Convention Against Torture

Summary

Podcast Summary: UnJustified Episode - "Convention Against Torture"

Podcast Information:

• Title: UnJustified
• Host/Author: MSW Media
• Description: The creator of Mueller, She Wrote, Allison Gill, and former Deputy Director of the FBI, Andrew McCabe, document the erosion of civil liberties and the rule of law under Trump's Department of Justice.
• Episode: Convention Against Torture
• Release Date: June 29, 2025

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Introduction and Key Whistleblower Revelations

[00:07] Andy McCabe:
Discusses the actions of Erez Reveni, a fired career Department of Justice lawyer, who has sent a letter to multiple oversight bodies outlining Emil Bovey's alleged defiance of court orders in three due process cases.

[00:24] Alison Gill:
Highlights a Supreme Court ruling from the shadow docket that indefinitely holds a lower court's order barring deportation to third countries without due process.

Emil Bovey and Erez Reveni's Whistleblower Letter

[00:47] Alison Gill:
Introduces the episode, focusing on Emil Bovey's confrontation with DOJ lawyer Erez Reveni's whistleblower complaint, which alleges Bovey instructed DOJ lawyers to ignore court orders.

[01:12] Andy McCabe:
Thanks listeners and mentions the release of a 27-page whistleblower disclosure by Erez Reveni, detailing government actions in multiple Alien Enemies Act cases.

[01:44] Alison Gill:
Encourages listeners to engage with the whistleblower episode and references a recent Wall Street Journal story related to Reveni's letter.

Notable Quote:

"White House Deputy Chief of Staff Stephen Miller falsely stated, the only mistake that was made is a lawyer put in incorrect line in a legal filing. And then he labeled Mr. Raveni a saboteur and a Democrat."
— Alison Gill [02:26]

Stephen Miller's Influence in the Administration

[02:26] Andy McCabe:
Comments on Stephen Miller's dramatic approach and his significant role within the administration.

[03:21] Alison Gill:
Explores Miller's extensive involvement, noting his staff size and responsibilities, including writing or editing every executive order signed by Trump.

[06:08] Andy McCabe:
Compares Stephen Miller to a childhood cartoon character, emphasizing his pivotal role in deportation policies.

[07:35] Alison Gill:
Recounts Emil Bovey's confirmation hearing before the Senate Judiciary Committee, highlighting his refusal to discuss conversations with Stephen Miller, invoking executive privilege.

Notable Quote:

"You're not the president, Mr. Bovey, to say."
— Andy McCabe [05:03]

Supreme Court's Ruling on Third Country Deportation

[14:14] Andy McCabe:
Introduces the Supreme Court's decision to lift a lower court order preventing the Trump administration from deporting migrants to third countries without due process.

[14:51] Alison Gill:
Expresses concern over the lack of explanation in the Supreme Court's shadow docket decision and its impact on cases like those involving South Sudanese migrants in Djibouti.

[15:24] Andy McCabe:
Details Justice Sotomayor's extensive dissent, emphasizing that the government failed to demonstrate irreparable harm from the preliminary injunction and criticized the administration's litigation behavior.

Notable Quote:

"Had it complied with the preliminary injunction... there would be no follow-up orders."
— Justice Sotomayor's Dissent [18:47]

Impact on South Sudan and Djibouti Cases

[20:31] Alison Gill:
Notes the Supreme Court's dismissal without explanation and the ongoing struggle to provide due process to migrants stranded in Djibouti.

[22:25] Alison Gill:
Discusses Judge Murphy's swift denial of plaintiffs' emergency motions to enforce remedial orders, reflecting ongoing judicial resistance to the administration's policies.

[23:04] Andy McCabe:
Critiques the administration's legal maneuvers, likening them to courtroom tactics seen in other controversial cases.

[24:07] Alison Gill:
Highlights the ongoing legal battle, indicating that the administration's stay application does not address the district court's remedial orders.

Updates on the Abrego Case

[30:05] Andy McCabe:
Shares developments in the Abrego case, including custody hearings and motions to dismiss and impose sanctions against government officials.

[33:27] Alison Gill:
Reports on Judge Sinis's handling of emergency motions, including the government's contradictory statements about Abrego's potential deportation.

[35:04] Alison Gill:
Describes the government's lack of specifics regarding Abrego's removal and Judge Sinis's request for clarification to set a briefing schedule.

Notable Quote:

"This is the cat."
— Andy McCabe [26:08]

DOJ's Lawsuit Against Maryland Judges

[50:48] Alison Gill:
Explains the DOJ's unprecedented lawsuit against every federal district judge in Maryland, challenging a court order that temporarily bars deportations.

[49:05] Andy McCabe:
Highlights legal scholars' concerns about the DOJ's attempt to undermine judicial protections against lawsuits over official acts.

Notable Quote:

"Judicial review inflicts irreparable harm on the government."
— Adam Bonica, Stanford [49:05]

Listener Questions and Clarifications

1. John Durham vs. Bill Bars Durham

   • [52:16] Owen:
     "Are you sure about John Durham? As soon as I heard that name again, I called my Connecticut attorney friend and she said, no, Bars Durham, meaning Bill Bars Durham has retired."
   • Response:
     • Andy McCabe: Confirms the distinction and acknowledges the correction.
     • Notable Quote:
       "That's what I'm going to call him from now on."
       — Alison Gill [53:35]

2. Served Sentences in the U.S.

   • [54:00] Owen:
     "Can you please talk more about what precedent or authority exists for the person to serve a sentence in the United States? What purpose does it serve?"

   • Response:

     • Andy McCabe and Alison Gill:
       Discuss the constitutional rights ensuring due process and the societal need for punitive measures to prevent recurrence of crimes by foreign nationals.

   • Notable Quote:

     "You brought the evidence. They actually argued that they shouldn't have."
     — Alison Gill [55:50]

3. Congressional Oversight and ICE Detention Facilities

   • [59:24] Jim:
     "Members of Congress in multiple states are getting stonewalled in their efforts to visit ICE detention facilities. What can be done to remedy this?"

   • Response:

     • Alison Gill and Andy McCabe:
       Advocate for legal action, such as lawsuits, to enforce oversight rights and challenge restrictive DHS policies.

   • Notable Strategy:

     "They would need to file a class action suit, certify a class, and then file a lawsuit."
     — Alison Gill [60:56]

Conclusion and Call to Action

[64:06] Alison Gill:
Emphasizes the importance of supporting whistleblowers and calls for donations to Whistleblower Aid to protect those exposing governmental wrongdoing.

[64:16] Andy McCabe:
Encourages listeners to advocate for oversight and use legal avenues to challenge executive overreach, reinforcing the podcast's commitment to monitoring threats to democracy and civil liberties.

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Key Takeaways:

• The podcast delves into the Trump administration's attempts to undermine judicial oversight and erode due process, particularly in immigration and deportation cases.
• Key figures like Emil Bovey and Stephen Miller are scrutinized for their roles in defying court orders and implementing stringent deportation policies.
• The Supreme Court's recent ruling has significant implications for migrants' rights and the government's deportation strategies.
• Ongoing legal battles, such as the Abrego case and the DOJ's lawsuit against Maryland judges, highlight the tension between the executive branch and the judiciary.
• Listener engagement through questions underscores the importance of understanding and challenging these legal and political maneuvers.

Notable Quotes with Attribution:

• "White House Deputy Chief of Staff Stephen Miller falsely stated, the only mistake that was made is a lawyer put in incorrect line in a legal filing. And then he labeled Mr. Raveni a saboteur and a Democrat."
  — Alison Gill [02:26]

• "You're not the president, Mr. Bovey, to say."
  — Andy McCabe [05:03]

• "Judicial review inflicts irreparable harm on the government."
  — Adam Bonica, Stanford [49:05]

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Support Whistleblowers:
MSW Media has partnered with Whistleblower Aid to protect and support whistleblowers. Donations help provide wraparound protection for those exposing governmental misconduct. Consider contributing to safeguard the integrity of civil liberties.

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Connect with UnJustified: For more insights and updates on the erosion of civil liberties under the Trump DOJ, visit mswmedia.com.

Transcript

[Alison Gill]

MSW Media.

[Andy McCabe]

Now fired career Department of Justice lawyer Erez Reveni has sent a letter to the Inspector General, the Office of Special Counsel, and the chairs of the House and Senate Judiciary Committees outlining Emil Bovey's alleged defiance of court orders in three due process cases.

[Alison Gill]

The Supreme Court rules from the shadow docket and without explanation, that a lower court's order barring deportation to third countries without due process is on indefinite hold.

[Andy McCabe]

Two separate hearings involving Mr. Abrego led his civil attorneys to ask his criminal defense team to keep him in prison pending a hearing in Maryland on a motion to block his removal from the country.

[Alison Gill]

And Emil Bovey faced questions about DOJ lawyer Arez Raveni's whistleblower complaint, the one that alleged Bovey instructed him and other DOJ lawyers to ignore the court orders. This is Unjustified Foreign hey everybody. Welcome to episode 23 of the Unjustified Podcast. It is Sunday, June 29, 2025. I'm Alison Gill.

[Andy McCabe]

And I'm Andy McCabe. Well, first, Allison, thanks, thanks, thanks. Huge thanks to everyone who downloaded and listened to our bonus audio version of the protected whistleblower disclosure of Erez Raveni this week. The 27 page disclosure included a detailed account of the government's actions in multiple cases involving the Alien Enemies act before including the case before Judge Boasberg, the third country's removal case before Judge Murphy, and the Abrego case before Judge Sinise.

[Alison Gill]

Yes, and I encourage everyone to listen to that free bonus episode if you haven't, because it relates to a story that came out this week from the Wall Street Journal. Now, you'll recall, Andy, that Erez Reveni's whistleblower letter. In it, he wrote this, he said, quote, white House officials have publicly disparaged Mr. Raveni to justify their refusal to comply with the Constitution and with court orders. White House Deputy Chief of Staff Stephen Miller falsely stated, the only mistake that was made is a lawyer put in incorrect line in a legal filing. And then he labeled Mr. Raveni a saboteur and a Democrat.

[Andy McCabe]

Wow, that guy's got a flair for the dramatic, for sure, man. He's a piece of work. Okay. Also, here's reporting from the Wall Street Journal that came out days before the publication of the Erez revenue letter. Stephen Miller wanted to keep the planes in the air. And that is where they stayed. When a federal judge in March told the Trump administration to turn around flights of deported migrants headed to El Salvador, senior officials hastily convened a Saturday evening conference call to figure out what to do if they didn't return the passengers, they would be defying a court order. Some administration officials worried Miller, who is President Trump's deputy chief of staff, pushed for the planes to keep flying, which they ultimately did. The judge would later say that allowing officials to defy court judgments would make a, quote, solemn mockery of the Constitution.

[Alison Gill]

Hmm. So he was on a conference call because, remember, in Mr. Raveni's letter, if you listen to it, Mr. Raveni was like somebody high up was, you know.

[Andy McCabe]

Yeah.

[Alison Gill]

Preventing all this from happening. And then a bunch of people were calling Mr. Raveni saying, Stop emailing. Stop emailing us.

[Andy McCabe]

Quit creating evidence of our misdeeds.

[Alison Gill]

Right. Exactly. Now, the Wall Street Journal goes on to say he has his own staff of about 30, Stephen Miller, and a Secret Service detail, which White House officials said was because he had received threats. And he serves as Homeland Security advisor. He has been responsible for the administration's broadsides against universities, law firms, and even museums. He has written or edited every executive order that Trump has signed. So we knew Stephen Miller played kind of a big role in this. Ruveni only mentioned him by name that one time in. In. In the letter when his lawyers were defending his good name, saying, you know, that Stephen Miller had called him a saboteur and a Democrat. But when Emil Bovey was asked during. Because Emil Bovey had his hearing in front of the Senate Judiciary Committee for his nomination to the Third Circuit Court of Appeals, lifetime nomination, and he was asked if he had ever talked to Stephen Miller, like, for example, about the Eric Adams case. Right. And Bovey refused to talk about those discussions. He was invoking deliberative process, privilege and executive privilege, which, by the way, Senators, White House and Blumenthal said, you. You can't do that in this hearing. And it's also not your privilege.

[Andy McCabe]

You're not the president, Mr. Bovey, to say.

[Alison Gill]

So they wanted to file a point of order, like, that's wrong. But he refused to answer those questions. Now, he. Similarly, though, when Republicans asked him about his discussions with the president and people in the way, he was happy to answer them. Oh, yeah, yeah, right. But he. So he was. And Senator Whitehouse, or I think it was Whitehouse, pointed that out, too. He's like, that's really weird. You're being so selective with your privileges. So he was asked about. Stephen Miller wouldn't answer the question. And so it's. It's interesting that, you know, this Wall Street Journal article comes out. Then a couple of days later, we get the Erez revenue letter, you know, about. Well, Somebody up there was, like, making these decisions, and. And I wasn't allowed to talk about them with anybody. They told me to stop emailing. They said, if you have questions, pick up the phone and call. And I. I just thought that that was a really interesting kind of touchstone. Stephen Miller's kind of a touchstone in this administration. I didn't know that. He has written or edited every single executive order that came out of the presidential office.

[Andy McCabe]

I hadn't heard that before, but it doesn't surprise me at all. He's truly kind of the puppet master. Yeah. I'm trying to remember that cartoon a million years ago when we were kids. There's, like, a big, big, tough alien, and he. He carried around, like, right here on his chest, a very small head who was, like, the brains of the operation kind of thing. And I just. I see Stephen Miller. It totally reminds me of that. I don't know why. I'm not not criticizing his appearance, but I'm just saying he reminds me of my childhood. Yeah. And, I mean, he's been the driving force behind the campaign against people who weren't born here. It's routinely stated that Stephen Miller has decided that they must deport or lock up 3,000 people a day. His impact on this administration goes far, far beyond what we've ever experienced before by a deputy chief of staff. I don't even. I don't remember deputy chief of staff with a. With a staff of 30 people. I could be wrong about that. But. And a Secret Service detail. But, yeah, he is a very, very significant guy in this administration and is kind of, you know, for whatever reason, he just, like, seems like the least likely person in the world who'd be, like, super tight with Trump. But they must be, because, yeah, he's really survived there.

[Alison Gill]

Yeah. And seems to be the one that's kind of seems seemingly calling a lot of these shots.

[Andy McCabe]

Yeah.

[Alison Gill]

I remember when the Trump administration said, no, stop invading the farms and the meat packing plants. And then two days later, they were like, okay, go ahead. Like that.

[Andy McCabe]

Yeah.

[Alison Gill]

Yeah. I just have a feeling that that was a Stephen Miller joint. Also, you know, the. The Raveni letter came up a lot during that Emil Bovey confirmation hearing. Schiff actually painted him in a corner. A corner. Senator Adam Schiff. He asked him about the whistleblower letter directly. Specifically the part where Bovey told a room full of DOJ lawyers to tell the court, fuck you. And Bovey was like, what question? Who? When was this? And then. And finally he was like, do you need me to repeat it again, I think Schiff got the words fuck you in the congressional record, like, 13 times in that five minute line of questioning. And so finally, Bovey said, I don't recall. And to say that you telling a bunch of DOJ lawyers to tell the court f you is either something you definitely remember saying or something you definitely remember not saying.

[Andy McCabe]

Yeah. Unless you're saying that in every meeting you go to, which is an entirely different problem. And I find to be, like, highly unlikely between Bovi's quote in Raveni's letter and then Trump's statement to that press gaggle outside the White House before he took off for somewhere. I've never heard the word fuck on national television quite so many times. I have this week. Yeah, it's remarkable.

[Alison Gill]

Yeah.

[Andy McCabe]

I found him to be completely lacking any credibility in his denials. I mean, I don't remember if I said that. It's such a grossly awful thing for a pay dag to tell attorneys who are subordinate to him at the Department of Justice. It's the kind of thing that if, if, if you drag basically any pay dag that I can think of in front of Congress and ask them if they said something like that, they would deny it vociferously. Right, right.

[Alison Gill]

Yeah. But see, the problem he has is that there are at least half a dozen people who were in that room. Right. So he knows. He can't say, he can't deny it.

[Andy McCabe]

No, of course. Yeah. I don't remember. Is the rip cord for. You don't want to. You can't admit it because it's horrible. If you deny it, you'll be proven wrong. So you just pull the rip cord and say, I don't remember. Dodge accountability.

[Alison Gill]

Yep. Talk about lacking candor. Yeah, that was a. A pointed comment toward you, sir. Anyway, that was, by the way, that. Wasn't that what they tried to shop multiple grand juries to indict you for at some point?

[Andy McCabe]

You know, nobody. Nobody needs to hear that story again. No, that's a. I just wanted to.

[Alison Gill]

I just wanted to let people in on the inside joke there. But, yeah, so the hearing. I thought Grassley, who is the. Was the chair at that particular hearing, is really pro whistleblower.

[Andy McCabe]

Yeah, always has been. He's kind of prided himself on that.

[Alison Gill]

Generally a pro whistleblower guy, but him and the rest of the Republicans, their apparent stance on Mr. Raveni is he's lying and they are going after him with, you know, full force. So we'll see what Michael Horowitz does I doubt Trump's handpicked special counsel in the Office of Special Counsel is going to do anything. And I personally don't have a lot of faith in Michael Horowitz, the Doji, but we'll see what happens, and probably not anytime soon. Usually those things take a couple years.

[Andy McCabe]

And with his impending move to remind me where he's going. He's leaving DOJ and going to CFBP or something.

[Alison Gill]

Michael Horowitz.

[Andy McCabe]

Yeah.

[Alison Gill]

Oh, I didn't even know that.

[Andy McCabe]

Yeah, yeah, yeah. He's.

[Alison Gill]

Oh, he must have had a meeting with Trump saying, hey, I've got to investigate this stuff, and, you know, stuff's going to come out. All right, well, I'll move you if you want.

[Andy McCabe]

This came out about a week and a half ago, so I didn't know that. I think it predates the letter, but it'll give him the perfect opportunity to do absolutely nothing about this, because they'll say, well, I'm leaving, so I'm not going to. I'm not going to weigh in on it.

[Alison Gill]

I'm not going to touch that. Yeah, yeah. So I don't know if Emil Bovey will sail through his nomination process. I don't think any Democrats are going to vote for him. At least I hope not. I know that zero Democrats voted for RFK Jr. For example. Hegseth, for example. This is emil Bovey's, like, 20 times worse, even though it's a judicial nomination and not a cabinet position. But we'll see what the Republicans do. I'm sure Susan Collins is concerned, but that doesn't. You know, they have two or three votes to work with, and they do this every time, like Murkowski and Collins can vote no while everybody else votes yes.

[Andy McCabe]

And it's not a good sign for Republican courage that you haven't heard a single senator indicate really any serious concerns.

[Alison Gill]

Yeah, right. That's. Yeah. I thought. I thought maybe this would be a good opportunity for somebody like Grassley, who really respects whistleblowers, to maybe speak up about something.

[Andy McCabe]

You mean actually have a spine and do something against the administration who clearly sees Bovey as, like, he's a good guy. We got to pay him back, make him a judge.

[Alison Gill]

He's the new Roy Cohn.

[Andy McCabe]

Yeah.

[Alison Gill]

Except he wants to put him on the Supreme Court now.

[Andy McCabe]

Yeah, I don't. I don't. I think he's. I think he's got smooth seas in front of him for this gig.

[Alison Gill]

Unfortunately. I. I agree. All right. We have a lot to get to in this show. We're going to talk about because this week the Supreme Court stayed the the third country deportation.

[Andy McCabe]

Yes.

[Alison Gill]

Prohibition that had been issued without explanation. And we're going to talk about that and how it could impact are still on the ground stranded in Djibouti trying to get their CAT hearings right. So we'll talk about that, but we'll do it right after this break. Stick around. We'll be right back.

[Andy McCabe]

Welcome back. Our next story comes from CBS News. They say the Supreme Court on Monday lifted a lower court order that prevented the Trump administration from deporting migrants to countries that are not their places of origin without first giving them the chance to raise fear, years of torture, persecution or death. The order from the high court is a victory for the Trump administration, which has faced recent setbacks from the justices in its efforts to swiftly deport migrants as a part of its crackdown on immigration. The Supreme Court's order clears the way for the Trump administration to resume deportations to third countries while legal proceedings continue.

[Alison Gill]

Yeah. And this my first thought was how is this going to impact, you know, because this is shadow docket, no explanation, one paragraph. But there was a biting dissent from Justice Sotomayor that went on for many pages. But my first thought was third countries. I thought of the South Sudan group that are in Djibouti right now trying to DOJ is trying to get everything done on the ground. And I thought of Mr. Abrego. Right. Who has an order in place saying he cannot be removed to El Salvador. But. And we'll get into this later.

[Andy McCabe]

Yeah.

[Alison Gill]

It was recently said by the Department of Justice that DHS intends to deport him to a third country. So those are the two things that came to mind. But let's, let's talk specifically about South Sudan. Like I said, DOJ was in the middle of following Judge Murphy's order. Judge Murphy is the lower court judge here because they were taking steps to give them due process. They were complaining about it the whole time. They filed to stay the order that they asked for because it was just too hard. And they didn't have electricity and they didn't have medicine and people were afraid and the lights were low, like too hot here. Yeah, it's 100 degrees. Even though that was the relief the government specifically asked for. And the judge gave that to them. He didn't say, you have to return these guys to the United States. You can go on the griff. That's what you want. Because the DOJ was like, well, we'd prefer to do this on the ground in Djibouti. He's like, okay. And the plaintiffs were like, that's going to be really hard and complicated and we'll have to have zoom calls and interpreters and food medicine. And the dealers are like, well, that's what we would rather do. And then they filed a whole thing with all the same complaints that the plaintiffs had about doing it in Djibouti. Now, Sotomayor's dissent in this case, like I said, it was biting and it was on target. And she addressed the South Sudan case, reminding us that Judge Murphy's order is not before them on appeal. It's not before the Supreme Court. Seeming to hint to the plaintiffs in the South Sudan case, which is called dvd, by the way, that they can and should continue their quest to get due process for their clients on the ground in Djibouti. Sotomayor wrote, besides the facially absurd contention that the executive is irreparably harmed anytime the court orders it to temporarily refrain from doing something it would like to do, the government has identified no irreparable harm from the challenged preliminary injunction. And the preliminary injunction she's talking about is the old original March 28 injunction barring the government from removing people to third countries issued by Judge Murphy. Instead, she continues, the government locates the source of its injury in the district court's efforts to provide relief to the class members in South Sudan. That argument from the government is misguided. First, the district court's remedial orders, meaning a remedy, are not properly before this court because the government has not appealed them nor sought a stay pending a forthcoming appeal. Second, the court adopted the narrowest possible remedy, allowing the government itself to choose whether it would return the class members to the United States or provide them with process where they are held. Finally, the government is in every respect responsible for any resulting harms. Had it complied with the preliminary injunction, and she's talking about initially and not sent anybody to South Sudan, there would be no follow up orders. No follow up orders would have been necessary. Nor would the government have faced, quote, sudden need to detain criminal aliens abroad. It does not face such need today as it can return the non citizens it wrongfully removed at any time. No litigant, not even the government, may, quote, satisfy the irreparable harm requirement if the harm complained of is self inflicted, unquote.

[Andy McCabe]

Sotomayor also brings up equitable jurisdiction. The government here violated preliminary court orders twice after a lower court barred the administration from removing anyone to a third country. They flew migrants to Guantanamo and then to South Sudan. Now, Steve Fladeck notes, this decision is bad enough on the merits, but it also gives the government relief in a case in which it defied the district court at least twice. That's quite a message to send to the government with respects to the cost of its litigation behavior in other cases, or the complete lack thereof. The plaintiffs in the South Sudan case then filed the following with Judge Murphy. Plaintiffs now move to enforce that previously ordered remedy to provide due process to the men on the ground in Djibouti. At the time DHS violated the injunction, it remained fully operative and the court had authority to fashion an appropriate remedy. Federal courts routinely enforce remedial orders issued in response to such violations, even when the underlying injunction is later stayed or vacated. In the alternative, plaintiffs move the court to issue individual injunctive relief. For these eight class members. Individual injunctive relief remains available consistent with section 1252. All eight individuals, none of whom have final removal orders to South Sudan, are being deprived of basic procedural rights and access to protection that Congress and the Constitution require. Absent injunctive relief, these class members face imminent risk of deportation to a volatile country where they will likely face indefinite detention and other forms of torture.

[Alison Gill]

Yeah. Now, shortly thereafter, and. Well, before I get to that, I just want to say that I thought it was, you know, the court didn't explain its, its stay in this case on removal to third countries. And I, I just. No one that, no experts that I've been able to talk to have been able to square, because there is no way to square. Not because they're not great experts. The fact that the court came down 9, 0, saying due process has to be, has to happen in the Alien Enemies act stuff.

[Andy McCabe]

Right.

[Alison Gill]

But that they're totally letting no due process happen here, that just blows my mind.

[Andy McCabe]

Yeah. Can I. Let me just clarify one thing too, because I think it gets a little bit confusing in some of the language from the filings. So there was the first order from the court, which is the one that got appealed, and that was, you may not, you may not deport people to third party countries. So the government appealed that, and that's the appeal that led to this decision by the Supreme Court. After that first order from the trial court, the trial court made a second remedial order which was, you can give them due pro, you must give them due process. You can either bring them back and do it here, or you can do it on the ground over there. Whatever you pick, government. So what the plaintiffs are saying here is even though the first order was Determined, you know, was thrown out by the Supreme Court. The remedy. The remedy that they were offered is still valid. And the government never appealed that remedial order. They never filed notice of appeal. They never requested a stay of that remedial order pending the appeal. So that's why the judge could say, like, hey, that remedial order still stands. You violated a. A then valid lawful court order. I ordered this remedy against you. You still have to pay. In other words.

[Alison Gill]

Yeah. And that's why Justice Sotomayor was like, hey, nudge, nudge, wink, wink.

[Andy McCabe]

Exactly.

[Alison Gill]

That's not before me.

[Andy McCabe]

Yep.

[Alison Gill]

And, you know, I thought the equitable jurisdiction thing was. Was also an important thing. And we'll. I'll talk about that in a second. But shortly after this happened, Judge Murphy agreed to what the plaintiffs wanted, and he did this in a paperless minute order. And it's interesting, because here's what he wrote. He said, plaintiff's emergency motion is denied as unnecessary. Like, thanks for telling me that we can still do this on the ground stuff in Djibouti, but you didn't even need to do that.

[Andy McCabe]

Yeah, thanks for telling me my remedial order is still valid and important, but I knew that already.

[Alison Gill]

Yeah. And he says, subject to the below, the court's May 21st order on remedy. That's the one that says, you know, you have to do this stuff in South Sudan, because that's what the DOJ wanted to remains in full force and effect notwithstanding today's stay of the preliminary injunction. So, in other words, again, no need to ask. And then he quotes Sonia Sotomayor's dissent, saying, Sonia Sotomayor dissenting. The district court's remedial orders were not properly before the Supreme Court because the government has not appealed them or sought a state pending a forthcoming appeal. So that's what Judge Murphy has said. He's like, yeah, I know my orders are still in effect. Thanks. But I'm dismissing your thing because that's not necessary.

[Andy McCabe]

Right. So if you thought that this judicial tennis match was over, you're wrong. Because then, of course, the Trump administration went back. Where do they go? What's the one place they find relief every time?

[Alison Gill]

The Supreme.

[Andy McCabe]

That's right. They went back. Back to the Supreme Court, asking it to clarify whether it has to give due process to these plaintiffs in Djibouti. I mean, okay, so they said this. This motion addresses the district court's unprecedented defiance of this court's authority.

[Alison Gill]

Okay, first of all, it's very precedented. There is tons of case Law that remedial orders continue on even if the underlying preliminary injunction is reversed. I just want to throw that in there. It's not unprecedented.

[Andy McCabe]

What you're seeing here is how lawyers across the Justice Department, ones who are new to it or have complied with the new regime, have adopted the language of Todd Blanche and Emil Bovey in their legal filings. This is like something that could have come right out of what's her name's court in Florida. I'm forgetting her name.

[Alison Gill]

Eileen Cannon.

[Andy McCabe]

Eileen Cannon. Right. Sounds like a filing in that case.

[Alison Gill]

But anyway, this lawlessness, it's outrageous what they're doing. Unprecedented. Presidents are the best ever. Yes.

[Andy McCabe]

All right, so I'll. I'll start this again. This motion addresses the district court's unprecedented defiance of this court's authority. Yesterday evening, just hours after this court stayed the preliminary injunction in this case, the district court issued an order asserting that its related ruling enforcing that injunction, quote, remains in full force and effect, quote, notwithstanding today's stay of the preliminary injunction, the district court claimed that the several, quote, individuals. Why is individuals in quotes? Are they alleging? They're not actually individuals, but. Okay, several individuals whose removal it previously halted mid flight and whose resulting detention in Djibouti in precarious circumstances was a focal point of the government's stay application, remains subject to its order enforcing the very injunction that this court stayed yesterday.

[Alison Gill]

Yeah. In the precarious circumstances that the. That the government's in.

[Andy McCabe]

Law to remain in.

[Alison Gill]

Yeah.

[Andy McCabe]

Okay.

[Alison Gill]

So now, the plaintiffs responded to that, and they said the lives and safety of eight members of the nationally certified class in this case are at imminent risk. These men are currently being held at a US Naval base in Djibouti. And the district court's remedial order is the only shield that preserves and protects their statutory, regulatory, and due process rights to seek protection from torture in South Sudan. Yesterday, this court, the Supreme Court, stayed the preliminary injunction pending appeal without any reasoning. But that order does not change the fact that the defendants violated the preliminary injunction, now stayed, but then in effect over a month ago, by attempting to remove these class members to South Sudan without providing meaningful notice or any opportunity to assert claims for protection under the Convention against Torture. That's the cat. In response to this violation, the court issued a narrow and equitable remedy requiring defendant Department of Homeland Security to retain custody of the class members and provide the protections that they would have received but for the violation, namely, reasonable fear, interviews with access to counsel, and a motion to reopen filed by either DHS or the class Member, depending on the outcome of the interview. The district court explicitly stated that this remedy was not intended to define future compliance, but rather to redress a discrete violation of the preliminary injunction. In its stay application to this court, the government neither challenged nor sought relief from the district court's remedial order. Thus, as the dissent correctly indicated, again quoting Sotomayor and the district court found yesterday, the remedial order was not before this court. The government now wants this court to clarify in quotes that the district orders. Remedial order has no effect such that the Department of Homeland Security can deport these men to South Sudan with no process at all, not even the process afforded by the government's own policy memorandum. The court should deny that request. So that is the latest in the DVD case. And. And everybody who's on the ground in Djibouti. I just, I think I like Judge Murphy a lot because he's like, you're denied. Because I know.

[Andy McCabe]

Yeah. And I think. I don't know. I'm totally reading this into it. I could be completely wrong here. But it would not surprise me if there's a little bit of peak on his part as well, because quite honestly, the district courts have been really getting stepped on by the Supreme Court in a lot of these rulings. Most significantly, one that came out today, and maybe we'll touch on this one next week. The. Basically, the court's rejection of federal district court's ability to issue nationwide injunctions. So, yeah, I, I think he's pushing back in a really important way here. And what I'm hoping for is yet another emergency docket, no opinion ruling that just says, you know, motion denied, government's motion denied, or something like that.

[Alison Gill]

So we'll let you know what the Supreme Court says about, about these particular filings. The government requesting that the Supreme Court clarify whether they have to continue this thing down in Djibouti. And then the, you know, the plaintiffs obviously saying, yeah, you do have to continue that. So remedial order, it's not before this court. Now, maybe Supreme Court comes back and says, you're going to have to appeal the remedial order with us. Right. Or maybe go appeal, appeal that to the circuit court first.

[Andy McCabe]

That seems more like them.

[Alison Gill]

Yeah, but I know they just knocked.

[Andy McCabe]

The tennis ball back again for another 16 rounds. That was just like, oh, my God, here we go.

[Alison Gill]

Yeah. Who knows?

[Andy McCabe]

But.

[Alison Gill]

All right, so we also have some updates on Mr. Abrego. We know last week we, we had Adam Classfeld on from All Rise News. We talked about the detention hearing, the one where the actual U.S. attorney argued argued in a detention hearing which never happened. They don't even argue in the main cases. So like the trials that that result y but there's been a lot of back and forth. There's been a lot going on behind the scenes and, and with where Abre Mr. Abrego is going to be, is he going to be moved? Is he going to be detained? Is he going to be deported? So we're going to talk about that, but we have to take another quick break, so stick around. We'll be right back. Foreign Everybody, welcome back. Okay, we've covered the Emil Bovey hearing, the Erez Revenue whistleblower letter and the Supreme Court's ruling on third country removal and the potential impact on the DVD South Sudan case. So next, let's cover the latest in the Abrego case. Now remember, Mr. Abrego does not want to be referred to as Abrego Garcia, just Abrego. So we'll honor that here there I I although I have to tell you, I got really used to saying Abreco Garcia, but that's what he prefers. So we're going to call him Mr. Abrego. So there were two hearings for Mr. Abrego this past week in the last week. The first was that detention hearing in Tennessee, which we covered last week, like I said with Adam Klassfeld. But there was also a hearing before Judge Sinis. Now you'll recall there are still pending motions before Judge Sinis in Maryland in the Abrego case. First, there are two motions to dismiss as moot filed by the government. They say we brought him back. So you have to dismiss all your things. Right. Particularly sanctions, motions, discovery, possible contempt. That hasn't we haven't gotten there yet. But those, you know, the government's basically like you wanted us to facilitate his return and we did. So you have to drop all this other stuff. And so kind of like how that remedial order in the Sudan case still stands, the discovery defiance order in in this case still stands, at least according to the plaintiffs and Mr. Abrego's lawyers. Judge Sinis hasn't ruled on that yet. So there's those two motions to dismiss and there's also the sanctions motion. The sanctions motion. Yeah, exactly. Thank you. That was filed by Mr. Abrego's lawyers. They're seeking fines and possible personal contempt of at least one of the government officials. And we've gone over those motions in detail in past episodes, right?

[Andy McCabe]

Yeah, that's right. But then in response to the government's lawyers stating during his detention hearing that Mr. Abrego would likely be detained by ICE after his release from criminal custody, lawyers for Mr. Abrego filed an emergency motion with Judge Sinis in Maryland, asking her to order that Mr. Abrego be moved to Maryland and asking her to prohibit DHS from deporting him to El Salvador or a third country. Now, in response, Judge Sinis said a same day hearing. And, Allison, you were able to listen to that hearing on the public line, is that right?

[Alison Gill]

Yeah, and I think that's the first time Judge Sinis has had a public line. So I dialed in. And during that hearing, a few key things happened. First, Judge Sinis said she was not going to discuss the merits of moving Mr. Abrego to Maryland or blocking DHS from deporting him.

[Andy McCabe]

Okay.

[Alison Gill]

And in fact, when the government was like, I just want to say a few things about the merit, she's like, no, you're not. She, like, shut him down pretty fast. But she said she first needed to establish jurisdiction because at the moment, Mr. Abrego is still in custody in Tennessee.

[Andy McCabe]

Correct.

[Alison Gill]

And she explained that if lawyers for Mr. Abrego are concerned about his removal to another country, they would need to take that up with the judge in Tennessee, because they have the ability to do that there. That's where you would file that.

[Andy McCabe]

Got it.

[Alison Gill]

Because they currently have jurisdiction down there.

[Andy McCabe]

They have the body, as we say, right now.

[Alison Gill]

Something else of note that happened during that hearing was that the government's lawyer stated that DHS does intend to detain and remove him to a third country. And Judge Sinise was like, well, tell me when, because I'm about to order some. A briefing schedule, and I need to know by when I have to do this, you know, for. Because we have to know when it's the threat that he could be removed from the country. And so she said, tell me when. The government couldn't give any specifics, but they promised the court or didn't want to.

[Andy McCabe]

If I tell you, then you're gonna tell me to bring the planes back. So it's better for me if you don't know when the planes are flying.

[Alison Gill]

Mm. So the government wouldn't say any specific date, but promised the judge that Mr. Abrego's removal was, quote, not imminent. So she set an expedited briefing on several issues. First, she asked for the briefing on the motion to move Mr. Abrego back to Maryland and block DHS from deporting him. Give me that briefing she said, we're ripe on one of the motions to dismiss, but we need one more filing on the other motion to dismiss. So she set a date for that. She then told the lawyers for Mr. Abrego, who. Who said they wanted to file an amended complaint but didn't say what they wanted to amend. So she gave them a date, maybe, perhaps they want to amend their complaint with this letter from Az Reveni.

[Andy McCabe]

Yeah.

[Alison Gill]

So that is due next week. And then she set a hearing on all of it for Monday, July 7th. And so during that hearing on July 7th, she'll address her jurisdiction to move Mr. Abrego to Maryland and block his deportation. She'll address the motions to dismiss, perhaps the sanctions motion as well, and then maybe the amended complaint. And she kind of had an idea what the amended complaint would be, because when the government said, can we. We want to reserve the right to respond to that, she's like, no, let me read it first, and I'll tell you if you need to respond. So that was kind of how that hearing went.

[Andy McCabe]

We'll cover it at motions palooza on July 7th. Okay.

[Alison Gill]

So every episode is Motions Palooza.

[Andy McCabe]

She's really just cranking them out over there. Okay. So then On Friday morning, Mr. Abrego's criminal defense lawyers filed a motion, yet another motion, to delay his release from criminal custody in Tennessee. Citing the government's contradictory statements of his possible deportation. They write, in Kilmar Armando Abrego Garcia's supplemental submission filed yesterday, counsel advised the court that in light of the government's claims that it lacked control over Mr. Abrego's whereabouts, counsel in his civil action in the District of Maryland had moved for an order that Mr. Abrego be transported back to his home in Maryland following his impending release from custody in this district. Yesterday, at an emergency hearing before Judge Sinise in the District of Maryland, the government represented that it intends to detain Mr. Abrego and remove him to a third country as soon as this court releases Mr. Abrego from pretrial custody. This is the first time the government has represented to anyone that it intended not to deport Mr. Abrego back to El Salvador following a trial on these charges, but rather to deport him to a third country immediately. Judge Sinis set a further hearing on that motion on July 7th. Hours later. Okay. Hours later, the DOJ told the Associated Press the exact opposite, that it intends to try Mr. Abrego in this district before removing him to a third country. Because DOJ has made directly contradictory statements on this issue in the last 18 hours. And because we cannot put any faith in any representation made on this issue by the doj, we respectfully request to delay the issuance of the release order until the July 16 hearing on the government's motion for revocation.

[Alison Gill]

Ah, yes, I forgot to mention the government's motion for revocation and the July 16 hearing that resulted from it. So for the past week, the government and the criminal lawyers for Mr. Abrego. I should say the lawyers for his criminal case, not the criminal lawyers, have been going back and forth on his release order. Okay. From criminal custody. The government argued. The government argued that the magistrate judge that ordered Mr. Abrego released shouldn't have considered the evidence it presented. They're like, we know you think it's double hearsay and double, triple hearsay, but you usually in bail hearings, you don't even listen to evidence. It's like, you brought the evidence. They actually argued that they shouldn't have. The judge shouldn't have considered the evidence that they brought. Which is just a weird argument. Like, I couldn't even. I read it a hundred times, Andy. I. I couldn't figure out what exactly they were trying to say. But they also argued that if she released Mr. Abrego, the government would be irreparably harmed because he'd be detained and deported. Now, a federal judge agreed that the government's position was ridiculous and denied their motion to stay Mr. Abrego's release. And the judge wrote, underlying this case is an obvious truism that must not be forgotten. The executive branch is in control of where the defendant, Kilmar Armando Abrego Garcia, awaits trial. In this case, you're in control, government. This is true because the executive branch can elect whether to hold him for pending deportation proceedings or not. This seems overlooked in the government's motion to stay the magistrate judge's order. Release order. But the government also asked, if the court denied the stay right to stay his release, if it would grant, if it would consider revoking the release order. And that same federal judge, Judge Crenshaw, agreed to hold a hearing and have briefing on that matter. And that hearing is the July 16 hearing.

[Andy McCabe]

So hold on a second here. So the government asked, in this. In this filing that you've just gone through. So the court decided to release Mr. Abrego from criminal custody. And the government comes in and says, hey, judge, please don't release him. Which is essentially the same thing that his own lawyers are now arguing in that same court. They want him held as well.

[Alison Gill]

Right. Only now they want him held because the DOJ is contradicting himself about what would happen if he's detained by ice.

[Andy McCabe]

They have very different reasons for wanting him.

[Alison Gill]

But you think that get together and.

[Andy McCabe]

Be like, let's just leave him where he is for now. Okay. Because we've confused this so much, we can't even see our own way out of it.

[Alison Gill]

Right. But the government, so. Yeah, so the government really wants him to stay in. In custody. And his. Mr. Abrego's publicly appointed defenders in the criminal case argued for his release on bail. Right, Right. And everybody thought he would be released on bail, but everybody kind of knew he would be detained by ice, but nobody knew what would happen after that.

[Andy McCabe]

Right. Yeah.

[Alison Gill]

And the government contradicted itself completely. And the judge was like, you're coming to me saying that you're going to be irreparably harmed if Mr. Abrego is released from criminal custody because he'll be detained by you and deported by you.

[Andy McCabe]

Isn't that another one of those you can't claim a repairable harm if you harmed yourself arguments?

[Alison Gill]

Yes, it is.

[Andy McCabe]

So we learn nothing.

[Alison Gill]

Yeah. So that's what's going on in, in the Abrego case. And I wanted to talk about possible outcomes here. Like, the best possible outcome is Mr. Abrego gets to stay in the United States and live with his family. Right, of course. But he is here, according to an immigration court, illegally.

[Andy McCabe]

Yes.

[Alison Gill]

So he would have to be granted some kind of asylum or something like that if he were to stay here. So I'm interested to see, because right now we're only arguing where he's going to be in the next couple weeks or a couple months. And I'm interested to see where his lawyers want him to end up.

[Andy McCabe]

I'm sure they want the same thing that you just described, that he's out from under these criminal charges and able to basically go back to his life. That seems like a tall ask. Unfortunately, at this point. I think in the, in the near term, the best. Staying in Tennessee. Well, whether he's in jail or not, let's put that aside for a minute. But fighting the charges into maintaining the charges in Tennessee until he can actually fight them in court, where he'd have.

[Alison Gill]

Be acquitted of them. Right.

[Andy McCabe]

A pretty good shot of probably beating this case. That's probably the near term best course for him. Because if once, soon as he falls into immigrant ICE custody, that's, you know, anything could happen. You could wake up one morning and it's in the paper that he, that he left three days ago for Uzbekistan. Who knows?

[Alison Gill]

I mean, like Mauritania, right?

[Andy McCabe]

Yeah. There's just no telling. And then once he's gone, once he's out of the country, dude will never be allowed back in.

[Alison Gill]

Right. And so I, I also would like him to go to trial. It would keep him here the longest if he, I think.

[Andy McCabe]

And if he won a trial, it would potentially create new legal arguments for him. So then for him to stay. Right. If the government, let's say the government went back and they tried to reopen the order that currently prohibits him from being deported to El Salvador, they would be treading the same ground. Oh, he's a gang member, he's a human smuggler. And he could then go in with this acquittal on those charges and say, no, I'm not. So that might help him there. If they grabbed him and decided they were going to deport him to a third party country, he might be able to fight that on some sort of chain migration. Yeah. Or some sort of like retaliatory. I don't know if you can even do this in the immigration system, but it is the kind of thing that you think somebody could say, hey, you're, you're retaliating against me for political reasons. Yeah, something like that. So I think.

[Alison Gill]

Yeah. But also, I mean, the chain migration argument is pretty good too. I've talked to, when I talked to Adam Classfeld about that, he said that his Mr. Abrego's lawyers brought that up, that he couldn't be deported to a third party country like Mexico, for example, because there is a current order in the United States prohibiting him from being sent to El Salvador. And in order to preserve that order, you can't send him to Mexico. Mexico can send him to El Salvador. And that's called chain deportation.

[Andy McCabe]

Chain deportation. Yeah, that's right. Yeah.

[Alison Gill]

Because your country migration. I'm sorry, chain migration is something different.

[Andy McCabe]

That's the other.

[Alison Gill]

Apologize. Yeah, that's the, it's coming in, not going out.

[Andy McCabe]

Right. So that, that the ability of any nation to send you back to the, your country of origin, that's like a basis of like a global immigration practice. So, yeah, he ends up in Mexico. And any country would have the power to send you back, theoretically to the place you're from. And the US Federal court order barring his return to El Salvador would not apply in Mexico. So he could just be sent right there. So, yeah, that's a, that's a leg to stand on.

[Alison Gill]

Yeah. And his lawyers would Argue that if a court here in the United States orders him to be deported to a third country, then that court would be in violation of the non deportation to El Salvador order. Potentially.

[Andy McCabe]

Right.

[Alison Gill]

Kind of a. Interesting way around that. Now, in the near, near term, I think the best place for him is in criminal custody in Tennessee.

[Andy McCabe]

Yeah.

[Alison Gill]

So that DHS doesn't pick them up and send them to a third country. Especially with this Supreme Court order allowing this administration to send people to third countries without due process.

[Andy McCabe]

And I mean, from the, from the government's perspective, in this case, the administrator, I should say the administration's perspective, this is all about a win. They don't care how they get it. Right. So if they decide that the cheapest, easiest way to we get the final word on this is to have him transferred from, you know, BOP custody to ICE custody and then send them out on the next plane to fill in the name of a country here that's not El Salvador. I could see them doing that and.

[Alison Gill]

Saying that's a win for them.

[Andy McCabe]

Totally. Yeah. Getting rid of him again is what they want.

[Alison Gill]

Yeah. Bringing him back and charging him was a way to get out of the discovery process.

[Andy McCabe]

Right.

[Alison Gill]

So that they wouldn't have to reveal what they've been doing with Bukele.

[Andy McCabe]

Right.

[Alison Gill]

And. And how they've been defying court orders and getting that. And then getting him deported to a third country is a win because we got rid of big bad criminal and they took their.

[Andy McCabe]

They took their shot on this hope that if they brought him back here under this notorious indictment, that they could get him convicted of a serious crime, which then greatly improves their leverage in terms of getting him out of the country. But they, they took their gamble on a case that's. That is a leaky bag of garbage.

[Alison Gill]

I think they know that and they don't care because if they don't even go to trial or something, they could just detain him and send him to a third country and win anyway.

[Andy McCabe]

Yeah. There you go.

[Alison Gill]

You know, so. All right, we have one more quick story on listener questions, but we have to take one last quick break. So everybody stick around. We'll be right back. Hey, everybody, welcome back. We have one final story before we get to listener questions. If you have a listener question, there's a link in the show notes to submit it to us. This is from Democracy Docket. President Donald Trump's Department of Justice Tuesday sued every federal district judge in Maryland to challenge a standing court order that temporarily bars the government from deporting people after they filed A challenge. The Department of Justice suing an entire bench is extremely rare. Some legal experts say they've never seen such a lawsuit before. The move marks the Trump administration's latest escalation in its attempt to undermine federal courts and erode due process protections. U.S. district Court of Maryland's order issued last month initiated an automatic two day stay on habeas corpus challenges, in part to preserve the status quo and ensure petitioners are able to participate in proceedings and access legal counsel. Due process. Right. In its complaint, DOJ characterized the order as particularly egregious, a particularly egregious example of judicial overreach interfering with the executive branch prerogatives.

[Andy McCabe]

Not really, when the Supreme Court has already said, you have to do this, but okay. Defendants include Judge Paula Sinise, the judge presiding over Mr. Abrego's lawsuit challenging his wrongful removal from the United States and imprisonment in El Salvador earlier this year. Legal scholars have said that DOJ's lawsuit raises concerns over the protections judges have from lawsuits over their official acts, such as issuing orders in cases. Adam Bonica, a professor of political science at Stanford, noted that the DOJ is in essence arguing that judicial review inflicts irreparable harm on the government. Wow. The lawsuit comes just days after the Supreme Court cleared the way for the Trump administration to resume deporting migrants to countries they are not from with minimal notice. Yeah, this one is amazing to me because first of all, we did get a few questions about this this week, and I think we've pretty much, you know, we've obviously covered it here, but my understanding is it was the chief judge of the district who issued this order basically as a way of ensuring that all of his judges across the district, I think there's 11 or 13 or something like that, handle these matters the same way to ensure that they comply with what the Supreme Court recently said was necessary, that people have to get. They have to file individual habeas claims if they want to challenge their detention and deportation. And so now he's basically put this in place to ensure that that can happen in kind of a, you know, a protected way. I don't see this lawsuit going anywhere.

[Alison Gill]

No, me neither. Especially now that the Supreme Court has ruled that, you know, you can't have nationwide injunctions, you'd have to go through class action. Right, right. And so that sort of would resolve any issues that at least, you know, Donald Trump and Pam Bondi seem super happy about, that would, would resolve any issues of coming out of any court. Right. If, if he, you Know, I, I, maybe he's trying to get rid of the class action.

[Andy McCabe]

Where did he even file this case? Do you SUE Maryland and D.C. i.

[Alison Gill]

Mean, in Maryland and then I think the Fourth Circuit, somebody sent it to the Fourth Circuit because all of the judges are recused. So none of them can hear it.

[Andy McCabe]

Of course they can't. They're all been, they're all defendants.

[Alison Gill]

So they sent it all to, they were like, well, I can't hear my own case. So they send it to the, you know what?

[Andy McCabe]

I don't, I feel like the chief judge should just assign it to one of his people and that should person be like, dismissed.

[Alison Gill]

That'd be funny. That would be really funny. So, all right, we had, now, you know, we laugh about this, but who knows what the Supreme Court is going to do with this?

[Andy McCabe]

Anything can happen. We've learned this before on this podcast along along the years.

[Alison Gill]

We can't laugh off Trump lawsuits anymore. So anyway, we, but we wanted to put it on everybody's radar. All right, so to listener questions. Yeah, let's, let's get to that again. There's a link in the show notes if you want to submit one. What do we have this week, Andy?

[Andy McCabe]

All right, so this week we start with a really, a question. It's a correction. Yeah. And it comes from Peter, who describes himself as an AG fan forever. And, and Peter says, are you sure about John Durham? As soon as I heard that name again, I called my Connecticut attorney friend and she said, no, Bars Durham, meaning Bill Bars Durham has retired. She thinks that it's John Durham's son, John, or Baby Durham as she called it.

[Alison Gill]

Him.

[Andy McCabe]

Thought you might want to, Thought you might want to double check. That name's gonna stick. I got to tell you. That's got legs right there. All right.

[Alison Gill]

Baby Durham.

[Andy McCabe]

Yeah, after.

[Alison Gill]

Well, that's what I'm going to call him from now on.

[Andy McCabe]

For sure. We gotta, we gotta distinguish him from his distinguished father. So after very minimal research, Peter, I determined you are correct. New York Times reported on January 25 that John Durham, a veteran federal prosecutor on Long island, will lead the U.S. attorney's office in Brooklyn, which is referred to as the Eastern District of New York. Mr. Durham is the son of John H. Durham, the former special counsel who investigated possible government misconduct and previous inquiries into President Trump and found nothing except two cases that he lost. Okay, I added that part at the end.

[Alison Gill]

All right, I stand corrected. It's Baby Durham.

[Andy McCabe]

There you go. It's Baby Durham. So we're gonna, we're Keeping an eye on him.

[Alison Gill]

Nice.

[Andy McCabe]

Okay, so here's one. It's more of kind of a bigger picture question. It comes to us from Owen. Owen says, I have a question that arises from the Abrego matter. Andy mentioned in a recent episode that the current administration's deportation policies circumvent our tradition of indicting, offering due process to, and detaining foreign nationals who commit crimes in the United States to serve their sentence. My question is, can you please talk more about what precedent or authority exists for the person to serve a sentence in the United States? What purpose does it serve? Is it punitive? It must cost more taxpayer dollars. So I want to know what its value is to the public interest. Okay, so in terms of precedent, like where does it come from? Well, certainly it comes from the Constitution, which, as you know, Owen and everybody else has a whole patchwork of constitutional rights that protect you, particularly in the criminal justice system if you are indicted or charged with a crime. And it's everything from your fifth amendment right against self incrimination, sixth amendment right to an attorney, your right to a speedy trial, your right to confront witnesses against you, right to a jury trial, all kinds of things. Right. So all of those things, those constitutional rights apply not just to U. S. Citizens, but to any person in the United States who's brought into the US Criminal justice system or a state criminal justice system for that matter. So that's the kind of precedent for it. What's the purpose? Well, well, yeah.

[Alison Gill]

What's the right to serve your jail sentence here in the United States? Because we know Eric Adams, as part of his deal with Emil Bovey, started letting ICE agents into Rikers, Right. To take people who were serving their sentences out.

[Andy McCabe]

So there isn't a right per se to serve your sentence here. But on the other side, in terms of what do we get out of it as a society? Well, really there's two things. Part of sentencing and certainly the part that requires your incarceration, it is punitive. There is a debt owed to society by people who are convicted of a crime.

[Alison Gill]

Because if you deport someone, they might not go to jail.

[Andy McCabe]

Exactly.

[Alison Gill]

They just get to go.

[Andy McCabe]

You gotta pay for what you did here. So there is, that is a kind of a ethical obligation and in a more kind of tactical security way, there's the reality that if somebody's committed of a crime here and they're from somewhere else, and so we, instead of making them serve their sentence here, we just send them home, you don't know what's going to happen. To them there. Right. They might be. They might be detained, they might not. That their home country might not be able to charge them and throw them in prison for what they did here? Would it be good for us to live in a place where anyone from a foreign country knew that they could just come to America, commit crimes here and the worst that would happen to them is they'd be sent home? Like that's not a good thing for us security wise. Also, like, look at the guy we've been talking about, Cesar. I can't remember his last name. The. The alleged MS.13 gang leader. Let's. I don't know what exactly he was charged with. Let's say murder and drug trafficking. If he gets sent back and is let out of prison for some based on some corrupt deal back in El Salvador, how do we know he's not going to come right back here and continue murdering and drug dealing in the United States? He could sneak back in the same way he came in the first time. So yes, it's important that people who commit crimes here, they serve their sentence here if they're given one. There's very rare circumstances when people can say if they're convicted of a crime, they're serving prison sentence. A could say, I'm a citizen of whatever country I would like to go and finish the remainder of my prison time in that country. And under very rare circumstances, the government will agree to that. It's usually for like health reasons or something like that. But okay. But yeah, you should do it. Do the crime. You got to do the time here.

[Alison Gill]

That's interesting. Thank you for that. And that's a good question.

[Andy McCabe]

Yeah.

[Alison Gill]

Also I have a correction for us. Okay. Because. And this is a hat tip to Marcy Wheeler at Empty Wheel. Nice blog. You need to read.

[Andy McCabe]

Big up Marcy. A huge fan.

[Alison Gill]

Pam Bondi today said something about how we want to keep the Sinaloa cartel and out. And I'm like, well that's weird because you just let 17 of their family members in and you let 2 Ms. 13. You're about to let 2 Ms. 13 gang members go for their cooperation in the Abrego case. And she replied to me and said be careful there because it's not actually been shown that those two co conspirators and cooperating witnesses are actually members of Ms. 13. One of them, you know, obviously has been deported five times. They're both in prison for doing bad stuff. But it's actually never been confirmed that they are members of MS.13 and, and one of them actually says that Mr. Abrego has no connection to MS.13 whatsoever. So I, you know, I double check, triple check, talk to Adam. He's like, yeah, it's not anywhere that they're actual members of Ms. 13, these two cooperating witnesses. So I just wanted to. To put that out there and say thanks to Marcy for, for pointing that out.

[Andy McCabe]

Excellent. Well done. Thank you, Marcy. And thanks for bringing that up.

[Alison Gill]

So next time we, we didn't. Instead of saying, why would you let 2 Ms. 13 gang members go just to keep. To get one out of the country? It's why would you let two convicted felons who are here illegally?

[Andy McCabe]

Yeah. Which is totally fine. Right. That's no problem.

[Alison Gill]

The truth is still really bad.

[Andy McCabe]

Still a bad law.

[Alison Gill]

Or not the truth. But the correct, you know, the, the, the correct. The reference. Yeah, exactly. So. All right. One, one more question or.

[Andy McCabe]

Sure, why not? Jim writes in Dear Andy and ag. I'm looking for an answer to a question regarding the members of Congress in multiple states getting stonewalled in their efforts to visit ICE detention facilities. Given it is constitutional duty to conduct oversight and they have cause and the right to seek admission to conduct oversight, what can be done to remedy this? It seems as if they are not being allowed entry and I have rarely seen any other outcome.

[Alison Gill]

Ah, I know.

[Andy McCabe]

Yeah, go.

[Alison Gill]

The members can sue.

[Andy McCabe]

There you go.

[Alison Gill]

That's what they need to do. I don't think anyone has filed suit yet. I certainly hope that they do now. ICE is playing a lot of games. DHS is playing a lot of games saying, oh, this isn't actually technically a detention facility under the.

[Andy McCabe]

Yeah.

[Alison Gill]

Under the definition of the law. So you don't have a right to come in here. They've also issued new guidance. DHS saying you have to give us 72 hours notice if you want to come and inspect one of our ICE facilities, which is not in the law either.

[Andy McCabe]

Right.

[Alison Gill]

And so I am expecting that our members, some of our members will file a lawsuit. Can, you know, arguing against that 72 hour notice thing. And, and maybe they're. They're being barred from going and inspecting their facilities.

[Andy McCabe]

They should do that and then apply for a tro. Let's fight it out again. Let's go get. Bring it on. Bring it on.

[Alison Gill]

Yes. Make sure if you want to do it nationwide, that you bring a class action lawsuit, because that is what you have to do now if you want more than just the plaintiffs in the lawsuit to be covered by the lawsuit.

[Andy McCabe]

Full on, let's get it.

[Alison Gill]

So you would have them certify a class, any member of Congress. And then once that class is certified, you filed a class out, you file a class action suit. And that's what, by the way, the folks in the Birthright Citizenship, CASA and ICAP are doing. They've already filed their amended lawsuit. As a class action.

[Andy McCabe]

As a class action. Awesome.

[Alison Gill]

All right, that's the show for this week. Thank you all so much for listening. And again, thank you. Thank you so much for listening to the audio version. I know it was an hour and a half. I know it was long, and I know that because we recorded it, we missed an hour and a half. Yeah, we thought, oh, this is really 45 minutes. So thank you for listening. It's so important that we listen and pay attention to our whistleblowers. And again, I want to, to let you all know that MSW Media has partnered with Whistleblower Aid to raise money for wraparound protection for whistleblowers in this country. Right now, we've got investigative journalists and whistleblowers with the getting rid of the inspectors general, gutting the FOIA offices, getting rid of all you ms, the merit systems protection, like all of our guardrails are going away now. We can't get a nationwide, nationwide injunction. So whistleblowers are going to be more important than ever. And so we've partnered with them to, to, to raise money to help our whistleblowers, our very brave whistleblowers. So you can donate if you can, just like about buck or two. If everybody listening to the show donate a buck or two, we would smash our goal. It's whistleblower aid.org beans nice. So thank you so much for supporting our whistleblowers. And we're really going to be depending on them for real.

[Andy McCabe]

This is not going away. In first couple months of the administration, we got a long way to go in tracking all these cases like the one we were just talking about, the possible case of if Congress decides to stand up for its oversight authority and file a lawsuit. That's what, that's what pushing back looks like. That's one of the ways that we.

[Alison Gill]

Don'T have a lot of options now.

[Andy McCabe]

People who are concerned about what's happening to democracy, what's happening to things like due process and constitutional rights, this is the way that, this is the way that people should use the system to advance their perspectives, their legal arguments. So, yeah, I mean, if you think of it and you're feeling particularly energized, call your representative and let them know how you feel about that?

[Alison Gill]

Yeah, because at the very least, we need to get the truth out there. I know a lot of people are like, well, nothing's going to happen. No one's going to be held accountable. Pam Bondi's in charge. No one's going to get arrested. But sometimes it's not about the tackle and shackle. Sometimes it's about getting the truth out there to politically hurt your opponents that are bringing autocracy to the country, drawing.

[Andy McCabe]

A line in the sand that says, you know what? Every time you step over, we're going to bog you down in another time consuming lawsuit and maybe restraining orders and everything else. So that's the way the system is supposed to work. Not people taking things into their own hands, but people using the law to their advantage.

[Alison Gill]

So agreed. So anyway, thank you so much for listening to the Erez Revenue letter and thanks for listening to us. We'll be back in your ears next week. Andy, do you have any final thoughts?

[Andy McCabe]

No, I'm good. I think we covered it.

[Alison Gill]

All right, everybody, we'll see you next time. I'm Allison Gill.

[Andy McCabe]

And I'm Andy McCabe.

[Alison Gill]

Unjustified is written and executive produced by Allison Gill with additional research, 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 msw media.com.