Jack - Trumped Up Charges

Episode Date: June 8, 2025

Abrego Garcia is being brought back to the United States and will face federal charges.Judge Boasberg grants certification of the CECOT class and order the government to facilitate due process for all those who remain in the Salvadoran prisonThe man mistakenly deported to Guatemala by the Department of Homeland Security has been returned to the United states while the government struggles with giving other people due process on the ground in Djibouti.Kash Patel is forcing FBI agents to take polygraph tests as he fires and demotes others out with no explanation.Plus listener questions…Do you have questions for the pod? Questions from Listeners Follow AG Substack|MuellershewroteBlueSky|@muellershewroteAndrew McCabe isn’t on social media, but you can buy his book The ThreatThe Threat: How the FBI Protects America in the Age of Terror and TrumpWe would like to know more about our listeners. Please participate in this brief surveyListener Survey and CommentsThis Show is Available Ad-Free And Early For Patreon and Supercast Supporters at the Justice Enforcers level and above:https://dailybeans.supercast.techOrhttps://patreon.com/thedailybeansOr when you subscribe on Apple Podcastshttps://apple.co/3YNpW3P

MSW Media. Judge Sinise grants two motions in the Abrego Garcia case. One that allows Abrego Garcia's lawyers to file a sanctions motion against the government and one that unseals multiple documents previously unavailable to the public. Judge Boesberg grants certification for the Seacote class and orders the government to facilitate due process for all those who remain in the Salvadoran prison. The man mistakenly deported to Guatemala

by the Department of Homeland Security has been returned to the United States while the government struggles with giving other people due process on the ground in Djibouti. And Kash Patel is forcing FBI agents to take polygraph tests in leak investigations as he fires and demotes others with no explanation. This is Unjustified. Hey everybody, welcome to episode 20 of Unjustified.

It's June 8th, 2025. I'm Alison Gill. And I'm Andy McCabe. And Alison, once again, busy week, busy week. The courts are just working overtime. It's like a factory that never shuts off. And that work included some activity on the Judge Sini Stockett and the Abrego Garcia case.

So let's start there. Yeah, let's start there for sure. Roger that. So you'll remember last week, the government asked for more time to file its response to Abrego Garcia's original complaint. The judge denied that motion, but instead of handing in their response,

the government filed a motion to dismiss, alleging that Judge Sinise does not have jurisdiction. This week, lawyers for Abrego Garcia filed their opposition to dismiss alleging that Judge Sinise does not have jurisdiction. This week, lawyers for Abrego Garcia filed their opposition to that motion to dismiss. And it says in part, and buckle in because this is, they go right after it here. The government asks this court to accept a shocking proposition that federal officers may snatch residents of this country and deposit them in foreign prisons in admitted violation of federal law while no court in

the United States has jurisdiction to do anything about it. This court, the Fourth Circuit, and the Supreme Court each rejected that jurisdictional gambit. All three courts unanimously affirmed a preliminary injunction that the government must facilitate the return of Kilmar Armando Abrego Garcia from El Salvador to the United States. Unfazed, the government's motion to dismiss reprints, nearly verbatim, the same jurisdictional arguments those courts rejected. The government's position that the courts cannot order it to aid the return of U.S. residents it unlawfully removed to foreign cells was, quote, eye-popping before. Repetition does not make it less so.

Jurisdiction is not a game of best two out of three. Once decided, it stays decided unless the facts or the law change. Neither has. That's a pretty strong opening. Yeah, that's I give it blistering. I think we know what they think at this point. It's well written and it's well thought out. So they go on to say the government nonetheless moves to dismiss based on three jurisdictional

arguments that the courts already ruled fail as a matter of law. First, the government argues that no US court could have jurisdiction over the plaintiff's claims because they challenge a Abrego Garcia's confinement and therefore must proceed as habeas claims which the government contends are not viable because Abrego Garcia is not in US custody. Yet plaintiffs claims arise under federal statutes and the US Constitution, so this court has federal question jurisdiction.

These claims challenge Abrego Garcia's removal, not his confinement, so they are not habeas claims. And even if they were, Abrego Garcia remains in US custody because he is detained in El Salvador at the behest of the US government. Second, the government insists that no remedy is available. That argument is incompatible with the Supreme Court's order that this court properly required

the government to facilitate Abrego Garcia's release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador. And third, the government contends that Section 8 U.S. Code 1252-G strips this court of jurisdiction. But Section 1252-G blocks review only of a limited set of discretionary actions. Flying a man to the one country that an immigration judge ordered he could not be removed to is not a discretionary action shielded by 1252-G. Nice. They go on to say,

this court's power to remedy the government's illegal removal of Abrego Garcia to El Salvador has been affirmed at every level of the judicial branch. The government's latest motion offers nothing new. It should be swiftly denied and the case should proceed without further delay. Plaintiffs also asked that under Local Rule 105.2A, the court shortened the government's time

to file a reply brief from 14 to seven days. Further briefing on recycled arguments should not prolong a case that has already dragged on far too long for Abrego Garcia and his family. I like that. You don't need 14 days to say the same dumb stuff over and over again. And meanwhile, this guy is rotting in a foreign cell. Yeah, the irreparable harm is.

Totally, every day, right? Yeah. It's brutal. It is. And it's and they mentioned that in the filing too. The delay is it's just unconscionable. All right. The next thing Judge Seen East did was granted a motion to unseal some previously sealed documents, all of which have to do with the one week pause that she granted on discovery proceedings. You remember that the DOJ asked for a week. Yes. After reviewing all these documents, it seems as though the lawyers for Abrego Garcia were really actually skeptical about the reasons that the government proffered. Well, they

didn't proffer any reasons, but they just said, trust us, we need a week. We're doing something. Yeah. They told the judge, but they did not tell Rodrigo Garcia's attorneys. Yeah. And according to the newly unsealed records, the government just, the plaintiffs were like, they're not telling us anything. We're going to have to go with your judgment, judge, because you know more than we do. That's right. Well, we may have our answer about what they were doing because this is breaking news like right now from ABC. Mistakenly deported Salvadoran native Kilmar Abrego Garcia is on his way

back to the United States. What? Where he will face criminal charges for allegedly transporting undocumented migrants within the United States, according to sources familiar with the matter. More than two months after the Trump administration admittedly mistakenly deported him to, you know, from Maryland to his native El Salvador, the one place that a judge said he couldn't be deported to, a federal grand jury apparently has indicted him for allegedly transporting undocumented migrants within the United States. A two-count indictment, which was filed under seal in federal

court in Tennessee last month, alleges a Brego Garcia, 29, participated in a years long conspiracy to haul undocumented migrants from Texas to the interior of the country, according to sources briefed on the indictment. The alleged conspiracy spanned nearly a decade and involved the domestic transport of thousands of non-citizens, including some children, from Mexico and Central America. Among those allegedly transported were members of the Salvadoran gang MS-13.

Sources familiar with the investigation said. Is it illegal to transport people within the United States? Well, it can be. If you know that you are participating in an illegal enterprise to traffic human beings and you're getting paid for it and you're aware of the fact that you and those people are breaking the law, you could potentially

be part of a conspiracy to violate those laws that prohibit harboring aliens all the way up to human trafficking. But that's a big, complicated case and is going to require a lot of proof and specifically proof of Abrego Garcia's knowledge of that conspiracy and his participation in it, if in fact that's what they charge him with. It's also possible if he's charged with that sort of activity,

he might say, hey, this dude I got introduced to, he said I'll pay you 100 bucks if you pick up this person and drive him to that place. And if you don't know anything more than that, it's possible, you know, it's, it would seem unlikely on those facts that the government would be able to prove your guilt beyond a reasonable doubt. So there's a lot of, of different possibilities of how this could work out for him. But he'll be here in a US jail or until this case goes to trial, a federal detention facility, and he'll have an attorney and he'll have, you

know, the right to visits and a commissary and all the things that people in the system here get. Not that it's a walk in the park. It's certainly not. But it's not Seacoat. No. And bigger picture here. Here's what this feels like to me. Because again, another reason that Steve Lattic, another way he makes me smarter, is I remember reading in his one first newsletter on Substack about Ahmed Omar Abu Ali, when talking about the Abrego Garcia case, he talked about the Abu Ali case. He was held in Saudi Arabia in 2004 under George Bush.

Now his parents brought a habeas petition in the DC Federal District Court, naming Attorney general Ashcroft as the respondent, saying that although their son was in a Saudi prison, he was being held at the behest of the US government. He was in constructive custody of the US government. And that was a way of avoiding judicial review in the United States. Judge Bates back then said that if those allegations are valid, he would have jurisdiction over the habeas petition. Not because he could order the Saudi government to release one of its own prisoners, but because he could order the US government to cease doing whatever it is it was doing. And so Bates

ordered jurisdictional discovery. He ordered discovery, like Judge Sinis ordered discovery, into the extent of the US government's involvement. At which point, the government mooted the case by indicting Abu Ali on criminal charges and transferring him back to US custody in Virginia, indirectly vindicating the central allegation in his habeas petition. So this seems to me like that case,

avoiding discovery, avoiding having to hand over the agreement with Bukele about C-Code, avoiding having to get into discovery proceedings that could be very embarrassing and long. And we talked about this, you and I on a previous episode, by indicting him and bringing him back to the United States to face charges, moots all of this. Yeah, there's a, this is similar in some ways to a bunch of those cases in which the Bush administration basically backed away from their more aggressive plan of keeping people in military detention rather than putting them in Article III courts. Hamd is, of course, one of the most famous cases. Jose Padilla is the young, I think, Hispanic guy from Chicago

who went over and joined Al-Qaeda. He was ultimately taken out of the brig in South Carolina and transferred into Article III courts. Ali Al-Mari, who was the same situation, Al-Mari was another Saudi Arabian who had been taken into military custody and was ultimately transferred by Eric Holder into Article III courts.

He pled guilty, served his time, and was, I think, sent to Qatar. These were all cases where the administration, even though they maintained for such a long time that they had the legal grounds to arrest these people and keep them in military detention, they ultimately, because of adverse Supreme Court rulings and the desire to avoid additional adverse rulings, they folded and they moved these folks into regular Article Three criminal proceedings, judicial federal court proceedings.

And that feels a lot like what's going on here. But many of us have been saying that from the beginning. We have, yeah. If you think that that Abrego Garcia is a member of a gang and has committed crimes with that gang, then charge him. Charge him, bring him back, put him on trial. Bring him back, give, put him on trial, give him due process, give him a lawyer, let him have his day in court. And if he's convicted, then he should serve time here.

And if you think that he's participated in some sort of conspiracy to smuggle thousands of illegal aliens around the country, then that's an important matter that should be heard. And he should have an opportunity to defend himself just like anybody else would, be they citizen or not. If you're here in the country and you're suspected of committing a crime, you should be indicted here, tried here, and if convicted, serve your sentence here. Nicole Soule-North Yeah, wow. All right. keep, we'll keep an eye on this and obviously we'll keep an eye on that trial. Seems like, like you said, kind of an uphill climb for the government to get these charges worked out. But however it ends up, they can either jail him or deport him to a third country that isn't El Salvador.

El Salvador. That's right. Yeah. So... Unless they get that order vacated, which I guess is another opportunity. But again, if you're gonna try to get that order vacated, he gets to be here to fight that process. That's the way the Constitution works. All right, well, interesting news.

It's good news that he's going to get due process. I don't know that I agree with the way in which the Department of Justice is sort of folding here and bringing him back to put him through Article 3 courts, but he will have his day in court. Yeah. It's another interesting sign about this too is, okay, we saw with the guy, I think it was AGG, who was in error sent to Mexico and ultimately Guatemala, he's been brought back. OCG. OCG, sorry.

And now you have Abrego Garcia, who's being brought back despite the president himself saying many times in public, he will never come back here, never come back here. Now he's coming back. He's gotta be not happy about this. So what does this say for those half a dozen or so guys that are enduring adverse conditions in Djibouti? Yeah, and we're definitely gonna cover that in the next segment, but before we get to the break,

there's actually more breaking news right this second that could actually cast serious doubts on this indictment of Abrego Garcia. This is from Catherine Falders at ABC News. She's reporting that Ben Schrader, the former chief of the criminal division for the U.S. Attorney's office in Nashville, actually resigned following the decision to seek this indictment against Abrego Garcia. He wrote on his LinkedIn two weeks ago, earlier today, after nearly 15 years as an assistant United States attorney, I resigned as chief of the criminal division at the U.S. Attorney's Office for the Middle District of Tennessee. It has been an incredible

privilege to serve as a prosecutor with the Department of Justice, where the only job description I've ever known is to do the right thing in the right way for the right reasons. Now, according to ABC, it was this indictment that prompted him to resign because he thought this was a political, quote unquote, witch hunt, which is going to go far for lawyers for Abrego Garcia who might want to, you know, file pretrial motions to dismiss for vindictive and selective prosecution. Abrego Garcia is back in the United States and the Department of Justice is seeking pretrial detention calling him a danger to the community. Now, the judge that's been

assigned to this case is Waverly Crenshaw. That's an Obama appointee, who Kyle Cheney is just now pointing out was confirmed 92 to zero by the Senate. Everybody voted for him that was there. Now, the charges that are being brought, they're being brought in Tennessee, which is where Abrego Garcia was stopped and pulled over by state troopers in 2022. That incident is the source of the only criminal charges. Now, Pam Bondi apparently just held an extremely prejudicial press conference, speaking more broadly about human trafficking and grooming young people like in grade school to grow up to be full-fledged members of MS-13 to commit violent crimes. And none of that is part of Abrego Garcia's case.

He's not being charged with any of that. That seems really prejudicial to me, coming from the Attorney general, no less. Now, in the indictment, the government alleges that Abrego Garcia was involved in a lot of very serious crimes and references multiple co-conspirator statements, like probably jailhouse informants or the owner of the vehicle. However, he's only being charged with the Tennessee traffic stop incident, and none of his other co-conspirators have been charged either, which is also odd. And you might remember this from an ABC report a couple weeks ago when he was pulled over

in 2022, the officers let him go after contacting the local Biden era FBI office, who said, let him go. They declined to detain him. So we're going to be following this story very closely, but this casts a lot of doubt on these indictments. And Andy, as you said, after this break, we're going to discuss the rest of the people entombed at Seacote. Entombed is a word that Judge Boesberg uses in his order and we're going to cover that right after this break. So stick around. We'll be right back. Hey, everybody. It's A.G. Lately, it's been so busy. I felt like I'm always behind trying

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your entire purchase. Visit cbdistillery.com and use promo code unjust. That's cbdistillery.com promo code unjust. One last time, cbdistary.com. Specific product availability depends on individual state regulations. All right, everybody, welcome back. So like I said, when we last updated you on the Boasburg docket, the plaintiffs represented by the ACLU had asked the judge to certify two classes and had asked for due process for those class members. Um, they actually asked, also talked about the alien enemies act being unlawful. Now these two classes, you'll recall where the C coat class, which is everybody at C coat and all the people who were sent there from here, sent there from here under the

alien enemies act and the criminal custody class, which is like around 30 people nationwide in that class who could face future deportation. Okay. Now, or kidnapping. Fair. Right. The government opposed this, but it but they opposed it pretty weakly, weak sauce. They said the Supreme Court had already vacated both of Boasberg's temporary restraining orders. So you have to ignore this one one too. But this isn't that. That temporary restraining order granted a nationwide class of anyone that might be removed under the Alien Enemies Act and ordered the planes on their way to El

Salvador to be turned around. Now, the Supreme Court, when it got up, the Supreme Court said, no, no nationwide class. That's not appropriate. These individuals need to file habeas petitions in the jurisdictions in the United States where they're being held. That's what's appropriate because those original five plaintiffs in Boasberg's case, we're still in the United States. Okay. And so this is now we're looking to certify a different class because the Supreme Court said no nationwide injunction for people. You have to do habeas claims in your jurisdictions. Now these classes include everyone at CCOT and the small criminal custody class. And you'll recall, I was pretty sure the CCO class would be certified.

It would be okay to go. But I had questions about the criminal custody class because they face future problems. It didn't seem ripe. You know what I mean? Yeah. And the thing that makes the Seacote class particularly relevant for Boasburg is because of course they're overseas. And as we said last week or the week before, the DC district court is the court that handles matters of overseas jurisdiction. Yeah. And this week, Judge Boesberg granted the SECOTE class and gave the government one week to detail

how it was going to afford due process to the people there. So this is a little bit different from the rulings that we've seen before. Yes. So there's a lot of details that have to be addressed here and they're all in Judge Boesberg's memorandum opinion and we'll summarize them. But first we have to start with this introduction.

It's really pretty amazing. He writes, One morning, Kafka's Joseph K. awakens to encounter two strange men outside his room. As he gets his bearings, he realizes that he is under arrest. When he asks the strangers why, he receives no answer. We weren't sent to tell you that, one says. Proceedings are underway and you'll learn everything in due course. Bewildered by these men and distressed by their message, K tries to comfort himself that he lives in, quote, a state governed by law, one where all statutes are in force.

He therefore demands again, how can I be under arrest and in this manner? Now there you go again, the guard replies. We don't answer such questions. Undeterred, Kay offers his papers and demands their arrest warrant. Good heavens, the man skulls. There's been no mistake. Our department, he assures Kay,

is only attracted by guilt. It doesn't seek it out. That's the law. I don't know that law, Kay responds. You'll feel it eventually, the guard says. Such was the situation into which Frankel Reyes Mota, Andre Jose Hernandez Romero, and scores of other Venezuelan non-citizens say they were plunged on March 15th, 2025. Wow. He opens with Kafka. Kafka. Wow. What a tone. Indeed. And he goes on. He says in this introduction, indeed, following the March 15th flights,

the Supreme Court held not just once, but twice, that such hurried removals violate the Fifth Amendment's due process clause. All nine justices agreed that due process requires providing potential deportees notice – quote – that they are subject to removal under the Act, which must be done – quote – within a reasonable time and in such a manner as will allow them to actually seek habeas relief before being removed. It's so important that he kicks this off with that Supreme Court, the 9-0 part of it. Right. And this is one of the first issues that has to be addressed is his jurisdiction, right? And whether this has to be handled through individual habeas petitions

or if he can do it in his court. And he says in light of those Supreme Court holdings, this court and whether this has to be handled through individual habeas petitions or if he can do it in his court. And he says in light of those Supreme Court holdings this court ultimately agrees with the Seacoat plaintiffs that they are likely to succeed on the merits of their due process claim. Defendants plainly deprived these individuals of their right to seek habeas relief before their summary removal from the United States. a right that need not itself be vindicated through a habeas petition. That's so important.

Yeah. And the tack that he's taking here kind of puts it central to what he is for sure the Supreme Court thinks in this matter. And I think that that's kind of brilliant. He goes on to say, perhaps the president lawfully invoked the Alien Enemies Act. Perhaps moreover, the defendants are correct that plaintiffs are gang members.

But, and this is the critical point, there is simply no way to know for sure as the Seacoat plaintiffs never had any opportunity to challenge the government's say so. So that whole thing, the whole reason that the Supreme Court vacated his earlier temporary restraining orders and that everybody deserves habeas, these folks didn't get it. And that's what's important here.

They didn't get that due process. And he's drawing a distinction between the habeas claim that somebody would file simply to challenge their detention and the due process claim. And so this, the CICOT class is being certified for the purpose of pursuing their due process claim. Yeah. Supreme court says everybody should get habeas and these guys didn't. It says defendants instead spirited away, plain loads of people before any such challenge could

be made. And now significant evidence has come to light indicating that many of those currently entombed in Seacote have no connection to the gang and thus languish in a foreign prison on flimsy, even frivolous accusations. Because the other preliminary injunction factors also support the C code plaintiffs. The court concludes that their class is entitled to preliminary relief. In short, the government must facilitate the class's ability to seek habeas relief to contest their removal under the act. Exactly what such facilitation must entail will be determined in future proceedings.

Although the court is mindful that such a remedy may implicate sensitive diplomatic or other national security concerns within the exclusive province of the executive branch, it also has a constitutional duty to provide a remedy that will make good the wrong done. Wow. So here's the judge's summary of what the plaintiffs seek. This is what they were looking for. And he's granting a very narrow bit of it, right? So he's not giving the plaintiffs

everything. Okay. Here's what they seek. The C-Code class asks this court to order the defendants, the government, to facilitate their return to the physical custody of the United States. That class does so primarily through its petition for habeas corpus, arguing that class members, although in El Salvador, are in the United States constructive custody and the proclamation is unlawful, the Alien Enemies Act Proclamation. The Seacote plaintiffs also argue that their

summary removals violated the Fifth Amendment due process clause. Ding, ding, ding. That's the one. The criminal custody class, that's the other class I had questions about, non-citizens in state or federal criminal custody with detainers lodged against them by the defendants pursuant to the Alien Enemies Act proclamation, also brings a habeas and due process claim. Those class members contend that they can attack their future removal in this court through habeas and that in the alternative, defendants will remove them

without providing them sufficient opportunity to file such a habeas challenge, thereby violating their due process rights. The court concludes that of these various claims, only one is likely to succeed on the merits. The Seacote class was removed from the United States before its members had any meaningful opportunity to actually seek habeas relief, thereby violating their due process rights. So again, he's not granting the criminal custody class certification or relief from future

possible removal, right? That has to be a habeas petition filed in the jurisdiction where you're at. The judge said due process here is a right that need not itself be vindicated through a habeas petition, right? Like you don't file a habeas petition to ask for a habeas petition. Exactly.

Right? The fundamental violation here is they weren't given any process, so they weren't given any process. So they wouldn't, they didn't have the opportunity to file a habeas petition. Yeah. So he's not, I'm not going to, he's like, I'm not going to talk about the alien enemies act proclamation. I'm not going to talk about whether these people are gang members.

All we are here to decide is whether or not they got due process that nine Supreme court justices said they are afforded or should be. Yeah. It's a little bit, I don't know. I totally see the difference in the criminal custody class and the C code class, but the criminal custody class is already in custody and they've already, according to his definition, they already have, there's already been a detainer lodged against them. So the, it's like the process to remove them is already underway.

It could be executed and move forward at any minute or hour of any day. So, you know, they're time to file habeas now, but like, do they know that? Because if they don't, if they haven't been told any of this, then they're in the same kind of boat that the Seacoat class was right before they left.

Right, but I think if Judge Boesberg granted them class certification, the Supreme Court would come back and say, we told you, you can't do nationwide stuff. That's the problem, yeah. So he goes on, Plaintiffs alleged that their constitutional rights were violated because they were denied notice and a meaningful opportunity to challenge their designation as alien enemies.

In related litigation, the Supreme Court just weeks ago expressed skepticism of the self-defeating notion that the right to notice necessary to actually seek habeas relief must itself be vindicated through individual habeas petitions somehow by plaintiffs who have not received notice. Okay. So he's pointing out that the Supreme Court said you can't ask somebody who hasn't gotten habeas relief to file a habeas petition to get habeas relief. So the Supreme Court's already said this, which is why I think why I think he's going down this road. Yeah, exactly. You can't say, oh, they never filed a habeas

if you never gave them notice that this was the time and process for filing habeas. Guided by both that statement and the repeated instructions of that court regarding the parameters of habeas, this court concludes that if the Seacoat plaintiffs succeed on their due process claims, that success would not

necessarily imply that their confinement and removal under the Alien Enemies Act are invalid. It would instead grant them only the chance to argue as much. Put simply, plaintiffs' due process claim attacks only the wrong procedures, i.e. the process that denied them a chance to actually seek habeas relief, not the wrong result of the sought after procedures, i.e. removal. The C code plaintiffs due process challenge is legally independent from their habeas claims regarding their removability under the act and therefore need not be raised through habeas. All right, so that's a little more in-depth explanation of why he can decide this.

So I think that that's a well laid out argument. And I think this is pretty brilliant. He avoided the constructive custody argument that you and I have been talking about. Yeah. Doesn't even go there. Doesn't go there on the lawfulness of the Alien Enemies Act. Other cases are going there.

So, you know, he's trying to get due process for the people at Seacote that they were deprived of. And by taking the constructive custody argument off the table, he's eliminating an avenue of appeal for the government. Instead, he's just aligning himself with the 9-0 SCOTUS due process ruling and their skepticism about having to file a habeas claim when you didn't even know that you could. So I think that this is a really good order. And he also clearly defined the new class, the CCO class, and it includes all non-citizens removed from the United States custody and transferred to CCO in El Salvador

on March 15th and 16th, pursuant solely to the presidential proclamation entitled Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Trandera Gwa. Very specific group of people here. And another clarifying passage, he says, as is now clear, C-Code class members were entitled to notice an opportunity to challenge their remov removable pursuant to the proclamation. That process, which was improperly withheld, must now be afforded to them. Put differently, plaintiffs' ability to bring habeas challenges to their removal must be restored. Supreme Court said, right? Now, here's my favorite part. This is the bond. It had been waived previously. But given

the reality of the billionaire bailout bill, this bill that's going through Congress, there's a little contempt provision in it. And it says you can no longer charge $0 on bond. Meaning, if you're a plaintiff, like if you're a Brego Garcia and you come and you want to challenge your removal or whatever is happening with you with regard to immigration, you need to put up a bond in case you lose to reimburse the government for the time. Right? There's other things, but that's generally it. And forever, judges were like, yeah, zero dollars is a good, it's totally up to the courts. Right. But then this provision in the, in the billionaire bailout bill says, no, you can't do $0 anymore.

And so, so Boasberg writes, given that reality and the uncertain nature of the court's ability to forgo a bond altogether, the court will require the plaintiffs to post a bond. In light of the circumstances and the nature of this case, it finds that a nominal amount is proper and exercises its discretion to require the plaintiffs to collectively post $1. Not two, one. And I love this because almost two weeks ago, I wrote about the contempt provision in the billionaire bailout bill on my substack at Malersi wrote.

And I said, if the bill becomes law, the court would need to require the movements, the complaining party to fork over some money upfront to cover potential costs of a contempt citation. But see the part that I bolded that says that court that the court considers proper right it's up to the court. So as things stand now I said the courts usually say it's zero dollars but nothing in the bill stops the courts from considering one dollar to be a proper amount. I asked Kel McClanahan from national security counselors about this and he said it's performative bullshit to try and protect Trump from the consequences of his own illegality. But in true MAGA fashion, it's not even effective. So it's extra performative and extra bullshit. And so I said, nothing stopping the court from charging a dollar. That was two weeks ago. Here's Judge Boasberg.

Charge in a dollar. Your bond? One dollar. One? So I thought that was like, okay, right on Judge Boesberg, unlike in your style. I agree with you. Like I think he got to the right place and he did it in a very tactful and kind of protected way. But there is, there is just some disappointment ringing through this result, right? So all the government has to do now is come back with a plan. So you know how long it's going to take to actually figure this out, and then they'll

have one and it'll suck and the other side will oppose it and then they'll go through briefing and God knows what. We're seeing it happen in South Sudan. Exactly, exactly. And that's ultimately the plan that they can come up with is like, well, we'll provide them with due process on the ground in El Salvador. If they can't do it on a US base in Djibouti, there's no way it can happen in El Salvador. So I think by leaving that door open for them, which I think he did in an effort to appear fair minded, and I get that, it's really, this is not possible.

And I think he knows that. To say that people were denied due process and the fact that they were shipped to a foreign prison and acknowledged that that was a violation of the Constitution and not require them to be brought back is a bit of a Pyrrhic victory for those defense. Or plaintiffs. I think so too.

Because if you tell them, well you have to facilitate the due process and they say, well we called Bukele and he said no. They've tried to facilitate it, the end. And that's the same thing we were saying with returning at Braco Garcia, we tried. They said no. And then they're gonna say everything else

is diplomatic privilege, state secrets privilege, et cetera, and we can't talk about it. And the other problem is that you can kind of see how Judge Boasberg has been decapped by this Supreme Court and these defendants. Because on March 15th, he's like, no, return them now. Turn the planes around. This is wrong. You have to return them to the United States.

Bah. And now he's like, okay, they need to have habeas. They need to get their chance to file their habeas thing. We'll sort that out later. It's a very narrowly tailored to this Supreme Court's demands. Yeah. Memo and opinion that I don't think he that he clearly wouldn't have taken two months ago. And it opens the possibility of the

the ultimate constitutional showdown, right? Because they can come back and say we just can't, we can't, we're not gonna do it. That's what I mean. And then they'll fight. We facilitated it. We can't. That legal fight, that litigation will go on. One side will appeal, the other side will appeal, la la la. And maybe it lands in the Supreme Court and maybe the Supreme Court comes down exactly with Boasberg's rule. And then at that point, the government says, we're not doing it.

It's not possible. It's not practical. What are we going to send all their lawyers over there? Half of them don't even have lawyers. We're not, we can't, it can't be done. We're not doing it. Then what? Or the Supreme Court could say, well, they tried. That's all we can ask them to do. That's when the unstoppable force meets the immovable object. And then we're at the point where the constitution completely fails to protect an obvious violation of rights by so many people who are now subjected

to this horrific existence as a result of it. I just think it's like, I think he's trying to do the right thing here, but what we're seeing, we're getting a glimpse of what the future might hold, which is not necessarily, there's a lot of opportunity for disaster down the road here. Nicole Soule-Nagant There is, and I would have preferred the Alien Enemies Act is unlawful. They have to be returned to the United States so they can file their habeas petitions. Michael O'Brien Or, you know, bring them to Gitmo.

Nicole Soule-Nagant Yeah, but he knows that the Supreme Court would probably shoot that down. Michael O'Brien Yeah, I mean, Nicole Soule-Nagant So he's kind of at the mercy of this Supreme Court. He is. He is. He's got very little room to move here and he's trying to move as much as he can

without provoking an obvious, you know, getting over a loss, getting overturned by this court, which is I think inclined to do that anyway. Which they already did to him once Yeah. for actually doing the right thing. Michael Soule Doing the right thing. Yep, for sure.

Nicole Soule All right. We still have a couple of segments to go. We have more news stories to get to. We're going to talk about Judge Murphy and that whole case with the people who were they tried to send to South Sudan, but we have to take a quick break. Stick around. We'll be right back. Hey, everybody, it's A.G. and I'm super excited to announce MSW Media's partnership with Whistleblower Aid. These are the lawyers that go up against the government to protect those willing to speak out against it. And they do this work pro bono, at no cost to the people who need it. And they have a track record. Remember in the first Trump administration, whistleblower aides successfully

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I've made my donation and you can join me and help support them too. This is critical work. That URL for beans listeners and Unjustified listeners is whistlebloweraid.org slash beans. One more time, whistlebloweraid.org slash beans. You'll be glad you did. Welcome back. Okay, we have a brief update on the case of several men that were being flown to South Sudan without due process. Last week, we discussed how the government filed

emergency motions to stay the plan they themselves came up with. You'll recall during the hearing that Judge Murphy and the government went back and forth on how to facilitate credible fear interviews with the detainees. And rather than bring them back to the US, the government insisted on holding the men at a US military base in Djibouti and conducting the interviews there. The government soon realized how difficult that process would be and then asked the courts to go block Judge Murphy's order, claiming that he forced them to get it done on the ground in Djibouti, which of course was not true.

This week, the government filed a supplemental declaration written by the Acting Deputy Executive Associate Director. Let me try that again. Yes, I said Acting Deputy Executive Associate Director for the United States Department of Homeland Security, Immigration and Customs Enforcement, Enforcement Review Operations. Melissa B. Harper. Wow. Melissa has the longest title.

Maybe since Wacka Dagpa. Since Wacka Dagpa, yeah. In this declaration, Melissa says, ice officers do not have the capacity to maintain constant surveillance, custody, and care of the aliens for prolonged periods of time. Only one alien is allowed to use the toilet or the shower at a time and one officer is required to escort the alien. Aliens, she really likes using the word aliens. Aliens are permitted to shower every other day and showers occur at night due to the heat. From the onset of these ICE operations, the daily temperature outside exceeds a

hundred degrees Fahrenheit during the day. The conference room in which the aliens are housed is not equipped nor suitable for detention of any length, let alone for the detention of high-risk individuals. ICE officers are currently sharing very limited sleeping quarters, consisting of a trailer with three sets of bunk beds and six beds in total. Storage, don't work for ICE if you know what. You took them to Djibouti,

you're complaining that it's hot there? You got a plane, take them somewhere else. Take them to Jamaica. Okay, sorry. You could do this in the Bahamas. Storage space is limited to an individual locker for each officer. Then she goes on, there's limited lighting in the area, which makes visibility difficult and creates a significant security risk for both the officers and the aliens.

Hey Melissa, there's a limited lighting available in any room in which you don't turn on the lights. Yeah. Currently, the U.S. Department of Defense resources are being used for the care of these aliens, causing disruption to the station's operations and consuming critical resources intended for service members. DoD operators have expressed frustration, particularly about the proximity to DoD quarters of aliens with violent criminal records. ICE personnel had to interrupt the flight and disembark in Djibouti without being on anti-malaria medication for at least 48 to 72 hours prior to arrival, as recommended by medical professionals. They want vaccines?

No. They're pro-vaccine? Also, the aliens had to land there without getting the medication, right? But she didn't. Yeah, she doesn't say anything about the conditions for the detainees. Right. They were not able to start taking anti-malarials until after arrival in Djibouti. Djibouti utilizes burn pits as a way of disposing of trash and human waste. The burn pits are located within five miles

outside of the base and turned on at night. Well, technically they're not turned on, they're just set on fire, but okay. These pits create a smog cloud in the vicinity of Camp Lemonier, I think it's Lemonier? Oh, so you're actually, you've got a DOD base and American troops next to burn pits? Yeah. Okay. Yeah.

Okay. Yeah. Yeah, we do. Making it difficult to breathe and require medical treatment for the officers who have experienced throat irritation. Within 72 hours of landing in Djibouti, the officers and detainees. Oh, she said detainees. Yeah.

Instead of the aliens. That was nice. The officers, I just it really like hurts me in my soul when These officials refer to detainees as aliens and technically since they're all in a country that none of them belong to aren't they all Aliens right officers in the DOD personnel in the ice officer There you go The officers and detainees began to feel ill within 72 hours. The medical staff did not have immediate access to medication necessary to treat their symptoms.

So you don't have medicine at the base to treat troops. Okay. ICE officers continue to feel ill with symptoms such as coughing, difficulty breathing, fever, achy joints. These symptoms align with bacterial upper respiratory infection. But ICE officers are unable to obtain proper testing for diagnosis. I'm kind of now very concerned about the US troops that are stationed at the base in Djibouti. She's not making it seem like a great place to be.

Upon arrival in Djibouti, officers were warned by the Department of Defense officials of imminent danger of rocket attacks from terrorist groups in Yemen. And this is where you, okay, the ICE officers lack body armor or other gear that would be appropriate in the case of an attack. Now, like you said, Andy, there's a way to fix these problems besides turning on the lights and getting the medicine. Return everyone to the United States for due process. You flew that empty plane back to the United States from Djibouti flew that empty plane back to the United States from Djibouti. I watched it. I tracked the tail number because I was like, oh, are they bringing them back? Yay. No, they flew an empty plane back. And now they're complaining

about all that. Also, maybe you shouldn't have gutted USAID. Yeah. It sounds like it could use a little down there. The other part of that hearing with Judge Murphy was about a man that was sent to Mexico and ultimately ended up in Guatemala after DHS insisted that the man told officers he had no credible fear of either country. But the opposite was true and DHS, unable to find any officer to attest to that statement,

filed a notice of errata admitting their error. Reuters reports, a Guatemalan man who is deported to Mexico, despite stating he feared being persecuted there, was flown back to the United States on Wednesday after a judge ordered the Trump administration to facilitate his return. Judges have directed US President Donald Trump's administration to help return several migrants

to the country because they were wrongly deported. And the man's arrival appeared to mark the first time one of those migrants has been able to come back. The article goes on to say that he returned to the United States as the administration awaits word on whether the Supreme Court will lift an injunction Judge Murphy issued in a class action lawsuit by OCG and other migrants designed to protect their due process rights.

That's what we were just talking about. That order bars the administration from swiftly deporting migrants to countries other than their own. This is third countries, right? Without first hearing their concerns about their safety, a credible fear interview. Murphy recently concluded the administration is violating his order by seeking to deport a group of migrants to South Sudan. They are currently being held in Djibouti while they undergo screening for any fears of being sent to conflict ridden South Sudan. So I'm sure that they will all say, yes, I have a credible fear of going to South Sudan. We'll see what ends up happening.

He dropped off in the middle of a war zone. Like, how could that not be credible fear? I know. I know. Right. but it looks like we can return people Because this man was brought back to the United States successfully from Guatemala and the way they described that base as a Living hellhole. It seems like we should probably try to get everybody out of there Yeah, or at least send the stuff to the base so that they can you know live comfortably with lighting and Medicine Yeah, I've never been to a military base that didn't have medicine so that they can live comfortably with lighting and medicine. Yeah. I've never been to a military base that didn't have medicine.

And it's next to burn pits. Like, anyway. The burn pits are a thing. They are a thing in a lot of places. They're horrible. There's a lot of action of trying to ban them and trying to provide additional like healthcare benefits for people who've been exposed to them. So it's a controversial thing everywhere.

But again, like they picked this place to send their ice officers and the detainees, they could have sent them, they could have brought them home to here and put them in detention facilities in the States. They could have brought them someplace else like Guantanamo. I'm not advocating for that, but it's an option because it's a space that the government controls. Or they could have taken them to any other country that would have said, yeah, we'll happily take them, you and your people for a while. Or any other nearby military base for that matter.

That's right. I mean, geez. Anyway, so that's what's going on in that particular case. And it's both of those are in that the Guatemalan man via Mexico and that's OCG going on in that particular case. And it's both of those are in that, the Guatemalan man via Mexico, and that's OCG, and the people that are in South Sudan on the ground. We still don't have a decision from the Supreme Court yet on Trump's emergency stay. But I think it's a sanctionable request by the government because they mischaracterized the district court's ruling, Judge Murphy's ruling saying they forced us to do this. But when we have that decision, we'll let you

know. All right. Just a couple more quick stories and some listener questions right after this break. Stick around. We'll, welcome back. Just a quick update at the FBI. This is from the Times. Many agents are being forced out by Cosh Patel. Others have been demoted or put on leave with no explanation. And in an effort to hunt down the sources of news leaks, Cosh Patel is forcing employees to take polygraph tests.

One FBI lawyer was removed from a key job overseeing human resources and notified while on medical leave. Others have been forced out of jobs, typically with no explanation. A succession of top agents, all women, were given an ultimatum, take a different post, or be asked to retire. A senior agent, who was until April

in charge of intelligence at the Los Angeles Field Office, was asked to relocate to the FBI's campus in Huntsville, Alabama, where former officials said she would take on fewer responsibilities or to retire. In May, one senior official was forced out, at least in part because he had not disclosed to Mr. Patel that his wife had taken a knee during demonstrations protesting police violence in the District of Columbia in 2020. The veteran agent retired, but not before passing a polygraph test as part of Mr. Patel's efforts to staunch leaks.

Wow. And then one last story. A little bit of a little bit of good news. This is from the Hill. Attorney General Pam Bondi is accused of serious professional misconduct in a Florida bar complaint. This is according to the Miami Herald. Bondi's record as the head of the Justice Department is being slammed by close to 70 law professors, attorneys, and former Florida Supreme Court justices via a Florida bar ethics complaint

filed Thursday, according to the Miami Herald. In the complaint, the group alleges Bondi has breached ethical duties in her current role and that quote serious professional misconduct that threatens the rule of law and the administration of justice has been carried out by the attorney general. So we will follow this bar complaint. Now I do want to make clear if she gets disbarred in two years for some reason, that doesn't actually disqualify you from being the attorney general. You don't even have to be an attorney to be the attorney general.

It's preferred. But it's preferred that you can make a jump shot to be in the NBA, but technically not required. I asked about this when Bill Barr was the attorney general. I was like, what if we disbar him? It doesn't matter. It doesn't have to you don't have to be a barred Licensed attorney to be the Attorney General. Yep. We have weird rules man. Yeah, we do we really really do I get we just never anticipated We're like, oh, we don't have to make weird rules for people at the top

Nobody's gonna put somebody that would be disbarred in charge of these. Yeah. Well, who would think? Nobody's going to put a criminal in the White House. Preposterous. Yeah, preposterous. All right. Time for listener questions.

If you have a listener question, there's a link in the show notes you can click on and send us your questions. Andy, I know we ran over time today. We really had to go over those details from these multiple due process cases. So we kind of ran out of time, but I want to at least get to one question today. Yes. Okay. So here we go. Our question today comes from PJ who starts out by saying, Hi, AG and AM. I look forward to your podcast every week and it gets me motivated and revved up to do more. Thanks for your continued brilliance. Thank you PJ. My question is about improving process and and wising up

as a nation. If there's no longer a presumption of regularity with respect to this government acting in good faith during court proceedings, do you think there's anything judges can do to both anticipate and check the DOJ and their now predictable antics? On a related topic, what's the threshold for a frivolous lawsuit or action initiated by DOJ and how do these get stymied in normal times? Thanks for taking my question. So there's a lot in there.

I feel your concern and frustration with what we're seeing here, particularly on the part of the department. But I do think that we have to always, like what's frustrating and annoying and enraging about what you see oftentimes is DOJs or other litigants efforts to subvert the process. Like we have been spending so much time covering these immigration cases. And the reason is because of the fundamental denial of a constitutional right to do process. And so the way to address that is not to also violate the process, right?

We have to problem. We follow the rules and they don't know. Yeah. And we have to continue doing that. I know that's people like, oh, you're bringing a knife to a gunfight. This isn't a knife or a gunfight. It's a fight about the rule of law. And so we have to be the side and the people and the litigants who are standing up for the rule of law. And I know that can be frustrating.

You feel like, you know, you've got one hand tied behind your back, but it's super important. On the, there's very little the judges can do to stop someone filing something, either a motion or a case or whatever, that is considered frivolous. Because if judges just started routinely just throwing out people's claims because they thought they were frivolous you never get to a point where litigants were not getting their right to a day in court. Which is very important so typically those decisions only come after the factor pretty deep into the process when a judge will decide like a litigant is filing motions that are obviously

false or don't have any legal support whatsoever, then, you know, it's, but it's very rare that a judge will step in and just like kill a case because they think it's frivolous. Sometimes you'll get sanctions after the fact because of misrepresentations lawyers have made, but very hard to like stop something before you get, you have enough of a record established that the judge can actually make a decision, a solid, well-grounded decision that it's a waste of time. And there are little things judges can do to anticipate the shenanigans. I brought up the example of Judge Sinise earlier when she said at the outset of her two-week discovery period, if there are any problems with somebody, the government, not handing over their stuff in discovery, you submit a letter to the court, no more than five pages,

and you ask for a conference, and I will hold it immediately. She can sort of head, the judges can sort of head things off at the past that they can anticipate coming. And a lot of, we've seen a lot of the courts, including the Supreme Court, starting to reverse their normal deference that they show to the Department of Justice. And now they're starting to not trust that the government is going to represent accurately that they're doing what they say they're doing. And so they're kind of anticipating those things in their rulings by setting up ways to combat it. But it's still a very long

process. Like when we're going through, like what we're going through with Judge Seen is where you've got to have discovery to get to contempt and you've got to resolve threshold issues like privilege before you get to discovery. All that has to happen. Otherwise, the Supreme Court will just smash it down and you lose. It is frustrating, but you can't circumvent due process while trying to protect due process. For sure. You got to, that's our cross to bear, but we can handle it. Right.

The system, it is designed to work. It is designed to find justice. We just got to keep fighting. We just got to keep pushing. Yeah. The only problem is it takes so long that by the time you get to it, everybody's either gone or deceased or we have a new administration or, you know, I remember when I was at, when I worked at VA, we worked with DOD a lot and every two years the Naval Hospital would get

a new commander, a new CO. And it's like right around the two year mark is when you actually start getting stuff done and then they leave and you bring a new person in and they're like, no, you have to do a new way. And you're like, ah, it's, that's, that's a government problem. It is a huge government problem. I think that's true in any agency. Um, all right, everybody. Thank you so much for listening. Thank you so much for your questions. Please keep sending them in. I know we didn't get to a lot of questions today, but we just simply ran out of time because we had so much to cover and I don't see that changing anytime in your future. But we do really appreciate you listening to the show. Thank you very much. Andy,

do you have any final thoughts about everything we covered today? I mean, another huge week. There's one thing that happened this week that I'm really keeping a close eye on. I'm sure we'll cover it in weeks to come. And that was the request, demand, order, whatever, from the president to DOJ to start investigating former President Biden on some crazy auto pen. Maybe he concealed his nature of his capability or the loss thereof. This is such a weird thing.

And just from a totally separate perspective, I can't even articulate a way that the FBI could get involved in such an investigation because there's literally it doesn't even, the allegation doesn't even come, doesn't even allege a violation of any law or creation of a national security threat. So I think we need to keep a really sharp eye on that one and I'm sure we'll be covering it in the weeks to come. So that's just one thing that's kind of forefront in my mind right now. Yeah, we definitely will keep an eye on that. I mean, this, this administration, this department of justice, probably one of the reasons Pam Bondi is having a bar complaints filed against her is

because she violates DOJ policy constantly by announcing investigations and having people like a Lena Haber come out and like assign guilt to Mayor Ros Baraka before he even has a chance to defend himself and then dropping the charges. So we'll definitely keep an eye on that and all of the weaponized investigations into political enemies that come up. For sure. All right. All right, everybody. Have a great rest of your week. We will see you next Sunday on unjustified I'm Allison Gill and I'm Andy McCabe Unjustified is written an executive produced by Allison Gill with additional research and analysis by Andrew McCabe sound design and editing is by Molly

Hockey with art and web design by Joel reader at Moxie design studios The theme music for unjustified is written and performed by Ben folds and the show is a proud member of the MSW Media Network, a collection of creator-owned independent podcasts dedicated to news, politics, and justice. For more information, please visit MSWMedia.com.