Jack - Criminally Contemptible

Episode Date: April 20, 2025

Judge Boasberg issues a memorandum opinion that concludes that probable cause exists to find the Government in criminal contempt for defying court orders in the Alien Enemies Act case.The Fourth Circuit denies Trump’s bid to block Judge Xinis’ order to facilitate the return of Abrego Garcia, as she orders two weeks of discovery prior to considering holding the government in contempt.The ACLU has filed a new habeas petition pursuant to Judge Boasberg’s order for due process for those remaining in El Salvador under the Alien Enemies Act proclamation. The CIA concedes in a court filing that when it scanned Director John Ratcliffe's Signalgate messages, they were gone.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. Judge Boesberg issues a memorandum of opinion that concludes that probable cause exists to find the government in criminal contempt for defying court orders in the Alien Enemies Act case. The Fourth Circuit denies Trump's bid to block Judge Sinise's order to facilitate the return of Abrego Garcia, as she orders two weeks of intense discovery prior to considering holding the government in contempt. The ACLU has filed a new habeas petition pursuant to Judge Boesberg's order for due process

for those remaining in El Salvador under the Alien Enemies Act proclamation. And the CIA has conceded in a court filing that when it scanned Director John Ratcliffe's signal gate messages, they were gone. This is Unjustified. It certainly is. Hey everybody, welcome to Unjustified. It is Sunday, April 20th. Happy Easter to those who celebrate. 2025 is the year. I'm Alison Gill.

And I'm Andy McCabe. So we have two huge developments this week with Judge Boesberg stating that probable cause exists to find the Trump administration in criminal contempt. And we're going to talk about how he can do this given the Supreme Court vacated his orders and why he's initiating criminal contempt proceedings as opposed to civil contempt proceedings. Yes, those were my two main questions on this. And major news in the Abrego Garcia case, as Judge Sinis kicks off a two-week long intensive discovery process to determine why the government has continually failed to follow her orders, along with a scathing opinion from the Fourth Circuit Court of Appeals in response to the government

asking the circuit court to stay judge Senius's orders. Then we'll do some lightning round DOJ news, followed by listener questions, and we're going to talk about some breaking news that's happening as we're recording this as Donald Trump is staging multiple people, a couple hundred people to be deported yet again under the Alien Enemies Act without giving them meaningful due process. And also big thanks to Steve Lattek who joined us last week and gave us all the foundation of both the Alien Enemies Act Proclamation and Abrego Garcia cases that we'll need today. So that was super helpful to have him on. Yes. Always great to have Steve on. He's terrific.

He's just seriously like the smartest person I know. You got it. So Andy, let's start with the extraordinary opinion from Judge Boasberg. Now you'll recall that Judge Boasberg issued a temporary restraining order, two of them, on March 15th. One of them was to turn the planes around as they were in the air. The planes that were carrying people to the torture prison, Seacote and El Salvador without due process.

And while the Supreme Court agreed that people are entitled to meaningful due process via habeas petitions, the Supreme Court vacated Judge Boasberg's orders. Now I thought that meant that the contempt proceedings before Judge Boesberg for violating his orders were moot. Right, like how can you be in contempt of an order that's been vacated? And I also learned this week that vacating his orders

made civil contempt moot, but not criminal contempt. So let's talk about that. Yeah, so I think the best place to begin is with Judge Boesberg's memorandum opinion itself, which begins, "'On the evening of Saturday, March 15th, 2025, this court issued a written temporary restraining order barring the government from transferring certain individuals

into foreign custody pursuant to the Alien Enemies Act. At the time the order issued, those individuals were on planes being flown overseas, having been spirited out of the United States by the government before they could vindicate their due process rights by contesting their removability in federal court as the law requires. As this opinion will detail, the court ultimately determines that the government's actions on that day demonstrate a willful disregard for its order, sufficient for the court to conclude that probable cause exists to find the government in criminal contempt. The court does not reach such conclusion lightly or hastily.

Indeed, it has given defendants ample opportunity to rectify or explain their actions. None of their responses has been satisfactory. Yeah. So like a lot of people, when I saw these headlines, I asked myself how Judge Boasberg could find Trump and the Trump administration or the government in contempt of orders that had been vacated by the Supreme Court. And Judge Bosberg wastes no time addressing that very question on page two of his opinion. It's almost as though he were talking to me, Andy. It's pretty great. He says, one might nonetheless ask how this inquiry into compliance is able to proceed

at all given that the Supreme Court vacated the temporary restraining order after the events in question. That court's later determination that the temporary restraining order suffered from legal defect, however, does not excuse the government's violation. Instead, it is a foundational legal precept that every judicial order, quote, must be obeyed, no matter how erroneous it may be until a court reverses it. That's from Walker v. City of Birmingham. If a party chooses to disobey the order rather than wait for it to be reversed through the judicial process, such disobedience is punishable as contempt, notwithstanding any later revealed deficiencies in the order. That foundational rule of law answers not

just how this compliance inquiry can proceed, but why it must. As this opinion will shortly explain at greater length, the fact that the Supreme Court determined that this court's restraining order suffered from a venue defect does not affect, let alone moot, the compliance inquiry presently teed up here. So you have to follow the court's orders even if they're overturned later. If you accept a reality in which litigants can just ignore an order of the court because they disagree with it, then we have no rule of law. Then it's no, why go to court anyway? Just do what you want and hope that you'll be vindicated later

by the highest court you can get in front of. That doesn't work for anyone ever. And so it doesn't surprise me that Boasberg certainly, but really any federal judge would probably see this the same way. Yeah. Okay. So the judge then addresses the government's defiant stonewalling in the matter.

A filing submitted by defendants on Sunday afternoon failed to dispel any concerns that they had flouted the court's injunction. So the court set a hearing for Monday, March 17th, to determine what had transpired over the weekend. The court expected that at the hearing, defendants might explain that despite appearances otherwise, none of the people on the first two flights was a member of the plaintiff class, or at worst, defendants would admit to a grave mistake, explain how it transpired, and then detail plans to rectify it. The United States

government took neither tact. Rather, what followed in the ensuing days was increasing obstructionism on the part of the government as it refused to answer basic questions about what had happened. Questions that were all ultimately in service of resolving one key fact. Whether members of the plaintiff class, that is non-citizens removable solely on the basis of the proclamation, were transferred out of US custody after this court's injunction preventing their deportation. Yeah, and so that's very specific. He asked to tee it up that way because, you know,

one of the standards, one of the tests is that it has to be a clear order and there has to be definite defiance of it and it has to be willful, right? Yeah, he's also trying to cut the government off from straying into other arguments that are not relevant to the question of whether or not they obey the order. We're not here talking about the legality

of the Alien Enemies Act or any of the rest of that stuff, all of which hopefully will get addressed someday. This is just about, I told you what to do, you did the opposite. Now what happens? Yeah. And that's going to be the same for a Bregow Garcia's case, Judge Sini's. And we'll get to that later. Boasberg gets into the weeds a little bit about why he can open a contempt proceeding after the orders have been vacated. He says, but hold on, defendants protest.

I love this. If the Supreme Court has since vacated the TROs, how can contempt lie? The Supreme Court long ago answered that question. It is firmly settled that a court order must be obeyed until it is reversed for error by the issuing court or a higher one. That in turn means that a party may be punished for criminal contempt for disobedience of an order later set aside on appeal for being defective. If a party believes that a court order suffers from legal deficiencies, it therefore, quote,

must have the injunction modified or vacated. It cannot simply ignore it. The so-called collateral bar rule enforces that principle. It provides that if a party is charged with contempt for disobeying a court order, it cannot raise the legal invalidity of the order as a defense. The judge then outlines the next steps. First, before initiating any criminal contempt proceedings, courts typically allow the contumacious party an opportunity to purge its contempt, that is, to remedy its violation by voluntarily

obeying the court order. The most obvious way for defendants to do so here is by asserting custody of the individuals who were removed in violation of the court's class-wide TRO so that they might avail themselves of their right to challenge their removability through a habeas proceeding. Per the terms of the TRO, the government would not need to release any of those individuals, nor would it need to transport them back to the homeland. And that's interesting.

Is he saying there that you can send folks down there to give them due process? You know, it's not clear from this or exactly what he's thinking there. As a practical matter, I'm not sure that this would work any other way than to bring them back and detain them here. But again, you know, it's I think he's just kind of like saying, hey, there's no rule that says you have to do it that way.

If you want to come forward with a plan that you're going to ship all the lawyers and the judges and everybody else to El Salvador to do it there, then bring it. Yeah. Be creative in your contempt purge. Just let us know what your plans are and I'll tell you if that purges your contempt. That's right. And we do that before we start criminal contempt proceedings. I mean, they could theoretically, they could bring them to Gitmo. Like I'm not advocating for that to be clear, but there's, they could come up with different ways to accomplish that. That's all I'm saying. Yeah, right. True. So that's the first thing. Second step, in the event that the defendants do not choose to purge their

contempt, and Andy let's be honest, I'm pretty sure that's how this is gonna go. No, we're not going to. You can't make us. State secrets, prevent it. Whatever. You know. Whatever. So should the defendants choose not to purge their contempt, the court will proceed to identify the individuals responsible for the contumacious conduct by determining whose specific act or omission caused the noncompliance. So he's like, next up, I have hearings, we're going to find out who is responsible. He'll do that by asking for declarations and if that's not sufficient, he'll hold hearings and require testimony or depositions under oath. And then third, the court would

refer the case to the Department of Justice to prosecute criminal contempt. So this is a lot like when Congress referred Pete Navarro and Steve Bannon to the Department of Justice to prosecute criminal contempt. That's right. When they failed to come into Congress per a subpoena. But again, do we really think Pam Bondi is gonna prosecute the Trump administration for criminal contempt? No way. So what happens then, Andy?

Yeah, so that part of this errand falls flat. You know, in the, I was gonna say in the same way, it's not exactly the same, this errand falls flat. You know, in the, I was gonna say in the same way, it's not exactly the same, but if you think back to those examples you just talked about, the Gen 6 related contempt referrals, which I think there were four total, I think two of them went forward and two of them didn't.

Right? So DOJ has the prosecutorial discretion to decide whether or not it's worth bringing a case. Yeah, but that's in normal times. In normal times. Now, no way. But they still have that same prosecutorial discretion, right? They can say, no, we decide not to.

And there's really not much that the court or anyone else can do about that. Right, true. But there's a third step. Yes. So if the government declines or the quote interest of justice requires, the court will appoint another attorney to prosecute the contempt. Hmm. Okay. So this is what they were looking for in the Eric Adams case. Somebody came out and said, well, you know, if Judge Dale Ho decides that he doesn't want to dismiss these charges under Rule 48A, can't he just appoint a prosecutor to prosecute the case? And I looked into it,

and I looked into Young, and you know, it said, no, it's only for contempt, which is what we have here. And there was a recent case in 2023. The case is called Donzinger. And basically this guy, a court appointed a special prosecutor to prosecute criminal contempt. That prosecutor found him in criminal contempt and he was sentenced by that special prosecutor that was appointed by the court, not the DOJ. And

of course he appealed that and the Supreme Court denied cert. Now I was like, well, if they denied cert, maybe that means that in this case, they'll be amenable to a special prosecutor. But the reason they denied cert in Donzinger, Andy was for procedural, there were a lot of procedural issues with the case, not so much on the merits or the constitutionality of the court appointing a special prosecutor and in multiple dissents in lots of occasions and in some speeches and op-eds and writings, at least five of these, you know, conservative in quotes, Supreme court justices are against a special prosecutor being appointed by the court. So I'm not sure that this would get past the Supreme court, but judge

Boasberg is going to go forward with this anyway. Yeah, he's amazing. I mean, the guy's got us, you know, he's got steel in his spine for sure. But it is hard for me to understand how that actually works in his favor. So, and maybe you know this from the research that you did. So the prosecutor essentially conducts an investigation and makes his own determination

that contempt has taken place. And then it goes back in front of the judge, in this case it would be Boesberg, to enter a conviction and punishment. Is there no actual trial for the subject of the contempt investigation or prosecution? No, right. I don't think there's a jury trial. Yeah, there's just, it goes back to the findings, I guess, of the special prosecutor go back to the judge and then he makes the courts have an inherent ability to find people in criminal contempt and they have to do it by appointing someone else to prosecute it.

Right. Yeah, it's kind of fascinating. I've never heard of this before. It's super rare. But you know, one of the lawyers in the Donzinger case was Steve vladek. So we'll probably have him back on And he's written this up in one of his recent things on one first Is to because he was arguing that it's unconstitutional But Supreme Court denied them cert again. It was on procedural grounds Not necessarily the merits of the constitutionality of the appointment of a special prosecutor by the court. But Thomas, Alito, Kavanaugh, Gorsuch, they all want this to not be a thing. Yeah. It's hard for me to imagine them going along with this, treating this as normal. And it's not any litigant, right?

It's the federal government. It's a contempt site conviction against the federal government. Yeah, and it would be against whoever Boasberg identifies as the guilty parties. It's not gonna be Donald Trump. It's not gonna be the president. It's probably not even gonna be, you know,

Christine Noem or Marco Rubio. It's probably gonna be, you know, somebody down the ladder a little bit who, you know, who failed to have that communication to their lawyers in court, you know, who was responsible at Department of Homeland Security for that. So, you know, we'll see, but we are going to cover this robustly, these contempt proceedings, or we're not in contempt proceedings yet, but this case here on Unjustified. Also Trump appealed this Boasberg order, but it's not appealable. This order is not appealable.

Because it's not a finding of contempt. Right. Yeah. So something else happened. Judge Boasberg asked the ACLU, as you know, once the Supreme Court vacated his temporary restraining orders, the ones we're talking about, about turn the planes around, he said, all right, well, before I close this, there's still preliminary injunction stuff going on, which is the step, the next step from a temporary restraining order.

And so he said, ACLU, if you have anything you wanna file with regard to the preliminary injunction proceedings, you have until April 16th. Then on April 16th, the ACLU did file their pleading, a habeas petition, right? Because that's what the Supreme Court says it has to be. And for anybody who is being detained, you know, for habeas petitions, for people detained in the United States, you have to file in the jurisdiction

where they're being detained. Correct. But if these people are being detained overseas, like in the Saudi case or the Guantanamo cases that we talked about with Steve Vladeck last week, then the proper venue is DC. That is correct. They filed and this was still an open docket with Boasburg. And so they said that plaintiffs seek a temporary restraining order directing the government to provide 30 days notice before seeking to remove any class member under the AEA and to serve that order on both the class member and undersigned counsel.

This relief is urgent because the government has already indicated that, notwithstanding the Supreme Court's ruling, that notice must be sufficient to allow individuals an opportunity to seek habeas review. It may provide designated individuals with as little as 24 hours notice, making it virtually impossible for most class members to file habeas petitions. Pl plaintiffs will amend their complaint to reinstate their habeas claim to seek relief for the class of individuals who were removed to al salvador under this a on march fifteenth as potentially a class of individuals held in us criminal custody and that last part is important. Because you know they're talking about the original class that was defined in the in the first restraining order hearings. You know which is anyone over fourteen that's being told they're gonna be removed under the alien enemies act proclamation but they said as well as potentially a class of individuals held in us criminal custody.

I think that's interesting because you know supreme court says you have to file the habeas petitions in the jurisdiction. Where they're being detained. Right now, this is sort of breaking news. Like I said, as we're recording this, there are hundreds of people who have been identified in a notice written in English that they have been identified as members of Trende Aragwa and are being immediately removed under the Alien Enemies Act. That's why just today, on Friday as we record this, two days after this particular notice was filed, they have notified Judge Bosberg. There are people in imminent danger of being deported under the

Alien Enemies Act who have been given no due process. They've been given no meaningful due process, no sufficient notice. And so can you hurry up on this class thing and restraining order thing? Because they're literally, they've been staging people all week. I've been tracking the flights flying from Abilene up near Blue Bonnet down to Harlingen, which is this, you know, where they remove people to go to El Salvador via Honduras. And they've been bringing people there all week and they just on Friday handed them a notice and started putting them on buses. And so I imagine we might have another emergency hearing, maybe even today, certainly by Saturday about this particular group of people that are being unlawfully

removed by the Trump administration. It's amazing. Every turn of the screw here, the government just ups the ante, doubles down triples down, we're going, you can't stop us. It's just, it's incredibly frightening and they are pushing us step by step by step closer to just a complete constitutional crisis. Nicole Soule-Northman Agreed. So like I said, we'll be following this case in its entirety here on Unjustified.

So we hope you'll subscribe to the podcast and tell everybody for, you know, if you want all the information on the Boasberg criminal contempt proceedings, have them subscribe to the Unjustified podcast. It's free. So, and you can do that wherever you get your podcasts. And next up, we're going to shift gears, Andy. We're going to talk about the Abrego Garcia case that's before Judge Sinis.

But we have to take a quick break first, so stick around. We'll be right back. ["The New York Times"] All right, everybody, welcome back. Let's pivot to Abrego Garcia. This is the Maryland father who the government admitted they unlawfully removed to El Salvador by, you know, through administrative error by mistake. You'll recall the Supreme Court kind of unanimously denied Trump's motion for a stay and said that the lower court can direct the government to facilitate, not effectuate, but facilitate the return of Abrego Garcia. Judge Sinis then on April 10th directed the

government to answer three questions. She didn't say, you know, she was like, we need to facilitate his return immediately per the Supreme Court. So in that light, I have three, here's my order. I need you to answer by Friday, April 11th at 930 a.m. Where is Abrego Garcia? What steps are you taking to facilitate his return? And what additional steps the government is going to take to facilitate his return? Now the Trump administration then missed that deadline. She extended it a couple hours. They missed that deadline. Then when they finally got to the hearing, they didn't give them any information. They fell woefully short of complying with the order. They failed to

produce anyone with knowledge. And though they did eventually confirm he was in custody at Seacoat, they refused to list any steps they're taking to facilitate his return despite the Supreme Court order. She actually ordered the government to give daily updates at 5 p.m. Eastern, Saturday, Sunday, Monday, Tuesday, until the hearing on Tuesday. And they blew past all those deadlines, except on Sunday they were on time. But none of their updates answered her three questions. They only answered the first one. So again, woefully short of her court orders. And so she held that hearing Tuesday and in the matter and the matter here is a motion for expedited discovery. There's a separate motion for contempt or for you know for

show cause. Right. But this was the motion for expedited discovery and it was filed by Abrego Garcia's lawyers and you'll recall Andy that you and I had hoped she would order testimony from those with knowledge during that hearing and that's pretty much what she did. Yeah, for sure. So the following is from her order that came after the hearing. She said, Abrego Garcia seeks discovery as to the terms of any agreement, arrangement,

or understanding regarding the government's use of CICOT to house US deportees, his current physical location and custodial status, and what steps, if any, the government has taken and will take to facilitate Abrego Garcia's return to the United States. Defendants oppose the request, principally contending that the proposed relief is, quote, not consistent with the Supreme Court's order or the well-established meaning of facilitating returns in immigration law and harbors fundamental constitutional infirmities.

For the following reasons, the court grants the motion for expedited discovery as directed below. The court defers its decision on the remaining requests for relief. Yeah. And so when she says she defers its decision on the remaining requests for relief, she's talking about the show cause order to kick off contempt proceedings. Because basically she's like, we're gonna do this discovery, then I'm gonna consider whether you defied my orders. And that makes sense, right?

Let's get the information first. It gives her a chance to build a record upon which to base a finding of contempt, which would make it much stronger on appeal, which is inevitable. Yeah, exactly. So her order goes on to say, it is undisputed that Abrego Garcia is entitled to injunctive relief for the reasons previously discussed and affirmed without exception.

As to the scope of such relief, the Supreme Court of the United States unanimously affirmed that quote, the district court's order properly requires the government to facilitate Abrego Garcia's release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to al salvador to that end the supreme court forewarned the government that they quote should be prepared to share what it can concerning the steps it has taken and the prospect of further steps and the what it can is the problem here because the Trump administration is saying we can't. And the with due regard and deference for, you know,

the Trump's ability to conduct foreign affairs. And that's again, their argument. I read that a little bit differently, like the Supreme Court part, not what the government is saying. The Supreme Court warned the government that they should be prepared to share what it can concerning the steps it has taken.

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

They're saying in court, like, no. I see what you're saying. Not what it can do, it's what it can say about what it's done. Right, their argument is facilitate just means, you know, if the guy's coming back, we need to pick him up at the airport, or we need to remove any domestic obstacles to his return.

No, what the court said is you must try to get him back and then you must tell us whatever you can share about the steps you have taken. Meaning you have to take steps to get him back. Yeah, and honestly, step one is to ask. Of course. Right, and I'm sure, you know, obviously, Bukele is doing what Trump is telling him to do.

Yeah. I mean, Bukele is a, he's been referred to a lesser dictator than Donald Trump. So he's doing whatever Donald Trump wants him to do, which is to say, no, he's in sovereign custody. But then he said, the vice president said when Senator Van Hollen was down there trying to get in, that the US is paying them to hold

these people. So it's all conflated. And there actually is a deal underlying that. It's been reported on Ford. It's a one-year deal. They're being paid some sum of, I don't remember, $6 million. And they agreed to hold these people for one year. And at the end of the year, they go back to the United States and say, what do you want

us to do with them now? And presumably that would mean pay us again and we'll keep holding them or we'll send them back, whatever you want. Whatever you want being important here, because if the government called them today and said, send us this one guy back, he'd be on a plane in an hour. Oh, of course. And, and Asha Rangappa, uh, you know, posits that there might be more to this agreement, which is why the Trump administration isn't willing to hand it over.

Which might be something like the Trump administration has to allow Bukele to allow MS-13 to operate in El Salvador a little bit because they're kind of helping him out. So, yeah, who knows what else is going on here? I mean, he is allegedly the guy that was striking deals with MS-13 early in his during his election. The Trump administration doesn't want people to know that he's letting MS-13 off the hook in another country or something. Yeah.

So, okay. So here's the details of the discovery. Oh, this is good. Yeah. Says by no later than Wednesday, April 16, 2025 at 5 PM, and pursuant to the federal rules of civil procedure 26D 133 and 34, plaintiffs may propound upon defendants up to 15 interrogatories and 15 requests

for production of documents focused on the above areas of inquiry. Defendants shall serve their answers and responses to plaintiffs by no later than Monday, April 21st, 2025 at 5 p.m. Tomorrow. Plaintiffs may also, by no later than Wednesday, April 16th, 2025, 5 p.m.

Notice the depositions of the following affiance. Robert L. Serna, Evan Katz, Michael Kozak, and Joseph Mazera. Any such depositions must be completed by Wednesday, April 23rd, 2025 or 5 p.m. Yeah, so those are the four people that provided declarations, affidavits to the court on behalf of the government. And basically one of them said,

yeah, Braco Garcia is in El Salvador. And the rest of them said, I don't have any information. There's no other information. Duh. And then the final one was, we say that if he does come back, we're just going to deport him to a third party country, which is legal. That's actually legal. He was only not allowed to be deported to El Salvador because of a withholding order.

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

They present zero compelling evidence on that fact. I know. Parlov said it's double hearsay from a guy who was indicted for misconduct. Yeah. You know what? You think he's an MS-13 member? Bring him back and put him on trial here in the United States of America. Put up or shut up. Indict him, give him an attorney, hold him in federal custody, and let him defend himself in federal court. And if he's convicted,

then there you go. You were right all along. That's how it works in a democracy. Yeah. And during the hearing, which we'll get to in a second, when Drew Ensign said, we did give you information. We said that if he was returned, that we would deport him to another country. And she's like, is he back? Yeah. Like, no, no, great.

All I'm asking for is the steps of what you're doing to return him. And by the way, that response doesn't answer any of my three questions. That's not a step to effectuate his return. That is what you would do if he was returned. So she goes on to say, oh, and by the way, in addition to those four people, she's allowing two other depositions up to the plaintiffs to decide whom if needed. So that's why I'm like, maybe we'll get Kristi Noem in there or something like that. Fingers crossed.

By no later than Wednesday, April 23rd, plaintiffs may move for leave of court to conduct up to two additional depositions of individuals with knowledge of the authority to testify regarding the matters identified above. That's what I just said. Defendants shall respond by Thursday, April 24th. You have a day to respond to those deposition requests. And if the court grants that permission for those depositions, it will set a deadline by which the depositions must be completed. To streamline review of any anticipated objections, the court will file a separate letter regarding discovery disputes. The parties are to follow the procedures described in that letter for any disputes that cannot be resolved by good faith, meet and confer. At the conclusion of expedited discovery,

by no later than Monday, April 28th, plaintiffs shall supplement their motion for requested relief. That means you want to hold them in contempt, you want to file sanctions, defendants shall respond, Trump regime shall respond by no later than Wednesday, April 30th. You have two days to respond to that. The court will hold in abeyance the plaintiffs remaining requests for relief until the completion of the expedited discovery and supplemental briefing. That said, should the defendants fail or refuse to engage in the above described discovery in good faith, plaintiffs are free to seek separate sanctions on an expedited basis. Meaning, if we get all the discovery and depositions, then you refile your sanctions and complaints. If they refuse

to do anything, you don't have to wait till April 28th to file additional sanctions, you know, to seek separate sanctions on an expedited basis. Like she's sort of anticipating that this is not going to go away, that the government's probably not going to play ball here. But this is fast. I know a lot of people are like, two weeks? Oh my God. And I know it sucks because Judge Sinis has said every day that Abrego Garcia is in this prison in El Salvador, he is being irreparably harmed. Yeah. And she knows that. But discovery in a regular proceeding, Andy, depositions, discovery documents

and erogatories can take a year. Oh my God. Yeah. Well, you don't do that quite so much in criminal matters, but in civil matters, it takes forever years and years, which is one of the reasons why people are hesitant to sue and in immigration matters, it takes forever. I mean, immigration proceedings take a long, long time. Two weeks. And I'm also allowing the plaintiffs to file for additional sanctions and relief if the government doesn't play ball in my two week window.

Yeah. Yeah. That's fast. We'll see. We'll see. Yeah. So the hearing was pretty bonkers. I remember she said, we're going to move. There will be no tolerance for gamesmanship or grandstanding. There are no business hours while we do this. Cancel vacations, cancel appointments. I'm usually pretty lax about that. Things like that in my court, but not this time. So I expect all hands on deck. I thought that was when she was like, we're not closed. We're doing this 24 seven until it's done. And there's not going to be any exceptions. So don't come to me and be like, I have my daughter's wedding

in the Poconos or I, you know, nope. It's spring break, not here, not in my garden. Not here. Great. It's not spring break at Seacot. So it's not spring break here either. Yeah, pretty much. And this is her, a kind of, I think her implicit understanding of what he's going through as the government is stonewalling. Yeah, for sure, for sure. So Ensign, of course, said he would appeal. And Sidney said,

the Supreme Court has spoken. There is, in my view, nothing to appeal. So in my view, we do discovery. Yeah, he wanted to appeal her order for discovery. He was like, we need briefing on this. We need to be able to appeal. She's like, no, that's not how it goes. Honestly, I don't think anyone takes that appeal

I think the circuit court would just say no and I I would expect the Supreme Court do the same thing They've already told her to do exactly what she's doing. Mm-hmm. Yeah, and she's not go ahead if you want but we're going forward Ensign also argued that she doesn't have the authority to order discovery without briefing and she's like, I'm not doing that. We're not doing this. There's so much daylight between that and what's happening here, she said. And Ensign wanted to define, facilitate and all this and Sini says, we aren't even there yet. We're just trying to get to the bottom of why you didn't comply with my order directing the government to share the location of Abrego Garcia, what steps you're taking to facilitate his return and what steps you'll take in the future. We aren't even to the point of defining facilitator, effectuate or whatever.

Yeah. It's like the clap back. Stop it. Stop it. We're over here now. We're doing this thing. Exactly. So naturally Trump went to the fourth circuit court of appeals and asked them to stay judge senes's order. Now, not her discovery order, not this one. They wanted to stay her initial order, asking the government to answer the three questions, right? And honestly, I was amazed at the Fourth Circuit's response. It's easily one of the best opinions I've ever read. It's so good. And we'll be right back with the details. Welcome back. Okay, Allison, as you previously mentioned, the government appealed Judge Senes's

order to the Fourth Circuit Court of Appeals, asking for them to stay her order or issue a writ of mandamus. And Judge J Harvey Wilkinson III responded with a scorcher of an opinion. Keep in mind, Judge Wilkinson is a conservative jurist appointed by Ronald Reagan in 1984. Oh, or well. Yeah, I was in high school then. That's how long ago that was. Oh, or Orwell. Yeah, I was in high school then. That's how long ago that was. And he's been floated by several Republican presidents

to serve on the Supreme Court. So this guy's no joke. From 1972 to 1973, Wilkinson served as a law clerk to newly confirm Justice Powell. In 2003, he wrote the majority opinion upholding the right of the United States government to detain Yasser Asim Hamdi indefinitely without access to counsel or a court. That's interesting. Yeah. I mean, that's one of a long line of very complicated habeas cases that we're not going to.

I make my students suffer through those, but I'm not going to do it here on the pod. But let's just leave it at Wilkinson is not like the ACLU's preferred jurist. I mean, he's a tough guy and he's got some very strong views, very conservative views. So you might imagine this opinion is going to go in one particular direction, but it does not. Yeah, no, it's three nothing also for the panel, but he writes the opinion and it starts like this. Upon review of the government's motion, that's the government's motion by the way to stay

Judge Sinise's order. The court denies the motion for an emergency stay pending appeal and for a writ of mandamus. The relief the government is requesting is both extraordinary and premature. While we fully respect the executives robust assertion of its Article 2 powers, we shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court's recent decision." He goes on to say, "...it is difficult in some cases to get to the very heart of the matter, but in this case it is not hard at all.

The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody, that there is nothing that can be done. This should be shocking, not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear. The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps,

but perhaps not. Regardless, he's still entitled to due process. If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order. So this is really important here because in the long fact pattern that we've been dealing with, people might have forgotten that Abrigo Garcia came over here as a young man because he was allegedly being harassed by a,

not MS-13, but a different gang in El Salvador. He had a brother who already lived here. So his parents sent him to live with his brother and he was here illegally. Eventually, that catches up with him and he ends up in detention. It's at that point that he files a claim for asylum. He's ultimately granted asylum and there is a judge puts a order in place that bars the government from ever sending him back to El Salvador. So he has a judge's order that prohibits exactly what the government did in this case. Yeah. It's not just a withholding for deportation to anywhere. It's withholding for deportation

specifically to El Salvador. Exactly. They could have deported him to any other country that was willing to take him and he wouldn't have the same claim to stand on. But here, he was really in a pretty good spot until he wasn't. Yeah, and the judge brings up a great point. Even if Abrego Garcia, and this isn't the case, but let's say he's MS-13, he's committed a million crimes, he's murdered six people, he's never paid taxes,

the most terrible person you've ever heard in the world, he still gets due process Of course it and so when you see people like Stephen Miller or Christine Noam or the home and the Immigrations are or whatever saying Why do you want to defend this terrible guy and it's like that's the Constitution specifically has these parts of it that say we need to do process to terrible guys.

This is the government that routinely says, Oh, we only speak through indictments, we don't prejudge people, la la la la. Instead they're out there. Crucifying this guy in the media every single day, calling him a terrorist and an MS 13 member that yet they've not produced a single compelling piece of evidence to prove that. If that's your position, bring him back, which you must do as the Supreme Court has ordered, and indict him. Put it up, indict him and put him on trial and convict him. Nicole Zichal-Klein And for how long did I say Donald Trump was guilty of all the crimes that he committed on January 6th? And everyone was like, it's innocent, they're innocent, I'm innocent until proven guilty. So is a

Brego Garcia. That's not true for only US citizens. It's true for anyone who's in the United States. That system should work for him. And if it doesn't, it may not work for any of the rest of us. Then we are in a constitutional crisis. Yeah. All right. Here's more from his opinion. The executive is inherently focused upon ends.

The judiciary much more so upon means. Ends are bestowed on the executive by electoral outcomes. Means are entrusted to all of government, but most especially to the judiciary by the constitution itself. The basic differences between the branches mandate a serious effort at mutual respect. The respect that courts must accord the executive must be reciprocated by the executive's respect

for the courts. Too often today, this has not been the case, as calls for impeachment of judges for decisions the executive disfavors and exhortations to disregard court orders, sadly illustrate. And this is probably my favorite paragraph. Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around. The judiciary will lose much from the constant

intimations of its illegitimacy to which by dent of custom and detachment, we can only sparingly reply. And what he's saying there is the courts are going to lose a lot of trust because the administration is attacking it and we can't because of the law, we can't say much about it. Can I just pause you for one second here to point out, maybe this doesn't matter to anyone else, that sentence, which is so impeccably written, totally characterizes my former agency. Like they have been just, they have been eroded by, by dent of these corrosive attacks consistently over the last eight years. And by dent of custom

and detachment, they do not reply. And yeah, you can see the damage that it's done. Anyway, sorry for that. Yeah, that's got to hit home for you at the FBI. The executive will lose much from a public perception of its lawlessness and all of its attendant contagions. So great. The executive may succeed for a time in weakening the courts, but over time, history will script the tragic gap between what was and all that might have been and law in time will sign its epitaph. That gives me chills. Yeah, totally. I mean, it's, it's really remarkable. This guy really thought this over and he wrote something really significant. It's like something like I, me, I'd be like, you keep yelling at us, we keep yelling at

you. The rule of law is going to die. Yeah. And he's managed to rise above this. No, you're wrong. Like that would just where we end up so much of the time lately, myself included. Okay, so he goes on to say,

it is, as we have noted, all too possible to see in this case, an incipient crisis, but it may present an opportunity as well. We yet cling to the hope that it is not naive to believe our good brethren in the executive branch perceive the rule of law as vital to the American that it is not naive to believe our good brethren and the executive branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.

Ah, you have time to turn this around Trump administration. Yeah, I mean, he's really appealing to kind of the better angels, you know. Yeah, that might be a little naive though. Yeah, we're going to find out. That will be sad. That's why he says, we yet cling to the hope that it is not naive. We're a white knuckling hope right now. But wow, so well written.

I've put this all together in a, in a sub stack post at malishirove.com. This is one of the coolest things I've read from the court. It's just his language. He's a, by the way, he writes romance novels in his spare time. This judge. I would not have guessed that, but I'm not going to read them, but you know, what are you doing? I'm reading a body romance novel written by a Reagan appointee.

A federal judge? It just doesn't cut. But there's a lot of references to bloomers and things like that. He's a good, he's a really good writer and I really liked reading this. All right, we have a few more news stories to get to. But we and then of course, we'll get to some listener questions. There's a link in the show notes if you'd like to submit a question for us. And we'll be right back with it. Stick around. All right, everybody. Welcome back. We have a few quick stories of interest from the past week before we get to listener questions. First up from Scott McFarland, longtime career

Justice Department spokesman Peter Carr, who I've emailed a zillion times, has been fired by the Trump administration. Carr had a very long track record of experience and service in the Department of Justice and the US Attorney Office of the Eastern District of Virginia. And Carr's portfolio included special counsel Jack Smith, which is why I sent him many an email. Yes. Yeah. I mean, sad. It's just the hemorrhage of experience and integrity continues at DOJ. So you think it's going to be the new spokesperson for the Department of Justice, Ronald McDonald?

Yeah, some, if Caroline Levitt, whatever her name is, is any indication, it's going to be somebody who is- Maybe they'll bring Jenna Ellis in. Not very good, yeah. Bring her back. All right, next. In a court exhibit in the civil lawsuit against Pete Hegseth's Signalgate debacle,

a chief data officer at the CIA declared the following. I understand that the director's personal signal account was reviewed. Now, hold on a second, director, now we're referring to John Ratcliffe, the director of the CIA. So he says, I understand the director's personal signal account was reviewed and a screenshot of the signal chat

at issue was captured from the director's personal signal account was reviewed and a screenshot of the signal chat at issue is captured from the director's account on 31 March 2025 and transferred to agency record systems the same day. I understand that the screenshot reflects the information available at the time the screenshot was captured, which I characterized as, quote, residual administrative content in my initial declaration. I use that terminology because the screenshot does not include substantive messages from the Signal Chat. Rather, it captures the name of the chat,

which is HuthyPCSmallGroup, ay-ay-ay, and reflects administrative notifications from 26 March and 28 March relating to changes in participants' administrative settings in this group chat, such as profile names and message settings. So he changed his name. Yeah, it's nothing. It's a bunch of bonk.

It's like so-and-so has changed their message disappearing time. The messages that you get from the platform as other people like change their interaction with you on the group chat. And there was an order to preserve all signal chat messages during that time and they weren't there. What's a court order anyway, really? Right, to the director of the CIA. Anyway, so yeah, those were all either disappearing messages or there was nothing there. It was

in violation of something, either the Federal Records Act or obstruction of justice. There's so many crimes here, but these are never going to be. It's like basically the Federal Records Act requires me to send these messages I've been doing on Signal. Okay, I'll just send you my grocery list instead. This is the same thing. This is not what is required under the law, but whatever. Yeah. All right. From the Wall Street Journal, this is kind of going back. It starts back in time here. When a judge expressed outrage that the first Trump administration had spirited away a mother and daughter in the middle of a hearing on their asylum claims, Justice Department lawyer, Orez Raveny, didn't argue. Quote, I don't disagree with that sentiment, Your Honor. The Justice

Department lawyer told US District Judge Emmett Sullivan, remember Emmett Sullivan? Told him that in August of 2018. He said he had only just learned that the pair had been put on a plane and would do everything he could to get him back. Reveni brought that kind of frankness to court when defending some of the federal government's hotly debated immigration policies under both Democrat and Republican presidents. In President Trump's second term, the candor cost him his job. The Justice Department fired Rouveni. Now, he was just on administrative leave last week, but they have fired him, according to people familiar with the matter, ending his nearly 15-year career there. So he's gone.

I don't know about his supervisor that worked between him and Ensign, but he's been fired. So, all right, it's time for listener questions. What do we have? So I've got one for this week. There were great, great questions. Again, this week I had a blast reading them all,

but unfortunately we only have time for one. So I picked this one again, because a few people asked a very similar question about this topic and we'll get to that in a second. But I also picked it because I thought it was particularly funny. And it comes to us from a guy named Tyler. Tyler said, I know we're supposed to praise you guys

to get our question picked, but it feels way too close to what is going on in the White House, which creeps me out. You know what, Tyler, fair play, bro, which creeps me out. You know what, Tyler? Fair play, bro. It creeps me out a little bit too. I have to say, I think you're onto something there. So Tyler goes on,

so I'll insult you instead. Your show is too informative and it only provides like barely enough banter and analysis for me to digest all of the heavy facts that get dropped. Your rapport with the listeners is just too much. Get a room." Well played, my man. Well played. Okay. He goes on, but seriously, I've listened to every episode. Thank you guys. My question. It seems to me that sending people to a prison in a

foreign country known for horrific conditions where we are powerless to retrieve them is extremely cruel and unusual. Why don't we see anyone going at the Abrego Garcia case from the Eighth Amendment angle? It seems to not only be straightforward enough to win, but simple enough for normies, not nerds like us, to understand. So that question- Remind us of the Eighth Amendment. Yeah, yeah, so that question of like,

why aren't people using the Eighth Amendment? Couple people brought that to the table this week. So as a reminder, Amendment Number Eight says, in its entirety, excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Okay. So... As Judge Seenies said, we aren't there yet.

Exactly. We're not. So the reason why it doesn't really apply yet is because the first one, excessive bail should not be required. That's really a reflection of the Constitution's basic theory that all people are innocent until convicted. And bail is obviously something that's imposed at the beginning of the process. And so people should not be subjected to excessive bail until they've actually been convicted of a crime. It's like a punishment before you've been convicted. So put that aside. The other two, excessive fines and punishments inflicted, that refers to things that happen

to people as a result of their conviction. So like sentences, right? You are, when you're convicted, the next step is you get sentenced. That's officially punished and you can get punished with a fine or you can get punished by being thrown in jail or whatever, whatever. So in this case, we're not even close to that because Garcia-Bregos has not been convicted of any crime. These are immigration laws that regulate how and when and after what process an alien can be returned to their country of origin. And so we don't look at the specifics, the facts here, as being a sentence. It's not a

sentence as a result of conviction. So the whole Eighth Amendment thing doesn't really apply. And I know that doesn't sound very, that sounds a little nonsensical, but it does make sense in the context of the Constitution. Right. Although several folks have brought up the idea that you could file using the Eighth Amendment, Fourteenth Amendment, First Amendment, Sixth Amendment in your case against the Alien Enemies Act proclamation writ large. But again, we aren't there yet. Because right now, they're first going in and saying, emergency restraining order, stop the deportations.

We'll talk about the Alien Enemies Act, what facilitate means, we'll talk about the legality of what they're doing, the constitutionality of what they're doing down the road. For now, stop it now. Then, temporary restraining orders, preliminary injunctions aren't based on those merits, right? They're initial findings. It's not even just, it's stop it right now from happening.

Then we've been totally sidetracked down this other thing, which is you didn't stop it right now when happening. And then we've, we've been totally sidetracked down this other thing, which is you didn't stop it right now. When I told you to like, now we're going into this contempt. Did you follow the court's order? Did you not really in both cases in one way or another? So yeah, we're miles away from actually getting to a judgment on the, of the Alien Enemies Act and all the things that it has brought. And even Boasberg in his emergency hearing was like, I'm not here to figure out what it means to give people due process. What does that look like? Is it an administrative tribunal? Are there administrative hearings? Are they done by federal court? Are they done by immigration court? Where are they done? Is it INA, APA,

habeas? I'm not here to figure that out. I'm here to stop people from being deported right this minute so we can figure all that out later. Exactly. And that's kind of where we're stuck right now. So they might, the ACLU might bring Eighth Amendment violations for cruel and unusual punishment into this once they get into the meat of the merits of the Alien Enemies Proclamation Act's constitutionality. You could definitely see like, if we get to the point where these people are finally afforded due process and at the end of that process, the judgment is to send them to CICOT. Now you've really teed up an eighth amendment question. Is that

an appropriate, i.e. not, is it an appropriate punishment or is it cruel and unusual and barred by the constitution? And you might see that, but we got miles to go before we get there. Yeah. Very good question though, because everything is so incremental. Um, we, we haven't even gotten off the ground yet. We're still trying to decide, uh, if this, if this government is in criminal contempt for failing to follow a temporary restraining order, um, as it is supposed to do and until that gets resolved and in the Abrega Garcia case, until

after discovery and contempt and all that gets resolved, you know, then they can maybe file, you know, or argue on the merits of the constitutionality of what's going on. So that's right. Thank you so much for that question. And thank you for the insults. I really enjoyed them. If anybody else has insults for us, there's a link in the show notes. And yeah, maybe we should turn it over from, you know, praising us to insulting us. Yeah, I'm up for that. That we aren't all creepy. Like what's going on in cabinet meetings these days. That's exactly what I thought when I read that. I was like, oh no, when we turn the

podcast into a Trump cabinet meeting. I know. Exactly. Yeah, don't, don't Sebastian Gorka me, please. I don't want to see that. All right, my friends, again, thank you so much. We're going to be keeping an eye on this docket and we'll be back next week. Again, we're going to be focusing on the Abrego Garcia case. We're going to be focusing on Boasberg's criminal contempt, findings of probable cause and how those proceedings meet out.

And we'll do it all here on just unjustified. Do you have any final thoughts today, Andy? Man, we're dug in. We're right back where we were like a year ago. We got some like couple of serious legal matters going. We're digging into the filings. This is our ground. This is why people come to this, thankfully come to and support the show. So just so glad everybody's here and really happy to be going through this stuff and sorting through it and understanding it better. I agree. And we should have some pretty great guests on too in the meantime.

So we'll see you next week on unjustified. I've been 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. The end.