Bulwark Takes - Trump DOJ Arrests a Judge. It Might Backfire Big Time. | Bulwark on Sunday

Episode Date: April 27, 2025

This week on Bulwark on Sunday, Bill Kristol talks to Just Security's Ryan Goodman to talk about Trump's war on the courts and the arrest of a judge in Wisconsin by the FBI.

Hi, Bill Kristol here with Bulwark on Sunday. Our guest today is Ryan Goodman, Professor of Law at NYU, the Editor-in-Chief of the Just Security publication, which is really excellent, which you should all look for online, look for the website, but also a new sub-stack at Just Security. Is that right, Ryan, I think? Yeah, Just Security. Which you can now read. He posts every few days excellent updates on what's going on with Trump and the courts, which we should talk about today. So thanks, Ryan, for joining me. And thank you for joining others on the Bulwark in the last few weeks. Those have been terrific, very useful for our listeners and viewers and readers.

I've heard from many of them. So let's talk about Trump in the courts. I guess the most recent story was the Wisconsin one, that was Friday. Seems like two weeks ago. But anyway, it was just Friday where a judge was arrested at 8am by FBI agents and Kash Patel and Pam Bondi made a big deal of it. Say a word about what happened and what you think it means. Yeah, so thanks and thanks for the opportunity to have the conversation with you. So in a fairly unprecedented manner, there's one potential precedent in the first Trump administration, but in a fairly unprecedented manner, the Department of Justice has arrested a sitting judge. And the allegation is that she's committed

two federal crimes by facilitating a non-citizen immigrant in the country fleeing ICE's ability to arrest him in her courtroom. And the two federal crimes are obstruction of the enforcement from ICE and the concealment of a person under an arrest warrant. And so that's what just happened. And in the most unusual manner as well, not only just charging a sitting judge, but also arresting her and then bringing her into detention

and holding her in detention for a couple hours, which is astonishing. That's very unusual for somebody, obviously, who poses no flight risk or anything like it. And then immediately when the arrest happened, Kash Patel on X broadcast this event, talked about her in disparaging terms, and the case was an open shut. Pam Bondi went on Fox

News, smeared or disparaged the judge, however one wants to think of it, and suggested that this was a signal to other judges similarly situated. So that's the setup. And instead of them putting that in the most charitable terms. Yeah, and I've talked to three or four, I guess, federal prosecutors about this, and they think the case is weak at best and would not normally be brought and will not maybe even actually get a grand jury sign-off

or certainly get a conviction. Yeah, so I think of it in similar terms. So what we really have from the government side is an affidavit that was submitted as part of the criminal complaint. And if you simply read the affidavit on its own terms, it doesn't look like a solid case at all. It looks like a case that will just fall apart, primarily because the whole idea is that they would have to prove beyond a reasonable doubt that the judge's intent was to conceal the immigrant. And lo and behold, the affidavit itself says that what she did is, instead of having the person exit out the front door of her courtroom, had the person exit out the jury door. And that seems at

first blush suspicious because that's not a door that's usually used for defendants that aren't in custody, but lo and behold from the affidavit itself they say where does he come out of? He comes back into the public hallway. It's the same public hallway where they were trying to arrest him in the first place. And how do we know this? Because two DEA agents observe him in the hallway where they wanted him to be. Do they arrest him there? They do not. He then goes down an elevator. In the affidavit, the government's own affidavit. Who is in the elevator with him didn't do anything to keep him out of sight of the federal agents and that every opportunity to do what they came there for. But even if it

facially is not absurd, it just seems like how on earth are they going to prove beyond a reasonable doubt her intent and all sorts of things, given that's the circumstance. And that's just part of it. There are other aspects to it, which everybody agrees that it seems like, the federal agents as well as the chief judge of the courthouse, that they could not try to arrest this individual in the courtroom. That yes, they could in the courthouse because the hallways are public,

but not in her courtroom where a judge has a huge amount of discretion as to how to run their courtroom. And lo and behold, another part of the affidavit is that they say at a certain point in the affidavit that there were two federal agents in the courtroom. And there's no good explanation for why they would be in the courtroom. And the affidavit kind of hides the ball on that, because it just says that at a certain point, the courtroom deputy asked them to leave and then they left the courtroom. But we don't know like why, you know, when did they come in that courtroom exactly? So I could easily imagine the judges super animated by the fact that they're inside her courtroom, trying in part to carry out this arrest of somebody in her courtroom and judges across the board don't want that. So that could be her complete intent.

Like, do it whatever you want to do, ICE, but not in my courtroom. Right. And that's the end of it. And that's not criminal by any stretch. So we'll see what happens on the case. But the publicizing of it, the kind of not just simply telling your police report to be, you know, for your, as they did with Trump and as they do with most of these guys,

almost all of these kinds of defendants just show up at 11 a.m. at the office and we'll, you know, fingerprint you or whatever and take a picture and then you'll go on your way, the kind of the spectacular, not spectacular, but the performative arrest of her outside of her courtroom at 8 a.m. and so forth. She came to work, I guess, the next day. What do you think they intended by that? Yeah, so I think they intended one of two things. My working assumption, based on everything I've seen,

is that they're trying to create an image in the public mind or some sectors in the public mind or some sectors of the public about judges. That there's this, that they wanna create this idea that judges are like the notion of the deep state that they've also created that are trying to protect violent immigrants inside the United States and protect them from ICE.

And that's the concept and doing that in a criminal way because, and that's exactly what, I mean, basically that's a summary of what Pam Bondi is saying on Fox News. It's extraordinary to have the attorney general of the United States speaking publicly about somebody under criminal arrest at all, let alone in these terms. I mean, she could come out and say just very boilerplate what's in the criminal complaint, and we're going to speak through our filings,

but that's not at all what she did. So I think it's just about a public messaging campaign, same thing with Kash Patel using X, also to broadcast a photograph of the judge being taken out of the courthouse. So I think that's one. I think they're just trying to create this image of judges because they're running up against the court system, fighting against the administration time and again. I think that's one. Secondly, perhaps, and I'm actually not as sure about this one, they're just trying to intimidate judges, which they're doing in other ways. I mean, A.G. Bondi has already called Chief Judge Boasberg is eminently respected as though he's on the side of terrorists, things like that. I don't think this is necessarily a form

of intimidation because I don't think these judges are doing anything wrong or that they're going to change what they're doing on the basis of this use of the bullhorn to the shout lies about them essentially, but that could also be going on as well. Yeah, the first does seem very likely though, the attempt to paint a picture of these liberal judges and in this case, I mean, I was going to say the liberal states, how that liberal state, Trump carried the state in Wisconsin. But a state court judge, I guess maybe even a local judge. I'm not sure if she's elected Milwaukee or state.

I think Milwaukee maybe. So it's, you know, a city judge being soft on immigrants, which gets to the other side of it, which is immigration, right? Not an accident. This is an immigration case, not a random other case where a judge had a maybe routine, almost slight difference of opinion with federal agents who were, you know, in terms of whose turf things would happen in a courtroom. That's not the unheard of, right? But it's an immigrant who was in fact being tried for. She was presiding over his case for, I can't remember what the battery,

I think. Yeah, domestic violence of some sort. Yeah. So, yeah. So that gets us to immigration, which has been so what the battery, I think. Yeah, domestic violence of some sort, yeah. So, yeah. So that gets us to immigration, which has been so much the heart, almost more than even I expected, I'd say, of Trump's agenda, of his public presentation

of what the administration's about, and at the heart of a lot of the conflicts with the courts, not all of them, because there have also been many issues about firing federal employees without proper notice or proper anything and other separation of powers issues and so forth. So say, where do we stand on the broad sort of prosecution

by the Trump administration of its immigration agenda and its running into some barriers in the court system, mostly the federal court, I guess. Yeah. Yeah. So I think they're running into two types of barriers. One is that they're simply, as I'd actually written with Adam Cox before everything started getting rolling, we wrote before January 20th, there's one barrier, which is just the sheer difficulty logistically to meet their stated expectations or objectives of how many people they want to remove from the country. It's just so hard to do that in so many different ways,

logistically and otherwise. So because of that, I think they're now reaching for other instances in which it's more extreme. And I would put it this way, absolutely not what people voted for. I think a lot of people voted for clamp down on immigration, but they were thinking like violent immigrants. And it's so hard to get those numbers that high that I think they're now expanding to hold classes of individuals, you know, in the last, I think, 24, 48 hours, the wife of a person in the Coast Guard who overstayed her visa. I mean, so that's one piece that they're running into that obstacle. And the

second one is in the courts, exactly. And that in particular, I think they've had two major missteps. I never understood why they rolled out birthright citizenship on January 20th, and especially with a version of it that's on absolute steroids. I mean, let alone that birthright citizenship, trying to strip people of that, in the first instance, I thought was always going to lose at the Supreme Court, but then to also add to it that they're doing it even of people who were born in the United States to lawful immigrants. That one, but then now we have the use of the Alien Enemies Act or the purported use of the Alien Enemies Act. And they're suffering just a lot of losses with Republican appointed judges finding against them and finding against

them on the idea that the notion of an invasion, the notion that the Venezuelan gang is acting as a foreign government is pretty much ludicrous. And so the judges are willing to go there. If this were closer to the line, I think the judges might give a lot of deference. But we can talk about this. I thought one of the most important cases that just came out this last week is a bit of a sleeper. And the people haven't seen understood it as much, but it's the equivalent of Abrego Garcia with another person who was taken to the Seacott prison in El Salvador. We don't have the person's exact name, so it's just J.O.P. for their pseudonym and a judge in the case as a Republican appointee, in fact, sorry, Trump appointee, let me put it that way, Stephanie Gallagher in Maryland basically refers to the Obrego-Garcia case and says I totally agree with Judge

Sini's in that case and that she reaches the final conclusion that the person in this and before in her instance also is in the person in this, in her instance, also is in the Secott prison and she orders in the same language as the US Supreme Court and Judge Sini's that the government is ordered to facilitate the release of this individual from the Secott prison. And then just to put one other finer point on it that makes it very similar to Obrego Garcia, Obrego Garcia was removed out of the United States against a court order that said he should never be sent to El Salvador because he faces a well-grounded risk of persecution. J.O.P. That's a court order that goes way back. I mean, that's 2019. Yeah, that was his position. That's why the government originally admitted they'd made a mistake in the case about Franco Garcia.

Absolutely. They say it's an error. They don't contest it. It's their error. And then in this case, J.O.P., this is an individual. He's 20 years old. He was part of a broad settlement with the government over unaccompanied minors who came into the country and the settlement prohibits their being deported for the time being. And so the judge says a whole lot went into that settlement. He was sent to El Salvador against the settlement. So it's actually an enforcement of the settlement. It's not like just a temporary restraining order. It's something much more meaningful. And she says he's been sent there in violation of the court-administered settlement, and you need to bring back. And they also says, essentially, that there might be other people who are members of the

class of that settlement. So it's just, you know, again and again and again. And then for those who are paying like super close attention, these are being, these are habeas cases. And because of what the Supreme Court did, they're having to be brought up in different parts of the country where the lawyers know of individuals that are at risk of or being sentenced. It's really hard because there's no nationwide court order. It can't do that under habeas.

And some thought that there was actually a victory for the administration. In many ways it was, that they would, that people would have to fight against them on this very piecemeal basis. But I do think that there's this unintended consequence, which is, lo and behold, you're now getting a bunch of judges across the country fighting against the administration. It's creating this pretty solid base that when the issue comes back to the Supreme Court, you're going to see Republican and democratically appointed judges having found against what the administration is trying to do with the Alien Enemies Act.

Yeah, and it's affecting public opinion a little more, perhaps, because there are these different cases popping up in different areas. I mean, Ringo Garcia has been the big one, obviously, gotten all the publicity, and the numbers are pretty astonishing in the polls on that. People by about two to one think he should be uh it's hurt trump's general immigration approval rating which has drifted a little below 50 and but still it's 45 47 but the abrigo garcia numbers are like 25 and and the administration has done its best to paint a certain picture of him which isn't attractive and then uh go after him but doesn But people do think that people who shouldn't, who aren't members of this gang, at least,

or most very, very likely aren't members of this gang, should not be deported with no process, no hearing, no nothing, no evidence to this place in El Salvador they may never get out of and that they should try to bring them back. And I suppose if they try to bring them back, on the other hand, that raises all kinds of other issues. Like, well, what about the other people? Do we know anything? How many of them are there? Are there 10 innocent people? I mean, innocent meaning the huge majority of them

have never seemingly been charged with a crime. But let's just stipulate that some number of them would be suitable for deportation, maybe not to this place, but to somewhere because they would have plausible reason to think the person's a gang member or something. But we don't know how big that number is either, right? I mean, once they get into acknowledging it, this is, I guess, why they don't want to acknowledge error, maybe, apart from their general stubbornness and thinking that's a winning political issue for them, that they're opening a door to a perfectly reasonable, in a way, okay, let's just go over each case and see what the facts are. But they

don't want to do that, it seems like. Yeah, I think that they're just in deep trouble in different ways, and that's why they don't want to admit it. Because here's one. So they're upwards of, you know, about well north of 200, closer to 300 people who have been taken out of the United States under the purported Alien Enemies Act authority. And then there are additional ones like MS-13 members who might be El Salvadorian citizens themselves that are not in an enemies act. But in some sense, all of them have indeed, as you describe it, been taken out of the country in violation of their constitutional right to due process, just to have the opportunity to say this is a mistaken identity or something like that. And it's not just me coming up with that as a law professor, but it's the U.S. Supreme Court. So that's the U.S. Supreme Court. members on that particular issue that they require notice and a real opportunity to actually,

as the court says, file habeas. And all of these folks have been taken out without that, it seems like. Just to be clear, that's because they're in the country and therefore they have the right to file a habeas free and to make their case that they're being, as you say, mistaken identity or the facts, the ICE thinks are facts, aren't facts or whatever, they have a protection against deportation, different from the border, in other words, where they can turn people away. Yes, yes, exactly. And that's why, yeah, and that's I think that's why this has triggered a concern of folks like Joe Rogan speaking about this particular issue. You can't deprive people of their liberty in such a manner without just due process. Just everybody needs at least due process.

If the people that we think are guilty don't get due process, none of us do essentially. And that's the runaway implication. So I think that's one part of it. Now, just recently in the last week, the ACLU did, and Democracy Forward, which I anticipated they would do, which is they're now filing the case that's going to be the key case in the DC system, before Judge Boasberg, to try to get a habeas for the people being held in El Salvador, under the argument that they are in still US constructive custody because they are being held there by US payments and with a US agreement with El Salvador under the argument that they are in still U.S. constructive custody because they are being held there by U.S. payments and with a U.S. agreement with El Salvador and the like, and that the agreement is in fact only for one year. So that would mean, I think that's what

the administration is facing as a problem. It would mean that all of them maybe come back or all of them get a habeas proceedings. Whether that can be done extraterritorially or not is a question. Judge Boeberg seems to be open to that but that's what I think they've got a problem and that you know in terms of the innocent people the key plaintiff in the ACLU case is this person who's the hair salon guy and he sure as heck from everything that's in the public record looks like he was apprehended and is the wrong person he's not a member of the gang and a Bray go Garcia is a great example of

this as well just as a reminder in case people aren't tracking it super closely but despite what President Trump and the Attorney General have said about him as a terrorist, etc., when it comes to the court proceedings, they do not say that. And the Fourth Circuit, in two powerful opinions now by Judge Wilkinson, Reagan appointee, they have pointed out that the government presented quote unquote no evidence, no evidence that here's a TDA member, I'm sorry, MS-13 member in that instance, no evidence and that they conceded the argument. So that's really quite awful in the sense that another instance in which we have cases like this in which there's no there

does it seems like if these folks get a habeas a bunch of them are going to win um and now it's spilling over in terms of their enforcement as you sort of hinted at earlier to u.s uh more broadly i mean they seem to be u.s citizens who may well have been deported which is not legal i think uh they may be there are people who are, as you say, someone waiting for a green card or having registered appropriately and applying for various forms of immigration status, as you said, I think a spouse of a Coast Guard member

or something like that, who are just being discovered one way or the other, sometimes discovered when they show up to actually do what they're supposed to do to advance their immigration hearings or status or file the paperwork or whatever, and being snatched and sent abroad. I mean, it just does seem like they are doubling down on the whole thing. I mean, and this is now way beyond the gang member charge,

and I want to get back to the Alien Enemies Act, but way beyond the Alien Enemies Act. This is just, let's just deport people who are manifestly no threat to anyone. And in some cases, U.S. citizens, apparently. Yes. So, and I think it's in a certain sense, my best guess is that the message has gone out that they really need to ratchet up their numbers and deportation. So if anybody comes into the system that can be deported, they are going to try to deport the person. So regardless of if that's even a,

you know, a person that, as you say, that has been routinely, consistently showing up to their immigration proceedings, if they then decide that the person can be deported, then they are gonna deport them. And we just have now seen in the past few days, 48 hours, I think it is 24th and 25th of, so a little bit longer than that, of this month, a two-year-old US citizen with health conditions

removed to Honduras in which the judge in the case is a very conservative judge in Louisiana, Terry Doty. And he says that he is deeply suspicious that the government has removed the person, this kid, without any due process, without any real process. And, you know, ICE's argument, just so we have that, is, and the government's argument, that no, when they decided to deport the mother to Honduras, she expressed the consent and willingness. She wanted to have her two-year-old with her rather than remain with the husband in the country. And then the judge says, how how do I know that and he italicizes the word no he's like how does the court know that we don't know that um and the the issue I think here is I

could even imagine somebody feeling like they think it's appropriate and right that if a person's in the country and has a final order of removal let's say back to Honduras the woman um then so be it and then if she has a child, then it's her decision to make as to what to do. Okay, maybe so, but no process. And she's not able to even contact her lawyers. And she's not even able to contact her family to even make a decision.

And her lawyer's telling her like what her rights are so she can make an educated decision about it. That seems to be what occurred. And in fact, her husband races to the courthouse, files an emergency TRO on that day that it occurred because he was waiting for them to come out of the immigration meeting that they were in. And the judge acts fast to get a hearing the next day. But by the time the hearing is happening, they've already taken her out of the country. And the judge mentions that she's on the plane because he wanted to speak to her during the hearing. It's just like, why? Like, why are they

rushing people out of the country? Same thing with the Alien Enemies Act. Why rush them to the planes unless it's trying to avoid court review? And if, and why do that? Shouldn't they be willing to state their case before the courts? So that's what's just so worrisome about the situation that we're in. It's doing this without people getting process and now affecting U.S. citizens. And Judge Doty starts out his opinion by listing the constitutional precedents for no U.S. citizen should ever be deported. You can't even use the word deportation with a U.S. citizen because it doesn't apply. How much is the government's evasion and running of the courts, in some cases misleading the courts very clearly, actually, not pretending or maybe truthfully saying they don't know what's going on elsewhere in the government, even though they're supposed to presumably come to court

as representatives. They have the ability to call their peers elsewhere in the government, even though they're supposed to presumably come to court as representatives, you know, they have the ability to call their peers elsewhere in the government and say, hey, I need to know what's going on. I'm in a court case tomorrow, and they seem not to be told or say they're not told. How much is all that building up distrust of the administration's credibility in courts? Yeah, I think it has to be building up a lot of distrust across the federal judiciary because these judges are also I'm sure very aware of what's happening across the country in other cases. We're reading it, they're reading it.

There does seem to be an extraordinary pattern of Justice Department lawyers showing up in court, and then as you describe it, you know, it's only a question of if they're like, using one of my areas of expertise in international law, are they unwilling or unable to be candid and truthful with the court? Unwilling or unable? Unwilling because they're actually engaging in deceitilling or unable. Unwilling because they're actually engaging in deceit or unable because they actually don't know the answers. And under the unwilling or unable, it's also a little bit of, for some of them, I think it's like willful ignorance. Like how could you possibly show up in court and you do not have the answer

to certain questions? How can you possibly show up in court if your client is not telling you the answer to whether or not there are planes that are loaded up with purported Alien Enemies Act detainees? How can you possibly show up to court, and it cuts across these cases, how can you possibly show up to court without knowing who is the head of Doge? And then once they get the person in who they now say is the titular head of Doge, how can you possibly show up to court without knowing who was the head of Doge before she was appointed? So there's a part of me that wonders if they just are deliberately going in so they don't have the information that they can give the judges. So this has happened in so many different cases right now, and certainly one of the biggest ones

was the Alien Enemies case before Chief Judge Boasberg, where he has now found that there's a probable cause to find individuals in criminal contempt because of the idea that what they were trying to do is get those people on planes outside of the country. He lays the groundwork for exactly when they were pre-positioning people to get on those planes,

knowing that he was having his court hearing, and then willfully disregarding his orders to bring people back either mid-flight or if they landed in El Salvador to then return them from the tarmac and fly back. So that's part of the concern. And one of the DOJ lawyers who keeps showing up in these cases, either willfully ignorant or whatever the case is, is this guy ensign. And it's just happening again and again. So I can only imagine judges are increasingly distrustful. This can also finally implicate the outcome of certain decisions. You know, one thing that I think folks like me are watching from the legal perspective is a doctrinal presumption of regularity that often goes into cases, especially in national security cases and immigration cases, where judges are routinely going to be saying in ordinary times, we presume regularity on the part of the

administration and its decision-making process, and that's why we give them great deference. I don't know how you get there, given what we've already seen, and given what we know about the purging of internal watchdogs within the administration that are the kinds of internal checks to make sure that they're abiding by and complying with, like compliance officers, with law. So it's an almost perfect storm that's, I think, coming for the Justice Department along those fronts. Yeah, that's so interesting. It's also depressing, or at least, yes, you say the perfect.

Well, let's only ask two final questions. One about the perfect storm that's coming, in a sense. I mean, what, well, the administration's been clear. I guess you said, well, why are they doing this? Well, they're doing it because they don't believe they should be in court. I mean, they believe that they should have pretty much an untraveled right to do all this and trump says this all the time on truth social and bondi and others in a slightly more elite not much more sophisticated way the lawyers saying more

sophisticated but they've said it in court too haven't they that you know that we shouldn't be here in the first place this is so it should be the president's article to power and that's that and you know so there's they're treating it the way any of us might treat something that we're, I don't know, summoned to a meeting and we don't think we should be there in the first place. And, you know, don't think they have any authority over us. And we're going for some kind of sort of have to show up for some reason, which is grudging. Hopefully we wouldn't lie and all, but anyway, I'm struck. But then I guess my question obviously is how does that play out and what is your anticipation of when i don't know how do we just have more and more of these individual cases is there a moment where it kind of all comes together it's a big defiance of the

courts or not and so forth and secondly relatedly i guess the alien enemies act itself hasn't really been there hasn't been an argument on the merits so far of whether it was, in fact, properly invoked for Venezuela, not a country which we were obviously at war, and for a gang from Venezuela, which is a law enforcement problem, but maybe not an alien enemies problem. That will make its way to the Supreme Court eventually, I suppose, as an actual question on the merits, not just on how they've applied it in these cases, right? I mean, I guess it has sort of been, the merits have been sort of reached in the sense that, not reached, but raised in the sense that you don't get an injunction unless you have some decent chance of prevailing on the merits. So the courts are kind of, you might say, have said what, that they're slightly dubious about this implication of the Alien Enemies Act. But anyway, so both of those questions. So what,

maybe Alien Enemies Act first, because that's probably simpler, but then I really would be curious, what do you think we should be, what do you expect over the next weeks, couple of months, this Supreme Court term, next term, and so forth? Yeah. So I do, so there's always to me an open question as to whether or not the courts would look under the hood of the invocation of the Alien Enemies Act of deference to say this is a political question, it's a policy decision by the executive branch. It's not something for what they also say like judicially manageable evidence and the like. And just like the president also has extraordinary powers in foreign affairs and potentially to recognize foreign governments or things like that, if the president says they're acting as a foreign government, who are we to judge that? So it could have been that way, but as if they were to then peel open, look inside the hood,

then I think the government's argument just totally falls apart because as you say, the Alien Enemies Act is peculiar or particular, I should say. 1798 statute, it is about war with the foreign government or invasion by a foreign government. So you have to say it's a war or invasion as understood in the 18th century. Invasion is like a war in the 18th century. It's basically a full-on attack by a foreign government. And so the courts now, to the degree that they have looked under the hood are saying, there's no way this is

an invasion as meant by the US Constitution or by the statute. There's no plausible way in which a Venezuelan gang is acting as a foreign government, either at the direction of the Maduro regime or like they're, because I think they get themselves in trouble by arguing in the alternative as lawyers, the government argues, well, if they're not at the direction of the Maduro regime or like they're, because I think they get themselves in trouble by arguing in the alternative as lawyers, the government argues, well,

if they're not at the direction of Maduro, they themselves have filled in a vacuum. So they're like a foreign government, which is just really ludicrous and will not, so it doesn't withstand scrutiny as long as you apply the scrutiny. So that's why I thought that there's a very big moment with Judge Henderson, actually, a conservative judge and conservative on immigration issues and foreign affairs issues and executive authority saying this doesn't hold up.

She reached those questions. So she's in the D.C. Circuit, right? Yeah, D.C. Circuit. Yeah, that was remarkable. And then this other judge that I mentioned in the settlement case, is also she reached that she reached those issues on the Alien Enemies Act. So I think that that's, and I do agree with you as well, that that's what's finally going to get to the Supreme Court. In some ways, we're just playing stage one right now, where the Supreme Court is trying to say, look, these people get habeas, they get a right to be in court and contest at least one very clearly from standing Supreme Court

President under the Alien and Enemies Act whether or not they are a member of the gang. That's one. And then two, the court does signal, and it's very brief opinion on this, that they can contest the constitutionality or the interpretation of the statute. So maybe off to the races on that. And then so when that comes back, when they finally get their due process rights, essentially, then they'll contest it and then that'll come up to the Supreme Court. So we'll see on how that one cashes out. I do think that two things are true. So to me, I agree with you that focusing in on the next few weeks slash months, the key question is contempt of courts.

Are they going to, how far are they going to push this on defying court orders? And would it in fact go, would they defy a Supreme Court orders. I think we are already in that zone in that they are currently in defiance of court orders and that there are three of them at least and all three are actually under the Alien Enemies Act or use of El Salvador Seacott prison. And I think that can't be, you know, uh, El Salvador Seacock prison. And I think that there, and I think that can't be a, you know, that's not a coincidence. I think they think that that's the great public messaging

place to do it. And if they can get there because it's the easiest case for them with the respect of what they think the public, um, would accept or support, then they can do it in other cases. And so the three are the Judge Boasberg case in DC having sent people out on the planes, landed them in El Salvador and then not brought them back when they still were completely in US custody where he's found probable cause for criminal contempt. Second one is Obrego Garcia where Judge Sines was at a certain point, I don't wanna say irate cause it's hard to read that out off of the page,

but very clearly saying that the judge is, that the administration is in violation of her orders. So one in relation to her orders, the fourth circuit and the Supreme Court, which all said that the government can and should be ordered to facilitate a Greg regular Garcia's release from El Salvador. And that's the case in which, um,

just for people that haven't been playing close attention to this, there's something just so bizarre that happened in her courtroom. Um, or in the court proceedings, absolutely bizarre. It's hard for me to think of another example like this in which, and this goes to the like unwilling or unable, like,

is it incompetence or is it, uh, intransigence? The DOJ's briefs to the unwilling or unable, like is it incompetence or is it intransigence? The DOJ's briefs to Judge Sini say, we are under no court order to, there's no order, you can't order us to facilitate the release of Abreu Garcia from El Salvador. And the words that they use are actually the words of the Supreme Court.

So it's like, what are they doing? And in their citation, they mis-cite the Supreme Court. The quotation they have of the Supreme Court is not what the Supreme Court said. I've never seen a lawyer do that. But that's partly what's going on in her, in the litigation before her. And she totally within, I would even say even a little bit

narrower than what the Supreme court said she could do said to them, okay, you need to update me on what steps you're taking to facilitate his return. And they refused to do it. They refused to do it. She said, I want daily status reports. They are the status reports, just basically, finally, they said like where he's located, but nothing about any steps that they're taking. Partly, as you say, Bill say bill which is I think part of their thinking is like we shouldn't be here like we shouldn't be asked to do this this is article 2 power why you can't you know where you can't compel us this might be overly optimistic on my part but I'm thinking maybe they've just been advised by

really really bad lawyers who do those kinds of miss citations says they've really misunderstood the Supreme Court's order, which is clearly a green light to Judge Sini's. So that's the second one. And then the third one we found out in the last several days is a related case that cuts across all of immigration. It's not as specific to Alien Enemies Act or to El Salvador, which is this DVD case. The DVD case is in the First Circuit. And on March 28th, the judge issued a temporary restraining order that basically said, you cannot take people to a third country without telling them that's the country that they're going to. So you have to give them notice. And then that gives them an opportunity. they have a right to submit an application to an immigration judge that says they'll be tortured if the third country meeting like you can't just

send a venezuelan to el salvador 100 exactly that's it back home presumably if that's yeah it's otherwise legal but yeah yeah yeah yeah exactly so it's not about like an el salvadorian being sent to el salvador it's venezuelan being sent to el salvador but it could also be um a um ukrainian being sent to russia so but it could also be a Ukrainian being sent to Russia. So it's a result of immigration, but it certainly lands on the El Salvador situation. And lo and behold, the government recently says to the court, so that's, let me put it this way, that happened on March 28th. That's the TRO. On March 31st, Secretary of State Marco Rubio broadcast with a statement on his webpage and things like that, bragging that they've now just sent another 17 people to El Salvador's Seacott prison.

And in the 17, he says, that includes MS-13, so that might not be Alien Enemies Act, and those could easily be El Salvadoran citizens, but he then says, and Venezuelan gang members. So there's a Venezuelan being sent to El Salvador three days after the temporary restraining order. And this is alarming to the litigators, the plaintiff lawyers, and they say, they go to the court, like, this looks like a violation. And so in the last few days, the government submits its answer, which is that technically the, and you've written about this bill, that technically the named defendants in the case are DHS, therefore ICE, Pam Bondi, and then a local superintendent of a jail, and not the DOD. And guess what? The flights that took them out were DOD military flights and no DHS officials on the flight. That's

their argument, which I think is contemptuous. I think that is in contempt of the court's order, because the court said the name defendants and anybody basically participating with them or assisting them, which would be DOD. And when the judge issued his order, Judge Murphy, in whose custody were those individuals? ICE's custody. So they transferred them to DOD? Exactly. Yeah. And there's also a little bit of the hiding of the ball with the shell game, which is in their statement from the government, they say, oh, and then ICE transferred them to Guantanamo. And honestly, when I first read that, I was like, oh, okay. So at that point,

they were in military custody. That's not even true. There's an MOU from March 7th between a memorandum of understanding between DHS and DOD that says people being held on Guantanamo are in ICE custody. So it's like ICE held them, transferred them on Guantanamo are in ICE custody. So it's like ICE held them, transferred them to Guantanamo after the temporary restraining order. They're obviously thinking that these people are going to be deported out of Guantanamo, because that's what's being a staging ground. And I would like to know, and I think the judge would like to know, was it at the last minute that they then give them to DOD custody as they board the planes? And that would be remarkable. So it's three instances when I think they're just in violation. And then the question is, you know,

does the system hold? And what happens when the Supreme Court rules? And just to put one other point on it, as you said, like some of the administration officials who have law degrees have been saying publicly things like oh article 2 power and the like and that courts shouldn't even be intruding on their authority and I think there's a way in which that argument is an argument they can make in the court but if the court decides that is not their authority, it's game over. That should be it. And JD Vance is one of those individuals. Like he knows better. And he's been making that argument publicly that he's like, Oh,

article two power. And does a court get to decide what a commander in chief does on the battlefield? And the answer to him is, well, if the U S Supreme court says so, then yes, that's, that's the answer to him is well if the u.s supreme court says so then yes that's that's the answer so and that's he's left that ambiguous as of now um and i think that's that's the deep concern that i'm most worried about as as these cases are um coming out um yeah and the public for now seems to think you should obey court orders and especially supreme court orders but obviously they can try to erode that over the next few weeks and months. Well, look, this has been terrific and so interesting and so much. I mean, this is, we're only, as you say, in Act 1, maybe, of these five. I mean,

people sometimes talk about it as if, well, okay, the court stuff, that's been exciting, but now we're moving on to other things. But to the contrary, right? We're really only, just in a technical way almost, we're only a little bit into the litigation of these cases. I mean, we're at the lower court level, we're at procedural matters to some degree, we're at temporary restraining orders, we're not on the merits in any cases. So this is a very, it's a long way to go, but important ways to go. And I suppose it's somewhat, I can't resist one last question, but we'll be brief because we should let people go. But the 7-2 emergency Supreme Court order a week ago now, I guess it was on Saturday morning, eight days ago, with Thomas and Alito only in dissent. Do you read, it was pretty astonishing, I guess, court watchers say, this 1 a.m. emergency order and issued before Alito could even finish his right as to say.

Yes. Yeah. Yeah. I mean, do you read that as a bit of an indication the Supreme Court is like looking at what's happening and thinking, yikes. I mean, in terms of the administration or is it just whatever, you know, an emergency order? One shouldn't make too much of it. Yeah, I think the Supreme Court is deeply worried. And I think that with the exception of Alito and Thomas, it seems like they are geared to be, at this point, I think, try to be a check on the executive branch's overreach. And yeah, so what you described, the fact that they acted at 1 a.m., the fact that they acted before the Fifth Circuit even decided. Now, the Fifth Circuit actually had decided just before midnight, but you can tell from the way their opinion's written, they don't know that. They, in fact, say, like,

after the Fifth Circuit decides, so they're doing that as well. They freeze everything in place. It is interesting that it's still frozen in place. And I also think just for other folks thinking about this, it is interesting that that freezes the matter. When they said no more flights under the purported Alien Enemies Act because these people aren't necessarily being given notice, that's the issue, that there's compliance. So right now I think the system in a certain sense is holding.

So when I think many folks think, oh, isn't the Trump administration in rampant noncompliance? And I have even said some things in this conversation that sounds like that, but I think the system is still grappling with it, holding it, and there's a criminal contempt proceeding that's going on. There's a proceeding, Sinise's proceeding with Abrego Garcia, I think is very similar. And the Supreme Court, I think is sending a signal to the judges in a certain sense of hold firm.

I would imagine that the federal judiciary is reading that as well from the Supreme Court's action in that case. And it's building up because it's like one case after another in which the Supreme Court has pretty firmly come down in protection of constitutional rights from the Obrega-Garcia to the Alien Enemies Act case in the first instance, and then now to this one. I think we've got three pretty strong signals from them. That's so interesting.

So the Supreme Court is sending one set of signals, at least seven, one case, nine zero, but let's say seven members most recently. And the President of the United States is sending a whole different set of signals through his executive, you know, through the executive branch, which seems to be mostly, almost entirely following his signals. So we are heading to something we'll see i get but there'll be many zigs and zags on this road to uh i mean everyone expects this climactic moment but i suppose there could be many subclimactic moments and maybe not even in one climactic moment is there many different cases also so um

wow okay we have to continue this conversation in a month or so and pick up and you can explain what will all that will have happened and you'll be explaining more than, I'm just thinking the Sunday will work, but you'll be explaining obviously on your Substack and in your writings and appearances on TV, but also I hope with my colleagues on other Bulwark podcasts and videos, you'll keep on explaining where we are and what to make of it. So Ryan, thanks so much for joining me today. Great. Thanks for the conversation once again. Looking forward to the next one. Me too. And thank you all for joining us on Sunday, on The Bulwark on Sunday.