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- [00:01]
Michael Popok
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- [00:30]
Unnamed Legal Analyst
I've been a federal litigator for 35 years. I rarely have ever seen this language used in a scathing new order against the Trump administration. Like the language used by Judge Zinnis, who's presiding over the Abrego Garcia case. Not just Judge Zinnis, Judge Sinis, who has been upheld twice by the 4th Circuit and once by the United States Supreme Court, all in unanimous decisions. Here's what she has written and then I'll give you the order about the discovery games that the Trump administration is playing about Abrego Garcia. And it ends now. To quote Judge Zinnis, she said, and I'm cherry picking from her order, that the government's actions represent a willful disregard of their discovery obligations, bad faith disregard of their discovery allegations based on specious arguments raised not in good faith and in an attempt to be evasive of their fundamental discovery obligations. And she says the stonewalling ends now, giving them until today to fix their responses to the questions and requests for documents that have been made properly by the plaintiffs. What's going on here? I'm going to tell you right now on the Midas Touch Network and Legal af. The backdrop here is that the plaintiffs counsel for Abrego Garcia have made a motion for contempt against the Trump administration. The judge pumped brakes and said, let's develop some facts and develop a record here properly under the civil rules of procedure. And, and let's see their answers. Let's do some depositions, then come back to me about your motion for contempt. But of course, the Trump administration doesn't want to play nicely in the sandbox. They don't want to, they just want to crap in the sandbox and they don't want to provide any information. Now, let me read to you from the order. I mean, the hearing that she held late yesterday for the reporters in the room was, was scathing and she has this constant battle, and it's a losing one with Drew Ensign, who's the sock puppet for the Department of Justice that keeps getting trotted out there in all of these cases, these ridiculous cases. On behalf of the administration. And he takes very, very strange positions because his client, the Department of Justice and Donald Trump make him do it. Well, we don't interpret the Supreme Court's ruling the way you do, Judge. I mean, I don't know how you read two lines of a Supreme Court ruling any differently. And she's had it with them and doesn't believe them. And just as the Supreme Court is deeply skeptical, so is Judge Zenis. And really all federal judges that are handling cases because they're taking the Trump administration is taking such outrageous, beyond the pale positions in the courtroom. It's easy for the judges to look them and say, no, there's no argument here. I want to also cover before I end this hot take on a touch on something I'll expand on. There has been a tremendous reversal in a position by Donald Trump and his administration that has not been covered before. We're going to talk about it here as well. Let's get to the order. This is the ruling that came out of yesterday's hearing. Starts with their objection. They started many of their responses, the government to the discovery responses, discovery being the process prior to trial or hearing in which the parties exchange information through depositions, question and answers under oath, written questions under oath, which are called interrogatories or requests for production of documents, which is what it sounds like. So the way the Trump administration started off all of their objections with this false premise, it's the false premise about what the Supreme Court ruling actually says and therefore we can't answer the discovery. Here's how the judge handled that on page one. Defendants object to certain discovery because they claim the requests are based on, quote, the false premise that the United States can or has been ordered to facilitate of Brego Garcia's release from custody in El Salvador. Defendants and their counsel well know that the falsehood lies not in any supposed premise, but in their continued mischaracterization of the Supreme Court's order. See what the judge did there? She said there's only one falsehood here and the falsehood is what the position of the Trump administration. That order made clear that this court properly required the government to facilitate Abrego Garcia's release from custody in El Salvador and to ensure that the case is handled as it would have been had not been had he not been improperly sent to El Salvador or what she says lawlessly, illegally sent to El Salvador. She then goes on, she says defendants objection reflects a willful and bad faith refusal to comply with discovery obligations and all of their objections on that ground are overruled. Then they try to assert privilege. Oh, we can't answer that question, Judge. State secret privilege, executive privilege, attorney client privilege. But in order to do that properly in federal court, and these lawyers know better, you have to set out the facts that support the privilege. And you have to create what's called a privilege log, which is a listing of all the documents by description and sufficient enough that you can debate it without having the other side see the document. You have to prepare a privilege log. They didn't prepare a privilege log. They didn't even provide any facts to support any of their privileges. And here's what she said about that on page two. Equally specious defendants objections on the grounds of privilege are rejected. They provide no supporting information or analysis. As defendants and their counsel know, the proponent of a privilege must demonstrate the legal and factual basis to invoke the protections that such privilege affords. Of course, they don't do that. Instead, on page three, she said defendants and counsel see, she's putting counsel, the lawyers, on notice that she could also separately discipline them. Defendants and counsel stubbornly refused to provide any basis for the privilege. She says it is a willful refusal to comply with the court's discovery orders. And she finds that an offer to now, late in the game, prepare or consult about a privilege log is too little too late. And so she has ruled. Here's what she says on that. Defendants have known at least since last week that this court requires specific legal and factual showings to support any claim of privilege. Yet they have continued to rely on boilerplate assertions. That ends now, 6:00pm Eastern Time. Today they are to turn over all the documents. No more privilege assertion. She's effectively gotten rid of those which is going to actually, she's going to give them one more chance to supplement and provide the required facts and Privilege log by 06:00 today or that's it. She she struck all of that. On page four, she says defendant's objection about the timeline for the documents is rejected. Defendant, she says arbitrarily cramped reading of the court's order is rejected. At a minimum, the discovery period contemplates the time immediately preceding Abrego Garcia's lawless seizure, lawless seizure on March 12, 2025, and his transport and confinement to seekot. She then takes on their objections about information about Abrego Garcia's removal to El Salvador, his initial placement in CE Cot, that's the prison or his continued confinement there. The objections are overruled. Information regarding Abrego Garcia's removal as well as placement and confinement. Cut to the heart of the inquiry. She wants to know what steps, if any defendants have taken or will take to facilitate his release from custody, then she doesn't believe them about that. There's only two people that are involved with the removal to El Salvador, Vibrago Garcia and his and his initial placement in seacot listing Robert Cerna and Evan Katz. She said given the context of this case, defendants have failed to respond in good faith and the refusal to do so could only be viewed as willful and intentional non compliance. Now let me take a break here for a minute. When a judge uses this language, bad faith, willful violation of the law, not in good faith, evasive of fundamental discovery obligations, she is winding up and the pitch is going to be contempt and findings of bad faith and sanctions not just against the Trump administration. Look out, Mr. Ensign, for the Department of Justice because you're, you're right in the, in the line of fire here for the judge. Now she's given them to supplement, fix or provide the document. Six o'clock today. I bet dollars to donuts they don't do it right. How about you guys leave a message here in the, in the notes, here in the comments, which means the lawyers will then come back to the court for another hearing. And I think at that point she will either find them in default the government order more discovery and or move to that contempt hearing that we talked about. I'm going to talk about it in another hot take. Coming up next about a concession after the Fourth Circuit Court of Appeals ruled in Judge Zinnis favor in Abrego Garcia's favor just last week with Judge Wilkinson. They have, it has moved the rock and has changed the approach for the Trump administration in trying to get Abrego Garcia back. I'm going to do that in another hot take to follow this one. So until my next reporting, look, you're already here on Midas Touch. Take a minute. Hit the subscribe button. We have a channel that runs parallel to Midas Touch on all things law and politics. It's called Legal af. What else? Come on over there as well. Hit that subscribe button. We're in a drive for subscribers right now. We've been doing about 60, 70,000 new subs every month. And we're trying to get to a million before our one year anniversary. And with your help, we're certainly going to do it. And that allows me, as the curator of that channel, Michael Popo, I'm allowed to and then go out and get some other great contributors. I'm talking to two amazing ones. They're going to be joining us starting next week. You're going to be blown away with who's joining Legal af, but in order to find out, you got to subscribe, which will also give you reminders for all of our videos. So until my next reporting and my next Legal AF podcast or on the channel, I'm Michael Popuck. In collaboration with the Midas Touch Network, we just launched the Legal AF YouTube channel. 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