Holding ICE and Border Patrol Accountable (Half the Answer #72, with Joshua Erlich)

Trent and Caitlin catch up with employment litigator Joshua Erlich about the difficulties of holding immigration and border patrol agents to account when they break the law. What happens when you can't be sure which individual attacked you? How can their actions be restricted, and what should Democrats do given their level of power in the government right now?

Half the Answer can be heard on Spotify, on Apple, on YouTube, on Amazon, and elsewhere via its RSS feed.

Resources

Joshua's bluesky

Legal help for federal employees in the DMV

Legal help for federal employees nationally

Joshua's office

Federal forces keep shooting people

Dems coalescing around five restrictions on ICE

Suozzi is sorry

Transcript

**Caitlin M. Green [00:00:31]**
Happy days are coming. They're coming. I know they are. They're just taking a minute. Okay, we did a lot of yelling and a lot of crying, and then we're gonna do some celebrating. Actually, here's a happy thing. Can we all have a resounding "bye bitch" to Gregory Bovino, who has to leave Minnesota with his tail between his legs? Bye. Okay, so the work is not ended, but that stuff feels pretty good. Enjoy El Centro, California.

And this is Half the Answer, where understanding a question is half the answer. I'm of course Caitlin Green, linguist, author, editor, man about town. And here with me is my co-host, Trent Nelson, a philosopher, historian, author, editor, all the things, beautiful flowing hair down having person. It looks so luxurious. I love this. How are you, Trent?

**Trent R. Nelson [00:00:55]**
Bye, bitch!

**Joshua Erlich [00:00:56]**
Bye, bitch, bye!

**Trent R. Nelson [00:01:34]**
Well, I'm doing well, Caitlin. Appreciate you. We're not all dying our hair, but of course we all have midlife needs. Keeping the hair down, why not change it up a little bit? Happy days are coming, as you said. They may not be here yet, but we're on the hunt for them. We're bringing them back, and they'll be coming for everybody. And that's good, better than what is coming for everybody right now, which is not good. That's Border Patrol and ICE and unfortunate folks like Gregory Bovino. He'll be leaving, though, as we already said. Bye, bitch.

Caitlin, we just have really wonderful guests all the time. And well, you know how much we love it when we have recidivists, when we have folks who are coming back. And well, we tricked him. We didn't just trick him, we tricked the lawyer. Right? Today we got Joshua Erlich, our favorite civil rights lawyer. He's down in Virginia. If you need him, you can call him. He's real good. He may not answer the phone, he might go to voicemail, but he'll get back to you. Good morning, Joshua, how are you today, my friend?

**Joshua Erlich [00:02:21]**
Morning, y'all. I have my own hair situation going on here with all of this.

**Caitlin M. Green [00:02:22]**
I can't believe we tricked him. We got him back.

**Caitlin M. Green [00:02:52]**
I love it. This is great. Yeah, we're all making strong statements in our own way.

**Trent R. Nelson [00:02:55]**
I'm saying you've got a lot of salad in the bowl, Josh. It's a good one. It's a good one.

**Joshua Erlich [00:02:58]**
I need to get it cut before the next time I go to court. But for the moment, this is good.

**Trent R. Nelson [00:03:11]**
You are living as though your existence is a rebellion in itself, and we appreciate that here on the program for sure. Absolutely express yourself, Josh.

Well, Joshua, you know all of the hubbub happening in Minnesota, in Minneapolis, all of the horrors. There have been two murders of innocent people, Alex Pretti and Renee Good. They just keep on killing. Can't stop, won't stop. We have to make them stop, Joshua. But we were discussing off camera, off air, discussing how do we keep and hold people accountable? How do we hold these federal agents accountable? And well, we decided we need to bring you down here to talk about that. It's not very easy, if functionally possible at all. So we're going to get into that, and we're going to get into some other minutiae surrounding this from a civil rights perspective.

Clearly, these individuals have had their civil rights violated, leading to their deaths, and so many others have had their civil rights violated, leading to just really horrendous situations and moments. What is happening? Why can't we hold our agents, our government officials? Why can't we hold them accountable for doing bad things, Joshua?

**Caitlin M. Green [00:03:17]**
That's beautiful.

**Joshua Erlich [00:04:42]**
Yeah, so there's a bunch of factors there. The first thing I think we should say is that, to the extent that we have seen accountability, it has come from people in the streets. Democratic lawmakers have not done very much. A few folks showed up in person, but even this current list of demands that they want from ICE for funding is not particularly aggressive. It's body cams and reforms that have some value but aren't going to stop the problem. They're not going to stop them from going to St. Louis or San Francisco or DC next and doing the same thing.

But really just incredible and inspiring work from the people of Minneapolis and St. Paul. I was saying online the other day that something I feel like we're seeing a little bit is that the people who have strong beliefs and the people who kind of chase polls are somewhat ending up in the same place, because what the people have been doing is popular. And so in terms of holding people to account, the only people that have had any success so far are the people in the streets.

Legally, though, you basically have, with almost anything, the possibility of civil liability and the possibility of criminal liability. I know less about the criminal side, but we've seen some really troubling things. One, in the wake of the Alex Pretti shooting, there were reports that I think have been substantiated that ICE was detaining witnesses.

**Caitlin M. Green [00:05:35]**
Yeah, it's undeniable at this point.

**Joshua Erlich [00:07:07]**
That is absolutely absurd. It's unconstitutional. There's no grounds for it. So in terms of abuses, that is a big one that's stood out to me. But the other thing that we've seen, and I've been keeping an eye for reports and don't have clear answers on this, is that the federal government has come in and asserted jurisdiction over these shootings and then said, "Well, we're not going to investigate." What they're trying to do is take criminal liability essentially completely off the table by keeping it in the federal system that they control and then not investigating.

The case law in general just does not support that. Ironically, it's ironic to some extent to be citing this from the left, but the history of the Ruby Ridge case, where Idaho came in after the fact and indicted the federal agent and the Supreme Court said that was perfectly fair, that Idaho has a state-level system that is analogous to the federal system. They have their own laws, they have their own sovereignty, and they get to indict people within their borders. And there shouldn't be anything different here with respect to Minnesota.

But it's entirely unclear. And there's already been, I think Keith Ellison filed a lawsuit about this. There's already been questions about whether they're coming in, asserting jurisdiction and then not maintaining the evidence, not doing the things that need to be done to secure a conviction later. And how the state navigates that, I mean, they're dealing with it, they've gone to court and everything. We'll have to see how it plays out. I mean, to my mind, you've got videos. The preservation of evidence at the scene, it's not like we're talking about needing fingerprints to figure this out and then having a chain of custody issue where you can't prove that the fingerprints are what they're supposed to be. This is all on video.

**Trent R. Nelson [00:08:16]**
Yeah, we've all seen it.

**Caitlin M. Green [00:09:19]**
Right? It's all on video anyway, and multiple angles. Another angle just showed up yesterday. That's kind of the power of this system that the people have created, which is that even if one or two phones get confiscated and the chain of evidence gets all squishy and they get lost, there were six people recording at any given time. So.

**Joshua Erlich [00:10:09]**
And let me just quickly add to that, just in general, for anybody listening, don't feel obligated to watch the videos. I have not watched the video of Alex Pretti.

**Caitlin M. Green [00:10:18]**
Yeah, right. This one in particular is extremely grisly and unambiguous, and it is completely depraved, and I think it will hurt your brain to watch. So don't. Because the Renee Good one was bad enough, right? Because you can tell what's happening in it, but because she's inside of her car, you don't see necessarily everything. What happened with Alex Pretti, you see it all, and you don't want to see it all. That's not something your brain is made for.

**Trent R. Nelson [00:10:55]**
Yeah, we have unfortunately, over at least the last, I mean, I'm using just ten years as an easy one, but we have had so many murder videos on film, right? Murder moments on film, seen, understood. And you watch them, and I tell folks the same thing: you don't have to watch snuff films. If you've seen one person get their head blown off, you've seen them all, and you don't need to subject yourself to that. There's real trauma involved in watching somebody get killed.

**Caitlin M. Green [00:11:32]**
Well, and there's outlets like Bellingcat who do this frame-by-frame analysis that is much safer for you psychologically. If you really want to know what it was, they will, with diagrams and squares and lines and things, you can do that. Because if you're already thinking about watching it, there's nothing about the video that can convince you or change what you're gonna do. You already know what you need to do. Don't torture yourself.

**Joshua Erlich [00:12:03]**
Yeah, 100%. And people hire me to watch videos like this, and I don't particularly like doing it, even when I'm getting paid to do it. I have one that I need to watch this week, and it sucks. And vicarious trauma is real, and you don't have to take it on yourself to actually watch those videos.

**Trent R. Nelson [00:12:04]**
Yeah, absolutely. So as of recording, which is the 27th of January, we do have a list of five demands that I think would be good for us to touch upon real quick, as per Greg Sargent at The New Republic and his daily podcast, which of course is one of the only podcasts we'll tell you to watch. But in any event, let's go through them. He says that one, as per Senator Chris Murphy, DHS is required to cooperate with state probes, which he says is a very significant part of the demand from the Democrats. That Border Patrol stays at the border. Seems strange that that needs to be demanded. That there are warrants for arrests. That's something that we were going to touch upon today, Joshua. IDs and body cams, which of course the internet finds very ironically funny, right? Like, you can murder people, just have the IDs and the cameras on. And then ICE out of churches and schools.

Now, Joshua, you are not a seer, although you're very intelligent, of course. Why do you think that the Dems' list of demands seems semi out of touch with what public opinion now says, that many people are thinking, "Hey, let's not even think about reforming this group. Let's not even think about better education for this institution. Let's just get rid of it. Let's just scrap it altogether." Where is the disconnect coming from here, Josh?

**Caitlin M. Green [00:12:23]**
Right.

**Joshua Erlich [00:13:47]**
So I think the biggest thing is that I feel like the Dems are still operating as if you can work with these people in good faith. And the best you're going to get from them is technical compliance. Like, "Yes, we're cooperating. We responded to an email last month, and we'll respond to an email next month." "Yes, CBP will stay at the border. Here's how we define the border. And it includes Kansas."

**Caitlin M. Green [00:14:39]**
Jesus Christ.

**Caitlin M. Green [00:15:02]**
Well, and the other thing is, coming from a border state myself, I don't want them at the border either. They're not doing a good job there.

**Joshua Erlich [00:15:09]**
Yeah, substantively, each of the demands, I think, is somewhat lacking, but it really highlights that public opinion is clear that this is an agency that is rogue, that does not need to exist. This agency has only existed for 23 years. It is not a part of the American firmament. It doesn't have to exist.

I tend to think the reason that you get these sort of soft demands is that by and large, the vast majority of the Dem caucus supports aggressive immigration enforcement. And it's not what we tend to agree with. But the hope is that public opinion, and again, people in the streets, push the Dems in a wave in November. Push the Dems to take these more aggressive positions. And hopefully the people out there that chase polls are looking at the polls and saying, "This is where I need to be." But it puts them all way to the left of the majority of the caucus, and I just don't know that we can expect the current Dems that are elected to really change tack on this.

I mean, they're the same Dems that supported Kamala Harris being really aggressive about immigration. A lot of them were there when Obama was deporting more people than anybody has ever deported. They're just not the right people for the moment.

**Caitlin M. Green [00:16:18]**
Yeah, well, I'll say as a case study, I would say Arizona Senator Ruben Gallego is an interesting one, because we here on the podcast have yelled at him. Because I'm from Arizona, so I'm always going to yell at people from Arizona. He was profiled by the Third Way as one of those "reasonable Democrats" who's okay with being tough on the border and who really thinks we are experiencing an immigration crisis and that we need enforcement, deportation, et cetera, to deal with it. Who this week is rhetorically way backing away from that. He has used the phrase "abolish ICE" this week, which was unthinkable to me a couple of weeks ago.

So I do think that we can look at that kind of tide turning. We can read it as cynical, we can read it as weak-willed, we can whatever. But if he's a wind sock, the way he's pointing is making me pretty happy.

**Joshua Erlich [00:18:20]**
Absolutely. And we saw Seth Moulton this week, who enjoys being on the right side of polling on an issue.

**Caitlin M. Green [00:18:27]**
We've also yelled at him a lot.

**Caitlin M. Green [00:18:39]**
Yep, well, yeah, because he thinks there's teenage boys chasing down eight-year-old girls on the soccer field, and he's mad about that, a thing he made up in his own brain. So that's our guy, Seth. Anyway.

**Joshua Erlich [00:18:55]**
So I think that's a sort of fundamental issue. But the rest of these demands are things that shouldn't need to be demanded in the first place. I mean, these folks should have body cams. I know that body cams are something of a, there's some disagreement about the value of body cams. But as a litigator, I can tell you that when you don't have a body cam, you have your client who probably has been arrested, possibly for something violent, was probably charged with assaulting the officer even though he never touched the officer, and you have their word against not just one police officer but the six police officers that all come in and say the exact same thing. And so at least from my perspective, as someone who's focused on evidence, body cams are critical.

Now, are cops willing to give on body cams for facial recognition reasons and stuff like that? There are people out there that say that kind of thing. I just tend to think that technology is not far enough along that we should really be worried about that sort of thing. But there certainly are people that are concerned, and I don't want to dismiss those concerns. But having a video is better than not having a video if you want to prove that something happened. It just is.

**Trent R. Nelson [00:19:42]**
Absolutely. Now, one of the demands that is not on this list is to not wear masks. Now you'd think that it would be. It's not on here. You got IDs and body cams, but you still get to wear Punisher masks like you're a seven-year-old on Halloween. So I guess I come back to this sort of, I don't want to call it entirely mealy-mouthed, but this like, "We're gonna put our foot down, but kind of." I don't know how it's supposed to play to the base that they're trying to rev up.

I mean, I know Chuck Schumer is adamant that we shouldn't be focusing on this "distraction," that we should focus on affordability and we should focus on other things. And I just don't understand. I agree with what you just said, Josh. I don't see how these Democrats are the people we need to be defending us. But the problem is that we all sort of see on the horizon a blue wave-ish, perhaps, coming. And so these people, Chuck Schumer, Hakeem Jeffries, these people who are giving us these shit responses, they're likely going to be promoted back into power, and we're going to have to deal with this moving forward. How do we deal with a leadership that, far from riding public opinion, seems to be actively fighting back against it?

**Caitlin M. Green [00:20:41]**
I thought that was gonna be on there, but it's not. That's weird.

**Joshua Erlich [00:22:17]**
I don't know what the right answer is, except that hopefully an expanded caucus pushes leadership to the left. Hopefully they understand what has brought these gains to them. But it's hard to imagine Chuck Schumer substantially changing his positions on things at this point.

Jeffries is much younger, has the potential to be in leadership for much longer, is a little bit more of a political survivor in that sense. And Schumer, I don't know what can be done there, honestly, except the things that have worked: calling, protesting, making a lot of noise, being in the streets. But is that going to make Chuck suddenly unconcerned about the fake family in his head? I don't know.

**Caitlin M. Green [00:23:37]**
Right? I think at this point the Baileys might want ICE abolished. We're seeing a lot of movement on that, so he should check in with them one more time just to see.

So yeah, I think there's this really ridiculous line among the right about, "Oh, identifying the officers who murdered a man on the street would be doxxing, and that's actually a crime, and you wouldn't want to do a crime because you're mad about a crime, would you?" And they've been using this for basically the whole administration to justify the masks, to justify hiding the identities of these officers that are obviously committing crimes against the people who they're supposed to be sharing a city with.

That idea, I think, is super ridiculous, obviously. And it would be so cool to see more active pushback from Democratic leadership about that specifically, because actually, from a PR communication standpoint, it feels like an easy dunk to be like, "You weak-ass little piss babies, what are you talking about? You can't let me see your nose and your mouth because you're afraid that I will know what you did? I know what you did." It's so easy.

**Joshua Erlich [00:25:02]**
Yeah, they're public servants. They work for us. The idea that their identity should be in any way secret is ridiculous. For a lot of folks, if you Google their names, their salaries and everything are right there, because that's how it works when you're a public servant. The idea that it is doxxing is genuinely ridiculous.

And for accountability purposes, there's not a lot you can do in terms of filing a lawsuit in the first place, but if you did want to file a lawsuit, you've got to know who you're going to sue. And there are ways to do that in the court system, filing against a John Doe and then forcing them to disclose the names. But you shouldn't have to do that for the officer in the street that's harassing you. You should be able to identify what agency, what this person's name is, at absolute minimum. And it shouldn't be through a QR code.

**Caitlin M. Green [00:26:00]**
I like it. The QR code thing is so wild because, have you ever tried to scan a QR code that's nailed to a wall? That's already hard enough. On a guy who actively doesn't want you to know who he is, what do you mean I have to scan his QR code?

**Trent R. Nelson [00:26:20]**
Yeah, so let's play a quick little intellectual game if we could. Let's imagine that Barack Obama sent troops into Arkansas, sent some type of federal agency into Arkansas, and people were killed in that activity. And of course it's justified for stopping gun violence or something like that. Do you think that Republicans would be taking this middle approach of, "Well, we just need to revise how this use of federal agency is being undertaken. It's not bad in itself. What the Democrats are doing is not bad in themselves. We just need to revise and rethink and retrain." Do you think you'd be getting that message, or do you think that the Republicans would be using this moment to attack the other party properly?

**Joshua Erlich [00:26:29]**
It's insane.

**Joshua Erlich [00:27:32]**
Yeah, obviously you wouldn't. They would be attacking, and they would be doing what the Dems should be doing, which is attacking, failing, and then running on the failure. They should be. It shouldn't be about finding a middle ground with these people right now, except to the extent that you're actually saving lives.

**Trent R. Nelson [00:27:55]**
So do Republicans, I mean, we've spoken with Matt Sheffield, we've asked him, what do Republicans know? Is this one of these things that the Democratic Party is just behind, behind the times, just does not understand how to use this moment? I mean, is it that easy? Or is there more involved there?

**Joshua Erlich [00:28:20]**
I think, to my mind, it's just a structural issue with the Democratic Party. And it's not a new observation to say that the Republicans embrace their activists and the Democrats distance themselves from their activists. And they are absolutely obsessed with having a big-tent party where they don't ever alienate anyone. And they end up alienating everyone by not standing for anything.

And again, not news, but they're obsessed with creating this big tent by reaching towards the center, as opposed to welcoming people in to the left of where the party is. There's a third of the country that didn't vote last time. And you could build the tent by bringing in the people that didn't vote. You could build the tent by bringing in the twelve people who considered voting for both candidates, and they're just obsessed with those twelve people.

**Caitlin M. Green [00:28:58]**
Right? Meanwhile, a lot of people were googling "Did Biden drop out?" on the day of the election. Maybe some more civic education and outreach would have been on the menu, as opposed to chasing those twelve people who are clearly, their heads are so far up their own ass that they thought that the two candidates were roughly equally cool.

**Joshua Erlich [00:29:59]**
Yeah, the thing I always come back to, Trent, you joked earlier about the affordability, but they don't have a plan on affordability. They just want to say the word, but when it actually comes down to doing anything, they don't want to embrace a wealth tax. They don't want to embrace aggressive workers' rights, because they're concerned about alienating their donors and what have you. And you end up with this big tent that doesn't stand for anything. And this is a time when people need to stand up for things, and people will come vote for you because they see that you actually believe in what you're saying. And the party as constructed just doesn't appear capable of it outside of edge cases.

**Trent R. Nelson [00:30:52]**
I was just gonna say real quick, people can't believe that the Republicans get votes, right? But it comes back to what you just said, Josh, what Caitlin and I talk about all the time. There is an authenticity from the Republicans. And they say, "We're gonna do this thing. We're not gonna compromise. This is how we feel about it." And people look at that and they're like, "Oh, wow, a party that isn't wishy-washy, a party that doesn't say we're gonna do this and then not do it as soon as there's some pushback." People like people who stand by what they think, even if what they think is terribly racist and misogynistic and shit.

**Caitlin M. Green [00:30:58]**
They're exciting.

**Caitlin M. Green [00:31:28]**
Well, they're selling a fantasy, right? So a great example of the kind of fantasy that they're selling is Tim Pool's statement earlier, where somebody called him a boot licker and he was like, "Oh, I'm not a boot licker. I'm wearing the boot. I'm the one stomping." And he felt like such a big man about that. And that's a kind of power fantasy that the right is selling, that you get to be on top of the pile, hooray for you, you get to be really tough.

And we have, and when I say "we," I don't mean me. I'm really good at this, actually. I love talking. I'm so good at talking to people. But the Democratic Party has had a problem with, "Okay, but what kind of personality are we selling people?" Because "grown-up in the room" is not a sexy personality to be selling. But you know what is? Hero on the street protecting their neighbors. And that is currently an available brand for them to grab. So if they have the guts to do it, that could actually compete with "guy wearing the boot stomping on the necks of the underlings."

That would be great if we could just be like, actually, firefighters and neighborhood dads and cool aunts and moms who will stand up to your bully when you're getting bullied. They're so brave and cool. That's us. We're gonna do that. Oh, that would be so good.

**Caitlin M. Green [00:33:17]**
A lot of adults suck, actually.

**Joshua Erlich [00:33:12]**
They've got to embrace some actual beliefs, right? Like, yes, you're the adult in the room, to what end? And they have to understand that maintaining the status quo is not something that people are necessarily interested in. The status quo wasn't great for everybody. There's a lot of people that were left out of the status quo in 2015. And the party is built to maintain the status quo, to maintain the structures of liberal democracy. And one, it's failed, and two, that's not good enough. You have to tell people what you're going to do about these massive wealth distribution issues.

**Trent R. Nelson [00:33:22]**
Nah, the status quo got us fascism. That's the reality.

**Caitlin M. Green [00:33:49]**
Yeah, we're seeing the cracks in it.

**Caitlin M. Green [00:34:03]**
Yeah, no, we're just gonna have "kitchen table issues" as a thought-terminating cliche, and then we don't have to do anything else after that. "Kitchen table issues, I'm focused on kitchen table issues. Please don't ask me what I think those are or how I'm going to address them."

**Trent R. Nelson [00:34:28]**
But to your point, Josh, I mean, and this is something that we spoke about with Emily Glenker for our chat, right? We have sort of a difference in perception between the two parties, almost a difference in eras. We have the Neville Chamberlains who are like, "Affordability, distractions, distractions, keeping social norms, keeping the political, cultural norm that we've experienced over the last 50, 60, 70 years." Versus, "We are attacking at the jugular. We are sending Gregory Bovino over. We are sending the worst people. And we're telling them, go cause trouble. Let's see if we can rile up these radical leftists, these wine moms, who we're describing as the Taliban. Let's get them all worked up and then we'll see what happens. We'll see how many bad people we can wrangle." It's checkers versus chess.

So yeah, you look at this midterm election and you say, we need some chess players. We've got to bring in some chess players here, because right now nobody understands the rules of the game. And that doesn't mean that, as we spoke about with Jacob Levy, we have to abandon our liberal societal principles, but we do have to react in some way. We've got to develop how we're going after these people, because the future is not going to just be, "Well, let's all reconcile with these ICE officers who were beating the shit out of people."

People want accountability. You're hearing more, not just "abolish ICE," "abolish DHS." You're hearing, "What are we going to do about holding these folks accountable afterwards?" And we need politicians who are thinking, "We've got some actual enemies of the state here that we're going to have to handle at some point." This isn't just all, "Let's forget about it and hold hands." That's the end of my rant, Josh.

**Joshua Erlich [00:36:42]**
Well, go ahead, Caitlin.

**Caitlin M. Green [00:36:46]**
Yeah, I was just thinking about January 6th and the way that we dealt with that by saying, "Oh yes, that was really super bad." But then, as every single day kind of passed, the stance weakened, and eventually we got into this mindset of, "Well, I think they learned their lesson, right, guys?" And then now here we are.

So what we cannot do is fall into that trap again. And when I say "we," I don't mean me, because I'm smarter than every single Democratic politician. But that trap is so dangerous because it does play into that desire to return to status quo and to be safe and normal again. And safe and normal are not optional at this point.

**Trent R. Nelson [00:37:17]**
Right? We've got to start making precedents that are good precedents. Not like, "Hey, the President committed a crime, let's just let him resign and then pardon him." Like, the President committed a crime. The people tried to rush up into the Capitol Complex, let's just, "I'm sure that they learned their lesson." Enough low-level people.

We need to be setting precedents that are like, "People did bad things, they got held accountable for those bad things." The President committed a crime, he got dealt with. If you go to South Korea and talk to the French, I mean, everyone loves to joke about how the French really know the art of protest. The French send their people to prison for doing things. They send their presidents to prison if they do bad things. South Korea is like, "How many bad things can we do to this president who tried to do bad things?" And that does send a message. It sends a message that actually nobody is above our law, even our president who got brain worms on YouTube. That's not an excuse. You still gotta hold him accountable for trying to create martial law.

Do you think that the people crave that to some degree, Josh? Do you think that they want accountability that they're not getting?

**Joshua Erlich [00:37:45]**
Yes.

**Caitlin M. Green [00:38:10]**
And he was prevented from accessing power after that. Yeah.

**Joshua Erlich [00:39:05]**
I think so. I think so. And I think that politically, you have to seize these moments. We're past the time, both practically, procedurally and everything, but also politically, to go after January 6th-ers. But now we have these ICE goons that are hurting people in the streets, that are detaining observers, are going to observers' houses to intimidate them. And they need to be held to account. People want to see them held to account. And there's a lot of political benefit in holding them to account.

And we need a party that's willing to do that. And we need reforms to the court so that these things will stick. And we need reforms to the court to expand civil rights so that it's clear that there is accountability, both criminally and civilly, for these things. Because right now there's very little to be had.

**Trent R. Nelson [00:40:25]**
Yeah, I have a quick question though regarding the federal government's role in investigating crimes. We've heard from the state of Minnesota that they are getting, obviously, some pushback from the federal government as it regards investigations into the murders of Alex Pretti and Renee Good. Do you have any knowledge as to how far the precedent of the federal government going in and exploring these types of situations is, and how strange it would be for the federal government to say, "I'm not so sure that we should go in and investigate this particular one?"

**Joshua Erlich [00:41:07]**
So I don't know a ton about this in terms of the practicalities of it, but it is in general something that requires some clarification from the courts, from Congress. Because even without this ICE situation, you have all of these joint federal and state task forces that are all over the country, and the way that those things interact with the law and the way that they interact with liability is just a mess.

There have been some cases recently where state officers or local officers on a task force have had sort of federal immunity granted to them, even though they are not subject to the federal protections. But the courts have said, "Well, they were working with federal agents, so now you have to meet the standards of suing a federal agent." So you certainly hear about things like the feds coming in and asserting jurisdiction and taking an investigation away, but the actual rules on all of that stuff is a little bit beyond me. But the way that it interacts with liability is a mess, and it's a mess outside of this particular situation. It's something that really needs to be sorted out.

**Caitlin M. Green [00:42:40]**
What about, how did we fail at enforcing ethics? It's crazy to me that Clarence Thomas still exists given all of the bribing and stuff that happened. I don't know what can be done about something like that.

**Trent R. Nelson [00:42:43]**
Right, right. And you mentioned in the question before that, reforms to the court. What sort of reforms does Joshua Erlich have in mind that would be useful going forward?

**Joshua Erlich [00:43:07]**
I don't know how much value there is for a lot of creativity here. I think you need more people on the court. And there's a thousand ways it could be done. The Constitution is very limited on what it actually says. The number was set at nine a while ago, but it's been at other numbers at various times. It's done by an act of Congress, not through a constitutional amendment or anything like that. And to my mind, we just need a substantially larger court than we have. And we need probably more, or at least reworked, federal circuit courts, the appeals courts.

We've had these Minnesota cases with temporary restraining orders and whatnot. They keep getting blocked by the Eighth Circuit. The Eighth Circuit literally has one Democratic nominee on the entire circuit. It's just not feasible. So there needs to be reform at that level.

But at the Supreme Court level, I think it just needs to be a bigger court. And people can decide, it could be a bigger court where not every judge hears every case. When you're at the appellate level, the circuit court level, you draw three judges from the pool and they make up your panel and they hear your case. The Supreme Court could have three times as many members, but you get randomly selected nine from those members. Or you could just have a much larger court hear the case.

There are people that have had some interesting arguments for term limits and things like that. That stuff is all sort of of questionable constitutionality. But there are some good ideas out there that could work. But these are generational issues going back almost 50 years now. We've had a conservative court, and the Democrats have not done a good job of making sure that their justices step down so they can be replaced. And at this point it's a supermajority, and the only way to fix it is to just substantially increase the number of people there. That's the simplest way to fix it. I think it's the easiest one to sell.

**Joshua Erlich [00:46:16]**
We have to stop treating the Supreme Court justices like they're the papacy. The reason that there hasn't been accountability for Thomas is that there was no DOJ investigation, there were no congressional hearings. We've had Supreme Court justices in the past that have been forced to resign over ethics issues, but it's a lifetime appointment. You can wait it out, and you've got to be pressed.

And Congress, in addition to other things that they have stopped asserting their rights on, they've really stopped regulating the court in any way. They have control over the court's budget. They have Judiciary Committees that can force people to come in and answer questions, and they're just not doing it. So the other thing is that self-regulation doesn't always work, and the Supreme Court's not subject to the ethics rules that everybody else is subject to. And they're not self-executing. You've got to have someone actually do the work of holding them to account. And this is something that is less structural, though, and more that Congress, in abdicating its responsibilities, has abdicated this one too.

**Trent R. Nelson [00:47:54]**
Right, right. Democracy is not self-executing. It is not self-sustaining. And that's a realization that I think many Americans are finally coming to grips with during this past year, that these institutions are not eternal. They can be smoked, as we've seen. Congress has abdicated as it concerns holding the executive branch to accountability, and as you're alluding to, Josh, it has abdicated in holding the Supreme Court, or really many of the courts, to accountability. And this all comes back to what we talked about earlier: Democrats are sort of not living up to, and of course Republicans, that's a whole other discussion.

**Caitlin M. Green [00:48:43]**
I think we should take their robes away and put them in something sillier. Maybe that would help deflate them. Maybe pastel-colored overalls or something that would help us remember that they're just people, and we do actually need to watch over them. It's just an idea. I think the robes are too serious. It makes, like you said, it makes them feel like they're somehow holy. And yeah, maybe clown shoes. That's an option. Rainbow wigs, yes. That will help, I think.

**Joshua Erlich [00:49:13]**
Yeah, clown shoes could work.

**Trent R. Nelson [00:49:15]**
Clown noses, 1,000%.

**Joshua Erlich [00:49:20]**
I think they recently switched to black robes. But the Canadian Supreme Court used to wear these red robes that were very cool.

**Caitlin M. Green [00:49:25]**
God, red robes were so fun.

**Trent R. Nelson [00:49:28]**
Yeah, you got the red robes and they wear the wigs too, don't they?

**Caitlin M. Green [00:49:34]**
Wigs, yeah. I think most of the English Commonwealth, they do. It's like Australia, New Zealand, Canada, and England. I think they all do wigs. I don't know why we lost our wigs. Something about the Revolution, I don't know. We made a lot of mistakes, like not doubling the letters in "cancelled" and stuff. It's really, I don't know why, but I can't cope with it. I always put the double-L in "cancelled." Yeah, see, our lives are so hard. They've been so ruined by having British family members. And that's why, Mom. It's your fault I can't spell "cancelled."

**Trent R. Nelson [00:49:38]**
Well, we'll research.

**Trent R. Nelson [00:49:55]**
Something, something, American War of Independence.

**Trent R. Nelson [00:50:13]**
I always write "centre" with the R-E. Go into the centre, not the center. That is what it is.

**Trent R. Nelson [00:50:30]**
Shout out to my grandma. She's still boogieing in here, yelling about the fascists like it's 1942 all over again.

**Caitlin M. Green [00:50:38]**
Can I tell you something else that my mom has done in my life that's making things ridiculous? She makes a lot of banana bread, but she's British, and so it's "banana bread." And so now my children, who have been born and raised in America, they'll be like, "Mom, can we have banana bread?" What's happening? Thanks, Mom, for making my children British.

**Trent R. Nelson [00:50:59]**
Yeah, you grow up with English family members, and they're gonna ruin stuff for you for the rest of your life. They're gonna make you the strange outcast, because people are gonna be like, "Why do you spell 'centre' with an R-E?" Tomatoes.

**Caitlin M. Green [00:51:13]**
I mean, one day they're gonna say, oh, they do say "tomatoes" too. They say "banana bread" and they say "tomatoes," these little American kids in Oregon running around saying "banana bread" and "tomatoes." And one day they're gonna say "banana bread" and I will be sad. But right now I'm just laughing.

**Joshua Erlich [00:51:11]**
Yeah, I don't know to what extent political realities actually affect Trump, and probably to a greater extent Miller. I think anyone acting rationally would say, "We are creating a disaster for ourselves in the midterms. We need to pull back. We need to get out of this news cycle." Nine months from now is a long time. If you don't continue to press, or ten months from now I guess, if you don't continue to press these sort of lawless actions, then it's hard to maintain anger among the populace for the better part of a year, almost a full year, as righteous as the anger is. These things will fade. But they won't fade if there are people dying in August and September.

**Trent R. Nelson [00:51:31]**
So Josh, this has been a wonderful discussion, as all of our discussions are. Of course, we love to hyperfixate on the worst things that you can imagine, and we've got so many to pick currently. So that's funsies. How do you see, again, I'm asking you to be a seer after explicitly noting that you are not one. What do you see going forward? What are we going to see? More of this, of the wanton attacks on Democratic cities? The governor of Texas, Greg Abbott, he recently noted that ICE and Border Patrol need to, quote, "recalibrate their mission." Do you think there'll be recalibration, Josh, or do you think they'll just send folks to do the same types of stuff that they've been doing in other places?

**Caitlin M. Green [00:53:38]**
Yeah, we've had militias doing that for ages. Again, growing up in Phoenix, that was a regular occurrence.

**Joshua Erlich [00:53:42]**
I really don't know what's going to happen. I think to the extent that they continue to push it forward, they are probably going to go to cities where they think the optics won't be as bad, where the people aren't so white. But they have some issues there where they could go do this in Houston, they could go do this in Atlanta, but those are states with Republican governors, and that creates a different kind of problem. There's only so many places they can go where they're blue states with blue cities that they actually want to attack. But I really don't know what happens next.

I am confident that the people who are saying things like "we're not going to have elections in November" and things like that, none of that's going to come to pass. Now, do I think that there might be roving gangs of ICE guys that are intimidating voters? That seems entirely plausible.

**Joshua Erlich [00:55:18]**
But to answer the actual question that you asked, Trent, I don't know. And the reason why I don't know is that I don't know how much these guys care about the political fallout. I just don't know. I don't think Miller cares at all. I think he just wants to see ethnic cleansing.

**Trent R. Nelson [00:55:38]**
What about the Dem side? Are we going to have a DACA moment here with these five bits? Are Dems always going to chicken out, or are they going to hold firm to these five, we'll call them demands, although they are wanting in certain areas, to be sure. Are they going to stand firm on that? Are we going to see progression, more Ruben Gallegos, more folks like that? Or do you think old Chuck is going to keep the caucus in line, and we just need reforms to the whole thing?

**Joshua Erlich [00:56:14]**
I tend to think that the current Dems are looking for a way out, and that they think that these demands will be a way out. They're looking for a reason to vote yes on the funding. And it probably all comes together where they vote yes on the funding.

**Caitlin M. Green [00:56:32]**
Yeah, the people who voted yes to continue DHS funding, you can tell they got punished for it in the constituent interface domain. They got phone calls, they got emails, they got people showing up, and they are feeling the pain for it. So I think.

**Trent R. Nelson [00:56:51]**
Tom Suozzi. Tom Suozzi back in Nassau County, he got smoked so hard that he released a statement.

**Caitlin M. Green [00:56:59]**
That was a sad statement. That was real bad. He's like, "Oh, you are mad at me? I didn't realize we were gonna be this mad." Right?

**Joshua Erlich [00:57:01]**
Well, it's going to be interesting. And congressional procedure is very much not my area, but it looks like there's going to have to be some kind of amendments to the bill, which means it's going to have to go back to the House, which means folks that already got smoked once are going to have to decide if they're changing their vote. And then maybe this doesn't pass, and we end up with a lengthy shutdown over it, if the House and Senate can't get on the same page. But these folks, the seven, I think, Dems that voted for funding, it looks like they get another chance to vote, and we'll see what happens.

**Caitlin M. Green [00:57:39]**
Yeah, and if they're experiencing that regret, we'll see a lot of this. This list of requirements, they seem to be essentially contradicting things that are in executive orders, right? So the schools and the churches and things. I am personally disappointed not to see hospitals on the list, because churches and schools, that's important. But here in Portland, we had two people shot in a hospital parking lot, and we had the seven-year-old girl in Gresham, Diana Crespo, who was taken while her parents were trying to get help for her at the emergency room.

And I think that's deeply depraved, to grab a mother and a father and a seven-year-old daughter and take them to this family detention center in Texas where they feed them moldy food and worms. These are essentially another version of a torture prison that we have here in our borders. Far from their home here in Oregon, where they're supposed to be, because they are asylum seekers. It is really disappointing not to see hospitals as one of the protected zones.

But anyway, the point being, a lot of this looks to be a direct attack on the kinds of illegal orders that Trump has been putting into executive order form. And so the mechanism of which can be confusing, I think, because those executive orders were illegal already, they shouldn't have been actionable. So I don't know, what does this do then, if it was already not okay, and now we're gonna say it's not okay still? What changes?

**Joshua Erlich [00:59:49]**
I don't know if there are great answers for that. The thing to remember about the executive orders is that they are basically a memo to the executive branch. It is not more than that. They are not law. They're not legislation. They don't have the force of law in general. It is a memo to the people that work for you telling them how to interpret laws that already exist.

**Trent R. Nelson [01:00:25]**
So it might be conceived of as a glorified "best practices" memo, in some degree.

**Joshua Erlich [01:00:30]**
Yeah, absolutely. And those things that were illegal in the executive orders remain illegal. They can't be. And to some extent there are situations where you can go and get them enjoined and litigate them. But some of these executive orders we've seen from the White House are just general policy documents or rants about various things. But the answer is, to the extent that whatever they pass is inconsistent with an executive order, the law is going to take precedence. The executive order is not going to override what's in the law.

And let me also add, when we're talking about schools and churches and you said hospitals, I obviously agree with that. The other big category should be people who are complying with the law, who should not be punished for complying with the law. Which includes courthouses. So if you get a traffic ticket and you show up at the courthouse to pay your traffic ticket and comply with the law, or if you're not getting paid minimum wage and you file a lawsuit to get your minimum wage, that should have nothing to do with your immigration status. And you shouldn't find yourself arrested because you were there complying with the law.

And that's without even getting into these folks that are in the asylum process, who they've arrested, who have done nothing wrong and are at their immigration hearings. Those people especially, people that are doing everything they can to comply with the laws, whether it's the immigration laws or whether they're in court asserting their own rights, those are not people that should be falling into a trap by doing that. Or what you end up doing is creating a permanent underclass. You have a class of people that can't access the legal system.

**Caitlin M. Green [01:02:13]**
Right, who are at their immigration hearings.

**Caitlin M. Green [01:02:38]**
Yeah. People for whom the legal system is not available.

**Trent R. Nelson [01:02:53]**
And again, by making these places unsafe for people, we actually encourage law-breaking. We encourage folks not to come to court. We encourage folks not to send their children to school. You're not feeling well, your daughter has a fever. Can't bring her to the hospital because what if we get snatched up? And so this becomes a fundamental issue in terms of how do we have a fully functioning society?

And I feel like it's not like an oversight that these sorts of things are being done. They want to create an unsteady and uncertain society. They want to disjoint us. And if that means that the little girl can't go to the hospital, like, "We hope that they go to the hospital, because then we can abduct them." And that's one more tally for us.

But I mean, to your point, Josh, I'm looking at some of these executive orders, and EO 14117 to rename the Gulf of Mexico the Gulf of America. I mean, you can't executive-order, "We're now conceiving the water as wine-dark instead of blue."

**Caitlin M. Green [01:03:12]**
No, you could end up like Diana.

**Caitlin M. Green [01:04:11]**
Remember when language policing was "woke"? It was always the left that was policing your language. And now I'm not allowed to say "Gulf of Mexico." What gives?

**Trent R. Nelson [01:04:24]**
But we have to come back to reality at some point. And I'm looking forward to a time where our executive orders will be like, "Protect people," instead of, "Call things different names."

**Caitlin M. Green [01:04:37]**
Or they'll actually be like, "Here's how you should interpret existing law," which is what they're for, as opposed to, "I hereby decree, because I decided, here's how you're going to do things." This doesn't make any sense.

**Joshua Erlich [01:04:42]**
Right.

**Trent R. Nelson [01:04:50]**
No sense. Straight Lord Farquaad stuff. Well, Joshua Erlich, you're no Lord Farquaad. You are the man. And we certainly appreciate you coming as always you do to speak about civil liberties, to speak about civil disabilities. Of course, many are currently facing some civil disabilities from our federal government, but it won't last forever, Josh. Unlike your Skeets. Tell us where we can find all of your work, whether it's on Bluesky or elsewhere. Maybe folks need to contact you because they're being diminished to some degree by the government. Where can they find you?

**Joshua Erlich [01:05:20]**
Sure. My social presence is almost entirely on Bluesky, and you can find me there. If you need help with something, my pinned post has our contact information and the contact information for some, at least one employment civil rights group, more broadly. And other than that, that's basically where you can find me.

**Caitlin M. Green [01:06:06]**
It's almost like you're doing a bunch of real work offline that you can't just post a link to. That's so weird.

**Trent R. Nelson [01:06:16]**
We appreciate it so much, Josh. Thank you so much. Well, you know that understanding a question is half of an answer, and this is of course Half the Answer with your hosts Trent R. Nelson and Caitlin M. Green. And until we do this thing all over again, I'll be seeing you.

**Joshua Erlich [01:06:18]**
Absolutely. It was a pleasure to be here. A great time.

**Caitlin M. Green [01:06:21]**
Thank you, Josh.