MARY:
Hey everybody. Look who’s here. Yes, indeed. It is the most awesome Joyce Vance who, as most of you know, has a brilliant Substack called ... What is it called? What’s it called? Oh shit. Civil Discourse. Civil Discourse. And you know the reason I got tripped up because I remember when you were starting it, I was advocating for calling it uncivil discourse.
JOYCE:
You had a role in naming my Substack.
MARY:
Yeah, but I wanted you to name it something that it shouldn’t be so I couldn’t remember, is it uncivil? Is it civil? It’s Civil Discourse.
JOYCE:
It might should have been uncivil discourse. I mean, you did have a premonition.
MARY:
Well, unfortunately, but I think much more importantly, everybody needs to subscribe to it. I read it every day. It is essential reading because Joyce, nobody does what you do as well as you do it, which is to break down for us lay people what is going on in terms of the rule of law and the DOJ and other things in this country. I don’t know that I ever would’ve imagined that we would be living in a time when the rule of law was under such assault and almost everything going on in this country with a few exceptions centers around the legal process, the judiciary, et cetera.
So I want to just start by talking about breaking news. Walk us through what happened with the judge who was arrested, indicted, and tried for essentially harboring an immigrant.
Tell us what happened with this, quite frankly, shocking verdict. Obviously there’s more to come.
JOYCE:
Right. There’s still an appeal to come, absolutely. But last night’s verdict and the jury is deliberating. They ask a couple of questions. The questions suggest that they’re going through the evidence very carefully, that there’s something that they’re working through. They order pizza. That’s always a sign that a verdict is coming. They’re not going to go home. They’re going to get dinner and work straight through. So we knew at that point that something was up. But the verdict, as you say, Mary, was really surprising. There were two counts in this indictment. The first count was a misdemeanor. They acquitted on the misdemeanor, but they convict on the felony. And of course, the jury, something that prosecutors can’t discuss in front of juries is sentencing. So the jurors would certainly not have been in tune to the relative severity of the counts, the one that they acquitted on, the one they convicted of.
Their job is just to look at the elements of the crime, which the judge explains to them and decide whether the government has proven it beyond a reasonable doubt. And they convict on what prosecutors call a 1505 count obstruction of a federal proceeding. And that has pretty serious consequences for the judge if that conviction holds up on appeal. And that of course is a big if because there’s a very live question about judicial immunity.
MARY:
Okay. So why is it shocking that we got a conviction in this case?
JOYCE:
Here’s what I saw in this case. We had a judge who was trying to keep order in her courtroom who was trying to avoid a media circus. It happens in an environment where that court and many others, quite frankly, had not figured out what their policy was vis-a-vis ICE making arrests in courthouses, which in one sense, that’s good. ICE knows that people in courthouses have been screened so they don’t have weapons, so it’s a safe scenario. So you can get why they want to go there. The problem is it really tamps down on court’s ability to do their jobs and keep communities safe. For instance, women will not come forward and report or testify in domestic violence cases when there are immigration risks involved. So that’s just one example. It discourages participation. And you will see law enforcement broadly and state courts in particular restrict where in their building ICE is able to be.
This courthouse had not yet adopted a policy. And so Judge Dugan was referring ICE to the chief judge saying, “You need to go talk to the judge about what can happen.” And then she takes the non-citizen involved in this case out one of the doors in her courtroom. It’s not the main entrance. It’s like 10 feet away from the main entrance. To me, it really looked like it just was inconsequential, certainly not obstruction because the non-citizen goes right back out into the main corridor and ICE arrests him. So I was very surprised by the jury’s verdict, but let me say this, Mary, juries hear all of the evidence. They’re able to look at witnesses and judge their demeanor. We leave it up to juries in this system to decide what the facts in a case are. And I have great respect for jury’s verdicts even when I don’t agree with them.
I think that they’re the people who saw everything we did not. And we trust them to make that decision subject only to an appellate court’s review of it.
MARY:
Yeah, I agree. I’m worried, quite frankly, about this verdict.
JOYCE:
I am too.
MARY:
What I find, it’s almost like fruit of the poison tree. Why was this case brought? And it seems like a malicious prosecution simply because--and I’m not a lawyer--however, I don’t trust Donald Trump’s Department of Justice. I don’t trust Pam Bondi. So it’s the fact that this case was even brought that I find most worrisome.
JOYCE:
Yeah. I mean, I agree with that very strongly. Here’s what I would’ve done had I been a US attorney in this situation, sort of tough to imagine, but let’s suspend disbelief.
I would’ve gone across town to the state courthouse, sat down with the chief judge who as a sitting US attorney, it’s my job to have a warm relationship with the state judges as well as the federal judges. And I would’ve said, “Listen, what happened earlier this week, that was a real problem. Can we get clarity on your policy so I can direct agents to comply with it so that we can make these immigration arrests in a way that’s safe for everybody, but doesn’t interfere with your operations?” It would not have occurred to me to indict Judge Dugan. It would’ve occurred to me to develop policy and to work with the state court for the future. That is most definitively not what happened here.
MARY:
Right. And are you concerned that this is going to have some kind of domino effect?
JOYCE:
Absolutely. I’m concerned. The reason that state court judges and federal judges have immunity for their conduct in the course of their jobs, their official activities, the reason that they have that immunity is so judges focus on their cases and they’re not worrying about getting sued. And that doctrine is not a new doctrine. That goes back to the common law in 17th century England. So it’s deeply seated. It’s a little bit unusual. State court judges don’t usually get prosecuted in the federal courts, so there’s not a lot of case law. There is one case out of the First Circuit in 2020. The government has, by the way, tried to use that case to say federal judges don’t have immunity from criminal prosecution, but that’s not what that case says. That case just says the judges cannot appeal on the grounds of immunity before their trial. You have to wait until after trial.
So that case just does not resolve the issue at all. Judge Dugan has had her trial and her verdict, and now she can appeal and ask a court to consider her immunity.
MARY:
Just so we know the level of seriousness, what’s the potential sentencing.
JOYCE:
Yeah. So the statutory maximum here is five years. Her actual sentence will be much lower than that under the federal guidelines. She’s a first time offender. She could be looking at zero to six months. That’s the lowest category under federal sentencing guidelines and no jail time at all. She probably will get, this is sort of inside baseball on the sentencing guidelines calculations, which are very complicated, but there is an available enhancement for someone who abuses a position of trust. If I were a prosecutor, and if I believed in this case, I would probably try to get that enhancement and at least put her in home detention for a while. But it’s the fact of the conviction that has consequences. She’s now a convicted felon. There will be bar proceedings. She will lose her career. There will be collateral consequences for her ability to make a living.
And look, the point that you make, I think is the right one. This is a case that would not have been brought by a responsible justice department.
MARY:
Which brings me to the next topic. And everybody who’s watching on Substack Live: Hi! Joyce and I are here hanging out talking about fun things like the dismantling of the civil service and the DOJ weaponizing the rule of law to go after judges.
JOYCE:
It’s always so much fun to hang out with you, Mary.
MARY:
Isn’t it just? Actually, someday we are going to hang out and not talk about this stuff, or maybe these things will stop happening. That’s something that we can hope for. In the meantime, however, and this is something you’ve written about a lot, and we’ve talked about it together. What is the word to describe the horrors that have been committed against the civil service and civil servants in America? And something that’s been worrying me since the very beginning is that your rank-and-file American citizen does not understand what the civil service is, who civil servants are, and therefore they don’t understand the implications of what the Trump regime has been doing, certainly since January 20th, but we know that they’ve been planning this since the first Trump administration. So can you just try to help us put that in context?
And I also want to see if there are ways we can figure out how to help people understand what has been done, what’s at stake, and what we can do.
JOYCE:
This is such an important insight because Donald Trump and really the entirety of the conservative movement, it’s a Heritage Foundation goal, has successfully bashed federal employees for years. They’re portrayed as being lazy, fat, ineffective, taking money and not working. We heard conservatives talk about the nanny state and talk about executive branch employees in particular who were just making it so hard for business to do its job. And the reality is this, career federal bureaucrats, and the term bureaucrat has become a pejorative, but it just means employees. These are people who are committed to good government, to making government work for people. It’s like all the lawyers at the Justice Department who until this administration were not political folks, people who kept their heads down and protected Americans, but also people in public health, also climate scientists, other scientists, educators at the Department of Education across the board, people who served the American people day in and day out, and in many cases, thanklessly, certainly as a Justice Department lawyer, I made far less money than I would’ve made in private practice,
But I loved the job. I loved the ethic of private service. And I think that’s shared widely in the bureaucracy, people who are committed to helping. And that’s one of the crimes I think of this administration is not just demonizing federal employees, but absolutely shutting down entire agencies, entire offices, because they run afoul of what Donald Trump’s whim of the moment is, whether it’s Doge and Elon Musk, claiming that there was fraud, where there wasn’t fraud, right? Shutting down agencies like USAID, which had real world consequences, people died when that agency was shut down. Americans were spending pennies on life-saving medical care for people in foreign countries. And if you want to talk about the reason that’s in our best interests, it’s because it helped those countries remain stable, right?
MARY:
That’s right. Yes.
JOYCE:
When there’s instability abroad, we are impacted at home. So lots of problems happen when you demonize the federal bureaucracy, but most of all, it plays into the two themes of this administration, kleptocracy, corruption, and kakistocracy and competence. And we’re certainly seeing both of those getting out of bounds now.
MARY:
Yeah. I want to get back to the original topic, but just quickly, as you mentioned, the dismantling of agencies like USAID: one, that’s part of the reason a lot of farmers are going bankrupt because the funds that went into USID paid American farmers to ship their produce overseas to help struggling communities. It is the complete abdication of United States soft power, which lowers our standing in the world in many ways, but it’s also just the abject cruelty because as you said, for pennies on the dollar, we were saving lives. We were preventing children from dying from easily preventable diseases and starvation and other things. So it is all of a peace, I think, and that’s what we see happening with the civil service.
JOYCE:
Our standing in the world is diminished, which is intangible, but important. I saw someone post on one of the social media platforms earlier this week, and now I’ve forgotten who it was, that America is giving off dying mall vibes, and that just breaks my heart.
MARY:
Yes, indeed. Dying mall vibes, speaking of which, one of the agendas is to create an imperial presidency, but they want a unitary executive. They want to give Donald all of the power and independent agencies become dependent on the whims of the executives. So I’m talking about the case in which the corrupt illegitimate super majority of the Supreme Court seems poised to allow Donald control over the hiring and firing of people and agencies that heretofore had been independent of executive control. And the case is the precedent at riskier is Humphrey’s executor with reigned in executive power and Chief Justice Roberts referred to Humphreys as a dried husk. And getting back to your point, I wanted to read a quote from the brilliant Justice Jackson, “So having a president come in and fire all the scientists and the doctors and the economists and the PhDs and replacing them with loyalists and people who don’t know anything is actually not in the best interest of the citizens of the United States.” That to me encapsulates what you were saying.
This civil servants are experts. Some of them are experts in government, some of them are experts in vaccines or education and all of the other things you mentioned, and we are becoming more and more of a kakistocracy every day by replacing expertise with sycophancy. So what do you think is the antidote or what is a way to counter the argument that government is bad, which we can blame Ronald Reagan for? Remember he said famously, “Government is the problem, but Joyce, you know better than anybody, the government is us. So if the government is a problem, then we have the power to fix it, don’t we?
JOYCE:
I think that’s absolutely true. And look, Mary, we grew up in a world where we had the luxury of taking democracy for granted. We assumed that this country would always be a democracy. The Constitution was solid and that meant it was safe to criticize problems without coming up with solutions. I mean, for my entire, even before my adult life, I mean, starting in the Reagan years, I recall criticisms about Congress that was enmeshed in gridlock and couldn’t get anything done. And instead of doing what we’re entitled to do under the Constitution, which is as citizens insisting that our elected representatives represent us instead of representing themselves, which is what far too many of them do, we just were complacent. We were happy to complain. It’s like your parents, right? You know your parents are going to always be there. You can complain, you can talk about how terrible they are, but you don’t try to fix the relationship.
I think that’s where many Americans were with democracy. Congress, we saw problems. The Supreme Court, not subject to an ethics code. People complained about that for years, but nothing was done to fix it, which of course permitted us to wander into the issues that that court now has. If there’s a lesson in this moment, it’s that democracy is a participatory sport and we are obligated to engage in it in ways that we haven’t done before. Adopt it as your hobby or take it on as your side job, but it’s not enough to sit on the sidelines and assume that other people will fix our problems. Getting through this moment is the obligation of every American working together.
MARY:
Yeah. And I think part of that mission is recognizing the importance of civil servants and realizing that the Trump regime hasn’t just come in and given the DOJ, for example, a different mandate because that changes administration to administration. In fact, many people stayed at the beginning of this year because they had been through the first Trump administration. They were like, “Okay, it was bad, but it wasn’t that bad. We were still operating within the same bounds.” That’s not true anymore. So I think it’s really important for people to realize that it’s not just a civil service that’s getting dismantled, which will be awful for all of us, but people’s lives, their professional lives, their lives work are being destroyed. And these, as you mentioned, are people who are in it to be of service. Anybody, any DOJ attorney could go to some white shoe law firm and make 10 times what they make at the DOJ and they choose to serve us and that continues to get lost.
So we need to be shouting that for the roof stops as well as, I don’t know, what do you think about maybe helping people understand that probably the most important issue we need to grapple with is reforming the Supreme Court.
JOYCE:
Supreme Court reform is increasingly important. I think it’s important to say this though, federal district judges and courts of appeals judges across the country, they’re really the unsung heroes of this era because in a moment where the president and his cronies are perfectly content to target those judges, even to call them out by name, to say that they should be impeached or to say that they’re engaged in treason and to put them at their families at great risk, these judges continue to stand up and do the right thing. They decide their cases not for or against the administration, but on the basis of the rule of law and whether you agree or disagree with individual decisions, that level of commitment to their oath of office, to the job, to the rule of law, it is something that we owe them a huge debt of gratitude for.
And that’s a good lead into saying that those judges in many cases feel increasingly abandoned by the Supreme Court. Justice Kagan in a recent dissent on a shadow docket case made that point that the court was trying to supplant the role of district court judges who are closer to the facts and who are left to determine the facts because they hold hearings and conduct trials and take witness testimony and are better able to judge on those sorts of issues. The Supreme Court needs an ethics code. I just think that it’s a non-starter to maintain that the Supreme Court is somehow above the fray and can’t be brought to heal by anybody else. Yes, there’s an enormous need for judicial independence, but not at the cost of ethics. And there are ways to do this. Congress can pass an ethics code. The court itself could adopt a binding one and use retired judges as the enforcement mechanism.
But look, you cannot have Supreme Court justices expecting expensive vacations, payments for housing, what have you, from people who have interests in litigation that comes in front of the court and expect Americans to have confidence in the court’s integrity. And that’s what this is all about. The court does not have an army to enforce its decisions. All it has is the public’s confidence that it’s doing the right thing because cases that go to the Supreme Court, those are cases that are so difficult that we can’t resolve those among ourselves privately. A lot of the time people have disagreements and they resolve them privately. Sometimes they have to go to court to get a resolution. Only the most difficult cases go to the Supreme Court. And that’s why every damn last justice on that court is obligated to live their life at the foot of the cross to maintain their behavior and their family’s behavior.
I’m just going to be frank about that in a way that means that their integrity is above question. My father-in-law was on the 11th Circuit Court of Appeals. My mother-in-law understood what that meant. My husband and I understood what that meant. My father-in-law once recused off of a case because my law firm in Washington was involved in it. He certainly didn’t have to recuse. He did it out of an appearance. There would’ve been an appearance of impropriety. That’s how good judges conduct themselves. And this court, quite frankly, is ripe for reform.
MARY:
I agree. I also want to say that your father-in-law was a beacon and a role model. And it is a shame that he’s not still around to demonstrate how it’s done, demonstrate what integrity is and what the rule of law means.
JOYCE:
We were sort of fond of him.
MARY:
I know. I wish he were still with you and all of us. Before we let everybody know what the real name of your Substack is, because again, open parentheses civil closed parentheses Discourse
JOYCE:
You argued vigorously and you’re still making the argument, but it’s Civil Discourse.
MARY:
You are a big influence in my life. Whether or not you can influence me to watch Hallmark movies remains to be seen.
JOYCE:
I’m a bad influence, but a big influence.
MARY:
You’re an awesome influence. All right, everybody, again, thank you so much for being here with me and the inimitable Joyce fans whose civil discourse is compulsory reading. Go subscribe if you haven’t already. I’m sure most of you already have. And please don’t forget, Joyce, as she mentioned, has been on a book tour. Her book came out a couple months ago. It’s called Giving Up is Unforgivable: A Manual for Keeping a Democracy. It’s brilliant. Of course it is because Joyce wrote it. So go get that as well. And Joyce, anywhere else people should be looking for you other than Substack and the bookstore?
JOYCE:
What I hope people are doing is looking for the community of us, right? For you, for our good friend, Katie Fang, for all of the folks who bring information about the Constitution, the rule of law, government. But most of all, I hope everybody’s going to rest up, have a good time over the holidays and be ready for this incredible marathon. We’re going to run going into the 2026 midterm elections, all hands on deck. So get ready if you need a good dose of hope, but of reasonable hope, because I am not Pollyanna. Pick up my book. Your local library probably has it at this point, so you don’t even have to buy it, but I explained the constitutional basis for us to fight back in very, I hope, accessible terms. I’d love it if you’d all take a look as we get ready for 26.
Well,
MARY:
If you read Joyce’s Substack, you know that she is brilliant at making the difficult
JOYCE:
It’s embarrassing me now.
MARY:
No, but it’s true. You make it accessible for the lay people among us, including me. And you provided extraordinary service. So thank you, Joyce, for all of that for being my friend. I love you. Love you too. Everybody do what Joyce says. Rest up. 2026 is going to be amazing. All right.
JOYCE:
Here we go. Democracy fights back.
MARY:
That’s right. See you guys.
JOYCE:
Bye y’all.
