Misdemeanor Terrorist

Summary

Podcast Summary: UnJustified – Episode: "Misdemeanor Terrorist"

Host: MSW Media
Release Date: April 27, 2025

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Overview

In this episode of UnJustified, hosts Allison Gill and Andy McCabe delve into the ongoing legal battles that highlight the erosion of civil liberties and the undermining of the rule of law under the Trump administration's Department of Justice (DoJ). Focusing on high-profile cases involving the Alien Enemies Act, the episode unpacks recent court decisions, government actions, and judicial responses that paint a concerning picture of the current legal landscape.

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Key Legal Battles

1. Abrego Garcia Case and Expedited Discovery

Timestamp: [00:07 – 03:09]

Allison Gill introduces the Abrego Garcia case, where Judge Cini's two-week discovery order was abruptly paused. The government requested a delay of the discovery process under seal, leaving both parties in limbo. Andy McCabe remarks on the rapid changes in the case's trajectory, noting, “Andy McCabe [01:01]: It's really pretty amazing how much things can change in a week…”

The hosts discuss the initial expectations of progressing halfway through discovery within the two-week window, only to have Judge Cini agree to the government's unclear reasons for the delay.

Notable Quote:

Allison Gill [03:09]: “… last week, we also thought we'd be getting into the contempt proceedings…”

2. Supreme Court Intervention on Detainee Renditions

Timestamp: [02:01 – 09:22]

The episode highlights the Supreme Court's decisive late-night order halting the rendition of hundreds of additional detainees to El Salvador under the Alien Enemies Act. This move represents a significant judicial check on the executive branch's actions.

Notable Quote:

Allison Gill [02:26]: “… the Supreme Court blocks Trump from renditioning another 200 or so Venezuelans to El Salvador under the Alien Enemies Act.”

3. Judge Boasberg's Stern Ruling on Government's Discovery Compliance

Timestamp: [03:10 – 17:36]

Judge Sinis of the Abrego Garcia case issued a scathing order criticizing the Department of Justice for inadequate discovery responses. The court found the government's objections to be “presumptively invalid” and accused them of “willful and intentional non-compliance.”

Notable Quote:

Judge Sinis [06:55]: “… the defendants' boilerplate non-particularized objections are presumptively invalid and reflect a willful refusal to comply with this court's discovery order…”

Allison Gill emphasizes the court's loss of trust in the government's declarations, noting, “Allison Gill [09:22]: This is an amended complaint. And if it sounds confusing, it is.”

The discussion also touches upon the government’s unexpected request to stay discovery proceedings, which was granted under seal, leaving the listeners to ponder the government's undisclosed motives.

Notable Quote:

Allison Gill [16:56]: “… they both agreed, which is, So it had to be something at least appealing to the plaintiffs…”

4. Supreme Court’s Emergency Order and Justice Alito's Dissent

Timestamp: [23:10 – 35:20]

The Supreme Court issued an emergency order preventing the removal of detainees under the Alien Enemies Act before the Fifth Circuit could rule. This unprecedented action bypasses usual procedural norms, indicating the court's urgency and seriousness regarding the matter.

Notable Quote:

Steve Vladic [26:27]: “… the court appears to be finally getting the message and in turn, handing down rulings with none of the wiggle room we saw in the JGG and Abrego Garcia decisions last week.”

Justice Alito’s dissent is discussed, with the hosts pointing out multiple errors in his arguments against the majority's decision. They critique his misunderstanding of jurisdictional issues and misrepresentation of government statements during hearings.

Notable Quote:

Allison Gill [34:10]: “Vladic says Alito tries to argue that the district court's denial of the ACLU's request for a TRO could not be immediately appealed, and therefore the ACLU's appeal wasn't in the Court of Appeals. There are at least two independently fatal problems with this assertion…”

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Additional Legal and Governmental Developments

5. Arrest of Judge Hannah Dugan

Timestamp: [45:04 – 54:08]

In a startling development, Judge Hannah Dugan was arrested by federal agents without a grand jury indictment, sparking outrage and allegations of orchestrated retaliation by the Trump administration. The hosts dissect the irregularities of the arrest procedure, suggesting it was a propaganda stunt aimed at intimidating the judiciary.

Notable Quote:

Andy McCabe [49:27]: “It is, I think, for a lot of reasons… orchestrated bit of Trump administration performative retaliation so that judges all across the country will see this and say, I don't want that happening to me…”

6. Pam Bondi’s Directive on Gang-Related Arrests

Timestamp: [54:05 – 54:30]

Pam Bondi, the Attorney General, signed a memo directing law enforcement to pursue suspected gang members into their homes without warrants when necessary. This directive under the Alien Enemies Act grants unprecedented powers to frontline officers, raising significant constitutional concerns.

Notable Quote:

Andy McCabe [54:08]: “… providing directives to frontline officers apprehending suspected trend Naragua members, suggesting officers obtain a warrant of apprehension and removal, quote, as much as practicable.”

7. Vandalism Case Labelled as Domestic Terrorism

Timestamp: [54:37 – 55:21]

A case involving misdemeanor vandalism accused of being domestic terrorism is highlighted, showcasing the DOJ’s tendency to inflate charges to fit a narrative, undermining the seriousness and accuracy of legal categorizations.

Notable Quote:

Andy McCabe [54:53]: “You are a domestic terrorist, but we all hate Tesla, so, you know, just slap on the wrist.”

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Judicial Critique and Separation of Powers

8. Judge Lamberth’s Ruling on Voice of America Case

Timestamp: [55:12 – 60:24]

Judge Lamberth criticized the DoJ for failing to provide a reasoned analysis when shutting down Voice of America (VOA), pointing out the absence of any substantive argument or use of key legal terms like "arbitrary" or "capricious." This ruling underscores the judiciary's increasing unwillingness to defer to the government without clear justification.

Notable Quote:

Allison Gill [56:47]: “… courts have the authority to set aside an executive branch action deemed arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”

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Listener Engagement and Judicial Processes

9. Listener Questions on Judicial Collaboration

Timestamp: [60:34 – 66:16]

The hosts address a listener’s question about whether federal judges consult with their peers before issuing orders on controversial matters. They explain that while judges may discuss legal issues with their clerks and stay informed about higher court precedents, direct consultations with other judges on specific cases are uncommon to maintain judicial impartiality.

Notable Quote:

Allison Gill [63:34]: “Once you made a decision, think there's a direct consult going on. So, you know, I would say totally agree with what everything Andy just said.”

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Concluding Remarks

Allison Gill and Andy McCabe conclude the episode by reinforcing the severity of the government's overreach and the judiciary's role in checking such actions. They emphasize the importance of public awareness and encourage listeners to submit questions for future episodes, underscoring their commitment to dissecting and scrutinizing the legal challenges facing civil liberties today.

Notable Quote:

Allison Gill [66:07]: “But they are very circuit focused… And you know, it's all federal law. Who cares? It's all the same. But they're very circuit focused.”

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Final Thoughts

Misdemeanor Terrorist serves as a critical examination of the Trump administration's legal maneuvers and the judiciary's response to them. Through detailed analysis and insightful discussions, Gill and McCabe shed light on the pressing issues surrounding civil liberties, judicial independence, and the rule of law in contemporary America.

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Credits:
Written and Executive Produced by Allison Gill
Additional Research and Analysis by Andrew McCabe
Sound Design and Editing by Molly Hockey
Art and Web Design by Joelle Reader at Moxie Design Studios
Theme Music by Ben Folds
UnJustified is a member of the MSW Media Network.

Transcript

[Allison Gill]

MSW Media.

[Andy McCabe]

Judge Cini's two week discovery in the Abrego Garcia case is put on hold after the government files a request to delay under seal.

[Allison Gill]

A conservative three judge panel for the D.C. circuit Court of Appeals temporarily blocked Judge Boasberg's opinion that probable cause exists to hold the government in criminal contempt in the Alien Enemies act case.

[Andy McCabe]

The Supreme Court issues a late night order blocking the rendition of hundreds of additional detainees to El Salvador.

[Allison Gill]

And a Reagan appointed judge lambasts the Department of Justice for not only failing to provide reasoned analysis for shuttering the voa, but for failing to engage in any analysis at all. This is unjustified. Hey, everybody. It is Sunday, April 27th, 2025. I'm Allison Gill.

[Andy McCabe]

And I'm Andy McCabe.

[Allison Gill]

Hey, Andy.

[Andy McCabe]

It's really pretty amazing how much things can change in a week, right? I mean, it was just a week ago we were discussing Judge Sinus's scathing order granting expedited discovery in the Abrego Garcia case. And we thought that by today we'd be halfway through with that discovery. But it's been paused for reasons that are not clear, but that both the judge and Abrego Garcia's lawyers apparently agreed to.

[Allison Gill]

Yeah, that's the kicker, right? Like what? What could they possibly agree to? Well, given some of the stuff that she had to say in some previous orders, we'll go over that. And last week, we also thought we'd be getting into the contempt proceedings in Judge Boasberg's court for the government, defying his orders to turn the planes around that, you know, were on their way to El Salvador. But Trump appealed the unappealable order and drew a conservative three judge panel that actually granted a temporary administrative stay on his ruling. So that's an interesting peccadillo. We'll talk about that.

[Andy McCabe]

Yeah, for sure. But in the meantime, the Supreme Court blocked Trump from renditioning another 200 or so Venezuelans to El Salvador under the Alien Enemies Act. And the ACLU has added the openly gay makeup artist and stylist Andre Hernandez Romero as lead plaintiff in the new class action suit brought before Judge Boasberg in the original Alien Enemies act case.

[Allison Gill]

Yeah, and you know when we say the original Alien Enemies act case, the JGG case, that was vacated, but he left that docket open. Right, and we'll talk about that. So that's what we mean by the original Alien Enemies act case. This is an amended complaint. And if it sounds confusing, it is. And we're going to do our best to break it down for you. Plus, we'll leave you with a fiery bench slap from a Reagan appointed judge that just tears into Trump's Department of Justice. And as always, we'll close with listener questions. If you have a question for, for us, there's a link in the show notes you can click on to submit your question. Andy, I have whiplash. I was all set to dive into the Abrego Garcia pre contempt discovery bonanza. So let's start there.

[Andy McCabe]

Yeah, let's do it.

[Allison Gill]

I, because, I mean, I was, I was looking forward to this. Now, last week we left off with Judge Cenis issuing her two week expedited discovery order that included interrogatories, requests for documents, a production documents, and depositions of Trump administrators with knowledge. And she also set all kinds of deadlines and we went over that order last week. She also anticipated the government might stonewall, so she came up with a pro. She came up with a process that included the plaintiffs being able to issue a letter to ask for a teleconference if they came to loggerheads with the government on discovery. And she said if all else fails, that she grants the plaintiffs permission to file for additional sanctions before the two weeks were up.

[Andy McCabe]

Yeah, the old invitation to file sanctions is not something you see in every case, but we had it here. So pretty stern orders. The first deadline for the government came up on April 21. That's when the government owed answers to Abrego Garcia's lawyers and derogatories pretty much as soon as the government turned them in. The plaintiffs took advantage of the judge's process to inform the court that their answers were woefully insufficient and they asked for a same day teleconference. Now this is from the plaintiff's letter to the court on April 21. We write on behalf of plaintiffs in the above captioned matter to respectfully request that the court hold a conference tomorrow afternoon at 1pm or as soon thereafter as the court is available to address the government's failure to comply with the court's April 15, 2025 order granting expedited discovery, requiring the government to, among other things, produce documents and respond to plaintiffs interrogatories. That was a really long sentence. And if you can tell, I've got a cold. So my, I know management of the air is not, not going well here. But in any case, the letter goes on to say, on the eve of the first court order deposition concerning the government's failure to comply with this court's orders, the government responded to plaintiff's discovery requests by producing nothing of substance. Its document production consists entirely of public filings from the dockets, copies of plaintiff's own discovery requests and correspondence, and 2 non substantive cover emails transmitting declarations filed in this case. Its interrogatory responses are similarly non responsive. It's like they sent their shopping list.

[Allison Gill]

Here's a bunch of stuff you already have.

[Andy McCabe]

A note about what movies to watch on Netflix this week.

[Allison Gill]

Conclave. That's the one you should watch. Shortly thereafter, Judge Sinis issued an order. No teleconference needed, right? She just tore into the Department of Justice lawyers. She said plaintiffs have notified the court of seemingly intractable discovery disputes that require immediate attention to remain on the expedited discovery schedule. To facilitate the just and expeditious production of discovery, the court rules on the defendant's stated objections included within their answers to interrogatories and responses to RPDs. That's requests for production of documents. First, defendants object to certain discovery. That's the Trump administration objects to certain discovery because they claim the requests are based on the false premise that the United States can or has been ordered to facilitate Abrego Garcia's release from custody in El Salvador. Defendants and their counsel well know that the falsehood lies not in any supposed premise, but in their continued mischaracterization of the Supreme Court's order. That order made clear that this court, quote, properly required the government to facilitate Abrego Garcia's release from custody in El Salvador. Word for word. Word for word.

[Andy McCabe]

I mean, that's amazing. I don't even know what to say there. Okay. The order goes on to say second, equally specious defendants objections on the grounds of privilege are rejected. Defendants invoke, in name only, a range of protections attorney client privilege, the work product doctrine, the deliberative process privilege, the state secrets privilege, and an unidentified governmental privilege without providing any supporting information or analysis. As defendants and their counsel know, the proponent of a privilege must demonstrate the legal and factual basis to invoke the protections that such privilege affords. There's a unique idea, actually make the provlets you are entitled to the thing that you claim. She goes on to say. Their boilerplate non particularized objections are presumptively invalid and reflect a willful refusal to comply with this court's discovery order and governing rules. Although defendants state now that they are willing to, quote, meet and confer with counsel about the production of such a log, their repeated refusals to meet and confer about much of anything else undermine the reliability of this assertion. The court thus finds this offer was not made in good faith. And that's really, really important because this, some commentators have been talking about this loss of the court's not preference, but practice of taking the government at their word. So historically, the courts will always take the government for you. In the course of, like, litigation maneuvers and arguments and things like that, the government has earned a reputation of accuracy and truthfulness. And the courts kind of acknowledge that that is disappearing with each one of these cases. And I think that's what you see in that last sentence. The court finds this offer was not made in good faith. So they don't even take the government at their word when they say, oh, we'll meet and confer. She's saying, no, you probably won't.

[Allison Gill]

Yeah. And that concept is going to be important when we get to the Supreme Court intervention later in. In another Alien Enemies act case, because it seems that the Supreme Court is even losing faith in what the government says. Except for Alito, but, you know, whatever.

[Andy McCabe]

He's very loyal.

[Allison Gill]

Yeah, but that is a brutal bench lashing, I guess you would call it, from, from the judge here to, to have that said about you and your lawyering in. In a. It's not good, it's bad. So she goes on. Nor does the court find the defendant's protestations regarding the abbreviated timeline persuasive. For weeks, defendants have sought refuge behind vague and unsubstantiated assertions of privilege, using them as a shield to obstruct discovery and evade compliance with this court's orders. Defendants have known, at least since last week, that this court requires specific legal and factual showings to support any claim of privilege. Yet they have continued to rely on boilerplate assertions. That ends now. If the defendants want to preserve their privilege claims, they must support them with the required detail. Otherwise, they will lose the protections they failed to properly invoke. And then she says, you have until tomorrow at 6pm to hand in your analysis of your privilege log, basically. But to say this is kind of important point, if they don't do this properly, she will revoke any right to privilege assertions brought by the government.

[Andy McCabe]

That's right. That's right. And just so folks know, the privilege log is basically when you've been asked for a whole bunch of discovery and you claim a privilege, you literally create a list of each thing that the other side asked you for. And then it's like a spreadsheet, kind of. And then you identify what privilege your refusal to produce it is based upon. And then in the next column, what facts There are to support your assertion of that privilege that allows the court to go through and say, like, check, check. Yes, this one fits, this one fits, but this one down here doesn't. Or, I need more information. It's just like the administrative way of the person asserting privilege, specifying exactly how, when, and where, and the court arbitrating whether or not it will be granted or. Or observed.

[Allison Gill]

Yeah. I mean, if John Eastman can do it. Come on.

[Andy McCabe]

Yeah, right. Come on.

[Allison Gill]

I mean, you'll recall if you were listening to the Jack podcast, there were several privilege logs when they were trying to get. When Jack Smith was trying to get Eastman's emails from Chesterton University.

[Andy McCabe]

Yep.

[Allison Gill]

And then they went through all of them, and the judge said, yes on these, no on these, and would, you know, grant a bunch and. And deny a bunch. But anyway, she goes on to say, the defendants object to any discovery request concerning events predating the court's April 4 order as beyond the scope of the expedited discovery. Defendants arbitrarily cramped reading of this court's order is rejected. That's just, like, flat out, you lose, man. Yeah, like, no, you're. You're arbitrarily cramped reading. Wrong. Try again then. There are several specifics, and here's one example. Defendants answer to interrogatory number five, in which they name exactly two individuals who have been or will be involved in any of the actions responsive to interrogatories 1 through 4, or in ordering or authorizing Abrego Garcia's removal to El Salvador, his initial placement in Seacoat, or his continued confinement in Seacoat that reflects a deliberate evasion of their fundamental discovery obligations. Defendants identify only Robert Cerna and Evan Katz as the universe of individuals responsive to these questions. Given the context of this case, defendants have failed to respond in good faith, and their refusal to do so can only be viewed as willful and intentional non compliance. Yikes.

[Andy McCabe]

Another example of many. She says defendants must answer interrogatory 12. The interrogatory is limited to all efforts the government has taken to facilitate the return of aliens wrongfully removed to El Salvador. The request is particularly relevant and probative to whether defendants are taking any steps in good faith to comply with this court's facilitation order involving the very country to which Abrego Garcia was wrongfully removed. The court also rejects that this narrow request is, quote, unduly burdensome because defendants have made absolutely no showing as to why it cannot, with a modicum of due diligence, answer the question.

[Allison Gill]

Hmm.

[Andy McCabe]

And there's this one. As to interrogatory number 14, seeking the complete factual basis for defendant's assertion that Abrego Garcia is a member of Ms. 13, defendants relevancy and scope. Objections are rejected. Defendants cannot invoke the moniker of MS.13 as responsive to the court's previous order and then object to follow up interrogatories seeking a factual basis for the same.

[Allison Gill]

Yeah. Have you ever heard, like a lawyer on TV saying, no, they opened the door.

[Andy McCabe]

Yeah, they did. It can't be a shield and a sword, right?

[Allison Gill]

Right. You can't say he's Ms. 13. And. Okay, well, how. We don't have to tell you because of some governmental privilege that I just made up. Like, it doesn't work that way.

[Andy McCabe]

It's funny, too, because that cuts right to the heart of this whole thing. There's no process here. There's no fairness. There's no due process. Like, you can't say somebody is a member of MS.13 and then not be willing to go into court and prove it.

[Allison Gill]

Yeah, exactly. Absolutely. Now, these examples, Andy, they go on for several pages, but you get the idea. And it was important that we went over some of these in this order and some of the language that she's using, which is very forceful and like, you're rejected. No, you're bad.

[Andy McCabe]

Right?

[Allison Gill]

Wrong. Because we need to get a picture of how angry and exasperated Judge Sinis is because of what happens next in the case, which is pretty confusing. On April 23, a few hours before the amended answers and privilege log were due, the government filed a sealed ex parte motion to pause the proceedings for a week. Now, docket watchers were like, oh, my God. Unbelievable. After that scathing order about their woefully insufficient discovery and their bad faith. She's never going to go for this. Right?

[Andy McCabe]

Yeah.

[Allison Gill]

And I was thinking, wow, that takes some chutzpah. And we were all thinking that because we imagined it was some kind of tired excuse, like they needed time to contemplate state secret privilege. Or Drew Ensign wanted to attend his daughter's friend's cousin's Justin Bieber fan club swearing in ceremony or something.

[Andy McCabe]

I feel like that's important, but.

[Allison Gill]

Okay, yeah, true. But remember when she's like, there's no hours and cancel all your vacation and we're getting this done.

[Andy McCabe]

You gotta be like, judge, you gotta be a Belieber. All right, I'm sorry.

[Allison Gill]

Be a Belieber. But then the same day, the judge issued a two sentence order. Cool as a cucumber. The court has reviewed the defendant's motion to stay and the plaintiff's response. With the agreement of the parties, the court hereby orders that discovery shall be stayed until April 30, 2025, at 5pm the end. That's it. That's all she wrote. So weird, right? Because it can't be a Justin Bieber fan club request. It can't be a. We're looking at state secrets privilege that was all due that day. Right. Privilege logs and. And answers to the questions that she said weren't beyond the scope. So it has to be something else that all the parties agreed to.

[Andy McCabe]

Yeah, the two. The two points here that are, like, most important to figuring this out are the fact, one, that they both agreed, which is. So it had to be something at least appealing to the. To the plaintiffs, and two, that it was filed under seal, which means the government did not want the world to know either what they're planning on doing or the position they're taking or something like that. It's really bizarre.

[Allison Gill]

I have a guess.

[Andy McCabe]

Oh, oh, do tell.

[Allison Gill]

I think that they said, give us a week to go down there and release him from Seacote and deport him to a third country where he's allowed to be deported to.

[Andy McCabe]

Wow. Interesting.

[Allison Gill]

Because remember when they said that, oh, well, if we just brought him back, we're just going to send him to another country. El Salvador was the only country he couldn't be sent to.

[Andy McCabe]

Right.

[Allison Gill]

Because of the withholding order in 2019. Right. Because he fled El Salvador because of gang violence. So they were like, you can't send him back to El Salvador. They could send him to anywhere else if they found that he was here undocumented or illegally. Right. That's. That's due process right there. Okay. So I'm thinking maybe they said, give us a week and we'll see what we can do. That would be the only thing if I were the judge or if I were Abrego Garcia's attorneys, that I would agree to. But they were really adamant that he should be returned to the United States. Although that's not what the Supreme Court order said. Right. The Supreme Court order said you have to facilitate his release from the prison in El Salvador and give him the due process he would have gotten were he not. Were he never sent there.

[Andy McCabe]

Yeah. Which still makes me kind of. I mean. Yeah. Do the plaintiffs want him out? Absolutely. They want him out sooner rather than later. And if the government comes in and says, listen, judge, give us another week. And this whole thing. We have reason to believe this whole thing is going to be moot by then. But would the plaintiffs actually agree to him getting shipped to a third party country? Don't you think at this point, having fought this hard, they want him to come back here and get the process that he's entitled to? I don't know. I mean, that's, that's why.

[Allison Gill]

Yeah, that was my question. Right. Like what? That doesn't seem. Because, you know, like I said, Supreme Court didn't say you have to bring him back to the US you just have to facilitate his release from El Salvador.

[Andy McCabe]

Right.

[Allison Gill]

And they said, you know, redefine, effectuate. Now, Judge Sinis, her order on April 10, after that Supreme Court order was to facilitate the release and return.

[Andy McCabe]

Right.

[Allison Gill]

So I don't know. We'll see. I'm assuming, I'm assuming we'll find out. And I'm also interested in why they want to file it under seal. Like you said, Was this something embarrassing, something they didn't, that might make them look woke or something? I don't, you know, I don't, I don't understand. But there's also some late breaking news right now. Andy. This is from the Atlantic. Three days after Abrego Garcia's family filed its lawsuit over his deportation, government attorneys began discussing on how to undo their mistake and bring him back to the United States. In their conversations, officials went as far as to float the idea of having the US Ambassador to El Salvador make a personal appeal to Bukele for Abrego Garcia's return. But then the White House got a hold of it. Right. The State Department's legal team wanted more information from DHS about his alleged role in the MS.13 gang as well. They said at the State Department there was thin evidence that was supplied in response to that question. And it was met with skepticism from State Department lawyers. So early on, behind the scenes, the Trump administration was like, ooh, ooh, sorry, sorry, sorry, sorry. Let's bring him back, let's bring him back. I don't think he's a member of Ms. 13. Let's bring him back. And then the White House got a hold of it, doubled down and started their rhetoric. So that's an interesting scoop from, from the Atlantic.

[Andy McCabe]

Yeah, very interesting. And it's, you know, I mean, it, I don't know, it's not encouraging, but it does show you there are some people looking at this thing like, like the initial, what was his name? Reveni, the initial trial attorney Ravini, who clearly saw it that way. And, and then, you know, the. Who got fired over It. And the. The evidence about the MS.13 affiliation is actually, you know, we've talked about this before from a source. The source, I guess, has been identified now as a former law enforcement officer from Maryland who was, I believe, fired, at least disciplined for some. Yeah. Some sort of misconduct. And he's the one person who's made this claim against the guy that he was Affiliated with a MS.13 click in Northern New York.

[Allison Gill]

I think the police department actually put out some information that they. What, they found four people. One of them was a member of Ms. 13. They were, like, doing something, and they picked up all four, but they said in their paperwork that Abrego Garcia was not the member of Ms. 13.

[Andy McCabe]

Yeah.

[Allison Gill]

So maybe the Trump administration is like, well, he was standing there next to somebody who was wearing the Chicago Bulls hoodie. Yeah. And. And why not put that in your thing? He was associated with. You know, why Ms. 13, instead of just not answering the interrogatory, say he was arrested with a member of Ms. 13.

[Andy McCabe]

Yeah. For this.

[Allison Gill]

But he was eventually released. You know, the charges were dropped, and he was not to be found as a member. Maybe that's why they don't want to talk about that. But, you know, the Trump administration's never been one to give you the whole story. They, they, they cite Marbury v. Madison in order to get absolute immunity.

[Andy McCabe]

So it worked.

[Allison Gill]

So they only give you the first sentence. So I'm surprised that the Trump administration was like, he was arrested next. He was arrested with an MS.13 gang member. Yeah, but they didn't, they didn't even say that. They just didn't respond to the interrogatory at all. Anyway, that story's unfolding, and we'll talk more about that probably on next week's show. But next we're going to talk about what happened in Judge Boasberg's court this week. But we have to take a quick break, so stick around. We'll be right back.

[Andy McCabe]

Welcome back. Okay. You'll recall last week as we were recording the show, another story was just starting to unfold that the Trump administration appeared to be staging another rendition of Venezuelans to El Salvador under the Alien Enemies act, this time from the Bluebonnet detention facility outside of Abilene in the Northern District of Texas.

[Allison Gill]

Yes, yes. And I had thought initially they were busing men from Bluebonnet to Harlingen in the Southern District, which is where they flew the previous planes out of the. You know, those are the ones that Judge Boasberg ordered to turn around on March 15. Yes, but as court filings began hitting the docket, it became apparent that the government was actually moving men to Bluebonnet in the Northern District of Texas. Not away from there. Presumably, though it's not been proven they were doing that. They were moving the men there because there was not a restraining order in place in that jurisdiction blocking rendition under the Alien Enemies act, where there was in the Southern District. So they started busing people from the Southern District and from other districts. Like, I think Colorado now has a temporary restraining order, because, you know, the Supreme Court's like, you can't have it nationwide. It has to be district by district with habeas petitions. So there's southern districts of New York, Pennsylvania, Colorado, southern district of Texas. There's been flights all around getting people to Blue Bonnet in the Northern District of Texas. And the lawyers were like, we talked about this last week. They were like, we're freaked out, Judge Boasberg. They're going to send these guys to El Salvador. So the plaintiffs filed with Boasberg. They filed with the Northern District of Texas a temporary restraining order, but that court denied the temporary restraining order because the government said they had no plans to fly anyone out of the district. And the court believed them. Right. The plaintiffs also filed an emergency administrative stay, or, you know, a TRO with the 5th Circuit, and they also filed with the Supreme Court. File, file, file. So they. They had it everywhere. They had all their bases covered. And they. And they filed with Boasberg, too.

[Andy McCabe]

That's right. So Boasberg held an emergency hearing right after we finished recording last week's podcast. But, Allison, you and I were wondering exactly how Boasberg would have jurisdiction. I mean, given that the plaintiffs were in Northern Texas and He was in D.C. and as it turns out, Boasberg had the same concern, and he ultimately had to deny the temporary restraining order. But during the hearing, there were questions about whether the government had any plans to fly anyone to El Salvador over the Easter weekend, but the government couldn't commit. They even took a 30 minute recess to see if Ensign could get the answer to the question. He came back and said, follow this one. Now, the government could not commit to not flying anyone out that weekend, only the government. Still, Boasberg had to deny the TRO because the Supreme Court vacated an identical TRO when it started requiring habeas petitions to be filed in the jurisdiction where the plaintiffs were being detained. So that put all eyes on the 5th Circuit and the Supreme Court, where the plaintiffs, as you said, had also filed for emergency relief.

[Allison Gill]

Yeah, and at that point we're like, well, we're going to bed. Fifth Circuit, Supreme Court. No way. But then, but much to the surprise of, to the surprise of many, just before 1am The Supreme Court aggressively and surprisingly weighed in. Now, Steve Vladic writes this for the 1 1st substack. Just before 1:00am Eastern late night, very early this morning, the Supreme Court handed down a truly remarkable order in the latest litigation challenging the Trump administration's attempts to use the Alien Enemies act, the aea, to summarily remove large numbers of non citizens to third countries, including El Salvador. So here's the Supreme Court's very brief order that came in the middle of the night. There is before the court an application on behalf of a putative class of detainees seeking an injunction against their removal under the Alien Enemies Act. The matter is currently pending before the fifth Circuit. Upon action by the fifth Circuit, the Solicitor General, the Trump administration is invited to file a response to the application before this court as soon as possible. The government is directed not to remove any member of the putative class of detainees from the United States until further order of this court. Wow. Now, Justice Thomas and Justice Alito dissent from the Court's order. Statement from Alito to follow. So Alito's dissent wasn't included in this order.

[Andy McCabe]

Yeah, which I gather is customary under these emergency applications. If somebody wants to dissent, they're given a little bit more time to do it. It doesn't necessarily come out.

[Allison Gill]

Well, normally this is not a court would wait till he's done. That's like we wouldn't think the Supreme Court would step in here so fast.

[Andy McCabe]

Yeah, but they couldn't. Right. Because literally thinking that the planes were warming up the engines, they had to get this order out. And so they give Alito a little bit of chance.

[Allison Gill]

Oh, no.

[Andy McCabe]

A little chance.

[Allison Gill]

I understand. No, I understand. I'm just saying none of us thought that they would stop these planes from going out.

[Andy McCabe]

Totally. I mean, this one struck us all as very out of the ordinary. And as Steve Vladic writes, it says a lot without saying very much. He, Vladic puts it this way. He says, first, the full court didn't wait for the fifth Circuit or act through the individual circuit justice, which would have been Alito. Even in other fast moving emergency applications, the court has often made a show out of at least appearing to wait for the lower courts to rule before intervening. Even if that ruling might not have influenced the outcome Here, though, the court didn't wait at all. Indeed, the order specifically invites the government to respond once the 5th Circuit weighed in, acknowledging that the 5th Circuit hadn't ruled and indeed that the government hadn't responded to the application in the Supreme Court just yet. Now, this may seem like a technical point, but it underscores how seriously the court, or at least the majority of it, took the urgency of the matter.

[Allison Gill]

Yep. Yep. And Professor Vladek also says, second, the court didn't hide behind any procedural technicalities. One of the real themes of this court's interventions in Trump related emergency applications to date has been using procedural technicalities to justify siding with the federal government. And third, and perhaps most significantly, the court seemed to not be content with relying upon representations by the government's lawyers. In the hearing before Chief Judge Boasberg, Drew Ensign had specifically stated on behalf of the government that no planes would be leaving Friday, albeit with a bit less clarity about Saturday and Sunday. True, the government hasn't formally responded to the Supreme Court, but the justices, or at least their clerks, would have been well aware of that exchange. Indeed, some of the clerks were likely listening to the hearing as it happened. In a world in which a majority of the justices were willing to take these kinds of representations at face value, there might have been no need to intervene overnight. Friday evening. The justices could have taken at least some of Saturday to try to sort things out before handing down their decision. The court appears to be finally getting the message and in turn, handing down rulings with none of the wiggle room we saw in the JGG and Abrego Garcia decisions last week. That is a massively significant development unto itself.

[Andy McCabe]

And I agree totally, totally.

[Allison Gill]

And when he's talking about the wiggle room in JGG and Abrego Garcia, he's talking about, oh, habeas petitions and you have to give due deference and regard, due regard in deference to Trump and his mighty powers of dealing with foreign affairs. And you know, in Abrego Garcia, it was, whoa, go back down to the court and tell us what effectuate means. And, you know, we'll see you again soon. Right. So that's what he's talking about there.

[Andy McCabe]

Yeah. And it's like we were seeing it earlier in the show. This is yet another example of not just a court, but the court.

[Allison Gill]

Right.

[Andy McCabe]

At least implying that they don't take the government at their word. And that is just a. That's a massive shift in kind of American jurisprudence.

[Allison Gill]

Yeah. And not a court or the court, but this court.

[Andy McCabe]

That's right. Exactly right. Or at least most of them. Not those other two.

[Allison Gill]

Yeah. Supreme Court who thinks he's a king. Right?

[Andy McCabe]

For sure.

[Allison Gill]

And needs all the due regard and deference in the world when it comes to foreign affairs. Came in at 1am didn't wait for Alito, didn't wait for the 5th Circuit. And there was actually a little bit of a weirdness. They didn't say in their little thing that it was referred to the court by Alito, which is normally the language. So we actually still aren't sure how the full court got ahold of it. Because Alito could have said no on his own. Yeah, from the fifth Circuit. Through the fifth Circuit. I don't know. Maybe he was asleep.

[Andy McCabe]

And I just wonder how these things happen. I mean, I guess they actually. I mean, obviously, I don't know how they mechanically discuss something like this and get everyone to vote. Like, is it all remote? Are they all home on a. On a Friday night of Easter weekend? Signal chat.

[Allison Gill]

They have a signal chat going.

[Andy McCabe]

Oh, nice, nice. Oh, they, they, they, they hit up Pete. They're like, yo, Pete, can you get the group together, the small group. Supreme Court for a.

[Allison Gill]

That's how the ACA and DO decision leaked. Right? It. Signal chat. They accidentally put Jeffrey Goldberg on it. Anyway. Oh, the jokes. Who?

[Andy McCabe]

The jokes.

[Allison Gill]

Yeah, the jokes they write themselves. All right, speaking of jokes that write themselves, we're going to talk about Alito's dissent that we did eventually get. But we have to take another quick break. Stick around. We'll be right back. All right, everybody, welcome back. So it's pretty amazing that the Supreme Court issued that decision before Alito could write his dissent, Right? Like you said, sometimes they do give him a little more time. But we did get it a couple days later. I guess Martha needed time to pick out her new flag that she was going to put up. But anyhow, we have some highlights or low lights from Alito's dissent, joined by Justice Clarence Thomas. This is again from Vladic's one first, and if you're not subscribed, you really should subscribe. I thought it would be useful to analyze the specific arguments he proffers, some of which are just wrong, some of which are non sequiturs, and some of which are truly galling. This is what the professor, a Georgetown law professor, says about Justice Alito. First, Alito says it is not clear that the court has jurisdiction. What happened to making a rule for the ages?

[Andy McCabe]

Anyway, nice.

[Allison Gill]

Vladic says Alito tries to argue that the district court's denial of the ACLU's request for a TRO could not be immediately appealed, and therefore the ACLU's appeal wasn't in the Court of Appeals. There are at least two independently fatal problems with this assertion. First, a case is in a court of appeals for purposes of the Supreme Court's appellate jurisdiction, even if the Court of Appeals ultimately holds that it doesn't have jurisdiction. That's because the Supreme Court's power to hear an appeal does not turn on whether the Court of Appeals properly has jurisdiction under the separate jurisdictional statutes for those tribunals. So, wrong. Second, and in any event, the Supreme Court just expanded the circumstances in which district court rulings on TROs can be immediately appealed in a pair of rulings in which Justice Alito was in the majority. Alito never explains why the TROs and the Department of Education and JGG cases were immediately appealable, but the denial of a TRO in those cases was not. So he's. He's like, wrong and wrong. So that's the first big thing that Alito just got wrong.

[Andy McCabe]

Yeah. So next, Alito complains that the ACLU went to the 5th Circuit just 133 minutes after it sought emergency relief from the district court. And that's simply incorrect. In fact, the district court had more than 14 hours to rule before the ACLU sought relief from the Fifth Circuit. Oops, that would be wrong. Number two. Alito also got another important point wrong. He wrote, quote, an attorney representing the government in a different matter informed the district court in that case during a hearing yesterday evening that no such deportations were then planned to occur either yesterday, April 18, or today, April 20. Professor Vladik writes, quote, this is perhaps the most troubling point Alito makes in his dissent. He is quite obviously referring to an exchange between the Justice Department lawyer Drew Ensign and Chief Judge Boasberg in the emergency hearing Boasberg held Friday afternoon in the JGG case, where the ACLU is also trying to get a new TRO to block the apparently imminent AEA removals of folks from Texas. According to multiple accounts of folks who were listening, Ensign said he was unaware of any flight scheduled for Friday, but that he was specifically instructed to, quote, reserve the right for the government to conduct removals on Saturday, April 19. In other words, the DOJ lawyer did not say what Alito said.

[Allison Gill]

He said, yeah, so, you know, we're talking earlier about the court taking the word of the government. He didn't even have the word of the government. Right.

[Andy McCabe]

Yeah, there was. This was the infamous. I cannot say that we will not move any people to El Salvador.

[Allison Gill]

Yeah, we can't commit. We reserve the right, as a matter of fact, to fly people out on April 19th. So just flat out got it wrong. There are several other technical issues with Alito's dissent, and you can read all about them in the 1 1st substack, Professor Vladek breaks it down in very easy to understand language. So. All right, let's shift gears now and let's pick up where we left off on Judge Boasberg's docket. Last week, we reported that Boasberg had ruled that probable cause exists to hold the government in criminal contempt for failing to follow his orders to turn the planes around. Even though the Supreme Court eventually vacated those orders, you still have to follow them until they're vacated. And the Trump administration did not. Boasberg's opinion was not appealable. And that's according to Steve Vladek, not just me, but Trump appealed them anyhow, and through the luck of the draw got Katzas and Rao on the appellate panel who did issue a temporary administrative stay of Boasberg's ruling. As of right now, we still haven't heard anything further, but the docket on the original Alien Enemies act case, jgg, is now active again. The ACLU has filed a new suit on behalf of an amended complaint, I should say on behalf of those from the original flights that still remain in Seacoat. And they've asked Judge Boasberg to certify a new class with a couple of subclasses. The new lead plaintiffs on the case are Andre Hernandez Romero, the openly gay stylist and makeup artist wrongfully sent to El Salvador, and Frango Reyes Mota, that's the guy that had no tattoos and whose paperwork included the wrong name, among several other administrative errors. So they're the new lead plaintiffs on this amended complaint. Right. So they're kind of amending what they originally did, that those first orders that turned the planes around and those TROs were vacated. So that's kind of where we are, because the judge was like, you have till April 16th. On April 8th, he's like, if anybody wants any say anything more, you have until April 16th to do so. And they did.

[Andy McCabe]

Right. So the ACLU has filed an amended complaint, a motion for preliminary injunction, and a motion to certify the class. So let's start with the class motion. The petitioners want to modify the class to include all non citizens who were, are, or will be subject to the March 2025 presidential proclamation entitled Invocation of the Alien Enemies act regarding the Invasion of the United States by Trend Aragua and or its implementation. Now, petitioners Also move the court to certify the following subclasses. Subclass 1, which they call the CECOT subclass, all non citizens in custody at the Terrorism Confinement center in El Salvador who were, are, or will be subject to the March 2025 presidential proclamation about the Alien Enemies Act. Subclass 2, which is called the Criminal custody subclass. This is all non citizens in criminal custody who were, are, or will be subject to the March 2025 presidential proclamation entitled Invocation of the Alien Enemies Act. And that's. That's the first two subclasses.

[Allison Gill]

Yeah. So that criminal custody subclass, that's anyone anywhere who could be subject to removal under the proclamation. And my first thought was, well, Boasberg can't do this for anyone outside of his jurisdiction. But criminal custody makes it different. Right. There's only about 32 people around the country that are in criminal custody that are subject to this removal. So it's not everyone everywhere. It's just people in criminal custody. So they've narrowed it.

[Andy McCabe]

Yep.

[Allison Gill]

Yeah, we'll see.

[Andy McCabe]

I. I would. I expect the government will attack it right on that ground. So we'll see. Who knows? But.

[Allison Gill]

Right. But it even said they, they had some case citations saying that habeas can be heard in another jurisdiction if somebody's in criminal custody. So we'll see. We'll see how it ends up going, what Boasberg says. Now, next, let's talk about their amended complaint. This is the beef, right? This is the merits, right. This is what everyone's like, when are we going to get to the part where we decide that Trump can't use the Alien Enemies act in the first place because we're not at war.

[Andy McCabe]

Yeah.

[Allison Gill]

So this asks the court to rule that the government violated multiple laws by wrongly using the aea. So everyone, like I said, wants to know when the court will get to the heart of the matter here, that the AEA is not applicable because we aren't at war. And Trend Agro is not working for, on behalf of the Venezuelan government or the Maduro regime. That's this, right? This is the beef. They also say the government violated. In here, they violated the INA, the Foreign Affairs Reform and Restructuring act of 1998, the APA, the Administrative Procedures Act. They also say that they violated due process under the Fifth Amendment, they violated habeas corpus, they have punitive detention in violation of the Fifth Amendment, criminal punishment in violation of the Fifth and Sixth Amendments, and cruel and unusual punishment under the Eighth Amendment.

[Andy McCabe]

Ding, ding, ding. There you go.

[Allison Gill]

That's all of It. So they're asking the court to stop rendition under the aea, return all the prisoners from Seacoat to the United States, grant writ of habeas for the class, and require the government to give up to 30 days notice to anyone subject to removal, not the 12 hours that the Department of Justice has told the court is a reasonable amount of time.

[Andy McCabe]

That's right. So then there's the preliminary injunction, which they phrase like this. Plaintiffs hereby move for a preliminary injunction to prevent further harm to petitioners and two subclasses who are already facing or imminently face grave and irreparable harm from the government's unlawful use of the Alien Enemies act to summarily expel individuals from the United States and imprison them in El Salvador. First, for the CCOT subclass, petitioners move for an order requiring respondents to immediately request and take all reasonable steps to facilitate the return of the subclass to the United States from respondents jailer in El Salvador. Second, for the criminal custody subclass, petitioners seek an order enjoining respondents from removing any subclass member from the United States under the president's proclamation and requiring respondents to provide adequate notice of designation to each subclass member and class counsel and a reasonable opportunity to challenge their designation, detention and removal under the AEA consistent with due process.

[Allison Gill]

Yeah, that's interesting. All right, so remember, the preliminary injunction stops things from happening temporarily while the court considers the beef. So generally, when you file a temporary restraining order or a preliminary injunction, you file underneath it, your, your complaint. Right. For the thing that's going to be decided on the merits. And that beefy complaint about the AEA is the one that we have here about the AEA being unlawful. Preliminary injunctions are appealable to the Supreme Court, as are any rulings on the amended complaint. And we're keeping. We'll keep you posted on what Judge Boberg does in this new case and what happens next in the criminal contempt case, which has stalled because of the brief administrative temporary stay issued by, I believe, the D.C. circuit Court. Katzis and Rao, there was one, I think, Obama appointee who dissented, but they, you know, we'll see if they go on bonk with that. It's, it's interesting, but we're all caught up for now, Andy. That's. We're all caught up on these cases at the moment. So we have a few more brief stories, including some terrifying orders from Pam Bondi. But we do have to take one last quick break, so stick around. We'll be right back.

[Andy McCabe]

Foreign.

[Allison Gill]

Everybody welcome back. We have a few quick stories before we get to listener questions today. First, a judge was arrested without the use of a grand jury by the FBI for allegedly obstructing justice and concealing an individual to prevent discovery and arrest. Kash Patel, Donald Trump and Pam Bondi have bragged about it on True Social and Twitter. But then Kash Patel immediately deleted his tweet. But then I think he reposted it again. But here's something that the Department of Justice has said in an affidavit. After leaving the chief judge's vestibule and returning to the public hallway, DEA Agent A reported that Flores, Ruiz and his attorney were in the public hallway. DEA Agent B also observed Flores Ruiz and his attorney in the hallway near courtroom 615 and noted that Flores Ruiz was looking around the hallway from different vantage points. Both agents observed Flores Ruiz and his counsel walk briskly toward the elevator bank on the south end of the sixth floor. I am familiar with the layout of the sixth floor of the courthouse and know that the south elevators are not the closest elevators to courtroom 615. And therefore it appears that Flores Ruiz and his counsel elected not to use the closest elevator bank to the courtroom 615. DEA Agent A followed Flores Ruiz and his attorney toward the south elevator bank. At approximately 8:50am DEA Agent A alerted other members of the arrest team that DEA Agent A was on the elevator with Flores Ruiz. So if you're asking also why there's DEA agents and FBI agents, that is likely because like 25% of the FBI and DEA have been reassigned and deputized to ICE.

[Andy McCabe]

Yeah, there's, there's so many, there are so many problems with this thing.

[Allison Gill]

Let me ask you, let me ask you about arresting somebody without a grand jury indictment. I watch a lot of court drama on television. And I know, like New York State law, for example, is if you have pretty good reason to arrest someone, like you got a witness statement and a positive ID and a voice ID, you can arrest them. But you have 24 hours to get a true bill from a grand jury. After that, after you arrest them, is it kind of the same thing with federal charges? Like, you can charge if you have good enough reason to believe somebody committed these crimes, and then you have to get a true bill? I mean, don't you have to get a true bill at some point?

[Andy McCabe]

Well, you, you still have to go to a judge, even if you don't, if you don't have the person indicted. A true bill is an indictment. If you don't have Them indicted first. That's like the. The traditional way to do it is the prosecutor presents evidence to a grand jury, then the grand jury votes there was probable cause, I believe a crime was committed, they issue the indictment. You get an arrest warrant based on that indictment. If it's something that happens quicker, the agents can fill out an affidavit and they can write a complaint. The prosecutors do, and you go straight to a judge, and a judge makes the determination of probable cause. If he finds that there is probable cause, the arrest warrant is issued by the judge, and then you have 10 days to indict the case. It's not 24 hours, it's a little bit longer. Typically, lots of times defendants will waive the indictment and not insist on being indicted, depending on what. What they've been charged with and all that kind of stuff. So there's different ways to do it and slightly different in the federal system, I don't think. Like, I think this whole. This whole episode here is really should never have happened and is regretful for a lot of reasons. Preliminarily, like, people do get arrested in courthouses. It's not unheard of, doesn't happen every day, but it typically has to take place like in the public area of the courthouse, like in the hallway outside the court rooms. And you don't. You typically do it after the person has been in court, had their day in court for whatever proceeding, they're there for whatever. And then also in order to get into that area as an armed agent, you kind of have to at first make yourself known to the security people on the way in. You tell them, we're here to arrest someone. Here's the person, here's where we're going to do it. So everybody's kind of on the same page.

[Allison Gill]

This feels like a propaganda stunt.

[Andy McCabe]

It is, I think, for a lot of reasons. And the key to that is how the government reacted after it happened. Whether or not this woman, the judge, Hannah Dugan, I think is her name, committed a crime here, that's for the process to figure out. The complaint is pretty detailed. They claim to have witnesses who were in the courtroom, heard things that she said, saw her actions in allegedly escorting the lawyer and Ruiz through a juror door into an area that's not public. Whether or not that was an effort to help them evade law enforcement, like that's what the trial will be for, to figure out they didn't have to go through this nut roll today when they came back. It's been about a week when they got their ducks together, and they came to arrest the judge. They waited. They didn't go to her house like you would do for any other defendant, knock on the door and all that kind of stuff. They didn't treat her like you would treat any other person of respectable stature in the community who's never had any kind of criminal involvement. Typically, you know, white collar offenders do this all the time. Your. Your lawyer gets a phone call and they say, come to the courthouse at X time to be presented.

[Allison Gill]

Donald Trump.

[Andy McCabe]

Got all Donald Trump. Yeah, there you go. That. We all saw that show happen in three different cities. So they didn't do that with her. They went to the courthouse and arrested her at the courthouse in front of the public, and her colleagues took her back and put her in the cell and made her sit in the cell for hours until her arraignment finally took place. So this was all done as an orchestrated bit of Trump administration performative retaliation so that judges all across the country will see this and say, I don't want that happening to me, and they'll be more compliant. So in another. Yet another example of the kind of retaliatory, coercive approach that the Trump administration takes to justice. And now they're. Now they're on tv because I was on just an hour or so ago yelling and screaming about, you don't understand. This guy is a horrible person. He was in court on a miss. On a domestic violence claim, which is what he was in court on. He was in misdemeanor court. This judge only hears misdemeanors. And I'm not. I'm not minimizing domestic violence in any way, but, like, there's a process there, too. There's a due process that has to happen in that case as well.

[Allison Gill]

That guy gets due process, too, you know.

[Andy McCabe]

Yeah, that's the way it's supposed to work. Typically, the Justice Department, they file their complaints, their indictments, and they don't speak about cases while they're still pending. Instead, here you got Pam Bondi out on Fox News all day long, yelling and screaming about this judge, what a horrible person she is.

[Allison Gill]

Well, that's what this does. This feeds the narrative for this administration that the judiciary is corrupt and needs totally taken down a peg and et cetera.

[Andy McCabe]

So this is, in some ways, like, the best thing that ever happened to them because it gave them an opportunity to just wail away on her and the judiciary writ large and try to look like the white knights of immigration enforcement.

[Allison Gill]

Yep.

[Andy McCabe]

But anyway, also today, we've got Pam Bondi signing a memo that directs law enforcement nationwide to pursue suspected gang members into their homes, in some cases without any sort of warrant. According to a copy of the directive exclusively obtained by USA Today. The directive issued by attorney. The attorney general on March 14th over a month ago. Oh, yeah. Provides the first public view of the specific implementation of the 1798 Alien Enemies act, invoked to deport migrants accused of being members of the Venezuelan gang trend Aragua. It provides directives to frontline officers apprehending suspected trend Naragua members, suggesting officers obtain a warrant of apprehension and removal, quote, as much as practicable. Yeah. Those administrative warrants are signed by immigration officers, not judges. Like criminal warrants, due to a, quote, dynamic nature of law enforcement procedures, officers are free to apprehend aliens based on their reasonable belief they meet the definitions, the memo states. It purports to grant authority for police to enter a suspected, quote, alien enemy's residence if circumstances render it impracticable to first obtain a warrant. Wow, this is frightening. I mean, really frightening. And doubly frightening that my former colleagues are out there doing this with them, because this is not something that FBI agents do. Well, it wasn't until now.

[Allison Gill]

Wow.

[Andy McCabe]

Yeah.

[Allison Gill]

That is terrifying. That is so anti. Constitutional.

[Andy McCabe]

Yeah. Yeah.

[Allison Gill]

My goodness.

[Andy McCabe]

And we know what happens to those people once they're detained. They get shuttled down to places like Blue Bond and thrown on a plane, or attempted to get thrown on a plane and sent out of the country. So without any sort of due process.

[Allison Gill]

So, yeah, things are sometimes not just sent to another country, but sent to a prison where they could.

[Andy McCabe]

Yeah, yeah. For sure.

[Allison Gill]

All right. Ed Martin. Our good friend Ed Martin issued a statement this week for the arrest of a domestic terrorist accused of vandalizing Teslas. Despite the domestic terrorist moniker. Andy, the person was charged with a misdemeanor and released on his own cognizance.

[Andy McCabe]

You. You are a domestic terrorist, but we all hate Tesla, so, you know, just slap on the wrist. What do you. What can I say?

[Allison Gill]

Wow. So I bet this is just them, you know, trying to force their domestic terrorism lab onto misdemeanor vandalism charges for people who are ror. I just. Wow. I've never seen domestic terrorist and ROR in the. In the same statement, but he released it.

[Andy McCabe]

Yeah. I mean, thank you, Ed, once again sending us more information for the show. And we'd be remiss if we didn't share some of the dressing down that Trump's Department of Justice received this week from Judge Lamberthe in The Voice of America case. Now, Judge Lamberth, just like Judge Wilkinson in the 4th Circuit last week, Lamberth was also appointed by President Reagan. So no left leaning, what is it? No Marxist, lunatic lefty, Whatever the heck it is.

[Allison Gill]

Radical leftist.

[Andy McCabe]

Radical leftist. Yeah. So Paul Barrett writes for Just Security. As with the two earlier trosh, Judge Lamberth did not delve into the potentially sticky question of whether President Trump violated the First Amendment protections of expression and the press when he shut down the Voice of America and its affiliates. The judge found the case relatively easy to resolve based on two other main the constitutional principle of separation of powers and the Administrative Procedures Act. The judge explained that the separation of powers analysis is buttressed by the apa, under which courts have the authority to set aside an executive branch action deemed arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.

[Allison Gill]

And when shutting down voa, the administration not only failed to provide reasoned analysis, the judge said, it failed to engage in any analysis at all. Moreover, the earlier TROs were based on this failure. In response, the administration had the opportunity in written filings and in person hearings, to proffer some kind of reasoning, any kind of reasoning. But government lawyers declined to do so, and Judge Lamberth seemed startled. Quote, in their briefing before this court, he said, the administration's attorneys do not even use the words arbitrary or capricious anywhere, even though the central holding of the TRO was that the defendant's actions were. Were arbitrary and capricious. Now, during a hearing before him, the judge added, the defendants opted not to argue the merits of the arbitrary and capricious challenge, despite being given several opportunities to do so. Wow. It's almost as if to say, nudge, nudge, wink, wink, arbitrary and capricious. It reminds me of when Judge Eileen Cannon was like, yeah, you know, it's this kind of equitable jurisdiction for your special master in the documents case. Right. If you wanted to give me that, I'd look at it.

[Andy McCabe]

See? Yeah.

[Allison Gill]

Now, the government made the elementary mistake of relying solely on a claim that Judge Lamberth lacked jurisdiction to hear the case, which he convincingly rejected. It was a rudimentary error by the Department of Justice lawyers. In cases such as this, lawyers are trained to argue in the alternative, make the jurisdictional argument, but in case that doesn't fly, offer the substantive statutory argument as well. Incredibly, the government did not do so. Andy, we talked about this all the time during the JACC podcast. We called it even if the even if clauses.

[Andy McCabe]

Right.

[Allison Gill]

Right. Even if you decide, Judge, that he is immune it doesn't apply here because these aren't official acts. Right. Like, yeah, in this case, it would be. He's not immune. The end. Right. No, you, you, you make the even if arguments, and the DOJ failed to do so, and Lamberth took him to school for it.

[Andy McCabe]

You typically make every argument you possibly can, like, if they're. So this standard is, is set aside an executive branch action deemed arbitrary, capricious and abusive discretion or otherwise, not in accordance with the law. So typically, a lawyer would address each one of those elements and provide some precedent.

[Allison Gill]

And it's not arbitrary because it's not capricious because it's not an abuse of discretion.

[Andy McCabe]

And it's finally, you know, it is in accordance with the law. But now they're just like, yeah, like.

[Allison Gill]

I remember the judges going through Richie Factors, like, well, I'm going to dismiss this on this one thing, but I'm going to go through your Richie Factors anyway.

[Andy McCabe]

Each one.

[Allison Gill]

Right. And tell you each one why. So they failed. And that's. And again, we've talked about this now for a few weeks, Andy, that the doj, remember, there were some Department of Justice lawyers who were running back and forth to courts that were like, principal attorneys. And, and the judge is like, what are you doing here? He's like, I don't know. I'm supposed to be in Florida. They're just so staffed and there's the, the, the brain drain, right. Is so significant that they're only left with, like, handfuls of lawyers and they aren't making the good arguments. Now, we haven't seen good arguments from Trump lawyers. I mean, how many times did we take apart Emil Bovey's arguments or filings or Todd Blanches? And now they're senior staff at the Department of Justice, so it stands to reason, I guess. But the judges aren't, aren't pleased.

[Andy McCabe]

Yeah, for sure. They shouldn't be.

[Allison Gill]

All right, we have some listener questions and then we'll get out of here. I know we've kept you for over an hour now. I feel like a professor. Like, I'm sorry, I'll dismiss you in just a moment, but we want to get to these listener questions, at least one of them. If you do have a question, there's a link in the show notes you can click on. Submit your question. We'll see if we can get to it on the air. We do read all of them, and we absolutely were. We're just always just fascinated and riveted by your amazing questions. So, again, click on that link in the show notes and send your questions. What do we have this week for questions, Andy?

[Andy McCabe]

All right, so this one comes to us from Andrea, and Andrea writes in something that I think a lot of people are wonder, wondering as we track all of these cases that seem to be bouncing back and forth. She says cases against the government are going up and down between federal and appeals courts and the Supreme Court. I'm curious about the inner workings of judges chambers. Can judges at, for example, the federal level consult with their colleagues on the bench or higher up the food chain before they issue orders? I think that with controversial issues, they'd want to know their findings are justified and that their colleagues support their decisions. Or is this a judicial. No, no, it's a really good question. And I think it's reasonable that people that not just you, Andrew, but lots of people would think that that's probably happening behind the scenes now.

[Allison Gill]

Sometimes. Sometimes. Like I remember when Judge Eileen Cannon's three of her colleagues called her and said, don't take these cases.

[Andy McCabe]

Yeah. So that was the same thing I was going to point to. So generally you're not going to go outside of your immediate group of colleagues. So that's the judges that serve at the same level as you. So if you're a district court judge, that's the other district court judges, and to include the chief judge of your district, who is the one judge who's nominally kind of in charge of all the rest of you. And generally, you're not going to talk about the substance of the legal issues. You're ruling on that. What you do, what you might see, and you did see it in that case with Eileen Cannon, you had the chief justice of that district saying to her, hey, you should think about recusing from this. And then she had another judge made the same argument to her, those kind of things, maybe especially in a case like that where you had, like, older senior supervisory judges talking to a very, very new colleague. But generally experienced judges, they're going to have conversations about the legal issue in the case. It's with their law clerks on their side.

[Allison Gill]

Yeah, they're safe. They're clerks. Right.

[Andy McCabe]

Yeah. Because that's all of them. Right. That all comes back to them. They're not going to go to other judges and say, what do you think? Should I call it this way or should I call it that way? And they definitely won't have those conversations with, like, judges on the appellate court because it would be kind of improper to like putting that issue in front of an appellate judge before the case. Is even there.

[Allison Gill]

Yeah. I have seen judges in district court write for judges in higher courts or justices on the Supreme Court with them in mind just because they know the rulings that they've made in the past.

[Andy McCabe]

Oh yeah.

[Allison Gill]

Once you made a decision, think there's a direct consult going on. So, you know, I would say totally agree with what everything Andy just said. And this is from speaking with a few judges that I've talked to and asked sort of similar questions about. They don't generally go out of their level. They usually stick to their, you know, talking to their clerks who they bounce law off of and, and things like that. But they are very aware of what courts above them, like Judge chutkan, what the D.C. circuit Court of Appeals rulings are, what those specific judges are like, what the kind of language they like to hear. And then of course, the Supreme Court too, we've seen a lot of like Judge Pryor in the 11th Circuit will write kind of almost to Clarence Thomas, but only based on stuff that they already know those judicial decisions have been made. So yeah, I, that's, that's, that's my thought exactly.

[Andy McCabe]

They very much do not want to get overturned, period. And so they know all of the pro, they know the precedent in their circuit. Right. They're very like you say, they're, they're watching those opinions that are coming out of their circuit court on, on high profile issues. They're up. Those are the cases that are most important to them when they're looking for precedent upon which to base their decisions. And if they know like particular judges on the circuit court are look for particular pieces of evidence, they'll make sure they highlight that in their decision. That all definitely goes on more so than we think about. We think it's all federal law. Who cares? It's all the same. But they're very circuit focused. But I don't think a lot of like, you know, phone calls get made or over the tennis court or signal chat middle of the pickleball game. Hey, Judge.

[Allison Gill]

Well, great question. And you know, I'm going to go back and talk to some more of my, my judge and lawyer friends to, to see if I can get any more information out of them on that subject. But wonderful question.

[Andy McCabe]

Yeah.

[Allison Gill]

All right. That, I think that's all we have time for. We've already been an hour and 10 minutes, Andy, so we're going to call it for this week. But again, thank you so much for your questions and click on that link in the show notes if you want to submit yours. Maybe Maybe it'll be a quiet week and we can get to more listener questions next week. Remember that one, like at the end of the Jack era where we just like did all listener questions because we didn't have any jack news?

[Andy McCabe]

Lightning round like, come on, more questions.

[Allison Gill]

Digging for questions. So there will come a day.

[Andy McCabe]

That's right.

[Allison Gill]

I don't know if it's going to be this week or this month, but we will need your questions, so please submit them. We always like to go back too, to some older questions.

[Andy McCabe]

Yeah.

[Allison Gill]

And check them out when we're, when we're running low.

[Andy McCabe]

So hey, there's, there's always a day in everyone's house where you go digging deep into the closet trying to find that last can of beans, you know, so we get there, you know, we'll be coursing through the questions for more.

[Allison Gill]

Yep. Appreciate you all. Thanks for listening. And we'll be back. We'll be back next week. I've been Allison Gill and I'm Andy McCabe. Unjustified is written and executive produced by Allison Gill with additional research and analysis by Andrew McCabe. Sound design and editing is by Molly Hockey with art and web design by Joelle Reader at Moxie Design Studios. The theme music for Unjustified is written and performed by Ben Folds and the show is a proud member of the MSW Media Network, a collection of creator owned independent podcasts dedicated to news, politics and justice. For more information please visit mswmedia.com.