get to him eventually. You say, okay, now we have enough evidence to go after this person or at least to investigate this person. So I am very skeptical we’re ever going to see much in the way of an investigation into Trump’s conduct or into the people around him in the White House. Obviously, there are very significant practical, legal, political questions around what, if anything, you might do, but I think that the event was significant enough that it warrants a real look into, if not incitement, then obstruction of Congressional proceedings, including on the part of Trump.
We need to know what was happening in the White House that day. We still don’t actually have a full account of what he was doing that day. Republicans in Congress like Jim Jordan, Matt Gaetz have been extremely cagey. Now they’ve admitted that they spoke to him, but they won’t really say what about. I think that strong suggestion, to put my former prosecutor hat on, is that something very problematic was said on those phone calls. The consequences of not taking a firmer approach is we’re just going to see a more elaborate version of this the next time someone wants to pursue this approach. Maybe it’s not going to be quite as overt as a physical siege of the Capitol, but you have already seen that they’re putting the pieces in place throughout the country for a similar result to be achieved through non-democratic means that are non-violent. That will look less scary, but will get us potentially to an election that is itself illegitimate. In a sense, that’s not representative of our democracy.
Sam Goldman 15:53
Can you give just an example? I’m thinking of the sham audit in Arizona? Would that be like an example of what you’re talking about?
Ankush Khardori 16:02
I’m thinking more of what’s happened in Georgia, where they have restricted the ability of state election officials to administer elections and have the final say on the administration of elections, and have shifted more of that power to the legislature. This is setting up a situation where, if there were some suggestion, even manufactured, of vote fraud — and there were a lot of manufactured suggestions of vote fraud in 2020 — you could have a situation where the legislature in some of these states say, well, we’re going to set a different slate of electors. To put things in enough uncertainty or confusion that we may have a situation where we don’t have a clear sense of the results of the election through the ordinary processes that we used to follow; a vote in every state. Whoever has the most votes by law, the legislature has decided that the electors who are sent to Congress will follow the majority vote. That is now being thrown into some doubt, by some of the machinations that we’re seeing, and also by some of the kind of softening of what would have been obstacles to at least democratic misconduct.
January 6 is bad enough, but even before January 6 happened, I was very concerned and thought an investigation was warranted, when I heard the call to Brad Raffensperger, where Trump says “I need you to find X votes.” To me this was a very strong indication that he was suggesting that Raffensperger should commit electoral fraud. I’m very troubled that nothing is happening on that front. At least on January 6, you could say, some people are being prosecuted — they’re low-level, whatever — so that exact thing probably won’t happen again. But we seem to be setting ourselves up for a situation where something like what Trump was already attempting before January 6, where he got thwarted in Georgia by Raffensperger, and he didn’t really have traction in states like Michigan and elsewhere, where there just weren’t enough Republicans supporting him, that seems to now be changing. I think that DOJ’s refusal at this point to look more closely at that creates very serious dangers for the future.
Sam Goldman 18:05
I was thinking back to the Merrick Garland piece that was in that New York Review of Books. You wrote something that I thought really captured the problem. You wrote, “Garland’s evident wariness of pursuing the allegations of misconduct from the last administration, including those against Trump, for fear that political disruption could have grave consequences for the future. Its premise is a pragmatic and political calculation, not a principle. It’s an easier position to adopt if you have a membership in the political class, which does not incur the consequences of its worse decisions.” I was thinking about another piece you had written earlier about child separation and the child separation policies. Just thinking about people so removed — they’re not going to be ripped from their parents arms and put in a detention center, they’re not Muslim and going to be banned from entry in the in the country — how removed, they are, in a certain sense, that it won’t affect them. I was thinking about how it’s more and more clear that the GOP and their rabid base are on a quest for revenge. As you were saying, it may not be as overt in the violent sense, but through voter suppression, gerrymandering, all those things, really seeking to demolish any opposition.
We’re now in a situation where I am afraid that Trump is going to be the GOP presidential candidate in 2024. He seems to still have that cornered. So I think your point about the consequences; I don’t think that there’s any reason why people aren’t screaming about why this isn’t happening. There’s no demand. Why do you think it’s so silent among the legal community? I understand why a lot of people don’t want to hear about Trump. I get why everyday people may not want to have that conversation. When you think back to November, you think back to December, you think back to January, people were writing and people are seeing this is a danger. This is a problem. This is an issue. We’re a little worried, and then nothing.
Ankush Khardori 20:11
Okay. You’re right. I think when you talk about the legal community, that’s an apt description of the kind of progression of thought, if you will, to maybe dress it up a little bit. I break it down into a few different sectors. You have the kind of legal community writ large, which is largely Democratic-leaning, and that’s just lawyers; lawyers in the world. Then you have people in the political legal space, right, people who are Democratic lawyers, people who are Democratic appointees in the prior Justice Departments and so forth, as well as the kind of people who are legal commentators. I think you’re more talking about the legal commentator kind of group, understandably, but it’s true of the broader Democratic legal community as well; people who regard themselves as progressive lawyers. I wish I had a better explanation, except that Biden won. For a lot of those people, that was their objective, and unfortunately, I think for a very small number of those people, and some very prominent people, being anti-Trump was their way to prominence in the media world. You see some of these people still popping up every now and then to write things about how Trump ought to be prosecuted for this, that or the other because that gets you tweets, that gets you on cable news. But they’re not really writing about the Garland Justice Department, or if they are, they’re writing very complimentary things.
One very stark example, actually, one that I found quite disturbing, was the E. Jean Carroll case. When Barr intervened on behalf of Trump in the E. Jean Carroll court case, there was a huge uproar among liberal legal commentators saying it was outrageous, unprecedented, and so forth. I always take a slightly more muddled view, which is I thought it was bad, but I also thought the law was not open and shut. I think you could see your way to an argument going in either direction. I think you should just do the right thing, which is in that case, not intervening on behalf Trump, but this was Bill Barr, so he did the wrong thing. But you had a lot of lawyers saying this is unprecedented. This legal piece position is absurd. It’s ridiculous. And on and on. Then, of course, the administration turns over, and Garland essentially endorses that position or doubles down on it. All of a sudden you heard it, but much more muted assessments of what Garland had done, even though it was functionally the exact same thing Bill Barr had done. Lawyers can dress it up and say he was just continuing an appeal. And he may not have initiated the same legal position, but regular people don’t care, nor should they.
Sam Goldman 22:39
My understanding, correct me please, is that he wasn’t required to do anything about it. He wasn’t required to say anything to touch that at all.
Ankush Khardori 22:47
Well, there was a pending appeal, but he could have just withdrawn the appeal very easily. He would have had to do something. Withdrawing an appeal would not have been like some crazy legal procedure. It happens all the time. But not in a case like this. But again, these are procedural niceties that regular people shouldn’t really care about when they’re assessing what their Justice Department is doing. I saw that and I saw the reactions from some of the same people who were very, very critical of Bill Barr. A lot of those people revealed themselves. I hate to say, if people who were more motivated by partisanship then by principle it was was very revealing. I wish I could offer up more of a defense for some of those people. I think some of them you’d like, Ellie Hoenig at CNN, for instance. I thought he actually ended up being critical. Give me an example: Preet Bharara did almost a complete 180 on this position. Now, he’s someone who fits in not just the media space, but the Democratic legal community. He was appointed under Obama to be the US Attorney in the Southern District of New York. It’s been widely known that he’s had higher aspirations for political office or more significant appointments in Democratic administrations. I don’t think there’s some high-minded defense of what I would call these flip flops. That’s sad. You have people like Dahlia Lithwick, who have been excellent, right, as critical of Merrick Garland, as they should be, people are standing on their principles, but a lot of people have not been. It’s very unfortunate.
I don’t think these issues should be team issues where we just take sides depending on what’s politically expedient, and what’s better for our party that we happen to support. A lot of people in and around DC, particularly the legal communities, were friends with Merrick Garland. This was a widely known fact. I think it helped smooth his ability to get nominated for the position and to get confirmed. I had come into contact with people who are longtime lawyers in the nonprofit space or in Democratic circles and meeting people who just know the guy. A lot of people were saying in the early months when some of these decisions were unfolding, including the decision to continue defending Trump in the general case, well, he just needs more time to get situated. We’ve got to give them time. We can’t just pile on. We should be mildly critical and strategically prepared. That’s not in my view what our job is, as someone who’s supposed to be helping the public understand these issues.
I think there has been a bit of a shift in the Justice Department since particularly the E. Jean Carroll case. It was hugely controversial. It was a decision that really struck a chord with the public because it was such a stark case and one that the public had followed, and that had been prominently covered in the media. Since Refuse Fascism has existed, we’ve been working in a variety of ways to mobilize people to see their own power. When you’re faced with a fascist regime, like we faced with Trump, there’s a need to work outside politics as usual, to not rely on the norms that the regime totally disregards. In 2020, as we faced the real possibility of some sort of coup from Trump, a network coalesced to organize to “defend the electoral process,” but along with that it kept people off the streets. In fact, it became a defining part of their job. And this was a Democratic coalition. It was precisely the tactic that we were arguing people needed to take was to get into the streets. Now, thankfully, Trump did leave, Biden was able to take power. But I think we’re seeing the lasting danger of the fascists retaking all branches of power. As we spoke to in different ways, they’re emboldened, they’re stronger, if anything, by the lack of consequences for what they’ve done. I was wondering how you see the pragmatic (for lack of a better word) or maybe a traditional political approach, how it might deliver some short-term results in some situations? But when faced with a political force that doesn’t play by the same rulebook, it won’t meet the challenge. Is it delivering short-term results? I haven’t seen many. I’m at a point where I don’t…
Sam Goldman 27:00
…I was dying to give that a benefit of the doubt. It may be there’s a short-term result that I don’t see like, maybe there is.
Ankush Khardori 27:09
I’m increasingly unsettled by where we find ourselves. It would not take much, in fact, there’s a very good chance that if things fall into place in a certain way, for Republicans to hold all three branches in 2024. So far, the Biden administration, to the extent it was supposed to vindicate this theory of legislative unity, has not delivered much of anything. They delivered a stimulus bill that, quite frankly, probably would have passed under Trump, and was held up in part because Democrats wanted him not to get that victory before the elections. So that’s Biden’s one big win so far. Right now there’s a significant uncertainty around whether this infrastructure deal will go forward, whether the reconciliation deal. Who knows? Hopefully, the right legislative things will happen. But I think we’re getting very close to next year, an election year, in which case, things are going to more or less grind to a halt.
On the question of legal issues more narrowly: is this delivering any short term results? I honestly don’t know, because it depends on what you want to achieve if you are Merrick Garland. If your hope is to restore confidence amongst some group of people in the Justice Department, then maybe you’re doing that, but it depends on who you’re talking about. I don’t think he’s going to all of a sudden persuade a bunch of conservatives who supported Trump that they were misguided or that the next time that they hold power, they shouldn’t do a family separation program, if that’s what they want to do. To the contrary, I think he’s made it more likely that something like that will happen again, because you take the family separation policy, and in particular, that requires a significant number of people within the department to cooperate with that program. And nobody has been disciplined. I think that’s very, very striking. It sends a message–to everyone in the department, everybody who’s there right now, everybody who left, everybody who hopes to go there–that essentially, if you just do what you are told you will be fine professionally. You will not get dinged once the politics turn around, and people who come in and have better morals or ethics come into power. They’re gonna say, you know what, you were in another administration. We don’t want to “politicize the department” by looking at the past. I think what you’re doing is de facto immunizing those people for misconduct they did. I don’t think those people should go to prison by any means. But I do think we should know who they are. They should be publicly reproached. They should be subject to public disapprobation, not violence or anything like that, not imprisoned. But they’ve been insulated from even the barest kind of consequences for going along with something that I regard is among, if not the most straightforwardly immoral, program of the Trump administration.
So we have short term stability, which is fine. I’m more worried about the long term issues because a lot of people, myself included, pointed out that this seems to be a continuation of Obama’s handling of the George W. Bush administration. One of the things that’s really remarkable about that is, it wasn’t that long ago. And look how much things accelerated between the end of the Bush administration 2008 to the Trump administration 2016. In that period of time, I don’t think it would have been upset about the impunity all around. I would never have predicted that we would have seen something like the Trump administration in like 2010 and 2011. We cannot predict how these things will unfold. The approach that we’re seeing right now, the lack of accountability, it’s very dangerous. It opens up our legal system and our democracy to serious long term risks. Let me just say one last thing, which is that Garland and his defenders like to believe that they are not playing politics, or that they’re trying to avoid politics by not getting into it. But they are playing politics, they’re playing intergenerational politics. They’re playing politics with the future. All they’re doing is offloading consequences for our democracy now onto the future. And they may not be here to receive the dividends of what they’re doing now, but someone will. And so it is a form of politics.
Sam Goldman 31:11
I want to pivot the conversation to talk about abortion, to talk about the future of Roe v. Wade, the future of legal abortion. So I’m gonna do it a little bit backwards, I want to first get your take on the DOJ’s lawsuit against Texas. For those who don’t know, the Department of Justice has a lawsuit against the vigilante abortion ban in Texas. Some people are thinking that’s gonna make a big difference. I will say that it stands out compared to their inaction on other fronts, albeit I personally don’t think that it can do much. But I might be wrong. So I wanted to hear a legal perspective. You could just comment on the lawsuit, what it is, and where things may shake out around that.
Ankush Khardori 31:58
Your instinct is right. I wouldn’t expect much to come of this. I still do think it was a worthwhile thing for them to do. I’ll bring it down a little bit further. This is one of those things that indicates why it’s helpful for people to be vocally upset about things and to articulate their unhappiness with particular decisions. For instance, I don’t think we would have seen an intervention like this, had we not seen the public outcry and even people in the media, being upset about things like the E. Jean Carroll decision, writing things and saying things and criticizing him. We’ve seen a little bit of a pivot since that period of time. This is one of the things that’s grown out of it. I still don’t think we’re anywhere near where we should be. But I want to try to give him and the department credit where it’s due. The lawsuit is a lawsuit against Texas, essentially, on the theory that the Texas law violates the Constitution and adopts straightforward that under Roe and Casey SB8 is unconstitutional. It articulates claims on the Supremacy Clause of the Constitution, a claim that the state law has been preempted by federal law.
Basically, the theory of the lawsuit is that the federal government in the ordinary course has a bunch of programs, a bunch of federal employees who would be open to sanctions or lawsuits under this law. For instance, one of the examples they use is people who work in the Bureau of Prisons, because prisoners might get pregnant and Bureau of Prisons employees may be obligated to give that woman advice or make abortion services available to that person. The lawsuit says in that instance, SB8 directly conflicts with those federal legal prescriptions. So should they win this lawsuit? Yes. I mean, I think they should. Will they? I doubt it. They should because I think if there’s an unconstitutional law that is depriving people in real time of their constitutional rights, it cannot be that there’s some way to game the system such that that law just stays on the books. It’s disingenuous. The structure of SB8 attempts to remove the state from enforcement of the law by making private parties the enforcers. People have described it as clever. I don’t think it’s clever. I think it’s disingenuous, I think it’s obnoxious. The only reason it looks like it’s clever is because it had a receptive audience among the judges who weighed in in favor of it. Those people wanted to do it because they liked the laws they had an easy enough way to let the law remain in place for the time being. Now, there are other mechanisms to challenge the law. But as you know, it’s already had significant chilling. It is accomplishing now what the law set out to accomplish, which is to prevent abortion providers from making their services available. I think it’s bad for our government. It’s bad for our democracy to implement a law that impinges upon people’s federal rights in a way that cannot get judicial review. I mean, if the United States cannot sue to invalidate a law that is federally unconstitutional when no one else can, that’s a ridiculous set of affairs.
Sam Goldman 34:45
I think that whether something’s legal or not matters immensely. It’s an incredibly important conversation that we continue to have because so many lives are at stake. When we talk about Roe v Wade and you’re saying it is still legal. it is. And yet it isn’t. In Texas, we now have pre-viability banned abortion in the state of Texas. To me it is totally absurd that a state can have totally different laws absent the rest of the country and that there is no recourse. It boggles my mind.
Ankush Khardori 35:21
You could not have crafted a law that is more designed to tee up Roe versus Wade. It is deliberately at odds with (Supreme Court decisions – ed) Roe and Casey. It was structured the way it was structured on purpose. And it was structured in a way that is designed to avoid judicial review. Now that part of it I don’t think was a foregone conclusion. It happens to have been a foregone conclusion because they passed it at a time when they happen to have the right number of votes on the Supreme Court as they pass this law. Before Ruth Bader Ginsburg passed away, it would have been swatted away, I think fairly easily.
Sam Goldman 35:52
So you have SB8, and then you had the Supreme Court not intervene, knowing full well, that it was going to see Dobbs v. Whole Women’s Health. (The Mississippi challenge to legal abortion – ed)
Ankush Khardori 36:05
I think what you’re getting at is it would have been very easy for them to block the law. You simply wait to resolve Dobbs, and I want to overrule Roe versus Dobbs. They can do that in the next six to nine months or whatever. It’s not that far away. If that’s what they want to do, then just do it. Let’s not play games with holding the country in suspense. If they want to overrule Roe and Casey, they should just do it. I do think that makes the whole thing quite a bit more remarkable, because they already have a vehicle on their docket to do whatever they want to do with the Roe and Casey precedent. We may see something fairly dramatic or we may see something that is a significant change that they try to make look as undramatic as possible. And I think that kind of tells you a lot that they didn’t just do that.
Sam Goldman 36:49
What does it tell you?
Ankush Khardori 36:51
I think at best, a majority of the Supreme Court is indifferent to the consequences of SB8 in Texas. This is a law that in real time is imposing consequences on people. It tells you that if you are someone concerned about Roe or Casey in the future, if you weren’t already concerned, you should be concerned,
Sam Goldman 37:14
I think in the Supreme Court remade with a fascist majority by Trump with federal courts, reshaped by Trump in a similar fashion, we’re seeing really the long-standing damage from the dead hand of Trump, if you will, at work,
Ankush Khardori 37:34
You know, the practical effects are bad enough. Constitutional effects are bad, but it also it is just made worse, on a personal level, at least to me, that you have Brett Kavanaugh there who shouldn’t even be on the Supreme Court. He never should have been confirmed. You have Amy Coney Barrett? Who’s there? Anyone who had taken Ginsburg’s seat in the way that it was made available, I think definitionally does not belong in the Supreme Court. I include her in that group. It’s made worse by the unseemliness of the ways in which this majority in which the Trump wing of the Supreme Court came into their positions.
Sam Goldman 38:06
How they came into their positions, and then what they’ve done to wield them since then, going back to the Justice Department and their attempt to act, let’s say in response to SB8. I think it was Katie Benner for the New York Times shortly after this happened. She just stated the truth. She said “the Justice Department has little power to combat Republican state legislatures that were emboldened by the conservative shift in the federal courts during the Trump administration in Texas. The particularities of the law and the slow pace with which lawsuits went through the judicial system will make it difficult for the Department to protect abortion rights in Texas in the near term. The conservative majority on the Supreme Court could make it nearly impossible for the Biden administration to protect abortion rights nationwide in the long term.” And while she says long-term, I’m like, huh, clock’s ticking really fast. They’ll see the Dobbs case in December, make a decision in June, probably it’s not that long. For me, I think that it brings home the point that no savior is coming from on high and all of us who want our fellow human beings to be treated as human beings and not incubators, now is our time to wage a political fight. Just to be clear a political fight, because lives are hanging on the balance. I appreciate you taking your time with us and sharing your perspective and expertise. So definitely go to the Show Notes. Check out the link to Ankush’s site, and you can read more from him. Thanks so much for joining us.
Ankush Khardori 39:40
Thanks for having me.
Sam Goldman 39:42
To read more from Ankush and sign up to get his latest visit Khardori.com.
Dr. Alan Braid, a physician who provides abortion care in San Antonio, Texas, wrote an op ed published by the Washington Post September 18. In it he shares his defiance of the fascist Texas abortion ban, along with his experience of providing abortion care for 45 years, he wrote, “a new Texas law known as SBA, virtually banned any abortion beyond the six week of pregnancy. It shut down about 80% of the abortion services we provide. Anyone who suspects I have violated the new law can sue me for at least $10,000. They could also sue anybody who helps a person obtain an abortion past the new limit, including apparently, the driver who brings the patient to my clinic. For me, it is 1972 all over again. And that is why on the morning of September 6, I provided an abortion to a woman who though still in her first trimester was beyond the state’s new limit. I acted because I had a duty of care to this patient, as I do for all patients. And because she has a fundamental right to receive this care.” Dr. Braid is a hero. We have to marshal his courage, conviction and fighting spirit into the streets in our millions to defeat this fascist assault and stand up for all those in need of abortions, and all those who provide them.
Tony Norman and I talk about this and much, much more. Give it a listen. I’m speaking with Tony Norman, columnist for The Pittsburgh Post Gazette, about a really powerful article he wrote earlier this month: “Fugitive Slave Act Redux On the Run in Texas and America.” He draws the link between this vicious new law, SB8 and the Fugitive Slave Act that led up to the Civil War that finally ended slavery in the US. I’m so glad to have him on. Thank you, Tony, for joining us.
Tony Norman 41:45
Thanks for inviting me, Sam. I’m looking forward to this conversation.
Sam Goldman 41:48
So let’s start. Can you share with our listeners a little more about why you think this is an apt comparison of SB8 to the Fugitive Slave Act, based on the history you know. Why you say the bounty poster needs little updating. There’s one part of your piece that I underlined. Yes, I print things out and I underlined what you wrote: “Translation: Texas wants a segment of its armed population of anti-abortion fanatics to form the equivalent of modern slave patrols. Texas wants a deputized population of vigilantes to monitor and drag down women who will be disproportionately poor, Black and Hispanic, and make their support systems literally pay for their abortions by being fined and prosecuted for their compassion and goals. So what’s with this comparison? Why should we make it?
Tony Norman 42:33
For me and it may be my bias–because you know, I’m African-American–and I’m particularly sensitized to issues of race and class and inequality in this country. Whenever I see any draconian law, and this is probably the most draconian law of the year other than the laws that disenfranchise voters, whenever I see a law like this I know there’s a precedent for it, because nothing happens in this country–nothing happens in America–that hasn’t happened before. It’s like history’s greatest moebius strip. We’re just going round and round in the same figure eight track that we run through American history. So I knew as soon as SB8 was proposed and signed into law by the governor of Texas, that there was a precedent, and the first thing that came to mind was The Fugitive Slave Act because of this particularly onerous section, where ordinary citizens will become vigilantes, that they would be deputized into doing evil things. The state in the case of SB 8 cannot be sued because the enforcement mechanism is being done by ordinary sovereign citizens, as it were.
Now, where some might quibble about the comparison, The Fugitive Slave Act of 1850 makes everyone, every marshal, everyone in law enforcement, all the judges, the whole legal system has to make sure, even a free has to see that Blacks are returned back to slavery. They’re runaway, so it didn’t matter that they ran to a border state that was free from the South. Enforcers could deputize enforcers, ordinary people who decide that they want to be freelance enslavers could cross the border. Or if they already lived in that state, could approach someone that they believed was a slave, take that person into bondage. Don’t have to worry about habeas corpus, don’t have to worry about trial, and basically on the basis of their word, because the Black person’s word did not have any legal force. Jjust on the basis of their word they could take someone into bondage, someone who may have happened to have been born free and wasn’t even someone that had run away, but had a business and a family and so forth. Like that movie 12 Years A Slave–I mean, that’s like a perfect example of someone who is minding his own business. And he’s taken into bondage on the basis of an enslaver’s word, a freelancer’s word.
I thought, huh, here, I’m an Uber driver, and I’m driving a woman to a woman’s clinic for whatever reason she wants to go to that women’s clinic. Maybe it’s to get an abortion, or maybe she just needs a checkup. Or maybe she’s doing her annual checkup. But if I’m a snitch in Texas under this law, and I have reason to believe that she’s getting an abortion, I get a $10,000 bounty in court, because I’m going to bring up my suspicion to the court and the person that I’m accusing is going to have to defend themselves, the clinic and the Uber driver. Regardless of the outcome of that, and we know what the outcome is going to be in Texas, I’m ahead $10,000. If that isn’t the most evil and diabolical thing one has ever heard, I don’t know what is. And this all happens if the woman finds herself pregnant after six weeks, and then the enforcement mechanism kicks in because then she is breaking the law no matter what. It doesn’t matter whether she’s been raped. It doesn’t matter whether it’s an act of incest, she is a criminal. Ironically enough, she is not subject to her arrest herself. The law hasn’t gone that far yet. Soon as it does, we’re basically to Margaret Atwood territory and Handmaid’s Tale.
But that day is coming because what we have right now is something that is evil adjacent. It is familiar to us here in America. The fact is, the reason that these Texas legislators felt so comfortable with such a blatantly unconstitutional law is because all they had to do was dust off the history books and see, well, how did we do this kind of outrageous stuff in the 19th century? And how did we do it in the 18th century for the first Fugitive Slave Act? So it goes on and on and on. You know, the more things change, the more that they stay the same. That’s why it struck me as very obvious. And when I was writing that, I purposely googled to see if anyone else had come up with it. I got really nervous, because I didn’t see anything. And then I thought, well, you know, I’m just gonna write it. My piece ran on September 3, and then shortly after that, I started seeing other pieces. So I was quite relieved that I wasn’t just completely out in left field by myself with this idea.
Sam Goldman 47:25
That was really helpful. Thank you for that, Tony. And I’m glad that more followed your lead in terms of digging into this comparison, and why it is an apt one to be making.
Tony Norman 47:35
Yes, I really do think it’s apt because it’s all about the removal of agency from the person who is basically the object of the law, and then it gives agency to complete strangers. That was also very infuriating about this. You could just have a suspicion that someone is having an abortion and all of a sudden, all sorts of things start happening. The criminal justice system is immediately engaged. That’s what happened under those Fugitive Slave Acts. Imagine 1856-57 and you’re a free Black in Pittsburgh or Philadelphia, or somewhere in Connecticut or New York, and a posse of five white men arrive at the place you’re renting or your property. They have a document that says that you are XYZ and that they have been enjoined to take you back into bondage in Virginia or South Carolina. Whether you’re a runaway or not, you know, you’re in the middle of your life, and these five men come to you and they will take you by force. If you have white allies or Black neighbors, they have the weight of the law on their side, and they can call upon the law of that city, that district or whatever to help them arrest you. Now here in 2021, they’re even more clever. What they do is they basically just turn all the people in Texas into the Stasi, the East German secret police. Look at your neighbors. Your neighbor involved in an abortion? You’ve got 10 grand coming to you if you can prove that that person is aiding and abetting in an abortion. That’s even more sinister than what we had in 1851.
Sam Goldman 49:21
You made a connection between the gun and voting and abortion. I’m wondering if you could speak more to what you see as the connection between in Texas the guns are everywhere. Abortion is not and you can’t vote if you’re Black, right? What’s going on?
Tony Norman 49:39
Exactly. At the risk of sounding paranoid, I think that the Texas Legislature knows exactly what it’s doing, and it’s almost like a soft succession on their part. They want to establish the fact that Texas is going to be a different kind of state than any other and that it’s going to be much more patriarchal and violent. It wants to be the opposite of what it sees in blue America. I don’t know how your listeners feel about this, but I think that the right to abortion in Texas has been effectively nullified. It has been effectively nullified. Texas wants to re-enforce the fact that there’s a new sheriff in town, a new way of looking at the law is here. And if you don’t like it, Supreme Court, we have guns. In fact, everyone can carry guns. If you don’t like it Washington, when you look at us, we all have guns. There’s nothing you can do about it. Our legislature has spoken. And we’re not going to let this state turn from red to blue or from purple to blue. We’re going to make sure that only the right people are able to vote. We’re going to make sure that we can keep this minority government going, even if it collapses in the rest of America, we’re going to make sure that white patriarchy, white power, white supremacy rules until end of the United States or the republic or whatever you want to call it. We’re going to make sure that we’re on top.
I think it’s that blatant. I think it’s that bald, and I think it’s that in your face. I think guns, disenfranchisement, and stripping abortion rights from women, that’s just part and parcel of a program and worldview to basically make America great again, as it were, as in pre-Civil War great, antebellum great. That what’s happening, what we’re seeing before our very eyes in Texas. We’re gonna see it, repeat in lots of southern states and maybe a northern state or a Midwestern state or two. W’re going to see a very revanchist orientation towards the law, aided and abetted by a compliant Supreme Court that believes that an originalist vision of America with minimal rights for people, especially minorities and women, is really the way to maintain American greatness. A lot of people will say, well, Tony, you’re just being hysterical. Again, I completely buy into the notion that white supremacy is very self-conscious and that it knows what it’s doing. None of this is an act. All of this is about restoring the hegemony of white power. If you loosen the gun laws, you make them even more liberal than they already are. We could just basically walk into any classroom and kill as many people as you want. I mean, children. You can walk to any church and do all this and basically be rebuffed by the legislature if you try to do anything to address that. The legislature, each state or the the Congress of the United States, if the law can get to the point where you can just open carry rapidfire AR15s, what does that say? Then you combine that with combustible politics of abortion? If someone doesn’t die in the next year, or until the Supreme Court rules on this definitively, I will be absolutely shocked. I expect people to get killed. I bet he will try to enforce SB 8, and someone is going to get killed trying to enforce it, or they’re going to kill somebody trying to protect them. Someone is going to get killed, maybe a lot of people, and I think that this is what is going to happen next. So that may be a really dark vision of the future, but I really think we’re heading in that direction.
Sam Goldman 53:22
I think you’re speaking a lot of truth. We also know that when abortion isn’t legal there’s vigilante violence. Remember before QAnon, before the fascists’ day, the January 6 terror? Before all that there was the anti-abortion movement.
Tony Norman 53:37
Right, those doctors…
Sam Goldman 53:39
…and they killed abortion providers for decades. They bombed clinics. It is a violent movement. This is the tried and true Christian fascist movement. Their operations were planned in advance in other states. Their sole goal is to hunt down women. They’re already recording license plates and all of that. I think you’re absolutely right about the likelihood that there will be violence and death. There’s also the reality that we know that when abortion is illegal people die. People die from attempting to preserve their life and bodily autonomy. I think that there’s a real danger there as well. I wanted to ask you a final question. As we close out. I’m thinking about the way you ended your piece. You wrote, “If we’re lucky, the events in Texas will force the Democrats to take the Gilead-style theocracy seriously. The kind of people who made the original Fugitive Slave Act possible are still with us. They don’t intend to go away quietly.” I am wondering why you feel the Democrats haven’t taken the threat seriously.
Tony Norman 54:39
It’s the real politique of the life of the elected official, especially Democrats, who unfortunately tend to be bad tacticians. They don’t have as much imagination as their right-wing counterparts, who are always thinking decades ahead. They always have a long-term mission. Right now, they’re flooding the school boards. They’re running for the lowest municipal jobs in every city. They’re basically flooding the zone of the administrative government so that the next time there’s a controversy about elections, they will be all the election officers, right wingers, conservatives, Republicans and Democrats will be like, well, okay, we’ll just play by the rules, whatever they are, even if the rules are established by folks who are fascistic to say the least. The Democrats of today, even many of the liberals would be considered the moderates of yesterday, moderate Republicans, in many ways even Barack Obama. I love him but you know his policies were indistinguishable from a Republican from the 1970s. He wasn’t particularly bold.
Democrats tend to suffer from a lack of imagination and a lack of boldness. They’re constantly in the process of getting rolled and intimidated by whatever the latest right-wing assault is. They don’t fight enough, they don’t really stand their ground. Whether you come from a purple district, or you’re just hanging on by your fingernails in the red district, if you’re not talking about the issues that really, really matter, in terms of democratic progress, then what are you doing there? Why in the world should people feel any obligation to just sort of help you get reelected with some sort of vague abstract strategic advantage that will put the Democrats or the Republicans? People are disgusted and disenchanted with voting, because they realized that when they voted for many Democrats nothing changes. That’s not to say that they shouldn’t vote. I’ve written tons and tons of columns about the importance of voting, that your obligation as a citizen is to vote. But I think it’s this SB8 in Texas and the threat of it being reproduced in other states that’s going to galvanize people to come out, because then they will realize that Well, shit, these Democrats are just twiddling their thumbs, I got to get out there. And I got to do something to make sure that these fascists don’t do the same things in Pennsylvania that they’re doing in Texas, that they don’t do the same thing in Ohio, they they did in Texas, etc.
Sam Goldman 57:15
Well, I appreciate your perspective. I hope that people take this as a lesson. I’ve repeated this on the show, and people are probably tired of hearing me say this, but there was a consequence of people not acting in the way they needed to during the Trump years, that millions didn’t actually listen. And I’m not saying we were right, you didn’t listen, boo boo boo on you. I am saying we were calling on people to take actions they were not comfortable with that meant not relying on a political party in power to take care of it– to go right in the street. Like every other time we won victory. You can say things, in my opinion, to go into the streets and say we’re not going to tolerate this. We refused fascism. People have outed tyrants all around the world. And we should have done it here. We should have planted ourselves nonviolently, yes, but planted ourselves in the streets and kept coming into the streets and stopped it.
After RBG’s death and the GOP ramming through Supreme Court Justice Christian-fascist Amy Coney Barrett, there was a price that we paid for people, including the Democratic non-profit industrial complex that kept people off the street; that they didn’t go out and demand that abortion should be protected; that every women’s organization didn’t actually go out and protest in front of the Supreme Court. There wasn’t massive nonviolent civil disobedience, and there was a cost of that. That cost was being paid. We’re paying it bitterly now. And it’s gonna be a deadly cost. We’ve got to learn that the Democrats, and I mean, no disrespect to people involved, but look, the more that people try to change what the Democrats are, which in my opinion, is a ruling class party that cares more about the stability of their system than they do about the interests of humanity, the more that people try to change who the Democrats are, they’re going to wind up changing themselves. And they’re going to wind up making concessions themselves that they don’t want to make. I hope that on October 2 people join with a women’s march and people get in the streets and people make some noise, that we’re not going back, that women are human beings that we’re not going to surrender. I just want to thank you again, so much, Tony, for joining us and sharing your insight with us. Go to the Show Notes. Everybody read Tony’s article. You can find other columns from Tony right there in the Show Notes. And you can also follow Tony on Twitter
Tony Norman 59:29
Sam Goldman 59:31
Follow him. Read his work. And thanks again, Tony.
Tony Norman 59:35
Thank you. It’s been a pleasure, Sam.
Sam Goldman 59:39
On Tuesday, this Tuesday, September 21, I’ll be participating in a special 2 hour edition of We Only Want the World, a town hall and the abortion rights emergency. It’s happening from 7 to 9pm Eastern time. Sunsara Taylor is hosting, and Refuse Fascism is co-sponsoring along with the RNL show. It’s going to be broadcast live on WBAI 99.5 FM in New York City, and WPFW 89.3 FM in Washington DC, and highly recommend you tune in on Refuse Fascism. So show, we’ll have to be live streaming on Facebook, YouTube and Twitter. The town hall includes outspoken abortion providers and others who have been writing and analyzing these developments. We’re going to get into what the Texas law and the Mississippi abortion restriction that the Supreme Court is going to consider in October, what they’re about, what’s going on there, how these abortion restrictions link to the larger situation in society, what the stakes are for women and humanity. Why are people in organizing forces doing so little to counter this and what is to be done?
So I hope you’ll join me on Tuesday 7pm Eastern, for the Town Hall on the Abortion Rights Emergency. Check out the show notes for links to listen, share questions you would like spoken to during Tuesday’s Town Hall. Tweet me @SamBGoldman or you can drop me a line at [email protected] or leave a voicemail by calling 917-426-7582. You can also record a voice message by going to Anchor.fm/Refuse-Fascism and clicking the button there. Thanks for listening to Refuse Fascism. Want to support the show? It’s simple. Show us some love by rating and reviewing on Apple podcasts or your listening platform of choice. Subscribe so you never miss an episode. Want to help the show reach more listeners? Wonderful.
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Thanks to Coco Das, Lina Thorne, Richie Marini and Mark Tinkleman for helping produce this episode. Thanks to incredible volunteers. We have transcripts available for each episode, so be sure to visit Refuse fascism.org and sign up to get them in your inbox each week. We’ll be back next Sunday featuring an excerpt from the abortion rights emergency townhall. Until then, in the name of humanity, we refuse to accept a fascist America