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standard. That's why we have thousands

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0:09

don't wait any longer. Give us

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a call and book your next

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appointment today. Judge

0:24

Cini's two -week discovery in the Ebrego

0:26

Garcia case is put on hold

0:28

after the government files a request

0:30

to delay under seal. A

0:32

conservative three -judge panel for the

0:34

DC Circuit Court of Appeals temporarily

0:36

blocked Judge Boesberg's opinion that probable

0:38

cause exists to hold the government

0:40

in criminal contempt in the Alien

0:43

Enemies Act case. The

0:45

Supreme Court issues a late -night

0:47

order blocking the rendition of hundreds

0:49

of additional detainees to El Salvador. And

0:53

a Reagan -appointed judge lambasts the

0:55

Department of Justice for not only

0:57

failing to provide reasoned analysis

0:59

for shuttering the VOA, but for

1:01

failing to engage in any

1:03

analysis at all. This is Unjustified.

1:11

Hey everybody, it is

1:13

Sunday, April 27th, 2025. I'm

1:16

Allison Gill. And I'm Andy McCabe. It's

1:18

really pretty amazing how much things can change

1:20

in a week. Right. I

1:22

mean, it was just a week

1:24

ago, we were discussing Judge

1:26

Senes' scathing order granting expedited discovery

1:28

in the Ubrego Garcia case. And

1:31

we thought that by today, we'd be halfway through

1:33

with that discovery. But it's been

1:35

paused for reasons that are not

1:37

clear, but that both the judge

1:39

and Ubrego Garcia's lawyers apparently agreed

1:42

to. Yeah, that's the kicker, right?

1:44

Like, what could they possibly agree to?

1:47

given some of the stuff that she

1:49

had to say in some previous orders.

1:51

We'll go over that. And last

1:54

week, we also thought we'd be getting

1:56

into the contempt proceedings in Judge Boesberg's

1:58

court for the government defying his orders to

2:00

turn the planes around that were on their

2:02

way to El Salvador. But

2:04

Trump appealed the unappealable order

2:06

and drew a conservative three

2:08

judge panel that actually granted

2:10

a temporary administrative stay on

2:12

his ruling. So that's an

2:15

interesting Peccadillo, we'll talk

2:17

about that. Yeah, for sure. But

2:19

in the meantime, the Supreme

2:21

Court blocked Trump from renditioning another

2:23

200 or so Venezuelans to El

2:25

Salvador under the Alien Enemies Act. And

2:28

the ACLU has added the openly

2:30

gay makeup artist and stylist, Andri

2:32

Hernandez -Romero, as lead plaintiff

2:34

in the new class action

2:36

suit brought before Judge Bosberg

2:39

in the original Alien Enemies

2:41

Act case. Yeah, and

2:43

we know when we say the original

2:45

Alien Enemies Act case, the JGG

2:47

case, that was vacated. But he left

2:49

that docket open, right? And we'll

2:51

talk about that. So that's what we

2:53

mean by the original Alien Enemies

2:55

Act case. This is an amended complaint.

2:57

And if it sounds confusing, it is.

3:00

We're gonna do our best to break it

3:02

down for you. Plus, we'll leave you with

3:04

a fiery bench slap from a Reagan -appointed

3:06

judge that just tears into Trump's Department of

3:08

Justice. And as always, we'll close with

3:11

listener questions. If you have a question for

3:13

us, there's a link in the show notes you

3:15

can click on to submit your question. Andy,

3:17

I have whiplash. I was all

3:20

set to dive into the Abrego Garcia

3:22

pre -contempt discovery bonanza. So

3:24

let's start there. Yeah, let's do

3:26

it. I mean, I was looking

3:28

forward to this. Now,

3:30

last week... We left off with

3:32

Judge Cines issuing her two -week

3:34

expedited discovery order that included

3:36

interrogatories, requests for documents, the production

3:38

of documents, and depositions of

3:41

Trump administrators with knowledge. And

3:43

she also set all kinds of deadlines. And we went

3:45

over that order last week. She

3:47

also anticipated the government might

3:49

stonewall. So she came

3:51

up with the process that

3:53

included the plaintiffs being able to

3:55

issue a letter to ask

3:57

for a teleconference if they came

3:59

to loggerheads with the government

4:01

on discovery. And she said,

4:03

if all else fails, that she grants

4:05

the plaintiff's permission to file for additional

4:08

sanctions before the two weeks were up.

4:11

Yeah, the old invitation to file sanctions

4:13

is not something you see in

4:15

every case, but we had it here.

4:17

So pretty stern orders. The

4:19

first deadline for the government came

4:21

up on April 21st. That's when

4:23

the government owed answers to Abrego

4:25

Garcia's lawyers interrogatories. Pretty

4:27

much as soon as the government turned

4:30

them in, the plaintiffs took advantage

4:32

of the judge's process to inform the

4:34

court that their answers were woefully

4:36

insufficient and they asked for a same

4:38

-day teleconference. Now, this is from

4:40

the plaintiff's letter to the court on April

4:42

21st. We write

4:44

on behalf of plaintiffs in the

4:46

above captioned matter to respectfully

4:48

request that the court hold a

4:50

conference tomorrow afternoon at 1

4:52

p .m. or as soon thereafter

4:54

as the court is available. to

4:56

address the government's failure to

4:58

comply with the court's April 15,

5:00

2025 order granting expedited discovery

5:02

requiring the government to, among other

5:04

things, produce documents and respond

5:07

to plaintiffs' interrogatories. That was a

5:09

really long sentence. And

5:11

if you can tell, I've got a

5:13

cold, so my management of the air

5:15

is not going well here. But in

5:17

any case, the letter goes

5:19

on to say, On the

5:21

eve of the first court order deposition

5:23

concerning the government's failure to comply with

5:25

this court's orders, the government

5:28

responded to plaintiff's discovery requests

5:30

by producing nothing of substance. Its

5:33

document production consists entirely of

5:35

public filings from the dockets, copies

5:37

of plaintiff's own discovery requests,

5:40

and correspondence in two non -substantive

5:43

cover emails transmitting declarations filed in

5:45

this case. It's interrogatory responses

5:47

are similarly non -responsive. It's like

5:49

they sent their shopping list. Here's

5:51

a bunch of stuff you

5:53

already have. A note about what

5:55

movies to watch on Netflix

5:58

this week. Conclave. That's the

6:00

one you should watch. There you go. Shortly

6:02

thereafter, Judge Cini's issued an

6:04

order. No teleconference needed, right?

6:06

She just tore into the

6:08

Department of Justice lawyers. She said,

6:11

plaintiffs have notified the court

6:13

of seemingly intractable discovery disputes. that

6:15

require immediate attention to remain

6:17

on the expedited discovery schedule. To

6:19

facilitate the just and expeditious

6:21

production of discovery, the court rules

6:24

on the defendant's stated objections

6:26

included within their answers to interrogatories

6:28

and responses to RPDs. That's

6:30

request for production of documents. First,

6:34

defendants object to certain discovery.

6:36

That's the Trump administration. objects

6:38

to certain discovery, because they claim

6:41

the requests are based on the false

6:43

premise that the United States can

6:45

or has been ordered to facilitate a

6:47

Brego Garcia's release from custody in

6:49

El Salvador. Defendants and

6:51

their counsel well know that the

6:53

falsehood lies not in any supposed

6:55

premise, but in their continued mischaracterization

6:57

of the Supreme Court's order. That

6:59

order made clear that this court,

7:01

quote, properly required the government to

7:03

facilitate a Brego Garcia's release from

7:05

custody in El Salvador. Word for

7:08

word. Word for

7:10

word. I

7:12

mean, that's amazing. I don't

7:14

know what to say there. Okay.

7:16

The order goes on

7:19

to say, second, equally specious,

7:21

defendant's objections on the grounds of privilege

7:23

are rejected. Defendants invoke

7:25

in name only a range of protections,

7:28

attorney client privilege, the work

7:30

product doctrine, the deliberative process

7:32

privilege, the state secrets

7:34

privilege, and an unidentified quote,

7:37

governmental privilege without

7:39

providing any supporting

7:41

information or analysis.

7:44

As defendants and their counsel

7:46

know, the proponent of a

7:48

privilege must demonstrate the legal

7:50

and factual basis to invoke

7:52

the protections that such privilege

7:54

affords. Here's a unique idea,

7:56

actually make me prove that you are

7:58

entitled to the thing that you claim.

8:01

She goes on to say their

8:03

boilerplate non -particularized objections are presumptively

8:06

invalid and reflect a willful

8:08

refusal to comply with this court's

8:10

discovery order and governing rules. Although

8:13

defendant state now that they are willing

8:15

to quote meet and confer with counsel about

8:17

the production of such a log, their

8:20

repeated refusals to meet

8:22

and confer about much of

8:24

anything else undermine the

8:26

reliability of this assertion. the

8:28

court thus finds this

8:30

offer was not made in

8:32

good faith. And that's

8:34

really, really important because this,

8:36

some commentators have been

8:38

talking about this loss of

8:40

the court's not preference,

8:42

but practice of taking the

8:44

government at their word. So

8:47

historically, the courts will always take

8:49

the government for, you know, in the

8:51

course of like litigation maneuvers and

8:53

arguments and things like that. The government

8:55

has earned a reputation of accuracy

8:57

and truthfulness, and the courts kind of

9:00

acknowledge that. That is disappearing with

9:02

each one of these cases. And I

9:04

think that's what you see in

9:06

that last sentence. The court finds this

9:08

offer was not made in good

9:10

faith. So they don't even take the

9:12

government at their word when they

9:14

say, oh, we'll meet and confer. She's

9:16

saying, no, you probably won't. Yeah.

9:19

And that concept is going

9:21

to be important when we

9:23

get to the Supreme Court.

9:25

intervention later in another Alien

9:27

Enemies Act case, because it

9:29

seems that the Supreme Court

9:31

is even losing faith in

9:33

what the government says, except

9:35

for Alito, but, you know,

9:37

whatever. He's very loyal. Yeah,

9:40

but that is a brutal

9:42

bench lashing, I guess you

9:44

would call it from the

9:46

judge here, to have that

9:48

said about you and your

9:50

lawyering. Yeah, it's not

9:52

good. It's bad. So she

9:54

goes on, Yet

10:20

they have continued to rely on

10:22

boilerplate assertions. That ends

10:24

now. If the defendants

10:26

want to preserve their privilege

10:28

claims, they must support them with

10:31

the required detail. Otherwise, they

10:33

will lose the protections they failed

10:35

to properly invoke. And

10:37

then she says, you have

10:39

until tomorrow at 6pm to hand

10:41

in your analysis of your

10:43

privilege log, basically. But

10:45

to say, you know, this is

10:47

kind of an important point. If they

10:49

don't do this properly, she

10:51

will revoke any right

10:54

to privilege assertions brought

10:56

by the government. That's

10:58

right. That's right. And

11:00

just so folks know, the privilege log

11:02

is basically when you've been asked for

11:05

a whole bunch of discovery and you

11:07

claim a privilege, you literally create a

11:09

list of each thing that the other

11:11

side asked you for. And then it's

11:13

like a spreadsheet, kind of, and then

11:15

you identify what privilege, your

11:17

refusal to produce it is based upon.

11:19

And then in the next column, what

11:22

facts there are to support your

11:24

assertion of that privilege, that allows the

11:26

court to go through and say

11:28

like, check, check, yes, this one fits,

11:30

this one fits, but this one

11:32

down here doesn't, or I need more

11:34

information on it. It's just like

11:36

the administrative way of the person asserting

11:38

privilege, specifying exactly how, when, and

11:40

where, and the court arbitrating whether or

11:42

not it will be granted or

11:44

observed. Yeah, I mean, if John

11:46

Eastman can do it, come on. Yeah, right. Come

11:49

on. I mean, you'll recall

11:51

if you were listening to the Jack

11:53

podcast, there were several privilege logs when

11:55

they were trying to get, when Jack

11:57

Smith was trying to get Eastman's emails

11:59

from Jackson University. Yeah. And

12:01

then they went through all of them and

12:03

the judge said, yes on these, no on these

12:05

and would, you know, grant a bunch and

12:07

deny a bunch. But anyway,

12:09

she goes on to say the

12:11

defendants object to any discovery request

12:13

concerning events predating the court's April

12:16

4th order as beyond the scope

12:18

of the expedited discovery. Defendants

12:20

arbitrarily cramped reading of

12:22

this court's order is rejected.

12:25

That's just like flat

12:27

out. You lose. Man.

12:29

Yeah. Like, no, you're,

12:31

you're arbitrarily cramped reading. Wrong.

12:36

Try again. Then there

12:38

are several specifics. And here's one example.

12:41

Defendants answer to interrogatory number five, in

12:43

which they name exactly two individuals

12:45

who have been or will be involved

12:47

in any of the actions responsive

12:49

to interrogatories one through four, or in

12:51

ordering or authorizing a Brego Garcia's

12:53

removal to El Salvador, his

12:55

initial placement in sea coat, or

12:57

his continued confinement in sea coat. That

13:00

reflects a deliberate evasion of

13:02

their fundamental discovery obligations. Defendants

13:04

identify only Robert Cerna and

13:06

Evan Katz as the universe of

13:08

individuals responsive to these questions. Given

13:11

the context of this case, defendants

13:13

have failed to respond in good

13:15

faith and their refusal to do

13:17

so can only be viewed as

13:20

willful and intentional non -compliance. Yikes.

13:24

Another example of many, she

13:27

says, defendants must answer

13:30

interrogatory 12. The interrogatory

13:32

is limited to all efforts the

13:34

government has taken to facilitate the return

13:36

of aliens wrongfully removed to El

13:38

Salvador. The request is

13:40

particularly relevant and probative to

13:42

whether defendants are taking any

13:44

steps in good faith to

13:46

comply with this court's facilitation

13:48

order involving the very country

13:50

to which Abrego Garcia was

13:52

wrongfully removed. The court

13:54

also rejects that this narrow

13:57

request is, quote, unduly burdensome because

13:59

defendants have made absolutely no

14:01

showing as to why it cannot,

14:03

with a modicum of due

14:05

diligence, answer the question. And

14:09

there's this one. As

14:12

to interrogatory number 14, seeking

14:14

the complete factual basis for

14:16

defendant's assertion that Ebrego Garcia

14:18

is a member of MS

14:20

-13, defendant's relevancy

14:22

and scope objections are

14:25

rejected. Defendants cannot

14:27

invoke the moniker of MS -13

14:29

as responsive to the court's

14:31

previous order and then object

14:33

to follow -up interrogatories seeking

14:35

the factual basis for the

14:37

same. Yeah, they maybe you've

14:39

ever heard like a lawyer on

14:41

TV saying no they open the door

14:43

Yeah, they did it can't be

14:45

a shield and a sword right you

14:47

can't say he's MS -13 and okay.

14:49

Well how we don't have to

14:51

tell you Because of some governmental privilege

14:53

that I just made up like

14:55

it doesn't work that way It's funny

14:57

too because that cuts right to

14:59

the heart of this whole thing. There's

15:01

no process here. There's no fairness

15:04

There's no due process like you can't

15:06

say somebody's member of MS -13 and

15:08

then not be willing to go

15:10

into court and prove it Yeah, exactly

15:12

absolutely Now these examples Andy they

15:14

go on for several pages But you

15:16

get the idea and it was

15:18

important that we went over some of

15:20

these in this order and and

15:22

some of the language that she's using

15:24

Which is very forceful and like

15:26

you're rejected. No, you're bad right wrong

15:28

because we need to get a

15:30

picture of how angry and exasperated Judge

15:32

Cines is because of what happens

15:34

next in the case which is Pretty

15:37

confusing. On April 23rd, a

15:39

few hours before the amended

15:41

answers and privilege log were

15:43

due, the government filed

15:45

a sealed ex parte motion to

15:47

pause the proceedings for a week. Now

15:50

docket watchers were like, oh my God,

15:52

unbelievable. After that scathing order about their

15:54

woefully insufficient discovery and their bad faith,

15:56

she's never gonna go for this, right?

15:59

Yeah. And I was thinking, wow, that

16:01

takes some chutzpah. And we were

16:03

all thinking that because we imagined it

16:05

was some kind of tired excuse,

16:07

like they needed time to contemplate state

16:09

secret privilege, or Drew Ensign wanted

16:11

to attend his daughter's friend's cousin's Justin

16:14

Bieber fan club, swearing in ceremony

16:16

or something. I feel like that's important,

16:18

but okay. True, but

16:21

remember when she's like, there's no hours and cancel

16:23

all your vacation and we're getting those done. You gotta

16:25

be like, judge, you gotta be a believer, all

16:27

right? I'm sorry. You gotta be a believer. But

16:29

then, the same day,

16:31

The judge issued a two -sentence

16:34

order. Cool as a cucumber. The

16:36

court has reviewed the defendant's motion to

16:38

stay and the plaintiff's response. With

16:40

the agreement of the parties, the

16:43

court hereby orders that discovery shall

16:45

be stayed until April 30th, 2025

16:47

at 5 p .m. The

16:49

end. That's it. That's

16:51

all she does. That's so weird. Right,

16:53

because it can't be a Justin

16:55

Bieber fan club request. It can't

16:57

be a, we're looking at state

16:59

secrets privilege. That was

17:01

all due that day, right?

17:04

Privilege logs and answers to the

17:06

questions that she said weren't beyond the

17:08

scope. So it has to

17:10

be something else that all the parties agreed

17:12

to. Yeah, the two points

17:14

here that are like most important

17:16

to figuring this out are the fact,

17:18

one, that they both agreed, which

17:20

is, so it had to be something

17:22

at least appealing to the plaintiffs.

17:25

And two, that it was filed under

17:27

seal. which means the government

17:29

did not want the world to know

17:31

either what they're planning on doing

17:33

or the position they're taking or something

17:35

like that. It's really bizarre. I

17:38

have a guess. Oh, oh,

17:40

do tell. I think that they said,

17:42

give us a week to go down there

17:44

and release him from Seacote and deport

17:46

him to a third country where he's allowed

17:48

to be deported to. Wow.

17:52

Interesting. Because remember when they said that

17:54

Oh, well, if we just brought him

17:56

back, we're just going to send him

17:58

to another country. El Salvador was the

18:00

only country he couldn't be sent to.

18:02

Right. Because of the withholding order in

18:04

2019. Right. Because

18:06

he fled El Salvador because of

18:08

gang violence. So they were like,

18:10

you can't send him back to El Salvador. They

18:12

could send him to anywhere

18:15

else if they found that he

18:17

was here undocumented or illegally.

18:19

Right. That's due process right there.

18:22

Okay. So. I'm thinking maybe

18:24

they said give us a week and

18:26

we'll see what we can do. That

18:28

would be the only thing if I were the

18:30

judge or if I were a Brego Garcia's attorneys

18:32

that I would agree to. But they were really

18:34

adamant that he should be returned to the United

18:36

States, although that's not what the Supreme Court order

18:39

said. Right? The Supreme Court

18:41

order said you have to facilitate his

18:43

release from the prison in El Salvador and

18:45

give him the due process he would

18:47

have gotten where he never sent there. It

18:52

still makes it kind of, I

18:54

mean, yeah, do the plaintiffs want

18:56

him out? Absolutely. They want

18:58

him out sooner rather than later. And

19:00

if the government comes in and says, listen,

19:02

judge, give us another week and this whole thing,

19:05

we have reason to believe this whole thing is going to

19:07

be moot by then. But would the plaintiffs

19:09

actually agree to him getting shipped to a third

19:11

-party country? Don't you think at this point having

19:13

fought this hard, they want him to come back

19:15

here and get the process that he's entitled to?

19:17

I don't know. I mean, that's that's why I

19:19

know. Yeah, that was my question, right? Like what

19:21

that doesn't seem because you know, like I said,

19:23

Supreme Court didn't say you have to bring him

19:25

back to the U .S. You just have to facilitate

19:28

his release from El Salvador, right? And

19:30

they said, you know, redefine, effectuate.

19:32

Now, judge Cines. Her order on

19:34

April 10th after that Supreme Court order

19:36

was to facilitate the release and return.

19:39

Right. So I don't know, we'll

19:41

see. I'm assuming we'll find out. And I'm

19:43

also interested in why they wanted to file

19:45

an under seal, like you said. Was

19:48

this something embarrassing? Something that might

19:50

make them look woke or something? I

19:52

don't understand. But there's also some

19:55

late breaking news right now, Andy. This

19:57

is from The Atlantic. Three

19:59

days after Abrego Garcia's family filed

20:01

its lawsuit over his deportation, government

20:03

attorneys began discussing on how to

20:05

undo their mistake and bring him

20:07

back to the United States. In

20:09

their conversations, officials went as far

20:11

as to float the idea of

20:13

having the U .S. Ambassador to

20:15

Al Salvador make a personal appeal

20:17

to Buquele for Abrego Garcia's return. But

20:21

then the White House got ahold of it,

20:23

right? The State Department's legal

20:25

team wanted more information from DHS

20:27

about his alleged role in the

20:29

MS -13 gang as well. They

20:31

said that the State Department, there

20:33

was thin evidence that was supplied in

20:35

response to that question. And it

20:37

was met with skepticism from State Department

20:39

lawyers. So early on, behind

20:41

the scenes, the Trump administration was like, oh, sorry,

20:44

sorry, sorry, sorry, let's bring him back. Let's bring

20:46

him back. I don't think he's a member of

20:48

MS -13. Let's bring him back. And

20:50

then the White House got a

20:52

hold of it, doubled down and started

20:54

their rhetoric. So that's an interesting

20:56

scoop from the Atlantic. Yeah, very interesting.

20:58

And it's, you know, I mean,

21:00

it, I don't know, it's not

21:02

encouraging, but it does show you there are

21:04

some people looking at this thing like, like the

21:06

initial, what was his name, Reveni,

21:08

the initial trial attorney,

21:10

Reveni, who clearly saw it

21:13

that way. And, you

21:16

know, who got fired over

21:18

it. And the evidence

21:20

about the MS -13 affiliation

21:22

is actually, we've talked

21:24

about this before from a

21:26

source. The source, I guess,

21:28

has been identified now as

21:30

a former law enforcement officer

21:33

from Maryland who was, I

21:35

believe, fired, at least disciplined

21:37

for some sort of misconduct.

21:39

And he's the one person

21:41

who's made this claim against

21:43

the guy that he was

21:45

affiliated with a MS -13

21:48

click in Northern New York. Yeah,

21:50

and the High As Well Police

21:53

Department actually put out some information

21:55

that they, what they found four

21:57

people, one of them was a

21:59

member of MS -13. They were

22:01

like doing something and they picked

22:03

up all four, but they said

22:05

in their paperwork that Abrego Garcia

22:08

was not the member of MS -13.

22:11

So maybe the Trump administration is like,

22:13

well, he was standing there next to

22:15

somebody who was... We're in the Chicago

22:17

Bulls hoodie. And why not put that

22:19

in your thing? He was associated with,

22:21

you know, why MS -13 instead of just

22:23

not answering the interrogatory, say he was

22:25

arrested with a member of MS -13.

22:27

Yeah. Before this, but he was eventually

22:29

released, you know, the charges were dropped

22:31

and he was not to be found

22:33

as a member. Maybe that's why they

22:35

don't want to talk about that. But,

22:38

you know, the Trump administration has never

22:40

been one to give you the whole

22:42

story. They cite Marbury v. Madison in

22:44

order to get absolute immunity. So

22:47

it worked. So they only give you

22:49

the first sentence. So I'm surprised that

22:51

the Trump administration was like, he was

22:53

arrested next to, was arrested with an

22:55

MS -13 gang member. But

22:57

they didn't even say that. They just

22:59

didn't respond to the interrogatory at all.

23:01

Anyway, well, that story is

23:03

unfolding and we'll talk more about that

23:05

probably on next week's show. But

23:08

next, we're going to

23:10

talk about what happened

23:12

in Judge Boseberg's court this

23:14

week. But we have to take a quick break,

23:16

so stick around. We'll be right back. At

23:23

Firestone Complete AutoCare, we hold

23:25

our service to the highest

23:27

standard. That's why we have

23:29

thousands of ASC certified expert

23:31

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23:33

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23:35

got your back on the road,

23:37

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23:39

car like their own and every

23:41

customer like family. Don't wait

23:43

any longer. Call your local

23:45

Firestone Complete Auto Care and book

23:47

your next appointment today. Welcome

23:58

back. Okay, you'll recall last

24:00

week as we were recording the

24:02

show another story was just

24:04

starting to unfold that the Trump

24:06

administration appeared to be staging

24:08

another rendition of Venezuelans to El

24:10

Salvador under the Alien Enemies

24:12

Act, this time from the Blue

24:14

Bonnet detention facility outside of

24:16

Abilene in the northern district of

24:18

Texas. Yes, yes, and I

24:21

had thought Initially, they were busing men

24:23

from Blue Bonnet to Harlingen in the

24:25

Southern District, which is where they flew

24:27

the previous planes out of. Those

24:31

are the ones that Judge Boesberg

24:33

ordered to turn around on March

24:35

15th. Yes. But as court filings

24:37

began hitting the docket, it became

24:39

apparent that the government was actually

24:41

moving men to Blue Bonnet in

24:43

the Northern District of Texas, not

24:45

away from there. Presumably,

24:48

though it's not been proven, they were doing

24:51

that They were moving the men there because

24:53

there was not a restraining order in place

24:55

in that jurisdiction blocking rendition under the Alien

24:57

Enemies Act where there was in the Southern

24:59

District. So they started busing

25:01

people from the Southern District and from

25:03

other districts like I think Colorado now

25:05

has a temporary restraining order because you

25:07

know the Supreme Court's like you can't

25:09

have it nationwide. It has to be

25:11

district by district with habeas petitions. So

25:13

there's Southern District of New York, Pennsylvania, Colorado.

25:19

Southern District of Texas, there's been flights

25:21

all around getting people to blue bonnet in

25:23

the Northern District of Texas. And the

25:25

lawyers were like, we talked about this

25:27

last week. They were like, we're freaked out,

25:29

Judge Bozburg. They're going to send these

25:31

guys to Al Salvador. So

25:34

the plaintiffs filed with

25:36

Bozburg. They filed with the

25:38

Northern District of Texas, a

25:40

temporary restraining order. But that court

25:42

denied the temporary restraining order

25:44

because the government said, They

25:46

had no plans to fly anyone

25:49

out of the district and the court

25:51

believed them, right? Mm -hmm. The plaintiffs

25:53

also filed an emergency Administrative stay

25:55

or you know a tro with the

25:57

Fifth Circuit and they also filed

25:59

with the Supreme Court file file file

26:01

So they've they had it everywhere.

26:03

They had all their bases covered and

26:06

they and they filed with Bosberg

26:08

too That's right. So Bosberg held an

26:10

emergency hearing right after we finished

26:12

recording last week's podcast But

26:14

Allison, you and I were wondering exactly how

26:16

Bosberg would have jurisdiction. I mean, given

26:18

that the plaintiffs were in northern Texas and

26:20

he was in DC. And

26:23

as it turns out, Bosberg had the same

26:25

concern. And he ultimately had to

26:27

deny the temporary restraining order. But

26:29

during the hearing, there were questions

26:31

about whether the government had any plans

26:33

to fly anyone to El Salvador

26:35

over the Easter weekend. But the government

26:37

couldn't commit. They even took

26:39

a 30 -minute recess to see if Ensign

26:42

could get the answer to the question.

26:44

He came back and said, follow this

26:46

one now, the government could

26:48

not commit to not flying

26:50

anyone out that weekend. Still,

26:54

Bosberg had to deny the

26:56

TRO because the Supreme Court vacated

26:58

an identical TRO when it

27:00

started requiring habeas petitions to be

27:02

filed in the jurisdiction where

27:04

the plaintiffs were being detained. So

27:07

that put all eyes on the Fifth

27:09

Circuit and the Supreme Court. where the plaintiffs,

27:11

as you said, had also filed for

27:13

emergency relief. Yeah, and at that point, we're

27:15

like, well, we're going to bed, Fifth

27:18

Circuit, Supreme Court, no way. But

27:20

then... But... Much

27:22

to the surprise of

27:24

many, just before 1

27:26

a .m., the Supreme Court aggressively

27:29

and surprisingly weighed in. Now Steve

27:31

Vladik writes this for the one

27:33

first sub -stack. Just before 1 a

27:35

.m. Eastern, late night, very early

27:37

this morning, the Supreme Court handed

27:39

down a truly remarkable order in

27:41

the latest litigation, challenging the Trump

27:43

administration's attempts to use the Alien

27:45

Enemies Act, the AEA, to summarily

27:47

remove large numbers of non -citizens to

27:50

third countries, including El Salvador. So

27:52

here's the Supreme Court's very brief order

27:54

that came in the middle of the night.

27:56

There is before the court an application

27:58

on behalf of a putative class of detainees

28:00

seeking an injunction against their removal under

28:02

the Alien Enemies Act. The matter

28:04

is currently pending before the Fifth Circuit. Upon

28:07

action by the Fifth Circuit, the

28:10

Solicitor General, the Trump administration, is

28:12

invited to file a response to

28:14

the application before this court as soon

28:16

as possible. The government is

28:19

directed not to remove any member

28:21

of the putative class of

28:23

detainees from the United States until

28:25

further order of this court. Wow.

28:29

Now, Justice Thomas and Justice

28:31

Alito dissent from the court's

28:33

order. Statement from Alito to

28:36

follow. So Alito's dissent

28:38

wasn't included in this

28:40

order. Yeah, which

28:42

I gather is customary under these emergency applications.

28:44

If somebody wants to dissent, they're given

28:46

a little bit more time to do it.

28:48

It doesn't necessarily come out Well, normally

28:50

the Supreme Court would wait till he's done.

28:53

That's like, we wouldn't think the Supreme

28:55

Court would step in here so fast. Yeah,

28:57

but they couldn't, right? Because literally thinking

28:59

that the planes were warming up the engines,

29:01

they had to get this order out.

29:03

And so they give Alito a little bit

29:05

of a chance. Oh, no, I understand.

29:07

No, I understand. I'm just saying none of

29:10

us thought that they would stop these

29:12

planes from going out. Totally.

29:14

I mean, this one struck us all as

29:16

very out of the ordinary. And

29:18

as Steve Flatic writes, it says

29:20

a lot without saying very much.

29:23

He, uh, Vladik puts it this way.

29:25

He says, first, the full court

29:27

didn't wait for the Fifth Circuit or

29:29

act through the individual circuit justice,

29:31

which would have been a Lido. Even

29:34

in other fast -moving emergency applications,

29:36

the court has often made a

29:38

show out of at least appearing

29:40

to wait for the lower courts

29:42

to rule before intervening, even if

29:44

that ruling might not have influenced

29:46

the outcome. Here, though, the court

29:48

didn't wait at all. Indeed, the

29:50

order specifically invites the government to

29:53

respond once the Fifth Circuit weighed

29:55

in, acknowledging that the Fifth Circuit

29:57

hadn't ruled, and indeed that the

29:59

government hadn't responded to the application

30:01

in the Supreme Court just yet. Now,

30:04

this may seem like a technical point, but

30:06

it underscores how seriously the court, or at

30:08

least the majority of it, took the urgency

30:10

of the matter. Yep, yep.

30:13

And Professor Vladik also

30:15

says, second, The

30:17

court didn't hide behind any procedural

30:19

technicalities. One of the real themes

30:21

of this court's interventions in Trump -related

30:23

emergency applications to date has been

30:25

using procedural technicalities to justify siding

30:27

with the federal government. And

30:29

third, and perhaps most significantly, the

30:32

court seemed to not be content

30:34

with relying upon representations by the

30:36

government's lawyers. In the

30:38

hearing before Chief Judge Bosberg,

30:40

Drew Ensign had specifically stated, on

30:43

behalf of the government, that no planes

30:45

would be leaving Friday. albeit with a

30:47

bit less clarity about Saturday and Sunday.

30:50

True, the government hasn't formally responded to the

30:52

Supreme Court, but the justices, or at least

30:54

their clerks, would have been well aware of

30:56

that exchange. Indeed, some of the clerks

30:58

were likely listening to the hearing as it happened. In

31:01

a world in which a majority of the justices

31:03

were willing to take these kinds of representations

31:05

at face value, there might have been

31:07

no need to intervene overnight Friday evening. The

31:09

justices could have taken at least some

31:11

of Saturday to try to sort things out

31:13

before handing down their decision. The court

31:15

appears to be finally getting the message, and

31:18

in turn, handing down rulings with

31:20

none of the wiggle room we saw

31:22

in the JGG and Ebrego Garcia

31:24

decisions last week. That is

31:26

a massively significant development unto itself.

31:30

And I agree. Totally. And

31:32

when he's talking about the wiggle

31:34

room in JGG and Abraco Garcia,

31:36

he's talking about, oh, habeas petitions. And

31:38

you have to give due deference

31:40

and regard, due regard and deference

31:42

to Trump and his mighty powers

31:44

of dealing with foreign affairs. And,

31:46

you know, in Abraco Garcia, it

31:49

was, well, we'll go back down to

31:51

the court and tell us what effectuate

31:53

means. And, you know, we'll see you

31:55

again soon, right? So

31:57

that's what he's talking about there.

32:00

Yeah, and it's like we

32:02

were saying earlier in the

32:04

show. This is yet another

32:06

example of not just a

32:08

court but v court At

32:10

least implying that they don't

32:12

take the government at their

32:14

word and that is just

32:17

a that's a massive shift

32:19

in kind of American

32:21

jurisprudence. Yeah, and not a court

32:23

or the court, but this court. That's

32:26

right. Exactly right.

32:28

Or at least the most of

32:30

them. Not those other two. specific

32:32

Supreme Court who thinks he's a king, right?

32:34

For sure. And needs all the due regard and

32:36

deference in the world when it comes to

32:38

foreign affairs. Came in at 1 a .m. Didn't

32:40

wait for Alito, didn't wait for the Fifth Circuit.

32:43

And there was actually a little bit of a weirdness.

32:45

They didn't say in their little thing that it

32:47

was referred to the court by Alito. which

32:49

is normally the language. So

32:52

we actually still aren't sure how the full court got

32:54

a hold of it. Because Alito could

32:56

have said no on his own. Yeah.

33:00

From the Fifth Circuit, through the Fifth Circuit.

33:02

I don't know, maybe it was asleep. And

33:04

I just wonder how these things happen. I

33:06

mean, I guess they actually, I mean, obviously, I

33:09

don't know how they mechanically

33:11

discuss something like this and

33:13

get everyone to vote. Like,

33:16

is it all remote? Are they

33:18

all home on a Friday night of

33:20

Easter weekend? They have a signal

33:22

chat going. Oh, nice.

33:25

Nice. They

33:28

hit up

33:30

Pete. They're like,

33:32

yo, Pete, can you get the

33:34

group together, the small group Supreme Court

33:36

for a... That's how the ACA

33:38

and Dove's decision leaked, right? It's a

33:40

signal chat. They accidentally put Jeffrey

33:42

Goldberg on it. Anyway.

33:46

Oh, the jokes. The

33:48

jokes. Yeah, the jokes. They write

33:50

themselves. All right. Speaking of

33:52

jokes that write themselves, we're going to talk about

33:54

Alito's dissent that we did eventually get, but we

33:56

have to take another quick break. Stick around. We'll

33:58

be right back. At

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34:06

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34:08

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your next appointment today. All

34:39

right, everybody, welcome back. So

34:41

it's pretty amazing that the Supreme Court issued that

34:43

decision before Alito could write his dissent, right?

34:45

Like you said, sometimes they do give him a

34:48

little more time, but we did get it

34:50

a couple days later. I guess Martha needed time

34:52

to pick out her new flag that she

34:54

was gonna put up. But anyhow,

34:56

we have some highlights or

34:58

lowlights from Alito's dissent joined

35:00

by Justice Clarence Thomas. This

35:02

is again from Vladek's one

35:04

first. And if you're not

35:06

subscribed, you really should subscribe.

35:09

I thought it would be useful to

35:11

analyze the specific arguments he proffers, some

35:13

of which are just wrong, some of

35:15

which are non sequiturs, and some of

35:17

which are truly galling. That's what the

35:19

George L. Law professor says about Justice

35:21

Alito. First, Alito says, it

35:23

is not clear that the court has jurisdiction. What

35:26

happened to making a rule for

35:28

the ages, anyway? Nice! Vladik says,

35:30

Alito tries to argue that the

35:32

district court's denial of the ACLU's

35:34

request for a TRO could not

35:36

be immediately appealed, and therefore, the

35:38

ACLU's appeal wasn't in the court

35:41

of appeals. There are

35:43

at least two independently fatal problems with

35:45

this assertion. First, a case is in

35:47

a court of appeals for purposes of

35:49

the Supreme Court's appellate jurisdiction, even if

35:51

the court of appeals ultimately holds that

35:53

it doesn't have jurisdiction. That's

35:56

because the Supreme Court's power

35:58

to hear an appeal does not

36:00

turn on whether the Court

36:02

of Appeals properly has jurisdiction

36:04

under the separate jurisdictional statutes

36:06

for those tribunals. So, wrong.

36:09

Second, and in any

36:11

event, the Supreme Court just expanded

36:13

the circumstances in which district court rulings

36:15

on TROs can be immediately appealed

36:17

in a pair of rulings in which

36:20

Justice Alito was in the majority. Alito

36:22

never explains why the TROs and

36:24

the Department of Education and JGG

36:26

cases were immediately appealable, but the

36:28

denial of a TRO in those

36:30

cases was not. So

36:32

he's, he's like wrong and wrong.

36:35

So that's the first big thing

36:37

that Alito just got wrong. Yeah.

36:39

So next Alito complains that

36:41

the ACLU went to the

36:44

Fifth Circuit just 133 minutes

36:46

after it sought emergency relief

36:48

from the district court. And

36:50

that's simply incorrect. In

36:52

fact, the district court had more than

36:54

14 hours to rule before the ACLU

36:57

sought relief in the Fifth Circuit. Oops,

36:59

that would be wrong number

37:01

two. Alito also got

37:04

another important point wrong. He wrote,

37:06

quote, Or

37:19

today, April 20, Professor of

37:21

Relatic Rights. But

37:23

this is perhaps the most troubling

37:25

point Alito makes in his dissent.

37:28

He is, quite obviously, referring to

37:30

an exchange between the Justice Department

37:32

lawyer Drew Ensign and Chief Judge

37:34

Bosberg in the emergency hearing Bosberg

37:36

held Friday afternoon in the JGG

37:38

case, where the ACLU is also

37:40

trying to get a new TRO

37:42

to block the apparently imminent AEA

37:44

removals of folks from Texas. According

37:47

to multiple accounts of folks who

37:49

were listening, Ensign said he

37:51

was unaware of any flight

37:53

schedule for Friday, but that he

37:55

was specifically instructed to, quote, reserve

37:58

the right for the government

38:00

to conduct removals on Saturday,

38:02

April 19th. In other words,

38:04

the DOJ lawyer did not

38:06

say what Alito said he

38:08

said. Yeah.

38:11

So, you know, we're

38:13

talking earlier about the court taking the word

38:15

of the government. He

38:17

didn't even have the word of the

38:19

government right. Yeah, there was this.

38:21

This was the infamous I cannot say

38:23

that we will not move any

38:25

people to El Salvador. Yeah,

38:27

I can't commit. We reserve the right

38:29

as a matter of fact to fly

38:31

people out on April 19th. So just

38:33

flat out got it wrong. There are

38:35

several other technical issues with Alito's dissent

38:37

and you can read all about them

38:40

in the one first sub -stack. Professor Vladik

38:42

breaks it down and very easy to

38:44

understand language. So all

38:46

right, let's shift gears now, and let's

38:48

pick up where we left off on

38:50

Judge Boesberg's docket. Last week, we reported

38:52

that Boesberg had ruled that probable cause

38:54

exists to hold the government in criminal

38:56

contempt for failing to follow his orders

38:58

to turn the planes around. Even

39:01

though the Supreme Court eventually vacated

39:03

those orders, you still have to follow

39:05

them until they're vacated, and the

39:07

Trump administration did not. Boesberg's

39:09

opinion was not appealable. And

39:12

that's according to Steve Lattic, not

39:14

just me. But Trump appealed them

39:16

anyhow and through the luck of

39:18

the draw got catsus and row

39:20

on the appellate panel Who did

39:22

issue a temporary administrative stay of

39:25

boseberg's ruling as of right now?

39:27

We still haven't heard anything further

39:29

But the docket on the original

39:31

alien enemies act case JGG is

39:33

now active again the ACLU has

39:35

filed a new suit on behalf

39:38

of an amended complaint I should

39:40

say on behalf of those from

39:42

the original flights that still remain

39:44

in Seacote. And they've

39:46

asked Judge Bosberg to certify a new

39:48

class with a couple of subclasses. The

39:51

new lead plaintiffs on the case

39:53

are Andrew Hernandez Romero, the openly gay

39:55

stylist and makeup artist wrongfully sent

39:57

to El Salvador, and

39:59

Fragile Reyes Mota. That's

40:01

the guy that had no tattoos

40:03

and whose paperwork included the

40:05

wrong name among several other administrative

40:07

errors. So they're the

40:09

new lead plaintiffs on this amended complaint,

40:11

right? So they're kind of amending what

40:13

they originally did that those first orders

40:16

that turn the planes around and those

40:18

TROs were vacated So that's kind of

40:20

where we are because the judge was

40:22

like you have till April 16th on

40:24

April 8th. He's like if anybody wants

40:26

any say anything more You haven't till

40:28

April 16th to do so and they

40:30

did right so the ACLU has filed

40:33

an amended complaint a motion for preliminary

40:35

injunction, and a motion to certify the

40:37

class. So let's start with the class

40:39

motion. The petitioners want

40:41

to modify the class to

40:43

include all non -citizens who were,

40:45

are, or will be subject

40:47

to the March 2025 presidential

40:49

proclamation entitled, Invocation of

40:51

the Alien Enemies Act Regarding the

40:54

Invasion of the United States

40:56

by Trende Aragua and Oritz implementation.

40:59

Now, petitioners also move the

41:01

court to certify the

41:03

following subclasses. Subclass one,

41:05

which they call the CCOT

41:07

subclass, all non -citizens

41:09

in custody at the Terrorism

41:11

Confinement Center CCOT in El

41:14

Salvador who were or will

41:16

be subject to the March

41:18

2025 Presidential Proclamation about the

41:20

Alien Enemies Act. Subclass

41:22

two, which is called the

41:24

Criminal Custody subclass, this is

41:26

all non -citizens in criminal

41:28

custody who were or will

41:30

be subject to the March

41:32

2025 Presidential Proclamation entitled Invocation

41:34

of the Alien Enemies Act. And

41:37

that's the first two

41:40

subclasses. Yeah, so that criminal

41:42

custody subclass, that's anyone

41:44

anywhere who could be subject

41:46

to removal under the

41:48

proclamation. And my first thought

41:51

was, well, Boseberg can't

41:53

do this for anyone outside

41:55

of his jurisdiction. But...

41:58

Criminal custody makes it different,

42:00

right? There's only about 32

42:02

people around the country that

42:04

are in criminal custody that

42:06

are subject to this removal.

42:09

So it's not everyone everywhere.

42:12

It's just people in criminal

42:14

custody. So they've narrowed it. We'll

42:17

see. I expect the government

42:19

will attack it. Right. On that

42:21

ground. So we'll see who

42:23

knows, but... Right. But they had

42:25

some case citations saying that

42:27

habeas can be heard in another

42:29

jurisdiction if somebody's in criminal

42:31

custody. So we'll see. We'll

42:34

see how it ends up going, what Boseberg says.

42:36

Now, next, let's talk about their amended

42:38

complaint. This is the beef, right? This

42:40

is the merits. Right. This is

42:42

what everyone's like, when are we going

42:45

to get to the part where we decide

42:47

that... can't use the alien enemies act

42:49

in the first place because we're not at

42:51

war Yeah, so this asks the court

42:53

to rule that the government violated multiple laws

42:55

by wrongly using the AEA So everyone

42:57

like I said wants to know when the

42:59

court will get to the heart of

43:01

the matter here that the AEA is not

43:03

applicable Because we aren't at war and

43:05

trend agro is not working for on behalf

43:07

of the Venezuelan government or the Maduro

43:09

regime That's this right. This is the beef

43:12

They also say the government violated

43:14

in here, they violated the

43:16

INA, the Foreign Affairs

43:18

Reform and Restructuring Act of 1998, the

43:21

APA, the Administrative Procedures Act. They

43:24

also say that they violated due process under the

43:26

Fifth Amendment, they violated habeas

43:28

corpus, they have punitive

43:30

detention in violation of the Fifth Amendment,

43:32

criminal punishment in violation of the

43:34

Fifth and Sixth Amendments, and cruel and

43:36

unusual punishment under the Eighth Amendment.

43:38

Ding, ding, ding. There you go. That's

43:40

all of it. So they're asking

43:42

the court to stop rendition under the

43:44

AEA, return all the prisoners from

43:46

Seacote to the United States, grant writ

43:48

of habeas for the class, and

43:50

require the government to give up to

43:52

30 days notice to anyone subject

43:54

to removal. Not the 12 hours that

43:56

the Department of Justice has told

43:59

the court is a reasonable amount of

44:01

time. That's right.

44:03

So then there's the preliminary

44:05

injunction. which they phrased

44:07

like this, plaintiffs hereby move for

44:09

a preliminary injunction to prevent

44:11

further harm to petitioners and to

44:13

subclasses who are already facing

44:15

or imminently face grave and irreparable

44:18

harm from the government's unlawful

44:20

use of the Alien Enemies Act

44:22

to summarily expel individuals from

44:24

the United States and imprison them

44:26

in El Salvador. First,

44:28

for the CCOT subclass, petitioners

44:30

move for an order

44:33

requiring respondents to immediately request

44:35

and take all reasonable

44:37

steps to facilitate the return

44:39

of the subclass to

44:41

the United States from respondents

44:43

jailer in El Salvador. Second,

44:47

for the criminal custody subclass,

44:49

petitioners seek an order in

44:51

joining respondents from removing any

44:53

subclass member from the United

44:55

States under the president's proclamation

44:57

and requiring respondents to provide

44:59

adequate notice of designation to

45:02

each subclass member and class

45:04

council. and a reasonable opportunity

45:06

to challenge their designation, detention

45:08

and removal under the AEA consistent

45:10

with due process. Yeah,

45:12

that's interesting. All right, so remember

45:14

the preliminary injunction stops things from

45:17

happening temporarily while the court considers

45:19

the beef. So generally

45:21

when you file a temporary restraining

45:23

order or a preliminary injunction,

45:25

you file underneath it your complaint,

45:28

right? The thing

45:30

that's going to be decided on the

45:32

merits. And that beefy complaint about

45:34

the AEA, is the one that we

45:36

have here about the AEA being

45:38

unlawful. Preliminary injunctions are appealable to the

45:40

Supreme Court, as are any rulings

45:42

on the amended complaint. And we'll

45:45

keep you posted on what Judge

45:47

Boesberg does in this new case and

45:49

what happens next in the criminal

45:51

contempt case, which is stalled because of

45:53

the brief administrative temporary stay issued

45:55

by, I believe, the DC

45:57

Circuit Court, Katzis and Rao. There

45:59

was one, I think, Obama appointee

46:02

who dissented, but we'll see if they

46:04

go on bonk with that. It's

46:06

interesting, but we're all caught

46:08

up for now, Andy. We're

46:11

all caught up on these cases at the moment. We

46:14

have a few more brief stories, including

46:16

some terrifying orders from Pam Bondi, but we

46:18

do have to take one last quick

46:20

break, so stick around. We'll be right back.

46:27

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next appointment today. All

47:01

right, everybody, welcome back. We have a

47:03

few quick stories before we get to

47:06

listener questions today. First, a judge was

47:08

arrested without the use of a grand

47:10

jury by the FBI for allegedly obstructing

47:12

justice and concealing an individual to prevent

47:14

discovery and arrest. Kashpatel, Donald

47:16

Trump, and Pam Bondi have bragged about

47:18

it on true social and Twitter, but

47:21

then Kashpatel immediately deleted his tweet, but then

47:23

I think he reposted it again. But

47:25

here's something that the Department of

47:27

Justice has said in an affidavit. After

47:30

leaving the chief judge's vestibule and

47:32

returning to the public hallway, DEA

47:34

Agent A reported that Flores

47:36

Ruiz and his attorney were in

47:39

the public hallway. DEA

47:41

Agent B also observed Flores Ruiz

47:43

and his attorney in the hallway

47:45

near courtroom 615 and noted that

47:47

Flores Ruiz was looking around the

47:49

hallway. From different vantage points,

47:51

both agents observed Flores Ruiz and his

47:53

counsel walk briskly toward the elevator

47:55

bank on the south end of the

47:58

sixth floor. I am familiar with

48:00

the layout of the sixth floor of

48:02

the courthouse and know that the

48:04

south elevators are not the closest elevators

48:06

to courtroom 615. And therefore, it

48:08

appears that Flores Ruiz and his counsel

48:10

elected not to use the closest

48:12

elevator bank to the courtroom 615. DEA

48:15

Agent A followed Flores Ruiz

48:17

and his attorney toward the south

48:19

elevator bank at approximately 8 .50

48:21

a .m. DEA Agent A alerted

48:23

other members of the arrest

48:25

team that DEA Agent A was

48:27

on the elevator. with Flores

48:29

Ruiz. So if you're

48:31

asking also why there's DEA

48:33

agents and FBI agents, that

48:36

is likely because like 25 %

48:38

of the FBI and DEA have

48:40

been reassigned and deputized to ICE. There

48:44

are so many problems with this

48:46

thing. Let me ask you

48:48

about arresting somebody without a grand jury indictment.

48:50

I watch a lot of court drama

48:52

on television and I know like New York

48:55

state law, for example, is if you

48:57

have pretty good reason to arrest someone like

48:59

you got a witness statement and a

49:01

positive ID and a voice ID, you can

49:03

arrest them, but you have 24 hours

49:05

to get a true bill from a grand

49:07

jury after that, after you arrest them.

49:09

Is it kind of the same thing with

49:11

federal charges? Like you can charge if

49:14

you have good enough reason to believe somebody

49:16

committed these crimes and then you have

49:18

to get a true bill. I mean, don't

49:20

you? have to get a true bill

49:22

at some point? Well, you still

49:24

have to go to a judge. Even

49:26

if you don't have the person indicted, a

49:28

true bill is an indictment. If you

49:30

don't have them indicted first, that's like the

49:32

traditional way to do it is the

49:35

prosecutor presents evidence to a grand jury, then

49:37

the grand jury votes. There was probable

49:39

cause of leave of crime was committed. They

49:41

issue the indictment. You get an arrest

49:43

warrant based on that indictment. If

49:45

it's something that happens quicker, the agents

49:47

can fill out an affidavit and they

49:49

can write a complaint. the prosecutors

49:51

do, and you go straight to a

49:53

judge, and a judge makes the determination

49:55

of probable cause. If he finds that

49:57

there is probable cause, the arrest warrant

49:59

is issued by the judge, and then

50:01

you have 10 days to indict the

50:03

case. 10 days. not 24

50:06

hours. It's a little bit longer. Typically,

50:08

lots of times, defendants will waive

50:10

the indictment and not insist on being

50:12

indicted, depending on what they've been

50:14

charged with and all that kind of

50:16

stuff. There's different ways

50:19

to do it and slightly

50:21

different than the federal system.

50:23

I think this whole episode

50:25

here should never have happened

50:27

and is regretful for a

50:29

lot of reasons. Preliminarily,

50:33

people do get arrested in courthouses.

50:36

It's not unheard of. It doesn't

50:38

happen every day. But it typically

50:40

has to take place like in

50:42

the public area of the courthouse,

50:44

like in the hallway outside the

50:46

court rooms. And you

50:48

typically do it after the person

50:50

has been in court and had their

50:52

day in court for whatever proceeding

50:54

they're there for, whatever. And

50:57

then also, in order to

50:59

get into that area as an

51:01

armed agent, you kind of have

51:03

to, at first, make yourself known

51:05

to the security people on the

51:07

way in. You tell them, we're

51:09

here to arrest someone. Here's the

51:11

person. Here's where we're going to

51:13

do it. So everybody's kind of...

51:15

the same page this Feels like

51:17

a propaganda stunt it is I

51:19

think for a lot of reasons

51:22

and what the key to that

51:24

is how the government reacted after

51:26

it happened Whether or not this

51:28

woman the judge Hannah Dugan, I

51:30

think is her name committed

51:32

a crime here. That's for

51:34

the process to figure out. The

51:37

complaint is pretty detailed. They claim

51:39

to have witnesses who were in

51:41

the courtroom, heard things that she

51:43

said, saw her actions and allegedly

51:45

escorting the lawyer and Ruiz through

51:47

a juror door into an area

51:49

that's not public. Whether or not

51:51

that was an effort to help

51:53

them evade law enforcement, like that's

51:55

what the trial will be for

51:57

to figure out. They didn't have

51:59

to go through this. nut roll.

52:03

Today, when they came back,

52:05

it's been about a week when

52:07

they got their ducks together and they

52:09

came to arrest the judge. They

52:11

waited. They didn't go to her house

52:13

like you would do for any

52:15

other defendant, knock on the door, and

52:17

all that kind of stuff. They

52:19

didn't treat her like you would treat

52:21

any other person of respectable stature

52:23

in the community who's never had any

52:25

kind of criminal involvement. Typically, white

52:27

collar offenders do this all the time.

52:29

Your lawyer gets a phone call

52:32

and they say come to the courthouse

52:34

at X time to be presented

52:36

Donald Trump got all Trump. Yeah, there

52:38

you go that we all saw

52:40

that show happen in three different cities

52:42

so They didn't do that with

52:44

her they went to the courthouse and

52:46

arrested her at the courthouse in

52:48

front of the public and her colleagues

52:50

took her back and put her

52:52

in the cell and let her sit

52:54

in the cell for hours until

52:56

her arraignment finally took place. So this

52:58

was all done as an orchestrated

53:00

bit of Trump administration performative retaliation so

53:02

that judges all across the country

53:04

will see this and say, I don't

53:06

want that happening to me and

53:08

they'll be more compliant. So in another

53:10

yet another example of the kind

53:12

of retaliatory coercive approach that the Trump

53:14

administration takes to Justice

53:17

and now they're now they're on

53:19

TV because I was on just an

53:21

hour or so ago Yelling and

53:23

screaming about you don't understand this guy's

53:25

a horrible person. He was in

53:27

court on a miss on a domestic

53:29

violence claim Which is what he

53:31

was in court on he was in

53:33

misdemeanor court this judge only hears

53:35

misdemeanor and I'm not I'm not minimizing

53:37

domestic violence in any way, but

53:39

like There's a process there, too. There's

53:41

a due process that has to

53:43

happen in that case Yeah, that

53:45

guy gets due process too, you know?

53:47

Yeah, that's the way it's supposed to

53:49

work. Typically, the Justice Department, they file

53:52

their complaints, their indictments, and they don't

53:54

speak about cases while they're still

53:56

pending. Instead here, you've got

53:58

Pam Bondi out on Fox News all

54:00

day long, yelling and screaming about this judge.

54:02

You're what a horrible person she is.

54:04

Well, that's what this does. This feeds the

54:06

narrative of this administration that the judiciary

54:08

is corrupt and needs to be taken down

54:10

a peg, et cetera. So this is

54:12

in some ways like the best thing that

54:15

ever happened to them because it gave

54:17

them an opportunity to just wail away on

54:19

her and the judiciary writ large and

54:21

try to look like the white knights of

54:23

immigration enforcement. But

54:26

anyway, also today

54:28

we've got Pam Bondi signing a

54:30

memo that directs law enforcement nationwide to

54:32

pursue suspected gang members into their

54:34

homes in some cases without any sort

54:36

of warrant. according to a copy

54:38

of the directive exclusively obtained by USA

54:40

Today. The directive is

54:42

issued by the Attorney General on March

54:45

14th. Oh wow, like over a

54:47

month ago. Oh yeah. Provides

54:49

the first public view of the

54:51

specific implementation of the 1798 Alien

54:53

Enemies Act, invoked to deport migrants

54:55

accused of being members of the

54:57

Venezuelan gang Tren de Arague. It

54:59

provides directives to frontline

55:01

officers apprehending suspected Tren de

55:03

Arague members, suggesting officers

55:05

obtain a warrant of apprehension

55:08

and removal, quote, as

55:10

much as practicable. Yeah,

55:12

those administrative warrants are signed

55:14

by immigration officers, not judges

55:16

like criminal warrants. Due

55:19

to a, quote, dynamic nature

55:21

of law enforcement procedures, officers

55:23

are free to apprehend aliens

55:25

based on their reasonable belief

55:27

they meet the definitions, the

55:29

memo states. It

55:31

purports to grant authority for

55:33

police to enter a

55:35

suspected, quote, alien enemy's residence

55:37

if circumstances render it

55:39

impracticable to first obtain a

55:41

warrant. Wow. This is

55:43

frightening. I mean, really frightening and

55:45

doubly frightening that my former colleagues are out

55:47

there doing this with them because this is

55:49

not something that FBI agents do. Well,

55:52

it wasn't until now. Wow.

55:55

Yeah. That

55:57

is terrifying. That

56:00

is... So, anti

56:02

-constitutional. Yeah. My

56:04

goodness. And we know what happens to those

56:06

people once they're detained. They get

56:09

shuttled down to places like Bluebond

56:11

and thrown on a plane or

56:13

attempted to get thrown on a

56:15

plane and sent out of the

56:17

country. So, without any sort of

56:19

due process. Yeah, sometimes not

56:21

just sent to another country, but sent to

56:23

a prison where they could... Yeah, yeah,

56:25

yeah, for sure. Alright,

56:27

Ed Martin, our good friend Ed Martin, issued

56:29

a statement this week, for

56:31

the arrest of a domestic terrorist

56:34

accused of vandalizing Teslas. Despite

56:36

the domestic terrorist moniker, Andy, the

56:38

person was charged with a misdemeanor

56:40

and released on his own with

56:42

cognizance. You

56:44

are a domestic terrorist, but we

56:46

all hate Tesla. So, you know,

56:48

just slap on the wrist. What

56:50

do you, what can I say?

56:52

Wow. So I bet this is

56:54

just them, you know, trying to

56:57

force their domestic terrorism label onto

56:59

misdemeanor vandalism charges for people who

57:01

are ROR. Just, wow.

57:03

I've never seen domestic terrorist

57:05

and ROR in the

57:07

same statement, but he released

57:09

it. Yeah. I

57:11

mean, thank you, Ed, once again.

57:13

Oh, sending us

57:15

more information for the

57:18

show. And we'd

57:20

be remiss if we didn't share some of

57:22

the dressing down that Trump's Department of

57:24

Justice received this week from Judge Lamberth in

57:26

the Voice of America case. Now,

57:28

Judge Lamberth, just like Judge Wilkinson

57:30

in the Fourth Circuit last week,

57:33

Lamberth was also appointed by

57:35

President Reagan. So no

57:38

left leaning. What

57:40

is it? No Marxist. Lunatic,

57:42

lefty, whatever the heck it is.

57:45

Radical leftist. Radical leftist, yeah. So

57:47

Paul Barrett writes for Just

57:49

Security, as with the

57:52

two earlier TROs, Judge Lamberth

57:54

did not delve into the potentially

57:56

sticky question of whether President

57:58

Trump violated the First Amendment protections

58:00

of expression and the press

58:02

when he shut down the voice

58:04

of America and its affiliates.

58:06

The judge found the case relatively

58:08

easy to resolve based on

58:10

two other main grounds, the

58:13

constitutional principle of separation

58:15

of powers and the Administrative

58:17

Procedures Act. The

58:19

judge explained that the separation

58:21

of powers analysis is buttressed

58:23

by the APA, under which

58:25

courts have the authority to

58:27

set aside an executive branch

58:29

action deemed arbitrary, capricious, in

58:31

abusive discretion, or otherwise not

58:34

in accordance with the law.

58:36

And when shutting down VOA,

58:38

the administration not only failed

58:40

to provide reasoned analysis, the

58:42

judge said, it failed

58:44

to engage in any analysis at

58:46

all. Moreover, the

58:48

earlier TROs were based on this

58:50

failure. In response, the administration

58:53

had the opportunity and written filings and

58:55

in -person hearings to proffer some kind

58:57

of reasoning, any kind of reasoning,

58:59

but government lawyers declined to do so.

59:01

And Judge Lamberth seemed startled. In

59:04

their briefing before this court,

59:06

he said the administration's attorneys do

59:08

not even use the words

59:10

arbitrary or capricious anywhere, even

59:13

though the central holding of

59:15

the TRO was that the defendant's

59:17

actions were arbitrary and capricious. During

59:20

a hearing before him, the judge

59:22

added, the defendant's opted not to

59:24

argue the merits of the arbitrary

59:26

and capricious challenge despite being given

59:28

several opportunities to do so. It's

59:31

almost as if to say nudge,

59:33

nudge, wink, wink, arbitrary and capricious. It

59:35

reminds me of when Judge Eileen

59:37

Cannon was like, yeah, you know, it's

59:40

this kind of equitable jurisdiction for

59:42

your special master in the documents case,

59:44

right? If you wanted to give

59:46

me that, I'd look at it. Now,

59:50

the government made the elementary mistake

59:52

of relying solely on a claim

59:54

that Judge Lamberth lacked jurisdiction to

59:56

hear the case, which he convincingly

59:58

rejected. It was a rudimentary error.

1:00:00

by the Department of Justice lawyers. In

1:00:02

cases such as this, lawyers are trained to

1:00:04

argue in the alternative, make the

1:00:06

jurisdictional argument, but in

1:00:08

case that doesn't fly, offer the substantive

1:00:10

statutory argument as well. Incredibly, the

1:00:13

government did not do so. Andy, we

1:00:15

talked about this all the time

1:00:17

during the Jack podcast. We called it,

1:00:19

even if, the even if clauses,

1:00:21

right? Even if you

1:00:23

decide. uh, judge that he is

1:00:25

immune. It doesn't apply here, uh,

1:00:28

because these aren't official acts, right?

1:00:30

Like, yeah, in this case, it

1:00:32

would be, he's not immune. The

1:00:34

end, right? No, you, you, you

1:00:36

make the, even if arguments and

1:00:38

the DOJ failed to do so

1:00:40

and Lamberth took him to school

1:00:42

for it. You typically make every

1:00:44

argument you possibly can. Like if,

1:00:47

so this standard is, um, set

1:00:49

aside an executive branch action deemed

1:00:51

arbitrary, capricious. an abuse

1:00:53

of discretion or otherwise not

1:00:55

in accordance with the law.

1:00:57

So typically a lawyer would

1:00:59

address each one of those

1:01:01

elements and provide some precedent

1:01:03

in law. It's not arbitrary

1:01:05

because it's not capricious because this.

1:01:08

not abuse of discretion and

1:01:10

it's finally, you know, it is

1:01:12

in accordance with the law. But

1:01:14

now they just like yeah like

1:01:16

I remember the judges going through Ritchie

1:01:18

factors like well I'm gonna dismiss

1:01:20

this on this one thing But I'm

1:01:23

gonna go through your Ritchie factors

1:01:25

anyway each one I tell you each

1:01:27

one why so they failed and

1:01:29

That's it again. We've talked about this

1:01:31

now for a few weeks Andy

1:01:33

that the DOJ Remember,

1:01:35

there were some Department of Justice lawyers who were

1:01:37

running back and forth to courts that were like principal

1:01:39

attorneys and the judge is like, what are you

1:01:41

doing here? He's like, I don't know. I'm supposed to

1:01:43

be in Florida. They're just

1:01:45

so short staffed and the brain

1:01:47

drain, right, is so significant that

1:01:50

they're only left with like handfuls

1:01:52

of lawyers and they aren't making

1:01:54

the good arguments. Now, we haven't

1:01:56

seen good arguments from Trump lawyers.

1:01:58

I mean, how many times did

1:02:00

we take apart Emile

1:02:03

Bovee's arguments or filings or Todd Blanche's.

1:02:05

And now they're senior staff at the

1:02:07

Department of Justice. So it stands to

1:02:09

reason, I guess, but the judges aren't

1:02:11

pleased. Yeah, for sure. They shouldn't be.

1:02:13

All right. We have some listener questions,

1:02:15

and then we'll get out of here.

1:02:18

I know we've kept you for over

1:02:20

an hour now. I

1:02:22

feel like a professor. Like, I'm sorry, I'll dismiss you

1:02:24

in just a moment, but we want to get

1:02:26

to these listener questions, at least one of them. If

1:02:28

you do have a question, there's a link in the

1:02:30

show notes. You can click on submit your question.

1:02:32

We'll see if we can get to it on the

1:02:34

air. We do read all of them and we absolutely,

1:02:36

we're just always just fascinated and riveted by your

1:02:38

amazing questions. So again, click on that link in the

1:02:40

show notes and send your questions. What do we have

1:02:42

this week for questions, Andy? All right. So this

1:02:44

one comes to us from Andrea and Andrea writes in

1:02:46

something that I think a lot of people are wondering

1:02:48

as we track all of these cases that seem

1:02:50

to be bouncing back and forth. She

1:02:52

says cases against the government are going

1:02:54

up and down between federal and

1:02:56

appeals courts and the Supreme Court. I'm

1:02:58

curious about the inner workings of

1:03:00

judges' chambers. Can judges at,

1:03:03

for example, the federal level consult

1:03:05

with their colleagues on the bench or

1:03:07

hire up the food chain before

1:03:09

they issue orders? I think

1:03:11

that with controversial issues, they'd

1:03:13

want to know their findings are

1:03:15

justified and that their colleagues

1:03:17

support their decisions. Or is this

1:03:19

a judicial no -no? It's

1:03:21

a really good question, and I

1:03:23

think it's reasonable that people, not

1:03:25

just you, Andrew, but lots of people

1:03:28

would think that that's probably happening behind the

1:03:30

scenes. Sometimes,

1:03:32

like I remember when Judge Eileen

1:03:34

Cannon's three of her colleagues called

1:03:36

her and said, don't take these

1:03:38

cases. Yeah, so that

1:03:40

was the same thing I was

1:03:42

going to point to. So generally, you're

1:03:44

not going to go outside of

1:03:46

your immediate group of colleagues. So that's

1:03:48

the judges that serve at the

1:03:50

same level as you. So if you're

1:03:52

a district court judge, that's the

1:03:54

other district court judges. And to

1:03:56

include the chief judge of your

1:03:58

district, who is the one judge who's

1:04:00

nominally kind of in charge of

1:04:03

all the rest of you. And

1:04:05

generally, you're not going to talk

1:04:07

about the substance of the legal issues

1:04:09

you're ruling on. That

1:04:12

what you do when you might see and

1:04:14

you did see it in that case with

1:04:16

the island can and you had the chief

1:04:18

justice of that. District saying to

1:04:20

her hey you should think about recusing from

1:04:22

this and then she had another judge made

1:04:24

the same argument to her. Those

1:04:26

kind of things maybe especially

1:04:28

in a case like that

1:04:30

where you have like. Older

1:04:32

senior supervisory judges talking to

1:04:34

a very very new colleague

1:04:36

but generally. Experience

1:04:39

judges. they're going to have conversations

1:04:41

about the legal issue in the

1:04:43

case. It's with their law clerks

1:04:45

on their staff. their clerks, right?

1:04:47

Yeah, because that's all them, right?

1:04:49

That all comes back to them. They're

1:04:52

not going to go to other judges

1:04:55

and say, eh, what do you think? Should

1:04:57

I call it this way or should

1:04:59

I call it that way? And they definitely

1:05:01

won't have those conversations with like judges

1:05:03

on the appellate court because it would be

1:05:05

kind of improper to like... that issue

1:05:07

in front of an appellate judge before the

1:05:09

case is even there. Yeah.

1:05:11

I have seen judges in district

1:05:13

court write four judges in higher

1:05:15

courts or justices on the Supreme

1:05:17

Court with them in mind just

1:05:19

because they know the rulings that

1:05:21

they've made in the past. Oh,

1:05:23

yeah. Once you've made your decision.

1:05:25

I don't think there's a direct

1:05:27

consult going on. So, you

1:05:30

know, I would say totally agree with

1:05:32

what everything Andy just said. And

1:05:34

this is from speaking with a few

1:05:36

judges that I've talked to and

1:05:38

asked sort of similar questions about. They

1:05:40

don't generally go out of their

1:05:43

level. They usually stick to their, you

1:05:45

know, talking to their clerks, who

1:05:47

they bounce law off of and, and

1:05:49

things like that. But they are

1:05:51

very aware of what courts above them

1:05:53

like Judge Chutkin, what the DC

1:05:56

Circuit Court of Appeals rulings are, what

1:05:58

those specific judges are like, the

1:06:00

kind of language they like to hear,

1:06:02

and then of course the Supreme

1:06:04

Court too. We've seen a lot of

1:06:06

like Judge Pryor and the Eleventh

1:06:09

Circuit will write kind of almost two

1:06:11

Clarence Thomas, but only based on

1:06:13

stuff that they already know those judicial

1:06:15

decisions have been made. So yeah,

1:06:17

that's my thought exactly. They very much

1:06:19

do not want to get overturned.

1:06:22

Period. They know

1:06:24

the precedent

1:06:26

in their circuit.

1:06:30

They're watching those opinions that are

1:06:32

coming out of their circuit

1:06:34

court on high -profile issues. Those

1:06:36

are the cases that are most important to

1:06:38

them when they're looking for precedent upon which to

1:06:40

base their decisions. If they

1:06:42

know particular judges on the circuit court

1:06:44

look for particular pieces of evidence,

1:06:46

they'll make sure they highlight that in

1:06:48

their decision. definitely

1:06:51

goes on more so than we think

1:06:53

about. We think it's all federal law

1:06:55

who cares. It's all the same, but

1:06:57

they're very circuit focused. But

1:06:59

I don't think a lot of like, you

1:07:01

know, phone calls get made

1:07:04

or over the tennis court or

1:07:06

signal chat middle of the

1:07:08

pickleball game. Hey, judge. Well,

1:07:11

great question. And,

1:07:13

you know, I'm going to go back

1:07:15

and talk to some more of my judge

1:07:17

and lawyer friends, too. to see if

1:07:19

I can get any more information out of

1:07:22

them on that subject. But wonderful question. All

1:07:24

right. That's all we have time for. We've

1:07:26

already been an hour and 10 minutes, Andy.

1:07:28

So we're going to call it for this

1:07:30

week. But again, thank you so much for

1:07:32

your questions and click on that link in

1:07:35

the show notes if you want to submit

1:07:37

yours. Maybe it'll be a quiet week and

1:07:39

we can get to more listener questions next

1:07:41

week. Remember that one, like at the end

1:07:43

of the Jack. The era where we just

1:07:45

did all listener questions because we didn't have

1:07:47

any Jack News. Lighting round

1:07:49

for like, come on, more

1:07:51

questions. We're

1:07:53

digging for questions. So there will come

1:07:55

a day. That's right. I

1:07:57

don't know if it's going to be this week

1:07:59

or this month, but we will need your questions.

1:08:01

so So please submit them. We always like to

1:08:04

go back to, to older questions and check them

1:08:06

out when we're, when we're running low. so. So.

1:08:08

Hey, Hey, there's always a day in everyone's house

1:08:10

where you go digging deep into the closet, trying

1:08:12

to find that last can of beans, you know?

1:08:14

So when we get there, you know, we'll, we'll

1:08:16

be coursing through the questions for more. Yeah. Appreciate

1:08:18

you all. Thanks for listening and we'll be back

1:08:20

We'll be back week. I've been Allison Gill and

1:08:22

I'm Andy McCabe. Unjustified

1:08:25

written and executive produced by Allison

1:08:27

Gill with research and analysis by Andrew

1:08:29

McCabe. Sound design editing is by

1:08:31

Molly Hockey, art and web design by

1:08:33

Joel Reeder at Moxie Design Studios.

1:08:35

The theme music for Unjustified is written

1:08:37

and performed by Ben Folds and

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