Allison Gill (2:30)

He's just seriously like the smartest person I know.

Andy McCabe (2:32)

You got it.

Allison Gill (2:33)

So, Andy, let's start with the extraordinary opinion from Judge Boasberg. Now, you'll recall that Judge Boasberg issued a temporary restraining order, two of them on March 15. One of them was to turn the planes around as they were in the air.

Andy McCabe (2:46)

Yep.

Allison Gill (2:47)

The planes that were carrying people to the torture prison, Seacote and El Salvador without due process. And while the Supreme Court agreed that people are entitled to meaningful due process via habeas petitions, the Supreme Court vacated Judge Boasberg's orders. Now, I thought that meant that the contempt proceedings before Judge Boasberg for violating his orders were moot, right? Like, how can you. How can you be in contempt of an order that's been vacated? And I also learned this week that vacating his orders made civil contempt moot, but not criminal contempt. So let's talk about that.

Andy McCabe (3:23)

Yeah. So I think the best place to begin is with Judge Boasberg's memorandum opinion itself, which begins on the evening of Saturday, March 15, 2025. This court issued a written temporary restraining order barring the government from transferring certain individuals into foreign custody pursuant to the Alien Enemies Act. At the time the order issued, those individuals were on planes being flown overseas, having been spirited out of the United States by the government before they could vindicate their due process rights by contesting their removability in federal court, as the law requires. As this opinion will detail, the court ultimately determines that the government's actions on that day demonstrate a willful disregard for its order sufficient for the court to conclude that probable cause exists to find the government in criminal contempt. The court does not reach such conclusion lightly or hastily. Indeed, it has given defendants ample opportunity to rectify or explain their actions. None of their responses has been satisfactory.

Allison Gill (4:30)

Yeah. So, like a lot of people, when I saw these headlines, I asked myself how Judge Boasberg could find Trump and the Trump administration or the government in contempt of orders that had been vacated by the Supreme Court. And Judge Boseberg wastes no time addressing that very question on page two of his opinion. Yes, it. It. It's almost as though he were talking to me, Andy. It's pretty great, he says. One might nonetheless ask how this inquiry into compliance is able to proceed at all, given that the Supreme Court vacated the temporary restraining order after the events in question. That court's later determination that the temporary restraining order suffered from legal defect, however, does not excuse the government's violation. Instead, it is a foundational legal precept that every judicial order, quote, must be obeyed, no matter how erroneous it may be, until a court reverses it. That's from Walker v. City of Birmingham. If a party chooses to disobey the order rather than wait for it to be reversed through the judicial process, such disobedience is punishable as contempt, notwithstanding any later revealed deficiencies in the order. That foundational rule of law answers not just how this compliance inquiry can proceed. But why? It must, as this opinion will shortly explain at greater length the fact that the Supreme Court determined that this court's restraining order suffered from a venue defect does not affect, let alone moot, the compliance inquiry presently teed up here. So you have to follow the court's orders, even if they're overturned later.

Andy McCabe (6:10)

If you accept a reality in which litigants can just ignore an order of the court because they disagree with it, then we have no rule of law. Then it's no. Why go to court anyway? Just do what you want and hope that you'll be vindicated later by the highest court you can get in front of. That doesn't work for anyone ever. And so it doesn't surprise me that Boasberg certainly. But really, any federal judge would probably see this the same way.

Allison Gill (6:38)

Yeah.

Andy McCabe (6:39)

Okay. So the judge then addresses the government's defiant stonewalling in the matter. A filing submitted by defendants on Sunday afternoon failed to dispel any concerns that they had flouted the court's injunction. So the court set a hearing for Monday, March 17, to determine what had transpired over the weekend. The court expected that at the hearing, defendants might explain that despite appearances otherwise, none of the people on the first two flights was a member of the plaintiff class. Or at worst, defendants would admit to a grave mistake, explain how it transpired, and then detail plans to rectify it. The United States government took neither tact. Rather, what followed in the ensuing days was increasing obstructionism on the part of the government as it refused to answer basic questions about what had happened. Questions that were all ultimately in service of resolving one key fact. Whether members of the plaintiff class, I.e. non citizens, removable solely on the basis of the proclamation, were transferred out of US Custody after this court's injunction preventing their deportation.

Allison Gill (7:49)

Yep. And so that's very specific. He has to tee it up that way because, you know, one of the standards, one of the tests is that it has to be a clear order, and there has to be definite defiance of it, and it has to be willful. Right?

Andy McCabe (8:04)

Yeah. He's also trying to cut the government off from straying into other arguments that are not relevant to the question of whether or not they obeyed the order. We're not here talking about the legality of the Alien Enemies act or any of that rest of that stuff, all of which hopefully will get addressed someday. This is just about, I told you what to do. You did the opposite. Now what happens?

Allison Gill (8:27)

Yeah, and that's going to be the same for abrego Garcia's case, Judge C's, and we'll get to that later. Boberg gets into the weeds a little bit about why he can open a contempt proceeding after the orders have been vacated. He says. But hold on. Defendants protest. I love this. If the Supreme Court has since vacated the TRO's, how can contempt lie? The Supreme Court long ago answered that question. It is firmly settled that a court order must be obeyed until it is reversed for error by the issuing court or a higher one. That in turn means that a party may be punished for criminal contempt for disobedience of an order later set aside on appeal for being defective. If a party believes that a court order suffers from legal deficiencies, it it therefore, quote, must have the injunction modified or vacated. It cannot simply ignore it. The so called collateral bar rule enforces that principle. It provides that if a party is charged with contempt for disobeying a court order, it cannot raise the legal invalidity of the order as a defense.

Andy McCabe (9:36)

The judge then outlines the next steps. First, before initiating any criminal contempt proceedings, courts typically allow the contumacious party an opportunity to purge its contempt, that is to remedy its violation by voluntarily obeying the court order. The most obvious way for defendants to do so here is by asserting custody of the individuals who were removed in violation of the court's class wide tro, so that they might avail themselves of their right to challenge their removability through a habeas proceeding. Per the terms of the tro, the government would not need to release any of those individuals, nor would it need to transport them back to the homeland.

Allison Gill (10:19)

And that's interesting. Is he saying there that you can send folks down there to give them due process?

Andy McCabe (10:25)

You know, it's not clear from this order exactly what he's thinking there. As a practical matter, I'm not sure that this would work any other way than to bring them back and detain them here. But again, you know, it's. I think he's just kind of like saying, hey, there's no rule that says you have to do it that way. If you want to come forward with a plan that you're going to ship all the lawyers, let's hear it.

Allison Gill (10:51)

Yeah.

Andy McCabe (10:51)

And the judges and everybody else to El Salvador to do it there, then, you know, bring it.

Allison Gill (10:58)

But yeah, be creative in your contempt purge. You know, just let us know what your plans are and I'll tell you if that purges your contempt.

Andy McCabe (11:05)

That's right.

Allison Gill (11:05)

And we do that before we start criminal contempt proceedings.

Andy McCabe (11:09)

I mean, they could Theoretically, they could bring them to Gitmo. Like, I'm not advocating for that to be clear, but there's. They could come up with different ways to accomplish that. That's all I'm saying.

Allison Gill (11:21)

Yeah, right, true. So that's the first thing. Second step in the event that the defendants do not choose to purge their contempt. And Andy, let's be honest, I'm pretty sure that's how this is going to go. No, we're. No, we're not going to. You can't make us state secrets prevent it. Whatever, you know, whatever. So should the defendants choose not to purge their contempt, the court will proceed to identify the individuals responsible for the contumacious conduct by determining whose specific act or omission caused the non compliance. So he's like, next up, I have hearings. We're going to find out who is responsible. He'll do that by asking for declarations, and if that's not sufficient, he'll hold hearings and require testimony or depositions under oath. And then third, the court would refer the case to the Department of Justice to prosecute criminal contempt. So this is a lot like when Congress referred Pete Navarro and Steve Bannon to the Department of Justice to prosecute criminal contempt when they failed to come into Congress per. Per a subpoena. But again, do we really think Pam Bondi is going to prosecute the Trump administration for criminal contempt? No way. So what happens then, Andy?

Andy McCabe (12:37)

Yeah, so that part of this, of this errand falls flat there, you know, in the. I was going to say in the same way. It's not exactly the same, but if you think back to those examples you just talked about, the, the Gen 6 related contempt referrals, which I think there were four total. I think two of them went forward and two of them didn't. Right. So DOJ has the prosecutorial discretion to decide whether or not it's worth bringing a case.

Allison Gill (13:07)

Yeah, but that's. In normal times.

Andy McCabe (13:09)

In normal times now, they still have that same, they still have that same prosecutorial discretion. Right. They can say, no, we decide not to. And there's really not much that the court or anyone else can do about that.

Allison Gill (13:22)

Right, True. But there's a third step.

Andy McCabe (13:26)

Yes. So if the government declines or the, quote, interest of justice requires, the court will appoint another attorney to prosecute the contempt.

Allison Gill (13:38)

Hmm.

Andy McCabe (13:39)

Okay.

Allison Gill (13:39)

So this is what they were looking for in the Eric Adams case. Somebody came out and said, well, you know, if, if Judge Dale Ho decides that he doesn't want to dismiss these charges under Rule 48A, can't he just appoint a prosecutor to prosecute the case? And I looked into it, and I looked into Young, and, you know, it said, no, it's only for contempt, which is what we have here.

Andy McCabe (14:05)

Right.

Allison Gill (14:06)

And there was a recent case in 2023, the case is called Don Zinger. And, you know, basically this guy, a court, appointed a special prosecutor to prosecute criminal contempt. That prosecutor found him in criminal contempt, and he was sentenced by that special prosecutor that was appointed by the court, not the doj. And of course, he appealed that, and the Supreme Court denied cert. Now, I was like, well, if they denied cert, maybe that means that in this case they'll be amenable to a special prosecutor. But the reason they denied cert in Donzinger, Andy, was for procedural. There were a lot of procedural issues with the case, not so much on the merits or the constitutionality of the court appointing a special prosecutor. And in multiple dissents in lots of occasions and in some speeches and op eds and writings, at least five of these, you know, conservative in quotes, Supreme Court justices are against a special prosecutor being appointed by the court. So I'm not sure that this would get past the Supreme Court. But Judge Boasberg is going to go forward with this anyway.

Andy McCabe (15:19)

Yeah, he's amazing. I mean, the guy's got us. You know, he's got steel in his spine for sure. But it is hard for me to understand how that actually works in his favor. And maybe, you know, this from the research that you did. So the prosecutor essentially conducts an investigation and makes his own determination that contempt has taken place, and then it goes back in front of the judge. In this case, it would be Boasberg to enter a conviction and punishment. Is there no actual trial for the subject of the contempt investigation or prosecution?

Allison Gill (16:00)

No. Right. I don't think there's a jury trial.

Andy McCabe (16:02)

Yeah, there's just. It goes back to the findings, I guess, of the special prosecutor. Go back to the judge, and then he.

Allison Gill (16:08)

The courts have an inherent ability to find people in criminal contempt, and they have to do it by appointing someone else to. To prosecute it.

Andy McCabe (16:17)

Right. Yeah. It's kind of fascinating. Never heard of this before.

Allison Gill (16:21)

Yeah, it's super rare.

Andy McCabe (16:23)

But.

Allison Gill (16:23)

But, you know, one of the lawyers in the Donzinger case was Steve Vladic, so we'll probably have him back on. And he's written this up in one of his recent things on one. First is to. Because he was arguing that it's unconstitutional, but Supreme Court denied them cert. Again, it was on procedural grounds, not Necessarily the merits of the constitutionality of the appointment of a special prosecutor by the court. But, you know, Thomas, Alito, Kavanaugh, Gorsuch, they all want this to not be a thing.

Andy McCabe (16:57)

Yeah. It's hard for me to imagine them going along with this, treating this as, as normal. And it's not any litigant. Right. It's the, it's the federal government. It's a contempt site citing against the conviction, against the federal government.

Allison Gill (17:13)

Yeah. And. And it would be against whoever Bozberg identifies as the guilty parties. It's not going to be Donald Trump. It's not going to be the president. It's probably not even going to be, you know, Christine Noem or Marco Rubio. It's probably going to be, you know, somebody down the ladder a little bit who, you know, who failed to have that communication to their lawyers in court, you know, who, who was responsible at Department of Homeland Security for that. So, you know, we'll see. But we are going to cover this robustly. These contempt proceedings, or we're not in contempt proceedings yet, but this case.

Andy McCabe (17:50)

Yeah.

Allison Gill (17:51)

Here on Unjustified. Also, Trump appealed this Boasberg order, but it's not appealable. This order is not appealable, so. Because it's not a finding of contempt.

Andy McCabe (18:05)

Right.

Allison Gill (18:06)

Yeah. So something else happened. Judge Boasberg asked the aclu, as you know, once, once the Supreme Court vacated his temporary restraining orders, the ones we're talking about, about turn the planes around. He said, all right, well, before I close this, there's still preliminary injunction stuff going on, which is the step, the next step from a temporary restraining order. And so he said, aclu, if you have anything you want to file with regard to the preliminary injunction proceedings, you have until April 16th. Then on April 16th, the ACLU did file their pleading a habeas petition. Right. Because that's what the Supreme Court says it has to be. And for anybody who is being detained, you know, for, for habeas petitions for people detained in the United States, you have to file in, in the jurisdiction where they're being detained.

Andy McCabe (18:50)

Correct.

Allison Gill (18:51)

But if these people are being detained overseas, like in the Saudi case or the Guantanamo cases that we talked about with Steve Vladek last week, then the proper venue is D.C. that is correct. They filed. And, and this, this was still an open docket with Bozberg. And so they said that plaintiffs seek a temporary restraining order directing the government to provide 30 days notice before seeking to remove any class member under the AEA and to serve that order on both the class member and undersigned counsel. This relief is urgent because the government has already indicated that notwithstanding the Supreme Court's ruling, that notice must be sufficient to allow individuals an opportunity to seek habeas review. It may provide designated individuals with as little as 24 hours notice, making it virtually impossible for most class members to file habeas petitions. Plaintiffs will amend their complaint to reinstate their habeas claim to seek relief for the class of individuals who were removed to El Salvador under this AEA on March 15th as potentially a class of individuals held in US criminal custody. And that last part is important because, you know, he, they're talking about the original class that was defined in the, in the first restraining order hearings, you know, which is anyone over 14 that's being told they're going to be removed under the Alien Enemies Act Proclamation. But they said as well as potentially a class of individuals held in U.S. criminal custody. And I think that's interesting because, you know, Supreme Court says you have to file the habeas petitions in the jurisdiction where they're being detained. And right now, this is sort of breaking news. As like I said, as we're recording this, there are people, hundreds of people, who have been identified in a notice written in English that they are, have been identified as members of Trend Aragua and are being immediately removed under the Alien Enemies Act. And so that's why just today, on Friday, as we record this, two days after this particular notice was filed, they have notified Judge Boasberg there are people in imminent danger of being deported under the Alien Enemies act who have been given no due process. They've been given no meaningful due process, no sufficient notice. And so can you hurry up on this class thing and restraining order thing? Because they're literally, they've been staging people all week. I've been tracking the flights flying from Abilene up near Bluebonnet down to Harlingen, which is this, you know, where they remove people to go to El Salvador via Honduras. And they've been bringing people there all week. And they just on Friday handed them a notice and started putting them on buses. And so I imagine we might have another emergency hearing, maybe even today, certainly by Saturday, about this particular group of people that are being unlawfully removed by the Trump administration.

Andy McCabe (21:49)

It's amazing. Every turn of the screw here, the government just ups the ante, doubles down, triples down. We're going. You can't stop us. It's just on. It's incredibly frightening. And they are pushing us step by step by step closer to just a, a complete constitutional crisis.

Allison Gill (22:08)

Agreed. So, like I said, we'll be following this case in its entirety here on Unjustified. So we hope you'll subscribe to the podcast and tell everybody if you want all the information on the Bozberg criminal contempt proceedings, have them subscribe to the Unjustified podcast. It's free, so. And you can do that wherever you get your podcasts. And next up, we're going to shift gears. Andy. We're going to talk about the Abrego Garcia case. That's before Judge Sinis, but we have to take a quick break first, so stick around. We'll be right back. All right, everybody, welcome back. Let's pivot to Abrego Garcia. This is the Maryland father who the government admitted they unlawfully removed to El Salvador by, you know, through administrative error, by mistake. You'll recall the Supreme Court kind of unanimously denied Trump's motion for a stay and said that the lower court can direct the government to facilitate, not effectuate, but facilitate the return of Abrego Garcia. Judge sinis then on April 10th directed the government to answer three questions. She didn't say, you know, she was like you, we need to facilitate his return immediately per the Supreme Court. So in that light, I have three. Here's my order. I need you to Answer by Friday, April 11 at 9:30am where is Abrego Garcia? What steps are you taking to facilitate his return and what additional steps the government is going to take to facilitate his return. Now, the Trump administration then missed that deadline. She extended it a couple hours. They missed that deadline. Then when they finally got to the hearing, they didn't give them any information. They fell woefully short of complying with the order. They failed to produce anyone with knowledge. And though they did eventually confirm he was in custody at Seacote, they refused to list any steps they're taking to facilitate his return, despite the Supreme Court order. She actually ordered the government to give daily updates at 5:00pm Eastern, Saturday, Sunday, Monday, Tuesday, until the hearing on Tuesday. And they blew past all those deadlines, except on Sunday. They were on time, but none of their updates answered her three questions. They only answered the first one. So again, woefully short of her court orders. And so she held that hearing Tuesday. And in the matter, and the matter here is a motion for expedited discovery. There's a separate motion for contempt or for, you know, for show cause.

Andy McCabe (24:30)

Right.

Allison Gill (24:31)

But this was the motion for expedited discovery, and it was filed by Abrego Garcia's lawyers. And you'll recall Andy, that you and I had hoped she would order testimony from those with knowledge during that hearing. And that's pretty much what she did.

Andy McCabe (24:44)

Yeah, for sure. So the following is from her order that came after the hearing. She said, Abrego Garcia seeks discovery as to the terms of any agreement, arrangement, or understanding regarding the government's use of CECOT to house US Deportees, his current physical location and custodial status, and what steps, if any, the government has taken and will take to facilitate Abrego Garcia's return to the United States. Defendants oppose the request, principally contending that the proposed relief is, quote, not consistent with the Supreme Court's order or the well established meaning of facilitating returns in immigration law and harbors fundamental constitutional infirmities. For the following reasons, the court grants the motion for expedited discovery as directed below. The court defers its decision on the remaining requests for relief.

Allison Gill (25:37)

Yeah, and so when she says she defers its decision on the remaining requests for relief, she's talking about the show cause order to kick off contempt proceedings. Because basically she's like, we're going to do this discovery, then I'm going to consider whether you defied my orders. And that makes sense. Right? Let's get the information first.

Andy McCabe (25:53)

Gives her a chance to build a record upon which to base a finding of contempt, which would make it much stronger on appeal, which is inevitable.

Allison Gill (26:02)

Yeah, exactly. So her order goes on to say, it is undisputed that Abrego Garcia is entitled to injunctive relief for the reasons previously discussed and affirmed without exception as to the scope of such relief. The Supreme Court of the United States unanimously affirmed that, quote, the district court's 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. To that end, the Supreme Court forewarned the government that they, quote, should be prepared to share what it can concerning the steps it has taken and the prospect of further steps. And the what it can is the problem here because the Trump administration is saying we can't. And the. With due regard and deference for, you know, the. The Trump's ability to conduct foreign affairs. And that's again, their argument.

Andy McCabe (27:01)

I read that a little bit differently. Like the Supreme Court part, not what the government is saying. The Supreme Court forewarned the government that they should be prepared to share what it can concerning the steps it has taken.

Allison Gill (27:14)

Uh huh, uh huh.

Andy McCabe (27:15)

The what it can refers to, like if these are confidential diplomatic discussions and you're going to, you don't want to share that because it's right, it's classified, or might hurt the relationship of the part, whatever, fine. That's within your province. But there's no question that they have to take steps. And this infuriated me this week as people were reporting on this order and the government's response. It wasn't until, and I know we're going to cover this in a few minutes, the Judge Wilkinson's response to their appeal. This piece of the Supreme Court's order completely undermines the government's position in front of the district court judge. There's no question that their order compels them to take active steps to bring the guy back. They're saying in court, like I see.

Allison Gill (28:08)

What you're saying, not what it can do, it's what it can say about what it's done.

Andy McCabe (28:12)

Right. Facilitate. Their argument is facilitate just means if the guy's coming back, we need to pick him up at the airport or we need to remove any dopamine, domestic obstacles to his return. No, what the court said is you must try to get him back and then you must tell us whatever you can share about the steps you have taken. Meaning you have to take steps.

Allison Gill (28:34)

And honestly, step one is to ask.

Andy McCabe (28:37)

Of course.

Allison Gill (28:38)

Right. And they, and I'm sure, you know, obviously Bukele is doing what Trump is telling him to do.

Andy McCabe (28:45)

Yeah.

Allison Gill (28:46)

I mean, Bukele is a, as he's been referred to a lesser dictator.

Andy McCabe (28:50)

Yeah.

Allison Gill (28:51)

Than Donald Trump. So he's doing whatever Donald Trump wants, of course, which is to say, no, he's in sovereign custody. But then he said, the vice president said, when Senator Van Hollen was down there trying to get in, that the US Is paying them to hold these people. So it's, it's all confirmed.

Andy McCabe (29:08)

There actually is a deal underlying that it's been reported on for it. It's a one year deal. They're being paid some sum of, I don't remember, $6 million. And they agreed to hold these people for. And at the end of the year, they go back to the United States and say, what do you want us to do with them now? And presumably that would mean pay us again and we'll keep holding them or we'll send them back. Whatever you want. Whatever you want being important here. Because if the government called them today and said, send us this one guy back, he'd be on a plane in an hour.

Allison Gill (29:38)

Of course. And Asha Rangapa, you know, posits that there might be more to this agreement, which is why the Trump administration isn't handing it over.

Andy McCabe (29:48)

Yeah, of course.

Allison Gill (29:49)

Which might be something like the Trump administration has to allow Bukele to allow Ms. 13 to operate in El Salvador a little bit because, you know, they're kind of helping him out.

Andy McCabe (30:03)

So, yeah, who knows what, what else is going on here? I mean, he is allegedly the guy that was striking deals with MS.13 early in his election.

Allison Gill (30:12)

The Trump administration doesn't want people to know that he's letting ms.13 off the hook in another country or something.

Andy McCabe (30:17)

Yeah. So, okay, so here's the details of the discovery.

Allison Gill (30:21)

Oh, this is good.

Andy McCabe (30:22)

Yeah. It says by no later than Wednesday, April 16, 2025 at 5:00pm and pursuant to the Federal Rules of Civil Procedure 26d1, 33 and 34, plaintiffs may propound upon defendants up to 15 interrogatories and 15 requests for production of documents focused on the above areas of inquiry. Defendants shall serve their answers and responses to plaintiffs by no later than Monday, April 21, 2025 at 5:00pm tomorrow. Plaintiffs may also, by no later than Wednesday, April 16, 2025, 5:00pm notice the depositions of the following affiants, Robert L. Cerna, Evan Katz, Michael Kozak and Joseph Mazzara. Any such depositions must be completed by Wednesday, April 23, 2025 or 5pm yeah.

Allison Gill (31:13)

So those are the four people that provided declarations, affidavits to the court on behalf of the government. And basically one of them said, yeah, Brago Garcia is in El Salvador. And the rest of them said, I don't have any information. There's no, there's no other information.

Andy McCabe (31:27)

Duh.

Allison Gill (31:28)

And then the final one was we, we say that if he does come back, we're just going to deport him to a third party country. Which is legal. That's actually legal. He was only not allowed to be deported to El Salvador because of a withholding order. That's the place they sent him.

Andy McCabe (31:49)

But it's legal, but only after he's had some type of due process. And that's the point here. Like you say, oh, we're not going to keep him. Well, not necessarily, because the whole idea is you have to bring him back and put him in front of a judge and give him a lawyer and give him an opportunity to challenge this process. They also say he's a terrorist member of MS.13. They present zero compelling evidence on that fact.

Allison Gill (32:18)

I know. Parlass double hearsay from a guy who was indicted for misconduct.

Andy McCabe (32:22)

Yeah, you know what? You think he's an Ms. 13 member. Bring him back and put him on trial here in the United States of America. Put up or shut up. Indict him, give him an attorney, hold him in federal custody, and let him defend himself in federal court. And if he's convicted, then there you go. You were right all along. That's how it works in a democracy.

Allison Gill (32:45)

Yeah. And during the hearing, which we'll get to in a second, when Drew Ensign said we did give you information, we said that if he was returned, that we would deport him to another country. And she's like, is he back?

Andy McCabe (32:58)

Yeah.

Allison Gill (32:59)

Like, no, no. Great. All I'm asking for is the steps of what you're doing to return him. And by the way, that response doesn't answer any of my three questions.

Andy McCabe (33:09)

Right.

Allison Gill (33:09)

That's not a step to effectuate his return. That is what you would do if he was returned. So she goes on to, oh, and by the way, in addition to those four people, she's allowing two other depositions up to the plaintiffs to decide whom, if needed. So that's why I'm like, maybe we'll get Kristi Noem in there. Or, you know, something like that.

Andy McCabe (33:31)

Fingers crossed.

Allison Gill (33:33)

By no later than Wednesday, April 23, plaintiffs may move for leave of court to conduct up to two additional depositions of individuals with knowledge of the authority to testify regarding the matters identified above. That's what I just said. Defendant shall respond by Thursday, April 24. You have a day to respond to those deposition requests. And if the court grants that permission for those depositions, it will set a deadline by which the depositions must be completed. To streamline review of any anticipated objections, the court will file a separate letter regarding discovery disputes. The parties are to follow the procedures described in that letter for any disputes that cannot be resolved by good faith. Meet and confer at the conclusion of expedited discovery. By no later than Monday, April 28, plaintiffs shall supplement their motion for requested relief. That means you want to hold them in contempt, you want to file sanctions. Defendants shall respond. Trump regime shall respond by no later than Wednesday, April 30th. You have two days to respond to that. The court will hold in advance the plaintiff's remaining request for relief until the completion of the expedited discovery and supplemental briefing. That said, should the defendants fail or refuse to engage in the above described discovery in good faith, plaintiffs are free to seek separate sanctions on an expedited basis. Meaning if, if, if we get all the discovery and depositions, then you refile your sanctions and complaints if they Refuse to do anything. You don't have to wait till April 28 to file additional sancts, you know, to seek separate sanctions on an expedited basis. Like, she's sort of anticipating that this is not going to go the way that the government's probably not going to play ball here. But this is fast. I know a lot of people are like, two weeks. Oh, my God. And I know it sucks because Judge Sinis has said every day that Abrego Garcia is in this prison in El Salvador. He is being irreparably harmed.

Andy McCabe (35:33)

Yeah.

Allison Gill (35:34)

And she knows that. And. But discovery in a regular proceeding, Andy, depositions, discovery documents, interrogatories can take a year.

Andy McCabe (35:42)

Oh, my God. Yeah. And. And, well, you don't do that quite so much in criminal matters, but in civil matters, it takes forever. Years and years, which is one of the reasons why people are hesitant to. And in immigration matters, it takes forever. I mean, immigration proceedings take a long time.

Allison Gill (35:59)

Two weeks. And I'm also allowing the plaintiffs to file for additional sanctions and relief if the government doesn't play ball in my two week window.

Andy McCabe (36:08)

Yeah.

Allison Gill (36:09)

Yeah, that's fast.

Andy McCabe (36:10)

We'll see. We'll see.

Allison Gill (36:13)

Yeah. So the hearing was pretty bonkers. I remember she said, we're going to move. There will be no tolerance for gamesmanship or grandstanding. There are no business hours while we do this. Cancel vacations, cancel appointments. I'm usually pretty lax about that, things like that in my court, but not this time. So I expect all hands on deck. I thought that was when she was like, we're not closed. We're doing this 247 until it's done. And there's not going to be any exceptions. So don't come to me and be like, I have my daughter's wedding in the Poconos. Or I, you know. Nope.

Andy McCabe (36:46)

It's. It's spring break. Not here. Not in my court.

Allison Gill (36:49)

Not here. Great.

Andy McCabe (36:52)

At sea cot. So it's not spring break here either.

Allison Gill (36:55)

Yeah, pretty much. And this is her kind of, I think, her implicit understanding of what he's going through as they're, as the government is stonewalling, you know.

Andy McCabe (37:04)

Yeah, for sure. For sure. So Ensign, of course, said he would appeal. And Sinise said the Supreme Court has spoken. There is, in my view, nothing to appeal. So in my view, we do discovery.

Allison Gill (37:16)

Yeah. He wanted to appeal her order for discovery. He was like, we need briefing on this. We need to be able to appeal. She's like, no, that's not how it goes.

Andy McCabe (37:24)

Honestly, I don't think anyone takes that Appeal. I think the circuit court would just say no, and I would expect the Supreme Court to do the same thing. They've already told her to do exactly what she's doing.

Allison Gill (37:35)

Mm. So, yeah. And she's not. Go ahead if you want, but we're going forward. Ensign also argued that she doesn't have the authority to order discovery without briefing. And she's like, I'm not doing that. I'm not. I'm not. We're not doing this. There's so much daylight between that and what's happening here. She said, and Ensign wanted to define facilitate and all this. And. And Cini says we aren't even there yet. We're just trying to get to the bottom of why you didn't comply with my order directing the government to share the location of Abrego Garcia, what steps you're taking to facilitate his return and what steps you'll take in the future. We aren't even to the point of defining facilitator, effectuate or whatever.

Andy McCabe (38:11)

Yeah, it's like the clapback.

Allison Gill (38:13)

Yeah.

Andy McCabe (38:14)

Stop it. Stop it. We're over here now. We're doing this thing.

Allison Gill (38:17)

Yeah, exactly. So, naturally, Trump went to the Fourth Circuit Court of Appeals and asked them to stay Judge Sinas's order. Now, not her discovery order, not this one. They wanted to stay her initial order, asking the government to answer the three questions. Right, Right. And honestly, I was amazed at the 4th Circuit's response. It's easily one of the best opinions I've ever read. It's so good. And we'll be right back with the details.

Andy McCabe (38:52)

Welcome back. Okay, Allison, as you previously mentioned, the government appealed Judge Cenas's order to the Fourth Circuit Court of Appeals, asking for them to stay her order or issue a writ of mandamus. And Judge J. Harvey Wilkinson III responded with a scorcher of an opinion. Now, keep in mind, Judge Wilkinson is a conservative jurist appointed by Ronald Reagan in 1984.

Allison Gill (39:20)

Oh. Or Orwell.

Andy McCabe (39:21)

Yeah, I was in high school then. That's how long ago that was. And he's been floated by several Republican presidents to serve on the Supreme Court. So this guy's no joke. From 1972 to 1973, Wilkinson served as a law clerk to newly confirmed justice Powell. In 2003, he wrote the majority opinion upholding the right of the United States government to detain Yasser S.M. hamdi indefinitely without access to counsel or a court.

Allison Gill (39:50)

That's interesting.

Andy McCabe (39:51)

Yeah, I mean, that's one of a long line of very complicated habeas cases that we're not going to. I make my students suffer through those, but I'm not going to do it here on the pod, but.

Allison Gill (40:05)

Oh, thank you.

Andy McCabe (40:06)

Let's just leave it at Wilkinson is not like the ACLU's preferred jurist. I mean, he's a tough guy and he's got some very strong views, very conservative views. So you might imagine this opinion is going to go in one particular direction, but it does not.

Allison Gill (40:24)

Yeah, no, it's three nothing also for the panel. But he writes the opinion and it starts like this. Upon review of the government's motion. That's the government's motion, by the way, to stay Judge Sinis's order.

Andy McCabe (40:38)

Yes.

Allison Gill (40:38)

The court denies the motion for an emergency stay pending appeal and for a writ of mandamus. The relief the government is requesting is both extraordinary and premature. While we fully respect the executive's robust assertion of its Article 2 powers, we shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court's recent decision.

Andy McCabe (41:02)

He goes on to say, it is difficult in some cases to get to the very heart of the matter, but in this case it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence, that because it has rid itself of custody that there is nothing that can be done. This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear. The government asserts that Abrego Garcia is a terrorist and a member of MS.13. Perhaps, but perhaps not. Regardless, he's still entitled to due process. If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order. So this is really important here because in the all the long fact pattern that we've been dealing with, people might have forgotten that Abrico Garcia came over here as a young man because he was allegedly being harassed by a not Ms. 13, but a different gang in El Salvador. He had a brother who already lived here, so his parents sent him to live with his brother and he was here illegally. Eventually that catches up with him and he ends up in detention. And it's at that point that he files a claim for asylum. He's ultimately granted asylum and there's a judge puts a order in place that bars the government from ever sending him back to El Salvador. So he has a judge's order that Prohibits exactly what the government did in this case.

Allison Gill (42:50)

Yeah. It's not just a withholding for deportation to anywhere, it's withholding for deportation specifically to El Salvador.

Andy McCabe (42:57)

Exactly. They could have deported him to any other country that was willing to take him and he wouldn't have the same claim to stand on. But here he was really in a pretty good spot. Until he wasn't.

Allison Gill (43:08)

Yeah. And the judge brings up a great point. Even if Abreco Garcia, and this isn't the case, but let's say he's Ms. 13, he's committed a million crimes. He's murdered six people. He's the never paid ties, the most terrible person you've ever heard in the world. He still gets due process, of course. And so when you see people like Stephen Miller or Christine Noem or Homan, the immigration czar or whatever, saying, why do you want to defend this terrible guy? And it's like, that's. The Constitution specifically has these parts of it that say, we need to give due process to terrible guys.

Andy McCabe (43:49)

This is the government that routinely says, oh, we only speak through indictments. We don't prejudge people. La la la la. Instead, they're out there crucifying this guy in the media every single day, calling him a terrorist and an MS.13 member, that yet they've not produced a single compelling piece of evidence to prove that. If that's your position, bring him back, which you must do as the Supreme Court has ordered and ignite him, put it up, indict him, and put him on trial and convict him.

Allison Gill (44:18)

And for how long did I say Donald Trump was guilty of all of the crimes that he committed on January 6th? And everyone was like, it's innocent. They're innocent. I'm innocent until proven guilty. So is Abrego Garcia.

Andy McCabe (44:29)

Yeah, yeah.

Allison Gill (44:30)

That's not true for only US Citizens. It's true for anyone who's in the United States.

Andy McCabe (44:35)

That system should work for him. And if it doesn't, it may not work for any of the rest of us.

Allison Gill (44:42)

Then we are in a constitutional crisis.

Andy McCabe (44:44)

Yeah.

Allison Gill (44:44)

All right. Here's more from his opinion. The Executive is inherently focused upon ends. The judiciary, much more so upon means. Ends are bestowed on the Executive by electoral outcomes. Means are entrusted to all of government, but most especially to the judiciary. By the Constitution itself, the basic differences between the branches mandate a serious effort at mutual respect. The respect that courts must accord the Executive must be reciprocated by the Executive's respect for the courts. Too often today, this has not been the case, as calls for impeachment of judges, for decisions the executive disfavors and exhortations to disregard court orders sadly illustrate. And this is probably my favorite paragraph. Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around. The judiciary will lose much from the constant intimations of its illegitimacy, to which, by dent of custom and detachment, we can only sparingly reply. And what he's saying there is the courts are going to lose a lot of trust because the administration is attacking it, and we can't. Because of the law, we can't say much about it.

Andy McCabe (46:00)

Can I just pause you for one second here to point out maybe this doesn't matter to anyone else. That sentence, which is so impeccably written, totally characterizes my former agency. Like they have been just. They have been eroded by. By. By dent of these corrosive attacks consistently over the last eight years. And by dent of custom and detachment, they do not reply. And, yeah, you can see the damage that it's done. Anyway, sorry for that.

Allison Gill (46:32)

Yeah, that's got to hit home for you, the FBI. The executive will lose much from a public perception of its lawlessness and all of its attendant contagions. So great, the executive may succeed for a time in weakening the courts, but over time, history will script the tragic gap between what was and all that might have been, and Law in Time will sign its epitaph. That gives me chills.

Andy McCabe (47:02)

Yeah, totally. I mean, it's. It's really remarkable. This guy really thought this over, and he wrote something really significant.

Allison Gill (47:13)

It's like. Something like me. I'd be like, you keep yelling at us, we keep yelling at you. The rule of law is going to die.

Andy McCabe (47:19)

Yeah. And he's managed to rise above this. No, you're wrong. Which is where we end up so much of the time lately, myself included. Okay. So he goes on to say, it is, as we have noted, all too possible to see in this case an incipient crisis. But it may present an opportunity as well. We yet cling to the hope that it is not naive to believe our good brethren in the executive branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.

Allison Gill (47:58)

Ah. You have time to turn this around. Trump administration.

Andy McCabe (48:01)

Yeah, I mean, he's really appealing to kind of the better angels, you know?

Allison Gill (48:06)

Yeah, I don't know that might be a little naive, though.

Andy McCabe (48:09)

Yeah, we're gonna find out. It's that will be sad.

Allison Gill (48:12)

That's why he says we yet cling to the hope that it is not naive. We're a white knuckling hope right now. But wow. So well written. I've put this all together in a, in a substack post@melosherote.com this is one of the coolest things I've read from the court. It's just his language. He's by the way, he writes romance novels in his spare time, this judge.

Andy McCabe (48:37)

I would not have guessed that.

Allison Gill (48:38)

But I'm not going to read them. But, you know, what are you doing? I'm reading a bawdy romance novel written by a Reagan appointee general judge. It just doesn't but there's a lot.

Andy McCabe (48:54)

Of references, references to Bloomers and things.

Allison Gill (48:56)

Like, yeah, he's a good, he's a really good writer and I really liked reading this. All right. We have a few more news stories to get to, but we, and, and then of course, we'll get to some listener questions. There's a link in the show notes if you'd like to submit a question for us. And we'll be right back with it. Stick around. All right, everybody, welcome back. We have a few quick stories of interest from the past week before we get to listener questions. First up from Scott McFarland, longtime career justice Department spokesman Peter Carr, who I've emailed a zillion times, has been fired by the Trump administration. Carr had a very long track record of experience and service in the Department of justice and the U.S. attorney Office of the Eastern District of Virginia. And CAR's portfolio included special counsel Jack Smith, which is why I sent him many an email.

Andy McCabe (49:53)

Yes. Yeah. I mean, sad. It's just the, the hemorrhage of experience and, and integrity continues at toj.

Allison Gill (50:03)

So do you think is going to be the new spokesperson for the Department of Justice, Ronald McDonald.

Andy McCabe (50:07)

Yeah, some I, if Caroline leave it Levitt, whatever her name is, is any is any indication it's going to be somebody who is maybe they'll bring Jenna Ellison. Not very good.

Allison Gill (50:18)

Yeah, bring her back.

Andy McCabe (50:19)

All right. Next, in a court exhibit in the civil lawsuit against Pete Hegseth's signal gate debacle, a chief data officer at the CIA declared the following. I understand that the director's personal signal account was reviewed. Now hold on a second. Director. Now we're referring to John Radcliffe, the director of the CIA. So he says, I understand the director's personal signal account was reviewed and a screenshot of the Signal chat at issue is captured from the Director's account on 31st March 2025 and transferred to agency record systems the same day. I understand that the screenshot reflects the information available at the time the screenshot was captured, which I characterized as, quote, residual administrative content in my initial declaration. I use that terminology because the screenshot does not include substantive messages from the signal chat. Rather, it captures the name of the chat, which is Houthi PC Small Group, Ay ay yai. And reflects administrative notifications from 26 March and 28 March relating to changes in participants administrative settings in this group chat, such as profile names and message settings.

Allison Gill (51:33)

So he changed his name?

Andy McCabe (51:35)

Yeah, it's nothing. It's a bunch of bunk. It's like so and so has changed their message disappearing time, you know, stuff the messages that you get from the platform as other people like change their interaction with you on the group chat.

Allison Gill (51:49)

And there was an order to preserve all Signal Chat messages during that time and they weren't there.

Andy McCabe (51:54)

What's it, you know, what's a court order anyway, really?

Allison Gill (51:57)

Right. To the director of the CIA.

Andy McCabe (51:59)

Yeah.

Allison Gill (52:00)

Anyway, so, yeah, those were all either disappearing messages or there was nothing there. It was in violation of something, either the Federal Records act or obstruction of. There's so many crimes here, but you know, these are never going to be.

Andy McCabe (52:15)

It's like basically the Federal Records act requires me to send these, these messages I've been doing on Sal Signal. Okay, I'll just send you my grocery list instead. Yeah, this is the same thing. Like this is not what is required under this under the law, but whatever.

Allison Gill (52:30)

Yeah. All right. From the Wall Street Journal. This is kind of going back. It starts back in time here when a judge expressed outrage that the first Trump administration had spirited away a mother and daughter in the middle of a hearing on their asylum claims. Justice Department lawyer Arez Raveni didn't argue, quote, I don't disagree with that sentiment, your honor. The Justice Department lawyer told US District Judge Emmett Sullivan. Remember Emmett Sullivan told him that in August of 2018. He said he had only just learned that the pair had been put on a plane and would do everything he could to get him back. Rouveni brought that kind of frankness to court when defending some of the federal government's hotly debated immigration policies under both Democrat and Republican presidents. In President Trump's second term. The candor cost him his job. The Justice Department fired Reveni. Now he Was just on administrative leave last week, but they have fired him, according to people familiar with the matter, ending his nearly 15 year career there. So he's gone. I don't know about his supervisor that worked between him and Ensign, but he's been fired, so. All right, it's time for listener questions. What do we have?

Andy McCabe (53:33)

So I've got one for this week. There were great, great questions again this week. I had a. A blast reading them all, but unfortunately, we only have time for one, so I picked this one again because a few people asked a very similar question about this topic, and we'll get to that in a second. But I also picked it because I thought it was particularly funny. And it comes to us from a guy named Tyler. Tyler said, I know we're supposed to praise you guys to get our question picked, but it feels way too close to what is going on in the White House, which creeps me out. You know what, Tyler? Fair play, bro. It creeps me out a little bit, too, I have to say. I don't. I think you're onto something there. So Tyler goes on, so I'll insult you instead. Your show is too informative, and it only provides, like, barely enough banter and analysis for me to digest all of the heavy facts that get dropped. Your rapport with the listeners is just too much. Get a room.

Allison Gill (54:32)

Fair.

Andy McCabe (54:33)

Well played, my man. Well played. Okay, he goes on. But seriously, I've listened to every episode. Thank you, guys. My question, it seems to me that sending people to a prison in a foreign country known for horrific conditions where we are powerless to retrieve them is extremely cruel and unusual. Why don't we see anyone going at the Abrego Garcia case? From the 8th amendment angle, it seems to not only be straightforward enough to win, but simple enough for normies, not nerds like us, to understand.

Allison Gill (55:03)

So that question remind us of the Eighth Amendment.

Andy McCabe (55:06)

Yeah, yeah. So that question of, like, why aren't people using the Eighth Amendment? A couple people brought that in to the table this week. So as a reminder, amendment number eight says in. In its entirety, excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Allison Gill (55:29)

Okay, so as Judge Cnes said, we aren't there yet.

Andy McCabe (55:35)

Yeah, exactly. We're not. So what? The reason why it doesn't really apply yet is because the first one, excessive bail shall not be required. That's really a reflection of the. Of the Constitution's basic theory that all people are innocent until convicted. And bail is obviously something that's imposed at the beginning of the Process. And so people should not be subjected to excessive bail until they've actually, you know, been convicted of a crime. It's like a punishment before you've been convicted. So put that aside. The other two, excessive fines and punishments inflicted. That refers to things that happen to people as a result of their conviction. So, like sentences. Right? You are. When you've con. You're convicted, the next step is you get sentenced. That's officially punished. And you can get punished with a fine or you can get punished by being thrown in jail or whatever. Whatever. So in this case, we're not even close to that because Garcia Brago has not been convicted of any crime. These are immigration laws that regulate how and when and after what process an alien can be returned to their country of origin. And so we don't look at the specifics, the facts here as being a sentence. It's not a sentence as a result of conviction. So the whole 8th amendment thing doesn't really apply. And I know that doesn't sound very. That sounds a little nonsensical, but it does make sense in the context of the Constitution.

Allison Gill (57:10)

Right. Although several folks have brought up the idea that you could file using the Eighth Amendment, 14th Amendment, First Amendment, Sixth Amendment, in your case against the Alien Enemies act, proclamation writ large. But again, we aren't there yet because right now they're first going in and saying, emergency restraining order. Stop the deportations. We'll talk about the Alien Enemies act, what facilitate means. We'll talk about, you know, the legality of what they're doing, the constitutionality of what they're doing down the road for now. Hurt. Stop it now.

Andy McCabe (57:49)

Yeah.

Allison Gill (57:49)

And then. So temporary restraining orders, preliminary injunctions aren't based on those merits. Right? They're.

Andy McCabe (57:56)

That's right.

Allison Gill (57:57)

It's initial findings.

Andy McCabe (57:58)

It's not even. It's stop it right now from happening. And then we've. We've been totally sidetracked down. This other thing, which is. You didn't stop it right now when I told you to. Like, now we're going into this contempt. Did you follow the court's order or did you. Not really in both cases in one way or another. So, yeah, we're miles away from actually getting to a judgment on the. The substance of the Alien Enemies act and all the things that it has brought.

Allison Gill (58:29)

And even Boasberg in his emergency hearing was like, I'm not here to figure out what it means to give people due process. What does that look like? Is it a administrative tribunal? Are there administrative hearings? Are they done by Federal court? Are they done by immigration court? Where are they done? Is it ina apa habeas? I'm not here to figure that out. I'm here to stop people from being deported right this minute so we can figure all that out later. And that's kind of where we're stuck right now. So they might. The ACLU might bring Eighth Amendment violations for cruel and unusual punishment into this. Once they get into the meat of the merits of the Alien Enemies Proclamation Act's constitutionality, you can definitely see, like.

Andy McCabe (59:18)

If we get to the point where these people are finally afforded due process, and at the end of that process, the judgment is to send them to seekot. Now you've really teed up an Eighth Amendment question. Like, is that an appropriate I. E. Not. Is it an appropriate punishment, or is it cruel and unusual and barred by the Constitution? And you. You might see that, but we got miles to go before we get there.

Allison Gill (59:41)

Yeah, very good question, though, because everything is so incremental. We. We haven't even gotten off the ground yet. We're still trying to decide if this. If this government is in criminal contempt for failing to follow a temporary restraining order as it is supposed to do, and until that gets resolved and in the Abrego Garcia case, until after discovery and contempt and all that gets resolved, you know, then they can maybe file, you know, or argue on the merits of the constitutionality of what's going on. So.

Andy McCabe (60:16)

That's right.

Allison Gill (60:17)

Thank you so much for that question and thank you for the insults. I really enjoyed them. If anybody else has insults for us, there's a link in the show notes. And, yeah, maybe we should turn it over from, you know, praising us to insulting us so that.

Andy McCabe (60:31)

I'm up for that.

Allison Gill (60:32)

That we aren't all creepy, like, what's going on in Cabinet meetings these days.

Andy McCabe (60:37)

That's exactly what I thought when I read that. I was like, oh, no, we turned the podcast into a Trump Cabinet meeting.

Allison Gill (60:43)

I know, exactly. Yeah. Don't. Don't Sebastian Gorka me, please. I don't need any of that.

Andy McCabe (60:50)

Yeah.

Allison Gill (60:51)

All right, my friends, again, thank you so much. We're going to be keeping an eye on this docket, and we'll be back next week. Again, we're going to be focusing on the Abrego Garcia case. We're going to be focusing on Boberg's criminal contempt findings of probable cause and how those proceedings meet out. And we'll do it all here on Just Unjustified. Do you have any final thoughts today, Andy?

Andy McCabe (61:10)

Man, we're dug in. We're right back where we were like a year ago. We got some like couple of serious legal matters going. We're digging into the filings. Just this is, this is our ground. This is why people come to this, thankfully come to and support this show. So just so glad everybody's here and really happy to be going through this stuff and sorting through it and understanding it better.

Allison Gill (61:35)

I agree. And we should have some pretty great guests on too in the meantime. So we'll see you next week on Unjustified. I've been Allison Gill and I'm Andy McCabe. Unjustified is written and executive produced by Alison Gill with additional research and analysis by Andrew McCab. 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.