Jack - Constructive Custody

Episode Date: May 4, 2025

Discovery in the Abrego Garcia case resumes after Judge Xinis denies the trump administration an additional extensionEd Martin’s nomination as United States Attorney for the District of Columbia is teetering on the brink after Senator Dick Durbin says that the Senate is not going to move forward with it.Department of Justice civil rights attorneys leave in droves as the administration guts programs for crime victimsPam Bondi rescinds Biden-era protections preventing the Justice Department from spying on journalists.Plus listener questions…Questions for the pod? Questions from Listeners Follow AG Substack|MuellershewroteBlueSky|@muellershewroteAndrew McCabe isn’t on social media, but you can buy his book The ThreatThe Threat: How the FBI Protects America in the Age of Terror and TrumpWe would like to know more about our listeners. Please participate in this brief surveyListener Survey and CommentsThis Show is Available Ad-Free And Early For Patreon and Supercast Supporters at the Justice Enforcers level and above:https://dailybeans.supercast.techOrhttps://patreon.com/thedailybeansOr when you subscribe on Apple Podcastshttps://apple.co/3YNpW3P

MSW Media. Discovery and the Abrego Garcia case resumes after Judge Sinise denies the Trump administration an additional extension. Ed Martin's nomination as United States Attorney for the District of Columbia is teetering on the brink after Senator Dick Durbin says his understanding is that the Senate is not going to move forward with it. Department of Justice civil rights attorneys leave in droves as the administration guts programs for crime victims. And Attorney General Pam Bondi rescinds a Biden era protection against the Justice Department spying on journalists. This is Unjustified. Hey everybody, welcome to Unjustified. This is episode 15. We're on 15 weeks now.

Look at us. Yeah, this is a podcast that follows Trump's Justice Department, or lack thereof. It is Sunday, May the 4th., may the fourth be with you. I'm Alison Gill. And I'm Andy McCabe. Oh, we got a lot to cover this week, Alison. No, no change from any other week really, especially lately. So let's jump in with the latest in the Abrego Garcia case, which we've been tracking very closely. So last week, the Trump administration filed a motion to delay the two-week discovery process under seal.

And it included something that caused both Judge Sinise and the lawyers for Abrego Garcia to agree to halt the discovery process for a week. Yeah. And you and I had some guesses about what it must have been. It couldn't have been like what we said, like his brother's best friend's boyfriend's girlfriend needed a ride to 31 flavors or whatever, or just a regular old delay, right? Because she had excoriated the government just the day before about their lack of discovery or stonewalling discovery. So she was not too pleased, none too pleased with the Trump administration

the day before. And we know that the lawyers for Abrego Garcia are also very wary of what the Trump administration is doing. And then the New York Times reported that the Trump administration had sent a note to the president of El Salvador, Bukele, asking him to release Abrego Garcia. But apparently, Bukele said no. What? Yeah. And so, like I said, you and I talked about the possibilities and figured it must be the government promising to release him, right? Give us a week.

We're going to try to release him, right? When we heard about the delay, right, we were like, well, they must be working on some sort of resolution to this whole thing. Right. Because it wouldn't just be, we need another week because we're really thinking hard about the state secrets privilege or this new privilege we just invented called the governmental privilege or whatever. So it wasn't, it couldn't have been anything like that. So we figured he, they promised, yeah, we're going to, we're going to try and

these are the steps we're going to take. Right.. And so you know, they gave him a week to do this. Right? Yes. You know, it's it's crazy to me this that we asked and Bukele said no. No, I know. And the the power and the might and the majesty of the United States government shrugged their shoulders and walked away? Yes. Is that right? And that's embarrassing if you're the president of the United States and you can't get El Salvador to agree to do something.

Yeah, yeah, because we know that Donald Trump always takes no, right? Right. Is it such a history of like just accepting people saying no to him? Yeah, that seems ridiculous. So, Abrego Garcia's lawyer also told Rachel Maddow that the sealed delay request did exactly that.

It said that the US Department of Justice needed time to take steps to return Abrego Garcia to the United States. So their lawyers confirmed. That's right. But the day before the delay was going to expire, the government filed another motion under seal and this time the judge denied it and ordered the discovery process to resume. Yeah, fool me once. Right? This is what her order said, by no later than Friday, May 2nd, 2025, which was a couple of days ago, the plaintiffs, that's a Brego Garcia's lawyers,

must narrow their interrogatories nine through 11 and requests for production of documents 6 through 8, consistent with her other order that came out before the delay was granted. Now, also she said, defendants, that's the Trump administration, the government shall answer and respond to all outstanding discovery requests and supplement their invocation of privileges consistent with the court's order. That means give me a log. And if you don't give me a privilege log, I am taking away all of your privileges. Exactly. And she's asking for that no later than Monday, this coming, that's tomorrow, May 5th. The depositions of Robert Cerna, Evan Katz, Michael Kozak, and Joseph Mazara, the four

people that had submitted affidavits, sworn declarations. They need to complete depositions no later than Friday, this coming Friday, May 9th. And by no later than this Wednesday, May 7th, the plaintiffs can move for leave of court to conduct up to two additional depositions of individuals with knowledge and authority to testify regarding the matters identified in her original or not original order, but one of her many orders. And the defendants can respond to that by Thursday the next day, May 8th. And that's where you and I, Andy, were like, they should get Kristi Nohman on the stand or Marco Rubio or something. Yeah, for sure.

And then she says at the conclusion of the expedited discovery, but no later than May 12th, that's a week from tomorrow, plaintiffs shall file, Abrego Garcia's lawyer shall file a supplement to their motion for other relief. That's like contempt or show cause or sanctions, right? And the Trump administration can respond to that no later than Wednesday, May 14th, 2025. So this discovery process is like a prelude to contempt proceedings, right? Let's get all the information we can and then a break over Sears lawyers, you guys can file for sanctions or a show cause motion to kick off contempt proceedings etc and all of that has to be done by May 14th. That's right that's right I'm kind of shocked that her order

here didn't start with I can't believe I gave them another week. I mean it just it felt like last this time last week we were just stumped and thought it must be something really significant that they've promised. And now it turns out that was in fact the case. And lo and behold, they failed to deliver. I have some serious questions about how legitimate their ask was, or maybe if their ask was also transmitted with some other instructions or hints informing Bukele that a denial would be absolutely acceptable in their eyes.

So there's no way to know that. But the idea that Bukele, who is literally a contractor for the federal government now, he's being paid a lot of money six million dollars possibly to hold these These detainees for one year at the end of that term He has said his government has said then it's up to the United States to decide what to do So that's certainly indicative of some sort of contractual relationship in which he is subservient to Whatever it is the Trump administration wants done. So it's hard to believe that a legitimate, forceful, persuasive request for

the return of Mr. Abrego Garcia was actually delivered. Yeah. And that's where a contempt thing would come in, I think, because, you know, as Steve Lattek points out, you know, Judge Sinise cannot order Bukele to do anything, but she definitely has jurisdiction to order the Trump administration to do something. And the court can examine the actions that they take, right? The steps they take to facilitate the return of Abrego Garcia. Steve Vladeck wrote in his sub stack, the question in Abrego Garcia is not whether Judge Sinis can order Bukele to do anything, she cannot, it's whether and to what extent Secretary Noam, who certainly is subject to Judge Sinis's jurisdiction, can take steps to effectuate Abrego Garcia's

return. If Noam swears under oath that she's powerless, Steve Vladeck says that would be one thing, but one, that would be more than a little difficult to believe, and two, that hasn't happened yet. And I personally, Andy, especially after that New York Times piece came out and then the lawyer for a break of Garcia went on Mado and said, yeah, that's what it was as they asked for a week to try to release him.

And then obviously, it seems to me Trump was like, hey, Mr. Bukele, I'm going to ask you a question and you're going to say no. Okay. And that's kind of I think it was a ruse to delay discovery. Or an effort to try to kill the thing entirely. Right. This will be the flag that they fly going forward in this thing, legally saying, hey, we did everything we possibly could.

We employed the diplomacy. We tried. The influence of the United States government. We asked, they said no, now we're out. We're out of options. There's nothing you can order us to do. Because that's essentially what the court is ordering or is going to order them to do. Like take the actions, the lawful actions that you as the United States have, the tools in your toolkit, and use, employ

those tools to get this guy back. And, you know, it's like what we've seen in Judge Boesberg's court, right? She can't order Bukele to do anything. She can order the US government to take steps, I believe. And then it becomes a matter of, are they complying with her order, right? Whether they like it or not, they have to comply with it. And I think the court, I think she could get stuck there because she would be saying,

I don't think you've done enough. And Noam will say, I've done everything I can. He no and the court and maybe a break goes Garcia's lawyers can argue that no you haven't done enough for prove that you've done enough show us what you've done. But I mean you can't it's like then it becomes a he said he said doesn't absolutely yeah absolutely. It's like then it becomes a he said he said, doesn't it? Absolutely. Yeah, absolutely. And I think we get stuck there, honestly, and sadly. And that might be true for Boesberg's case too, which we're going to discuss in a minute. Because if you're wondering what Trump's defense is in the Abrego Garcia case, if you're wondering

what it might be, we have some big clues because the government has filed its response on Judge Boesberg's docket in the case filed by the ACLU on behalf of all the rest of the men stranded in Seacoat. And we'll get that defense. We're going to discuss it because there's several issues that they bring up on Boesberg's docket. We're going to discuss all of that after this quick break. So stick around. We'll be right back. Welcome back. All right. After the Supreme Court made its ruling, vacating Judge Boasberg's temporary restraining orders

and declaring that all alien enemies act cases must come in the form of habeas petitions in the districts where plaintiffs are being detained, multiple petitioners began filing habeas claims. One in Colorado, where a judge has issued a temporary restraining order, one in the Southern District of New York, where there's also a TRO, and one in the Southern District of Texas,

which included three of the original five plaintiffs, among others. Now, just this week, the judge in the Southern District of Texas issued a permanent injunction and became the first court to declare Trump's use of the Alien Enemies Act unlawful. Hmm. And that might be the thing that unjams us and gets us out of this pickle with everybody who's in Seacoat, right? I don't know, maybe. But it could be the case that makes its way to the Supreme Court to decide the legality of the application of the Alien Enemies Act.

Yeah, it's either that one from the Southern District of Texas, Judge Fernando Rodriguez, like you said, at Trump appointee, or this one, the one that ACLU filed on behalf of the rest of the people down in Seacoat in DC. So the judge, like you said, Trump appointee, and as it turns out, the proper jurisdiction to file habeas petitions for people who've already been removed or aren't in the United States is the District of Columbia. And the ACLU filed their amended complaint on Judge Boesberg's docket and added Andres Hernandez Romero, the openly gay stylist, and Frankel Reyes Mota, the man who has zero

tattoos and was sent to see code on a paperwork error. They've been added to this case as the lead plaintiffs. They also, we talked about this last week, filed simultaneously a motion for class certification and had a couple of subclasses that we talked about and a motion for a preliminary injunction. And this is the, but we're going to talk about Trump's response to their amended complaint, arguing that Trump's use of the Alien Enemies Act violates all kinds of laws and the Constitution. So from 50,000 feet, Andy, five plaintiffs, this all started, five plaintiffs filed a temporary restraining

order in Boasburg's court back in March. Boasburg granted it in order to planes be turned around. The Supreme Court said, no, you can't issue a nationwide injunction. So we're vacating your temporary restraining orders. And from now on, you have to file habeas petitions in the jurisdictions where people are being held. So, the two guys from the original filing that were in New York filed in New York and they have a restraining order like you said. The three guys in Texas filed in Texas, some in Colorado that weren't part of the original case have filed, etc. And the people in Seacoat still filed in DC here with the ACLU.

That's this case. The Trump administration has filed its response and in it, we kind of get a glimpse into what the government's defense will be in these Alien Enemies Act cases. This is their defense for being able to use or invoke the Alien Enemies Act, right? That's right. And let's remember the Alien Enemies Act dates back to what seventeen ninety eight or something like that late seventeen hundreds. Ended entitles the united states government to remove people who are here during a time of war or incursion. And it's only been used three times i think right world right? World War I and II and... 1812.

1812. Okay. So let's look at the government's defense. So first they argue that Boasberg doesn't have jurisdiction. They say, this is petitioners second attempt to challenge the president's invocation of the Alien Enemies Act with respect to Trinidad and Aragua in a district in which none of the affected individuals are located. The Supreme Court decisively rejected the first attempt. The second one should meet the same fate. Of course, they're not in DC.

They're in El Salvador, sir. Yeah. Why didn't you file in the Southern District of El Salvador? They're residents of the District of El Salvador. Yeah, exactly. Okay. So the problem with this argument, as you've said, is the plaintiffs are actually in El Salvador and therefore DC is the proper venue.

There's plenty of case law supporting that. And to say that this is like the first case the Supreme Court vacated is really a bad argument. The first case was rejected because the five plaintiffs were still in the United States, two in Southern District, New York, three in Southern District of Texas. So the proper venues per the Supreme Court and for those people were the Southern District of New York and the Southern District of Texas. And a judge has issued, of course, as we said, temporary restraining orders in both of those districts after the plaintiffs went ahead and filed the habeas motions that the Supreme Court said they had to do.

Okay. So the Trump administration also argues that the government does not have constructive custody of the men in CICOT and that El Salvador has custody. Wrong. Yeah. So this is another, this is another is no problem here cuz this is not been true in some previous not identical but similar cases okay so when the u.s. Sent to tainy's to guantanamo in the past. Constructive custody of them, but let's remember that the detainees in those cases were in a u.s

Administered territory Guantanamo Bay, which is a which is it's a it's in Cuba, but it's essentially like us Diplomatic space right and they were on a u.s. Military base and they were they were officially in the custody of u.s Military police yeah, but it also has to do with where they were apprehended custody of US military police. Yeah. But it also has to do with where they were apprehended. Right. Yes. They were all picked up in other places, Afghanistan, Pakistan, what have you. Yeah.

But while the ACLU cites a case called, uh, boomadeen, I think that's it. Yep. Yep. That's the Guantanamo case. Also the government in response cites Al Makayla. How do I say that? Al-Makayla. How do I say that? Al-Makayla.

Al-Makayla v Gates, which is a 2010 case. And this is what it says, where the DC circuit found no habeas jurisdiction, even though the aliens were held by the US military at an Air Force base because the US was merely leasing the base and did not have de facto sovereignty over it. Here, not only does the government not have sovereignty over C-code, but it doesn't even have a military presence or a lease. That defeats the habeas jurisdiction. That's their argument. That's the Trump administration's argument here. Yeah.

But the Bush administration back in the Alma Kalaila case decided to render Al Makhila to Bagram instead of Guantanamo to circumvent the reach of habeas. And Al Makhila was apprehended outside of the United States, outside of Afghanistan, actually. And that is one of the factors in Boumediene, where you're apprehended, not just where you're being detained. And the men in this case were apprehended in the United States.

But who knows, perhaps this Supreme Court will decide this case is more like Al Makhailah and less like Boumediene. But it sounds to me like a lot of this depends on the detention agreement between the government and El Salvador, which the government refuses to share with the court. That's right. So the ACLU argues that the agreement between the United

States and El Salvador shows that El Salvador functions the same as any other contract facility. And therefore, the US government maintains the power to secure and transport detainees. Now, since the government refuses to share that agreement, the ACLU points out multiple public statements from the administration that the agreement exists. And if it exists, the government has control

over what happens to people detained in the United States and sent to El Salvador at the United States government's request. Right, like if we detained a bunch of people, El Salvadorans, and ran them through INA and decided that they weren't here legally and legally deported them to El Salvador and then they got in some trouble and ended up in Seacoat, that's very different than Trump paying Bukele $6 million to accept a plane load of detainees and put them in Seacoat.

Yeah. You have to think about this as basically like agency theory, right? If I do something, then I'm responsible for it. If I pay you to do something, I'm probably responsible for that too, because you're acting as my agent. That's a fundamental kind of a theory in American jurisprudence. So, okay. so in the ACLU's complaint, they cite the following examples. Now these are examples of US officials making public statements that indicate or serve as evidence of the existence of this agreement between the US and El Salvador. So the first one is social media posts by Secretary of State Marco Rubio discussing the US agreement

with Salvadoran government to detain individuals in exchange for payment. That seems pretty clear to me. We have quite a few more here. There's more. That's probably enough. The second one is White House spokesperson, Caroline Levitt. Am I pronouncing her name correctly? I think it's Levitt.

But. Levitt. am I pronouncing her name correctly? I think it's Levitt, but. Levitt, okay. Caroline Levitt stating the detention cost was quote, approximately six million to El Salvador. Okay, you don't just pay someone six million for nothing. There's something comes back in return, in exchange for that six million. And that's what makes it a contract.

It's an offer and acceptance, right? All right, third one is another social media post by Rubio saying, very good jails at a fair price that will also save our taxpayer dollars. Oh, our taxpayer dollars. Yeah. Paid for this detention. Yep, and if that were enough you have Salvadoran President Naib Bukele said, quote, he has publicly touted the agreement terms, while the El Salvador Ministry of Foreign Affairs has published its memorandum reflecting the agreement for that country to hold detainees for one year,

pending the United States decision on their quote, long-term disposition. I'm sorry, did you say the United States decision? I did, yeah. How does the United States get a say if it's completely sovereign to the sovereign state of El Salvador? Yeah, you know, that's a great question. I think another interesting thing about this is the term that they published a memorandum reflecting the agreement, i.e. this memorandum was based onandum reflecting the agreement,

i.e. this memorandum was based on a reading of the agreement, so therefore it exists, and also part of that agreement is for the country to hold the detainees for one year. Now, a first year law student could tell you that one of the elements that proves the contract that you have to have in a contract is the term. The time period, right? Every contract has to have a specific time period, like this one as one year.

Yeah, and the fact that the United States can amend that and it's not fully just Bukele's decision. That's right. Means that we have constructive custody of these detainees. But even if it was just Bukele's decision, the next example is Bukele has posted on social media that El Salvador quote, offered the United States of America the opportunity to was just Bukele's decision. The next example is Bukele has posted on social media that El Salvador quote, offered the United States of America the opportunity

to outsource part of its prison system and that the United States quote, will pay a very low fee to detain alleged TDA members at Seacoat. And then finally you have DHS Secretary Kristi Noem, she's personally toured SeCOAT, the facility, and declared that transferring those previously on US soil to CCOAT is, quote, one of the tools in the United States toolkit that we will use if you commit crimes against the

American people. Thank you, Secretary Noem. Fantastic. So nobody talked to any lawyers about anything before they just said this stuff. They didn't go on their signal chat and figure it out. They just say the quiet part out loud, which is good. It's good. It helps us keep track of what's actually going on.

I object on what grounds. It's devastating to my case. And by the way, you're going to love how the Trump administration responded to that litany of evidence. So remember, we're talking about Trump's response to the ACLU's lawsuit to release these guys from C-Code. This is what Trump said about all that that you just went over. Petitioners primary evidence that the United States has custody comes from a handful of

vague statements by a few officials that the United States has custody comes from a handful of vague statements by a few officials that the United States is paying El Salvador to detain petitioners. This is contrasted by a clear official declaration under oath that the United States does not have custody or control over the petitioners. El Salvador makes its own detention choices as a separate sovereign and that should suffice Huh, so we should just take their word for it and not take all their other words for it I wish that there was a I wish that they had cited a bunch of stuff where they lied to the public But said something different in court as evidence that they often do this.

That would be fun. Like remember when we said that Trump ordered 10,000 National Guard to the Capitol but under oath and here in filings we said that that never happened. This is one of those situations. So whatever Kristi Noem said and Bukele and Marco Rubio, that's the lies we tell to the public. The real truth is that one guy in one affidavit saying that we say under oath that we don't have custody or control. They also said that the planes couldn't turn around.

I mean, this gets back to what we talked about last week. That's like presumption of normal order that the United States government used to enjoy in federal courts is eroding. It's disappearing because they say things that are patently false now. And in this case, we're not saying, oh, we're going to take, you should take our word over your word. We're simply, the ACLU is saying, these are your words too. too. You have said the, you said the opposite thing six times and now you're saying different. So let's leave it up to the judge to decide who they believe, you or the older you.

But get this, they go on to say though, Andy, they go on to say, hey man, and even if let's say there's an agreement, like let's say there's an agreement like let's say we have an agreement even if that agreement exists they say quote to the extent the United States and El Salvador made a bilateral agreement it's not an enforceable agreement providing that the United States can obtain or retain control over aliens in prison on Salvadoran soil by Salvadoran guards so they're like even if we do have an agreement saying that we maintain custody, that's not enforceable.

We signed an illegal agreement with El Salvador and it shouldn't be honored. That's basically what they're saying. Do you remember that thing last week we were talking about, like they came into court and never made the argument in the alternative? Right. Lawyers. So here at least they're doing that. At least they're like, but if there's an agreement,

which we said there's not, but if there is, it's not enforceable, okay, so what happens? I guess they learned their lesson. We should give an even if statement. Right? It's improvement. We'll give them like one point for improvement this week. They, yeah, but I mean like, okay, so then what happens if you don't pay them the

$6 million? Is that also not enforceable? Probably not. So it's a mess. But lastly, the government says even if Boasberg has jurisdiction here and the government has constructive custody, the president had ample basis to determine that TDA for purposes of theies Act, is a foreign nation or government invading or engaging in predatory incursion into the United States. Now, this is where we look to the Southern District of Texas. The Trump-appointed judge in the Southern District of Texas disagrees with that, saying that the courts interpret the law, not the president,

and that the president's interpretation of the law is reviewable by the courts. And for that precedent, we have which case to thank. Marbury v. Madison? Yes, look at you, look at you. Look at me, I passed my first bar question. I think you did, I think you did. Yeah, right there.

I mean. That's funny. So, okay, we don't have an agreement. That's vague stuff and they're lying and we're telling you. But even if we did have an agreement, it's not a binding agreement. It's a legal agreement. It doesn't let us do what you want us to do. And even if you decide we have an agreement and you have jurisdiction, we get to decide

the terms and definitions in the Alien Enemies Act and the law and the statutes. The president gets to decide that, not the court. And that is just on its face, completely false. Yeah. I mean, here's how it works. The president, the administration gets to take a shot. That's their job to run the administration in accordance with the law. They have all kinds of big headed lawyers to tell them how to do that and they can take their shot. But you know what? Their shot is reviewable by the courts. That's how this works.

Wasn't there a guy in Saudi Arabia in 2004 where the courts were like, yeah, no, the habeas exists for this. And so what the government did in response was brought him back and tried him here in the United States. Yes. You know, the Bush administration is kind of an interesting analog because they fought these battles over habeas with the detainees, all many of them different situations. Some picked up here, some picked up other places, some brought to the United States

and held in military detention so as to avoid being put into Article 3 federal criminal courts. And ultimately they lost every one of those fights. And as they either lost in court, when they lost in court, they complied with the court's decision, even though they didn't like it and didn't agree with it. And when they saw all the decisions going in that direction, they just stopped fighting it. They took the detainees who fell into these categories

and they moved them into US criminal court. They were indicted, they were brought in, or they pled guilty, whatever. And that's all we're asking for here. Yeah, the guys at Gitmo are kind of the exception, because we're still struggling with the military trials process down there, which has been a total failure. But yeah, in terms of like Richard Reed and all

these other kind of problematic detainees. Eventually the Bush administration fold and on all that stuff, this one though, man, they don't look like they're going to fold. No, they're, I think they're going to say, I think they're going to have Kristi Noem come in and say under oath. I asked, I tried everything and they said no. And I don't, it's not, that's, I mean, it's not a good look, wonkily speaking, because it makes the United States look weak.

Like they can't, like they can't win an arm wrestling contest with Bukele and get them to do something that they want them to do. But in the bigger political picture, they get to say, oh, we won, we don't have to bring these people back. Yeah, and they also are doing it in kind of a wink wink nod nod way. You know, it's almost kind of like Russia. And when Russia sends a team of spies to England or Germany or fill in your country to kill someone, they do it with like a Russian chemical weapon that no one else in the world has. And then they say, we didn't do it. And they just stare right at you. That's not us. They know they know they did it. And now you know they did it. They're going to officially deny it, but they want you to know they did it. And that's kind of this has a feel like

that. Like, we can't get him back. You know, and everyone knows you could, but they're going to try to back this thing into a corner, I think. Yeah. And then I'm going to, as a political commentator, exploit that and say how weak this Trump administration is that it can't put one over on Bukele, that it can't order Bukele to do something. That's a, like, that's, it's not true, right? But were it true, that's really bad. Like that we can't, that we can't get El Salvador to cooperate with us on some, some sort of thing like this. Yeah, totally. And of course, Trump contradicted that in his comments to, I think, ABC News

this week and that interview or CBS maybe in that interviewer He was asked why don't you just call him get it call Bucalie and get it back He said I could call him and get him back, but I'm not going to right Yeah, he said he could and that that might come up too in in Either of these cases of brego garcia or the one in front of judge Boasberg. Yeah Because you said you could. Why can't you?

But, you know, that, but like, where do you go from there? It's, we'll see. It's tough. If the Supreme Court, you know, when one of these cases makes it up to the Supreme Court and the Supreme Court says, yeah, the Alien Enemies Act proclamation is unlawful here because it's not an invasion or an incursion. And Tren Darag was not doing an incursion on the United States on behalf of Maduro and the Venezuelan government. So we find this Alien Emissaries Act proclamation

unlawful. But then still, how do you get people back from Seacoat? Yeah, I think it'll go that way, if this decision in Texas is any indicator. I think that the argument under the Alien Enemies Act is pathetic. But that offers no comfort to the people who are already there. It may help avert sending anyone else there, but we'll see. Yeah, because everyone that's there, Kristi Noem will just say, I tried and Bukele said

no. And so I have followed the court order, which is to facilitate the return of Abrego Garcia. I did everything I could. Here's the steps that I took. I sent him a note. I made a phone call. He said no. and what are they going to do? Like subpoena the private conversations of Trump and Bukele for when the deal was made. That's not doesn't exist. You know, so I mean it exists, but they're not going to hand that over. They're going to shred it or it was a phone call on a burner. I don't know. They're not going to be, you know, I just feel like. It's been deleted. Yeah. Mike Waltz has left the chat.

I just feel like that's where we're going to run into the, into the problem is that the Supreme court will say, well, the Trump administration did their best. They tried and there's nothing we can do about it now. Yeah. It'll be interesting too to see like, you could make it painful, the path there, you still might get there anyway, but you could make it painful.

So if the judge really digs into this in a series of hearings, you know, to find out like, well, who made the request and what I want the letterhead, I want the copy, whatever, whatever. And then they're gonna, they're gonna oh well no we just had a conversation on the phone who is on the conversation on its deliberative process privilege. Either trump has to put himself in that role. Maybe that's in fact how it happened but anyone else could be subject to getting called into court subpoenaed and put in front of the judge and placed under oath and asked some very penetrating questions about exactly what did they ask for and what was there

an agreement or an indication, or did you also signal to them in any way that they didn't have to agree to this? And I mean, you could, you could make it painful if, if you felt like it. Right. So the point where they do what the Bush administration did was just bring And I mean, you could make it painful if you felt like it. Right. So the point where they do what the Bush administration did was just bring everybody back and put them through due process and send them somewhere else. Exactly.

Which would be due process. Right. Right. Day in court is what these people are asking for. Yeah. That's all they want. They don't want to be released into the United States. They just want due process.

All right. We're going to shift gears. We're going to talk about the embattled nominee for US attorney in the District of Columbia, Mr. Ed Martin. His confirmation is facing some pretty big headwinds. But you know, we've heard this about Hegseth, then we've heard it about we've heard it about Kash Patel. So I don't know how strong these headwinds are, but we'll talk about that after the break. Stay with us. All right, everybody.

Welcome back. Oh, Ed, Eddie, Eddie, Ed. Andy, allow me to read from this piece by Nicole LaFond, a Talking Points memo. Please, go ahead, Ed. Thank you. President Trump's nominee for DC US Attorney, Ed Martin appears to be facing skepticism from the Senate Judiciary Committee, Republican members of which met this week to discuss the seemingly endless baggage and politically motivated acts that Martin has and will likely continue to mix

into his work if officially confirmed to the position. Republicans on the panel also reportedly discussed whether to consider their Democratic colleagues' requests to hold a hearing on Martin's confirmation, right? Because I don't think the U.S. attorneys get hearings usually. Now, it appears a few Republican members have some hang-ups about the guy. Yeah, so Senator Tom Tillis, Republican from North Carolina, is the only Republican thus far to publicly acknowledge Martin might not be a great fit for the job, you think? He's been saying as much since February. Now according to CNN, Tillis said this week that he has serious questions about Martin's

nomination, specifically noting that his past remarks criticizing police officers who defended the Capitol on January 6 gave him pause. Martin of course also represented January 6th defendants. Quote, I'm talking about somebody who wants to be u.s. attorney in the jurisdiction where that event and future events could possibly occur tell us told cnn i'm going to have to get some pretty full some responses for me to feel comfortable with this nomination. Yeah when you think ahead to twenty twenty eight twenty twenty nine particularly january six twenty twenty nine do you want an insurrectionist to be the DC US attorney? Batten down the hatches, Tom. Yeah, the guy who's like, who's insulting the law enforcement presence on the Capitol is now going to be the US attorney working

with those law enforcement officers. I mean, awkward. Yeah, right. Awk. Senate Judiciary Committee Chairman Chuck Grassley, he made a pseudo acknowledgement this week that some of his fellow Republicans on the panel may not be completely sold on Martin serving in a permanent capacity. This is according to CNN, quote, we've had people on our staff that had more questions. That's what Grassley said, according to CNN. In an email to Talking Points Memo Thursday, Josh Sorby, spokesperson for Dick Durbin, ranking member of the Senate Judiciary Committee, said Durbin's and other Democrats' effort

to shed light on how unqualified Martin is for the position as evidenced by how he has used the gig in an acting capacity thus far to carry out Trump's retribution agenda. Quote, ranking member Durbin and Senate Judiciary Committee Democrats will continue to scrutinize Ed Martin's deeply problematic record and make the case that he is not fit to be US attorney. Ranking member Durbin will call for a vote on holding a hearing if and when the committee decides to move forward with the nomination, he said.

A source familiar with Martin's nomination told Talking Points Memo, at this time, Martin doesn't have the votes to be approved. Senator Alex Padilla similarly told Talking Points Memo in an emailed statement that he stands with fellow Senate Democrats in urging Grassley to hold a hearing on Martin's nomination. The American people deserve transparency on Ed Martin's nomination to be the next U.S. attorney for D.C. His previous comments in support of the big lie and association with January 6th insurrectionists have raised serious concerns and make it necessary to more closely

examine his qualifications for one of the country's top law enforcement roles, Padilla told Talking Points Memo. Quote, I stand with my fellow Senate Judiciary Committee Democrats in continuing to call on Chairman Grassley to immediately hold a hearing on Ed Martin's nomination. Yep, so we'll see where that goes. But there was a lot of Ed Martin news this week. Yes, what are we going to do if he falls?

He falls apart here. Oh, I'm sure the next person will be just as chock full of stories. That's true. So another story includes this one from the Times that Ed Martin contacted the New England Journal of Medicine, considered the world's most prestigious medical journal with questions that suggested without evidence

that the journal was biased against certain views and influenced by external pressures. He was super mad because he wanted to know why white people weren't included in the sickle cell study. I'm just kidding. That's not what I added that myself. Totally went for that. I was like, wow, this guy's amazing. He wants to know why women weren't included in the prostate study. Now, Dr. Eric Rubin, the editor-in-chief of the New England Journal of Medicine, NEJM, described the letter as vaguely threatening in an interview with the New York Times. At least three other journals have received similar letters from

Martin, a Republican activist serving as interim U.S. attorney in D.C. Martin has been criticized for using his office to target opponents of the administration. So he's sending threatening letters to medical journals, you guys. That's not doing much about the crime situation in DC. Okay, so and we also have this one from The Post. Interim DC US Attorney Ed Martin apologized this week for praising a pardoned January 6, 2021 Capitol riot defendant who supported Nazi ideology and photographed himself posing as Adolf Hitler. Martin saying he didn't know about the man's extremist statements.

Okay. Dude, have you seen this guy? Oh yeah. He's a dead ringer with the hair and the mustache. He's got the mustache and he's doing a seagull and like. Oh yeah. This is a. And the whole vibe. He's got the whole thing.

The side swept hair. Yeah, yeah, yeah. Coming out. The kind of messed up a little bit on the side. If it wasn't so terrifying, you know, it'd be pretty impressive. Okay, so, so Martin says he didn't know about the man's extremist statements, but in videos and podcasts,

Martin has defended the man since at least 2023, calling him a friend who was, quote, slurred and smeared by anti-Semitism allegations. Now, the individual, Timothy Hale Cusinelli, 35 years old, he was one of the first capital riot defendants charged and one of the first to enter the building through a smashed window. Court filings outlined his history of alleged anti-Semitic statements, posts, and affinity for Hitler. At the time, Martin was a conservative activist and a January 6, Stop the Steal fundraiser

and organizer. He defended riot defendants in court and on his podcasts and through a nonprofit led by Hale Cusinelli's aunt. So he was actually on the payroll from this guy's relative. So but he didn't know him I guess. Oh that guy's a Nazi? Are you sure? I thought he looked familiar. Are you sure? I thought he looked familiar. I couldn't place it. It was in a ditch coming in petrol on fire, right? The tiny little mustache. Where have I seen that before? Yeah. And he's been, Ed Martin's been erasing thousands of hours of podcasts from the internet to try to hide all of his Nazi stuff this one's from CBS nearly a hundred former employees and prosecutors from the US Attorney's Office in DC have signed a memo

opposing Trump's nomination The memo is the latest efforts by critics of Ed Martin to stop his Senate confirmation for the permanent role Which is among the most powerful federal prosecutor positions in the country. The letter was signed by a group of former prosecutors who served in the DC US Attorney's Office across seven decades. A hundred prosecutors from the USAODC across seven decades under administrations ranging from LBJ to Joe Biden. Quote, there is a time when we are all called to stand for the full and fair administration of justice and rule of law. For those of us who have served in the office of the United States attorney and still have a breath, that time is now. And the message we speak is reject outright and completely the proposed nominee.

Whether our message is futile or not, it is an expression of our conscience and a matter of principle that we deliver with all of the strength that we can muster. Like I can't think of any more powerful way to say no. Yeah, they're obviously, you know, disgusted by the idea that this guy would be leading the office that they used to serve in. So, and they should be because it's, it's, it's disgusting.

Yeah, it really is. All right, we got a few more stories. We're going to do a quick lightning round and then get to listener questions. If you have a question you want to submit to Andy and me, you can do that by clicking on the link in the show notes and filling out the form. And we're going to do all of that After this last quick break stick around. We'll be right back Welcome back. Okay time for the lightning round before we get to listener questions. Yes. All right, let's do this first up from CBS CBS News has obtained a list of questions. Yes. All right. Let's do this. First up from CBS. CBS News has obtained a list of 365 federal grant programs that were halted this week by Trump's Justice Department, disrupting programs to help victims of hate crime and

sex trafficking, children who've suffered violence, and refugees. The department also paused programs aimed at reducing school shootings, efforts to combat domestic terror, and an Emmett Till cold case initiative in the Southeast. At least some of the grants were halted in memos sent Tuesday to a nonprofit organization – to multiple nonprofits actually – by the Justice Department. The memo alerted program operators that the projects no longer effectuate Justice Department priorities.

The cancellation of the federal grants caused disruption at some of the nonprofit programs and that's according to organization leaders who spoke with CBS. The head of a nonprofit that helps youth crime victims in Oakland, California called the funding freeze a devastating blow. Oh, sure it is. Okay. And from the post, the new head of the Justice Department's Civil Rights Division is dramatically reshaping the office

to propel President Donald Trump's social agenda, prompting the departure of about half of the division's lawyers in recent weeks, according to people familiar with the situation and public statements from top officials. Now, as we discussed a while ago when she was nominated, since being sworn in this month, Civil Rights Director Harmeet Dhillon has redirected her staff to focus on combating anti-Semitism,

the participation of transgender athletes in women's sports, and what Trump and his allies have described as anti-Christian bias and the Democrats' woke ideology. The division changed mission statements across its sections to focus less on racial discrimination and more on fighting diversity initiatives. And department officials reassigned more than a dozen career staffers, including section chiefs overseeing police brutality, disability, and voting rights cases, to areas outside their legal expertise. Now the changes under Dillon, who's a long-time Republican activist, coincide with a second

White House offer to federal workers that allows them to resign from their positions and be paid through September. That's the infamous fork in the road email. The deadline for that offer is late Monday evening and civil rights employees have been submitting their resignations en masse as the deadline nears said people familiar with the division who spoke on the condition of anonymity because of the sensitivity of the matter. Yeah we talked about this when she was nominated that she's gonna gut the civil rights division and make it about the civil rights of white Christian men. Yeah let's remember civil rights division was created by Congress as a part of the civil

rights act. So it was created for the purpose of addressing racial discrimination in this country and the horrible effects of Jim Crow laws across the South. But no more. Yes. She is redefining racial discrimination as racial discrimination against white men. I suppose, yeah. Yeah. Next up from Politico, Justice Katanji Brown Jackson forcefully condemned attacks by President Trump

and his allies on judges who have blocked Trump administration policies, warning Thursday that the increasingly hostile rhetoric poses a dire threat to the country's political fabric. Quote, the attacks are not random. They seem designed to intimidate those of us who serve in this critical capacity. That's what she told a judges conference in Puerto Rico. Went on to say, quote, the threats and harassment are attacks on our democracy, on our system

of government, and they ultimately risk undermining our constitution and rule of law. Though she didn't mention Trump by name, she didn't really need to. Jackson said she was addressing quote, the elephant in the room, a clear reference to the belligerent language and calls for impeachment that Trump and his advisors have lobbed federal judges who rule against his agenda. Jackson urged her judicial colleagues to show raw courage to dispense justice without fear of the results. She said, quote, I urge you to keep going, keep doing what is right for our country. And I do believe that history will vindicate your service.

So that's pretty impressive and unusual for a sitting Supreme Court justice to make such strong remarks. Yeah, totally. and unusual for a sitting Supreme Court justice to make such strong remarks. Yeah, totally. And I think she's right. History will vindicate your service if there are any judges out there listening. I concur.

All right, time for some listener questions. Again, if you have a question, you can click on the link in the show notes. What do we have this week, Andy? All right, so our first one comes from Ian Elbows Up from Canada. Yep, he says, as a Canadian, I've become fascinated with your government structure

with the three branches. I love it. I mean, how it's supposed to be. I love how he describes it. It's like, it's got the three branches. Like, actually he's like envisioning it as a tree, which is awesome. Your podcast has given me pretty good insight

into how they function. Okay, note there Ian, pretty good insight. good insight. Not like great, but okay. I'll take it. I'll take pretty good insight. Okay. My question is what would happen if the executive branch under Donald Trump ignored the other two branches? What repercussions are there? What would it take to stop Donald Trump if he broke the laws and the other two branches span of authority? Ah, elbows up, Ian. He has.

Yes. He has. And one of those things we're following here on the podcast, which is Judge Boasberg's looking at criminal contempt for the executive branch ignoring the judicial branch orders to turn the planes around, right? Now that's, I guess, on pause briefly as the DC circuit got a bad ruling, I think, that paused this. But we'll continue to cover it. But he's also pretty much kneecapped Congress as well in that continuing resolution for example the one that was where Schumer and ten other Democrats voted for

cloture and it got past the filibuster and they passed a continuing resolution to fund the government to September in that bill Trump has a lot of authority to move money around that's been appropriated by Congress if he doesn't like where it's going which is totally stripping Congress of its main job, right? Yeah. Controlling the first strings. So that's a great question because the basic answer Ian is we don't know. No one knows we've never seen this before. Typically when the president gets crosswise with Congress, Congress has the ability to kind of push back. They can cut off funding.

They have the power of the purse, right? All the money, the allocation of funds comes from Congress. So they can defund things and they can write laws to curb the president's authority. For instance, in the Obama administration, when they were thinking about bringing some of the Gitmo detainees to the United States to face trial, criminal trials, many Republicans on the Hill didn't like the idea of that. They didn't like the idea of putting terrorists in criminal courts and so they wrote a law prohibiting the expenditure of any government funds to bring those detainees to the United

States or to put them on trial or to house them in prisons here. So that made it effectively impossible for the president or any president to do that. So they could do things like that, but this Congress is entirely, lives in fear of Donald Trump. They are not exercising their authority to push back because they're afraid of what he'll do to him. Now, fortunately, the judiciary is, as AG said,

they're standing up, they're standing up. They're issuing orders, ordering the administration to do things. And when it seems that the administration is not following those orders, like the one in Judge Boasberg's case, he's really holding them accountable. He's now, even though the order itself was thrown out by the Supreme Court, the violation of the order is still relevant and he is really putting them through their paces in a potential contempt proceeding. So, you know, it's not the greatest answer,

but we are using the system that we have, and I think it's getting pushed beyond a point we've ever seen before. So we're all gonna find out what happens when it reaches the end of the road. Yeah, it's gonna be, that's what we're butting up against here in the United States.

That's what we refer to as a constitutional crisis. Yes. All right, time for one more? Yeah, I think we have time for one more. All right, quick one here. This comes from Lee. Lee says, I love this podcast and I love listening to both of you. You both have great voices even when you have a cold.

So thank you, Lee. So I still have, I'm still suffering with this thing. My question is this, you've both mentioned several times how the DOJ no longer has great lawyers. I don't know that we said it that clearly, but a lot of lawyers, a lot of great lawyers have left. They're running out of lawyers. They're running out of numbers of lawyers for sure.

Yeah, for sure, for sure. So Lee goes on to say, either they've been forced out or have quit because they won't bend the knee to Trump. So the stuff they've been submitting in current court cases has been a little less than stellar. So here's the question. Could Trump have the DOJ use the lawyers who have pledged him billions in free services? These would be lawyers from some of the biggest

and most prestigious law firms, which might be better for him in court than the DOJ lawyers he has now. It's an interesting question. What Lee's referring to is these agreements that Trump has coerced major law firms into signing in which they pledge to provide hundreds of millions of dollars to the administration

and free legal services. Could those lawyers essentially step in and start representing the United States government in court? That's a little bit tricky. In order to- If he appointed them to the DOJ, I suppose he could. He'd have to hire them or appoint them as special government employees that have to actually-

Wait, you mean like a special prosecutor that he argued against legality of? Exactly. Or a special prosecutor.'d have to make them special prosecutors. Yeah, but Cannon said he could create a little office in the Department of Justice and then fill it with these private attorneys, right? He could. There'd have to be some sort of formal arrangement to enable these private lawyers to actually wield

the authority of the Department of Justice. It's not like you could just hire them, hey represent me in this immigration case. Doesn't work that way. They have to work for the DOJ. They'd have to work for the DOJ in some official capacity. Yeah. It's hard to imagine that happening, but who knows? I would never have imagined that the President of the United States would essentially extort the legal profession into doing his bidding.

And that's what we have now. So yeah, and they actually have been called up in a recent order from the attorney general Pam Bondi on her, you know, stepping up policing where they're going to be helping give more federal, like, you know, war toys, I guess, like military equipment to local and state law enforcement agencies. And they have said, you can use some of our pro bono legal services if you get in trouble and you're a law enforcement officer, we'll have them represent you as local law enforcement, which they can do and they've said they will do. They definitely can do that because that would be representing the individual, not the federal government, right?

Right, and they're not federal cops either. Yes. Yeah, you could even do it for federal agents who need representation in like a disciplinary hearing or a use of force charge, or something like that. That's still, that's something that you could do with pro bono legal work. Anyway, good questions this week. Right. But I will say this, that Pam Bondi is not going to charge any federal cops with excessive use of force in the first place. That's a good point.

But yeah, that's an interesting thought because you remember how Judge Cannon was like, look, you can't just make a special counsel a special counsel. Now, if you had had an office that you hired him into and there was like that, let five seconds pass and then name him in charge of something, that's totally cool. She's wrong. But the Trump administration could stay within its own wrongness and create an office at the Department of Justice for legal services and hire a bunch of these private attorneys, maybe on an ad hoc basis or a contracted

basis to be DOJ employees. And then they could argue on behalf of the DOJ on behalf of the government in court as special prosecutors hired to do a specific job. But they would have to hire them, I think. Anyway, yeah, really cool questions. Very, very thoughtful. Thank you for sending them in. And again, that link is in the show notes to send us questions. What do you think, Andy? I think we've rightly spent a lot of time following the Abrego Garcia case and the other associated immigration cases. I think people are, you know, our listeners, I'm sure, are really dialed in on this. We're obviously focused on it. And I think that that's right because this is really the front line of the erosion of democracy. This is human beings

being detained and thrown into horrible conditions without really any meaningful access to court and then it violates the most fundamental ideas that this country was founded upon. And I it's a little bit frustrating to me that people aren't more outraged by this denial of due process issue and not realizing that like if we can do it to any of these folks that have been caught up, it can happen to you. It can happen to any one of us. This is a slippery slope that leads to-

Although recent polls show a majority of Americans disagree with removal from the United States without due process at over 50%, 54%, I think. Yeah, I think it's good to just keep talking about it because it's like helping people make that connection. This is wrong, and it's not just wrong to these people. It's definitely wrong to them, but this is seeing into the future as to what can happen to any of us in a country that is losing its commitment to democracy. Yeah.

And we have to also keep doing this to keep pushing back on the propaganda. Because for example, Department of Justice and right wing folks are now releasing a video of a Brega Garcia arrests and talking about his domestic violence issues and things like that. And people are kind of breaking down how that should be, you know, if that means that he deserves to go to prison for life in a gulag. But the point that everybody needs to first think of when somebody shares, like CNN shares a video of a, of a, a Brega Garcia and an interaction with the police. The first thing that you need to remember is, oh, well

that guy needs due process because he did commit a crime. If he's guilty of domestic violence, if he's guilty of some, any crime, he needs to be indicted by a grand jury for that crime tried for those crimes and incarcerated to pay for those here here in the United States you commit crimes here you should pay for them here every single person in the United States is entitled to due process whether you're a citizen or not whether you're visiting from Germany that's right what if you if somebody flies in from Germany and stabs your mom Do you want them?

You know to be arrested and tried and put in jail here in the United States. Yes, you do that is called due process Yeah, everyone deserves it whether you're a good guy or a bad guy. Yeah, that's absolutely way of it and this like flood of Propaganda really about like, oh, look what a bad guy this dude is. It's not relevant. That's not the issue. It's not, it's reminiscent of what happened to George Floyd. When everyone's like, yeah, but he was a,

he did drugs and he was a bad guy or he was a criminal. So he deserves to have a knee on his neck and be murdered. Right. That's not due process. That's right. That's right. And he wasn't, by the way. But you know, it's the same kind of attacking that I have come to expect from this administration.

This is what you and I talked about when we thought about transitioning this weekly gathering from following the Jack Smith cases to following the Department of Justice because as what happens in the Department of Justice, how they do their business, who they hire, who they fire, who's leading them, these are all really impactful decisions that ultimately affect many, many people, really all of us in a way. And so, yeah, we're going to be here every week talking about the ups and downs of what we see with justice. Yeah. And it's the jackpot gas was more fun, but I think that this one might be equally as important at least.

Yeah, for sure. And I still am not used to Seeing the government in court filings and have that be the bad guy like I Still haven't gotten there because all of Jack Smith's arguments the government the government all of Jack Smith was the government the arguments Were so good and they were so succinct and within the law and they were reasonable and they made sense and now when it's the government You get this garbage like well those vague statements by someone I hardly know, coffee boy Marco Rubio, they don't count as a deal with Bukele. That doesn't count. It's now that's what the government is saying. And that I'm good. I still have whiplash from that.

Yeah. I mean, you know, I, you know, I do. I was part of that team for 21 years, so seeing this is really dispiriting. But it's super important that we get this out there so that people can understand what's going on. Yeah. So thanks for hanging in. And thanks for all your kind notes. We get a ton of kind notes saying thank you for giving me the to, you know, giving me the knowledge to be able to discuss this and explain it to others because I think it's important that we talk to as many people as we can about this. So thank you for those kind notes. We really appreciate it. We're going to be back in your ears next week. We're going to have

a lot to talk about as far as the discovery or lack thereof goes in the Ibraica Garcia case next week. For sure. For sure. We'll give you an update on everything else, including Ed Martin, see if he gets a hearing or not. And until then, please have a great week and we'll see you then. I've been Alison Gill. And I'm Andy McCabe.

Unjustified is written and executive produced by Alison Gill with additional research and analysis by Andrew McCabe. Sound design and editing is by Molly Hockey with art and web design by Joel Reeder 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.