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Her story Sometimes I wonder if Chief Judge Boasberg in D.C. when he goes to see Les Miz, thinks of himself as Javert going after Jean Valjean as he continues to try to rein in a lawless and rogue presidency in Donald Trump and Department of justice in a case involving 200 people who were made to disappear without due process to El Salvador, who are now in Venezuela. And all he's doing is try to bring the Department of Justice to heal, to provide due process rights to these people. He's tried through a criminal contempt proceeding. He got shot down by two Trump officials to Trump judges at one time. It got restarted by a full panel of the D.C. circuit. He started a process to get to the bottom of whether criminal contempt has been committed by Kristi Noem and other officials. He asked for affidavits. He got bupkis. He got nothing. He got told to pound sand with ridiculous one line affidavits. The courts, his bosses at the appellate court told him to continue to do fact finding. Then Donald Trump tried to stop it all and ran off to the appellate court again on a writ of mandamus, a very, very narrow device that you use to try to stop fact finding by a judge in progress. And now the American Civil Liberties Union has filed their brief to tell the D.C. circuit Court to back off, to deny the mandamus, to deny the arguments already raised and rejected by Judge Boasberg to stop his fact finding as to whether there's been willful contempt of his orders, criminal contempt to allow for a referral to the Department of Justice. Will it be a futile exercise because the Department of Justice has been captured by Donald Trump? Maybe. But it doesn't mean that there isn't valor and valid reasons for a federal judge to do the fact finding and report to the American people in a public record what happened. Even if it's for future generations, even if it's for a future Department of Justice that comes in in 2028 to pick up the pieces of that prosecution. Because even though they leave office, it doesn't mean they can't be found in criminal contempt in the future and the statute of limitations will not have run. This case has now bubbled back up to the D.C. circuit Court. Got two developments related to Judge Boasberg, all weave together here on the Midas Touch Network and Legal AF for you. Chief Judge Boasberg has been trying to bring the Department of Justice to justice since March and April. He presides over a case we call jgg. Those are and anonymized names of people who were disappeared without due process in the middle of the night over a court objection in order to El Salvador to be tortured at the SEACOP prison. 137 of those 250 form a class action that the judge put together. And while this case was going on, the Trump administration traded them in a prisoner exchange with a country we're allegedly at war with Venezuela in and sent them to Venezuela or more accurately, sent them away from Jeb Boasberg's jurisdiction. Then stop Jeb Boasberg nor the American Civil Liberties Union who's representing them. And a side note here as you follow this Unmitas Touch, the American Civil Liberties Union is joining Legal AF for regular commentary about their cases with a new playlist in January Only on Legal AF YouTube channel. Become a free subscriber and promote what the American Civil Liberties Union is doing. So this case sort of split into two pieces. One was after the judge held a hearing and determined that the Trump administration had violated his orders, had continued to fly planes to El Salvador over his objection, he started a criminal contempt process. Judges, federal judges in particular, have inherent authority. Just comes with their job, comes with their black robes to enforce their orders in their courtroom through contempt proceedings or progressive discipline. Starts out as a warning, maybe in order to show cause, maybe a censure, maybe, maybe a sanction, less than that. And then you get to civil contempt and then criminal Contempt. Several months ago, we reported that Jeff Boasberg started criminal contempt proceedings, finding probable cause to believe there had been criminal contempt. He was trying to figure out whether it was willful, which is one, one aspect of this very, very serious charge to make against somebody, especially in the Department of Justice, by a judge. And so he methodically was doing his fact finding. A Trump panel, a Trump dominated panel, Katz, Rao and Judge, I think Pollard, 2 to 1, stopped it in its tracks. Eventually, the temporary restraining order, un underlying the contempt order, just for added confusion, was overturned by the Supreme Court. But it doesn't mean that Judge Boasberg lost his powers to enforce the contempt. That happened before the Supreme Court overturned the order. You know, you can't say, well, I think your order is going to be overturned, Judge, so screw you, I'm flouting your orders. That's called contumacious conduct. You know, you can have it reversed, you can have sanctions returned to you and all sorts. But. But you can't not comply because you think that you're going to, you're going to win on appeal. You know how many people think they're going to win on appeal and of course don't. And the jails are filled with innocent people. Right. Okay. So that's in one track that gets revived about a month ago by the American Civil Liberties Union representing the men. They're all primarily men and getting a better decision from an en banc panel and a new three judge panel that says no for contempt proceedings. It's appropriate for judges to use their inherent authority to do fact finding and get to the bottom of it. So they allowed Boasberg to restart that process, which he did. And the Trump administration didn't run to court then. Trump administration only ran to court after Boasberg said, I want to take testimony and I want it to be of Amel Bovey, who's now a 3rd Circuit Court of Appeals judge under Trump, who was involved. He was the one that told, according to a whistleblower, told federal judges to f off to fuck off. He wanted Emil Bovey, Erez Ruveni, the whistleblower, and Kristi Noem and other people. Well, they submitted affidavits for Bove and Noem, which were nothing pound sand fu affidavits back to the judge. Didn't tell him anything. Can't figure out willfulness, this the special element of a crime with the information that was given. So he decided to hold a hearing the following week and have all these people come in, including Eros Revenue and Drew Ensign who was in big trouble, I think, with his bar license, with the Department of Justice for not telling the judge the truth or at least being willfully kept in the dark. And to avoid that hearing the court, the Trump administration ran to the D.C. court again. And now we're in litigation, hence this new brief that just got filed by the American Civil Liberties Union. And let me focus on one aspect of it because it's really interesting. It's the aspect of the Trump administration basically saying there's a few things they're saying in their argument. One, the judge can't do anything. He needs to make the referral now because the Department of Justice is not going to prosecute. Don't make a public record. We don't want that. Just refer it now so we can shoot it down. You have enough. And the ACLU says that's an odd position for the Department of Justice to take that before a judge has probable cause or willfulness established, he's going to make a referral to the Department of Justice. Sounds like a pretty heady decision to make with limited facts, don't you? But this is their decision. Just outrageous. This is their position. Then the Trump administration argued that, oh, attorney client privilege covers everything. You know, Kristi Noem made the decision, send those men to El Salvador and violate the court order without having the, without having the, you know, without respecting the court order. And ultimately, when you assert the attorney client privilege, you've waived the attorney client privilege. You can't rely on the attorney client privilege in general. If to protect decision making within an administration, there's a case on point. I'll talk to, I'll talk to you about that in a minute. Involving Bill Clinton and Ken Starr, a special counsel. And you, once you raise the defense, you have to give us the information. What were you told? How were you told? What were you, Kristi Noem, told about Jeb Boasberg's order to ground the planes? What were you told about where the flights were, where the, how they left US Airspace? Why did they continue to fly for the five hour gap? Why wasn't Boasberg told about it? These are questions that are naturally asked in a fact finding.
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Hey, everybody, Ben Meisellis here from the Midas Touch Network. I wanted to let you know about my podcast partner, Michael Popox new law firm. It's called the Popoc Firm. Michael Popo pursuing his dream of starting his own law firm. Really based on the popular demand by all the Midas mighty and legal A effers who are approaching Michael Popak with their cases and saying, can you help us? And at that time, Popak was not able to. So he went out on his own. He started the Popoc firm where he is now handling catastrophic injury cases like car accident cases, trucking cases, malpractice cases, big negligence cases, wrongful death cases. So if you or someone you know have a case like this, the consultation with Popo's firm is free. Give him a call. See if you have a case. It's the Popoc firm.com thepopoc firm.com or you can call 877-popak-af- P O P O K A F. So 1-877-p-o P O K A F give Michael Popak a call. And I'm really proud of you, Popak. Thanks for all the hard work you're putting in.
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The other argument is that you don't have attorney client privilege when there's a crime or fraud being committed, especially on the court, and that waives the privilege and you got to testify. Or as one court most famously said, the privilege takes flight when there's been right privilege is gone under certain circumstances. Takes flight, flies away when you are relying on it as a defense or you're committing a crime or a fraud. Now on page 34 of the brief they cite to the Clinton case says on page 34, when criminal misconduct is at issue, the attorney client privilege does not apply to government attorneys in the same way it does to private attorneys. The privilege for government officials is narrower because of the government attorney's duty to the public interest. That's very interesting. They want to cite to attorney client privilege like their private clients, oh, it's my private attorney. And Donald Trump's often confused because he took all of his criminal defense lawyers and put them into the public rolls and swearing to the constitution on the Department of Justice. And they get confused. They don't know whether they're private lawyers or they're Department of Justice lawyers for the public all the time. You know, Todd Blanche, he still thinks he's Donald Trump's criminal defense lawyer, but it's narrower in the circumstances. And they cite to the case of in re Grand Jury subpoena de from 1997, which is a Ken Starr special counsel going after Bill Clinton. And it stands for the proposition that governmental attorney client privilege is unavailable when, quote, allowing any part of the federal government to use its in house attorneys as a shield against the production of information relevant to a federal criminal investigation. The criminal contempt investigation by Postberg would represent a gross misuse of of public assets. See you can't use it. And then of course they say to the Mandamus motion panel, you can't reassign Judge Boasberg just because the other side doesn't like him and because they have a temporary restraining order loss. You know, they say on page 35, the government's current claim that the district court is biased and acting vindictively and retaliatory manner is baseless. They psyched to a case from 2020 involving Michael Flynn judges actions did not come close to meeting the very high standard of conduct so extreme as to display clear inability to render fair judgment. And then they also end the note, end the brief and I'm putting it up on legal AF substack for our paid members. Now's a great time. 30% off legal AF substack by the way, for annual membership. And you'll get access to things like I'm like I use to prepare my hot takes. They also remind the panel, whoever it's going to be, that it doesn't have to be a criminal referral. The judge has inherent authority once he finds criminal contempt to do a lot of things and not just send it over to a Department of justice captured by Donald Trump who obviously in the present moment is not going to do a darn thing about it. They say here a federal court has inherent authority. Even if there were any this is on page 36. Even if there were any force to the government's argument that Mandamus is worried to shut down the criminal inquiry, there's no question that the district court has inherent authority to continue its factual inquiry to determine whether sanctions short of criminal contempt are warranted, like attorney's fees being awarded, referral to a bar authority, bar regulator, look out bar licenses, adverse inferences in the related litigation or any other non criminal sanction. Now the related litigation seems to be over because there's a summary judgment that's been entered in favor of the American Civil Liberties Union requiring the Trump administration in the next several days to lay out how they're going to give the Venezuelans due process and rid of habeas corpus rights in the United States, which I will report back on. And so they go on all the different things that a president is able to do to address the open strategy of the Department of Justice and the government of stonewalling and obstructionism. And they ask for the denial of the mandamus. Lee Gelert, who is the lead counsel for the American Civil Liberties Union on these issues, is a regular on Legal af. I'm going to have him back to talk about this case. And great news to end the Hot Take with Legal AF is going to have the American Civil Liberties Union in starting in January, regularly reporting and commentating about their cases only on Legal AF YouTube channel. Now's the time to subscribe and vote YES for that kind of content. So until my next report, I'm Michael Popak. Can't get your fill of Legal af? Me neither. That's why we formed the Legal AF substack. Every time we mentioned something in a hot take, whether it's a court filing or a oral argument, come over to the substack. You'll find the court filing and the oral argument there, including a daily roundup that I do called Wait for it Morning af. What else? All the other contributors from ligalayoff are there as well. We got some new reporting, we got interviews, we got ad free versions of the podcast and hot takes where Legal AF on subscribers stack. Come over now. To free subscribe.
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