Transcript

How much of what ICE is doing is illegal?

From Pod Save America · Episode page · Watch on YouTube

· 1 h 3 min · 11,200 words · 101 timestamped sections

This is the full, timestamped transcript of "How much of what ICE is doing is illegal?", an episode of Pod Save America published January 18, 2026 (1 h 3 min, about 11,200 words). It mentions 14 people, works and ideas, including Department of Justice, Lawless, University of Michigan Law School, ICE, Simply Safe.

What is discussed, and when

  1. – 10:00: Lawless, Department of Justice, University of Michigan Law School, Simply Safe Home Security
  2. – 20:00: Simply Safe
  3. – 30:00: Armor Colostrum, Armor Colostrum, Graza
  4. – 40:00: Department of Justice
  5. – 50:00: Section 1983

Notable quotes from "How much of what ICE is doing is illegal?"

  • Getting arrested and shot and killed what tools are left to stop a masked and seemingly lawless federal force? Are there legal avenues available to anyone to push back against…
    about Lawless · at
  • Significant precedent we have on it actually comes from an opinion of the executive branch, the department of justice, back from the civil rights era. And what that memo…
    about Department of Justice · at
  • Potsafe, America, is, brought, to, you, by Simply Safe Home Security, which unlike our politics is built to see trouble coming and shut it down.
    about Simply Safe Home Security · at
  • Positive, America, is, brought, to, you, by Dose. Can we talk about the most underrated organ in your body, Tommy?
    about Dose · at
  • This, episode, of, Positive, America, is brought to you by Graza. Everyone knows I like to cook. I like to cook with my family. I like to cook with my friends.
    about Graza · at
  • Your energy, and weaken your immune health. Your body isn't broken, it just needs the right inputs. Armor colostrum is nature's original blueprint for health. Colostrum is…
    about Armor Colostrum · at
  • Now Congress, in the aftermath of the Civil War passed this law called section 1983. It's a general civil rights statute, and that's the law that allows you to sue state and…
    about Section 1983 · at

Who and what is mentioned in this episode?

Books & papers

  • Lawless — Book · Referenced work · 2 mentions · first at
    Mentioned as a book authored by Leah Litman, a guest on the podcast.

Companies & orgs

  • Department of Justice — Company · Business focus · 2 mentions · first at
    Discussed in the context of its handling of the Renee Good case and its relationship with the Trump administration.
  • University of Michigan Law School — Company · Affiliation · 1 mention · first at
    Mentioned as the affiliation of Leah Litman, a guest on the podcast.
    Joining me today to help answer those questions and so many more is Crooked's very own Leah Litman, who is host of Strict Scrutiny, a professor of law at the University of…
  • ICE — Company · 7 mentions
  • DHS — Company · 1 mention

Products & tech

  • Simply Safe — Product · 3 mentions · first at
    Potsafe, America, is, brought, to, you, by Simply Safe Home Security, which unlike our politics is built to see trouble coming and shut it down.

Concepts & topics

Sponsors

  • Armor Colostrum — Product · Sponsor · 3 mentions · first at
    Promoted as a sponsor of the podcast, offering a health supplement.
  • Graza — Product · Sponsor · 1 mention · first at
    Promoted as a sponsor of the podcast, offering olive oil products.
  • Armor Colostrum — Sponsor · Sponsor · 3 mentions · first at
    Sponsor of the podcast, mentioned during the episode.
    That's graza.co and use the code crooked to get 10% off. Pave America is brought to you by Armor Colostrum. Feeling sluggish bloated, not like yourself? Life bombards us with silent threats.
  • Dose — Sponsor · Sponsor · 2 mentions
    Sponsor of the podcast, mentioned during the episode.
  • Graza — Sponsor · Sponsor · 2 mentions
    Sponsor of the podcast, mentioned during the episode.
    This, episode, of, Positive, America, is brought to you by Graza. Everyone knows I like to cook. I like to cook with my family. I like to cook with my friends.
  • Simply Safe Home Security — Sponsor · Sponsor · 1 mention · first at
    Sponsor of the podcast, mentioned during the episode.

Full transcript with timestamps

Welcome to Pod Save America. I'm Alex Wagner. As most of the country now knows, last week an ICE officer shot and killed Renee Nicole Good, prize-winning poet, hobby guitarist, wife, and mother of three. The fallout has been massive. People across the country are stunned by what happened in Minneapolis and what continues to unfold in the state. They have been perhaps equally shocked by the reaction from the White House. DHS Secretary Christy Nome declared that Good was a domestic terrorist. Vice President JD Vance said ICE agents should have absolute immunity and the Justice Department is now pushing to investigate Good's widow, Rebecca Good instead of the ICE officer who killed Renee Nicole Good. A decision that's resulted in the resignation of six career prosecutors from the US attorney's office in the state including the acting US attorney for Minnesota himself, Joseph Thompson, who by the way was a Trump appointee. The

problem with the administration's attempt to offer its own politically convenient reality here is that Renee Good's killing was caught on video. It has now been seen by millions of people and their verdict seems pretty clear. Most Americans reject the idea that Good was a domestic terrorist. A CNN poll found that registered voters called the incident inappropriate by a 2 to1 margin, 56% to just 26%. Meanwhile people in Minnesota have taken to the streets to protest what is literally a 3,000 agent ICE invasion into their state. That response has only escalated tensions. Federal agents have been filming protesters and pulling them from their cars and slamming them to the ground. In one case, a protester was shot in the leg. It is pretty clear that ICE, with the support of this White House, is using extraordinary and extreme force here, all while allegedly pursuing criminals and the quote worst

of the worst. But if protesters are getting arrested and shot and killed what tools are left to stop a masked and seemingly lawless federal force? Are there legal avenues available to anyone to push back against ICE? How do you stop mercenaries if the guy they're working for is the president of the United States? What happens when that guy threatens to invoke the Insurrection Act? and when and how will Renee Good's family ever get justice? Joining me today to help answer those questions and so many more is Crooked's very own Leah Litman, who is host of Strict Scrutiny, a professor of law at the University of Michigan Law School and author of the book Lawless. Leah, it is always so great to talk with you, but especially after this week, I have so many legal questions. First of all, how the is this happening in the United States of America? But that's a more more than just a legal question. That's

an everything question. But let's start first where at the place where I think a lot of people found themselves perhaps most alarmed, which is the thing that's I get I will grant always worries when Trump says it, but especially right now. And that was his threat this week on Truth Social to invoke the Insurrection Act if quote Minnesota officials don't act to stop the professional agitators. Just as a side note, there are no professional agitators. Um, can you give us a kind of legal breakdown on what it actually means to invoke the Insurrection Act and what powers that actually confers?

Yes., So, the, significant, upshot, of, the insurrection act is it provides an exception to what's known as the posiccomatus act. Um that is the law that generally forbids the federal military from engaging in ordinary law enforcement. Basically it prevents the federal government from deploying troops to arrest people for a violating federal law or you know an immigration offense or you name it. So right now, you know we have already seen the disastrous effects of these surges of deployments of ICE officers, CBP officers, HSI officers. And the concern is what if you then add on or replace them with the federal military, which isn't, you know trained to do ordinary law enforcement.

They're not necessarily trained in how to deescalate situations. And so that is I think the practical on the ground effect of invoking the insurrection act. It allows the president to use the military in ways that he has thus far not and basically been prohibited from doing. I have to ask because when he says he's going to invoke it, what does that mean? Like is that does is Congress anywhere involved in any of this? So the insurrection act is an act. It's a law. Um, and as a law, it lays out the circumstances and conditions under which the president can invoke the insurrection act. There's really an open question about whether courts can review the president's determination that the prerequisites for invoking the insurrection act are indeed satisfied.

There's also the related question of if they can review that determination, will they give the president deference? That is the benefit of the doubt and all of those kind of related questions. And historically, you know, the insurrection act is so rarely used. The most significant precedent we have on it actually comes from an opinion of the executive branch, the department of justice, you know, back from the civil rights era. And what that memo concluded is the Insurrection Act is really designed to allow the president to deploy the military when state and local officers are affirmatively engaged in or facilitating the private violence that the president is concerned with. So think about for example the segregationists of you know the Jim Crow era who attempted to block you know together with private mobs students from going to integrated schools. Those are the circumstances in which presidents

are historically invoking the insurrection act and as a legal matter are thought to have the authority to invoke the insurrection act. And there are precisely zero circumstances on the ground that suggest Minnesota is anywhere near approaching that situation. Instead, all of the evidence is state and local law enforcement are trying to deescalate the situation right? Allow federal law enforcement to do their job, but also enforce state law in the process. And there's just no indication that they aren't capable of doing, so, either., I, I, guess, one, of the things I you mentioned that you know it's a it's a law and therefore maybe subject subject to judicial oversight. Who would have standing to to sort of sue to stop the president from invoking the insurrection act? Would the state of Minnesota? So I think a bunch of different entities. One would be the state of Minnesota because we have

already seen the injuries to the state from the mass deployment and surge of ICE officers. Businesses in Minnesota have shut down. Hospitals are limited. State public services are feeling the strain. It is more difficult for the state to enforce state law given the violations that the federal officers themselves, you know, are engaged in. So, it's clear that this surge and deployment, you know, injures the state. So, the state is one possible entity. It is also possible you know that individual citizens or religious organizations or other groups that are being harmed by you know the targeting of different communities and the obstruction of public services in the state could also sue. So those are two yeah different categories. We s we sit here we're recording on Friday uh the 16th of January and Minnesota or sorry Minneapolis and St. Paul public schools are offering virtual learning I think

until midFebruary because there's so many children and parents who are terrified of going to school and one would assume that they would have standing to say hey this you know whatever ramping this up if you do invoke the insurrection act is causing great harm to our children's education.

Exactly. Um, and, nobody, hates, a, school, closure more than the right wing. So that would be an interesting moral conundrum for them. I mean, the last time I believe an American president invoked the Insurrection Act was George HW Bush during the LA riots, right? But prior to that, it was kind of I was looking at a timeline, thank you, USA Today, of of when it was most invoked. And it looked like, the, 1870s, was, kind, of the, high watermark for the invocation of the Insurrection Act.

Exactly., What's, going, on, in, the, 1870s? It's literally the aftermath of the Civil Civil War and, you know, the continued rebellion of the former Confederate States. So yes, the insurrection act is used at that time when HW Bush invoked the insurrection act in and around the LA riots in 1992. How did that happen? It was actually at the request of state officials. So he had their consent. So this is an instance where the state is basically saying, "We don't have this. Can you help us out?" And that is consistent with the tradition that the insurrection act reflects, which is not using the federal military to overpower state law enforcement when they can handle it.

Oh,, imagine, that., The, invitation, of, the state back when invites were when, consent, mattered.

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That's d a ly.co/crooked for 35% off your first month subscription. New, videos, emerge., It, feels, like, every day. I mean, just a few days ago there's a video of federal agents seen on video dragging a woman from her car during a protest and throwing her to the ground as they try and clear the streets. And I'm reminded as these videos come across the transom of the words of the governor of Minnesota earlier this week who said, "If you see ICE agents, hit record." Which is which is something people are doing and props to them because that's not without some potential peril. But I wonder, you know if you're a lay person and you're living in, one, of these, neighborhoods,, or, even if you're not, what levers exist for people outside of government to hold ICE accountable beyond their camera phones?

I mean, I guess I just want to emphasize the power of the camera phone because in the short term, you know, it is possible that those cameras could provide evidence in state criminal cases, you know, against officers or in civil litigation against them. But even if that doesn't happen in the short term, I hold out hope that they would be useful in some sort of accounting for what is going on once we make it through this. And whether that is, you know, some equivalent of a truth and reconciliation commission, you know, where we acknowledge, you know, what the Trump administration was doing and the harms you know, that cause different communities and

in, the, future, times, when, he's, no, longer in power and we kind of wake up from the fever dream. Oo, Leah, keep talking about that. I I'm manifesting. Um it's one of my New Year's resolutions. You know, I I I don't want people to feel like, oh, I just have my camera and my camera phone. Like, is it even worth it? You know, I do think that that is important. Like, you you should do that. Um you know, beyond that, I think it's tough. You know, public shaming um sometimes works. We've also seen the videos, right, of the Minnesota nice approach, which is calling ICE officers now Nazis and telling them to get the out of here. Um, you know I'd have to think that if you go to work every day and people are screaming at you, you stink, get out of here. Maybe that's a deterrent, right, to continuing with that job. Now of course they are being way overcompensated and you know they're allowing anyone in so it's

unclear you know what effect that will have but you know public shaming you know that sometimes works. Um I think another thing is you know calling state local and federal representatives because they are in a position to potentially bring litigation you know in the event that Democrats retake Congress to hold hearings right to pass laws that actually would limit the ICE practices you know that we are seeing. So I think continuing to express to, you know political representatives that this is an issue that matters and that there are things you can do about it, that's important. And then beyond that, you know, this isn't really holding people accountable, but I do think there are ways that we as a community can support one another and protect the people who are most vulnerable. Whether that is neighborhood patrols, whether that is churches delivering food, you know whether that is agreeing to help someone

take their kid to school, you know, or run errands for them. There are many different ways that like we can all step in and provide, you know, some sort of safety net.

It's, not, just, trying, to, minimize, the power and terror of ICE. It's also trying to strengthen the resolve and resilience of the community itself.

Yeah. Uh, you, mentioned, they're, not, trained, and that I think is like something that is quite clearly um it's obvious when you look at these videos. Uh there are ProPublica has some essential really urgent reporting this week about uh ICE agents using banned choke holds on American citizens. And I would assume that you know because that is explicitly banned in the DHS policy guide book or whatever it's it's officially called. Does that then make it easier for those families and those victims to take their case against ICE to court? I know we're going to get into the difficulty of of civil suits with federal agents in a second, but just using explicitly banned maneuvers seems like it opens up a portal that maybe doesn't always exist. Yes, that's certainly going to be helpful persuasive evidence in the event you can actually get a court to hear the merits of your claim. Um, that is also potentially

helpful in defeating a defense of qualified immunity. um which you know are often times very strong and you know whittle out a bunch of meritorious suits but showing that the officers are in violation of a policy you know that they are supposed to follow can be helpful you know in overcoming that defense. Um so yes it's helpful it's just not the full solution to all of the obstacles to that kind of litigation. Yeah, I mean, we're going to get to JD Vance's assertion that ICE has absolute immunity, but I do, you know like I do wonder when you see these people being uh abducted and detained and arrested and violently thrown to the ground in establishments like the one I'm talking about, the chokeold uh video that is part of the ProPublica reporting happens in a restaurant supply store. A lot of this stuff happens right around or actually inside businesses. And I wonder from a legal standpoint whether business

owners have more agency in preventing ICE from acting so aggressively or maybe stopping the raid entirely. I mean how would that how does what what can happen in that space? Sure. So you know a business owner can restrict entry onto their premises. So some businesses post signs. You know ICE officers aren't allowed in with an administrative warrant rather than a judicial warrant. You know, we have also seen ICE just frankly overpower, you know, individuals and barge in, you know, without warrants and whatnot. But that's not to say, you know,, business, owners, can't, at least, you know, say this is the policy, you know, we're not allowing you in without some sort of judicial warrant. You know another thing that they can do, and just to just to stop you for one second often ICE doesn't have warrants, right?

They're just randomly, picking, out, places, where, it feels like there might be undocumented uh residents hanging out looking for work or actually working. Right. So that's not nothing that business owners can say you can't come in here without a warrant because that slows the process down process down at the very least. Right.

Exactly., And, slowing, it, down, is, hugely helpful. And then they can also refuse service to ICE officers. Right. No cookies for you. Um you know that also you know is going to minimize traffic um in the store. And so that, you know it's something else that they can do.

Well,, that's, that's, meaningful, also because last night there was a report that ICE officers arrested workers at a Mexican restaurant after the ICE officers had just eaten at the Mexican restaurant as if kind of like they wanted like I don't know tacos and like went in had the tacos and were like you know what, why, don't, we, grab, some migrants here as as long as we're done with our barbcoa.

Yes., Um, so, that, too, right, isn't, you, know meaningless you know just saying like to make their lives more unpleasant.

Exactly., Exactly. No, cookies, for, you. Slowing, it, down. You, know,, I, I, as, we, talk, about, sort, of what's happening on the streets, there's also the reality of what's unfolding behind closed doors. And I think if you have been disturbed by the treatment of both American citizens and non-citizens alike on the streets of Minneapolis or another major American city, there is reporting out this week about what's going on in ICE detention centers. That is very alarming. Um 2025 was the deadliest year for ICE in two decades.

There were 32 deaths in ICE custody. There have been several just this year alone. and we're on the 16th day of January. Um, can you talk to me about what the checks what checks are supposed to be in place as far as detention? And I would assume this is all subject to congressional oversight. Yes. So congressional oversight is supposed to be one check. That's why we've seen representatives show up to ICE detention facilities, right, and demand to inspect them. Um, that's also why this administration is pushing back on that because they don't actually want any oversight. They don't want it to come out. you know what is happening in these detention facilities and detention centers. But congressional oversight congressional hearings, you know, if Congress sees something going on, they can yank back ISIS funding and say "Look, okay, we are not going to give you this money unless you offer, you

know, the following protections, you know, for people who you are arresting detaining, and stopping." So congressional oversight and, you know Congress actually exercising oversight powers, whether that is limiting funding, conducting hearings, and whatnot. Those are all possibilities. But does if you're if you're in Congress, can you not go to an ICE detention center and demand to get let in?

So,, that, is, what, the, law, says., um, that is part of an appropriations writer and yet yet the administration has refused entry and indeed is prosecuting you know one of the Democratic representatives Lam Monica MacGyver who showed up to an ICE facility and attempted to engage in some oversight. You know she was initially refused entry there was a skirmish involving you know New York mayor Ros Baraka. Um she was subsequently let in and then afterwards you know they are charging her with assaulting an ICE agent

which, is, like, um, up, is, down, is, up., We are officially through the looking glass.

Uh, when, you, talk, about, the, tactics, I mean we were talking about Congress's role in all this and the fact that they're not trained and I just feel like that's another subject for Congress right? Like if we want ICE agents to receive proper training and I don't know not use ban choke holds and like use the most extraordinary and extreme measures to detain people who are largely peaceful. What like what what does that look like? Does it just have to be you know House Republicans and Senate Republicans agreeing that this is unamerican and this shouldn't happen and doing something legislatively about it or what? Well, hopefully, you know after January 2027, um, you know, it doesn't look like that and, you know, a Democratic controlled House and Democratic controlled Senate, you know could pass funding restrictions on ICE you know, so long as ICE doesn't institute training and certain protections. Now, the president is

likely to veto it. Um but right I still think it is important to like press the case for look we are just trying to ensure that basic principles of due process are being followed and that we are not housing people right in these grotes conditions. You know there was a report a medical examiner concluded that one of the people in ICE detention he ruled his death a homicide. Um so you know that has to be the sort of thing that politicians you know find worth fighting for and they are willing to continue to appear at these facilities and you know if and when they get a majority you know they attempt to um provide some oversight and then also some accountability you know in actually allowing potential litigation against ICE officers to go forward. And yet we still I mean the person who was reportedly killed uh was I believe strangled to death but also had a sort of violent criminal record which makes

it not okay to kill him in jail under federal custody but it does make it politically more complicated for Democrats to rush to his defense I think or anyone to rush to his defense. Not that that is warranted necessarily but it makes the calculus a little bit more complicated. I mean big picture here like as we look at the state of Minnesota, right? I mean what re what legal recourse does the state actually have here? And let me just drill down on that a little bit more and say could in theory because this is something that's been floated in multiple interviews I've heard with um the mayor Jacob Fry if not the police chief. Can the local police in Minneapolis go after ICE agents? Yes.

um you know federal officers are not allowed to violate state and local criminal law. Um now prosecuting those officers is difficult because what happens is they argue as a defense that they were merely carrying out their federal duties. And when you know state law, a state criminal statute conflicts with a federal statute authorizing an ICE officer to do A, B, or C, the federal law is going to win out. But that just means those cases come down to was the ICE officer acting within the scope of their powers. Were they doing things that were reasonably necessary to carry out their responsibilities? I think from videos it is clear they are going way beyond that. But that's just part of what makes those cases difficult is they are often litigated in terms of was the officer doing, you know something that is reasonably necessary to carry out their duties. And it's not often, you know, that you have, frankly

this brazen or this widespread of federal officers so systematically going beyond the scope of their duties. And so the fact that we haven't seen that many state prosecutions of federal officers that's just because historically, you know, the federal government doesn't behave like this. Those were the before times, right? When you didn't have basically Trump's masked thugs out there just ripping people from their cars and uh places of work and places of worship and hospitals, right?

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Okay,, let's, talk, about, the, aftermath, of the shooting, right? Because an interesting thing happened at the US Attorney's Office. Six federal prosecutors resigned this week over the Justice Department's handling of uh Renee Good and her case and specifically the Justice Department's push to investigate Becca Good, who is Renee Good's wife, at the same time refusing to open an investigation into the ICE agent who shot Renee Nicole Good. First of all, your just reaction to that and what legal grounds do they have to just have such an asymmetrical and unusual uh pursuit in terms of their investigation?

That was so gling to read. I mean, I cannot imagine being a person who was willing to move forward with an investigation into the widow of the shooting victim rather than the person that shot her. You know, this is very much part of their campaign to dehumanize, you know their victims. It doesn't really matter who the victim is. If you get in their way, their view is you've lost all of your rights. You've lost your humanity and they can just tar and feather you with whatever label strikes them as convenient, and they will lie their way through it and use the full force of the federal government to try to do so. Um that was one of the more horrifying, I think, things that has come out about this administration in an administration that finds new horrors every hour of every day. And, you know, for me, during the first Trump administration, the child separation policy was one of the more just horrific, grotesque policies.

And I remember thinking at the time anyone who was involved in that should never again be welcome in polite society. That hasn't panned out.

No,, Steven, Miller, still, there., certainly hope that this time around like anyone who thinks it is remotely appropriate to use law enforcement powers against the widow rather than the ICE officer like they just cannot be eligible for any future position of authority. um you know as far as you know the like legal questions of how can they do this not to take it all back to the Supreme Court but to take it all back to the Supreme Court you know in the court's absolutely horrifying immunity decision in Trump versus United States they went out of their way to affirm that investigative and prosecutorial functions were the core exclusive power of the executive branch and president and so exclusive to the president Congress can't pass laws that limit the president's exercise of those functions.

And in that very case, there were allegations that the investigations were shams, that the threatened prosecutions were for improper purposes. What did the Supreme Court say? That doesn't matter. That doesn't make them beyond the scope of the president's power. So, I guess it's not that surprising after you have the Supreme Court tell Donald Trump, you can use your federal law enforcement power to target anyone you want for any reason that he would go ahead and do that. I mean, just the Roberts court coming back to just make things just a little bit worse every single time.

But, six, federal, prosecutors, resigning from the case, these were career prosecutors. One of them was the acting US attorney who was appointed by Trump and is involved in another case that Trump is really obsessed with. But first, just what are the implications of the case moving forward if you lose like the six top people in the office who are supposed to be put pushing the investigation forward and hopefully that slows it down. So that's one potential benefit. You know, a second potential benefit is something we've seen play out in his effort to install his former personal lawyer, insurance lawyer Lindseay Halligan, you know, into a position of authority, which is if it's only dumb hacks that you can find to do the job, they're not going to do it well. And so it's quite possible that any attempt they might make at actually doing a prosecution or securing an indictment wouldn't fly because

it stumbles on their inability to dot their eyes, cross their tees, and read. And then, you know, the final kind of thing it might do is it just colors the public atmosphere and potential assessment of a claim of like vindictive prosecution, right? If like all the career prosecutors resign because they're uncomfortable. handling this case. That's pretty good evidence to the judge uh that this case uh stinks. Oh that's really interesting. I mean, also if the whole point of the investigation is to have sort of the final word on what really went down, this is a great way to engender public confidence in the report. Psych. No, it's not. It's like the very opposite of that. Nobody is going to take this and say this is a genuinely like nonpartisan independent report that's, you know, seeks to find the truth. This is a tool for Trump to you know, act politically in in his own favor. Joseph Thompson, who's the US

acting US attorney for the state of Minnesota, who just resigned because of the way the DOJ was prosecuting this case, was also the lead prosecutor in the I think it's the feeding our future case where 58 people were convicted in a scheme to steal $300 million from government uh child nutrition programs. There are still 20 more defendants who are awaiting trial. Trump is upset. I actually think indep in addition to George Floyd and that unfolding in M Minnesota, the involvement potentially of Somali uh immigrants in all of this the sort of racial underpinnings that that sort of color the dynamic in in Minnesota right now. He he loves speaking ill of of immigrants and brown people and they're both there in in Minnesota. I mean, I think that's this case is in many ways why he's been most recently attracted to the state and now the guy that pursued the case that was leading the investigation has left. Does

that derail that case a little bit? I, mean,, it's, going, to, slow, it, down. I, mean,, not, that, sorry,, just, not, that I'm a fan of fraud. It's just the the way in which there's clear partisanship that's like be the the the judicial system is being employed for partisan political gain. And um you know entire communities are being painted with a broad brush in really uh dilitterious way really in a really bad way and in a really divisive and cruel way. That is the not good part of this case. Pursuing justice for fraud is a good thing. But sorry to my original question. How does that affect the pursuit of this case and the prosecution of this case? So, at a minimum, it's going to slow it down right? Because if you change out, right all the prosecutors who all of a sudden have to get up to speed on the case familiarize themselves with it, they are going to have to take time to do that.

Um, but second is what you were just saying is this further politicization of the Department of Justice is going to undermine public confidence in that case. Even though you know there are very serious real allegations of fraud you know that deserve to be held accountable but when you just destroy public confidence in institutions like DOJ that doesn't go away even if you know the stop clock occasionally has a meritorious case or two that it pursues. Then there's the case itself, you know independent of who they're interviewing and who they're harassing whether it's Renee Good's widow or her child or any of the other people who are family members of the victim here.

There's the fact that the FBI shutting out um M Minnesota police and their investigative agencies. Um the FBI taking over the entire investigation. How unusual is that from a legal perspective? It's very unusual. um at least in cases like this where there's just no reason to suspect that you know the state law enforcement apparatus is compromised right or somehow engaged in the commission of the crime. You know it's state and local law enforcement that have primary responsibility for investigating crimes. You know the vast majority of people who are detained and have criminal convictions have them by virtue of state and local law and state and local prosecutors. So these are individuals who have more experience and more familiarity with the local, you know, the people who are potential witnesses, the communities. And so it is not common to just entirely exclude right, this very helpful, you know

array of experts um who have expertise and perspectives that you lack. And you know the lack of cooperation between state and federal law enforcement you know was also one of the signal flaws that led to the creation of the department of homeland security. The idea was you know they would ensure there would be continued cooperation and communication between state and federal authorities but obviously that proved inconvenient at this moment and so they just dispose of you know that project. That's so insane. I for of course like all my 911 911 happened 120 years ago.

Yeah, of course DHS was created to solve that problem and it's just been recreated single-handedly by the Trump administration. But I mean you when you screw over the people that need to be helping you and the people whose files and evidence you need, that's probably going to hamstring the FBI's investigation. No, I would think so. But again, they're not engaged in a serious investigation. you know, they are just engaged in an effort to try to find some way to smear Renee Good and to come up with heavily doctorred footage, you know, that suggests the ICE officer, you know, wasn't at fault. And so, they probably don't really care. I mean, they definitely don't care about actually uncovering what happened because if they did, they wouldn't have released real-time statements that already stated their predetermined conclusions. they wouldn't have excluded these law enforcement officials, you know, from

participating in the investigation. So all of their behavior to date just suggests they don't really care. What's the timeline do you think for this investigation? I mean, I can't remember. I mean, with high-profile cases like this, what what is what what kind of month turnaround are we looking at?

Um,, I, really, don't, know., I'm, not, sure that there is like any sort of like standard across high-profile cases. You know, it probably depends on, you know whether they feel like they have spoken to everyone on scene, whether they have collected all available video. So, it's a little bit hard to know exactly, you know, what it might take. I mean, part of it is also going to depend on some of these high-profile cases often involve hate crime charges, and those often take longer because they require uncovering additional evidence of motive. And so you know, could it be again that they are looking for some evidence related to that? I don't know. That could prolong an investigation. So, it's a little difficult to say like we should expect it to be, you know, wrapped up within this window or that. Something tells me it's not going to be done on an expeditious timeline. You'll hear a little bit more from Leah in one quick

sec, but first some housekeeping. On the latest episode of my show, Runaway Country, I interview Michael Moore, the former chief of police for the LA Police Department, because he offers some very interesting and I'm going to say controversial perspective on how law enforcement is looking at the events of last week and understanding what exactly happened to Renee Nicole Good. And then the bull works Tim Miller joins me to question the parallel realities Americans appear to be living in despite ample video footage and even in cases of life or death. We take visits from Earth One to Earth 2. Tune in to Runaway Country wherever you get your podcasts or check it out on YouTube.

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seek justice from the federal government and from from ICE. Why? First of all why is that? Yeah. So, as we were kind of previewing earlier, there are a bunch of obstacles that, again, getting back to the Supreme Court, the Supreme Court has created to actually sue federal officers for violating your rights. Um now Congress, you know, in the aftermath of the Civil War passed this law called section 1983. It's a general civil rights statute, and that's the law that allows you to sue state and local officers who violate your constitutional rights. That's what's called a cause of action. Like, it is the legal authorization to bring suit. Congress has not passed a similar law that allows you to sue federal officers for violating your constitutional rights. So what happens then? Well, back in the good old days, you know, the Supreme Court stepped into the breach in a case Bivons versus six unnamed agents of the

FBI. The Supreme Court said when your rights are violated by a federal officer and you don't have another remedy then you can sue those officers for damages. You know, the Bivvens case was you know, some law enforcement officers who break into a guy's house, you know ransack it, force him to stand naked and then they don't try him for anything. And often times when the government violates the Fourth Amendment, they do so in the course of obtaining evidence that they use at your trial. So, what's your remedy then? It is asking the court to exclude that evidence. That remedy isn't available if you're not charged with a crime. And so in Bivvens, the Supreme Court said for people like Bivons, it's damages or nothing. And in that circumstance, we recognize that courts have the authority to afford traditional forms of relief like damages. So that used to be the case. This court hates bivvens.

Um, they, have, basically, limited, it and, precedent., I'm, just right., And, precedent,, the, law,, the, rule of law, accountability for government officers, the list goes on. Democracy multi-racial democracy. how long do we have? Um, and they said, you know unless you are suing a federal officer for a constitutional violation that basically is on all fours and exactly like one of the three prior cases where we have recognized a bibbons cause of action, you're out of luck. And so, you know, because we are seeing this unprecedented surge in immigration enforcement, engaging in unprecedented constitutional violations there aren't prior Bivven cases that say you can sue an officer under these circumstances, even though like Bivons you know, for Renee Nicole Good and her family, it is Bivvens or nothing.

you why did why did we why did Congress not pass a law that that matched the law that was passed in the post uh in the reconstruction era? So I think there are several different explanations. One is so long as the Supreme Court was like filling in the gap, it was just a less pressing need because there weren't this slew of cases, constitutional violation after constitutional violation where the court was saying you have no remedy. you can't sue the officer. So, I think that's part of it. And then honestly kind of like the leadup to the Supreme Court overruling Row versus Wade, people failed to appreciate the direction that the court was headed in, right? like they didn't see where the court was going when they actually had the opportunity to do something, you know when they had the supermajority in the Senate, you know, and could have passed you know, federal protections for abortion rights, federal protections for

individuals whose constitutional rights are violated by federal officers. So that's the kind of, you know hindsight's 2020 sad aspect of the story. The positive spin I am choosing to put on it is as follows. This is one of those rare circumstances where Congress can easily fix something the Supreme Court has up. All they need to do is just pass a law, amend 1983, and say applies to federal officers, too, and that fixes the problem. That was actually the op-ed uh by two law professors this week who suggested that that Congress should pass something called the Renee Good Civil Rights Act basically to account for the gaping hole that exists in our judicial system which makes it very impossible I should say in this day and age to sue federal officers for wrongdoing. I mean so that would just be an act of Congress. So simple, so easy, Leah.

Yeah,, I'll, just, snap, my, fingers., Um, or maybe if everyone in the world claps their hands at the same time a Congress will appear. Oh my lord. Okay. I mean that then gets me to a sort of a big question here because you've said to a number of answers you have invoked the the uh the highest court in the land the Supreme Court. And

I, think, the, lowest, court, in, my estimation but seriously,, girl, preach., Um,

for, a, long, time, it's, felt, like, the courts have been the bull work against the Trump administration, right? Especially in the immediate aftermath of inauguration day, right? They're preventing executive overreach or the hollowing out of federal agencies. But that I think thinking that the courts are always there as a failafe doesn't really hold up. I mean, New New York Times report recently found that that Trump's the the appellet judges that he has picked have ruled in his favor 112 times compared to the 13 times they have ruled against him. So, give me your sort of like um big picture analysis on how the courts are functioning here in terms of where they've slowed or blocked his agenda and where they've ultimately given him a hall pass. I think the federal trial courts have done a really admirable job in generally trying to hold the president and the administration accountable to the law. Um, and I think

it's no accident that that is why we have also seen the Supreme Court steadily narrowing the power of district courts, you know, to issue nationwide injunctions or to issue other forms of relief, you know, that would be effective against this administration. Um, I also think it's no accident that we are seeing this administration put forward even more extreme um, nominees than they did during the first administration. You know, the ones who are voting for them, you know, 90 plus% of cases, you know, who are some of the people they have appointed to the federal courts in the second term, Emil Bet, you know, the guy who literally came up with the strategy of trying to evade court orders and allegedly reportedly said, "We'll just say you to the courts." That's that guy.

Cool., Cool., that, guy, on, the, court, of appeals. Exactly. Lifetime tenure. Um the guy who also attended a Trump rally after he became a federal judge.

You, know,, there, are, also, people, that they have put up for the federal district courts who have described themselves as zealots on the issue of fetal personhood. The idea that the constitution requires abortion to be illegal nationwide. So they are slowly transforming the federal courts particularly the lower federal courts that have proven effective um at checking this administration. So you're right, we can't count on the federal courts to always be there. You know, we have to take a belt and suspenders approach to thinking about our rights.

You know, as we were talking about Congress should have codified protections for row, you know, not just relied on the idea that the Supreme Court was always going to stick to precedent. Um, and we also need to think about what these institutions should look like in the postTrump world because, you know, again, thinking proactively, we should think about how can we safeguard our institutions and like harden our democracy so that we don't slip back into this when we finally pull ourselves out

in, the, after, times, when, he's, no, longer president and there's a truth and reconcil truth and reconciliation committee and we begin to rebuild our democracy. I just want to get your thoughts s since I have you here as our legal eagle um on some really high-profile cases that are making their way uh through the courts. On Tuesday Scotas weighed in for the first time on trans athletes participating in women's sports. And for years, most of those decisions have been left to state and local organizations, right? But the Trump administration is is pushing to make the ban a federal issue. Um and some sources say that justices appear inclined to uphold it. can't imagine the Robert's court.

What's your feeling on how that's going to shake out? I think the best case scenario is the justices say the state bans on trans girls and trans women, you know, participating in sports don't violate Title 9, the federal law that prohibits sex discrimination in, you know, educational institutions and services. That's the absolute best case. From there, it only gets worse. It's possible they will also say these bans don't violate the constitution's equal protection clause. Um that would be worse because it would foreclose, you know, another potential claim that could be used to challenge these bans. Um the lower court in this case suggested they needed more evidence in order to weigh that claim. And so the idea that the Supreme Court will just go ahead and resolve it after the lower court said we need more evidence, right, should be some indication of how aggressive right, they are inclined to be with

respect to trans rights. And then still worse is the possibility, oh yeah, that they're not going to do it in this case but there's a possibility that some justice floats the possibility that Title 9 itself forbids the participation of trans girls and trans women um in women's sports. And so then it's not just, you know, that you can't challenge states where, you know, states have laws that ban trans girls and trans women. It's also that states won't be allowed to include trans girls and trans women. So that's the range of possibilities.

Rooting for the first one real hard. Wow. Um it feels like this the federal government has real leverage over states uh where this is being fought out and the education department is also fighting Maine, California, Minnesota over efforts to cut off federal funding because those states allow trans girls to compete on girls sports teams, right? That's those are this is sort of a parallel situation. That's multifront litigation. You know, they are also targeting hospitals, you know, that provide gender affirming care and research universities. you know they are targeting schools you know that again you know provide inclusive policies you know for trans students and trans athletes. So they are engaged in this allout war on the existence of you know trans people and their ability to basically participate in society. I mean, I feel like what the connective tissue between what's happening with that group of

people and what's happening with migrants and brown people in the country is just a sort of brutalization and, a, de, dim demunition, of, their humanity. And I I worry that the impunity with which this administration is going after people they they deem not worthy of belonging in this country that that is is going to give them license to in I don't know legally be as as aggressive as they possibly can be and shoot for the moon in terms of um punishing or otherwise dehumanizing people that that don't fit within their political agenda. I mean, that that actually really worries me that they see what they can do in a place like Minneapolis and they're like, "Oh, yeah.

You think we can get trans girls out of sports?", Yeah., Well,, we're, going to, do that plus. Exactly. I mean, I think people have noticed this in the case of Renee Nicole. Good. Right. Like, it didn't really matter who she was. She's a white woman. um she is now the enemy you know, and they are just willing to lump in anyone who again they like harbor animist toward or who criticizes them or tries to stand in their way. Like they will dehumanize all of those people and just like attempt to normalize the state violence, you know against them. Well, and they're betting that the fact that Renee Nicole Good was a lesbian gives them a pass to torture her family in the wake of her death and smear her name and her story nationally with the full force of the federal government, right? And nothing's going to stop them. In the same way that if you're an observer standing there with your camera phone, and we've seen videos

of this this week, they can push you down to the ground regardless of whether you're, you know, following the law and an American citizen and have every right to be doing what you're doing. There's just a sense of lawlessness that is held on the part of the law itself. It is terrifying, Leah. It's absolutely terrifying. And the idea that there is no longer a consensus in this country that federal agents shouldn't be going doortodoor, carto hauling people out throwing them on the ground and assaulting them. I mean, I would have thought, you know, before January of 2025, if you just showed anyone a video and you didn't tell them right, who the officer was and who the target was, everybody would say, "We don't do that here. That's not okay."

And now they have polarized this where again they are asking for permission from their ideological allies to engage in this kind of violence against anyone and everyone. And it is clear there is just no low they won't stoop to um in order to you know traffic in some ostensible justification you know for what they're doing. Let me ask you one more question just as I think about this because I you're doing you're conjuring the spectre of a future where there is no Trump administration and I want to live in that future for just a moment but if you're Christine Gnome or Steven Miller who's the you know sort of one of the architects of all of this and it's like one could say knowingly and willfully recruiting people who are either unqualified or uninterested and following the rules and violating the rights of American citizens. like are you hoping that Trump's preemptively pardoning you before you before he

leaves office and what is your expectation because so much of this feels like okay for now you guys can do this because the circumstances are in your favor right? Um but there is going to come a time for uh accountability and there is going to be come a time for the legal and judicial system to hold you um responsible for for the the crimes that have been committed in the country's name. So, like what's your expectation as far as Trump's exit and like with this stuff in his rearview mirror what's legally possible for him to do? I mean, I would assume everyone in the administration gets a preemptive pardon.

What do you what do you would imagine that scenario is like? It's possible that that's what they are hoping for and that that's what they will get. But honestly, I also think they are telling themselves two things. One is that Democrats just don't have the spine. They don't have the backbone. They would never, right, actually hold anyone meaningfully legally accountable. I mean, you had to drag Merritt Garland's DOJ right for years in order to get them, you know, to potentially investigate Donald Trump's role in January 6. And so I think they can look at past practice and be like, okay, like we're dealing with these spineless people. You know, they're not actually going to do anything. So that's probably part of it. Um, and then I think another, you know, more terrifying lens is they don't really imagine or see a world where Republicans are no longer in power. They are acting like they will

have a strangle hold on power for the foreseeable future. And so they're just not bothering to worry themselves with the possibility of a regime that isn't controlled, you know, by someone like Steven Miller or JD Vance or, you know whatever creepy weirdo um, you know, is milling about with them. Well, I'm here to say that what we have seen and part of the reason you see some some semblance of a spinal cord uh, in Congress is because the people, the citizens of this country are out there on the streets. people who are not normally out there with camera phones following a line of ICE officers as they inflict terror upon communities. They are enraged. They are engaged. I sound like I'm running for office, but they're there. You know, people have their eyes open to this stuff. And if the Trump administration thinks that the citizenry will go quietly into this good night, I think they got something else coming for

them from, lips. Oh, my, god,, Leah., It, is, such, a, joy., I mean, it's not a joy to talk about this stuff, but it is so helpful and un It's great to see you, but it's also so important to get a real sort of legal understanding of what's possible and what isn't possible, the challenges and also the opportunities that exist for all of us as we um witness and you know bear witness to this insane chapter of American history. So, thank you, my friend, for your time and and your brilliance. And everybody should listen to strict scrutiny cuz it's the best.

Well, thank you. Happy to come back anytime. And you know, if you are looking for something to call your representative about, call them about a bivven fix. Call them about abolishing qualified immunity for ICE. You know you name it. There are specific asks you can make, you know, in order to build a movement around and to organize people around. Just we're going to put that at the bottom of the screen. Just call your representative and ask for a bivvens fix 1800. No, I don't know. It's not a 1800. It should be just to get to the switchboard, but you have to look up your representative's phone number. But do it cuz it's worth it cuz these are the times to make big calls. Leah thank you. Thank you. That is our show for today. Thank you, Leah Litman, for joining me. John, John and Tommy will be back in your feeds on Tuesday.

Questions about this episode

What is discussed in "How much of what ICE is doing is illegal?"?

In order: 0:00 Lawless, Department of Justice, University of Michigan Law School, Simply Safe Home Security; 10:00 Simply Safe; 20:00 Armor Colostrum, Armor Colostrum, Graza; 30:00 Department of Justice; 40:00 Section 1983.

What is mentioned in this Pod Save America episode?

14 people, works and ideas are mentioned, including Department of Justice, Lawless, University of Michigan Law School, ICE, Simply Safe, Bivens. Each one on this page links to its own page with every episode that mentions it.

How long is "How much of what ICE is doing is illegal?"?

The episode runs 1 h 3 min; the transcript is about 11,200 words in 101 timestamped sections.

More from Pod Save America

About this transcript: the episode's spoken words as captioned on YouTube, split into timestamped sections. Reclip.Me locates every person, work and idea in the text, keeps the time it is first named, and quotes the words around it verbatim. Last updated January 24, 2026.