Jack - Dubious Privilege (feat. Skye Perryman)

Episode Date: May 11, 2025

There are now multiple cases challenging the administration’s Alien Enemies Act proclamation; including a hearing by Judge Boasberg for an amended complaint filed on behalf of all the detainees in El Salvador.Judge Xinis has had to pause the discovery in the Abrego Garcia case to contemplate the Trump Administration’s invocation of the state secrets and deliberative process privilege.Justice Department lawyers continue to lose credibility before judges who are upset by their shoddy work.President Trump pulls the nomination of Ed Martin for Us Attorney in the District of Columbia and appoints Fox anchor Jeanine Pirro as interim US Attorney.Plus listener questions…Skye Perrymanhttps://x.com/skyeperrymanhttps://democracyforward.org/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. There are now multiple cases challenging the administration's Alien Enemies Act Proclamation, and Judge Boesberg held a hearing this week for an amended complaint filed on behalf of all the detainees in El Salvador. Judge Sinis has had to pause the discovery in the Abrego Garcia case again to contemplate the Trump administration's invocation of the state secrets and deliberative process privileges. Justice Department lawyers continue to lose credibility before the judges who are upset by their shoddy work. And President Trump pulls the

nomination of Ed Martin for US Attorney in the District of Columbia, moving him to the Department of Justice giving him jobs, and appointing Fox News anchor Janine Pirro as the new interim US Attorney. This is Unjustified. Hey, everybody. Welcome to Unjustified. I'm Alison Gill. And I'm Andy McCabe.

Hey, Andy. Judge Janine, we're going to talk about that a little bit later in the show. Just wow. Okay. I feel, maybe we'll talk about this more later, but I feel like she's less dangerous than Ed Martin and I can't quite put my finger on why, but we'll talk about that. Honestly, I'm kind of with you on that one. I think it's probably because of Cecily Strong on Saturday Night Live. I think she...

I don't know. Yeah, I feel like we... I don't know. You're like, every day is a new horror. So who knows what comes with the future. But boy, what we saw of Ed Martin in the short time that he was in his bestest job ever was really pretty awful and I think a terrible sign for the future of that office, that very important prosecutor's office.

Yeah, it's probably one of the most, at least top two most important prosecutor's offices in the country. All right, so today, this is, you know, first of all, welcome. Thanks for listening to Unjustified. This is the podcast where we cover the Trump Department of Justice. And we have a lot going on this week in immigration court. Another judge has ruled the administration's use of the Alien Enemies Act is unlawful. We'll talk about that. There was a hearing in Judge Boesberg's court about constructive custody, class certification, jurisdiction, violations of the Alien Enemies Act, all having to do with that original case that has sort of evolved a little bit, that was brought, you know, remember when he had,

you know, wanted to turn the planes around. That's right. And also, they talked about possible remedies, what due process might look like. And of course, Judge Sinis has had to put Discovery on hold again to brief on the administration's assertion of certain privileges that they claim alleviate them from having to participate in discovery for Abrego Garcia. So we're gonna talk about all of that today along with Ed Martin and Jeanine Pirro.

So very, very jam packed show. Excellent, excellent, here we go. All right, let's kick this off with the Boasberg hearing, which did not go well for the government, I'm happy to say. And joining us to discuss this case is the CEO and president of Democracy Forward, Skye Perryman, who alongside the ACLU has filed this case on behalf of the plaintiff. So please welcome Skye Perryman. Skye, thank you so much for coming on with us today. This is such a thrill.

Thanks for having me. All right. So just to kind of get us started, we've been following the JG case very closely. Our listeners are super interested in every development. Can you tell us basically like, where do we stand with the case now? And what are some of your kind of most immediate concerns? Well, this was a big week in the case because the Judge Boesberg was questioning the government, of course, about statements that the president himself has made, acting, saying that he can pick up the phone and call the president of El Salvador and could bring people like Mr. Garcia home, but that he's just not going to. That's, of course, contradicts what the

lawyers at the Department of Justice have been saying. And so this week, Judge Boesberg has ordered discovery into those questions of the court's jurisdiction. And so we're going to wait and see what happens in the next stages. Excellent. Yeah. And I want to dive in a little bit deeper on that in those arguments. I was there, I was on the public line listening to those arguments in Boesberg's courtroom. And it seems like he first of all wants to pull the original five plaintiffs from the case since they're already being handled

through habeas petitions and other jurisdictions. But he started with the classes and he said that there aren't really subclasses anymore, there's just two classes. And he seems to me willing to really subclasses anymore. There's just two classes. And he seems to me willing to certify the Seacote class, but there were a lot of questions about the criminal custody class, because I guess there's about 32 people who are being detained criminally around the country.

And they sort of want to, they were talking about how the DC court has jurisdiction because of future arguments against people held criminally. What do you think of what Judge Boasberg had to say about the Seacote class and what he had to say about the criminal class? I mean, he's been a very careful judge in this entire proceeding. And so we are committed to seeing this through, seeing how he deals with the current case. Of course, as you mentioned, there are a number of people that have had to file habeas petitions. And so we're looking forward to the next stages, but we're there just as you were and wanted

to be quite attentive to his questions. Yeah. And he also talked a little bit about jurisdiction, but also something called constructive custody. And he had a lot of case law that he cited. And I remember him, because you brought this up. I remember him asking the Department of Justice lawyer, Kimbley, I think his name was, I can't remember. It's something like that. But he was like, are you saying that the other judges who

have already ruled the Alien Enemies Act to be unlawful are just, they're all just wrong? Are you saying that what Trump said about being able to call Bukele, is he lying? Is Kristi Noem lying when she says that we have a deal with Bukele? Are you saying that Caroline Levitt is lying about saying we're giving $6 million to house these detainees in Seacoat, I thought that was very, very pointed. And I think it gave a lot of positive, at least for your side of the case, clues as to how he may rule, but he wants to do discovery first. Well, and he's been really focused, as judges should be, on getting to the bottom of things

and on getting to the truth. And what we've seen throughout this administration, whether it's with respect to Doge and the president's statements on interviews with Fox News about Elon Musk and his role and how those have contradicted things that the Department of Justice of Lawyers have said in court, or whether it's respect to the Alien Enemies Act, you really, the president and his lawyers sort of getting a pickle here because, you know, someone's not being truthful, right? And Judge Boasberg has been quick to really want to understand who is making statements on behalf of the government, how do they all square up, and where does that leave us? And so, you know, we are just really committed every single day to making sure that people in this country get processed. That is something, of course, that nine members of the

Supreme Court have agreed with. We are comfortable. We are really focused on continuing in this case and in other cases to ensure that people are getting processed. And we've seen judges across the spectrum. I mean, the judge in Texas in the habeas case is a judge that President Trump himself nominated, was confirmed by the Senate, and has even said as a matter of substance that the Alien Enes Mase Act shouldn't apply here because there hasn't been an invasion or a declared war. So, so, you know, happy to come on and talk about it more. And we've appreciated how much you all have been covering it as well. So as you, as you kind of look down the road on this particular litigation,

what do you think the remedy looks like here? Right? So if like, is the is the administration starting to consider like, what's a plan B? What do we do if we get a direct order that we can't get, you know, our saviors on the Supreme Court won't bail us out from that one? What does this look like? Are we going to try to now cobble together criminal cases so that everybody who gets brought back is immediately arrested and charged and placed in continued detention? Like what's the future hold? I know that's an unfair question, but there it is. Well, I think there's two things potentially here. I mean, one is in this case, it's clear. I mean, these people need to be able to come back to the United States. They were removed without process. Many of them remained on planes, even after Judge Boasberg

was very clear in his ruling to the government about what needed to happen and that the government needed to comply immediately. But just today, and it's interesting that we're speaking today, just today you have Stephen Miller coming out and people announcing from the administration that they may just want to suspend the writ of habeas corpus, which is a threat to every single American in this country and really puts on display. They're really not faithful to any type of rule of law, including by the way, the laws as the judges that President Trump himself appointed are interpreting. This is not a political issue. It transcends politics and the American people are getting it. I mean,

this is deeply unsettling for every single American in this country to think of a president that believes that he can remove people without process, that would even potentially consider suspending the writ of habeas corpus under these circumstances. And so, you know, that's what I see around the corner and what we're, you know, deeply concerned about and very committed to responding to in swift fashion. But, and I mean, I think that's absolutely right. But put it in the overall context or add to that context, the current attacks on the judiciary. You've got statements from people like Tom Holman who says, I don't care what the judges think. You've got Pam Bondi who opines

an oral directive is not in a judge's oral directive is not enforceable as an injunction. I mean, like, it's a complete abandonment of the acknowledgement and essentially following the law on the part of the administration. So is it here? Are we at the point of a constitutional crisis? Look, we've been at the point of a real crisis with this administration, but I will tell you the good news is

that we have seen the judges do what judges are supposed to do, regardless of whoever put them on the bench, regardless of what political party they may or may not have ever associated with or been friendly with, regardless of who confirmed them, who was in the majority of the Senate when they got confirmed. We've seen the judges across the board, regardless of any type of politics or ideology, show a fidelity to the Constitution, a real, they've been willing to step out and say, you have to comply with our orders. That includes the president and the administration. I think the people that are wondering what power should the courts have to enforce their orders, they're about to find out. Because in some of these cases, the courts are going to start exercising those powers. And I'll tell you, I'm in the courtroom in a lot of these, in a lot of these

arguments and a lot of these cases, and the atmosphere is thick in there. The administration may wanna act like that they're above the law or may wanna brashly, that is not what's happening even with their political appointees that show up in court. They get very uncomfortable when the judges started asking these questions that they cannot answer and that they cannot justify.

And so we're about to see that, and that's the good news is the judges are holding and the lawyers are holding in many ways. I mean, you have lawyers from across the country that are willing to show up, represent their clients, despite threats. We're certainly going to continue to do that here. But we are at a real crisis point. And the other good news is that the American people understand. The American people in the ABC News poll that has recently come out shows that, you know, a concern around the rule of law, a concern around due process, that is very high on people's list now.

I think there might have been a time when people thought this couldn't happen here. We're seeing that it can. And the American people are responding as you would expect that, you know, people in a democracy would. And so those are going to have to be the things that get us through. And it's going to be really challenging. Yeah, I totally agree. Yeah.

And before we let you go, before we ask how people can support your organization, I just wanted to ask you because we've been, you know, talking more broadly on this show about the reputation of Department of Justice lawyers. You've been in the courts, you've seen this happen. I'm wondering your thoughts. I remember Boasberg making a comment in the JGG case looking around and saying, look, I tell my staff always that your number one asset is the trust that the court has in you. What are you seeing more broadly with just kind of the deterioration

of the reputation of Department of Justice lawyers? Well, it's really sad what's happening and the position that this administration is trying to put lawyers in. We're not on video today, we're on audio, but if we were on video, you'd see I have the professional rules of conduct that sits right by our computers here. Everybody has them here at Democracy Forward. There really are Bible in a lot of ways in how you practice law. And we've been able at Democracy Forward, very pleased that many people who are having to find themselves leaving these posts are coming here, they're committed to the rule of law, they're going to continue to litigate through the courts. But it's really concerning.

And I think you see in a number of cases, lawyers are quite uncomfortable about the positions that their clients are putting them in. We want to continue to encourage, as the American Bar Association is encouraging, that everyone fulfill their duty to the Constitution and to the rule of law, especially lawyers that have this oath. And this is fundamentally why the administration is attacking lawyers and attacking judges, is because these codes of professional ethics and the things that bind us as a profession, regardless of politics, regardless of the kinds of clients that we have an opportunity to represent or our

professional background, these things that bind us, they really are so important to our overall system of checks and balances and integrity and that's something that's just inconsistent with the way this administration is operating. And I think you see the judges knowing that. They want names, they want names, they judges knowing that. They want names. They want names. They want bar numbers. They understand that there are lawyers that are embedded within the administration, including

at the White House that may have had a role in some of this. And they want to get to the bottom of it. And so I think there's just, there's going to be a lot more to see here. That's excellent. Sky, we know democracy forwards, but has played a huge role in all this. You've got what? Over 60 legal actions. You're getting results in terms of stopping the freeze on funding essential services,

blocking executive actions that undermine diversity, equity, and inclusion. Tell our audience a little bit about how, if they're interested, they can help you and help support the actions of Democracy Forward. Well, we represent every single client, every single community that we represent. We represent pro bono, free of charge. And that's because people support our work. So they are welcome to go to Democracy Forward. We would love you.org, democracy for.org, sign up for our newsletter, learn about our work, follow us on social media. If you have some extra money, please donate to us. That's very helpful to

power this work. If you're a lawyer and you're wondering what you can do to support our civil servants, the men and women who are serving us, who have been unfairly targeted, in some instances fired by this administration, we're pleased to partner with the new network called Rise Up, the Federal Worker Legal Defense Network. You can learn more about that on our website at Democracy Forward. And we're taking volunteer lawyers to be able to help civil servants. We've had thousands come forward, which is really exciting and we're going to need it. And we're going to need it in the days ahead. Thank you so much for what you are doing, for what Democracy Forward is doing, for standing up for people in the rule of law. It's so important. Thank you. Yeah, 100%. Thank you so much for the incredible work Democracy Forward is doing. It's just so very vital to, you know, everything from due process to protecting our federal civil workforce. So again, thank you very much. And we appreciate your time today. All right, everybody, stick around. We have a lot more to get to. And we'll be right back after this quick break. Don't go anywhere.

All right, everybody. Welcome back. It was so great to talk to Sky Perryman to get a little more insight on what's going on in Judge Boesberg's courtroom and writ large in courtrooms around the country when it comes to the Department of Justice arguing these cases. For sure. Great work being done by Skye and her team over at Democracy Forward. Agreed. Yeah.

And also, so moving on to new business here, hey, Jesus, you know, this week there was an interview on NPR with John Yoo. He's the conservative former DOJ lawyer from OLC back in the Bush administration. And he thinks that Trump deserved immunity. And he was also in his Bush administration position. He's known as being the architect of the infamous torture memos. So this very conservative legal scholar is now rebuking the Trump administration on immigration.

As Ryan Goodman points out on Blue Sky, you says there's no state of war, which is required to invoke the Alien Enemies Act. And he states, I quote, I think there are superficial parallels. For example, President Trump is claiming wartime authority invoking something called the Alien Enemies Act of 1798. The Bush administration also claimed wartime authority to be able to hold enemy prisoners at Guantanamo Bay. But there are important differences. The primary one, I think, is are we really at war? I think after 9-11, not just President Bush,

but Congress and the Supreme Court all agreed that the 9-11 attacks had started a state of war. Here, President Trump, well, he's claiming that we're at war with Venezuela, and he's claiming that this gang, Tren de Aragua, is sort of like a military arm of Venezuela, but he also has no agreement from any of the other branches. In fact, a federal district court judge just rejected that idea.

Right. Actually, two. We actually have two district court judges. Now they're rejecting that idea. Southern District of Texas, Southern District of New York. Yeah. I wonder if the Southern District of Texas is going to try to steal the name, Sovereign District of Texas. I'm like, take it over. Then John Yoo, this very conservative guy said, the second difference between these two situations is that no matter whether there was a state of war or not, the Bush administration's view in which I participated developing was that anyone who was captured in the United States had a right to due process, whether they were an American citizen or an alien, whether they were Al Qaeda or some kind of sympathizer. And we took the view if they were caught in Afghanistan or in Iraq, they were not entitled to due process in US courts because that had been the traditional practice in war.

The Trump administration seems to be taking the opposite view. They think that you could deport people under the Alien Enemies Act who are in the United States without any due process at all. And that is, I think, a challenge to the settled rules that we in the courts came up with in the years after the September 11th attacks. Yeah, you know, I think the best evidence of that statement, the truthfulness of that statement is the fact that that's why the Bush administration was so focused on keeping people in black sites or ultimately Guantanamo,

because once you bring them here, no matter where they're from or how they got here, they then enjoy certain constitutional rights and due process is one of them. So that entire policy of keeping people off of terra firma US was designed partially for that purpose. So Mr. Yu finally, he says, I have to say, I think the circumstances in the context of what we're talking about after 9-11 and this are very different, but in a way that cuts

against the Trump administration. We are talking about a time period when there was very little definition in American law about what torture was, plus we were talking about, unfortunately, the ticking time bomb idea that we had terrorists in our custody who knew about pending attacks on the United States and would not tell us what they were, which is a very different world than where you send immigrants. Where do you send aliens or even how do you hold American citizens in prison? And I think the definitions are much clearer.

And the way you described it is, I think, quite accurate. The United States isn't supposed to, under American law, deport people to places where they might be tortured. It is remarkable to hear him say that. Right? I mean, given his past, given his work. Right. Right. He is a very, very conservative guy who was deeply involved in writing the memos, the DOJ memos, while he was writing for OLC, that basically gave guidance to the CIA and the Department of Defense on the use of enhanced interrogation techniques and distinguished those techniques, which included things like walling people and keeping them

confined in boxes with or without cockroaches. I mean, very serious stuff, and distinguished all that from qualifying as torture under the Geneva Conventions and under the Constitution as cruel and unusual punishment. So yeah, there's a guy who has pretty strident views about that, and even he is saying, yeah, I think the Trump administration is over the line here, denying due process. Yeah. And I think one of his arguments was, well, individually, these acts of, you know,

enhanced interrogation don't rise to the level of torture. And everyone else was like, yeah, but when you stack them up on top of each other, I know the FBI was heavily involved in this and they were trying to say say we have much better interrogation techniques than this. Yeah, that he is saying this is pretty incredible. It really is. He talks about something that's very important and one of the very important differences is that these folks were detained in the United States and then removed under the Alien Enemies Act whereas the other people who he was specifically arguing shouldn't have habeas were already were captured abroad, right? And some of those folks were still given habeas in certain extenuating circumstances. But that's one of the three boomadean standards

is not just where you're being held, but where you were apprehended. Of course. And a lot of, you know, especially the Trump administration is trying to just sort of gloss right over that and say that it doesn't matter and we don't have constructive custody. And we'll talk, you know, we talked about constructive custody with Sky Perryman in the Boasburg court. Yeah. I mean, so let's remember after 9-11, we actually had a declaration from Congress. The authorized use of military force essentially served as the illegal equivalent of a declaration of war, acknowledging the state of war that we were in with Al-Qaeda and its affiliated

forces overseas. So when you're picking people up in Afghanistan where that war is being fought, the argument was that the rules of war apply there, not the United States Constitution. And that's a, you know, obviously there's disagreement about everything, but that's a legitimate argument. You know, the, how you treat people who you pick, you know, combatants that you pick up on the battlefield are treated differently under the law than people who are arrested in the United States who have been accused of crimes, but in any case. Yeah. And I think that's ultimately why the Supreme Court probably even is going to find

that the invocation of the Alien Enemies Act is unlawful in this case. I mean, we could even go back to, to quote Scalia, who was like, aliens deserve due process from a case from 1993, Reno. So, you know, I, again, I don't want to give too much credit to the Supreme Court. I'm not exactly sure what they'll do. But there is pretty decided law. But like I've seen, I mean, how many times have we said this is pretty decided law and had it completely like upended. So we'll keep an eye on it. Additionally, Andy, we got another intelligence community memo this past week that undercuts the Trump administration's claim that Trende Aragua is here on behalf of the Venezuelan government on an incursion, right?

Right. You'll recall five weeks ago, you and I covered a February 26th intelligence community memo assessment saying that there's no connection. The FBI was a little wonky on it, but they said, you know, with moderate confidence. So Trump asked them to check again. He was mad. He didn't like that intelligence community report that came out in February. It's like, look at it again.

And they did. And they wrote up another memo on April 7th. Now the Washington Post reported on that memo, which at the time remained classified, which further angered the Trump administration. But a FOIA request shook it loose, which says that TDA's decentralized, Trent Aragua's decentralized makeup would make it logistically challenging

for the organization as a whole to act at the behest of the Venezuelan government. And the memo also shed additional light on the FBI's partial dissent. It said that while the FBI analysts agreed with other agencies' overall assessment, they also thought that, quote, some Venezuelan government officials facilitate Trende Aragua members' migration from Venezuela to the United States and use members as proxies in Chile, Colombia, Ecuador, Peru, and the United States to advance what they see as the Maduro regime's goal of destabilizing

governments and undermining public safety in those countries. So that's way different than the government getting Tren de Aragüe together and sending them on some sort of a governmentally backed incursion or invasion into the United States. But my question here is, how on earth? Trump has gutted all of the FOIA offices as part of his super transparent government here. He's gutted the FOIA offices. He's moved everything up under the executive office of the president so it's not subject to FOIA. He's got people using signal chat so that the chat messages can disappear to prevent FOIA requests from

going through. He's fired inspectors general. I mean, he's really going after oversight and transparency in this administration. And in fact, like, he's not even letting Hegseth hire his own chief of staff because his former three people were like frog marched out of the Pentagon for telling on him. So after all of this, somehow this memo got shook loose through a FOIA office. First of all, my heart is like, good job remaining FOIA employees at the intelligence community. Hell yeah. Because, and I guarantee you that there's some sort of right now, either those guys

are fired or put on administrative leave or being yelled at or something because this memo, I guarantee you the Trump administration did not want being in public. No more free coffee for you. Coffee is for people who deny FOIAs, okay? Not for people who release FOIAs. Always be denying FOIAs, A, B, D, X. Who'd have thought that like FOIA would be our inspiration, would be the light at the end of the tunnel that keeps us positive.

So yes, in this case, they absolutely are. I agree with you there. The other thing is, I gotta put a little context around this FBI position here. So they're saying they agree with the conclusions, but they wanted to point this out. They believe that some Venezuelan government officials facilitate TDA members migration from Venezuela

and use members as proxies in Chile, Colombia, Ecuador, Peru, and the United States. Okay, so my first question, if this were the analyst presenting this to me before it went out the building, which happened several thousand times when I was working. Oh wait, so put yourself in a high level position at the FBI, Andy. Have you ever done anything like that? All right, well let's put my make-believe hat on and then we'll just imagine it. I mean the first thing I would have said to them was like, okay, so are you telling me if you, if someone among you believes that this fact actually leans toward the use of the statute, are you saying that Chile, Colombia, Ecuador, and Peru are also all being invaded by Venezuela right now?

Is that what you're saying? Right. How is this fact contrary or dispositive of your assessment? Yeah. Where you, oh, we agree, but you know, one chief of staff of a second in command somewhere in the Maduro regime sent some trendy Aragwa guys to Chile and possibly the United States to cause problems. Or to collect information or whatever. What they've described in this little caveat is basically what every government

does when they send intelligence operatives into every other government to try to find out what's going on. So I'm not trying to minimize it, but like that still is a far cry from an invasion or an incursion. I mean, come on guys, let's get real. Yes. All right. Well, everybody, we have a lot to talk about still. We got to talk about the Abrego Garcia case, which is back on hold for a threshold issue. Like you remember Andy when we really wanted to the trial for the January 6th insurrection against Trump to go forward, but there was an interlocutory immunity appeal that had to be decided before the trial happened.

I remember that. Yeah. You remember that? You're like, yeah. I'm still crying about it alone at night. We did a whole podcast about that. Yeah. Well, this kind of assertion of certain privileges is also considered a threshold issue and other things have to be paused. And that's one of the reasons that Judge Sinis has paused the discovery yet again in the Abrego Garcia case. We're going to talk about all of that on the other side of this quick break. Stick around. We'll be right back.

All right, let's move on to the Abrego Garcia case before Judge Sinis. As previously discussed, Judge Sinis had ordered expedited discovery to get to the bottom of what the government has done to facilitate the release of Abrego Garcia from El Salvador. In one of the government's filings, they seem to argue that because he was moved from Seacat to another prison, that proves he's in Salvadoran custody and not US custody. What do you want to bet Trump told him to do that though? What's the game with the shells moving around? Yeah, three card Monte. Three card Monte with poor Abrego Garcia. Okay. The government then asked for a week long delay in discovery to try to facilitate his

release and at the end of that week, they filed another motion to delay under seal, but the judge rejected it and set a new discovery schedule. So now we've learned that the Trump administration is trying to invoke both the state secrets privilege and deliberative process privilege to avoid producing certain information and discovery. Yeah. And I got to laugh at the state secrets privilege. I did a whole write up on when this was tried.

They tried to invoke this in Judge Boasberg's court and Boasberg is like, yeah, but you shared photos of the tail numbers of the airplanes on social media and then bragged about it and then shared videos and Marco Rubio, Bukele, Donald Trump, you all reposted this stuff. How is this top secret stuff that could negatively impact national security, but you're putting it out on your social media platform? So the way that Boasberg was sort of just taken aback by the audacity to try to invoke state secrets privilege. I don't think they're going to get very far here, but because it's a threshold issue, she has to go through it. So yeah, there's a process to get to the bottom of

it. Yep. Oh, do process. Okay. So that privilege, that privilege invocation is a threshold matter. Like I said, it has to be resolved. So Judge Sinise has ordered briefings on that bond, that privilege and the deliberative process privilege and she said to set a hearing on the matter from May 16th, 10 a.m. Eastern in her courtroom. She also said, and no more automatic filing stuff under seal. Now we're going to have to follow the sealing rules locally set here for this district. From now on, you have to ask for permission to file something under seal. And you also have to follow the sealing rules locally set here for this district. From now on, you have to ask for permission to file something under seal. And you also have to attach a similarly redacted document that you wouldn't mind being posted publicly. You know, just these are

the rules for generally for having to file something under seal. But because the discovery was so expedited, she's like, just go ahead and file stuff under seal that you need to file under seal, but that's done now. She says, you have to ask for permission, including you have to retroactively ask for permission for the last sealed filing that you made. So the plaintiffs asked if they could file their motion for additional depositions under seal, but they also turned in a redacted version

and she actually published the redacted version. So she doesn't seem too keen on sealing stuff. You'll recall that the judge said seal, but they also turned in a redacted version and she actually published the redacted version. So she doesn't seem too keen on sealing stuff. You'll recall that the judge said she'd allow two additional depositions, right? In addition to the four that are affiance that signed declarations in this case. And the plaintiffs now have come back in their document that's redacted asking for three, possibly four, additional depositions. One from someone with knowledge at DHS, one from Department of State, one from Department of Justice, and possibly we might need a fourth from somebody from the White House depending

on what they learn from the others. And what's interesting, Andy, you and I are like, get Kristi Noem in there. Get Marco Rubio in there. The plaintiffs here actually aren't asking for the cabinet level folks. They say in order to alleviate cabinet level members from having to come in, we're happy if you just send one person from DOJ, for example, who gets briefed on everything that everyone up and down the ranks of the DOJ knows and send them to us. We don't even require, you know, a Pam Bondi to come in, for example. Same with DHS, same with state. And then they said, and you know, if

we don't get what we need from them, we might have to have somebody from the White House. So she said you can have two additional. They're asking for four. We don't have a decision on that. But first, the judge says we have to resolve these privilege issues, this privilege question. Adam Ligato Yeah. And I have to tell you, even regarding the filing now under seal only after permission, having been thoroughly burned during the Jack Smith cases, man, my first concern is like, I can see, I understand why she's focused on that. And she doesn't want to have the sealing process kind of abused to hide this. But it also opens up another front to a whole lot of litigation over just the sealing issues.

As you remember, we, how much time we spent on that in a judge cannon's court. So she's going to have to really ride rough house over these both sides to make sure that that stuff doesn't get out of hand. But anyway, meanwhile, multiple news organizations have filed a motion to unseal all these sealed filings. And they say in that motion, proposed interveners, 14 news organizations that have reported on this case respectfully moved to intervene in this matter for the limited purpose of seeking to unseal certain court records. The eyes of the public and all three branches of government are on this lawsuit. In the weeks since it was filed, the case has already been before

the US Supreme Court and the Fourth Circuit twice. The president has discussed it during a nationally televised interview and on social media, and members of Congress have traveled internationally to meet Plaintiff Armando Abrego Garcia and investigate the conditions of his detention. The case raises profound questions of separation of powers, civil liberties, and foreign relations. Such a case requires maximum transparency so that the public can participate in and serve as a check upon their government Yeah, so Coming in with a strong filing. They're hard to argue with that logic to be honest It is and I do hope that they unseal this stuff now this motion and and I got to say given her

You know no more filing under seal, you have to follow the rules, you have to ask for permission and submit a redacted document in case I say no, that I can just release, etc. I tend to think 5149 she'll grant this. We'll see. Yeah. Here's some of the news organizations that are participating in this. Wall Street Journal, Associated Press, ABC, CBS, NBC, Bloomberg, Fox News, NPR, CNN,

New York Times, Reuters, Washington Post, and the New York Post of all magazines. It's interesting. They're like trying to sit at the cool kids table. What's up? What's up with that? What's New York Post doing here? Get on the other side of the cafeteria. Yeah, but they actually probably have more prominent seats in the White House press room

than any of the other news organizations at this point. Absolutely. But the White House is not the cool kids place anymore. I'm sorry. No, it's not. That's definitely not the back of the bus. So I kind of am curious as to the process here, because the media files for unsealing court documents all the time, is there like a list serve that somebody hops on and says, Hey, you guys want to get this unsealed? And like, yes, no, yes, yes, yes.

And then you just all sign up. Like it seems there's gotta be, right? Like there's- I bet there is. Or I don't know, maybe- Maybe Pete Hagseth put them all on a signal chat somewhere. That's likely. Although they lost Mike Waltz. So they're getting way less signal traffic these days.

And the Atlantic's not on this list. They're not part of this. I would bet that the, I don't know, I'm totally guessing here, the White House Correspondence Association maybe coordinates some of this stuff, at least with respect to White House coverage, because you know, they administer like the pools and who's in the pool and who's outside and all that kind of stuff. It seems like kind of comes in that lane, but I don't know. It is interesting. It's always fascinating to me to see which outlets are moving forward. Sometimes they go solo, sometimes just a few of them.

This is a pretty big group. And I bet you they probably share legal expenses on it as well. Right. Yeah. Or maybe they just have a big old templated thing so it doesn't really cost that much to file. Or they go like rock, paper, scissors. You guys have to write it. No, you write it. I want to join. I want to... How do we get MSW media on here? You got to get in

there, man. If you are opposed to it. Come on. Yeah. Yeah, for real. For real. Totally. So, we'll see how this goes. The next hearing... So everything's kind of on hold until May 16th, which is what, this Friday. We may not have, well, it's in the morning. We should be able to report on that hearing on the next episode of Unjustified next Sunday. I doubt she'll rule from the bench, but we'll see. We'll have a little more information, but there's not going to be too much activity this week, I think, on the docket as we wait for those filings. May 12th, I know one side's due and then May 15th and then they have the hearing. So we'll, we might have redacted versions of those unless they get permission to fully

file them under seal. So we'll, you know So we're going to keep you updated on what's going on in this case. Something else pretty amazing happened today, Andy, and this isn't a case that we're necessarily covering here on Unjustified, but there was a hearing where the judge has granted bail for the Tufts University Fulbright scholar student that wrote the op-ed. No kidding. It was a really not a good hearing. And we're going to talk a little bit about the DOJ losing credibility as it, like Trump's poll numbers, it keeps going down week after week. And there are new stories week after week and new judges who are calling the work of the Department

of Justice shoddy. But this judge was like, I'm sorry, what? No, she first of all, shouldn't have been sent to Louisiana. Second of all, she's not a flight risk. She's been held for six weeks. So yeah, no, she gets bail and doesn't have to check in every day with ICE. She can check in once a month if she's still under deportation proceedings, et cetera. But he was not pleased with the Department of Justice with ICE on this and ordered her release immediately on bail. So that was a very positive outcome. And during that hearing, the Second Circuit refused to put that other guy back in jail that had been released in, I think it was Virginia. And so like just double, one, two punch to the

Department of Justice during that hearing. And so again, we aren't really covering these cases very closely, but I'm so glad that there seems to be a consensus with everyone from Biden appointed justices down to John Yoo that these detentions, whether it be for Alien Enemies Act on lawful removal, or whether it be for speech, because the judge was like, this is a speech issue. You are violating this First Amendment right here. I don't have to touch that. I don't have to decide that here. But because of the rules of the court, I only have to really look at whether there's harm to having her detained and there is. So I don't have to look at that. But he was, he didn't stop him from saying you are completely basing this on speech and the first violating First Amendment

rights. So it's not going well for the DOJ. Yeah, that's a theme and we're going to hit that. We're going to hit that in the next section here. Yes, yes, we are. But first we have to take a quick break. So everybody stick around. We'll be right back Welcome back. All right a couple quick stories This first one really follows on the theme that we were just talking about Because it's about judges calling out the Justice Department for their shoddy, that's S-H-O-D-D-Y, work.

This one comes from the Washington Post. They say, in recent hearings and rulings, judges appointed by presidents of both parties have criticized the statements and behavior of administration officials, accusing them of defying court orders, submitting flimsy evidence, providing inadequate answers to questions, and even acting like toddlers. The cases involve lawsuits challenging everything from President Donald Trump's push to increase deportations to his efforts to punish law firms.

Most are in the early stages of litigation, but the judicial pushback suggests a break from the goodwill courts have traditionally shown towards assertions by government lawyers. And A.G., we've been talking about this for the last two weeks. This is a big problem for DOJ long-term. A big, big problem. It is.

It is. As Boasberg said, your greatest treasure is your trust that the court has in you. That's right. At a hearing in D.C. last week, this is again from the article, that hearing was about the law firms, US District Judge John Bates seemed unimpressed by some of the Justice Department's lawyers answers responding at one point, oh, give me a break. US District Judge Beryl Howell was similarly skeptical Friday as she ruled against Trump's actions against a different law firm. And she said those actions were unconstitutional. That's

the Perkins-Cohen case. Writing the Justice Department lawyer Richard Lawson, quote, when asked was unable to fill in basic details about the sanctions. That's rough. Yeah, I don't usually go that direct, but that's pretty direct. She was she started off quoting Shakespeare and it just went downhill for DOJ from there. In Virginia, a judge scoffed at evidence the government offered in an immigration case in March to claim one couple were members of a violent gang saying, I expect more from the government than this kind of very shoddy work. And that was district judge Leonie M. Brinkhima. I think I'm hopefully I'm pronouncing that correctly. Let me know if I'm not. Brinkh That's what judge Brinkham a told the Justice Department lawyer adding that if this were a criminal case quote

I'd throw you out of my chambers. Nice. I Yeah The government then detained the couple in Texas and sought to deport them based on the same set of allegations US District Judge David Briones in El Paso ordered their immediate release writing of the government quote, this court takes clear offense to respondents wasting judicial resources. When US District Judge Colleen Colar-Cattelli in DC issued an order in April pausing part of the Trump executive order overhauling voting and election systems.

She chided government lawyers for claims in court that she said did not match the facts. Quote, this exchange does not reflect the diligence the court expects from any litigant, Colar Cattelli wrote in her opinion. Quote, let alone the United States Department of Justice. That's like an implicit acknowledgement that they always give more deference to the statements of DOJ in court. That might be ending. Okay, so they go on to say,

since Trump took office, more than 200 lawsuits have been filed challenging his initiatives, and judges have entered more than 100 orders temporarily blocking or pausing those actions. Yeah, man, that's a lot. And it's gonna continue to get worse. And I imagine we will continue to see more pieces

on the confidence level that the court has for the Department of Justice going down, as RFK Jr. would say, directly inversely. And, you know, honestly, internally, DOJ sending the opposite message, right? As they fire attorneys who go into court and tell the truth, but do so in a way that exposes government problems and malfeasance. Like was it Renouvi?

The attorney who went in and- Yeah. I know who you're talking about. Reveni. Reveni, that's it. Reveni, who admitted that Garcia Abrego had been deported erroneously. You know, you keep firing people who go in

and actually provide the truth, the message you're sending to the rest of the crew is, you know, hold the line, the message you're sending to the rest of the crew is, you know, hold the line, sell the talking point regardless of whether it's true or accurate or anything else. Yeah and that's why they keep sending the same guy over and over. He's the only one Drew Ensign and this Kimbley guy and Lawson. Like they've only got a handful of people willing to do this to themselves and their own reputations in front of the court. Yeah.

And so that's why these, you know, we had that story last week about the DOJ lawyers running back and forth between courtrooms and the guys like, I'm supposed to be in Florida, but here I am. Like they only have this handful of guys willing to do that. So I think we'll continue to see that kind of thing. And you know, now we've got, we've got somebody doing three jobs at the Department of thing. And now we've got somebody doing three jobs at the Department of Justice. Let's talk about that because Tom Tillis has effectively ended Ed Martin's bid to become the U.S. Attorney for District of Columbia. As a Republican member of the Senate Judiciary, just one vote against someone would basically kill the nomination. And Tillis penned a letter

to the White House saying he would not support Ed Martin. Surprisingly, no other Republican senators spoke up against Tom Tillis on this, like John Thune, the Republican leader. Nobody was like, shame on you for stopping this. Everyone's kind of like, cool, glad you did it, bro. Shame on them for not saying the same thing. But at least they didn't throw a rock at him, which that's all the admission you need. They all know. It isn't with this administration. But instead, Trump gave Ed Martin three jobs at the Department

of Justice. So he's going to be head of the weaponization task force, which we talked about. He's also going to be an associate deputy attorney general, and he's going to take the place of the pardon attorney that the Trump administration fired because she refused to reinstate Mel Gibson's gun rights, his right to own a firearm. Um, and then if that- I bet you Martin just throws a gun in the mail to him. Here you go.

Right. Right. Yeah. Yeah. He'll have a hand delivered. Um, then Trump nominated Fox News host, Janine Pirro to become the interim US attorney in DC, who, like I said, I think is less dangerous than Ed Martin, but still a clown.

Uh, I think he's just going to have to, this is the part where you remember when back in the first administration, he's like, I like acting. I like acting. I don't think he's ever, he cares if he ever gets anybody actually nominated to this post. He's just going to for, you know, 110 days at a time or whatever it is, just keep putting interim acting, uh, US attorneys general in, um, or us attorneys, excuse me, not us attorneys general, us attorneys into the DC or, you know or places where you have a harder time getting people like Tom Tillis on board to vote for these people.

You know, the irony of all this is that Trump came in on this campaign, part of his campaign was like, get rid of the deep state and put the, you know, with this president, this unitary executive and going to put the control of all these different branches and agencies back under the control of the White House. And then he puts in people like Cash Patel, Pete Hegseth, Pam Bondi, Tulsi Gabbard, now Jeannie Pirro. Like these are not serious people.

They don't know what they're doing. They're not prepared for these jobs. And the result is that the people who are there, the professionals, will basically continue running the show. So the end result for him is like less control over the agencies because is Pete Hegseth really running the Defense Department right now?

Like anyone with knowledge of DOD, we've told you they're going to eat him alive. To put your hands around that bureaucracy and wrangle in these multiple sources of power and disparate forces within DOD is like something that requires a master manager and leader and he's not up to that fight. Jeannie Pirro hasn't been in a courtroom as a prosecutor since like the early 90s I think. Okay. I mean good luck. I don't know what she's gonna do in there. Well I think you're right on the less control thing. I mean otherwise Tulsi Gabbard would have stopped the FOIA Exactly intelligence community. How did that get out? How did it get out? Right? So now they're just plugging leaks here

He doesn't know she doesn't worried about the net the Nick the National Intelligence Council Mike Whatever. Well, that's what happens. How about Pat Cash Patel shows up at the budget here with no budget request. I mean- No budget and no understanding of the constitution and due process. Right. Right. That was embarrassing. And then I think the Senator was like, would you please commit to due process? And he's like, sure. Like, you don't even know what that means. Do you?

Just, what a twerp. You know, you were what you say. Yeah. I'm rubber, you're glue, Senator, and whatever you say. You put this on the, in the context of him, like there's all these pictures of him like wearing camouflage and raid jackets and an FBI agents badge on his belt hopping in and out of armored bear cats and stuff like dude there's plenty of agents that do that. You're not an agent. You're never going to be an agent but there's no one else that approves the budget. You have to do that part. Okay. That's not nearly as cool. Budgets aren't really cool.

I've done them both. I was the SWAT guy and then I was the acting director. I'm telling you, the director part is not nearly as cool or fun, but that's what he got picked for. So like show up, lead, do the job. Part of it is funding. He doesn't know the job, just like you said. Anyway.

All right. What do we have for listener questions this week? By the way, if you have a question you want to submit to the show, you can do that by clicking on the link in the show notes and filling out that form. So what sort of amazing, wonderful, thoughtful questions do we have from listeners this week, Andy? Yeah, so this one's really interesting.

It comes to us from Pamela and it's actually similar to, I got a bunch right along these lines where people were like asking questions about like, what can the courts do to kind of penalize what's happening with sending all of these immigrants to El Salvador? So Pamela says, could a judge rule that no payments can be made to El Salvador until such time that all inmates transported there have been returned to US soil for the due process to which they are entitled and that only those convicted of crimes by a jury and

sentenced by a judge may be in prison and that the government of El Salvador be informed of these conditions immediately. So it's an interesting question. I'm afraid the answer is no because that's not actually a remedy available to the courts. They can only rule on the litigants who were before them. So they can't kind of like reach out to the side and say, none of those congressionally appropriated funds can now go to El Salvador if there were any. That's Congress can, but they can't. Congress can.

That was where I was going with this. Like the judge can't do it, but you know what? Congress could get themselves together and pass a law just like they did when they were mad about the fact that the Obama administration wanted to bring some of the Gitmo detainees to the United States to face charges for the crimes they committed against Americans. They passed a law that said it's now illegal for the administration to use any federal money for the purpose of bringing those detainees here. That essentially eliminated the prospect of that. So they could do that here. They could bar the administration from spending

any money to send immigrants to El Salvador if they want, if they wish to do so, but the chances of that are about zero, exactly zero in fact. Yeah, it's a, it's a nice thought. Um, but just like the executive branch can't claw back 20 billion in climate spending because that's appropriated by Congress or just like OPM is not supposed to stop funds from being sent to Ukraine because that's appropriated. The courts also don't have that power. So, but I wish they did. Yeah, it would be good. It would be good. All right. So I got one more for you and I

picked this one because I thought it was really interesting. It's kind of funny, but also there's like an undeniable like common sense to it. So this one comes to us from Gary. And Gary says, so if Venezuela is behind the quote invasion by Trendy Aragwa, why isn't Donald Trump threatening them? He's such a tough guy with the might of the US military behind him. And instead of forcing Venezuela to withdraw their people, he's making us pay for their incarceration in El Salvador.

So it's obviously, he's making us pay for their incarceration in El Salvador. So it's obviously it's all BS. Has he even made a phone call to the Venezuelan president? Well, I doubt that he has, but I don't know. You know what? I think Gary, he has made one phone call to Bukele to tell him, hey, I'm going to ask you to release Abrego Garcia and you're going to tell me no. And then he's asking, did he make a call to Maduro? Oh, to Venezuela. And then he's asking, did he make a call to Maduro?

And I think it's such a great idea because seriously, if we were actually being invaded by a group of people sponsored by the government of Venezuela, don't you think we'd be lobbying a billion dollars worth of ordinance into Caracas right now? I mean, are you kidding me? If we were under an invasion from Venezuela, not known to have the strongest military in the world, I'll add, that would last for five minutes before the military would put that down. So ask yourself, does this look like an invasion to you?

It's a really good point. He's basically saying we are being invaded by Venezuela. Yes. That's exactly what they're saying in court to justify this use of the Alien Enemies Act. Well, if that's the case, why is the only response to the invasion flights to El Salvador? Well, we certainly don't have to amp up our war fighting stuff. We certainly don't need a trillion dollar budget for the Department of Defense if we're going to handle incursions onto US soil by foreign governments in an act of war by just sending them to a prison in a different country. Their complete lack of action, and I would even say interaction with Venezuela, is evidence

of the fact that we're not actually being invaded or threatened by them in any way. What a great question, Gary. Yeah. It's kind of rhetorical. We're just with you. Yeah, I'd never thought of it that way before, but it's very appealing. So I appreciate that, Gary. All right.

Thank you so much for your questions. If you have a question, please send it to us by clicking on that link in the show notes and filling out the form. We'll see if we can answer them on the air. And again, thank you so much to Sky Perryman and Democracy Forward for their very incredible work. show notes and filling out the form. We'll see if we can answer them on the air. And again, thank you so much to Sky Perryman and Democracy Forward for their very incredible work on due process rights. Stephen Miller was on the front of the White House today discussing the fact that the White House is weighing suspending habeas corpus. And that was my big

fear right after the election. I was like, oh, he's going to come after everybody. He's going to call us all alien combatants or terrorists. He'll designate us as a domestic terror group. And then, but at least I get due process. Oh, but then what if he suspends habeas corpus? And I've been positing that, thinking myself a little bit tinfoil-hatty for doing so. And then here is Nosferatu on the White House lawn saying that they are actually pondering suspending habeas corpus. Yeah. It's truly crazy days, really concerning.

And you know, the right way to think about it is to stay engaged, stay engaged, keep listening, go to the sources of information that you trust. And, you know, stay on top of this, because, you know, we, we ignore it to our all of our peril, not just right now the immigrants who are bearing the brunt of it, but like if them, then there's no reason it won't be all of us next. Mm hmm. No due process for one is no due process for all. That's right. All right, everybody. Thanks so much again. Thanks to Sky Perryman and Democracy Forward. We will 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.