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- [00:01]
Enterprise Mobility
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Shopify
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Progressive Insurance
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- [02:41]
Michael Popak
Well, Donald Trump and his Department of Justice Misleading Federal courts continues. We got a new filing by the Trump administration with Chief Judge Boasberg about that pesky little thing like there's no war while Donald Trump tries to exercise war powers and deport people to killer jails in El Salvador without due process under the Alien Enemies Act. And now we've got a new filing where the Trump administration is trying to convince the judge that he should butt out and get his nose out of presidential exercise of quote, unquote, war powers during peacetime and has told the judge that there's no way that they violated his injunction in response to his order to show cause because he didn't put anything in writing until 7:30 and planes had already taken off. The problem for them is that's not how injunctions work. That's not how oral injunctions work. And they're misstating the body of law that deals with oral proclamations and pronouncements of judges because they don't want to recognize that they have violated it. But by filing their paper admitting that they Only use the 7:30 or 7:25pm on last Saturday as their cutoff date, they've conceded that they are in contempt of court. I'm Michael Popak. You're on the Midas Touch Network and Legal af. There's a couple of wheels that are spinning at the same time related to this case. One, the Trump administration on the underlying temporary restraining order entered by Judge Boasberg to stop for now temporarily while while briefing is going on below about the merits of the issue. That's what a temporary restraining order is. It's right there, its name, it's temporary, temporary in this case, 14 days, maybe 20 days in length. Donald Trump didn't like to be restrained at all, obviously. And so he ran off and filed an appeal on the underlying temporary restraining order. There a three judge panel led by Judge Millet attacked the same lawyer. I'm going to talk to you about Drew Ensign for the Department of Justice. And as the headline as you've read is the Judge Millette said out loud is that the Nazis, suspected Nazis in America during World War II, were treated better and with more due process than these Venezuelans, a fair amount of which are not criminals, are here under asylum petitions are women and teenagers and hairdressers and the like who have now been sent to the dark dank hell of an El Salvadorian prison where 375 people have died in the last two years from quote, unquote, natural causes. Natural causes is a, is a euphemism in El Salvador for beaten to death. And so that's what the judge Is stopping, stopping people from dying, stopping people from being deported without proper going through the proper immigration law channels, without due process. And that's all he's trying to do. So the big argument here, as Judge Millette said out loud to the lawyers for the Department of Justice, where is the justice? Where is the due process? Why so quickly? Why do we need to put people in El Salvador who are Venezuelans? Why are we paying to play? Why are we paying $6 million so El Salvador can fill their supermax horrible prison? Why? Those are the questions that are properly asked by an appellate court. Why are we, uh. Why do you claim this is unreviewable by a federal court? We see the words in the proclamation and the statute. It requires that there be an incursion and invasion by an enemy country and the rest. That's what judges do. We interpret these things. Now, Judge Henderson on that panel, she was sort of quiet during most of it. In fact, she didn't say a word. She was put on there by Bush malap, by Obama. And then the middle one, Judge Walker is a Trump appointee. He looks like a boy Scout. Looks like about the age of a Boy Scout. He started in on. Why was this case filed in D.C. should have been filed in Texas. Well, no, because the agencies that are being enjoined are in D.C. that's why 50% of the over a hundred cases filed against the Trump administration end up in D.C. courts. Texas would be, I guess, an argument if they were making a writ of habeas corpus, which is a specific writ, to have the body of the person dragged out of jail, to be given due process and be brought before a court. That would probably be in Texas because that was the last stop before the flight to El Salvador. But these things, these, this lawsuit was filed before any of these events happened. So I don't think that jurisdictional argument works. It'll be a 2 to 1 against the Trump administration. And I think it'll be written by Judge Millet. That's on the appeal on the underlying temporary restraining order. But the judge is still trying to get to the bottom of whether they violated his order. He issued an order to show cause last week, giving them until yesterday, last night, to file their brief, which they have done, the Department of Justice. And what they have said is ridiculous. They've said that even though there were words, this is my paraphrase, there were words coming out of the person in the black robe, the judge's mouth, although he wasn't apparently in a black robe. This was done over the weekend and he was wearing casual or soft clothing. But any event, the words coming out of the pie hole of the judge don't have any meaning or merit or enforceability unless they're reduced in writing and they cite a case that's completely in opposite, that's a lie. I have been on the other end of either obtaining an injunction or having an injunction against a client of mine or been restrained in some way. The judge during the hearing will proclaim the injunction. Often if they're going to rule from the bench. When the judge says, and I'm going to read to you from the transcript, when the judge says, I'm ready to rule, you and all of the people along with you take out their pens and their computers, if they're allowed to have computers, and you start writing down what the ruling is, later on you can get a transcript, but you better take it down, especially if you're the party being restrained. Then the judge can, for the reason stated at the hearing, can formalize. So the public knows the reason for the docket. And what's called a minute order is not to inform the parties of what's happened, it's to inform the public of what's happened. The parties know what happened. They were at the hearing. That's why you'll see on a docket related, a docket sheet, for instance, related to an appeal like the one that I just talked to you about. They'll make a note in the docket so it's accurate. There was an oral argument held by the three judge panel at this time. It was number one on the docket. There may be later a transcript filed. So the docket ends up being a sequential presentation, almost like a chain of title of what has happened in the matter from a procedural standpoint. But the minute order is not generally to inform the parties of something, it's to inform the public of something. The parties know what the injunction is or the judge's ruling because it's been announced in court. That's why judges say, for the reasons addressed in the hearing, you know, I've had judges say, no, I'm not going to issue a, a more written order. It is for the reasons we have expressed in this hearing. If you want to attach the transcript, you can't, whatever you want to do. But when the parties leave a room having been enjoined, somebody having been enjoined, you either have to understand it, ask for clarification, or at that time, and then if a judge orders you to do something else, which he did last Saturday, he Ordered Ensign, the lawyer for the Department of Justice, to inform all of his colleagues and everyone of what the judge's ruling was. And he acknowledges that that's it. How do I know that, Ensign, even though they made him sign, apparently this new. This new piece of paper that says writings are not effective. When the judge had him recently in front of a hearing just a day or so ago, to maybe the Trump administration was trying to vacate or dissolve the temporary restraining order, he did a little fact finding related to his contempt. His contempt proceeding. He said, Ensign, you were in the courtroom, weren't you? Yeah. You heard my order? Yes. You understood my order? Yes. You understood that my order restrained you and the government from continuing to fly at that moment? Yes. You understood that, right? Yes, I did. Your Honor, this is almost verbatim. He said, you understood the limits of my injunction. I did not enjoin the government from continuing to arrest people under. Under the Alien Enemies Act. You understood that, right? Yes. You understood that my order did not enjoin or stop the Trump administration from continuing to detain and keep these people in detention, Guantanamo, wherever you wanted to keep them, right? Right. I didn't order you by injunction to release these people that you claim are bad people into the general population of society, right? No, you, Honor. Right. And you heard me. Right. And then he lectured the lawyer, he said, you only have your reputation. You only have that and your ethics. And I've told my law clerks that in the world. Go back and tell your colleagues that, won't you? And so here's what they've done, signed by the same Drew Ensign in their response to the order to show clause. Before I get there, let me just read you from the critical four pages of the hearing before our next sponsor, laundry Sauce. I thought, well, I don't really have.
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- [15:06]
Michael Popak
You where you heard about them.
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Laundry Sauce
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- [15:12]
Michael Popak
Good with laundry sauce and you'll see how the injunction was ruled, what the parameters of it are. And as thinking human beings, you'll understand it the way that and you won't have to wait for a minute order to show up on the docket an hour or two later. Okay, so here's what the judge says on page 41 of the transcript. Okay, I am prepared to rule again. If you're a lawyer or court watcher, pick up your pen and start writing. The judge is about to rule and this is the ruling again. I think these are hard questions, the judge continued close questions, particularly hard questions on the expedited timeframe that we're talking about here. But I believe that the plaintiffs have sufficiently made out and satisfied the temporary restraining order factors. I think they've certainly presented a serious question that the President's proclamation is not legal under the Alien Enemies act, or a different way of saying it is that the aea, the Alien Enemies act, does not provide a basis for the President's proclamation, given that the term invasion, predatory incursion really relate to hostile acts perpetrated by enemy nations and commensurate to war. Also, the terms nation and government do not apply to non state actors like criminal gangs. And the statute doesn't refer to. Doesn't refer in my interpretation to unauthorized presence of individuals here, including individuals who have entered illegally. And so as a result, I don't think the Alien Enemies act provides a basis for removal under this proclamation on page 42. So I find that a TRO, temporary restraining order is appropriate for, for the class members. And it would be. Here comes the TRO to prevent the removal of the class, all those that are subject to the proclamation of the invocation of the Alien enemies Act for 14 days or until further order of this court. And the class will be. Here's the class, all citizens in the non citizens in U.S. custody who are subject to the proclamation of March 15, 2025 and its implementation. Now he says, I will issue a minute order. That docket entry I talked about memorializing this so you don't have to race to write it down. But that's it. That is the order. For all the reasons that were discussed in the hearing. He was just being nice to say, well, I see you're jotting down things. Doesn't mean it's not binding at that moment. Now on page 43, the cork he goes on. So, Mr. Ensign, that's the lawyer for the Department of justice on page 43, the first point is that I that you shall inform your clients, that's the US of this immediately, and that any plane containing these folks that's going to take off or is in the air needs to be returned to the United States. But those people need to be returned to the United States. However that's accomplished, whether turning around a plane or not embarking anyone on the plane or those people covered by this on the plane, I leave it to you. But this is something that you need to make sure is complied with immediately. Why? Because the judge understands that people can die in an El Salvadorian prison and he'll have his jurisdiction potentially impaired if they're allowed to fly. Then the judge turns to a briefing schedule to kind of keep this on a fast Track. On page 44, the court turns the government again and says, again, just so we're clear, if planes have already landed and discharged their occupants. Aside from the five plaintiffs I enjoined earlier than this order, I don't have jurisdiction to require their return. So the judge is saying, look, if they're already off the plane, I can't get them back, but I don't want my order violated. Okay, Mr. Ensign, he says, the lawyer for the Department of Justice, the judge. I want to hear from you. Since you are now the party being restrained. You're now restrained. What would you like to do in terms of briefing and a hearing? And on page 45, the judge says, no. Given. Let me just say, as I said, you, the United States, are the one being restrained. So I'll give you as much time as you want because you're the one who's being disadvantaged. So it's your motive to expedite. And Ensign doesn't say, no, I don't understand. You don't enjoy me until it's in writing, which he's saying now. In his filing, he said, thank you, your honor. Could you set it Monday night? That's when I think we can. We can, we can file our brief. So the judge says on page 46. Okay, so I'm. I will issue a minute order memorializing all of this. And again it will be Mr. Ensign. It's going to be to vacate the current TRO because the other TRO is on appeal. But I do have and all of that. And Ensign says, understood, your honor.
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Laundry Sauce
Understood.
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Michael Popak
He understands. Anything else, Mr. Ensign? No, your honor. Right now, in his filing, the response to the order to show cause, he says, your oral pronouncement is invalid, citing an illogic and inapplicable case. I agree that under the case law, if a judge is unclear or just says something aloud like a declaration, that doesn't have all the hallmarks of being an injunction, doesn't say, you are enjoined for the following reasons, and this is the scope of the injunction.
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Laundry Sauce
Then.
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Michael Popak
Then you might have an argument that the. There was no injunction at 6:30 or 6:20. It didn't happen until 7:30 with the minute order. But if you're in the courtroom and you're there for an hour long hearing and the judge is going over all the factors and then gives you. You are now I'm ready to rule. This is my injunction. You've been enjoined. You better write it down. You might want to go back and clarify if you see something in the transcript that's unclear, but you can't rely on the minute order they keep. So in their Paper. They say, well, the minute order is invalid, too, because it doesn't comply with the federal rules of civil procedure because it doesn't set out the grounds for it. Sure it does. The hearing and the judge's ruling sets the grounds, the contours and parameters of the injunction. What you are restrained for the temporary purposes of this proceeding is made clear by the judge. And then he demarcates exactly what his ruling is by saying, I am now ready to rule. He then asked if everybody understands.
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Laundry Sauce
They said, yes.
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Michael Popak
He then brought Ensign back in another hearing and asked him, did you understand my injunction to be an injunction at that time? He said, yes, your honor. Now Ensign is being forced to write a paper that says it is not an injunction. It can't. We had no violation after 7:25 when the minute order happened. But the judge doesn't care about that. The judge cares about whether at 6:30, you properly enforced his order and his injunction. Now, this is not much to do about nothing. This is much ado about a judge's inherent authority, especially under the attack that Boseberg is under. He's being attacked by name by the press secretary, being attacked by name by the. By the attorney general. Everything outside the courtroom, they're using rude language inside the courtroom. It got so bad that the Supreme Court justice, Chief Justice Roberts, had to come in and try to bail out one of his people that worked for him, Jeb Boas Burke, and say, stop attacking, Stop calling for impeachment. Stop calling for impeachment. If you got an issue, take an appeal. So they've tamped down for now on the impeachment calls. For now, but. And they've taken their appeal. You know, you know, we. You've got. The press secretary gets up on. On the stage and says things like, well, we'll continue to comply even though we don't think that people have jurisdiction. All right, yeah. Until an appellate court stops or stays a judge's action, you are to comply. That's it. And you don't want to play with that fire. So they seem to have walked back. The Trump administration, they blinked a bit and walked back their attacks on federal judges while they continued their attacks on law firms and lawyers. That's the other thing. And they play. They whipsaw America between these two extremes. So what's going to happen here? Let's get to the bottom of it. The other side is going to file their response to this. On the contempt issue, on the order to show cause, I think the judge is going to find they violated his contempt order. And there he's going to come up with an appropriate sanction. In the meantime, he's already refused to dissolve the temporary restraining order, finding it to be on solid grounds, knowing that it's on appeal. He wrote a longer 37 page brief or order. The hearing is up at the hearing is concluded. We're waiting for the ruling. You'll come back here on Midas Dutch and Legal AF for it, which I'm sure will be written by Judge Millette, which I think is going to keep Boasberg's temporary restraining order in place, allowing him to find contempt for having violated it. And then if Donald Trump doesn't like that, he can try to take an appeal to the United States Supreme Court. And then we'll have to see through Judge Roberts, Chief Justice Roberts, whether there's four votes and there probably is to take this up on appeal. In the meantime, nothing's been stayed, nothing's been blocked by the appellate courts, despite frequent requests from the Trump administration. The Trump administration even wanted Boseberg removed as a lawyer, as a judge on the case. Sorry, that didn't happen either there. No, there hasn't been a bailout by the appellate courts yet, certainly not by the Supreme Court. But we'll have to wait for that next thing which is the filing before the United States Supreme Court. I'll cover it right here on the Midas Touch Network. And I'm Legal af. I'm Michael Popak. In collaboration with the Midas Touch Network, we just launched the Legal Afghanistan YouTube channel. Help us build this pro democracy channel.
- [24:59]
Laundry Sauce
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- [25:00]
Michael Popak
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Laundry Sauce
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Michael Popak
That's @legal AFMTN.