BROOKE GLADSTONE I'm Brooke Gladstone. And this week you'll hear about the court case that almost set the course for reproductive rights. It started with an Air Force captain who was pregnant.

 

SUSAN STRUCK The regulation said if you're pregnant, you cannot be active duty. If you have a child, you cannot be active duty.

 

NEIL SIEGEL Mothers, unlike fathers, were deemed unfit to serve.

 

SUSAN STRUCK No way. No way are they going to do this to Struck. Susan Struck is not going to fall for this crap.

 

RUTH BADER GINSBURG It would have been my choice for the first reproductive freedom case to come before the U.S. Supreme Court.

 

DAHLIA LITHWICK Wise, judicious man would be helping women make good decisions about what was best for them.

 

NANCY PELOSI The Republican controlled Supreme Court has achieved their dark, extreme goal of ripping away a women's right to make their own reproductive health decisions.

 

BROOKE GLADSTONE From Susan Struck to Roe v Wade and beyond. After this.

 

[END OF BILLBOARD]

 

BROOKE GLADSTONE From WNYC in New York, this is On the Media. This week, the Supreme Court handed down several big decisions.

 

[CLIP MONTAGE]

 

NEWS REPORT We begin tonight with that US Supreme Court ruling, saying that private religious schools cannot be excluded from a program that pays tuition for students in more rural areas of our state.

 

NEWS REPORT The Supreme Court has rejected a restrictive New York state law that limited who can carry a concealed weapon. The six three decision ruled the law violated the Constitution.

 

NEWS REPORT Today, a ruling by the United States Supreme Court could change the way we think of Miranda rights. Under this ruling, a suspect who wasn't warned of their right to remain silent may not be able to go and sue the arresting officer for damages. [END CLIP]

 

BROOKE GLADSTONE But the decision most stunning, even though we knew it was coming ever since the draft decision was leaked last month, was this:.

 

[CLIP]

 

NEWS REPORT The Supreme Court has overturned Roe versus Wade. Let me just repeat that, because this is a huge moment for the United States. The Supreme Court of the United States has overturned Roe versus Wade, the abortion rights ruling.

 

NANCY PELOSI Today, the Republican controlled Supreme Court has achieved their dark, extreme goal of ripping away women's right to make their own reproductive health decisions.

 

NEWS REPORT So the immediate effect of this will be to uphold a mississippi law that would ban abortion after 15 weeks. But this also now means that in roughly half the country, abortion is as of now or soon will be illegal. [END CLIP]

 

BROOKE GLADSTONE The three justices in the minority, Stephen Breyer, Sonia Sotomayor and Elena Kagan wrote, quote, With sorrow for this court, but more for the many millions of American women who have today lost a fundamental constitutional protection. We dissent. But Roe, dead now at almost 50 had a turbulent life from its conception.

 

[CLIP]

 

NEWS REPORT Good evening. In a landmark ruling, the Supreme Court today legalized abortion. To raise the dignity of woman and give her freedom of choice in this area is an extraordinary event. And I think that January 22nd, 1973, will be an historic day.

 

PROTESTOR Obviously, it's a concern for all women. All women Face the problem of forced childbearing. [END CLIP]

 

BROOKE GLADSTONE But many would never accept this solution.

 

[CLIP]

 

POLITICIAN 20 years ago, abortion may have seemed the easy way out for a society reeling from the collapse of a moral consensus.

 

POLITICIAN Yesterday, the Supreme Court said that Roe v Wade was still alive if substantially restricted.

 

POLITICIAN Roe v Wade was a very bad decision. Barbara I think it was a bad decision,.

 

POLITICIAN As Mike Pence has said for decades. I want to put Roe v Wade on the ash heap of history. And this is something I think Kavanaugh will do.

 

PROTESTORS [CHANTING] Roe v Wade, Roe v Wade, has got to go! Roe v Wade, Roe v Wade has got to go! [END CLIP].

 

[CLIP]

 

RUTH BADER GINSBURG What a great organizing tool it is. You have a name, you have a symbol: Roe v Wade.  You can omit that. [END CLIP]

 

BROOKE GLADSTONE The late Justice Ruth Bader Ginsburg marking the 40th anniversary of the ruling at the University of Chicago in 2013. It was a great organizing tool, she said, for the anti-abortion movement.

 

[CLIP]

 

RUTH BADER GINSBURG How often has the name Roe v Wade been the center of the opposition? That was my concern that the court had given the opponents of access to abortion a target to aim at relentlessly. [END CLIP]

 

BROOKE GLADSTONE The anti-abortion movement existed before 1973, said Ginsburg. But soon it was laser focused around a single goal: overturning this one Supreme Court case and creating a post Roe America.

 

[CLIP]

 

RUTH BADER GINSBURG Roe seemed to have stopped the momentum, which was on the side of change. Since then, momentum has been on the other side. The cases that we get now on abortion are all about restrictions on access to abortion. And not about. Expanding the rights of the woman. [END CLIP]

 

BROOKE GLADSTONE Roe v Wade framed the discussion about abortion for nearly half a century. In fact, Roe has been the discussion about reproductive rights, the stand in for women's rights of all kinds. An emblem of the culture wars. A symbol of our fractured politics.

 

[CLIP]

 

RUTH BADER GINSBURG There was another reproductive choice case before the court that term. [END CLIP]

 

BROOKE GLADSTONE Justice Ginsburg believed that we missed something crucial. What? What should we have talked about instead? And in a post Roe world, what we talk about now? In 2019, then OTM producer Alana Casanova Burgess and Jessica Glenza, the health reporter for The Guardian, went looking for the story Justice Ginsburg said we'd all missed. Alana sets it up.

ALANA CASANOVA BURGESS Let's start this hour with an alternate history, a road not taken.

[CLIP]

RUTH BADER GINSBURG Captain Susan struck against the secretary of defense. It would have been a life choice for the first reproductive freedom case to come before the U.S. Supreme Court. [END CLIP]

ALANA CASANOVA BURGESS It's an obscure one, but Ginsburg has discussed it often, even bringing it up during her confirmation hearing in 1993. 

[CLIP]

RUTH BADER GINSBURG She became pregnant while she was serving in the Air Force in Vietnam. Pregnancy in those days was a mandatory for discharge. [END CLIP]

CAPTAIN SUSAN STRUCK I mean, how could you be ready for worldwide duty if you have kids to take care of, you stupid woman, don't you know better? We're talking a long time ago, guys.

ALANA CASANOVA BURGESS Jessica and I met Captain Susan Struck, now retired Lieutenant Colonel Struck in Sierra Vista, Arizona. She lives 40 minutes from here near the U.S. Mexico border on 40 acres with a horse named Thunder, four dogs, four cats. She suggested we do the interview outside at Veterans Memorial Park, a patch of green flanked by two parkways

[AT VETERANS MEMORIAL PARK]

I noticed your hat. What does it say? 

SUSAN STRUCK I belong to the 12th Tactical Fighter Wing Association. They're all Vietnam veterans. 

ALANA CASANOVA BURGESS She grew up in a Roman Catholic family in Louisville, Kentucky. Struck was a high school freshman when she decided she wanted to join the military. Her way of avoiding domestic life.

SUSAN STRUCK I was not interested in starting a family, getting married, doing any of that kind of hokey stuff that young Catholic girls did back in the day. 

ALANA CASANOVA BURGESS So she studied nursing in college, joined the Air Force and ended up at Davis-Monthan Base in sunny Tucson in the late 60s. She fell in love with the landscape, learned how to drive, got a Camaro. It was her first time away from home.

SUSAN STRUCK I was a 23-year-old virgin and lost my virginity, liked it and said, I believe in God. I'm spiritual. I have my own feelings. I know where I am. And I'm not going to go to confession because it means that you're not going to commit those sins anymore.

ALANA CASANOVA BURGESS Well, a couple of years on, the Air Force asked her where she'd like to serve.

SUSAN STRUCK I put in for Thailand as my first choice and put in for Vietnam as my second choice, 

ALANA CASANOVA BURGESS Even knowing that the war was absolutely rage at that point? 

SUSAN STRUCK That’s what was important at that time. It's what the military does. Nurses are needed anywhere.

ALANA CASANOVA BURGESS One spring day in 1970, at a base in Phù Cát, Vietnam, she began to feel dizzy.

SUSAN STRUCK I sat down on a rock and I'm sitting there say, why in the heck did I get dizzy? I don't know. And I just. And then I just knew. I just knew I was pregnant. I said “oh s***,” because I'd run out of pills anyway. They were not available on the bases. They didn't cater to women's needs.

ALANA CASANOVA BURGESS What did you think about as the various possibilities? Did you consider abortion an option? 

SUSAN STRUCK That's when I was still at Phù Cát actually, because I figured the sooner the better an abortion would be it. But I would have to go someplace like Japan to do it. Nobody there could do it because that would be breaking the regulation that even if I had an abortion in Vietnam, I was in active duty and I would still be discharged 

ALANA CASANOVA BURGESS Because you were pregnant?

SUSAN STRUCK Because of the pregnancy. And I went to bed one night and I said, tomorrow I'll go ask our dispensary commander if I could have a trip to Japan. And I was gonna ask and that night I had a dream. And that dream was my fetus talking to me, actually. And, you know, it said “you’re my, mommy and I, I'll see you soon.” That type of a dream. And I just woke up, and I sat up in bed and I said, “No way, no way are they going to do this to Struck. Susan Struck is not going to fall for this crap.” I knew it was going to have to be court because I already knew that the regulations said if you're pregnant, you cannot be active duty. If you have a child, you cannot be active duty.

ALANA CASANOVA BURGESS So Struck kept her pregnancy a secret on the base. She started writing letters to her siblings, asking if they would adopt her baby.

SUSAN STRUCK It would tear me up if I never knew what happened with her. It would break my heart more so than it did anyway if I was not able to have any kind of influence with her in her life and not give her love and not let her know that her real mother loved her very, very much.

ALANA CASANOVA BURGESS Two friends, a married couple, where the husband was also in the Air Force, finally said, yes, they'd adopt the baby.

SUSAN STRUCK This is what I needed to do. I would have been a very, very unhappy woman if I had been sent home and left the military. And so it's going to work my way because I couldn't control the other crap with the military regulations. But everything else I could control. 

ALANA CASANOVA BURGESS Struck recognize this crossroad between motherhood and a career. Her mother had enjoyed working for a real estate agency and the company was going to help her get a realtor's license.           

SUSAN STRUCK She got pregnant, so she didn’t get to do that anymore. You know, we're talking about the 40s in the 50s and women just didn't work if they were pregnant or had kids, they were expected to be at home fixing supper.

ALANA CASANOVA BURGESS Struck had been transferred from small Phù Cát base to Cam Ranh Base in Vietnam on the South China Sea. There was a larger hospital closer to combat. And so month after month, she altered her uniform. Patients made lewd jokes. There were rumors. And then one day, the chief nurse asked her, Are you pregnant? 

SUSAN STRUCK I couldn't lie. How pregnant are you? I said seven and a half months.

ALANA CASANOVA BURGESS She knew pregnancy meant automatic, discharged from the military. So she went to her JAG officer, a legal adviser on base who connected her with the ACLU.

SUSAN STRUCK He said, well, how far are you really planning to take this, Susan? I said, I'll take it to the Supreme Court if I have to.

ALANA CASANOVA BURGESS Coming up, Captain Susan Struck gets a lawyer. This is On the Media.

[BREAK]

 

BROOKE GLADSTONE This is On the Media, I'm Brooke Gladstone. We've been exploring an unknown history in the nation's abortion argument from a time before Roe v Wade that offers us a new way to see this old issue. Ruth Bader Ginsburg said she would have preferred to see the court focus not on Roe, but on a different case. One that had come up in that same term. The case brought by Air Force nurse Susan Struck. Here's The Guardian's Jessica Glenza.

 

JESSICA GLENZA Harry Truman signed an executive order in 1951 saying that service women could not be mothers, whether by birth or adoption or any other way. Pregnancy meant automatic discharge. Once the military discovered Captain Susan Struck was pregnant, her supervisors were unmoved by her plea to give up her baby for adoption. Take a short leave to recover and then return to her job. She was ordered to leave Cam Ranh Base the next morning and go back to a base on the West Coast.

SUSAN STRUCK We were having my going away party and all of a sudden I remembered that I had promised myself I would write “Cam Ranh Base sucks” on the Office Club movie screen before I left.

JESSICA GLENZA Months before she had arrived at the base after hours in transit and told there was no food available. She hated the place right away.

SUSAN STRUCK I remembered it about 10 o'clock at night past curfew, and so I asked a friend of mine I said, “Oh my god, we gotta do something. We got to do something.” She says what? I said. “I can't tell you,” I said, “but we need some red paint.”

JESSICA GLENZA She showed us the photograph and there it was “CRB sucks”, an act of defiance spelled out in huge red letters. Back in the states, there was more to come.

[CLIP]

NEWS REPORT A 26-year-old general Air Force captain, a nurse, unmarried, expects a baby within a few days. And so the Air Force is trying to discharge her, but she has blocked it in court. By this weekend, she figures to be the first officer ever to the Air Force's knowledge to have a baby on active duty. [END CLIP]

JESSICA GLENZA The legal battles spiked her blood pressure, and she spent the last two weeks of her pregnancy in a hospital. Tanya was born in December and she stayed with Struck until just after Christmas. Then it was time to hand her over to friends.

SUSAN STRUCK I flew up to Nebraska to hand over Tonya to them and to sign the paperwork for adoption. 

JESSICA GLENZA What was that like? 

SUSAN STRUCK Can’t talk about it. Hurt like hell. While I was there, I wouldn't let anybody else hold her but me. And when they took me to the airport, I was holding her and I got out of the car, gave her to one of her adopted brothers to hold. And I said, I said, I'll see you, baby sun, because that's what I was calling her, baby sun. And I cried all the way into the airport, all the way onto the plane, all the way to St. Louis, where I got out to visit my brother. And he says, you know, I really was half expecting you to get off the plane with your baby. And I said, you have no idea how close I came. But there would have been too much a fight and it would never work. My object was that I was going to stay on active duty. And also have something to do with changing the rules.

JESSICA GLENZA Struck got a total of seven discharges from the Air Force, most coming long after her daughter had been born. She thinks it's a record.

[CLIP] 

NEWS REPORT Captain Susan Struck was scheduled to be discharged in the army at midnight tonight. She'd had a child while in service and that's against regulations. But today, Miss Struck, she is not married, got an order from Supreme Court Justice Douglas preventing her discharge until the issue was thrashed out. [END CLIP]

[CLIP]

NEWS REPORT She put her infant daughter up for adoption last December but the Air Force still sought to have her discharge under existing regulations. [END CLIP]

NEWS REPORT Today, the 9th U.S. Circuit Court of Appeals in San Francisco rejected Captain Struck’s plea and concluded that, “there is a compelling public interest in not having pregnant female soldiers in the military established.” [END CLIP]

NEWS REPORT Susan Struck as an unmarried captain in the Air Force who had a baby in 1970. She is a Roman Catholic who would not have an abortion. The baby has been given up for adoption. The Air Force wanted her discharge, but she got a court order keeping her in the service until a court could rule on the constitutionality of the Air Force's actions. Today, the Supreme Court said it would rule on Ms Struck’s case early next year. [END CLIP]

JESSICA GLENZA Among strikes attorneys was Ruth Bader Ginsburg, then at the ACLU’s Women's Rights Project.

ALANA CASANOVA BURGESS This is from Ginsburg's confirmation testimony in 1993.

[CLIP]

RUTH BADER GINSBURG Because no man was ordered out of service because he had been the partner in the conception. No man was ordered out of service because he was about to become a father. [END CLIP]

ALANA CASANOVA BURGESS Struck’s case happened in 1970--essentially the beginning of the gender equality movement. In 1971, the High Court had decided the Equal Protection Clause applied to women, too, but they could still be fired for getting pregnant. Meanwhile, Ginsburg was set to argue the strict case the same term as Roe vs. Wade.

DAHLIA LITHWICK One of the problems in thinking about Roe today is that it was never planted in the firmest possible soil and then it became easier to take whacks at. 

ALANA CASANOVA BURGESS Dahlia Lithwick covers the courts for Slate and hosts the Amicus podcast. 

DAHLIA LITHWICK We forget through the rearview mirror that Roe was not actually rooted in a mother's bodily autonomy or dignity. When you go back and you read the Roe opinion, Justice Blackmun, he had been counsel at the Mayo Clinic. He was obsessed with the doctor's rights in that case. 

ALANA CASANOVA BURGESS In fact, as The New Yorker noted a few years ago, Justice Blackman's decision has 48 references to physicians and only 44 to women. 

DAHLIA LITHWICK By locating the right somewhere in that conversation or relationship between a woman and her doctor, again, always a man in Justice Blackmun's construction. You really did privilege the physician, if not over the woman, at least on equal footing with the mother. It was simply that's what the court understood was that these wise, judicious men would be helping women make good decisions about what was best for them. But it elides the central moral agent here, which is the woman. And because of that, I think it set Roe up to be more teetery than it needed to be. It was not planted in the soil of women's dignity, women's economic equality, women's autonomy, and no less a person than Ruth Bader Ginsburg in the years since Roe actually deplored that. 

ALANA CASANOVA BURGESS In Roe, the justices routed the right to an abortion in terms it already recognized: privacy or liberty. A woman should be free to make this private decision with her doctor, and the government shouldn't get involved. Although they also split the right into trimesters with more leeway for government regulation further into the pregnancy, Ginsburg made the privacy argument in Struck too, but she rested it primarily on equality grounds. And she has said that this is the case that got her to think in those terms.

[CLIP]

RUTH BADER GINSBURG The one thing that distinguishes women from men is that only women become pregnant. And if you're going to subject a woman to disadvantageous treatment on the basis of her pregnant status, which was what was happening here, you were going to deny her equal treatment under the law. [END CLIP]

ALANA CASANOVA BURGESS Senator Hank Brown, a Colorado Republican, asked Ginsburg about it directly.

[CLIP]

SENATOR BROWN I could see how the equal protection argument would apply to a policy that interfered with her plan to bear the child. Could that argument be applied for someone who wished to have the option of an abortion as well? Does it apply both to the decision to not have an abortion as well as to a decision to have an abortion?

RUTH BADER GINSBURG The argument was it's her right to decide either way. Her right to decide whether or not to bear a child. In this case, it was her choice for childbirth. The government was inhibiting that choice. It was the price of remaining in the service. [END CLIP]

NEIL SIEGEL The military policy toward abortion at the time was both more permissive and more coercive than civilian policy. And this is pre-Roe or abortion was illegal in most circumstances around the country.

ALANA CASANOVA BURGESS Duke Law Professor Neil Siegel clerked for Ginsburg in 2003. She declined to speak with us for this story, but Siegel has interviewed her about the Struck case.

NEIL SIEGEL This is the court. I would love to have it known that during the Nixon administration, armed forces bases were offering abortions to women in the service and the dependents of men in service.

ALANA CASANOVA BURGESS In fact, in July of that year, 1970, the Department of Defense issued a formal policy on abortion. It was the first we were able to find mentioning it explicitly. “Abortions were to be permitted at military base hospitals, even in states where it was illegal.”

NEIL SIEGEL That's the permissive part of it. And also more coercive rights. If you want to keep your job in the military, then you have to terminate the pregnancy.

ALANA CASANOVA BURGESS Even if that was in secret in Japan, Struck says she was never offered an abortion by the Air Force. But she and other women knew the option was implied. In her brief on the case, Ginsburg also emphasized Struck’s Catholic faith, other service women were more free to make that choice than the captain was, and Struck said that she would take her vacation time to recover from the pregnancy, way less than what men got to recover from all kinds of ailments.

NEIL SIEGEL Could be a broken leg, could also be drug addiction, alcohol abuse. There was no automatic discharge for any of that. And so pregnancy, unlike other disabilities, was grounds for immediate discharge regardless of individual circumstances. And mothers, unlike fathers, were deemed unfit to serve.

JESSICA GLENZA And so this was to be a counterintuitive abortion rights case in which a white middle class woman with an exemplary professional record was choosing birth and the Air Force’s policy was making it impossible. The case illustrates a blind spot in the debate around abortion. If government can compel pregnancy. In other cases, it can also compel abortion. It's not just abortion denied, but reproduction controlled.

NEIL SIEGEL The fact that she chose birth at a time when the military was in effect coercing abortion made this case an especially sympathetic one in which to try and persuade an almost entirely all male judiciary that regulations of pregnancy implicate basic questions about women's equality, women's equal citizenship statures, as Justice Ginsburg would put it. And it's happening at a time as well as emerging out of a history in which you had poor women of color being coerced without their knowledge or consent. They come in to the hospital for other surgeries and they end up being sterilized or as a condition to receiving various forms of care that they weren’t seeking. And this case raised the issue of coercion without requiring the court to squarely confront the issues of race and class, given who Captain Struck was.

JESSICA GLENZA Through the captain's dilemma, Ginsburg was also hoping to strike at another problem, one that hasn't been resolved even a half century later.

NEIL SIEGEL That it's wrong for the government to act in ways that reflect or reinforce the inferior social status of traditionally excluded groups, including women. Whether it could be pregnancy discrimination, it can be various forms of sex classifications, it can be various restrictions on access to contraception, to abortion that they're all part and parcel of a separate spheres regime, but also harms women as a group and reinforces their inferior status.

JESSICA GLENZA We were able to find figures for just how many women in the U.S. Air Force became pregnant from 1969 to 1971--just over 4,000, 9% of all women in the Air Force discharged for being pregnant. But the Supreme Court would never hear the Struck case. Perhaps fearing the case was a loser, the solicitor general persuaded the Air Force to waive captain strikes discharge. The justices decided this new policy for pregnant women in active service rendered the case moot. Could you talk about what it might have looked like in the future if Struck had been decided versus Roe?

NEIL SIEGEL Justice Blackmun, who writes Roe is not thinking about abortion as a sex equality right at all. But Struck would have been a way for them to see that there are sex equality stakes here. That when you regulate pregnant women, these kinds of regulations can be shaped by gender bias and that the impacts on women are going to be substantially greater than the impacts on men. And I think the equality stakes are pretty clear in Struck to a court that's capable of seeing it. But given the time period and given the composition of the court, I wonder whether they would have even been capable.

ALANA CASANOVA BURGESS Struck is now a great grandmother. She and her only child, Tonya, have a close relationship, but it's strained.

SUSAN STRUCK You know, there were times she would ask me. She would say, why did you give me away? And I said, I didn't give you away. I gave you to.

ALANA CASANOVA BURGESS Did that help her, you think?

SUSAN STRUCK Yes, it did. After, you know, after repeating it many times, it did. After saying, I wish it could have been different. You know, I wish I could have had you. It’s one of my regrets. But she says that things are the way they are because they are the way they are. And that's all there is to it. Okay, Tonya, that makes a lot of sense.

ALANA CASANOVA BURGESS As for her career, she told us that suffered, too. Even after her discharge ordeal was over. The records from it were never removed from her Air Force file, she says. Struck was turned down for promotions for years, stalled at the rank of captain.

SUSAN STRUCK So I raised blue hell. 

ALANA CASANOVA BURGESS She retired as a lieutenant colonel. But who knows how far she might have gotten. Another what if.

JESSICA GLENZA Today, like so many Americans, she has complicated views on abortion.

SUSAN STRUCK As a Catholic, I'm supposed to be against abortion in any way, shape or form. I'm not. Like when I was thinking about having abortion, it was like when I was 1 to 2 months pregnant and there wasn't any viability of the fetus, period. And it would've just been, you know, just a clump of cells.

JESSICA GLENZA She doesn't oppose abortion if a woman's life is threatened by the pregnancy or if the fetus is badly deformed, unviable. Polls show most Americans hold that view, too. But like 55 percent of respondents, she doesn't want federal taxpayer money to pay for it. In fact, she doesn't want the federal government involved at all.

SUSAN STRUCK Being a fiscal conservative, I believe it should be up to the states.

JESSICA GLENZA And of course, that was exactly the state of affairs before Roe v. Wade was settled. A patchwork of restrictions and regulations on abortion rights just as those adopted by the military. Now Struck, in the process of writing a book, is becoming the author of her own story as she sees it. Her crusade was aimed at a much narrower target than the one seen by legal scholars. It wasn't about abortion. It was a discreet step on the path toward equality. Today, women no longer have to choose between motherhood and the military.

SUSAN STRUCK You know, it's something that was very monumental for the military that had to happen. And it happened with me in the 70s. And women shouldn't forget it because there isn't any reason why you shouldn't fight for what you want. And women have been doing that ever since. Our first woman general was named general the same year that my case was settled. And that kinda tells me something.

BROOKE GLADSTONE In August of 1970, women took to the streets to mark the half-century anniversary of the ratification of the 19th Amendment.

 

[CLIP]

 

REPORTER Betty Friedan This seems like one of the most exciting weeks the women's liberation movement has ever known. How do you feel?

 

BETTY FRIEDAN It's much more than that. It's the perhaps the most exciting week in the history of women. [END CLIP]

 

BROOKE GLADSTONE It was kind of a spontaneous action that took place around the United States. 50,000 people marched in New York.

 

[CLIP]

 

NEWS REPORT We are urging women not to take care of children on this one day. And this will mean there will be offices all over the country that will be flooded with children, brought to their fathers and let them worry about this problem. [END CLIP]

 

BROOKE GLADSTONE The women were marching for a whole host of equality rights, including abortion. The message was that they would have equal citizenship not only when they can vote, but when they can have the ability to transform the conditions under which they conceive and bear children.

 

[CLIP]

 

NEWS REPORT Another thing we're doing is we're passing out contraceptive information in the streets of various cities. [END CLIP]

 

BROOKE GLADSTONE So how to end in a moment of, well, anguish for so many women and so many families in this country. The struggle for ownership, for control of a woman's body runs deep, and long. But freedom struggles are like that. This one has been long, but it's far from over.

 

Coming up, another week of revelations from the sober panel investigating the road to and from that January 6th. This is On the Media.

 

[BREAK]

 

BROOKE GLADSTONE This is On the Media, I'm Brooke Gladstone. And this week, the select committee investigating the January 6th attack on the Capitol continued to expose a widening gyre of criminality.

 

[CLIP]

 

LIZ CHENEY And let me also today make a broader statement to millions of Americans who put their trust in Donald Trump. [END CLIP]

 

BROOKE GLADSTONE Committee Vice Chair Liz Cheney.

 

[CLIP]

 

LIZ CHENEY It can be difficult to accept that President Trump abused your trust. That he deceived you. Many will invent excuses to ignore that fact. But that is a fact. I wish it weren't true, but it is.

 

BROOKE GLADSTONE Among this week's revelations, we learned that the stymied president was "this close" to replacing his qualified acting attorney general, Jeffrey Rosen, with a low-level ringer name of Jeff Clark solely because he was willing to send out a letter to Georgia on DOJ letterhead. The first, perhaps of many to swing states declaring the 2020 election corrupt. The entire DOJ leadership threatened to bolt.

 

[CLIP]

 

RICHARD DONOGHUE I said, Mr. President, I would resign immediately. [END CLIP]

 

BROOKE GLADSTONE Including Acting Deputy Attorney General Richard Donoghue.

 

[CLIP]

 

RICHARD DONOGHUE I'm not working one minute for this guy who I had just declared was completely incompetent. And so the president innately turned to Mr. Engel and he said, Steve, you wouldn't resign, would you? And he said, Absolutely, I would, Mr. President, you leave me no choice. And then I said, And we're not the only ones. No one cares if we resign. If Steve and I go, that's fine. It doesn't matter. But I'm telling you what's going to happen. You're going to lose your entire department leadership. Every single A.G. will walk out on you. Your entire department leadership will walk out within hours.

 

BROOKE GLADSTONE Donoghue said Clarke would be left leading a graveyard. Trump backed down. Sad. Wednesday, it turns out DOJ law enforcement visited Clarke's house, presumably for evidence in its investigation of conspiracy to defraud the United States by overturning the election. This week saw reports of lots of new subpoenas served to state GOP party leaders who helped to put together slates of fake electors. Also, lots of requests for pardons by high placed advisers and some prominent stop-the-stealers in Congress.

 

[CLIP]

 

POLITICIAN How do you know the congressman Gaetz asked for a pardon?

 

ADVISOR He told me, he asked Meadows for a pardon. [END CLIP]

 

BROOKE GLADSTONE So Matt Gaetz of Florida, Mo Brooks of Alabama, Louie Gohmert of Texas, Scott Perry of Pennsylvania, Marjorie Taylor Green of Georgia and Andy Biggs of Arizona. Perry Biggs and Taylor Green have denied it. Wisconsin Senator Ron Johnson was initially in denial, too, about trying to pass a slate of fake electors to Vice President Pence on January 6th, but finally admitted he did try to hand-deliver a package to Pence but didn't actually know what was in it.

 

[CLIP]

 

COMEDIAN I've always wondered who those announcements are for. Yeah. Yeah. Turns out it's Ron Johnson. [END CLIP]

 

BROOKE GLADSTONE All of these proofs of many hands guiltily chipping at the buttress of democracy, but offered in that hearing room with surprising restraint. A slow burning but searing blaze.

 

MICHAEL WALDMAN It is one of the greatest congressional hearings in decades in setting out compelling witnesses, compelling facts, not just a bunch of members of Congress bloviating, but really a story being told that has within it elements of criminal activity laid out like an indictment.

 

BROOKE GLADSTONE Michael Waldman is a constitutional lawyer and president of the Brennan Center for Justice at NYU School of Law.

 

MICHAEL WALDMAN It's a world record restraint of congressional ego that they've been able to it this way. The Republican leadership, Kevin McCarthy, badly misplayed this because rather than negotiating to put some of his diehard Trump supporters on there, he walked away, presumably because he thought Trump would be mad if they cooperated at all. It's kind of funny to watch how in the first days Trump and the Republican leadership sort of ignored it. By the second week, they're saying, Why didn't we get our people on there? But I also don't think we should fall into the trap of thinking of this as not having Republican involvement.

 

BROOKE GLADSTONE We can ignore the role of Cheney and Adam Kinzinger on the committee.

 

MICHAEL WALDMAN And the witnesses, one after another series of indictments of Donald Trump out of the mouths of prominent conservative Republicans, people who are very respected within that world. It's all that much more compelling.

 

BROOKE GLADSTONE Let's talk about Rusty Bowers.

 

MICHAEL WALDMAN Rusty Bowers is currently the speaker of the House of the Arizona legislature. He is a prominent conservative Republican, a prominent member of the Church of Latter Day Saints. And he recounted, in harrowing terms, a number of phone calls from the president. Bowers said, I can't overthrow the election.

 

[CLIP]

 

RUSTY BOWERS It is a tenet of my faith that the Constitution is divinely inspired. And so for me to do that because somebody just asked me to, is foreign to my very being. I will not do it. [END CLIP]

 

MICHAEL WALDMAN And the president of the United States said we'll do it anyway. And his lawyers called and said, do it anyway.

 

BROOKE GLADSTONE Just as harrowing, the threats his family received. He talked about his daughter, gravely ill, who was terrified. He called his wife "valiant" and yet, when asked recently would he vote for Trump again, he said if he was running against Biden. Yeah.

 

MICHAEL WALDMAN The evangelical Protestant voters who are the base of the Republican Party and so much of the country care so much about LGBTQ issues, about reproductive rights. They feel the need to be with the Republicans, even if Donald Trump, who they regard as an authoritarian, is the head of the ticket. You have to imagine, certainly Bowers doesn't want Trump to be the head of the ticket. And one of the most important things that could happen in this country and maybe a little bit is happening is a fracturing of the Republican Party around MAGA. Powerful role of Liz Cheney in this hearing is part of that. You're starting to see it in the Republican primaries, in the polling. But even as these hearings were taking place, the primaries for Senate, for governor, for House races, candidates who mouthed the big lie of a stolen election keep winning, even as the big lie is proven to be a lie.

 

BROOKE GLADSTONE Okay, enough of this idle speculation. Let's get to the prosecution. It's two charges, obstruction of an official proceeding and attempting to defraud the government. These are very dry words for a two pronged effort to stop the peaceful transfer of power. Obviously, we don't vote for president. We vote for a slate of electors who will go to the Electoral College. Those electors elect the president. Right.

 

MICHAEL WALDMAN The Electoral College, actually, to the extent it's a real thing, voted in December. The ceremony on January 6th, the gavel gets banged and people bring the box in. We may remember Al Gore or Dan Quayle, other people having to read the results that they themselves had lost an election.

 

BROOKE GLADSTONE But in an unprecedented move, President Trump wanted the presiding officer in this case, Mike Pence, to accept a bunch of alternate slates of electors.

 

MICHAEL WALDMAN What Trump was trying to do was to create enough doubt to force Mike Pence, the vice president, to do something he had no legal right to do, which was to reject the electors, just cancel the whole thing and send it, quote, back to the states.

 

BROOKE GLADSTONE Robert Sinners was one of those fake electors.

 

[CLIP]

 

ROBERT SINNERS We were just, you know, kind of kind of useful idiots or rubes at that point. [END CLIP]

 

MICHAEL WALDMAN This week, while the hearings were going on, the FBI issued subpoenas for the cell phone of the party leaders in different states, because it turns out, as the hearings showed, these fake electors didn't just go off on their own. Their effort was scripted by the White House. And that's a big deal. They are showing a phone call where Trump talked to the acting attorney general and Trump said just put out a statement saying it was corrupt and leave the rest to me and the Republican members of Congress. They wanted to show and I think did show that Trump knew he lost the election.

 

BROOKE GLADSTONE That is the big question. I have read endless articles on this matter of criminal intent. It seems as if you almost have to look into the defendant's heart.

 

MICHAEL WALDMAN The different criminal statutes have different standards for what level of knowledge, what level of corrupt intent there has to be. But think of it this way. If you pick up a loaded gun and I say, that's a loaded gun, don't point that. And you say, no, it's not. It's a potato. And they say, No, really, it's a loaded gun. And you say, No, it's just a potato. And you shoot someone and say, I believed it was a potato. You're still criminally liable. There is a possibility in many parts of the law for willful ignorance. When you choose to make sure that you say that you don't know so you can do what you want. And when it comes to something like the pressuring of the election officials and others in Georgia, where we heard him on tape saying, hey, just find me the 11,000 votes that shows enough criminal intent right there. But you don't have to really delve into the recesses of his heart or mind.

 

BROOKE GLADSTONE What about in the same tape when he says, we just want to get to the truth?

 

MICHAEL WALDMAN Well, that's where these hearings don't really answer the question of whether the Justice Department will bring prosecution. There's all kinds of evidence that he knew going into the election and after the election, but he'll be able to use the. Velocity and volume of his own lies as a defense.

 

BROOKE GLADSTONE Is there any scenario in which all of that evidence that Trump knew won't amount to a hill of beans?

 

MICHAEL WALDMAN Well, that's one of the big questions that Merrick Garland and other prosecutors need to assess. If a crime is big enough, if it is clear enough, if the consequences are predictable enough and bad enough, then it's less important to show whether deep in their heart, the person who committed the crime, what their sense of reality was. Even if Trump from 2 to 4 in the afternoon on any given day, thought, Oh, I really won. And then from 4 to 6 knew he lost, he nevertheless knew it was illegal to do the things he was doing that were illegal. Look, this is not an easy question for the Justice Department. We certainly would not want to live in a country where it was a routine matter to prosecute the previous president the way you might see it in some dictatorship. But we've also never had a president of the United States try to overthrow American democracy before. That's what's been shown in these hearings and also in other evidence throughout the year. There's no doubt that it would be an extraordinary and disruptive thing to prosecute Donald Trump, but it might be more extraordinary and more disruptive over the long term, not to. One of the things that's so extraordinary with all of this is we all saw January 6th as it happened. We all saw Trump's public efforts in 2020 to try to overturn the election. And it was a bit of a clown show. It certainly seemed to be. You had Rudy Giuliani with a hair dye dripping down his face. You had Sidney Powell promising to release the Kraken. The Mypillow guy, all these crazy people running around.

 

It turns out that beneath that, behind that, there was a far more serious, far more dangerous, far more thought through effort to overturn the election and overturn American democracy. We now know that while all this was going on, Trump was trying to take over the Justice Department to use it as an instrument in the effort to stop the peaceful transfer of power. He was going to elevate a very obscure official from the environmental wing of the Justice Department to become attorney general, because that person was willing to send a letter to the state saying the election was corrupt. Stop the presses. Don't send your electors. And that would have been an extraordinary constitutional crisis. And the acting attorney general, the acting deputy attorney general rushed to the White House and confronted the president in an Oval Office meeting. We now know and said we will resign and so will everybody else at the Justice Department. You may remember from Watergate, the Saturday Night Massacre, when Richard Nixon in 1973 ordered that the special prosecutor be fired who was seeking his tapes. And when the attorney general and deputy attorney general resigned and were fired, it basically started the impeachment of Nixon. And Nixon had to give up the tapes. This would have been like the Saturday Night Massacre by the hundreds. It would have been the biggest crisis in the history of the Justice Department. And we came within minutes of it happening and we didn't know about it at the time.

 

BROOKE GLADSTONE We've been hearing about periodic flurries of subpoenas on various issues from the Justice Department. Is it fair to ask you tell me what you think the Justice Department is up to now and then the precarity of Merrick Garland's position.

 

MICHAEL WALDMAN We've been watching and the Justice Department has not been inactive, but there's been a lot of questioning about whether they're taking the high level crimes potentially here seriously. We've seen them prosecuting hundreds and hundreds of people for the attack on the Capitol. We've seen them start to go after the proud boys and the other militias who really planned this violent assault. But it's been a real question as to how seriously they are taking the political crime here. This wave of subpoenas involving the fake electors all over the country may be the first time that the Justice Department is showing its hand. Really investigating possible crimes about the basic effort to stop the peaceful transfer of power by the White House, all of which is to say that Merrick Garland is a very serious prosecutor. Adam Schiff and other members of the committee have criticized him for being too cautious. We don't know. Is he being cautious? Is he being quiet?

 

If there is a prosecution of the president and those around him, it would have to be done as much as possible with an eye toward making it seem and be legitimate to as large a group of the public as possible. That's not only important as a public matter. It's even important in terms of getting a conviction when you bring a prosecution. You always have one eye on whether or not you can get a jury to convict. We have read about the decision by the Manhattan District Attorney's office to pull back from one of the possible areas of prosecution of Trump involving him lying in his real estate business. And according to media reports, part of the problem was that the only witness who they felt they could put on the stand was Michael Cohen, President Trump's former lawyer, who would not be trustworthy, and that in the end, the difficulty of getting a conviction affected, what to do at the beginning of the possible prosecution. Prosecutors do think about that. They should think about that. Again, sometimes the crime is of such magnitude, such seriousness, and with so much evidence, it outweighs the doubts that people have. We're thinking about what is in the mind of Donald Trump right now. We need to be thinking about what is in the mind of Merrick Garland.

 

BROOKE GLADSTONE There was a commentary in the New York Times this week which talked about how Garland also has to consider what is really in the public's interest. We are all so riven, it's only going to make it worse. I felt that rang hollow because we did see the Capitol overrun. I don't know how we could be more divided than we are.

 

MICHAEL WALDMAN Nobody wants more divisiveness. But the law is the law. The Constitution is the Constitution. I think that the Justice Department, Merrick Garland, ultimately have to make the decision, not out of nervousness about the public mood, but out of fealty to the law and the Constitution and the facts. I think it would be irresponsible to do anything less.

 

BROOKE GLADSTONE You wrote in a column a while ago in Focus on a Big Lie, Not on the Big Liar. Do you still think that's true?

 

MICHAEL WALDMAN First of all, one of the things that this set of hearings shows is that the lie, the big lie about our elections continues to poison American politics and is the basis for so much of what is going on right now in the states. One of the most compelling witnesses, he spoke rather slowly, but his words were searing was Judge Michael Luttig. People may not know Luttig was almost appointed to the Supreme Court twice by George W Bush. He is a very esteemed conservative Republican lawyer.

 

BROOKE GLADSTONE And also had some prominent clerks.

 

MICHAEL WALDMAN John Eastman was one of them. And he, of course, was Trump's wingman in his effort to overthrow the election. And Luttig testified that Trump and this big lie is a clear and present danger to American democracy, now and in 2024. This is not over. The last effort to overthrow the election was chaotic and shambolic. Now it's professionalized. Now we're seeing supporters of the big lie being installed in election offices all over the country. We're seeing candidates embracing it. It is looking more and more like it will be a struggle to get people to agree on the result of the 2024 election. I'll say one other thing, too. I think these hearings are making a very powerful case for criminal prosecution, but that can't be, and that isn't their only purpose. Public opinion has to be a central goal for this committee.

 

BROOKE GLADSTONE Even if the viewers of Fox News don't get to see it. Is there a court of public opinion anymore?

 

MICHAEL WALDMAN Well, think about the very first day of the hearings. It was on in primetime. And there was what's called a roadblock, which is. The broadcast networks. ABC, CBS, NBC played the hearing in its entirety as a big news event. Not just FOX or CNN or MSNBC. There are a lot of people who don't obsessively follow cable news. There are a lot of people who don't check Twitter all day. They're actually living their lives and a lot of them watch broadcast TV. About 20 million people viewed the hearing that night. That's about the same as a football game. So it was a bigger, larger audience than is used to hearing about these things. If it's the first time you're hearing it, it's pretty devastating. Congressional hearings used to be a very major media event, a very significant way to move policy and change the country. We think about the Watergate hearings in 1973 or the Army McCarthy hearings. We haven't really had that in a while. But these sessions by this committee are looking like they're going to have a pretty significant impact on the public's view. Already, the percentage of the population who say they want Trump prosecuted has gone from 50% up to 58% in the first two weeks. That may be a temporary blip, but it sounds pretty meaningful, too.

 

BROOKE GLADSTONE Michael, thank you very much.

 

MICHAEL WALDMAN Thank you for having me.

 

BROOKE GLADSTONE Michael Waldman is a constitutional lawyer and president of the Brennan Center for Justice.

 

That's it for this week's show. Thanks to Alana Casanova Burgess and Jessica Glenza for reporting the Susan Struck story and to Mark Henry Phillips for composing the music. Katya Rodgers is our executive producer. On the Media is a production of WNYC Studios. I'm Brooke Gladstone.