← UnJustified
UnJustified
Blindingly Naive and Oblivious (feat. Steve Vladeck)
01:22:40
The Supreme Court has ruled that individuals being deported under the alien enemies act proclamation are afforded due process, and that the courts can ask the government to facilitate the return of wrongfully deported detainees The Department of Justice is seeking to drop the charges against the alleged MS-13 leader they held a press conference about arresting. FBI Director Kash Patel has been quietly removed as the Acting Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives after he stopped showing up to work. The Department of Justice lawyer who argued on behalf of the government in the Abrego Garcia case has been benched because he expressed frustration with his clients during a hearing. His supervisor has also been sidelined. The DC Office of Disciplinary Counsel has declined to launch a probe of Ed Martin, the interim U.S. attorney, over an alleged ethics violation he committed when he sought to dismiss the criminal case of a January 6th defendant whom he p...
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- [00:01]
Alison Gill
MSW Media.
- [00:07]
Andy McCabe
The Supreme Court has ruled that individuals being deported under the Alien Enemies Act Proclamation are afforded due process and that the courts can ask the government to facilitate the return of wrongfully deported detainees.
- [00:21]
Alison Gill
The Department of Justice is seeking to drop the charges against the alleged MS.13 leader. They held a whole press conference about arresting.
- [00:30]
Andy McCabe
FBI Director Kash Patel has been quietly removed as the acting director of the Bureau of Alcohol, Tobacco and Firearms and Explosives after he stopped showing up to facilities there.
- [00:43]
Alison Gill
The Department of Justice lawyer who argued on behalf of the government in the Abrego Garcia case has been benched because he expressed frustration with his clients during a hearing. His supervisor was also sidelined.
- [00:55]
Andy McCabe
The DC Office of Disciplinary Counsel has declined to launch a probe of Ed Martin, the interim US Attorney, over an alleged ethics violation he committed when he sought to dismiss the criminal case of a January 6th defendant whom he previously represented.
- [01:11]
Alison Gill
And President Donald Trump has signed an executive order to open investigations into Chris Krebs and Miles Taylor. This is unjustified. Hey, everybody. Welcome to Unjustified. It is Sunday, April 13th.
- [01:31]
Andy McCabe
Yes, ma'am.
- [01:31]
Alison Gill
April 13th, 2025. I'm Alison Gill.
- [01:35]
Andy McCabe
And I'm Andy McCabe. Oh, my gosh, we got a lot to go over today. The pipeline is once again chock full of stories.
- [01:42]
Alison Gill
Yeah, we were just going to like, kind of focus on the Abrego Garcia case, but so much more has happened in the interim. So let's kick this off, Andy, with a discussion about the disposition of the Alien Enemies Act Proclamation case. That's. That's the one about the hundreds of alleged trend Aragua gang members flown to a torture gulag and El Salvador without due process. Judge Boseberg was overseeing those cases. But we have the Supreme Court decision in that case, as well as the outcome of another case critical to informing the case about the Venezuelan deportees. And so we want to talk about that, too. That's the Abrego Garcia case.
- [02:26]
Andy McCabe
Yeah. So you'll recall that one of the government's arguments against bringing the alleged trende Aragua deportees home is that the courts aren't allowed to tell the executive what to do in matters of foreign affairs. The Supreme Court ruling in the Abrego Garcia case says otherwise.
- [02:43]
Alison Gill
Yes. And as you know by now, the Supreme Court vacated Judge Boasberg's temporary restraining orders. So the ACLU has followed the Supreme Court's ruling in that case, and they have filed, filed habeas petitions in the jurisdictions where their five original plaintiffs are being detained. That's two in New York and three in Texas. And joining us to discuss the implications is Georgetown law professor, author of the 1 1st substack, which makes me far smarter than I am. We're going to discuss some Supreme Court rulings. We're going to discuss Abrego Garcia constructive custody and why the DOJ seems to be not wanting to take on its responsibility of trying crimes here in the United States. Please welcome Steve Vladek. Hi, Steve, how are you?
- [03:27]
Steve Vladek
Hey, good to be back with you guys.
- [03:29]
Andy McCabe
Hey, Steve, good to see you again.
- [03:31]
Alison Gill
Yes, always good to see you. So let's, let's start with this Supreme Court ruling that came down earlier this week. I mean, opinion on kind of what was happening with the Alien Enemies act case. That was before Judge Boasberg, who was in the middle of contempt proceedings. He was in the middle of trying to decide a preliminary injunction. And this is where they made, I think, three wrong rulings, all in 14 paragraph glib opinion. Talk a little bit about that.
- [03:59]
Steve Vladek
Yeah, it's nice that they're writing. If only the writing was persuasive. So the short version is Judge Boasberg had issued two rulings. They were both temporary restraining orders. One had barred the removal of five named plaintiffs from the United States under the Alien Enemy Act. One had barred the same for basically the entire class of people who the Trump administration was targeting under the Alien Enemy Act. What the Supreme Court ruled last Monday was that basically both of those TROs should be vacated because these cases should have been filed as habeas petitions. So sort of old school challenges to custody and not as this, you know, facial challenge to the use of the Alien Enemy act under the Administrative Procedure Act. You know, the court went out of its way to say going forward, everybody should get due process. And that includes notice and a meaningful opportunity to be heard. But, you know, what's striking to me is the way the court did it. One, you know, raises the specter that the process folks are going to get going forward is a heck of a lot more impoverished than what Chief Judge Boasberg was contemplating. And two, does nothing for the hundred and some odd folks who are still sitting in the, you know, the mega jail in El Salvador who removed under the statute and who now have, you know, no case pending on their behalf. And so, you know, it sort of, it was portrayed by a lot of folks on the right as actually a loss for Trump. But I actually think it was a real mixed bag in a context in which I think it should have been a much bigger loss.
- [05:39]
Alison Gill
One of the, one of the main things that disturbed me that was brought up in the dissent was the idea of equitable consideration and how you need to have clean hands. And since the whole concept of whether or not the government had blatantly or baldly defied a court order, because we can figure out later whether a temporary restraining order was lawfully put in place or not. But in the meantime, you have to follow it. And before that happened, the Supreme Court came in and gave equitable consideration to someone with what I would think is unclean hands. We saw this, Andy. We saw this in the documents. Special master case. You know, you can't have equitable jurisdiction over inequitable acts. And, you know, we set up the. The kind of. The example of a drug dealer getting stiffed and then going to the police and asking for his money back. So. So talk a little bit about. Because this is something that's not getting a lot of news. The. The equitable consideration factor.
- [06:44]
Steve Vladek
Yeah, I think this is a problem not just in the specific context of Monday's ruling in the Alien Enemy act case, but in much of what we've seen the Supreme Court do on these emergency applications, which is, you know, the court is writing these short opinions that, you know, maybe we like, maybe we don't like, but that actually are just sort of. They really feel more ag. Like rationalizations than. Than legal analysis. Right. Where the court is taking, you know, things that are up for debate and just asserting that they're settled, where the court is skipping over the equities, which is supposed to be what courts are doing. And so the, The. The Alien Enemy act ruling really has a lot going on in so few pages, partly because the majority never talks about the government's bad faith. The majority never talks about the irreparable harm that the plaintiffs in JGG risk and fear and that justified the TRO in the first place, which even if the government was likely to win on the argument that these claims had to be brought through, habeas might still have militated against emergency relief. And, you know, instead the court just sort of throws out these conclusory sentences in one case that's completely inconsistent with the prior precedent in one case, citing a precedent for a proposition that that case had specifically reserved. And it just, you know, it gives the sense that the court is just trying to, you know, they. They're starting from what they think the answer ought to be, and they're trying to write backwards from that, and that's just not how they should be doing it. And I think, you know, even if in the Alien enemy case. The result was not terrible. It's still, like, dramatically underpersuasive because, as Justice Kagan pointed out, it's under theorized. And I think, you know, this is the problem that the Supreme Court runs into, guys, whenever it's deciding on these cases without care. I would have thought the justices had learned their lesson by this point to be more careful on emergency applications. But I think, at least, you know, as we sit here recording this, what we've seen in the last week has been anything but.
- [08:51]
Andy McCabe
And. And Steve, what was the driving force behind getting it to the emergency docket? Like, what's the harm to telling the government no, here's. We're going to do an accelerated briefing schedule. You're gonna, you know, you'll get your opportunity to make your arguments, but, like, where's the harm? Like, so they have to house more of these immigrants who they've picked up before they can ship them to El Salvador potentially. Like, how is that anywhere near the harm that people who've been. If, if the court comes out that they've been illegally and inappropriately sent to this hellhole, like, it's just not even close. I don't get what compelled them to handle this as an emergency app.
- [09:32]
Steve Vladek
I don't either. And it's worth, I think, Andy, trying to even reverse engineer that a half step further, which is, you know, the government basically won on the argument that these cases should be brought where these folks are being held and not in D.C. all right, let's assume that's true. Right. How is that distinction harming the government? Right. Like, how is the government harmed by having to litigate these issues in Washington, D.C. as opposed to in South Texas? I mean, that's, you know.
- [10:02]
Alison Gill
Well, you can't put in a. You can't put in a filing because we don't. It's less fair in D.C. for us Republicans. We really got to go through the 5th Circuit. I don't think you can plead that in a briefing.
- [10:11]
Steve Vladek
Well, but. But this is the irony, right? Which is the folks who are screaming and complaining about how everyone's foreign shopping and trying to, like, steer these. Like, all, you know, this is the same thing could be said about the teacher training grants ruling from the previous Friday, where, you know, all the court said was that you can't file in Massachusetts. You have to go to the Court of Federal Claims. And, Andy, what is so striking about that is, you know, it is. It would be a remarkable assertion of judicial power to say that the government is irreparably harmed Both in the abstract and to a greater degree than the plaintiffs who are challenging these policies.
- [10:46]
Andy McCabe
Right.
- [10:47]
Steve Vladek
Simply by where they have to litigate. But that's, you know, that's, that has to, I mean, that maybe that's why they didn't write out the irreparable harm section, because it couldn't write. But it goes back to the point which is like, why is the court doing this? I mean, if it thinks that what the government's doing is lawful, it could say, so if it thinks what the government's doing is unlawful, why is it, you know, nevertheless, know, playing these games with venue and with what the right forum is? I mean, you know, it really suggests that the court is trying to, like, dance around Trump in ways that just suggest to me that, like, they don't understand at a basic level just how abnormal these times are or they're not willing to accept it.
- [11:30]
Andy McCabe
Yeah. And, and at a time when the public perception of the court has got to be at an all time low, you would think that they would realize, you know what? This is when we return to normal order. This is when we should be erring on the other side of being careful and considerate and giving both sides their opportunity to brief and argue and not like rushing to judgment on something in order to, what, help the government out of a jam because they really want to send more people quicker?
- [11:58]
Alison Gill
Yeah.
- [11:58]
Steve Vladek
It's just absurd. But, but the other thing is, I mean, I, I don't even know that that's where the court is. I mean, we'll, you know, some of it depends on a decision that we haven't seen yet, but that will probably be out by the time folks are listening to this, which is what happens with this guy. But, you know, guys, if, if this ends up in a world in which the court uses these emergency applications to do nothing other than funnel these cases into different courts. I just, I just, at a basic level, don't get it. Right. Like, because, for one, they have to know that Trump will do what he has done, which is portray each of these hypertechnical, narrow procedural victories as vindication of what he's doing on the merits. Yeah, right. That we're not novices about this anymore. You know, two, they have to know that they're only forestalling the merits question, not, you know, not ducking it forever. And three, in the meantime, there are actual people who are actually suffering.
- [12:55]
Andy McCabe
That's right.
- [12:56]
Steve Vladek
And, you know, I just, it's, it's not, you know, it's not as bad as the court saying yes. What Trump is doing is legal. Um, and indeed the, the due process discussion, which was like, completely just sort of like we're just going to assert this is actually, I think, good. But, but you know, the sort of, what it portends for how much this court understands the assignment and is actually going to be the bulwark against Trump that increasingly we are going to need it to be. You know, it's not even about the law at this point, guys. Like, what about just back at backstopping the lower federal courts. Yeah, totally. Who are being attacked left and right by Trump, by members of Congress. Right. Their impeachment resolutions now against six or seven different federal district judges. And what message is the Supreme Court sending when it's granting technical emergency relief to the Trump administration and basically saying, oh, by the way, those lower court judges actually were wrong. That's, it's just, you know, it's, it, it is blindingly naive and oblivious what I think we're seeing from the court.
- [14:02]
Alison Gill
Yeah. So, so we've got now the ACLU going to, with their five original plaintiffs filing in New York, filing in Texas, getting very narrow temporary restraining orders preventing them from being deported. But let's talk about the importance of what you brought up there with the Abrego Garcia case, because we're also trying to find out whether or not this Supreme Court thinks that we can actually affect the return of somebody who's been sent, which might be why we haven't seen a followup on the 130something people that are already in Seacoat under the Alien Enemies act proclamation. And we have a lot of precedent for this. You know, I saw you on the Contrarian talking about Guantanamo cases, talking about the Saudi Arabia case, and, and that we actually do have the, the courts actually do have the power to, to have somebody returned. They can't obviously order Bukele to do it, but they can, you know, order. Christy. No, to do. To, to put down the gun, stop shooting puppies and get to, to work trying to return these people. But, you know, my main concern, and I think you raised this too, is she could just say, oh, I swear I tried everything, and we can't find it.
- [15:10]
Steve Vladek
I mean, there's a lot going on. Right. But yes, so the sort of, the top line, I think is the most important one, which is it just is not true that once someone is out of the United States, the federal courts no longer have any ability to affect them. And it would be kind of horrifying if that actually were true. The, you know, you mentioned the Guantanamo cases, those are all, of course, conclusively to the contrary. But even in context in which folks are in foreign custody, I mean, the Saudi Arabia case, a case called Abu ali from the mid 2000s, is really instructive on this. You know, federal courts have the ability to ask the federal government what their involvement is in what's happening in these foreign countries and to tell the federal government to knock it off. And so in the Abu Ali case, you know, you had Judge John Bates, who is no liberal squish, right, basically saying, hey, listen, if it's true that this guy's being held by the Saudi government only because the US Is telling him to, then I do have jurisdiction. I can order the, you know, U.S. government to stop telling the Saudis to detain him. And so then Bates ordered jurisdictional discovery, like, hey, so let's find out if it's true. And lo and behold, instead of actually participating in jurisdictional discovery, the government magically produced Abu Ali in a federal criminal indictment in a civilian court in Virginia. So, you know, it's just, there's, there's decades of case law that what the Trump administration is arguing is wrong, and you don't even need that to have the common sense that it can't be right. And so this is why the Abrego Garcia case, you know, which again, we might have a decision in before folks listen to this. I think it's such a bellwether, because if the court's gonna find some procedural contrivance here to not actually hold that what the Trump administration is doing is wrong, then I don't know what the red line is at that point. And I don't know, you know, how the court thinks it's going to be able to push back if it won't even push back when you have a guy who the government concedes. Right. Should not have been removed in the first place.
- [17:15]
Andy McCabe
Yeah. So. All right, Steve, let me hit you up on one more before we let you go. This is a kind of a pet peeve of mine. It's an issue I've been tracking pretty close because I think it's. Although it's not in front of the Supreme Court right now, I think it has, has. Will have a. Could have a major impact on how we think about due process. And it's the cases of these allegedly high level Ms. 13 dudes. So a couple of weeks ago, you had this guy, Cesar Umberto Lopez Larios, who was, I think, thought by all to be like one of the national leaders. He's Arrested months ago. He's been detained in Brooklyn for months. He's got serious charges, narco terrorism, material support to terrorism, things like that. Out of the blue, we learn all charges against him were dropped. The guy never went to trial, never got a chance to mount a defense and he was put on one of those first flights to el Salvador on March 27th. They have, they stage a ridiculous press conference here to, to pound their chest over the arrest of Henry Jose Villatoro Santos here in Virginia. And they have a press conference and never say the guy's name. And he's, he's, he's presented to the court and arraigned, I think later that day or early the next morning on a very low level charge, a gun possession charge.
- [18:29]
Alison Gill
Yeah, we got him, we're going to charge him, but now they're, yeah, dropping charges.
- [18:33]
Andy McCabe
He's supposedly one of the leaders of MS.13 on the east coast and we learned yesterday that the government has now moved to drop all charges against him, which you can only imagine means they're getting ready to put him on the next flight to El Salvador. I find this unbelievably concerning.
- [18:49]
Steve Vladek
I mean, I do too. I think it is just further symptoms of the same disease, which is when your view of your job as the government is not to actually have effective policy, but just to look like you have effective policy, you're going to do things a lot differently, right. You're going to be much more interested in your stage props and in your propaganda machine than in your success rate. You're assuming, right, that the people who are your supporters aren't actually going to follow up, aren't going to check back, aren't going to read the story on page, you know, 27 about how the case that made a 1, you know, a couple weeks ago has been dropped. And I think, you know, I think this really is what happens when you put a bunch of Fox News talking heads in charge of the federal government. Yeah, totally. And so, so I think the, the question is, and, and this is, I think, where it starts to have broader ramifications. What does this do for what we all call the presumption of regularity? Right. What does this do for the government's entitlement in all kinds of judicial proceedings to the benefit of the doubt. Right. To the notion that like it's turning, it's turning square corners, that, you know, it should, that, that representations by government lawyers should be taken at face value and.
- [20:08]
Andy McCabe
Right.
- [20:09]
Steve Vladek
You know, the answer is nothing good. And that may seem satisfactory to us in the short term, because we don't want courts believing this administration, but it's going to cripple the ability of future justice departments, you know, to do their job.
- [20:24]
Andy McCabe
Totally agree. And it's like seismic shift in how DOJ thinks about this idea of criminality and people who can be deported, who are given due process, the same due process that we all get, and if they're convicted, they must serve those sentences here before they're deported. And that is one of the ways that we prevent them from coming back here and committing crimes again.
- [20:45]
Alison Gill
It's also one of the ways we follow the Constitution, which grants due process to anybody who's taken in the United States, arrested for a crime.
- [20:53]
Steve Vladek
I mean, the question is, right, if your goal is just to do everything possible to dupe people who are capable of being duped into believing that the president is doing everything you want him to do, you're going to do a lot of things differently than if your goal is actually to have successful policy. And, you know, the, and the Alien Enemy act case, guys, is a great example. I mean, so the whole reason why the administration wants to use the Alien Enemy act is because someone persuaded the right or wrong decision maker that you could use that statute for mass suspicionless removal.
- [21:24]
Andy McCabe
Right.
- [21:25]
Steve Vladek
And you know, the one upside, the, the one super positive thing that the Supreme Court did in the Alien Enemy act case is put the kibosh on that by saying at least going forward, everyone gets individualized notice and a right to a hearing. You know, I'm interested to see, frankly, if we stop hearing about the Alien Enemy act quite so much because, you know, the Supreme Court, for better or for worse, has now basically nixed that idea, at least for the purposes it was initially, you know, utilized for. And that's. It goes back to, like, what happens when you have a government that is not asking itself, how do we achieve the best result for US Policy, but rather, how do we achieve the best result for Fox News headlines about the president? I think we're seeing that in spades for sure.
- [22:15]
Alison Gill
Wow. Well, thanks so much for joining us, everybody. We record this on Thursday, you're going to hear it on Sunday. And by the time you hear this, there may be a really educational and important write up in the 1 1/1 substack by Steve Vladic about the Abrego Garcia decision, which we, we may have by the time you hear this, we may not. So look for that and in all other worlds anyhow, you should be subscribed to one first. I, I learned pretty much everything that I know about the constitution and due process from Professor Vladek. We appreciate your time today, sir.
- [22:46]
Steve Vladek
Thank you guys for having me.
- [22:47]
Andy McCabe
Yeah, thank you so much, Steve. It's been great talking to you, as always.
- [22:50]
Alison Gill
And we'll be right back with updates on Abrego Garcia. That's the Maryland husband and father that was flown to the torture prison in El Salvador on an administrative error. And we're going to do that right after this break. Stay with us. Hey, everybody. Welcome back. So we're going to continue on the conversation that we just had with Professor Vladek, since things happen at the speed of light around here, Andy.
- [23:21]
Andy McCabe
They do.
- [23:22]
Alison Gill
We actually have several updates in the Abrego Garcia case. I mean, we have a filing, a reply, a sir reply, a circa reply and a hearing. So let's talk about that because on Thursday afternoon, right after that interview, the Supreme Court reached a unanimous kind of decision, sort of. Yeah. That the lower court was correct in that it can direct the government to facilitate the return of Abrego Garcia. So my problem with this holding, and I wrote about this@militaryroute.com is they, you know, everyone's like, unanimous, unanimous decision. They have to bring him back kind of, but not really because the three liberal justices, they didn't dissent. They agreed with what the court said with some caveats, but also said we wouldn't have even granted the application. We would have just denied it outright and kept out of this. And left the lower court ruling by Judge Zinnis in place.
- [24:25]
Andy McCabe
Yeah, I mean, I think it's also helpful to remind people that we're not even talking about the legality of, and the Trenda Aragua case. You have the, the use of the Alien Enemies act and all that stuff. This is the government's already said in court under oath this was an, a mistake. They had no lawful reason to arrest or detain, much less deport this guy. What we're fighting over here is whether or not the courts can tell the executive how to interact with and how to conduct essentially diplomacy with a foreign country. And you know, this, this Supreme Court, even when they do the minimally right thing, they always end up doing it in an unsatisfying way. And here for me that the, the peak of unsatis dissatisf is with this nonsense over facilitate and effectuate the return of this, this man who is a victim in this matter. You know, it just, they, they could be so much clearer about it. They should have just come right out and said the government has the obligation to do everything lawfully possible Everything within the scope of their authority and power under the Constitution to bring this man home as soon as humanly possible. But they don't. They abhor, like, absolutely definitive statements like that, especially ones that will provoke the ire of this administration.
- [25:56]
Alison Gill
Yeah. And they kind of made that statement, but then added some additions, some things to it that make it a lot more.
- [26:05]
Andy McCabe
Obtuse, I guess, equivocating kind of lawyerly nonsense.
- [26:10]
Alison Gill
And it reminded me, it took me right back to the immunity decision, which they should have just denied the application for, rather than came in and make a rule for the ages. But they, you know, they, they had just really sort of ambiguous language about, well, you know, they made their ruling. Their four holdings, like the, you know, first of all, the core executive responsibilities of the president are untouchable, absolutely immune. All his other official acts are presumed immune. And it's up to government to come in and tell us why they aren't. But we're not going to tell you how to tell us why they aren't, nor are we going to give you any instructions on what is or isn't. You just have to sort of wing it. And we're going to remand this back down to the district court, which was Judge Chuckin at the time, and you're going to come up with what you think are official acts, and we're not going to give you any guidance on that so that Trump can come back to us and we can take a second swing at the pinata, so to speak. And, you know, probably we never got to that point because of the election, but we could have totally upended the case at that particular juncture when it came up for the second time on a second interlocutory appeal. And they sort of did that here, too. They said, yeah, the lower court's right. You got to bring them home. You got to do whatever you can. But they say the rest of the district court's order remains in effect, but requires clarification on remand. Just like the immunity decision. The order properly requires the government to facilitate Abrego Garcia's release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador. The intended scope of the term effectuate in the district court's order, however, is unclear and may exceed the district court's authority. The district court should clarify what it means by effectuate, quote, with due regard for the deference owed to the executive branch in the conduct of foreign affairs. And I knew as soon as I read that sentence, this is going to be a problem. Donald Trump is going to see due regard for the deference owed to Donald Trump, and that's what they're going to do. And sure enough, you know, in all of these filings, in the hearing we're about to talk to, that's all they brought up. Hey, due deference. Due regard for our deference. For us. You. You're. This isn't due regard. Where's our due regard? You're not differentiating enough. Like it was just over and over and over again.
- [28:43]
Andy McCabe
Yeah, they. They leave the door wide open for the government to come back and make a complaint. Exactly. On this grounds. This grounds that they have now created in a. In a matter they probably should never have heard. So shortly after the Supreme Court ruling, the district court judge, Judge Zinnis, issued the following order. The Supreme Court's April 10, 2025 decision in Nome v. Abrego Garcia affirmed this court's order and directed that on remand, this court clarify its use of the term effectuate according to proper deference to the executive branch in its conduct of foreign affairs. To this end, the court hereby amends the order to direct. It's in all caps. Direct, that defendants take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible. Now, I don't know why the Supreme Court couldn't have used that language.
- [29:38]
Alison Gill
Right?
- [29:39]
Andy McCabe
Right.
- [29:39]
Alison Gill
Yeah. Well, they said you can't order or demand, but you can direct. So now they're dancing around the semantic.
- [29:47]
Andy McCabe
Nonsense just like they used the word facilitate in quotes and then quibbled over her use of the word effectuate. Like, come on. Okay, so anyway, the order goes on to say further, as the Supreme Court made clear, the government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps. Accordingly, the court directs defendants to file by no later than 9:30am On Friday, April 11, 2025, a supplemental declaration from an individual with personal knowledge addressing the One, the current physical location and custodial status of Abrego Garcia 2, what steps, if any, defendants have taken to facilitate Abrego Garcia's immediate return to the United States and three, what additional steps defendants will take and when to facilitate his return. To the extent defendants believe any portion of their submission must be filed under seal, they shall comply with the Court's local rules governing sealing of materials. Finally, the court will hold an in person status conference on Friday, April 11th at 2:20 25 at 1:00pm Eastern.
- [30:57]
Alison Gill
Yeah. And when I saw that to the extent you want to file something under seal, I was like, that's a preemptive strike against the, the potential of using the State secret privilege, which they wanted to use in the Alien Enemies Act Proclamation case. Remember when they declared that, oh, I can't give you the flight times that were available to the public and that we posted online because that would be revealing state secrets. And so we're going to invoke the state secret privilege. And Boasberg hadn't got to the part of his hearings yet. He canceled that April 8 hearing on the, you know, state secret privilege. And that probably would have gone down the drain too, had those, had those, you know, hearings and briefings been allowed to continue. But the Supreme Court vacated them. So Judge Dennis says you got till tomorrow at 9:30 Friday morning. The 9:30 deadline came and went. Nothing happened. But then the government filed a late response saying, pretty much exactly what I thought they would say and pretty much exactly what the Supreme Court, you know, left the gate open for them to say.
- [32:07]
Andy McCabe
That's right.
- [32:07]
Alison Gill
They said the initial deadline contained in the amended preliminary injunction, which requires defendants to provide the court with a plan for diplomatic engagement a mere 30 minutes into the business day following the Supreme Court's decision last night. Now, keep in mind that they, this order actually has been around for, I think, four days at this point, but it was stayed by Justice Roberts, the course decision last night. It, it's inconsistent with the Supreme Court's instruction that the court, quote, clarify its directive with due regard for the deference owed to the executive branch in the conduct of foreign affairs. I, I told you that sentence was going to be a problem. I wrote it up the night before, right after the Supreme Court came out with a decision, because everyone's like, yay, the Supreme Court did the right thing. And I was like, no, I don't think that they did. They, they left a sentence in there big enough to park a cyber truck in. And the Trump administration, it was almost like it was written just for Donald Trump to drive through it. It goes on to say, this is again the government's filing in response to Judge Zinnis saying, you need to give me this stuff by 9:30. Defendants propose that the court modify its order to allow the defendants until 5pm on Tuesday, April 15, 2025, to submit its supplemental declaration and to reschedule any hearing on this matter until Wednesday, April 16, 2025. So, no, we don't want to tell you this morning. No, we don't want a hearing today. We want it next week.
- [33:39]
Andy McCabe
Yeah, of course they do. So at that point, Judge Zinnis did grant an extension, but only gave them three more hours. She said. First, the defendant's act of sending Albergo Garcia to El Salvador was wholly illegal from the moment it happened. And defendants have been on notice of the same. Indeed, as the Supreme Court credits quote. The United States acknowledges that Abrego Garcia was subject to a withholding order forbidding his removal to El Salvador and that the removal to El Salvador was therefore illegal. That one hurts when the judge points out to you, the Department of Justice, that all of your actions in this case so far have been illegal.
- [34:19]
Alison Gill
Yeah. And you've known it for four days.
- [34:22]
Andy McCabe
Yeah.
- [34:22]
Alison Gill
Right.
- [34:23]
Andy McCabe
She goes on. Second, the defendant's suggestion that they need time to meaningfully review a four page order that reaffirms this basic principle blinks at reality.
- [34:33]
Alison Gill
Wow.
- [34:35]
Andy McCabe
Third, defendants misconstrue the Supreme Court's order stating that the original deadline is, quote, no longer effective as somehow suggesting that the court's amended order requiring prompt attention to this matter is, quote, inconsistent with the Supreme Court's directive. Nothing could be further from the truth. As the Supreme Court plainly stated, quote, the government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps, all against the backdrop of this court's needing to, quote, ensure that the government lives up to its obligations to follow the law. Accordingly, the court grants in part the request and will extend the filing deadline until 11:30am today. The hearing date and time will remain unchanged.
- [35:22]
Alison Gill
So 11:30 came and went and the Trump administration then filed this late, which is signed by Ensign, now the lawyer from the Boasberg case, because the first lawyer was removed. And we'll talk about that in a minute. So here's what the government says. Late again, defendants are unable to provide the information requested by the court on the impracticable deadline set by the court hours after the Supreme Court issued its order. The Supreme Court's order directs the court to clarify its directive with due regard for the deference owed to the executive branch in the conduct of foreign affairs. There's that sentence again. The court has not yet clarified what it means to facilitate or effectuate the return as it relates to this case as plaintiff is in custody in a foreign sovereign. Now, defendants request and require the opportunity to brief this issue prior to being subject to any compliance deadlines that. Okay, taking a break here. That's nonsense. Nowhere does it say that, that. And, and we'll talk about what happened in the hearing, which actually went off. I thought the DOJ wouldn't just not show up, but they did. Where the judge is like, no, I disagree with you. I didn't order a briefing. I ordered you to come prepared to answer the questions that the Supreme Court specifically said that you needed to be ready to answer.
- [36:44]
Andy McCabe
That's right.
- [36:45]
Alison Gill
The government goes on to say the defendants request. We request and require the opportunity to brief that issue prior to being subject to any compliance deadlines. So now they're dictating to the court. Needless to say, defendants were under no obligation to take action under the court's order while it was administratively stayed by the Chief justice of the United States of America. I added a couple of things there. In light of the insufficient amount of time afforded to review the Supreme Court's order following the dissolution of the administrative stay in the case, the defendants are not in a position where they can share any information requested by the court. That is the reality. And this is a lot like, remember when Judge chutkan stayed the January 6th case in the immunity hearing? And Jack Smith was like, I got a couple more filings here and there that don't have any real bearing on the timeline here. And. And friggin Trump's lawyers were like, no, you can't make us use our eyes to read things when this is paused. Do you remember?
- [37:49]
Steve Vladek
It's not fair.
- [37:50]
Alison Gill
We could. You can't. We're not supposed to do any work.
- [37:54]
Andy McCabe
It was like, we're at recess playing kickball. You can't make us do math.
- [37:58]
Alison Gill
And Jack Smith was like, whoa, whoa, whoa. All right. And Judge Chuck him was like, chill, everybody chill. All right? Government don't file anything for their eyes to have to read, and we'll just keep everything paused. But this is a very similar argument to, to the immunity decision. Now, keep in mind, after they filed that the hearing was supposed to happen in a matter of, like, an hour, right? Like at 1:00pm Eastern.
- [38:21]
Andy McCabe
Yeah. So Ensign showed up for the DOJ at the 1:00pm Hearing ordered by Judge Zinnis, and it did not go well for the government. I'm sure that's really surprising. So here's some highlights that we have thanks to Anna Bauer at Lawfare. Thank you, Anna. As always, the judge said, quote, contrary to what the government put in its briefing, there is no need for further briefing. Now, I need to know if the defendants are willing to answer three questions. Let's go one by one. First, why did the defendants not comply with my order? And Give me someone with personal knowledge about Mr. Obrego Garcia's current location and status. Ensign replied, I don't have that information.
- [39:04]
Alison Gill
Yeah, and it's like, do you not have the information about why someone with knowledge wasn't available, or do you. Talking about the information of what someone with knowledge would have. Like, all they really had to do here was send somebody from the State Department or the Department of Homeland Security to come in and say, we're working on it, Judge. We don't have it yet. I have personal knowledge, and we haven't located him yet, and we're working on it, or whatever.
- [39:28]
Andy McCabe
I take this question to be, why didn't you get someone with personal knowledge? Not, what is the status of this guy? Why did you not get someone who knows what the status is or who is working to know? And Ensign's reply, I don't have that information. So you're saying you don't know why you didn't bring someone other than you?
- [39:48]
Alison Gill
Yeah.
- [39:49]
Andy McCabe
Like who, then? Who would know the answer to that question?
- [39:52]
Alison Gill
Yeah, exactly.
- [39:53]
Andy McCabe
It's absurd. It's just like layers and layers of obfuscation and. And really intentional misrepresentations to the court, I believe. But that's my opinion.
- [40:05]
Alison Gill
And. And as we're recording this. We're recording this shortly after this hearing ended, so we don't yet have the written order, but I'm hoping that our good friend Anna Bauer writes something up with some courtroom color, because I would love to know what Judge Zinnis face looked like during just this sort, because this is so beyond for a DOJ lawyer to say, I don't have any of that information. I'm not even going to tell you why I didn't find somebody with information. It's just bizarre. The judge then said, hey, it's really basic information. I'm asking a very simple question. Where is he? And then Ensign said his clients hadn't provided any information. And the judge was like, well, that's very troubling. And then the next question, question two. And by the way, she doesn't even get to question three. She just. She gets so fed up, she's like, question two. What steps has the government taken thus far to facilitate the return? And she notes that there was a period of several days in which her order to return him was actually in effect. So what have the defendants done? And this goes kind of to the argument that the DOJ made. We don't have to do anything when there's a stay. We don't have to do anything. We don't have to think about it. And Ensign replied that the government is still working out what they can share. And the judge says that you don't know suggests you don't have a full and effective relationship with your client. I've never heard a judge say that. Just to.
- [41:44]
Andy McCabe
Yeah, that, that's kind of. I don't know. I, I appreciate her frustration, which must be like at an, at an absolutely new level for her, but I'm not sure I would have gone in that direction. But nevertheless, like, they weren't asked by the Supreme Court to report on what do you think you can share? They were said to report on what you've done.
- [42:08]
Alison Gill
Yeah, it was very specific. That was one of the specific orders that the Supreme Court gave. They left that real, you know, open door sentence about, with all due respect and deference to the, to Donald, to the king that we crowned last year. Now Ensign repeated, hey, we need till Tuesday because we're working on interpreting the Supreme Court's orders. I interpreted them in six minutes. Andy, I don't understand what they're talking about. We need more time to parse it out. We need, what they need is we need more time to find loopholes in this. Right. That's what they're doing.
- [42:47]
Andy McCabe
Yeah.
- [42:48]
Alison Gill
And that there might be some privilege. Ahahaha. Probably the state secret privilege. Right. And he kept repeating, due regard and deference. Due regard and deference. We need until Tuesday. You have to give us that due regard and deference. And we need briefing between now and then. It was ridiculous.
- [43:06]
Andy McCabe
Yeah, Yeah. I, I mean, it's just, it's, it's insane. So the judge then contemplated daily updates, to which the government replied that they won't have any meaningful information until Tuesday. And the judge says, quote, then you can tell that to the public every day in your status. UPD with that. The hearing ended with the judge asking for daily updates starting on Saturday and said a written order would be forthcoming.
- [43:33]
Alison Gill
Yeah. And I'm interested to see what is in that written order because she did briefly mention the idea of bringing in someone with knowledge. Right. And so, but she didn't really clearly order that. The only thing she really clearly ordered were the daily updates. But we'll see what the written, you know, her written order says, because judges, you know, sometimes don't, you know, they save what they're going to do for their written order. They don't give all their instructions from the bench.
- [44:04]
Andy McCabe
Yeah.
- [44:05]
Alison Gill
So we'll see what she says.
- [44:06]
Andy McCabe
But I mean, there's, I'm not suggesting that this will happen. But she would be entirely within her authority to order that Kristi Noem show up. Right. I mean, like, that's the danger of this nonsensical game that DOJ is playing here. They might end up with an order where they have to show up with a cabinet level official who's going to have to go under oath in a federal court and explain all these disasters and her focus on the clock and like, moving these things forward. Initially, when I read this, I thought, hey, you know, maybe the 9:30 in the morning deadline was a little bit unrealistic from the very beginning, which it probably is. But nevertheless, what she is communicating here is that she's intensely focused on the fact that this is an entirely innocent person who was arrested, not just with no legal basis. He was actually arrested and deported unlawfully because he had a court order from an immigration judge prohibiting the government from sending him to El Salvador because that's where he came from. And he came and proved his, his case for not just immigrant status, but asylum. She is acknowledging with her focus on the clock, this guy, he might be dead already.
- [45:23]
Alison Gill
Right.
- [45:23]
Andy McCabe
He's in a terrible place that is known to use torture and coercion is known to house. You know, everybody gets housed in these massive cells with like 40 or 50 other people packed into one room. They're all hardcore gang members, some of whom are in the same gang that tormented him. And his family is what provoked him, his family, to send him to the United States as a, as a young child, decades ago. So the he is in a very bad spot and the government's diddling around and saying, well, give us till next Tuesday and then we might know what we're talking about is just like, wholly unsatisfying, I think.
- [46:03]
Alison Gill
Yeah. And the government admitted they sent him there erroneously and illegally. So, yeah, it's just bizarre. All right, we're going to talk a little bit about why Ensign was there arguing as opposed to Arez Reveni, who was the previous lawyer in this case, and a couple of other things. But we do have to take a quick break, so everybody stick around. We'll be right back.
- [46:33]
Andy McCabe
Welcome back. All right, let's talk briefly about why Ensign was arguing on behalf of the DOJ and not Erez Ruveni, the original lawyer assigned to the Abrego Garcia case. So from Glenn Thrush at the New York Times, we have a senior Justice Department immigration lawyer was put on indefinite leave on Saturday. That would have been last Saturday after questioning the Trump administration's decision to deport A Maryland man to El Salvador. One day after representing the government in court, Deputy Attorney General Todd Blanch suspended Erez Reveni, the acting deputy director of the department's Immigration Litigation Division, for, quote, failing to follow a directive from your superiors, according to a letter sent to Mr. Reveni and obtained by the New York Times.
- [47:22]
Alison Gill
Yeah. Now, under questioning by a federal judge Friday, a week ago, Reveni conceded that the deportation of Abrego Garcia should never have taken place. Mr. Rouveni also said that he had been frustrated when the case landed on his desk. Rouveni, a respected 15 year veteran of the Immigration Division, asked the judge for 24 hours to persuade his client, the Trump administration, to actually begin the process of retrieving and repatriating Mr. Abrego Garcia. It'd be fun to have Judge Zinnis bring Rouveni in to question. Now, less than 24 hours later, Todd Blanche, Trump's former criminal defense lawyer, accused Raveni of, quote, engaging in conduct prejudicial to your client. Mr. Blanche suspended Raveni with pay, cut off access to his work email, and blocked him from performing any duties related to his job. And, you know, I will say that in addition to Mr. Rouveni, Blanche also put his immediate supervisor on leave. And according to reporting from the New York Times, Revenue's immediate supervisor's supervisor is Ensign, who is now, who is now arguing on behalf of the DOJ in the Abrego Garcia case. That's who was at the hearing today for the Department of Justice, and he was also a lawyer for the Department of Justice in the hearings in front of Judge Boasberg about, you know, the Alien Enemies Act Proclamation.
- [48:53]
Andy McCabe
And also consider this briefly. So. So in the proceedings following Raveni's removal, the government has made no effort to contradict what Raveni said. They have basically had to live with the fact that he disclosed to the court the illegality of Abrego Garcia's removal. They've not challenged it. They have said in their filings that it was a mistake or error, whatever.
- [49:22]
Alison Gill
It's not what we think.
- [49:24]
Andy McCabe
Yeah, but they're not going into court saying, no, that's not right. Our former attorney, he's been disciplined and we'll be fired. They're basically kind of accepting it now.
- [49:34]
Alison Gill
Right. I think that's because the Supreme Court accepted it, too. Right.
- [49:38]
Andy McCabe
Everyone is. It's a matter of record now. So it's not a dispute. So now go back to Blanche's comment in the letter to Raveni telling him he's on, you know, whatever he's on suspension, probably going to be fired for, quote, engaging in conduct prejudicial to your client. So I guess telling the truth to the judge is now conduct prejudicial to the Department of Justice.
- [50:03]
Alison Gill
Yeah, the truth is prejudicial to the.
- [50:06]
Andy McCabe
DA that is just mind blowing to me as someone who spent 21 years in the same department. The idea that Justice Department lawyers would go after someone so viciously and so baselessly. And you see that time and time again in these cases. They go in and make, like, for instance, Abrego Garcia. They say he's an MS.13 member. Well, we know from Judge Zinnis, the only evidence they had for that, which wasn't even evidence at all, is the guy wore a Chicago Bulls sweatshirt and hat and that some totally uncorroborated informant said that Abrego Garcia was a member of the MS.13 clique in Western New York, where Abrego Garcia has never even been. The guy's never been there. So they're willing to go to this length to do this to this person and pursue him with such vigor on the basis of nothing. It's like, as I said before it, to me, it borderlines on deliberate misrepresentation to the court.
- [51:03]
Alison Gill
Yeah. I mean, aren't we getting to the point where the Department of Justice is basically saying to its line, prosecutors and lawyers, if you don't lie on the behalf of the administration, we're going to bench you?
- [51:13]
Andy McCabe
Yeah, absolutely. That's the message that that benching Raveni sends to every other DOJ lawyer, which I think is a incredibly co. This is just a really, really negative thing for the doj, but for the country generally. So, anyway, so this leads to a larger discussion about the Department of Justice lawyers in general that are struggling to defend the government's positions. So in another piece by Thrush for the Times, we get this. The Trump administration's aggressive efforts to enact major elements of its agenda have led to a series of courtroom clashes between increasingly skeptical judges and the beleaguered lawyers responsible for defending the government's positions, which some have come to see as indefensible. The Justice Department's thinned out civil division has borne the brunt of the growing conflict. Inside the division. The strains of pushing the legal limits on topics as varied as mass deportations, spending power, and punishing law firms are taking a major toll. Government litigators, their ranks increasingly depleted, often find themselves in court with few facts to defend policies they cannot explain. According to current and former officials, and.
- [52:26]
Alison Gill
According to us on Unjustified. A couple of weeks ago, we were like, this has to be so difficult.
- [52:32]
Andy McCabe
Right, Right. So career lawyers representing the government have a long tradition of arguing for the goals of Republican or Democratic administrations, regardless of their personal views. What is different now, they say, is that they increasingly feel trapped between President Trump's partisan political appointees who insist on a maximalist approach, and judges who demand comprehensible answers to basic questions. Yeah. What an outrageous thing to demand in the pursuit of justice.
- [52:59]
Alison Gill
The truth. Right.
- [53:01]
Andy McCabe
Can you just bring me someone who knows what they're talking about?
- [53:04]
Alison Gill
Yeah. And that's kind of what Judge Zinnis was doing today. She's like, just, where is he? This isn't hard. Right?
- [53:10]
Andy McCabe
Yeah.
- [53:11]
Alison Gill
Thus far, Trump's political hires have proved more adept at firing those officials than hiring to make up for the losses, though the pace of recruiting at conservative law schools has been increasing, according to officials. Then you have all the resignations in the Eric Adams case, which we covered pretty extensively. The civil division is straining under the weight of defending dozens and dozens of lawsuits filed against Trump's rapid fire executive actions. Current and former Justice Department litigators say they have never seen anything like it. Andy.
- [53:42]
Andy McCabe
I bet they haven't. At times, the lawyers representing the Trump administration seem to have little understanding of what the White House is doing or why. During a recent hearing over an executive order seeking to bar the law firm Jenner and Block from engaging with the federal government, Judge John Bates of Federal District court in Washington, D.C. pressed a government lawyer, Richard Lawson, to explain why the White House considered the firm a national security threat. The concern, Mr. Lawson argued, was that a lawyer who left Jenner and Block years earlier, Andrew Weissman, who, full disclosure, someone we both know, he's been on this pod. I've known Andrew and worked with him closely for years. So there you go. Andrew Weissman had been a longtime deputy to Robert S. Mueller III, who as the special counsel, investigated Mr. Trump's possible ties to Russia. So pause for a minute here and understand, the judge said, why do you. What, what reason do you have to indicate that Jenner and Block is a threat to national security today? And his answer was that Andrew Weissman worked for them several years ago, huh?
- [54:53]
Alison Gill
Yep. That's his answer.
- [54:54]
Andy McCabe
Yeah. Okay. So the judge replied, quote, but he's a former employee. The judge said, you're not really going to tell me that having someone employed four years ago poses some kind of national security threat?
- [55:09]
Alison Gill
Yeah, yeah. And by the way, Judge Bates, not a liberal Marxist. We'll just Say that?
- [55:16]
Andy McCabe
Yeah.
- [55:16]
Alison Gill
After a pregnant Pause, DOJ lawyer Mr. Lawson answered, not per se, no, which prompted laughter from people in the courtroom. Questioned further by the judge, Lawson changed course, declaring that the national security interests are not critical. Now, there were other oddities to that hearing. A recent hire to the department that had previously worked for Ms. Bondi in Florida on consumer protection issues. And as he rushed from one courtroom to another for two emergency hearings concerning Trump's bid to undercut the work of law firms, he sat alone with no career lawyers by his side to assist him. To Judge Bates, who once worked in the local U.S. attorney's office as a chief of civil litigation, the entire approach was jarring. He said, quote, the Department of Justice has a lot of lawyers. Why is this all on you, Mr. Lawson? Straightening his glasses, he replied that none of his colleagues were available. Quote, I frankly was supposed to be in Florida, but here I am. That's what Mr. Lawson said. And, dude, come on.
- [56:22]
Andy McCabe
You couldn't come up. I wanted to be in Disneyland, Judge.
- [56:25]
Alison Gill
But he's running back and forth. He's like Stanley Woodward in the D.C. courthouse.
- [56:29]
Andy McCabe
Good Lord.
- [56:31]
Alison Gill
Now, judges are getting pretty angry with this. We heard the hearing today with Judge Zinnis, Judge Bates. I'm also recalling when Judge Amy Berman Jackson said in the Consumer Financial Protection Bureau case, she actually wrote in her order that the DOJ lawyers, quote, were so disingenuous that the court is left with little confidence that the defense can be trusted to tell the truth about anything. Wow. I mean, that is who. That's like. I know that people are like, you should punch him in the face and throw him in jail. But, like, this is really. That's. This is the. This is the judge equivalent of punching someone in the face and throwing them in jail.
- [57:11]
Andy McCabe
I. Yeah, well, I mean, as. As. As we discussed with Steve Vladic earlier, the impact of absolutely degrading the reputation of the Department of Justice in the courtroom to these federal judges, you can't overstate the significance of that. This is something that. If there was a complete leadership change and a complete personnel change there tomorrow, and everything turned around and people were doing their jobs way that you would hope, it would still take years and years and years and years for these federal judges to. To stop thinking about DOJ lawyers in this very different light. And the way they're thinking about them now is like, I can't trust these people. I can't take the representations at face value. They're not sending competent people, learned people, people who have information in here to provide information. To me, like, that's just very damaging.
- [58:11]
Alison Gill
And the learned, competent people can't. They're like, I don't know. They. I haven't. I honestly don't know, Judge. I mean, you and I have talked about this before. When the Mueller investigation ended, there were a couple of things going on, and, and they, like, hearings were set by the Department of Justice, and the judge called him and said, no more hearing. What's going on? And the DOJ is like, so sorry. A thousand pardons. I'm so sorry. We didn't see this coming, Judge. We had no idea. The, the census case, when that was supposedly finished. And then Trump was like, it's not done. We're still arguing. And the judge was like, wtf? And DOJ was like, we're so sorry. A thousand pardons. We don't know what's going on. We thought it was done, too. And Boseberg brought this up, actually, in, in one of his hearings, one of his many hearings in the, in the Alien Enemies Act Proclamation case, where he was, he was like, I constantly tell my clerks, your reputation is the, the biggest thing you should treasure.
- [59:08]
Andy McCabe
Of course.
- [59:09]
Alison Gill
And, and he said that sort of with a side eye to the Department of Justice and Ensign, who, who's sitting there arguing in bad faith.
- [59:18]
Andy McCabe
Yeah. Yeah. 21 years of working with many, many, many lawyers at all levels of the Justice Department, from line guys in. In U.S. attorney's offices all the way up to several attorneys general, and I have never seen anything like this before. I didn't agree with every single one of them. We had plen. Disputes about how cases should go or how aggressively they should be pursued, or whether we did have enough probable cause or we didn't. That's all normal. What I never saw was lawyers being willing, being so focused on arresting or convicting someone that they just threw out BS Information without any sense of whether or not it was even accurate. Like, lawyers typically are so focused on accuracy, despite whatever it is they're trying to accomplish in front of the judge, they never want to be inaccurate because that cuts that chops the legs out from under their arguments, their credibility and their reputation. And that's all you have in that room.
- [60:16]
Alison Gill
It's got to be painful.
- [60:18]
Andy McCabe
Yeah. This is really a departure and one I think that's worthy of people noticing.
- [60:24]
Alison Gill
Yeah, I agree.
- [60:25]
Andy McCabe
All right, next up, we got an update on, you know, my favorite. The guy who I feel like should be get a credit on this show because he's responsible for so much of our content lately. Ed Martin, the interim U.S. attorney in the District of Columbia. This update is also courtesy of Anna Bauer at Lawfare. The D.C. office of Disciplinary Counsel declined to launch a probe of Ed Martin, the interim US Attorney, over an alleged ethics violation he committed when he sought to dismiss the criminal charges of a man whom he represented as a defense attorney. Quote, we decline to open a full investigation of this matter and have closed this file, wrote Hamilton P. Fox, the head of the DC Office of Disciplinary Counsel, in a February letter addressed to the complainant and obtained by Lawfare. Fox penned the letter in response to a complaint filed by Jennifer Jensen, an insurance agent who resides in Utah. Jensen's complaint alleged that Martin violated conflict of interest rules when he signed off on a motion to dismiss the case against Jose Padilla, a convicted Capitol Riot defendant whom President Donald Trump had pardoned. Martin, who had previously worked as defense counsel on Padilla's case. Yes. The same case that he was dismissing.
- [61:43]
Alison Gill
Yeah, we talked about that. That was the Cicada, right?
- [61:46]
Andy McCabe
Exactly, exactly. So Martin was still listed as one of Padilla's attorneys when he filed the motion to dismiss on behalf of the Justice Department.
- [61:56]
Alison Gill
Department, yeah. And it goes on to say here and again, big ups to Anna Bauer for her reporting.
- [62:02]
Andy McCabe
Full on.
- [62:03]
Alison Gill
In declining to further investigate Jensen's complaint, Fox noted that Martin's actions in Padilla's case were dictated by Trump's sweeping pardons for people who participated in January 6, quote, by moving on behalf of the United States to dismiss the prosecution against the defendant, as the pardons require the United states to do, Mr. Martin was not advancing an adverse position to either the defendant or the United States. So this is the Bar association saying, were it not for the giant, sweeping pardon, I would agree with you. While acknowledging that it was unseemly for Martin to appear for the Justice Department in the matter for which he has served as defense counsel, Fox explained that there is no rule prohibiting lawyers from giving the appearance of impropriety. But there is a rule.
- [62:47]
Andy McCabe
Is that true? Okay.
- [62:49]
Alison Gill
Rule 1.7 a of the DC Bars Rules for Professional Conduct says that a lawyer, quote, shall not advance two or more adverse positions in the same matter. Matter. Now, it remains unclear whether the DC Office of Disciplinary Council will launch a probe in response to the complaint against Ed Martin filed by the members of the Senate Judiciary Committee because they have also filed complaints against. Against this man. So I'm not going to do anything there in the D.C. bar. I know. I think I've read some articles where Trump is trying to take over the DC Bar. He was going to like, appoint, I don't know, Eric or something like, he was going to put, like, pals, you know, over at the, at the D.C. bar association, we were ruminating whether Rudy would end up there, who is actually disbarred.
- [63:33]
Andy McCabe
Yeah, that would be Sydney Powell.
- [63:36]
Alison Gill
Still has her license, though. Hey, Jenna Ellis, maybe, you know, maybe.
- [63:39]
Andy McCabe
We could bring in Rudy for that job and then like, give CIA to Mike Flynn or something, you know. Yeah, why not just have all the, all the cast offs back. Ruling the roost.
- [63:49]
Alison Gill
Yeah, bring them all back. So anyway, that's what's going on there with the, with that, that bar complaint. They're not going to investigate Ed Martin, at least not in this particular complaint. But like I said, we'll see what they have to say about the Senate Judiciary asking for some investigations to happen or, you know, at least reviews on what Ed Martin is doing. All right, we have a couple quick stories left to go, plus we have listener questions, but we have to take one last quick break, so stick around. We'll be right back. Foreign everybody, welcome back. Just two more quick stories before we get to listener questions. This week, appearing in the Oval Office, Trump signed a pair of executive orders seeking federal investigations and other sanctions against two former Trump officials. One is the former Homeland Security official Miles Taylor. Friend of mine, he's been on the Daily Beans, who famously wrote an anonymous 2018 New York Times op ed describing an internal resistance to Trump in his first term. You'll remember that as the lodestar opinion. We always talked about how the person who wrote that used the word lodestar. The other is Chris Krebs, the former head of the Cybersecurity and Infrastructure Security Agency. That's cisa. Who exemplified that principled resistance. Right. Krebs played a major role in undercutting Trump's false claims about 2020 election fraud and was fired as a result. It was Johnny McEntee, actually, who wrote up the memo after Krebs said this was the most secure election we've ever seen. There was no foreign interference. A lot of that was trying to be uncovered in discovery in the January 6 case, in the documents case. Right. To justify some of the actions that Trump was taking. But he assigned this executive order. Andy, this is bananas. Okay. To, to do. I remember, I remember a time not so long ago when Bill Barr was testifying before the Senate and Senator at the time then Senator Kamala Harris was like, her opening question to him was, have you ever, has anyone ever suggested or ordered you to open an investigation from, Has Trump ever Ordered you or even suggested. And. And Barr was like. He's like, looking around, his eyes are all shut. What do you mean by suggested? He's like, what I suggested. What do you. Oh, does you. What does suggested mean? Right. Like you.
- [66:19]
Andy McCabe
Is that to me, I don't know me. Who.
- [66:23]
Alison Gill
From where? W e. And she's like, I'll ask again. Has Trump ever asked you or suggested that you open an investigation? And anybody. And the reason she's asking that question, and the reason Bill Barr, one of the most corrupt attorneys general in history, is being weird about it, is because that is something you do not do. You do not, as the president, ask or request or suggest anything to the Department of Justice about opening an investigation, an ongoing investigation, ending an investigation. It is why the Republicans freaked out so hard when Clinton was on a tarmac with Loretta lynch, when Hillary Clinton was under investigation, and they talked for five minutes. So for now, he's in the Oval Office with the lights, cameras, action, signing executive orders ordering the Department of Justice to investigate his political enemies.
- [67:14]
Steve Vladek
That's.
- [67:14]
Alison Gill
That's, again, I can't express how out of the ordinary that is.
- [67:21]
Andy McCabe
Yeah, absolutely. So in the Krebs executive action, Trump lists among Krebs's supposed offenses that he, quote, falsely and baselessly denied that the 2020 election was rigged and stolen. Wow. Trump's memo on Taylor is similarly hyperbolic. It accuses him of conduct that could properly be characterized as tre poisonous and possibly violating the Espionage Act. So you ask, what was the alleged conduct? Well, Trump claims that Taylor's 2019 book, which he also wrote anonymously, quote, illegally published classified conversations and, quote, is full of falsehoods and fabricated stories. But the memo points to no details about specific classified information that Taylor supposedly shared. Now, now, I mean, I was talking about this the other night with Laura Coates. There's nothing in either one of these proclamations, executive orders, whatever, that would provide predication to actually open an investigation. There's no articulable fact that would even suggest the possibility that a violation of federal law happened here. You would have.
- [68:39]
Alison Gill
But there was no predication to open Crossfire Hurricane.
- [68:43]
Andy McCabe
Well, that's what the Republicans said. But, of course, everyone else who actually looked at it, including the IGs, the Senate hearing, the Senate committees, everything, they, they disagree with that. But, yeah, this is, this is. This is amazing. And he actually, he's like, he thinks it's treason. He loves to throw the treason word around. Anything that's, like, inconvenient or they think is offensive, apparently qualifies as treason.
- [69:08]
Alison Gill
Like when General Milley called up his counterpart in China and said, we're not going to nuke you. Yeah, don't worry, everything's fine. That the Republicans freaked out about that. They were, they were like, that's treason. You're going behind the President's back. You know, so.
- [69:24]
Andy McCabe
Yeah, I mean, honestly, Krebs should not worry about this. It'll be, it'll be an annoyance and it could cost them some money for representation. All this other stuff. They might. And targeting what they'll do. But yeah, it's, I'm not trying to write it off as this is nothing but of the two of them, you know, Miles and I, full disclosure, I know that both I friendly with both of them. I was on Miles's podcast and Chris, I know very well from work and even since I've left government. But Miles, the problem is the book. What they're going to do now is go through the book with a fine tooth comb and they're going to, after the fact, try to say, well, this thing here is classified. So that's, that could, that could be time consuming. And, But I don't know what he, whether he, it's hard to imagine that he went through any sort of a pre. Pub process if the thing was published anonymously. But I don't know how that works. But we'll find out, I guess.
- [70:21]
Alison Gill
Yeah, we, we will. And I'm sure there will be many things classified after the fact. All right. From the Daily Beast, FBI Director Kash Patel. I hate saying that sentence, by the way.
- [70:32]
Andy McCabe
I hate hearing it.
- [70:33]
Alison Gill
Sorry. I know it's worse for you. I never, I never worked at the FBI and it bothers me. He's been quietly removed as the acting Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives because he stopped showing up to facilities there.
- [70:46]
Andy McCabe
You know what? That'll get you fired.
- [70:47]
Alison Gill
Yeah. You know. Or removed. Gently removed. Patel, who remains in his FBI role, has not been, quote, seen inside at ATF facility for weeks and has been replaced by the US Army Secretary, Daniel Driscoll. Driscoll. According to sources, Driscoll will reportedly continue working in both roles. So he's dual hatted now. Patel, though, found time on Friday to pop over to the DC's Capital One arena and watch the, the guy. Ty Wayne Gretzky's record at. What is it, Alex?
- [71:16]
Andy McCabe
Yeah.
- [71:17]
Alison Gill
Ty Wayne Gretzky's record for the most goals in NHL history. He was photographed in the owner's box chatting with the Gretzky. So he, you know, alcohol Tobacco, Firearms and Explosives. No time, Gretzky time.
- [71:29]
Andy McCabe
Yeah. This was ridiculous from the beginning. The idea that even a seasoned, experienced, competent FBI director would be able to be able to provide daily leadership to both organizations at the same time was nonsensical. So the fact that Patel was going to try to do it was even more ridiculous. But it is kind of consistent with the Republican approach to the atf, which this is a historical. They don't like it. They don't want anything to do with it because of the problem it poses for them on Second Amendment issues. And so they have typically kind of kneecapped it. You see that usually in terms of the ATF will go years and years with an acting director. They can't ever, you know, a series of actings. It's been very hard for them to get permanent directors through confirmation. So the fact that they put in this army secretary, which doesn't make any more sense than Patel, to be perfectly honest, that seems to be just more of the same. In any case. Okay, we get this one from CBS. A landmark Justice Department office created in the 1960s during the Civil rights movement is marked for closure by the Trump administration, raising fears of a loss of generations of work, tamping down and working to prevent unrest in the nation's major cities. An internal Justice Department memo reviewed by CBS News said Trump appointees are considering closing the Community Relations Service, which was created as a part of the Civil Rights act of 1964. The mission of the office is to be, quote, America's peacemaker, tasked with preventing and resolving racial and ethnic tensions, conflicts and civil disorders, and in restoring racial stability and harmony. The Community Relations Service does not investigate or prosecute crimes and has no law enforcement authority party and according to the Justice Department, its services are both confidential and free of charge to communities that accept or request them. In 2021, the agency said of its mission that it sought to help realize Martin Luther King Jr's inspiring dream of a vibrant, all embracing nation unified in justice, peace and reconciliation.
- [73:39]
Alison Gill
Yeah, I wasn't familiar with that division when I read that story. But there's a lot of stuff that they had their hands in. Right. To try to quell issues after, for example, Rodney King.
- [73:53]
Andy McCabe
Right, right.
- [73:54]
Alison Gill
But it's not just related to civil unrest. They also do like when big storms come in and to make sure that there's, you know, that everything stays kind of chill after that. It's a very important office and they're just going to get rid of it. Andy, real quick, before we get to listener questions, Judge Zinnis has issued her written order. So it's basically she's like, all right. So. For the reasons discussed during today's status conference, the court finds that the defendants have failed to comply with this court's order. So in advance of the conference, the court had directed the defendants to, you know, answer those following questions that we said during the hearing. The court posed straightforward questions including where is Abrego Garcia right now? What steps have you taken to facilitate his return? While the court's initial order on injunctive relief was in effect, which happened the afternoon of April 4, defendants counsel responded that he couldn't answer the questions and at times suggested the defendants had withheld such information from him. As a result, counsel could not confirm and thus did not advance any evidence that the defendants had done anything to facilitate Abrego Garcia's return. This remained Defendants position even after this court reminded them that the Supreme Court of the United States expressly affirmed the court's authority to require the government to facilitate Abrego Garcia's return. And it says from this court's perspective, the defendant's contention that they could not answer these basic questions absent some non specific vetting that has yet to take place, provides no basis for their lack of compliance. Accordingly, it's ordered that beginning April 12th, that's Saturday, and continuing each day thereafter until further ordered by the court, Defendants shall file daily before 5pm Eastern a declaration made by an individual with personal knowledge.
- [75:40]
Andy McCabe
Good luck with that.
- [75:42]
Alison Gill
To those three things that she wanted. The current physical location of Abrego Garcia, what steps they are taking, if any, and what additional steps you will take. A follow up in person hearing is going to be scheduled for Tuesday, April 15th. We'll cover that on next week's episode. To the extent the plaintiffs seek additional relief, their motion shall be filed no later than 5pm Eastern, Saturday, April 12. And the defendant shall file any response by 5pm Sunday, April 13. As she said in the hearing, this court has no hours. So she is having all of these things due on the weekend. And there's a little footnote here. Defendants assertion that foreign affairs cannot operate on judicial timelines sorely misses the point. All parties appearing before this court are obligated to comply with court ordered deadlines unless and until they demonstrate good cause to depart apart from them. Defendants vague reference to foreign affairs alone does not justify their lack of compliance. So we'll keep you posted on all this.
- [76:39]
Andy McCabe
And I smell a contempt hearing at some point.
- [76:42]
Alison Gill
Yeah, I think we're gonna have some show cause and some contempt but with that, with that update, I think we're probably only gonna have time for maybe one question today. Yeah, what can we. What do we have today, Andy?
- [76:55]
Andy McCabe
So this jumps off a topic that we have not covered today, but we have been looking at over the last couple, and it comes to us from Jade from Australia. Jade says, I've been listening since Jack Episode one. Could you please explain in layman's language why these big law firms are caving to Trump? Please and thank you. Love all that you do, and cheers. Thank you, Jade, for that. Great question. So in layman's, the most important thing to know about these executive orders that have been targeting individual law firms is there's always some language about revoking the security clearances of anyone who works there. And, yeah, that can be a problem for individual attorneys who are representing people who need access to classified. But that's not the big problem. The big problem is they also include language that says, wait, can I guess what?
- [77:44]
Alison Gill
Entering federal buildings, you know, that's another.
- [77:48]
Andy McCabe
Thing that's an annoyance, but not. Not the end of the world.
- [77:51]
Alison Gill
I mean, how can you go into federal court if you.
- [77:54]
Andy McCabe
Yeah, that's. That's a good point. That's a good point. But you could probably get that. If you challenge just that, you could get that thrown out out. The biggest. The real problem for these firms and the thing that provides the most motivation for them to settle is the executive orders also say that any client of these firms, if you're a client of the firm, you are no longer eligible for government contracts. It's money. So whenever you're wondering, like, what's the. What's the thing that's motivating people? 99% of the time, it's money. Here. These firms, legitimately, I'm not advocating for caving because I don't believe it's the right thing to do, but it is legitimate that they see this as an existential threat, one that could end their firm. Because if clients start bailing out, the second thing that will happen is lawyers who represent those clients will go with the client to a new firm that's not sanctioned, and overnight, all of your revenue could just dry up and the firm could cease to exist. That's why the biggest firms with the most money at stake, some of them have decided to go in and cut a deal. If you're willing to cut a deal to provide a hundred million dollars worth of pro bono representation, it's going up, too.
- [79:12]
Alison Gill
125 million. Now we're getting 140 million in some cases.
- [79:16]
Andy McCabe
So you can see, I mean, the first firm to settle was not Scadden, it was, I can't remember which, Paul Weiss. Paul Weiss. And I think they got away with 40 million in pro bono fees, but Paul Weiss's revenue for the prior year was something like two and a half billion dollars. So 40 million bucks. This is not doing business when you're protecting two and a half billion dollars of revenue.
- [79:45]
Alison Gill
So that's according to that cost of doing business.
- [79:49]
Andy McCabe
That's it.
- [79:50]
Alison Gill
Great question and I wish we had time for more questions. We'll roll some of these over maybe to next week. We keep an ongoing list of these questions. So it's not like if you submitted this week and you didn't get read this week, you'll never get read. And you can submit your question by clicking the link in the show notes and filling out the form. And we'll do our best to answer them. We would normally have time to answer a couple more for you, but because of that last minute update from Judge Zenis, we did have to cut it a little bit short this week and we're already almost at 90 minutes for this episode. So we appreciate your patience. We appreciate your time. Thank you for listening and thanks for listening since Jack episode one. That's humbling. Thank you very much for sure. We'll be back next week. Any final thoughts?
- [80:42]
Andy McCabe
No. It's crazy week. A lot action packed show here. But so we'll be back again next week to give you all the same.
- [80:49]
Alison Gill
Yeah. What's the over under on? We'll be in show cause hearings by the end, the end of next week in Abrego, Garcia. And you know, again, I don't mean to laugh because this man, this innocent father and you know, from Maryland is in this torture prison hellhole, frightened, scared, incommunicado. He can't speak to his family, can't talk to a lawyer. It's just absolutely terrifying. And he shouldn't have to spend an additional minute in those conditions.
- [81:23]
Andy McCabe
Yeah, the question, I don't want to be glib about this, so don't answer the question. But the question is will he be out by our next episode?
- [81:30]
Alison Gill
No, I don't think.
- [81:31]
Andy McCabe
I got to say I don't feel confident about it in any way, but I don't.
- [81:34]
Alison Gill
I think they're going to invoke state secret privilege. They're going to say we did everything we could. They're going to put on a big show about having briefings and hearings and status conferences for the next month. At least and, and I think it's just going to drag out and out and out and, and you know, we'll, we'll keep reporting on it for you, but for sure, that's, that's the, that's the, the sentence that John Roberts put forward that, that is allowing this to.
- [82:02]
Andy McCabe
To continue this way for real.
- [82:04]
Alison Gill
All right, thank you so much, my friend, everybody. We will be back in your ears next week. You've been listening to Unjustified. I'm Alison Gill.
- [82:10]
Andy McCabe
And I'm Andy McCabe.
- [82:12]
Alison Gill
Unjustified is written and executive produced by Alison Gill with additional research and analysis by Andrew McCabe. Sound design and editing is by Molly Hockey with art and web design by Joelle Reader at Moxie Design Studios. The theme music for Unjustified is written and performed by Ben Folds and the show is a proud member of the MSW Media Network, a collection of creator owned independent podcasts dedicated to news, politics and justice. For more information please visit mswmedia.com.