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- [00:00]
Bill Kristol
Hi, Bill Kristol here with Bulwark on Sunday. Our guest today is Ryan Goodman, professor of law at nyu, the editor in chief of the Just Security publication, which is really excellent, which you should all look at, look for online, look for the website, but also a new substack at Just Security. Is that right, Ryan? I think, which, yeah, just launched, which you can now read. He posts every few days, excellent updates on what's going on with Trump and the courts, which we should talk about today. So thanks, Ryan, for, for joining me and thank you for joining others on the Bulwark in the last few weeks. Those have been terrific, very useful for our listeners and viewers and readers. I've heard from many of them. So let's talk about Trump in the courts. I guess the most recent story was the Wisconsin one was that was Friday, seems like two weeks ago. But anyway, it was just Friday where a judge was arrested at 8am by FBI agents and Cash Patel and Pam Bon, he made a big deal of it. Say a word about what, what happened and what you think it means.
- [01:05]
Ryan Goodman
Yeah. So thanks and thanks for the opportunity to have the conversation with you. So in a fairly unprecedented manner, there's one potential precedent in the first Trump administration, but in a fairly unprecedented manner, the Department of Justice has arrested a sitting judge and the allegation is that she's committed two federal crimes by facilitating a non citizen immigrant in the country fleeing isis, ability to arrest him in her courtroom. And the two federal crimes are obstruction of the enforcement from ICE and the concealment of a person under an arrest warrant. And so that's what just happened. And in the most unusual manner as well, not only just charging a sitting judge, but also arresting her and then bringing her into detention and holding her in detention for a couple hours, which is astonishing. That's very unusual for somebody obviously his poses no flight risk or anything like it. And then immediately when the arrest happened, Cash Patel on X broadcast this event, talked about her in disparaging terms and you know, as though they're, the case was open, shut. Pam Bondi went on Fox News, smeared or disparaged the judge, however one wants to think of it, and suggested that this was a signal to other judges similarly situated. So that's the, that's the setup. And instead I'm putting that in the most charitable terms.
- [03:10]
Bill Kristol
Yeah. And I've talked to three or four, I guess, federal prosecutors about this and they think the case is weak, weak at best, and would not normally be brought and will not maybe even actually be getting grand jury sign off or certainly get the conviction.
- [03:26]
Ryan Goodman
Yeah. So I think of it in similar terms. So what we really have from the government side is an affidavit that was submitted as part of the criminal complaint. And if you simply read the affidavit on its own terms, it doesn't look like a solid case at all. It looks like a case that will just fall apart, primarily because the whole idea is that they would have to prove beyond a reasonable doubt that the judge's intent was to conceal the immigrant. And lo and behold, the affidavit itself says that what she did is instead of having the person exit out the front door of her courtroom, had the person exit out the jury door. And that seems at first blush suspicious because that's not a door that's usually used for defendants that aren't in custody. But lo and behold, from the affidavit itself, they say, where does he come out of? He comes back into the public hallway. That's the same public hallway where they were trying to arrest him in the first place. And how do we know this? Because two DEA agents observe him in the hallway where they wanted him to be. They do. They rest in there. They do not. He then goes down an elevator in the affidavit, the government's own affidavit. Who is in the elevator with him? Another federal agent who does not arrest him. And then he leaves the building, and then he tries to run away on foot, and then they catch him. So it seems at some level like a facially absurd in the sense that she didn't do anything to keep him out of sight of the federal agents and had every opportunity to do what they came there for. But even if it facially is not absurd, it just seems like, how on earth are they going to prove beyond a reasonable doubt, her intent and all sorts of things, given that's the circumstance, and that's just part of it. There are other aspects to it, which are. Everybody agrees that it seems like the federal agents, as well as the chief judge of the court house, that they could not try to arrest this individual in the courtroom. They. Yes, they could in the courthouse, because the hallways are public. But not in her courtroom, where a judge has a huge amount of discretion as to how to run their courtroom. And lo and behold, another part of the affidavit is that they say at a certain point in the affidavit that there were two federal agents in the courtroom. And there's no good explanation for why they would be in the courtroom. And the affidavit kind of hides the ball on that because it just says that at a certain point, the courtroom deputy asked them to leave and then they left the courtroom. But we don't know, like, why, you know, when did they come in that courtroom? Exactly. So I could easily imagine the judge is super animated by the fact that they're inside her courtroom trying in part to carry out this arrest of somebody in her courtroom. And judges across the board don't want that. So that could be her complete intent. Like, you do it whatever you want to do, ice, but not in my courtroom. Right. And that's the end of it. And that's not, that's not criminal by any stretch.
- [06:34]
Bill Kristol
So we'll see what happens on the case. But the publicizing of it, the kind of not just simply telling her police report to be, you know, for your as they did with Trump and as they do with most of these guys, almost all of these kinds of defendants just show up at 11am at the office and will fingerprint you or whatever and take a picture and then you'll go on your way. The kind of the spectacular. Not spectacular, but the performative arrest of her outside of her courtroom at 8am and so forth as she came to work, I guess, the next day. What do you think they intended by that?
- [07:11]
Ryan Goodman
Yeah, so I think they intended one of two things. My working assumption, based on everything I've seen, is that they're trying to create an image in the public mind or some sectors of the public about judges, that there's this, that they want to create this idea that judges are like the notion of the deep state that they've also created that are trying to protect violent immigrants inside the United States and protect them from ice. And that's the concept. And doing that in a criminal way because. And that's exactly what I mean. Basically, that's a summary of what Pam Bondi is saying on Fox News. It's extraordinary to have the attorney general of the United States speaking publicly about somebody under criminal arrest at all, let alone in these terms. I mean, she could come out and say, just very boilerplate, what's in the criminal complaint? And, you know, we're going to speak through our filings. But that's not at all what she did. So I think it's just about a public messaging campaign. Same thing with Kash Patel using X also to broadcast a photograph of the judge being taken out of the courthouse. So I think that's one. I think they're just trying to create this image of judges because they're Running up against the court system, finding against the administration time and again. I think that's one secondly, perhaps, and I'm actually not as sure about this one. They're just trying to intimidate judges, which they're doing in other ways. I mean, AG Bondi has already, you know, told Chief Judge Boasberg is eminently respected, as though he's on the side of terrorists, things like that. I don't think this is necessarily a form of intimidation because I don't think these judges are doing anything wrong or that they're going to change what they're doing on the basis of this use of the bullhorn to the shout lies about them, essentially. But that could, that could also be going on as well.
- [09:11]
Bill Kristol
Yeah, the first does seem very likely, though, the, the attempt to paint a picture of these liberal judges. And in this case, I mean, I was gonna say the liberal state. So that liberal estate Trump carried the state in Wisconsin, but a state court judge, I guess, maybe even a local judge, I'm not sure she's elected Milwaukee or state. I think Milwaukee maybe. So it's, you know, a city judge being soft on immigrants, which gets to the other side of it, which is immigration. Right. Not an accident. This is an immigration case, not a random other case where a judge had a maybe routine, almost slight difference of opinion with federal agents who were, you know, in terms of whose turf things would happen on in a, in a courtroom. That's, that's not the unheard of. Right. But it's, it's an immigrant who was, in fact, being tried for. She was, she was presiding over a. His case for. I can't remember what the battery, I think. Yeah.
- [10:02]
Ryan Goodman
Domestic violence of some sort. Yeah.
- [10:04]
Bill Kristol
So. Yeah. So that's. Let's. That gets us to immigration, which has been so much the heart, more than. Almost, more than even I expected, I'd say, of Trump's agenda, of his public presentation of what the administration's about and at the heart of a lot of the conflicts with the courts, not all of them, as they've also been many issues about firing federal employees without proper notice or proper anything and other, the separation of powers issues and so forth. But so say, where do we stand on the broad sort of prosecution by the Trump administration of its immigration agenda? And it's running into some barriers in the court system, mostly the federal court, I guess, since.
- [10:46]
Ryan Goodman
Yeah, yeah. So I think they're running into two types of barriers. One is that they're simply, as I'd actually written with Adam Cox before everything started Getting rolling. We wrote before January 20, there's one barrier which is just the sheer difficulty logistically to meet their stated expectations or objectives of how many people they want to remove from the country. It's just so hard to do that in so many different ways, logistically and otherwise. So because of that, I think they're now reaching for other instances in which it's more extreme. And I would put it this way. Absolutely not. What people voted for. I think a lot of people voted for a clampdown on immigration. Immigration, but they were thinking like violent immigrants. And it's so hard to get those numbers that high that I think they're now expanding to hold classes of individuals, you know, in the last, I think, 24, 48 hours, the wife of a person in the Coast Guard who overstayed her visa. I mean, so that's one piece that they're running into, that obstacle. And the second one is in the courts. Exactly. And that in particular, I think they've had two major missteps. I never understood why they rolled out birthright citizenship on January 20, and especially with a version of it that's on absolute steroids. I mean, let alone that birthright citizenship, trying to strip people of that in the first instance, I thought was always going to lose at the Supreme Court. But then to also add to it that they're doing it even of people who were born in the United States to lawful immigrants, that one. But then now we have the use of the Alien Enemies act or the purported use of the Alien Enemies act, and there are. They're suffering just a lot of losses with Republican appointed judges fighting against them and fighting against them on the idea that the notion of an invasion, the notion that the Venezuelan gang is acting as a foreign government is pretty much ludicrous. And so the judges are willing to go there. If this were closer to the line, I think the judges might give a lot of deference. But we can talk about this. I thought one, one of the most important cases that just came out this last week is a bit of a sleeper. And the people haven't seen understood it as much, but it's the equivalent of a Brago Garcia with another person who was taken to the C cot prison in El Salvador. We don't have the person's exact name, so it's just Jo for their pseudonym and a judge in the case as a Republican appointee. In fact, sorry, Trump appointee, let me put it that way. Stephanie Gallagher in Maryland basically refers to the Garcia case and says, I totally agree with Judge Cenis in that case and that she reaches the final conclusion that the person in this, in her instance also is in the Seacot prison. And she orders in the same language as the US Supreme Court and Judge Sinis that the government is ordered to facilitate the release of this individual from the SEOT prison. And then just to put one other finer point on it, that makes it very similar to Abrego Garcia. Abrego Garcia was removed out of the United States against a court order that said he should never be sent to El Salvador because he faces well grounded risk of persecution.
- [14:16]
Bill Kristol
Jop, that's a court order that goes way back.
- [14:18]
Ryan Goodman
I mean that's, yeah, 2019 immigration.
- [14:21]
Bill Kristol
That was his position. That's why the government originally admitted they'd made a mistake in this. In the case of Abranko Garcia.
- [14:27]
Ryan Goodman
Absolutely. They say it's an error. They don't contest it. It's their error. And then in this case, Jop, this is an individual, he's 20 years old. He was part of a broad settlement with the government over unaccompanied minors who came into the country. And the settlement prohibits their being deported for the time being. And so the judge says a whole lot went into that settlement. He's being, he was sent to El Salvador against the settlement. So it's actually an enforcement of the settlement. It's not like just a temporary restraining order. It's something much more meaningful. And she says he's been sent there in violation of the court administered settlement and you need to bring back. And they also says essentially that there might be other people who are members of the class of that settlement. So it's just, you know, again and again and again. And then for those who are paying like super close attention, these are being, these are habeas cases. And because of what the Supreme Court did, they're having to be brought up in different parts of the country where the lawyers know of individuals that are at risk of or being sent. It's really hard because there's no nationwide court order. It can't do that under habeas. And some thought that there was actually a victory for the administration. In many ways it was that they would, that people would have to fight against them on this very piecemeal basis. But I do think that there's this unintended consequence which is lo and behold, you're now getting a bunch of judges across the country fighting against the administration. It's creating this pretty solid base that when the issue comes back to the Supreme Court, you're going to see Republican and Democratically appointed judges having found against what the, what the administration is trying to do with the Alien Enemies Act.
- [16:12]
Bill Kristol
Yeah. And it's affecting public opinion a little more, perhaps, because there are these different cases popping up in different areas. I mean, Ringo Garcia has been the big one, obviously gotten all the publicity, and the numbers are pretty astonishing in the polls on that. People by about 2 to 1 think he should be. It's hurt Trump's general immigration approval rating, which has drifted a little below 50, but still it's 45, 47. But the Abrego Garcia numbers are like 25. And the administration has done its best to paint a certain picture of him, which isn't attractive, and go after him. But people do think that people who shouldn't, who aren't members of this gang, at least, or most very, very likely aren't members of this gang should not be deported with no process, no hearing, no nothing, no evidence to this place in El Salvador they may never get out of and that they should try to bring them back. And I suppose if they try to bring them back, on the other hand, that raises all kinds of other issues. Like, what about the other people? Do we know anything? How many of them are there? How are there 10 innocent people? I mean, innocent meaning. I mean, they're the huge majority of them have never seemingly been charged with a crime. So. But let's just stipulate that some number of them, you know, would be suitable for deportation, maybe not to this place, but to somewhere, because they would have, you know, plausible reason to think the person's a gang member or something. But we don't know how many, how bad big that number is either. Right. I mean, once they get into acknowledging it, this is, I guess, why they don't want to acknowledge error. Maybe apart from their general stubbornness and thinking that's a winning political issue for them, that they're opening a door to a perfectly reasonable, in a way, okay, let's just go over each case and see.
- [17:43]
Ryan Goodman
Right.
- [17:44]
Bill Kristol
See what the, what the facts are. And, and, but they don't want to do that.
- [17:47]
Ryan Goodman
It seems like. Yeah, I think that they're just in deep trouble in different ways, and that's why they don't want to admit it, because here's one. So there are upwards of, you know, about, well north of 200, closer, closer to 300 people who have been taken out of the United States under the purported Alien Enemies act authority. And then there are additional ones like Ms, 13 members who might be El Salvadorian citizens themselves that are not in an enemies act, but in some sense all of them have indeed, as you describe it, been taken out of the country in violation of their constitutional right to due process. Just to have the opportunity to say this is a mistaken identity or something like that. And it's not just me like coming up with that as a law professor, but it's the US Supreme Court. So that's the US Supreme Court. There are nine members on that particular issue that they require notice and a real opportunity to actually, as the court says, file habeas. And all of these folks have been taken out without that. It seems like, just to be clear.
- [18:54]
Bill Kristol
That'S because they're in the country and therefore they have the right to file a habeas brief or to and to make their case that they're being, as you say, mistaken identity or the facts that the ICE thinks are facts aren't facts or whatever. They have a protection against deportation different from the border, in other words, where they can turn people away.
- [19:13]
Ryan Goodman
Yes, yes, exactly. And that's why. Yeah. And that's. I think that's why this has triggered a concern of folks like Joe Rogan speaking about this particular issue. You can't deprive people of their liberty in such a manner without just due process. Just everybody needs at least due process. If the people that we think are guilty don't get due process, none of us do, essentially. And that that's the runaway implication. So I think that's one part of it. Now, just recently in the last week, the ACLU did which and democracy forward, which I anticipated they would do, which is they're now filing. They filed the case that's going to be the key case in the DC System again before Judge Boasberg to try to get a habeas for the people being held in El Salvador under the argument that they are instilled U.S. constructive custody because they're being held there by U.S. payments and with a U.S. agreement with El Salvador and the like, and that the agreement is in fact only for one year. So that would mean, I think that's what the administration is facing as a problem. It would mean that all of them maybe come back or all of them get a habeas proceedings. Whether that can be done extraterritorially or not is a question. Judge Boeber seems to be open to that. But that's what I think. They've got a problem. And that in terms of the innocent people, the key plaintiff in the ACLU case is this person who's the hair salon guy, and he sure as heck, from everything that's in the public record, looks like he was apprehended and is the wrong person. He's not a member of the gang. And Abrego Garcia is a great example of this as well. Just as a reminder, in case people aren't tracking it super closely, but despite what President Trump and the attorney general have said about him as a terrorist, etc, when it comes to the court proceedings, they do not say that. And the fourth Circuit, in two powerful opinions now by Judge Wilkinson, Reagan appointee, they have pointed out that the government presented, quote, unquote, no evidence, no evidence that he was a TDA member. I'm sorry, Ms. 13 member in that instance, no evidence. And that they conceded the argument. So that's really quite awful in the sense that another instance in which we have cases like this in which there's there does it seems like if these folks get a habeas, a bunch of them are going to win.
- [21:51]
Bill Kristol
And now it's spilling over in terms of their enforcement, as you sort of hinted at earlier to us more broadly, I mean, they seem to be US Citizens who may well have been deported, which is not legal. I think there are people who are, as you say, someone waiting for a green card or for, or in the, in the immigrant in public, you know, having registered appropriately and, and being applying for various forms of immigration status, as you said, I think a spouse of a Coast Guard member or something like that who are just being, you know, discovered one way or the other, sometimes discovered when they show up to actually do what they're supposed to do to advance their immigration hearings or status or file the paperwork or whatever and being snatched and sent abroad. I mean, I wonder. It just does seem like they are doubling down on the whole, on the whole thing. I mean, and this is now way beyond the gang member charge and I want to get back to the Alien Enemies act, but way beyond the Alien Enemies Act. This is just, just deport people who are manifestly no threat to anyone and in some cases, U.S. citizens, apparently.
- [22:55]
Ryan Goodman
Yes. So, and I think it's in a certain sense, my best guess is that the message has gone out that they really need to ratchet up their numbers and deportation. So if anybody comes into the system that can be deported, they are going to try to deport the person. So regardless of if that's even a, you know, a person, as you say, that has been routinely, consistently showing up to their immigration proceedings, if they then decide that the person can be deported, then they are going to deport them and we just have now seen in the past few days, 48 hours, I think it is 24th and 25th, so a little bit longer than that of this month. A 2 year old US citizen with health conditions removed to Honduras, in which the judge in the case is a very conservative judge in Louisiana, it's Harry Doty and he says that he is deeply suspicious that the government has removed the person, this kid, without any due process, without any real process. And ice's argument, just so we have that is. And the government's argument that no, when they decided to deport the mother to Honduras, she expressed the consent and willingness, she wanted to have her 2 year old with her rather than remain with the husband in the country. And then the judge says, how do I know that? And he italicizes the word no. He's like, how does the court know that we don't know that? And the issue I think here is I could even imagine somebody feeling like they think it's appropriate and right that if a person's in the country and has a final order of removal, let's say back to Honduras, the woman, then so be it. And then if she has a child, then it's her decision to make as to what to do. Okay, maybe so, but no process. And she's not able to even contact her lawyers and she's not even able to contact her family to even make a decision. And her lawyer's telling her like what her rights are so she can make an educated decision about it. That seems to be what occurred. And in fact her husband races to the courthouse, files an emergency TRO on the that day that it occurred because he was waiting for them to come out of the immigration meeting that they were in. And the judge is acts fast to get a hearing the next day, but by the time the hearing is happening, they've already taken her out of the country and she's in. The judge mentions that she's on the, on the plane because he wanted to speak to her during the hearing. It's just like, why, like why are they rushing people out of the country? Same thing with the Alien Enemies Act. Why rush them to the planes unless it's trying to avoid court review? And why do that? Shouldn't they be willing to state their case before the courts? So that's what's just so worrisome about the situation that we're in. It's doing this without people getting process and now affecting U.S. citizens. And Judge Doty starts out his opinion by listing the constitutional precedents for no US citizen should ever be deported. You can't even use the word deportation with a US Citizen because it doesn't apply.
- [26:06]
Bill Kristol
How much is the government's evasion and running of the courts, some cases misleading the courts very clearly, actually not pretending or maybe truthfully saying they don't know what's going on elsewhere in the government, even though they're supposed to presumably come to court as representatives, they have the ability to call their peers elsewhere in the government and say, hey, I need to know what's going on. I'm in a court case tomorrow. They seem not to be told or say they're not told. How much is all that building up distrust of the administration's credibility in courts?
- [26:45]
Ryan Goodman
Yeah, I think it has to be building up a lot of distrust across the federal judiciary, because these judges are also, I'm sure, very aware of what's happening across the country in other cases. So, like, we're reading it, they're reading it. And there does seem to be an extraordinary pattern of Justice Department lawyers showing up in court. And then as you describe it, it's only a question of if they're, like, using one of my areas of expertise in international law. Are they unwilling or unable to be candid and truthful with the court? Unwilling or unable? Unwilling because they're actually engaging in deceit, or un. Or unable because they actually don't know the answers. And under the unwilling or unable, it's also a little bit of. For some of them, I think it's like willful ignorance, like, how could you possibly show up in court and you do not have the answer to certain questions. How can you possibly show up in court if your client is not telling you the answer to whether or not there are planes that are loaded up with purported Alien Enemies act detainees? How can you possibly show up to court? And it cuts across these cases. How can you possibly show up to court without knowing who is the head of Doge? And then once they get the person in, who they now say is the titular head of Doge, how can you possibly show up to court without knowing who was the head of Doge before she was appointed? So there's a part of me that wonders if they just are deliberately going in so they don't have the information that they can give the judges. So this has happened in so many different cases right now, and certainly one of the biggest ones was the alien enemies case before Chief Judge Boasberg, where he has now found that there's a probable cause to find individuals in criminal contempt because of the idea that what they were trying to do is get those people on planes outside of the country. He lays the groundwork for exactly when they were pre positioning people to get on those planes, knowing that he was having his court hearing and then willfully disregarding his orders to bring people back either mid flight or if they landed in, in El Salvador, to then return them from the tarmac and fly back. So that's part of the concern. And one of the, one of the DOJ lawyers who keeps showing up in these cases, either willfully ignorant or whatever the case is, is this guy Ensign. And it's just happening again and again. So when I can only imagine judges are increasingly distrustful, this can also finally implicate the outcome of certain decisions. You know, one thing that I think folks like me are watching from the legal perspective is a doctrinal presumption of regularity that often goes into cases, especially in national security cases and immigration cases, where judges are routinely going to be saying, in ordinary times, we presume regularity on the part of the administration in its decision making process. And that's why we give them great deference. I don't know how you get there, given what we've already seen and given what we know about the purging of internal watchdogs within the administration that are the kinds of internal checks to make sure that they're abiding by and complying with my compliance officers with law. So it's a almost perfect storm that's, I think, coming for the Justice Department along those fronts.
- [30:11]
Bill Kristol
Yeah, that's so interesting. But also depressing or at least, yes, say the perfect. Well, it's only asked two final questions, one about the perfect storm that's coming in a sense. I mean, what. Well, the administration's been clear, I guess she said, well, why are they doing this? Well, they're doing it because they don't believe they should be in court. I mean, they believe that they should have pretty much an untrammeled right to do all this. I mean, Trump says this all the time on Truth Social and Bondi and others in a slightly more elite, not much more sophisticated way, the lawyers say in a more sophisticated. But they've said it in court too, haven't they, that we shouldn't be here in the first place. This is. So it should be the President's article to power and that's that. And you know, so there's, they're treating it the way any of us might treat something that we're, I don't know, summoned to a meeting and we don't think we should be there in the first place and, you know, don't think they have any authority over us. And we're going for some kind of sort of have to show up for some reason and we just grudging. Hopefully we wouldn't lie and all. But anyway, I'm struck. But then I guess my question obviously is how does that play out? And what is your anticipation of when, I don't know, how do we just have more and more of these individual cases? Is there a moment where it kind of all comes together, it's a big defiance of the courts or not and so forth. And secondly, relatedly, I guess the Alien Enemies act itself hasn't really been there hasn't been an argument on the merits so far of whether it was in fact properly invoked for Venezuela, not a country with which we were obviously at war, and for a gang from Venezuela, which is a law enforcement problem, but maybe not an alien enemies problem that will make its way to the Supreme Court eventually, I suppose, as an actual question on the merits, not just on how they've applied it in these cases. Right. I mean, I guess it has sort of been the merits have been sort of reached in the sense that not reached, but raised in the sense that you don't get an injunction unless you're some decent chance of prevailing on the merits. So the courts are kind of, you might say, have said what, that they're slightly dubious about this implication of the Alien Enemies Act. But either both of those questions are what maybe Alien Enemies act first, that's why simpler. But then I really would be curious, what do you think we should be? What do you expect over the next weeks, couple of months, this Supreme Court term, next term and so forth?
- [32:21]
Ryan Goodman
Yeah. So I do. So there's always, to me, an open question as to whether or not the courts would like, look under the hood of the invocation of the Alien Enemies act to see whether or not it's a proper invocation. Because you could imagine the court saying under the political question doctrine, which is just a form of deference to say this is a political question, it's a policy decision by the executive branch. It's not something for what they also say, like judicially manageable evidence and the like. And just like the president also has extraordinary, extraordinary powers in foreign affairs and potentially to recognize foreign governments or things like that, if the president says they're acting as a foreign government, who are we to judge that? So it could have been that way, but as if they were to Then peel open, look inside the hood. Then I think the government's argument just totally falls apart because as you say, the Alien Enemies act is peculiar or particular, I should say 1798 statute, it is about war with the foreign government or maybe or invasion by a foreign government. So you have to say it's a war or invasion as understood in the 18th century. An invasion is like a war in the 18th century. It's basically a full on attack by a foreign government. And so the courts now, to the degree that they have looked under the hood are saying there's no way this is an invasion as meant by the US Constitution or by the statute. There's no plausible way in which a Venezuelan gang is acting as a foreign government either at the direction of the Maduro regime or like they're. Because I think they get themselves in trouble by arguing in the alternative. As lawyers, the government argues, well, if they're not at the direction of Maduro, they themselves have filled in a vacuum. So they're like a foreign government, which is just really ludicrous and will not. So it doesn't withstand scrutiny as long as you apply the scrutiny. So they've. That's why I thought that there's a very big moment with Judge Henderson, actually a conservative judge and conservative on immigration issues and foreign affairs issues and executive authority saying this doesn't hold up. She reached those questions.
- [34:38]
Bill Kristol
So she's in the D.C. circuit, right?
- [34:39]
Ryan Goodman
Yeah, D.C. circuit, yeah. That was remarkable. And then this other judge that I mentioned in the settlement case is also, she reached the, she reached those issues on the Alien Enemies Act. So I think that that's, and I do agree with you as well that that's what's finally going to get to the Supreme Court. In some ways we're just playing stage one right now where the Supreme Court is trying to say, look, these people get habeas, they get a right to be in court and contest at least one very clearly from standing Supreme Court president under the Alien Enemies act, whether or not they are a member of the gang. That's one. And then two, the court does signal, and it's in its very brief opinion on this, that they can contest this constitutionality or the interpretation of the statute. So we're maybe off to the races on that. And then so when that comes back, when they finally get their due process rights, essentially, then they'll contest it and then that'll come up to the Supreme Court. So we'll see on how that one cashes out. I do think that two things are True that the, you know, so to me I agree with you that focusing in on the next few weeks, months, the key question is contempt of courts. Are they going to how far are they going to push this on defying court orders and would it in fact go would they defy a supreme Supreme Court orders? I think we are already in that zone in that they are currently in defiance of court orders and that there are three of them at least and all three are actually under the Alien Enemies act or use of El Salvador seacot prison. And I think that they're that think that can't be a, you know, that's not a coincidence. I think they think that that's the great public messaging place to do it. And if they can get there because it's the easiest case for them with the respect of what they think the public would accept or support, then they can do it in other cases. And so the three are the Judge Brosberg case in D.C. having sent people out on the planes, landed them in El Salvador and then not brought them back when they still were completely in US Custody where he's found probable cause for criminal contempt. Second one is Abrego Garcia where Judge Sinis was at a certain point, I don't want to say irate because it's hard to read that out off of the page, but very clearly saying that the judges that the administration is in violation of her orders. So one in relation of her orders, the fourth Circuit and the and the Supreme Court which all said that the government can and should be ordered to facilitate a Vega Garcia's release from El Salvador. And that's the case in which just for people that haven't been playing close attention to this, there's something just so bizarre that happened in her courtroom or in the court proceedings. Absolutely bizarre. It's hard for me to think of another example like this in which and this goes to the like unwilling or unable like is it incompetence or is it intransigence? The DOJ's briefs to judge Sinis say we are under no court order to there's no order. You can't order us to facilitate the release of Abrego Garcia from El Salvador. And the words that they use are actually the words of the Supreme Court. So it's like what are they doing? And then they in their citation they mis cite the Supreme Court. The quotation they have of the Supreme Court is not what the Supreme Court said. I've never seen a lawyer do that. But that's partly what's going on in her in the litigation before her. And she totally within, I would even say even a little bit narrower than what the Supreme Court said she could do, said to them, okay, you need to update me on what steps you're taking to facilitate his return. And they refused to do it. They refused to do it. She said, I want daily status reports. The status reports just basically finally they said, like, where he's located, but nothing about any steps that they're taking. Partly, as you say, Bill, which is, I think part of their thinking is like, we shouldn't be here, like, we shouldn't be asked to do this. This is Article 2 Power. Why you can't, you know, where you can compel us. This might be overly optimistic on my part, but I'm thinking maybe they've just been advised by really, really bad lawyers who do those kinds of miscitations. They've really misunderstood the Supreme Court's order, which is clearly a green light to Judge Sinis. So that's the second one. And then the third one we found out in the last several days is a related case that cuts across all of immigration. It's not specific to Alien Enemies act or to El Salvador, which is this DVD case. The DVD case is in the First Circuit. And on March 28, the judge issued a temporary restraining order that basically said you cannot take people to a third country without telling them that's the country that they're going to. So you have to give them notice. And then that gives them an opportunity, they have a right to submit an application to an immigration judge that says.
- [39:47]
Bill Kristol
They'Ll be tortured in the third country meeting. Like, you can't just send a Venezuelan to El Salvador.
- [39:51]
Ryan Goodman
100%. Exactly.
- [39:52]
Bill Kristol
You can send them back home, presumably, if that's. Yeah, it's otherwise legal, but.
- [39:56]
Ryan Goodman
Yeah, yeah, yeah, yeah, exactly. So it's not about, like an El Salvadorian being sent to El Salvador, it's a Venezuelan being sent to El Salvador, but it could also be a Ukrainian being sent to Russia. So it's across all of immigration, but it certainly lands on the El Salvador situation. And lo and behold, the government recently says to the court, so that's. Let me put it this way, that happened on March 28th. That's the Trojan. On March 31st, Secretary of State Marco Rubio broadcasts with a statement on his webpage and things like that, bragging that they've now just sent another 17 people to El Salvador's Seacot prison. And in the 17, he says that includes Ms. 13. So that might not be Alien Enemies Act. And Those could easily be El Salvadoran citizens. But he then says, and Venezuelan gang members. So there's a Venezuelan being sent to El Salvador three days after the temporary restraining order. This is alarming to the litigators, the plaintiff litigator lawyers, and they say, they go to the court like this looks like a violation. And so in the last few days, the government submits its answer, which is that technically the. And you've written about this bill, that technically the name defendants in the case are dhs, therefore, ice, Pam Bondi, and then a local superintendent of a jail, and not the dod. And guess what? The flights that took them out were DoD military flights and no DHS officials on the flight. That's their argument, which I think is contemptuous. I think that is in contempt of the court's order because the court said the name defendants and anybody basically participating with them or assisting them, which would be dod. And when the judge issued his order, Judge Murphy, in whose custody were those individuals? ICE's custody.
- [41:55]
Bill Kristol
So they transferred them to DOD.
- [41:56]
Ryan Goodman
Exactly. Yeah. And there's also a little bit of the hiding of the ball with the shell game, which is in their statement from the government, they say, oh, and then ICE transferred them to Guantanamo. And honestly, when I first read that, I was like, oh, okay, so at that point they were in military custody. That's not even true. There's an MOU from March 7th between a memorandum and understanding between DHS and DOD that says people being held on Guantanamo are in ICE custody. So it's like ICE held them, transferred them to Guantanamo after the temporary restraining order. Like what? They're obviously thinking that these people are going to be deported out of Guantanamo because that's what's being a staging ground. And I would like to know, and I think the judge would like to know, was it at the last minute that they then give them to DoD custody as they board the planes? And that would be quite remarkable. So it's three instances when I think they're just in violation. And then the question is, you know, does the system hold and what happens when the Supreme Court rules? And just to. Yeah, put one other point on it, as you said, like, some of the administration officials who have law degrees have been saying publicly things like, oh, Article two power, and. And the like, and that courts shouldn't even be intruding on their authority. And I think there's a way in which that argument is an argument they can make in the court, but if the court decides that is not their authority, it's game over. That should be it. And J.D. vance is one of those individuals, like he knows better and he's been making that argument publicly that he's like, oh, Article 2 power. And does a court get to decide what a commander in chief does on the battlefield? And the answer to him is, well, if the U.S. supreme Court says so, then yes, that's the answer. So he's left that ambiguous as of now. And I think that's the deep concern that I'm most worried about as these cases are coming out.
- [43:58]
Bill Kristol
And the public for now seems to think you should obey court orders and especially Supreme Court orders, but obviously they can try to erode that over the next few weeks and months. Well, look, this has been terrific and so interesting and so much. I mean, this is we're only, as you say in act one, maybe if these five. I mean people sometimes talk about it as if, well, okay, that the court stuff is. That's been exciting. But now we're moving on to other things. But to the contrary. Right. We're really only just in a technical way almost. We're only a little bit into the litigation of these cases. I mean, we're at the lower court level. We're at procedural matters to some degree where temporary restraining orders were not on the merits in many cases. So this is a very. Has a long way to go, but important ways to go. And, and I suppose it's somewhat. I can't. Just one last question, but we'll be brief as we should let people go. But the 7 to 2 emergency Supreme Court order a week ago now, I guess it was on Saturday morning eight days ago with Thomas and Alito only in dissent. Do you read. It was pretty astonishing. I guess court watchers say these at 1:00am Emergency order and issued before Alito could even finish his righteous descent.
- [45:06]
Ryan Goodman
Yes. Yeah. Yeah.
- [45:07]
Bill Kristol
I mean, do you read that as a bit of an indication the Supreme Court is like looking at what's happening and thinking, yikes. I mean, in terms of the administration or is it just whatever, you know, an emergency order, one shouldn't make too much of it.
- [45:22]
Ryan Goodman
Yeah. I think the Supreme Court is deeply worried. And I think that with the exception of Alito and Thomas, it seems like they are geared to be at this point, I think try to be a check on the, on the executive branches overreach and yeah. So what you described, the fact that they acted at 1:00am the fact that they acted before the Fifth Circuit even decided. Now the Fifth Circuit actually had decided before just before midnight. But you can tell from the way the opinion's written. They don't know that. They in fact say like after the 5th Circuit decides, so they're doing that as well. They freeze everything in place. It is interesting that it's still frozen in place. And I also think just for other folks thinking about this, it is interesting that there's, you know, that's that freezes the matter when they said no more flights under the purported Alien Enemies act because these people aren't necessarily being given notice. That's the issue that there's compliance. So right now I think the system in a certain sense is holding. So when I think many folks think, oh, isn't the and Trump administration in rampant non compliance and I have even said some things in this conversation that sounds like that. But I think the system is still grappling with it, holding it. And there's a criminal contempt proceeding that's going on. There's a proceeding Senes proceeding with Abrego Garcia, I think is very similar. And the Supreme Court I think is sending a signal to the judges in a certain sense of hold firm. I would imagine that the federal judiciary is reading that as well from the Supreme Court's action in that case. And it's building up because it's like one case after another in which the Supreme Court has pretty firmly come down in protection of constitutional rights. From the Abrega Garcia to the Alien Enemies act case in the first instance and then now to this one, I think we've got three pretty strong signals from them.
- [47:28]
Bill Kristol
That's so interesting. So the Supreme Court is sending one set of signals at least 7, 1 case 90 but let's say seven members most recently. And the president States is sending a whole different set of signals through his executive, you know, through the executive branch, which seems to be mostly almost entirely following his signals. So we are heading to something. We'll see. There'll be many zigs and zags on this road to I mean everyone expects this climactic moment, but I suppose there could be many sub climactic moments and maybe not even one climactic moment is there are many different cases also. So wow, okay, we have to continue this conversation in a month or so and pick up and you can explain what will all that will have happened. And you'll be explaining more than I'm just thinking the Sunday will work. But you'll be explaining obviously on on your substack and in your writings and appearances on tv, but also I hope without my colleagues on other Bulwark podcasts and videos, you'll keep on explaining where, where we are and what, what to make of it. So, Brian, thanks so much for joining me today.
- [48:25]
Ryan Goodman
Great. Thanks for the conversation once again. Looking forward to the next one.
- [48:28]
Bill Kristol
Me too. And thank you all for joining us on Sunday on the bull work on Sunday.