← The Lawfare Podcast
Loading summary
Transcript118 lines
- [00:01]
Benjamin Wittes
The following podcast contains advertising to access an ad free version of the Lawfare Podcast. Become a material supporter of lawfare@patreon.com lawfare that's patreon.com Lawfair also check out Lawfare's other podcast offerings, Rational Security, Chatter, Lawfare, no Bull and the Aftermath.
- [00:32]
Hesi Jo
Ever feel like you're carrying something heavy and don't know where to put it down? Or wonder what on earth you're supposed to do when you just can't seem to cope? I'm Hesi Jo, a licensed therapist with years of experience providing individual and family therapy, and I've teamed up with BetterHelp to create mind if We Talk? A podcast to demystify what therapy's really about. In each episode, you'll hear guests talk about struggles we all face, like living with grief or managing anger. Then we break it all down with a fellow mental health professional to give you actionable tips you can apply to your own life. Follow and listen to Mind if we talk on Apple Podcasts, Spotify, Amazon Music, or wherever you get your podcasts. And don't forget, your happiness matters.
- [01:12]
Roger Parloff
Tests check 1, 2. You know you need unique New York. You know you need unique New York. Does that sound all right? Ah, that's better. You can always tell something's missing when you get isolated results like AI that's only right for one of your systems. Get AI that can work across your data and applications. Learn more@IBM.com the AI built for business IBM.
- [01:46]
James Pierce
When you go back to both what English courts were doing and then early American courts were doing, there was just nothing that resembled the kinds of universal injunctive relief that we're seeing now.
- [01:58]
Benjamin Wittes
Ben it's the lawfare Podcast. I'm Benjamin Wittes, editor in chief of lawfare, here with lawfare senior editors Anna Bauer and Roger Parloff and Public Service Legal fellow James pierce. In the June 27 episode of the Trials of the Trump Administration, we discussed the Supreme Court's ruling on nationwide injunctions in the birthright citizenship case, the whistleblower complaint against Emil Bovey's actions as acting deputy attorney general, the Trump administration suit against the federal court in Maryland, and so very much more. It is Friday, June 27th. It is 4:00pM and this is Lawfare Live, and it has been one heck of a week, including one heck of a day. So I'm not going to detain you with a lot of preliminaries. We're just going to get started. Joining me from the Sconce Studio, it is the estimable Roger Parloff from the Cathedral Studio. It is James Pierce. And from the blurry room in her palatial mansion and the blurry room, actually your vision goes a little bit nuts when you're in the blurry room. It is Anna Bauer. Hey, everybody. Hey.
- [03:35]
Anna Bauer
Hi. Hi.
- [03:38]
Benjamin Wittes
Folks. We got a Supreme Court decision on, on universal injunctions. And it's a doozy. And it was not the one that a lot of people me were expecting after that oral argument. Oral argument showed a quite nuanced view on the part of a lot of justices of this. And then they split six, three in a kind of hard left right split. And you would think that they were, you know, the Fed sock and the American Constitution society duking it out in front of one or the other of their conferences. James, how many of the 119 pages have you read?
- [04:30]
James Pierce
So I have at least put eyes on all 119, but I don't think I can say that I have read every word on every page of the 119.
- [04:39]
Benjamin Wittes
All right, so walk us through. First of all, for those who think who call this the birthright citizenship case, explain what this case as presented in this Supreme Court opinion is and is not about.
- [04:58]
James Pierce
Certainly. So it is called the birthright citizenship case or cases. There are three cases consolidated before the Supreme Court by some because the origin of this litigation was following President Trump's executive order to limit citizenship to those, or at least restricting the access to citizenship to individuals, non citizens born in the country, a sort of a long standing principle of US Law that if you are born in the United states, you have U.S. citizenship. There were a series of legal challenges by different parties, some kind of groups of non citizens or advocacy organizations or states. That distinction becomes relevant a bit later. Courts handling those quickly agreed with the challengers and issued preliminary injunctions and then issued in the cases before the Supreme Court, universal injunctions. And I think it's worth pausing for just a moment to explain what a universal injunction is at least, and how that differs from a nationwide injunction. They are often used, and I think I have been guilty in the past of this, synonymously though they are not and the difference. And Justice Barrett, who wrote for the court here, spells this out, I think fairly clearly in an early footnot. A nationwide injunction is an injunction that applies to particular parties but kind of have nationwide effect. So an example could be, imagine an injunction that says government, you cannot remove this particular person, you cannot deport this person. And that doesn't just apply in the District of Maryland. That applies throughout the country, so it has nationwide effect, but it only applies to that particular person. By contrast, the issue here are universal injunctions, where a court purports to prohibit the government from enforcing laws not only as to the parties to the particular litigation, again, whether that be states, advocacy organizations or whatnot, but to any anybody else who's not a part of the litigation at all. So the government sought a stay of the universal, universal injunction aspect of this case. It was not at this point, argu, that the courts had gotten it wrong with the underlying merits. And in fact, the courts hadn't really decided underlying merits when it had put in place preliminary injunctions. And so this came up to the court, I should say somewhat mysteriously, because this did not come on the certiori docket where the court in those cases grants a question presented. The court set it for oral argument out of the emergency docket. And so there was not actually a question presented. What most people thought, and certainly what the argument reflected, is this was going to focus, this case was going to focus on the propriety of the use of universal injunctions and not on the legal merit of the Executive Order's effort to change the definition of birthright citizenship. Quick pause before we kind of dive into the opinions. If you read the majority opinion and the concurring opinions, you understand this is a case really about universal injunctions. If you read the dissenting opinions, those are, are sort of chock full with a lot of discussion of the underlying merit and the problems of not having a universal injunction, when in the dissenting dissenter's view, the. The issue is one of flagrant unconstitutionality. But we can get to that in due course.
- [08:28]
Benjamin Wittes
Okay, so it's fair to say that the majority of sex does not perceive itself as ruling on the birthright citizenship question at all.
- [08:40]
James Pierce
That's certainly how I read it. And there is language explicitly in the majority opinion itself. And there are a handful of concurrences from Justices Thomas, Alito and Kavanaugh, and none of them purport to weigh in on the constitutionality of birthright citizenship either. So I do think that that's a fair way to at least characterize, in the majority's view. I think the dissent thinks otherwise. So to kind of cut to the chase, and what the court decided, the court concluded through Justice Barrett, maybe pause for a moment. Interesting that Justice Barrett wrote, I think a lot of people imagine this might be something where the chief would weigh in. It's certainly something of quite high profile. And so Justice Barrett, a relatively Junior justice writing is interesting. She holds in essence, that courts don't have the equitable authority to impose universal injunctions. And it does read as a fairly technical analysis. There's some background that I think frames the case in a particular way, saying something like, look, the executive branch, the Solicitor General's office, has actually been consistent through administrations opposing this type of relief. We've talked here, and certainly plenty have talked that all too often in public conversation. Whether one likes or doesn't like in a universal injunction has a curious relationship to the issue at hand and likes it when you think that what is happening happening is bad and doesn't like it when you think it's enjoying something good. And so there's a little bit of that flavor in the introduction. But when it gets down to the kind of the working through of the legal analysis, it's quite technical and some might even say quite dry. The question as the majority frames it, as Justice Barrett frames it, is when Congress so Congress hasn't given courts the power to issue universal injunctions, and courts do that in their exercise of their equitable authorities. And so the question, as Justice Barrett framed it, is when, through the const. When the Constitution was ultimately ratified and when the first, when the Judiciary act of 1789 was issued and gave courts the power to act in equity, did that essentially provide was there some analogous way that courts were doing universal injunctions then?
- [11:02]
Benjamin Wittes
And just for those who do not understand the terminology here, what does it mean to say when a court acts in equity?
- [11:11]
James Pierce
Yeah, so equity is distinct from law. So law are statutes. It could even be common law decisions. But equity is essentially a sense of doing justice and doing fairness. And so it's not something that is kind of circumscribed in the narrower ways that one thinks of as law, though surely there's lots of play in the joints for any good interpreter of a text, including a legal text. But equity is doing fairness, doing justice, ensuring that parties who come in with unclean hands aren't somehow benefiting. So it is a little bit more of a squishy and in fact, the majority says here, flexible. I mean, it's readily acknowledged that it's a more flexible doctrine. And this is something that the dissent ends up pointing to. But the distinction is between law on the one hand and equity on the other side. And so and I wanted to just read the way that the majority frames the question to give a sense of the kind of technical way that it is teed up, the question is essentially, are universal injunctions sufficiently analogous to the relief issued by the High Court of Chancery in England at the time of the adoption of the Constitution and of the 1789 Judiciary Act. So not something that is, you know, when people are talking about this case in the media and publicly, there's not a lot of conversation about what the High Court of Chancery in England is doing, right? At least if there is. I haven't been part of those conversations. But a lot of the opinion then walks through. Look, when you go back to both what English courts were doing and then early American courts were doing, there was just nothing that resembled the kinds of universal injunctive relief that we're seeing now. And then the opinion sort of turns and rebuts a couple of arguments that both the, the plaintiffs and respondents in this case, as well as the dissent raise. There's something called bills of peace, which are this, you know, arguably somewhat analogous to universal injunctions. But what the majority does here is say that that kind of collective way of seeking relief is much closer to class actions and class certifications, which there is a federal mechanism for. There is a mechanism in the courts under, under the federal rules. And so that's essentially the way that they, that the majority both distinguishes bills of peace and kind of provides a way that some type of collective action could, could work moving forward. The next argument that the majority rebuts is this, which lower courts had relied on as a principle that equity allows a court to provide, quote, complete relief. It's the complete relief principle. And the majority says, yes, we agree, that's, that's a principle. But complete relief means complete as to the particular parties. It doesn't enable a court to then reach outside the parties to the litigation and bind non parties or at least prevent the government's enforcement of a law as to, as to non parties. And then the final part, the sort of final argument is that the majority confronts, is one of policy and basically says, and I think this strikes me as right not to say what's come before is wrong. But it says, look, both sides come up with policy arguments. On the one side, the challengers, the plaintiffs rather say this is so deeply unconstitutional it's crazy that this could go into effect, that there's not some mechanism and that everybody has to be coming into court. And on the other side, the government says they're forum shopping problems. A lot of essentially the kinds of concerns about universal injunctions that I think has been readily discussed. The majority just says, look, that's neither here nor there. For our purposes, we're doing A legal analysis. So that's all in service of its conclusion. Conclusion of the majority's conclusion that the government is likely to succeed on the merits, not of the birthright citizenship question, but on the question of whether courts in equity have the power to enter these injunctions. Last, last point on the majority opinion before either pausing or talking about the other writings. There's also a very brief irreparable harm argument, which is interesting because there the court essentially says to the extent universal injunctions intrude on the government's power to enforce the law, and then there's a very important addition as to non parties that's enough to establish irreparable harm. I think that addition is important because we've seen the government argue in a lot of the litigation, a lot of which is in the sort of stay or preliminary injunction posture, that the mere fact that the government can enforce the law is enough to establish irreparable harm. And there's a way to try to read this opinion as endorsing that view. But I read this as a bit narrower than that. I don't think the government necessarily will. I think that will go into court and make this, and say this supports their position. But the fact that it is as to non parties is, is a, is a different than just, hey, this injunction, you know, doesn't allow the government to enforce the law and therefore we, we the government are irreparably harmed. So that's kind of where the, the majority lands.
- [16:14]
Benjamin Wittes
Let me, let me see if I can summarize that. In very 40,000 foot high altitude. If Anna Bauer sues the government or saying, I'm challenging this policy and she wins and she gets an injunction as to enforcing that policy against her, the injunction has to be limited to her or her co plaintiffs. There could be a class that's very large that includes a lot of people, but you can't have an injunction that really goes beyond the remedy that the particular plaintiffs need and stops the policy everywhere. Is that a fair summary?
- [17:06]
James Pierce
I was with you until your very last word of everywhere. And the only reason I'm not with you on everywhere is that I think it could reach everywhere.
- [17:14]
Benjamin Wittes
Right, but not everyone.
- [17:16]
James Pierce
Yes, exactly, exactly.
- [17:18]
Benjamin Wittes
Broadly speaking, the majority's position here is, hey, a case in controversy is a case in controversy between a plaintiff or a set of plaintiffs and a defendant or a set of defendants. And unless there's some very specific authorization to do so, you can't use equity to say, we're going to make everybody in the everybody a plaintiff, even if they didn't sign up to be a plaintiff unless you've styled it as a class action.
- [17:54]
James Pierce
Yeah, I think that's right. Another little knit, because I guess as a lawyer, I like to knit. They don't actually use the case in controversy language because they say they're not actually doing this as a matter of Article 3. They're doing it as a matter of interpreting really the Judiciary act of 1789, principally. But there is language towards the end, and I think that they would probably, the majority would probably say the same logic and reasoning would apply as to a case or controversy Article 3 requirement.
- [18:18]
Unknown Speaker
All right, but wait, can I, can I just clarify? Because my understanding as to how this impacts the birthright citizen citizenship cases themselves is that the court said, you know, yeah, you've got an individual plaintiff who is suing, you know, it can only, the executive order can only be enjoined as to that individual plaintiff or their co plaintiffs has been said. But then in the cases where the states have brought these actions challenging the birthright citizenship order, there are these policy reasons about, you know, we don't, we can't have a patchwork citizenship, these patchwork citizenship rules because the way that our, the states people travel between states, you know, that kind of thing. And so it could very well be the case that now SCOTUS has said, let's go back to the district courts and see if they still think that these nationwide, this nationwide relief is appropriate. So we still could have a nationwide injunction in the birthright citizenship cases once it goes back down to the district courts. Right.
- [19:24]
James Pierce
So again, so nationwide injunction there definitely will be nationwide. As to the particular plaintiffs. But as to universal, I think you're hitting on.
- [19:35]
Unknown Speaker
Yes. So that's what I'm getting at. Right. The distinction between the two.
- [19:39]
James Pierce
Well, but so it's a little different, I think, insofar as for the states, you are right to say that the majority says, look, it's a little bit hard to figure out precisely what sort of how broad the state's harms are here because the state's not just an individual challenging, you know, hey, I'm about to lose my, my citizenship. It is we are providing all these services or we've got all these obligations that depend on whether someone is or isn't a citizen. And so the bottom line is the court doesn't offer a whole lot of guidance, but does suggest, as you're, as you're saying, Anna, that when this goes back to lower courts, lower courts have to craft a form of relief that could end up looking, at least as to those states have challenged it very much like or sort of function analogously to a universal injunction for those in that state, for individuals in states that have not brought the challenges. And I think maybe it's something like 28 or some that have. And I think this probably tends to fall out on a red state, blue state kind of, generally speaking, divide. Those folks are going to have to most likely file a whole lot of class action suits or individual suits to be sure to benefit from, from the kind of injunctive relief. And I should say the particular plaintiffs here haven't lost their coverage. This is just coverage outside, of course, of the plaintiffs to these, to this set of three cases, this set of litigation.
- [21:07]
Benjamin Wittes
All right, so we have three litigations, we have three dissenters. They are clearly not happy with this, and they are, I would say, conditioning a great deal of the public dialogue in response to it. What do they have to say?
- [21:25]
James Pierce
Yeah, so it's Justice Sotomayor writes the principal dissent, joined by Justices Kagan and Jackson, and then Justice Jackson writes the dissent just for herself. The Justice Sotomayor Dissent is 40 some odd pages. I think it's considerably longer than the majority opinion. And as I mentioned before, it really sees this case, and so does the Justice Jackson dissent, as essentially blessing what the dissent views. And frankly, courts have uniformly so held as a constitutional and sort of indisputably unconstitutional practice, namely this effort to revise or undermine birthright citizenship. It goes through the technical analysis as well. Right. And it sort of fights the battle on the same terms as the majority. It says, well, you don't quite have the history. Right. There are, in fact, cases from around the time of ancient England and early American practice that sort of resemble the kind of universal relief we see now. And they rely on the dissents or the Sotomayor dissent on the Bill of Peace, and also makes the complete relief argument. But really, I think, kind of animating, as I mentioned before, both the Sotomayor dissent and very clearly the Justice Jackson dissent is this sense that the Court is stepping back and allowing unconstitutionality to kind of roam the land while, you know, the Supreme Court could step in and stop it. And that's kind of really the flavor of the dissents that comes through.
- [23:14]
Benjamin Wittes
Sorry, I was muted. All right. So I wanna, I, I don't wanna ask who's right here, because that gets into all kinds of subjectivity and, and views of jurisprudence, but I'm trying to figure out how much really turns on this. So it seems to me, if you if it was yesterday, you file, you know, Anna Bauer versus Kristi Noem. I don't know why Anna's our plaintiff today, but she is. You know, you file Bauer v. Noem and you ask for a universal injunction. And if it's today, you file Anna Bauer as the named plaintiff in a class of people who, you know, have red hair and live in blurry rooms, and you ask for an injunction affecting all members of the class. How is life different other than that our hairs are standing up on end and we're. How is life really different in a world in which you style everything as a class action rather than style everything as an individual action, but ask for a universal injunction?
- [24:41]
James Pierce
Yeah, I think it's a great question and I think time will tell, but my initial instinct is that it's not going to end up looking that much different in the world that we now live in. We've already seen a handful of litigants bring class action suits. One in one of the three cases that was up in front of the court, that's the CASA case, I think another one in the district of New Hampshire. There may well have been others since we've started recording. And so I do think that that class action mechanism will be one that is widely used and essentially one that the, the court, the majority identifies as the sort of, the appropriate now, the appropriate way to do it. Now, there are going to be fights about whether there are appropriate classes, fights over certification and the kinds of things that come up, questions of typicality, commonality, all of that. But I don't foresee in this particular case that that's going to be particularly hard. Right. I mean, it's a pretty defined class.
- [25:40]
Benjamin Wittes
I mean, it's a pretty defined class. You're born in the United States and the government doesn't want to acknowledge your citizenship.
- [25:47]
James Pierce
Right. And I should say I didn't say this before, but as has been widely reported, the opinion makes clear that the executive order does not go immediately into effect. There's a 30 day period between the end of the today the issuance of the opinion and before it could go into effect. And during that 30 day period, there is going to be a lot of litigation. A lot of these class action, I think cases brought efforts by, in the existing cases to ensure that the injunctive relief already issued is appropriately fit to the challenges and to the point that Anna made earlier, I think for affected individuals in states that have or do also challenge the executive order, those folks are likely going to be covered. So I think the big Question will be whether there's sufficiently kind of active class actions and class certifications done in states that are not themselves challenging the executive order.
- [26:50]
Benjamin Wittes
All right, so one last question on this subject. There was an issue at oral argument, and by the way, I do encourage people to listen to the oral argument in this, because while the opinion may be fractured along ideological lines, the oral argument really was kind of the court at its best sort of thinking about this issue in a. In a kind of an elegant and, I thought, very thoughtful way, and in a. I'm a little bit disappointed, actually, after that argument to have this divide the way it has, in a kind of ideological lines sort of way. But, but there was this issue that arose in the, in the oral argument about, you know, the, the court, the. The executive branch could lose and lose and lose at different courts of appeals and then not appeal and thereby never get a ruling that binds it everywhere. And because the Solicitor General, actually, I thought quite shockingly, frankly, would not commit himself to the idea that the executive branch would honor a circuit opinion throughout the diversity of geography within the circuit. You could end up with real disuniformity in the law among. Over a long period of time. And I'm curious whether anything in the Barrett opinion ameliorates that or whether one of the consequences of this opinion is that the executive, just as long as it doesn't ask for cert in any of these cases, never gets a kind of Brown vs Board of Ed moment where it says, you know, now there is an authoritative opinion that says birthright citizenship is real.
- [29:00]
James Pierce
Yeah, there's nothing in the Barrett opinion that ameliorates it, but there is something that addresses it, which is that at some point, and I can't remember where in the opinion, the Barrett address sort of raises the specter. Oh, the government could lose everywhere. But just seek dot seekcert. And I think quotes from something in the transcript which actually I didn't remember from oral argument, something to the effect of the Solicitor General says, you know, if they lose, if the government loses, it will seek cert. And so that is essentially, it almost says it takes. I don't want to say on faith, but it credits the majority opinion, credits that representation as essentially, I think, assuming that the Supreme Court will have the final say ultimately on birthright citizenship.
- [29:48]
Benjamin Wittes
Okay, I don't mean to sound like a raging lefty, but what actually commits the government to that? I mean, there's an estoppel principle. If you make an argument that says we take the position that acts, that the court can say you you later can't take the position that not acts, but there's no estoppel position that says if you say you're going to seek cert and then you don't later seek certific, we can force you to seek cert. Why is Amy Coney Barrett confident that John Sauer is for real on that?
- [30:33]
James Pierce
That is a great question. And the dissents, maybe both of them, certainly Sotomayor, in a footnote, I believe, treats the majority as overly credulous on this point, and there is nothing that would force the government to ultimately come back to the court. Justice Kavanaugh, interestingly, in a concurrence, sort of suggest justice that says, look, the court ultimately is the Supreme Court, although all this stuff happens in the district courts, it all ultimately comes before the Supreme Court. So we are going to have to weigh in on this, though again, not clear that the government would seek cert. So I found that a very unsatisfactory part of the opinion. And it was interesting because I recall Justice Barrett in the argument being among those maybe surprising to observers who was pressing the government more and giving the sort of questioning, you know, you can't really be serious, that you wouldn't honor, you know, court of appeals decisions in the relevant circuit. And then to see here a kind of almost I don't want to call it flippant, but a quite, you know, readily just sort of seeming to credit, as I said, that the government would seek cert and so that the ultimately the Supreme Court would have the final word a little hard to square. And I don't quite know what to make of it.
- [31:49]
Unknown Speaker
All right.
- [31:50]
Benjamin Wittes
I'm just going to say this here. Everybody should be hoping for a circuit court opinion that affirms the government's absolutely outrageous position here, because without that, there actually is no guarantee that the Supreme Court will ever consider this issue. And I, I, as somebody who deeply doesn't trust the government to allow the Supreme Court to consider the merits of this question or to put it before them, I actually hope for a circuit split irrespective of the merits of the position. I don't think there's a single good argument for the idea that birthright citizenship is not available to everybody who's born in the United States. That said, I deeply, deeply hope for an opinion from some circuit, 5th Circuit that would hold that merely to create a conflict in the circuits that would force the Supreme Court to justify its credulity here. I think it's a very it's a very dangerous thing to take the administration at its word on anything, particularly something that there's no mechanism to compel it to do. All right, folks, we could talk about this for many hours and there are like 100 issues, sub issues that we could talk about. I'm going to be writing about it tomorrow, but we need to move on because Emil Bovey had his confirmation hearing the other day before the Senate Judiciary Committee. Emil Bovey, who, let's be honest, looks a little bit too much like Klaus Kinski and Nosferatu the Vampire. I spent six weeks with him, as did Anna, in court in New York. This is an immensely talented lawyer and yet he was controversial. Roger, get us started on this point. What is the latest controversy surrounding Emil Bovey's nomination to be a 3rd Circuit judge in the Senate?
- [34:26]
Anna Bauer
Well, just before the nomination hearing, which Anna will talk about, Erez Ruvaney, you may remember that name, filed a whistleblower complaint. He's the, he was at doj. He was the deputy or acting deputy director of the Office of immigration litigation at DOJ. He's a 15 year veteran. And on March 14, he was promoted to this position or learned that he would be promoted. And then about three weeks later he was placed on administrative leave and fired. And this is his whirlwind tour. And for anyone interested in the cases we talk about, primarily jgg, the original Alien Enemies act case, the DVD case, which is the other the third country removal case, and Abrego Garcia, this is essential reading. It's 27 pages. We, we I'll try to go through quickly because of all the other stuff that happened this week, but you really owe it to yourself. It's sort of like, it's sort of like the answer key if you've been following these cases because you will just be saying, oh yeah, so that's what was going on. And it doesn't and the worst actor these are allegations. Of course, we haven't heard many responses and I can give you some responses, but it actually implicates more than Emil Bovey. Although Bovey is maybe the worst actor as depicted. Drew Ensign does not come off well in this We've he's a political appointee who's been involved especially J. JGG Deputy Attorney General James McHenry, also the top lawyers at DHS, James Percival and Joseph Mazzara. So it's quite interesting. The, the, the it all begins on the day he's promoted, which is also the day that Trump signs the Alien Enemies act proclamation, though it's still secret at that Point, point. And allegedly there's this meeting and Bovey is at the meeting and he is saying that planes will be taking off that weekend. That means March 15 or 16. Quote, Bovey stressed to all in attendance that the planes needed to take off no matter what. And then there's a remark about the possibility of a court order trying to block them. And then it says Bovey stated the DOJ would need to consider telling the courts you and ignore any such court order. And allegedly everyone is stunned in the room. And, and later that evening, August Lenci and he talk and he's reassured that this isn't really going to happen. But then the next day, of course, is when everyone, in fact the, the three planes are sent to sicat in apparent intentional violation of Judge. The judge's order. Judge Boasberg's order. And, and so that he also confirms. And in fact he has a. That evening he has a text to Flinchy and he says they joke about the. They may need to tell a court you apparently. And they joke about being fired. And also they reveal that in fact, you remember on March 17, two days later, Boasberg has them back. And how suddenly Drew Ensign is not present that day. And it's another lawyer who's never been on the briefs before named Abhishek Kambli. And Ruvini says, yeah, that's because what Boasberg suspected, that Ensign didn't want to be there or Ensign to answer the questions.
- [38:49]
Benjamin Wittes
Let me just cut you off for a second and say a word about Eric Ruvaney. You know, James probably has a better sense of this than I do, but I think of Reuveni as a guy who's litigated a lot of the more aggressive positions on behalf of the government on immigration matters. I don't think of him, you know, he's being portrayed right now as a sort of Democrat radical within the. Just an embed. I think of him as a pretty hard line Justice Department career official who's willing to argue a lot of cases that are. That take pretty tough positions on immigration law. Does anybody have a sense of rouvainy that's either consonant or dissonant with that?
- [39:43]
Anna Bauer
Well, he. I'm sorry, James, do you want to.
- [39:46]
James Pierce
Just briefly. Yeah. I didn't know him personally. I exchanged a couple emails with him, but I was familiar with kind of the positions that he was taking on, typically on behalf of the Office of Immigration Litigation Oil. And I, I would say that my view is consonant with what you just described, Ben.
- [40:05]
Benjamin Wittes
Yeah, so. So as A, you know, this battle between Beauvais and Ariz Rouveni, when Ariz Rouvini comes out as a, as a whistleblower here, this is not like the deep state left, you know, that actually believes in, you know, that, that DEI should be the gospel of the government executive branch, right? This is somebody who's willing to litigate, you know, politically unpopular positions on behalf of the government. And by the way, I got no problem with that. I think the government has legitimate interests that are not politically popular. And, and you know, by the way, Augie Flenty is, you know, represented the government in a lot of Guantanamo cases that I was the only person in the United States who was willing to give the government a fair, you know, a like, like treat as, as a reasonable position that they might be taking. Sometimes the government takes positions that are not politically popular and they need people like Augie Flinty and, and, and errors revaney to make those arguments. But I just want you to understand this is not the left deep state taking on the Trump administration. This is, is the career bureaucracy of the United States that is perfectly comfortable standing up in court and having their asses handed to them on a platter because their client, that is the government of the United States led by Republican presidents who were taking positions that American, you know, American liberals find appalling. Don't, you know, they're comfortable being the person who stands up in court representing that. And so I just want you to keep that in mind as you listen to what Roger is describing.
- [42:05]
Anna Bauer
And he appends to his complaint about seven pages of mainly commendations at the doj and there's three photos of commendations that he received during the first Trump administration. And they are all for things like work, his work on the Sanctuary cities unit and things that are, you know, close to Trump's heart at that time. So that's consistent with what you're describing. One last thing before leaving jgg it he does seem to say it was Bovie that came up with, he alleges that Bovey that came up with these theories that oral orders don't count until they're written down. You can, you can violate them and that once the, you know, plane leaves the U. S airspace, the you can't reach the defendants either. Anyway, that. I'll move on to what it says about dvd. This was the main thing here was that after the March 28th TRO that Judge Murphy entered to begin to stop these third party, these third country removals without due process, he just, matter of course sends the order to the DHS and to Department of State to confirm that they have seen the preliminary injunction and try to get, get confirmation. And he can't get confirmation. And at some point he's actually instructed orally stop sending these emails seeking confirmation. And, and I think in this p. This area, James Peral and Joseph Mazara are sort of the, the, some of the people that are implicated. If what he's saying is correct, the Abrego Garcia obviously I've done no independent research and have not sought comment from them, so I don't know what their view is. ABREGO GARCIA it's interesting. He says that, that, you know, after that, that hearing where, you know, well, of course the first thing he did was he, I think we knew this is that he attempted to do what he would have always done for the, you know, for the previous 15 years when there's an administrative mistake. You try to get the guy back. And, and he was sort of astounded that nobody was helping him arrange to get the guy back, back from, from El Salvador. He couldn't quite make this out. And then people begin getting angry with him after he, they, he submits a brief and that everyone is signed off on. And you know, obviously the judge orders that he be returned. And people begin asking why didn't you argue that he was a terrorist? And, and this is, and it puzzles him because there was no real, there was this very murky evidence that he might be involved in MS.13. And what the theory is becoming and the implication is that the White House gets involved in this argument may be the source of this argument. The White House, we don't know more specifically than that. And this is the argument. And, and, and then he is told to put this argument in the appeal. And he doesn't want to put it in the appeal because it's procedurally improper. It wasn't argued to the district judge, but also because he thinks it's frivolous and wrong, which is, you know, the theory became, and we've seen this in other cases too, like Christian the in also in Maryland, the theory becomes, well, remember, Secretary Rubio declares Ms. 13 to be a terrorist organization. And so the theory is that this causes. Makes him ineligible for the withholding of removal that he had already obtained in 2019. And the theory further is that that removal vaporizes and now they can just send him to Zakat and, and, and, and, and Rouvainy is saying that can't possibly be. You need to reopen the case. You go before the immigration judge. You make your argument, you try to prove that he's an MS.13. You know, you can't. This is all wrong. And that's. Apparently he won't sign that brief and that's why he's put on administrative leave and. And then fired. It's very worth reading, the whole thing.
- [47:16]
Benjamin Wittes
It's 27 pages, I believe, and it is actually a gripping read.
- [47:23]
Anna Bauer
Yeah.
- [47:25]
Benjamin Wittes
Anna. One day after this document becomes public, the estimable Emil Bovey goes public before the Senate Judiciary Committee for his confirmation hearing to the Third Circuit Court of Appeals. Oh, before we get to that, I want to ask James a very quick question I think has a one word answer. You have a 15 year career in the Justice Department? Yeah, yeah, just about.
- [48:00]
James Pierce
I did. Yeah.
- [48:01]
Benjamin Wittes
Yeah. How many times in that 15 year career did the Deputy Attorney General or his designee order you to make an argument that you can, in a Republican or Democratic administrations on any subject, order you to make an argument that you found a procedurally barred and be frivolous?
- [48:25]
James Pierce
That never happened.
- [48:27]
Benjamin Wittes
Did anything remotely like it ever happen?
- [48:31]
James Pierce
No.
- [48:35]
Benjamin Wittes
Were you surprised to hear Erez Rouvainy say that Emil Bovey had ordered him to make an argument in a high profile case that he regarded as frivolous and procedurally barred?
- [48:55]
James Pierce
I wish I could say I was surprised. I am, I was surprised or am surprised that someone from the Justice Department would ever be directing or suggesting that an attorney from the Justice Department do that. But unfortunately, I'm not entirely surprised that Emil Bovey is alleged to have done that.
- [49:23]
Benjamin Wittes
But it's fair to say that it's radically different from anything you experienced in your own career in the Justice Department.
- [49:32]
James Pierce
Absolutely.
- [49:33]
Benjamin Wittes
All right, Anna. So one day after the allegations arise that Emil Bovey did something radically different from anything James experienced in a 15 year career at the Justice Department, including some high profile cases, the man goes before the Senate Judiciary Committee. You and I both watched that hearing. Tell me about your experience of it.
- [50:02]
James Pierce
It.
- [50:03]
Unknown Speaker
Yeah. Well, Ben, I gotta say, I. It seems to me that it doesn't seem like a good sign when a nominee for a lifetime federal judgeship has to start his opening statement by saying something to the effect of I am not a henchman, which seems to raise some questions about whether or not you might indeed be me.
- [50:29]
Benjamin Wittes
Thinks the lady doth protest too much.
- [50:33]
Unknown Speaker
But that is is exactly what Emil Bovey started his opening statement with before the Senate Judiciary Committee. He portrayed himself as someone who has been kind of wrongfully maligned by the mainstream media. He portrayed himself instead As a, you know, small town guy, a lawyer who's committed to the rule of law, who, you know, never expected himself to be on the world stage, that he was kind of thrust into when he was called up by Todd Blanche to work on the former president's legal team and then, of course, the now current president. But that is kind of how he portrayed himself. In terms of the questions, I would say that the questioning focused a lot on kind of three categories of allegations that have been made about Bovey. So one is, as we've discussed, this whistleblower letter. Another is the mass firings of FBI officials and DOJ officials who worked on the January 6th prosecutions. And then finally the Eric Adams ordeal in which. Which he was accused. And I will say it's something of a pattern because accused by, you know, career Justice Department attorneys or people who were otherwise, like Danielle Sassoon, the acting attorney General at SDNY before she resigned over the Eric Adams matter, someone who had kind of more conservative credentials, accused Bovey of conduct related to the Eric Adams matter. And the court itself kind of more or less said that everything smacked of quid pro quo. So those are the kind of three issues that seem to come up over and over again. And a lot of the questioning, especially by the Democratic senators, it seemed to me that it wasn't until we got to, I would say, Adam Schiff, maybe some of the questions by Cory Booker, that there was really effective questioning by some of the senators about these issues because everything was more general in terms of how Bobby was able to respond. He was kind of able to lawyerly, you know, provide responses that were kind of, you know, oh, this is inaccurate. There was a lot of evasive responses. And then also there was a lot of claims of, for example, privilege or deliberative process, those types of things. And certainly it seemed like Grassley, the chair, was trying to steer questioning away from issues that might touch on privilege or deliberative process. But we then get to Adam Schiff and he very directly asks questions that, you know, quoting the. From this Rouveni complaint and specifically things like, did you say anything of the sort that is related to this allegation that you said that the DOJ might need to consider the telling the courts, fuck you. And it's when shift gets very specific that all of a sudden Bovey says, I cannot recall. I do not recollect saying anything of that sort. And again, this is something that allegedly happened three months ago and is something that is, you know, saying not the.
- [54:34]
Benjamin Wittes
Sort of thing you forget right not.
- [54:37]
Unknown Speaker
The sort of thing you forget saying. If you're saying, oh, maybe we should consider saying f you to the courts if there is an injunction that' issued. And then the other interesting thing, too, was that Schiff asks very directly, did you say that these planes that were going to take off a pursuant to the forthcoming Alien. Alien Alien Enemies act proclamation, did you say that these planes needed to take off no matter what? There's a long pause, and then Bovey says, I certainly conveyed the importance of the operation.
- [55:12]
James Pierce
So.
- [55:12]
Unknown Speaker
So those were some of the more interesting parts to me because it seemed to be very convenient that he could not recall saying something as extreme as we need to consider telling the courts fu. And then, you know, did not totally deny saying, you know, these planes need to take off no matter what. But, Ben, you wrote a piece about this. What were your thoughts and what was your impression of the hearing?
- [55:42]
Benjamin Wittes
All right, so I want to start answering this with a mea culpa, which is when Bove was appointed to be acting deputy, I was actually encouraged by that and said so on Lawfare Live on the theory that Bovey is an extremely impressive lawyer. And this is not a man without talent, he's not a man without skill, he's not a man without intellect. And when you think about the usual Trump appointees, and for my sins in life, I once coined the phrase malevolence tempered by incompetence. This is not somebody who, who is incompetent. This is an extremely talented individual. And I watched him, as Anna did, for six weeks in the trial in New York. And it was a pleasure to every time he stood up instead of Todd Blanche, it was a pleasure to see the defense argue a motion. When he cross examined a witness, There was one Witness in particular, Mr. Davidson, who Emil Bovey took a little razor and shredded into small ribbons and left on the floor. He was, he is an extremely impressive lawyer. And I want to say I was snowed by that. I thought when he was named acting deputy, I thought, well, look, it is bad form for the President of the United States to be appointing his. His personal lawyers to be to run the Justice Department. I really don't like that. But Emil Vovi is a talented guy. And I got a email from somebody in the Greek chorus who had worked with him in the Southern District who said, you've got this wrong. This is a bad guy. And I want to say that was exactly right. The first thing Emil Bovey did when he got into office is he fired the James Pierces of the world and Then he went after the Eric Adams prosecution. I mean, this is a guy who's been a dramatically bad actor. This is what malevolence, untempered by incompetence, looks like. And. And so I'm chastened in my response to this by the fact that I am the target audience of the Emil Bovey snow job. And I actually fell for it. Look, he is not. You know, when you think about the classic. The classic nominations controversy, it falls into one of two categories. Either the guy is too ideological, you know, thus the sort of. Bork is the paradigmatic, highly competent, but too ideological. Right. Bork is the classic example of that, or the person is unqualified. Bovey is not either. He's not particularly ideological. I don't know him to believe in anything. In fact, ideology would be a little bit comforting here because, you know, ideology suggests that there's some. Something you believe in that might restrain you. He's also manifestly qualified, and I'm just going to be really upfront about this. The problem with Bovi is that he's utterly unconstrained by ethics. And I don't know how to say that politely, but there is nothing this guy, at least I have not run into the set of things that he will not do. He has run a reign of terror over the FBI. He has fired not just the people like James, who are, you know, worked for Jack Smith, by the way. That is not a legitimate basis to fire people in the Justice Department, but also the group of people in the U.S. attorney's office, some of whom Roger wrote about, who were, you know, young prosecutors who worked on January 6th cases. And I'm just going to be blunt about this. He lied about it in yesterday's testimony. He claimed that he had done this because they were discretionary employees and. Or they were probationary employees. And he had done it because he was afraid that the prior administration had embedded political radicals in. That's not true.
- [60:57]
Unknown Speaker
True.
- [60:57]
Benjamin Wittes
He did it as a retaliatory gesture against all the people who had worked on January 6th investigations in the US Attorney's office. And so I think when you put it all together, this is somebody who engaged in a deeply corrupt bargain in the Eric Adams matter, who fired people both at the FBI and granted at the FBI. He denies it. He says, you know, that this was an FBI personnel matter. It was clearly directed by or inspired by Emil Bovey or. And. And his broader cabal. He was. He fired people who had had the temerity to serve their country by working for Jack Smith on, by the way, a set of cases that was entirely merited and that no court has found otherwise and that he more recently and I just want to put this out front, I believe I see no, I don't know Erez Reveni. I see no reason not to believe Erez Reuveni, who has never been found to have misled a court or failed to my knowledge, to produce exculpatory evidence to the defense sense and has been a fairly hard line attorney on behalf of the government. But in an honorable way, I see no reason not to believe Erez Rouvainy in his claims currently. And so I look at this guy and I say six months ago I was relieved to hear that he would be acting deputy and then pay DAG. And that shows that 30 years of experience in watching the courts and watching the Justice Department does not guarantee you wisdom. That's my thoughts on the subject.
- [63:01]
Roger Parloff
Test, test check 1, 2. You know you need unique New York. You know you need unique New York. Does that sound all right? Ah, that's better. You can always tell something's missing when you get isolated results like AI that's only right for one of your systems. Get AI that can work across your data and applications. Learn more@IBM.com the AI built for business.
- [63:30]
Hesi Jo
IBM ever feel like you're carrying something heavy and don't know where to put it down? Or wonder what on earth you're supposed to do when you just can't seem to cope? I'm Hesi Jo, a licensed therapist with years of experience providing individual and family therapy, and I've teamed up with BetterHelp to create mind if We Talk, a podcast to demystify what therapy's really about. In each episode, you'll hear guests talk about struggles we all face, like living with grief or managing anger. Then we break it all down with a fellow mental health professional to give you actionable tips you can apply to your own life. Follow and listen to Mind if We talk on Apple podcasts, Spotify, Amazon Music, or wherever you get your podcasts. And don't forget your happiness matters.
- [64:11]
Unknown Speaker
Ready to elevate your everyday Quince has the luxe Staples Insider Swear box minus the markup. From 100% European linen styles and 14 karat gold jewelry to gorgeous leather bags and elevated home finds, Quince has it all. And by partnering directly with top artisans and ethical factories, Quince delivers premium quality at half the cost of similar brands. Discover everyday luxury without the markup at quinte. Go to quince.com styleupgrade for free shipping and 365 day returns. Quince.com styleupgrade.
- [64:51]
Benjamin Wittes
All right, let's move on. Anna, it has been a long time since we have discussed the big cheese Kenneth Cheeseborough himself. And I know his name is pronounced Chesbro, but I refuse to acknowledge that reality. He's been disbarred. Blast from the past. Tell us about the big cheese.
- [65:17]
Unknown Speaker
Yeah, it's been a while since we have talked about the cheese. So Kenneth Chesbrough, the alleged architect of the fake electors plot during the 2020 election, who also pleaded to criminal charges in the Fannie Willis Georgia case, feels like it was a million years ago now, but was actually not that long ago. But Chesbrough, of course, after pleading to one felony count in that case, he's an attorney and he was barred in approximately seven states. And so as our colleague, or I guess I should now say former colleague, Puento Jurassic previously wrote for Lawfare a lot about various bar investigations against people who were involved, some of the lawyers were involved in this 2020 election shenanigans. Chesbro was one of those people who was subject to a number of different bar disciplinary proceedings. One of them was in New York and it was specifically related to the fact that he had pleaded two charges in that Fani Willis case. And back in October, we learned that he had been suspended as a kind of preliminary measure. And then there were other further proceedings while the appellate court decide whether there's the person who's kind of the referee of the grievance matter decides what to recommend in their report. It then goes to the appellate court who then decides what to do after that. So this is the outcome of that process. The referee in New York actually recommended that he be continue to be suspended, not completely disbarred, pending the outcome of his other criminal case that is still active in Wisconsin. Because remember, Chesbrough was particularly very active when it came to those constant electors. And then he kind of came up with more of the legal plan for the other states but was less directly involved in the other states states. And instead of accepting that recommendation from the referee, the appellate court who looked at this said, no, we think we just are going to disbar him. So that's exactly what they ordered. And in that order, they kind of went through the various aggravating factors. One of them is that it seemed to the court from the record that Chesbro so while he regretted that he wasn't more clear with the Trump campaign about what his role was and the fact that he only was making these observations about the elector scheme as a kind of preliminary thing and that nothing was final. He kind of regretted that he wasn't more clear about the fact that these weren't instructions, that this wasn't a finalized kind of legal plan. He did not seem to show a lot of remorse, according to the appellate panel. And so that was one of the aggravating factors. And then also just the kind of fact that the charge that he had pleaded to in Georgia was something that went directly to, you know, disrupting the constitutional order. They made comments about that. And so then ultimately they come down on the side the of, of, you know, we're not going to accept the recommendation of just keeping him suspended pending the outcome of this Wisconsin matter. Instead, we're going to disbar him. I believe he is still has other pending bar investigation matters in some of these other states where he is barred, but in New York, he is now disbarred. And so it's again, another example of people like Jeffrey Clark, John Eastman, who, regardless of what's happened in the criminal cases in which they've been investigated or indicted, have suffered professional consequences for their conduct related to the 2020 election.
- [69:50]
Benjamin Wittes
All right, I am old enough to remember, I don't know if some of you are, that we used to be concerned about military and National Guard deployments in Los Angeles. I know it's like you gotta stretch your memory for that. But it was a thing that, you know, long, long ago in a galaxy far, far away, people thought was interesting and important. I hear we have had a new court order in regard to that mythical subject.
- [70:26]
Unknown Speaker
Yes, we have a new court order in the Newsom vs Trump case, which I believe is what you're referring to. This is the National Guard federalization of the National Guard case. And recall that previously the Ninth Circuit Court of Appeals put on pause Judge Breyer's order, in which he issued a tro, or as they construed it, kind of a preliminary injunction that would have barred Trump's federalization of the Guard in California. And so you might be wondering, as we discussed last week, what's justice? What's Judge Breyer. Excuse me, Judge Breyer. Remember, it's the brother, not the justice. What is Judge Brier?
- [71:14]
Benjamin Wittes
Know it from listening to him. They, they sound. Sound really, really similar.
- [71:21]
Unknown Speaker
It's really crazy how similar they sound. But as we discussed last week, there's this question that was lingering when it went back down to the district Court about what does Judge Breyer still have jurisdiction over? Because Even though the. His previous order was about this question of the statute, this section 12, 4 06, and whether or not Trump was authorized to federalize the National Guard under that statute, there was this remaining question that had still been kind of left unanswered by both the Ninth Circuit and Judge Breyer about the Posse Comitatus Act. That is the statute that generally prohibits the use of military troops for domestic law enforcement purposes. And California had argued that there were these potential Posse Comitatus act violations that were happening the ground in terms of, you know, how the troops were being used, but it wasn't quite ripe yet. So whenever this order comes back from the Ninth Circuit Court of Appeals, that is still a live issue. The parties briefed, but both of them actually agreed, both the government and the plaintiffs, that Judge Breyer still has, you know, some type of jurisdiction over that matter, but the government wanted, you know, just to go straight to a ruling, whereas the plaintiffs requested some expedited limited discovery on these questions of, like, how are the troops being used and is that a violation of the Posse Comitatus Act? There was also, as I mentioned last week, a question about the duration that they would be deployed. Judge Breyer said, says, you know, I'm gonna grant discovery. So according to the. As to the Posse Comitatus act issue, I should say he says, I don't think that the timing and the duration issue is quite ripe yet, because there's the 60 days that these National Guard members are supposed to be deployed is not up yet. So he doesn't grant discovery as to that, but he does say, I'm going to give you discovery on the Posse Comitatus act issue. So we have a very short discovery period that's supposed to wrap up by July 15, I believe, is when the parties are supposed to file supplemental briefing based on discovery that includes potentially depositions, you know, written interrogatories, document requests related to how exactly the government is using the military troops in California. So this litigation will continue, and we, I think, very well are going to get some more orders from Judge Breyer on this question around specifically the Posse Accommodatus Act.
- [74:23]
Benjamin Wittes
All right, James. The government has figured out a clever way of. Of dealing with court orders that it doesn't like. I'm not sure I've ever heard of this strategy before, but it's suing the courts. And I didn't. I guess I did know you could sue a court, because the Damon Keith case, the famous surveillance opinion, is styled as US V. US District Court. So I did and of course, in the mandamus context, you can. The court can be a defendant, but by and large, courts adjudicate lawsuits. They are not the subject of lawsuits. What is the Trump administration doing suing the US District Court for the District of Maryland?
- [75:12]
James Pierce
Yeah, I mean, maybe the question is, why only the District of Maryland? I mean, you know, you may as well just got to go after the whole judiciary at this point. But, yeah, this, this arose, this was a lawsuit filed earlier this week. And the backstory is that in late May, the chief judge of the District of Maryland, Judge George Russell, put in place a standing order, which is not an unusual thing for district court judges. Usually it's the chief judge who does that. And this standing order basically said, given the influx of habeas petitions in the immigration context and the fact that we're seeing some of them outside of normal operating hours, we are putting in place a rule that for any 2241 Habeas Petition in an immigration matter, there's an automatic stay that lasts until 4pm on the second business day. And during that period, the government is enjoined and restricted or restrained from from either removing the subject of the habeas petition or altering their legal status. Frankly, it reads kind of like an administration matter in terms of, like, administering the courts. Right. You've got a whole lot of things coming in. You want to make sure that it is handled in an appropriate manner against the backdrop, including from what we saw in the Supreme Court itself. And I'm sure Roger Andrew will correct me, I believe it was the AARP case where the Supreme Court itself said the government is ordered not to remove the petitioner pending further order of the court. So in some ways, it was kind of another version of that. And I think even in that litigation, there was a whole lot of fighting. Again, I know Roger will help me out if I've got this wrong about whether the judge acted in a certain amount of time, whether it was 45 minutes or 14 hours. And, and I think Judge Ho on the Fifth Circuit said, Look, you know, what do we think? We are kind of a Denny's that's open 24 hours. And so in some ways, what the District of Maryland, through the chief judge had done was put in place what struck me as a pretty reasonable mechanism to just ensure that somebody who has filed a habeas petition isn't removed in the day and a half, in a day and a half period. So that's the backdrop up on Tuesday of this week, as you mentioned, Ben, the government's Response was to sue the entire bench of the District of Maryland and basically say this is a. Another. I think they say something like another regrettable example of the overuse of, they say nationwide injunction. Which is interesting because it's, you know, going back to our earlier conversation, you know, no real problem with nationwide injunctions. But they also say this is inconsistent with, with immigration provisions that strip from. From district courts the ability to enter this type of relief. These kinds of things have to be individualized. And so in a 22 page complaint, Sues all of the judges as as mentioned and says they violated the rules on preliminary injunctions. It's all in equity, by the way. Also, to go back to our conversation about law versus equity, it violates the, the local rules and it. And it violates certain jurisdictional bars, mostly in the Immigration and Nationality Act. Alongside the complaint, the government filed a motion for all of the judges to recuse themselves, which strikes me as pretty straightforward, right? I mean, if you're all being sued, you can't adjudicate a case in which you are yourself a defendant. And so the government asked the chief judge to whom the case was actually ultimately assigned to refer it to the chief judge of the 4th Circuit, which is the circuit in which the District of Maryland is based, to then in turn assign it out. That is what the chief judge of the District of Maryland has done. So the case has been sent to Judge Albert Diaz, the chief judge of the Fourth Circuit, presumably for the case then to be picked up and handled by a district court judge. Interesting. You know, unclear to me. Does Judge Diaz just kind of pick someone? You know, I imagine that the administration probably has pretty strong views about the judge before whom they would like this case to go. But, you know, as you said, Ben, this is pretty unusual. The only case I've ever heard of is the judge Keith 1. So I'm not sure there's a lot out there as guidance in how to handle this. And honestly, I mean, my gut on this is this just strikes me as a preposterous overreaction on the government's not to mince words. So, you know, again, I don't. Whatever the court just did, the Supreme Court just did in the universal injunction context, I have a hard time thinking that the justices are going to see that a day and a half stay to ensure that people are not removed is somehow this vast overreach of judicial authority. But we'll see.
- [80:19]
Benjamin Wittes
I just want to say, if you have to go back to. And I believe the Keith case is 72 to a certain Supreme Court case that looks, that is even styled as anything like US V US District Court. You're probably not dealing with something that has present reality. Speaking of things that are a little bit out of, just out of joint with our current reality reality, let's talk about executive orders of attainder. We all know what a bill of attainder is, which is when Congress passes a law labeling you a criminal. Since we're picking on Anna today, you know, the Anna Bauer is a traitor act. Anna Bauer is a traitor. A biz bot law law. But what, Roger, is an executive order of attainder. And why was the government in court with Mr. Zaid, Mark Zaid this week?
- [81:34]
Anna Bauer
Yeah. Mark Zaid is a very important national security lawyer and he was one of about 15 named people that was hit with a executive proclamation information on March 22. And it took away the security clearances of these people. Letitia James, Alvin Bragg, Andrew Weissman, Hillary Clinton, Liz Cheney, Kamala Harris, Fiona Hill, Alexander Vindman, Joe Biden. I've left out a few, but number four on this non alphabetical list was Mark Zaid. Zaid represented a whistleblower who the, the whistleblower who led basically to the first impeachment. And so it's a very important and interesting case in a way. So it bears a lot of similarities to the law firm cases. And it's, it's, it's challenged on many grounds. First Amendment due process, process, but also executive bill of attainder. And this is at the preliminary injunction stage. There was a hearing today. He's trying to get his security clearance back. The, and actually he's saving the exec. He is going to argue bill of attainder but at this stage he's only arguing the easier point points. None of them are actually easy. And the thing is that a security clearance is usually different security clearances, the decision making if you go through a reasonable process is really non justiciable. It's not just Trump saying that. It really is. There's a Supreme Court case, egan, there's a D.C. circuit case, Lee versus Garland. And so the decision is really non reviewable. And so here, that's his difficult situation here. It was so on, you know, so vindictive. It was without any process whatsoever. Obviously from the company he keeps here, you see he's simply viewed as an enemy. And in fact Tulsi Gabbard went on, on Megyn Kelly and, and talked about how, how fun it was to deprive these people of their security clearances. And because of the nature of his practice he's this national security, this affects him more. You know, it really takes him out of business. It really affects. So the stakes are very high and yet the legal arguments are very difficult. And so eventually there will be an argument that it's a bill of attainder as well, which really only by its terms. It's in the first, it's in Article 1, Section 9, Clause 3. So it by its terms is saying Congress can't do this. There's also one in section 10 that says states can't do this. But a lot of people have argued a fortiori, if Congress can't even do it, how could the president alone, not carrying out any law whatsoever do it? And so that will be an additional argument. It was hard to read Judge ali.
- [85:13]
Roger Parloff
Test, test, check, 1, 2. You know you need unique New York. You know you need unique New York. Does that sound all right? Ah, that's better. You can always tell something's missing when you isolated results like AI that's only right for one of your systems. Get AI that can work across your data and applications. Learn more@IBM.com the AI built for business IBM.
- [85:46]
Unknown Speaker
Out here, we feel things.
- [85:48]
The sore calves that lead to epic views.
- [85:51]
The cool waterfall mist during a hot hike, and the breeze that hits storm just right at the summit. But hey, don't just listen to us.
- [85:58]
James Pierce
Experience it for yourself.
- [86:00]
Unknown Speaker
Alltrails makes it easy to discover the.
- [86:02]
James Pierce
Best of the outdoors.
- [86:03]
Unknown Speaker
With more than 450,000 trails around the world, points of interest along the trail and offline maps for always on navigation.
- [86:11]
Benjamin Wittes
Download the free app today and find.
- [86:12]
Unknown Speaker
Your next outdoor adventure. Who says luxury has to come with a steep price tag? Quince brings you hotel quality sheets and linens without the marker. From breathable bamboo bedding to spa worthy bath towels, Quint makes every corner of your home look and feel luxurious. And by partnering directly with top artisans and ethical factories, Quint delivers premium quality at half the cost of similar brands. Upgrade your home for less at quint. Go to quince.com homeupgrade for free shipping and 365 day returns. Quint.com homeupgrade.
- [86:52]
Benjamin Wittes
All right, let's turn to our last major news event of the week, which there are some minor ones, but the last major one is the Abrego Garcia case. Or cases, actually. James and Anna, you guys have been following different aspects of this. James, you have the criminal side. What's going on? What's been going on there?
- [87:22]
James Pierce
Yeah, as you say, Ben, it's been a very busy week. And in some ways the criminal and the civil immigration side have started to sort of bleed into one another. But it started on Sunday evening when the magistrate judge finally issued an order on the government's request to detain Abrego Garcia, who in the hearings has made clear he actually prefers going by Abrego. So I will call refer to him as that. That to. To detain him criminally pending trial. The magistrate judge ruled against the government and it. It actually principally held that the government had not established a basis for a detention hearing at all, which is the first step before you get to a consideration of whether there are various factors that warrant detention. The the three bases on which the government had sought a detention hearing was that the charged offenses involved minor victims, that Abrego was likely to flee or not appear or to obstruct justice. The one that turns out to be the most interesting is whether the charged offenses involve a minor victim. As folks may remember, he is charged with a conspiracy and substantive count of human smuggling, which in and of itself has no element that involves a minor victim. The government had argued that nonetheless, the facts or the allegations in the indictment showed that Abrego's conduct involved a minor victim. The long sort of opinion from the match to judge, as I said, rejected those arguments and then had sort of an alternative argument. But even if the government were entitled to a detention hearing, I find that the evidence is not sufficient to detain him. And so that meant that Abrego would be free, but on conditions, although bracket for a moment what free means, given that both the government and the the magistrate judge had sort of understood that free really meant in immigration detention. The government quickly sought a stay without a lot of reasoning, basically just sort of put on file. We'd like a stay, then followed up with some briefing that the stay and an appeal in the context of detention goes to a district court judge, doesn't go to a court of appeals. That went to district Court Judge Waverly Crenshaw, an Obama appointee in the middle district of Tennessee, where all of this litigation is happening. Judge Crenshaw denied that stay, saying that the government had not met the factors that we've all become so familiar with, likelihood of success, irreparable harm, et cetera, but did think that there was a kind of a colorable question on whether the offenses involved a minor victim, and said the government had raised questions about whether the district court had treated the evidence in kind of the right way. The rules of evidence don't apply to detention hearings as they do to trials. But nonetheless, the way that the magistrate judge weighed the evidence, kind of raised some questions for the district court judge and then kind of the legal question of what does involve a minor victim actually mean? Does that mean require, as Abrego had argued, or does that could that be more broadly construed as a case in which the allegations show that the defendants contradict conduct involved or implicated a minor victim? So that is set on a one track for briefing to happen in July. Meanwhile, the magistrate judge had set a hearing on Wednesday to talk about potential conditions of release. That I think pretty quickly and Anna can certainly correct me if I've got it wrong, sort of, I don't want to say devolved into, but resulted in a lot of conversations about the nature of the coordination between DOJ and dha. Yes. Including or sort of ending with the magistrate judge saying, look, I want some additional briefing on this. That briefing continued until today. And as that briefing happened, there was also then Abrego filing a separate emergency motion, given some statements from the government which Anna can say more about in the civil immigration matter in front of Judge Sinis, suggesting that that if Abrego remains in immigration detention, there is a non trivial, if not likely chance that he would be removed to a third country. And so as I understand it, Abrego is essentially asking to remain in the U.S. marshal's custody in the middle district of Tennessee so as to avoid the possibility, if not likelihood, that he would be removed from the country if he is is remanded to immigration custody. By the way, I will just say I predicted this or suggested this very thing when I wrote my piece a couple of weeks ago. So I feel vindicated by that. But more importantly, he's in a very tough spot.
- [92:07]
Benjamin Wittes
I will also just say while we're preemptively claiming credit for predicting things that if Abrego Garcia or Abrego is in fact deported instead of brought to trial, I will claim that as vindication for one of the five cases that, that I said would not result in conviction because if having indicted somebody, you deport him rather than bringing him to trial, it reflects a lack of confidence in your case. Anna, what do you think of the on the civil side, what's been going on?
- [92:43]
Unknown Speaker
Yeah, so let, let me bring you up to speed there. As James mentioned, all this is going on where this release order from the magistrate judges forthcoming. There's a question about what's going to happen once he goes presumably from criminal custody to ICE immigration custody, because there's all these statements that DOJ has been making in its filings I should say where it all. It kind of, you know, implies like he's gonna, you know, be removed if he goes to ICE custody. They even say at one point that the government would be harmed if he is released from criminal custody because of the threat threat that DHS would then deport him once he is out of criminal custody. So it seems like, you know, there's this real possibility that he'll be removed before the criminal trial. That is exactly why the plaintiffs or Abregos, civil attorneys in Maryland, in the case before Judge Sinis, then go to Judge Sinis, file an emergency motion in which they say, you know, we want him taken once he's released, we want him back in Maryland, and we want an order, you know, saying you can't remove him from the United States. The idea being that it would frustrate the court's jurisdiction. And so they cite the All Writs act, which we've talked about before, that allows courts to basically kind of take some sort of measures or grant some sort of relief if their jurisdiction is kind of, you know, at risk of being frustrated. And, and so they, they ask for this as an emergency hearing. We, Judge Sinis has this hearing hearing. She basically says, you know, I am not going to be able to do this today. I'm not going to be able to do it within the next 24 hours, which is when they estimated that the release order would issue. She's like, I have all these jurisdictional questions that are pending before me even now, even aside from this emergency motion and question of, you know, the All Ritz act and all that. And I need to set a schedule so that we can brief this and then we can have a hearing on it it. But I'm not going to be able to do anything for you guys today. And so that basically is where that ends up, is she sets a briefing schedule in which basically there's going to be all these responses to some of the jurisdictional questions. Then on July 7, we'll have a hearing, an oral argument on those matters. Meanwhile, Abrego's, Mr. Abrego's counsel in the criminal case after this hearing, then go back to the judge in the criminal case and say, okay, we want to stay of the release order because we're concerned about these contradictory statements in which sometimes the government is saying that they're going to wait until he's brought to trial. Sometimes in their filings they're implying that he's going to be removed immediately. And the concern is that he'll be removed to a Third country, as the government. Government said in this hearing. That was before Judge Sinis just, you know, the day before, said my doj, Jonathan Squin said I. My understanding is that he would be removed to a third country, not El Salvador was not clear on the timeline, but it seemed like it could happen, you know, before the trial. So that's where we are now. Doj, in its recent filing earlier today, has agreed to stay the release order that would then be stayed, I believe, until July 16, which is the day of the judges. James, am I correct about. That's the day the judge, Judge Crenshaw, who's the district court judge, has set an evidentiary hearing to decide these matters that the government kind of appealed regarding the release order. And so we'll get a lot more answers then. But until then, it sounds like it's likely that, that this release order in the criminal case will be stayed.
- [96:49]
Benjamin Wittes
All right. If you haven't noticed, we're going to run long today. It's just that kind of week. Roger, we have a DVD update. I know it's like years and years and years ago, but there was a Supreme Court ruling in DVD and some fallout from it. Bring us up to speed on where we are in, in the deportation of men. I think they're all men to third countries, of which they are not nationals, when their own countries will not take them, particularly to South Sudan if they're in from El Salvador or Venezuela, but stuck in Djibouti.
- [97:37]
Anna Bauer
Yeah, this happened way back on Monday. And the, the, this is the, the third. Third country removal case. So the Supreme Court entered a stay and it was one paragraph majority opinion that gave no rationale, just said stay. And then there was a long 19 page, I think descent from Justice Sotomayor mayor and the, the other two Democratic appointees. And the main objection was James was talking about equity and inequity. You're supposed to come to the corporate court. This is when you're asking a stay. That's a form of equity and you're supposed to come with clean hands. And the government here had very clearly vi. Well, it, it, it appeared to have violated the order repeatedly. They, they violated Judge Murphy's order when they, after he said don't send people to third countries without a meaningful opportunity to, to have a meaningful fear, to have a reasonable fear interview. He sent them to, I mean DHS sent them to Guantanamo and then the DOD sent them to El Salvador and they said, well, it wasn't dvd. You know, we're DOD isn't a defendant it was just us. And, and then they tried to send people to Libya and Judge Murphy cut that off. And then they, and then they tried to send people to South Sudan and Murphy got there in time to stop it, but they're still in Djibouti. So it was quite a, you know, a record of unclean hands. Then there was irreparable harm. We've discussed that before. The, the, you know, what are the equities here? You've got people that are going to be deported to, on the one hand, that are going to be sent to South Sudan. And on the other hand, the government would have to wait a couple months or maybe one month until the First Circuit can hear this. Nevertheless. And then there was a little bit about the presumptive merits. Like I say, we don't know the reason for this day. The most likely reason was a jurisdiction stripping provision called 8 USC 1252 F1, which does bar class relief for certain provisions. I won't, I don't think I'll go into the details of that unless somebody wants me to, especially since it's a dissent, but presumably that's what this is about. But as soon as it was done, the defendant, the plaintiffs, went back to Judge Murphy and said, asked for an emergency order saying, well, don't send those guys from Djibouti to Sudan because the remedial order that you issued, which was, you know, partly sort of almost a contempt order to give those guys additional, the, the due process they weren't given, was never appealed and you know, only the original order, the April 17th preliminary injunction was appealed. And actually the, the dissenters had pointed that out. What, it's only in a dissent, but they had said the, the, the order protecting the people in Djibouti has not been appealed or stayed. So the judge said there's no need for an emergency injunction because the original injunction stands. And the government instantly went back to the Supreme Court with saying this was lawlessness, lawless defiance and, and asking them, you know, not only to reverse what Murphy had done, but to throw him off the case and also alternatively not allow him to issue any more injunctions without further first going to the Supreme Court and getting their pre approval, which I don't know, maybe James can tell us if he's heard of that arrangement before. But anyway, I think, unless you know more than me, I think that we are still waiting for a result, the Supreme Court to rule on that. It was, it's been completely briefed and over briefed with sir replies and so on. So I, I think that's where that one stands.
- [102:41]
Benjamin Wittes
All right, we have an opinion from the 2nd Circuit or an order from the 2nd Circuit in Melgar, Salma. Roger, what's that one about?
- [102:50]
Anna Bauer
Yeah, just very quick, quickly. This was the, He's a former Ms. 13 guy. He was, he was seeking asylum and he had lost at the Bureau. You know, he had lost in the immigration job. Judge and then appealed to the Bureau of Immigration Appeals. Lost. And your appeal at that point is to the 2nd Circuit. And the 2nd Circuit was hearing his case and the government wanted to deport him and gave him, you know, if you don't order a stay, we're going to send him back to El Salvador. And the, and the government's order to stay. And 28 minutes later they sent him back to El Salvador anyway. And they, they have called it since a confluence of administrative errors, a perfect storm of errors. And in any event, the judge, the 2nd Circuit ordered the government to facilitate his return, which will not be easy. He's in Isalco, which might be a worse prison than Sakat. And I mean, I shouldn't laugh. I mean it's really a horror. You know, they have the, the thing, the torture. You know, like you put you in ice, barrels of ice and sort of a water boarding situation. It's, it's unbelievable. So, but the, the, the government is supposed to report back each week on how it's going and how it's, how they're doing getting him back. I think there's also a warrant for him in, in, in El Salvador, so there's a basis for holding him there.
- [104:28]
Benjamin Wittes
All right, penultimate issue. We have a frog embryo indictment. James. Anna, is this, is this the end for frog embryo lady or is Ksenia Petrova going to beat the rap?
- [104:47]
James Pierce
I can just lay out the, the, the indictment what's alleged and then I'll let Anna, who knows this stuff better and predict whether she'll beat the rap. Three count indictment. First two are essentially not accurately filling out a customs form to disclose the fact that she was bringing in the clawed frog embryos. And the second, as I read it, is a false statement sort of when being asked by, by customs and border patrol. Again, not saying that she had. So one is, I take it from the way it reads, one is a misstatement or a non disclosure on a form. The second is the interview. I could have that wrong, but that's how I read how the two separate 1001 charges. Then there's a third smuggling charge. That's not so 1001 is charged all the time in federal cases. That's not unusual. The smuggling charge, 18 USC 545 carries a 20 year stat max, which is interesting. Which is for the actual overcharge. Yeah, you don't say. But. But that applies to fraudulently and knowingly importing merchandise, which is defined as good wares. Chattel of every description. I haven't done any independent legal research, but. But I'd be curious to figure out when one thinks of the term merchandise, one does not typically have clawed frog embryos, you know, in the forefront of one's mind. But Anna may well have more insightful things to offer than. Than just the laying out of the indictment that I've. That I've done.
- [106:23]
Benjamin Wittes
I just want to lay this out right here. I am on Ksenia Petrova's side. I think bringing clawed frog embryos into the United States is just fine for legitimate scientific research. I got no problem with. With it. And, you know, she should have filled out the forms. Right. And asked, do you have any clawed frog embryos? She should have said, yes, but I don't think you get 20 years there bigger law enforcement problems in the United States than the illegal or sort of in your coat enforcement of Claude Frog and importing of Claude Frog amber embryos. Anna, is my girl gonna beat the rap?
- [107:09]
Unknown Speaker
I. I mean, look, I think that there's a. This is a very triable case, is my initial impression of it, based on what we know about the probable cause hearing so far. And then also one thing I will say that I've done some preliminary research on that doesn't relate to this question. That was a big focus of the probable cause hearing around, you know, merchandise and what biological material is. Is this question of the smuggling charge, which is the one that carries a maximum of 20 years. You know, the way that it's structured is like there has to be a predicate. Like, it's like, you know, you brought merchandise in to the United States contrary to law, and then they set the law that they're alleging that she, you know, brought this. These frog embryos in. In violation of. And It's a regulation, CFR 11814 8.11. It doesn't matter. But it's the, you know, custom and boredom customs regulation that. Excuse me. Look, we've been doing this for an hour and a half, so I can't even speak anymore. But it's a. Customs basically says very broadly, all articles brought into the United States must be declared. And it, it. It's like at the probable cause hearing, as we know from some of John Hawkinson's reporting, you know, the. The witness wasn't even able to say, like, what. That even. It's so broad that it's like anything that is brought into the United States must be declared. But beyond that, I was looking at some of the circuit precedent around what counts as law under the smuggling statute. And it's in the first Circuit it's, you know, been decided that, yes, regulations can count as law under the smuggling statute as the predicate, you know, kind of law that you're violating. But what the first circuit hasn't decided is actually there's a certain circuit split over this question of, like, does the regulate? Like, are some regulations excluded as the kind of predicates to this offense? So, for example, there are some circuits, like the ninth Circuit, who have said that you can only use the regulation as the predicate in the smuggling statute if it is one that says, like, you know, there's a. There might be a criminal penalty for violating the regulation. That's not the case with this specific regulation. And in the first circuit opinion where they say, oh, yeah, regulations can be used, they specifically say, we're not deciding the question of whether some regulations might be excluded or not. And then my other impression is that usually whenever you're charging or you are trying a case around smuggling, it's not just this specific regulation that is used. Often it's like they list multiples in the indictment. And here they've just listed that very broad regulation about all articles must be declared. And so I haven't yet seen a case where that's the only regulation that they specify. Usually there's other more specific things about bringing wildlife, like prohibiting bringing wildlife and that kind of thing. So that's my initial impression that there are at least some legal issues that whenever we get to, like, a motion to dismiss kind of stage or, you know, on appeal later on, there might be some of these questions that come up. Even putting aside the questions around, you know, factual kind of things that make this case very triable.
- [111:06]
Benjamin Wittes
Yeah, I think they're just to be clear, if you didn't buy the frog embryos and you're not going to sell the frog embryos, it's pretty hard to argue that they are merchandise. You know, not everything that you carry counts as merchandise. And the word implies some. Some transaction, financial transaction, in a way that I'm just not sure they're in a position to prove with. I mean, she wasn't running a frog embryo stand at the Foreign farmers market. And she wasn't bringing them in for any commercial purpose. I don't know.
- [111:49]
Unknown Speaker
All right, sorry. Can I just say one more thing? Yeah. On the Petrova thing, one of the other reasons, because in the complaint, I believe it. When they. Before they got a grand jury to indict her, I believe that the complaint, it was just the smuggler juggling charge. Right. It didn't include the false statements. Someone correct me if I'm wrong about that. But I think one thing that also could be what they could be doing in the contrary to law kind of issue might be that there might later on be a kind of argument from the government that even if this regulation. She didn't bring it in contrary, that regulation doesn't count as the predicate that they can use. It might be contrary to law if she violated. If she made those false statements to the customs officer. And so that might be one reason why they decided to bring these false statements or charges so that they kind of have an additional theory of the prosecution.
- [112:55]
Benjamin Wittes
Here's a prediction for you about Ksenia Petrova. The only way she gets convicted, convicted of anything, is if they decide to drop this case or to plead this case down to a single 1001 violation, which would be their way of backing down. All right, last issue. Anna. I hear Judge Bates had something to say about widowed and sensitive government information.
- [113:26]
Unknown Speaker
Information, yes. Essentially. So this is the American. Oh, gosh, I'm gonna. I'm gonna mess up the name. Ben. I'm sorry. American Federation of Labor vs Department of Labor suit, which is one of the many cases around Doge access to sensitive government data and systems that were brought. Brought under the Privacy act very quickly, because we are, I believe, way over time. I will just say that Judge Bates, who previously denied a motion for a temporary restraining order in this case, Debar Doge access to some of this data, today also denied a motion for a preliminary injunction. And the basic idea being that at this time, there's not sufficient showing of, you know, risk that this data is going to be disseminated, you know, outside of the agency. And so therefore, we still don't have a preliminary injunction in that case. So. So, yeah, again, I'll wrap it up because of. We're low on time, but that's the gist of it.
- [114:50]
Benjamin Wittes
We're not just low on time. We are 20 minutes in deficit of time. It's like the big beautiful bill over here just ballooning the death. The time deficit, folks. We are way over. We're going to wrap up. We will be back next week. Hopefully it will be a little bit less packed with stuff to talk about and we'll be able to get to your questions. My apologies for not doing that. You know we're going to be back next week. We will see you then.
- [115:27]
Unknown Speaker
The Lawfare Podcast is produced in cooperation.
- [115:30]
With the Brookings Institution.
- [115:32]
You can get ad free versions of this and other Lawfare Podcasts by becoming a Law Fair material supporter at our website, lawfairmedia.org support.
- [115:41]
You'll also get access to special events.
- [115:43]
And other content available only to our supporters. Please rate and review us wherever you get your podcasts.
- [115:50]
James Pierce
Look out for our other podcasts including.
- [115:52]
Unknown Speaker
Rational Security, Allies, the Aftermath and Escalation. Our latest Lawfare Presents podcast series about.
- [115:59]
The war in Ukraine.
- [116:01]
Check out our written work@lawfairmedia.org the podcast.
- [116:05]
James Pierce
Is edited by Jen Patia and our.
- [116:07]
Unknown Speaker
Audio engineer this episode was Ian Enright of Go Rodeo. Our theme music is from Alibi Music. As always, thank you for listening.
- [116:24]
Roger Parloff
Test, test, check, 1, 2. You know you need unique New York. You know you need unique New York. Does that sound all right? Ah, that's better. You can always tell something's missing when you get isolated results like AI that's only right for one of your systems. Get AI that can work across your data and applications. Learn more@IBM.com the AI built for business IBM.