Ep 215 — DOJ, Why Are You Like This?

Andy Oldham writes an impassioned dissent about how wrong the panel opinion is. James Ho writes another one. Those guys are such assholes. They both think that they're going to be appointed to Alito State and I deeply am deeply annoyed that I have to be on their side. I'm with you. I like I said strange bedfellows but yeah I'm with Oldham and Ho and against the most left-leaning 5th Circuit panel that you could comply like so. Welcome to Law and Chaos where Voice of America is getting sued again. The Trump administration is still trying to punish Kimara Brego Garcia for beating him in court and the three-hat dance is donezo in New Jersey. We've got a lot to cover so let's get after it. Hey guys I'm Liz Dianne with me as always is Andrew Torres. Andrew how are you? Liz I'm great. How are you doing? I'm you know it's a little chaotic in this house. I've got a lot of dogs in the house at the moment and it's a little bit chaotic. Oh but you know nothing will ever love you as much as a dog so. I mean maybe. Okay we have approximately 1,100 docket alerts that's in part because we spent all a Friday show talking about Afro Man and the ongoing disaster in New Jersey's courts. Yeah I am still craving that lemon pound cake. Actually me too but I think it's time. Time to get to it. Okay so this week is opening day in Major League Baseball. You know I love baseball. I am very excited that Craig Albrinez is going to manage the Baltimore Orioles. I'm less excited about my adopted team the Tampa Bay Rays but I'm really really less excited about the news that the online prediction gambling site Polymarket has inked a four-year 300 million dollar deal with Major League Baseball. Liz you and I have talked on this show a lot about the federal indictments across the major sports leagues and to a person to a man they're all men they're all about how trivially easy it is to place prop bets. Prop bets are bets on individual outcomes. So for example Cleveland Guardians pitcher and All-Star Closer Emmanuel Klase is not accused of throwing games. What he's accused of is pitching slightly less amazing a couple of times and so unless you have a witness who's flipped like that's really really hard to so Klase for example routinely throws his fastball over a hundred miles an hour and you can get on Draft Kings or FanDuel and place a prop bet on the velocity of his next pitch. So if you're a crook and you want to rig that bet all you have to do is tell Klase like hey man the second fastball you throw in this game just throw it a teeny tiny little bit less hard than you would otherwise and there's a paycheck in it for you. You didn't have to lose the game you didn't have to suck each time to throw 96 instead of 100. I throw about 17s. Anyway. Not gonna bet on you. Well yeah you could probably prop bet that. Take the over at 15 but under 20. Anyway after the Klase indictment FanDuel and Draft Kings agreed to reform. They capped those kinds of prop bets at 200 bucks a bet. Yay. Look look Liz the only rule that is posted in every single major league clubhouse is that you can't gamble on baseball. Like I just don't see how you can have any confidence in the integrity of the game when it is trivially easy to manipulate it. And I should point out a story for next time. Arizona's amazing attorney general Chris Mays has already filed a criminal complaint against Kalshee which is the other major prediction market. Mays has alleged 20 different misdemeanors related to gambling. So I can't wait to break that. The bottom line is that this story gambling in professional sports and the insiders who make that terrible it's just not going away anytime soon. And look many many millions of dollars were made bidding on the price of oil before and after Trump said we fixed it which like clearly we didn't. I think that these prediction markets are going to they're trying to eat the world and I don't think it's going to work but I think it's going to be bloodshed until we get this sorted out from a legal standpoint. Okay with that let's check in on the embattled US agency for global media the parent agency of Voice of America and Radio Free Europe. Two weeks ago Judge Royce Lamworth ruled that Carrie Lake had never been legally appointed as CEO of US AGM and so nothing she did in that capacity was legal including firing more than a thousand employees. So the court ordered the agency to bring all those employees back immediately. A bunch of stuff has happened since then. Maybe the most amazing thing is that the Trump administration actually did something normal and rational and nominated someone to run the US AGM permanently who was probably going to be able to get confirmed. And they followed the law. Courts have said roughly 10,000 times now you Trump administration have to get what are called PAS officers confirmed by the Senate right that it's right there in the name and it seems to have finally sunken in that this administration better get on that pronto because they might lose the Senate in the 2026 midterms and if there's a Democratic controlled Senate in 2027 I sure hope that means that they will not be able to confirm anyone anytime anywhere. So the Trump administration nominated this lawyer named Sarah Rogers and and again we have been saying this all along Sarah Rogers is totally MAGA. She represented the NRA. She worked in house for Philip Morris on tobacco litigation that that's not the good side of the tobacco litigation. She sued over the media censorship of Charlie Kirk because you know you couldn't find Charlie Kirk on any media outlets right. Like this is the low bar that they had to clear like they just had to find someone who was not manifestly insane like Kerry Lake. And and prone to attacking other Republicans. Yeah. Right because that's the thing that Kerry Lake does this crazier than anybody else is that she she punches sideways you know as opposed to punching Democrats. Yeah. So she made enough enemies that she's not confirmable. Yeah I think that's right and and I think Rogers is confirmable. Especially since she's already serving as Under Secretary of State for Public Diplomacy and Public Affairs which is a position she says she intends to keep when she's also acting as CEO of USAGM. Yeah that's a huge middle finger right. Neither of those jobs is a part time gig not Under Secretary of State for Public Diplomacy and Public Affairs. No. She was Senate confirmed for and USAGM. Both of those are huge jobs and meanwhile Lake is tweeting that she's going to stay put and keep doing what she's been doing which sort of suggests that Rogers isn't really going to be leading this agency. Although caveat Rogers is clearly smart and ambitious. Totally devoid of any moral compass. So maybe she does want to actually do something at USAGM. I don't I don't know. Yeah. I can't tell from here. Yeah. In terms of the litigation obviously the government appealed Judge Lamberth's order. He's in the U.S. District Court for the District of Columbia. They appealed that to the D.C. Circuit but in the D.C. Circuit this Department of Justice reverted to form and did it in a totally abnormal way. I don't. Yeah they really do have a knack for screwing up every bloody thing. I did. There's like six people left and they all have no experience and grades were not a factor. So anyway here's what happened. Judge Royce Lamberth issues his final ruling on March 17th ordering USAGM to bring back all of the employees within six days by Monday the 23rd as we're recording the show. Two days later two days after he issued that order on the 19th the government notices its appeal. We're going to talk about the substance of that minute. So far this is so normal relatively speaking. Yeah. Right. Right. That night the government also files a motion in the district court. The one from which they have just appealed asking Judge Lamberth to stay his own ruling because it's logistically impossible for USAGM to bring back all of those people at once. And then the following afternoon they file an emergency motion for a stay at the D.C. Circuit. So now they're asking for functionally the same relief from two different courts which I know man do it serially. Right. So that day the 20th on Friday Judge Lamberth says he's not going to stay his ruling but he is going to vacate the obligation. Right. Strike out of his injunction the order to bring everyone back this week. Right. And instead what he said was OK you filed a declaration earlier in this case saying that what is doable for you is to onboard 70 of the fired people per week. So you do that. Which kind of undercuts the government's claim that they need emergency relief from the appeals court because they themselves said we are capable of doing this. This is such a mess on every level. And look let's step back for a second. We can apportion the blame on this mostly to the Supreme Court. Right. Since Chief Justice John Roberts has spent over a year letting the government file these emergency appeals of unappealable temporary restraining orders by the way and mostly staying those district court orders when they would prevent this administration from doing whatever it wants to do. And largely what it wants to do is burn down the executive branch. Right. I mean yes the Department of Justice does bear the blame for filing this nonsense and you know in two courts at the same time but like the Supreme Court could have stopped this a year ago. Yeah. If Chief Justice Roberts said no the rules apply to you the federal government does the same as they apply to any other litigant then we wouldn't be here. Right. This nonsense. We would have trumped the U.S. Well no. No. I mean quite obviously but procedurally this mess is thanks to Chief Justice Roberts. Yeah. I agree. OK. So back to the USA GM case. What the government does is dock at this letter saying that now after Judge Lamberth has partially vacated his injunction they're not really sure what they want. They don't need an administrative stay anymore because Judge Lamberth isn't making them bring everyone back and not today. But as for the emergency motion itself what they said was we'll get back to you next week. And the journalist plaintiffs looked at this letter and were like what the hell is they immediately moved to dismiss the entire appeal because Judge Lamberth vacated the part of his order that the government appealed. Right. And I flagged this earlier but the notice of appeal says that the government appeals and they chose this language. They didn't have to quote in so far as the orders impose injunctive relief requiring the government to return hundreds of employees from administrative relief by Monday March 23rd. And then the emergency motion the one that they're not sure whether they want to renew or not says that it seeks an emergency stay of that injunctive aspect of the summary judgment decision. That aspect is gone. There is nothing to appeal. I mean look eventually the procedural ducks are going to line up as this case is clearly going to be appealed. Right. The government has a right to test at the DC Circuit whether Judge Lamberth got it right. But this is just beyond sloppy and it is indicative as you pointed out. How crap the lawyering is at the Department of Justice. And I think in addition to it's easy for us to laugh about the incompetence and I think there is also a sense of just file any old damn thing at the district court level because the Supreme Court is either going to bail us out or in rare cases they're not. I mean maybe over the Federal Reserve or on tariffs or whatever. But by and large we're going to save the good arguments for the Supreme Court. Meanwhile as all this has taken place there's another lawsuit that got filed against USAGM this morning. Right. So that involves Voice of America which is governed by a statutory firewall which is codified in 22 USC sections 6202 and 6204B. That requires USAGM CEO to quote respect the professional independence and integrity of VOA's journalists and prohibits political interference with their editorial content. But Kerry Lake says that the firewall should not exist. In testimony before the House Foreign Affairs Committee she said we need to make sure the firewall is gone. We should be able to have control over what kind of content goes out. It should be an alignment with our foreign policy and unfortunately the only people that seem to have any influence are adversaries on what's going on VOA's airwaves. It's outrageous and it has to stop. She says that the purpose of this network is not to air actual news but to quote get the president's messages out. Can we get that clip from Krusty the cloud saying oh I said the quiet part loud or the loud part quiet like how can you vote for Burns's movie. Let's just say it moved me to a bigger house. Oops I said the quiet part loud and the loud part quiet. Oh dear. Your feelings are not the law Kerry. Right. So a consortium of journalists both inside and outside USAGM sued alleging that the defendants have demolished this firewall in two ways. One by suppressing coverage of stories the administration doesn't like and two by forcing VOA to publish Trump administration talking points as if they were actually news. So there's several examples but the most prominent involves a USAGM employee named Ali Javanmardi. Apologies for messed up the pronunciation. He works for USAGM not VOA which itself violates the firewall for him to be controlling VOA. Right. He's been installed to run the Persian Kurdish and Afghan services and he's reportedly banned all mention of the family of deposed Iranian dictator Mohammad Reza even when Senator Lindsey Graham met with the guy. Okay. Brief historical digression. Shah Pahlavi was overthrown in 1979. He was installed by the US government as a puppet regime. His son Reza lives in America. I think in Maryland or Northern Virginia. Yeah. I'm not I'm not sure but sometimes when Americans are feeling extra stupid they fantasize about putting the sun back on the throne in Iran so that he can run the country as a US protectorate which I guess I should also say that there are some supporters of the Shah still in Iran. I mean one of the things that this complaint alleges is that Javanmardi will not let the voice of America air footage of crowds shouting Pahlavi's name. Right. And that's because he favors the People's Mujahideen Organization of Iran or M.E.K. I think yeah. Yeah. That is a group of Iranian dissidents in exile who are deeply unpopular in Iran because they sided with Saddam Hussein in the Iran-Iraq war. But M.E.K. has strong ties to Republicans including your friend and mine Rudy Giuliani and John Bolton. Yeah. And okay. It's not just in the Kurdish Iranian Afghan. It's the complaint says that the networks air basically puff pieces and AI slop on the Mandarin news service and they say that this amounts to viewpoint discrimination and violation of the First Amendment as well as a violation of the Administrative Procedure Act. So the plaintiffs have designated this case as related to the other VOA cases so as to get in front of Judge Lamberth which is the thing that happens a lot. We're going to talk about that. Well actually we're going to talk about it in the subscriber bonus. Yeah. And counterpoint. Kerry Lake says Judge Lamberth is fat. She really did. She said wrote tons. Boom you burned. God be the dumbest people. The dumbest people. Okay. But on this show we do not have the dumbest people. We have the best people. Nice. It is Tuesday. We are going to thank the ones who subscribed to us for the first time this week. Yeah. A special thank you to those who subscribed over at Patreon at patreon.com slash Lawn Chaos Pod. Thank you to Cara Carlson, Janice Eisen. Life is a box of naked chicken chalumpas. It is. Selena, Joseph, Caleb Archambault, Alexandra Schwartz, and Eric Phillips, Ever Curious Kate, Brian Smith, Kethro Landrielle, Lee Bee, and Ilim. And over on Substack at LawnCaosPod.com, thank you to Christine Powell, Aaron Warner, Christine Silas, and Johnny Lynch. And if you'd like to join these folks and get your name shouted out on the show, get the ad free episodes, get the bonus episodes, get extended episodes, get all the goodies that we have for you. Plus let us know that you keep this show running. You know how to do that. Just head on over either to LawnCaosPod.com or to patreon.com slash LawnCaosPod. Sign up to give us as little as a buck an episode, and we will shower you with praise and all of those aforementioned goodies. And for everybody else, we are going to take a quick ad break, but not for our supporters, never for you. Ready to launch your business? Get started with the commerce platform made for entrepreneurs. Shopify is specially designed to help you start, run, and grow your business with easy customizable themes that let you build your brand, marketing tools that get your products out there, integrated shipping solutions that actually save you time from startups to scale-ups online, in person, and on the go. Shopify is made for entrepreneurs like you. Sign up for your $1 a month trial at Shopify.com slash setup. And we're back. Okay, Liz, let's move to your favorite state, New Jersey. There's nothing wrong with New Jersey. Where it seems like the Department of Justice has finally tapped out on the triumvirate. No more three hat dance. Oh, I'm so sad. I mean, take heart. They'll probably keep trying it in other jurisdictions. Okay, we are, of course, talking about the fight over U.S. attorneys and whether Trump can just ignore the constitutional requirement that they be appointed with the advice and consent of the Senate. The Senate blue slip rules require sign off by home state senators to advance nominations of district court judges and U.S. attorneys. That means that Trump cannot just put in Alina Habba or Lindsey Halligan or whichever hack crony he likes and seven courts have agreed that that is the case. Right. So when the U.S. Attorney's office is vacant, there's a provision in the U.S. code. It's 28 USC section 546 that governs the appointment of U.S. attorneys and interim U.S. attorneys and subsection 546 D allows the judges of the district court as kind of a last resort to fill a vacancy if the interim nominee has timed out and the position is still vacant until such time as the Senate confirmed someone. But Attorney General Pam Bondi has until now taken the position that no it doesn't. So literally every time that the district courts have appointed someone to fill that role under 546 D, she has put out a nasty tweet calling out rogue judges for daring to usurp the power of the executive and then has fired that appointee immediately. Well, not every time because a few times the judges have blessed the Trump administration's nominee who hasn't gotten confirmed and they think that is fine. Right. Right. You know, the judges can do what they want as long as it is. As long as it's what they want. Sign the Trump administration's permission. So in every other case, though, when the judges have put forward their own competent nominee, Todd Blanche immediately tweets, you're fired because he's a dick who thinks he's a contestant on the apprentice. But not this time. Nope. This time, the judges appointed a 20 year veteran of the U.S. Attorney's office named Robert Frazier and neither Bondi nor Blanche said boo about that. No. And in fact, Alina Habba tweeted out what a great guy Frazier was. So she ever met him? She probably has. Right. She was there for several months. But look, there's a reason we spent half the show on Friday talking about that hearing before Judge Zahid Qureshi, where he threw out the assistant U.S. Attorney who failed to enter his appearance. Remember, that is the botched CSAM prosecution where Judge Qureshi said, explain to me how your office can go forward with this case or any other when a judge has said your leadership structure is illegal. Because after the Third Circuit said Pam Bondi couldn't give the U.S. Attorney job to Alina Habba, Bondi was like, Ha, I'm going to split it between three different people. None of whom was qualified, by the way. And then Judge Matthew Brand, who had already disqualified Habba said, no, that that three-way triumvirate doesn't work either. And he said, also while we're talking about it, I am not sure that this illegal leadership structure doesn't infect everything coming out of this office. So proceed at your own risk. Right. That's why Judge Qureshi said, here is your risk to the government. This is your risk. Your risk is that you have signed off on a below guidelines level plea deal with this defendant whose phone was full of the worst kinds of CSAM imaginable. And it's possible that not only will he get a sweetheart deal that you didn't know about because you signed the deal before the FBI had finished reviewing his phone, but he might end up walking because no one in your office was legally authorized to accept that plea bargain. And that's the only thing where you can imagine. And so Judge Qureshi said that he was going to make all three lawyers from the triumvirate show up at a hearing on April 1 and explain how they think that they're legally permitted to keep running that office. Clearly, this situation was untenable and for what is a rarity in the Trump administration, the administration blinked. Right? Frazier was appointed today and then Mark Coyne, whom you may remember from last Friday's show as the U.S. attorney who got booted out of his courtroom by Judge Qureshi a week ago, docked a letter to Judge Brand in that disqualification case. And he said, basically, Frazier has been appointed by the courts now, so this is moot. Right. So we do not have to debate whether this triumvirate structure is legal like you have somebody in charge, it's fine. Right. And that order is what we saw first. And look, so the fact that the Trump administration is not arguing about this is in fact citing it in their own motions. Seems like a pretty good evidence that they're not going to fire Frazier and also undercuts this claim that they've been making all along, that it's unlegal for the judges to appoint anybody under 546D. I mean, as you have pointed out already, consistency is not the strong point of this administration. Yeah, I would not be shocked to see them keep trying to fight this argument in other jurisdictions. Right? They've got in New Mexico and Los Angeles and Nevada, I think, and the Northern District of New York. They've got all of these other goobers. Eastern District of Virginia. Eastern District of Virginia. Right. They have no leader and they've said, you the judges, we will not countenance you appointing somebody. So I'm sure that there was some negotiation behind the scenes about whom the administration could live with that the court would appoint. I think that's right. But I'm interested to see whether they're going to tap out on this generally. I think probably not, but that's a problem for another day. Yeah. Okay, let's talk about Trump judges and Trump e-judges. Obviously, the Trumpiest judge of all is Eileen Cannon. The jury is still out on Judge Roy Altman, her colleague over in the Southern District of Florida. Judge Altman is presiding over two of Trump's troll suits, one against the BBC for tortuous editing and one against Capital One for tortuous debanking because they canceled his accounts after he tried to overthrow the government that one time. I mean, let's cut to the chase here. These are slap suits that Trump filed. They are designed, they're strategic lawsuits against public participation. They are designed to scare and hopefully punish his enemies. They are defamation lawsuits in groucho Marx classes. Yeah. That's kind of Alejandro Brito's thing. That's why he's Trump's favorite lawyer at the moment. In the BBC case, Judge Altman denied BBC's motion to stay discovery, pending its motion to dismiss because obviously it doesn't want to have to turn over a bunch of stuff to Trump's goober lawyers. That motion to dismiss has now been filed, but discovery is ongoing and he Judge Altman is at least behaving as if he thinks this case is going to go to trial next year. Yeah, you can beat the rap, but you can't beat the rye. The process of being sued is in some sense the punishment. Right. And having to spend time and money fighting off Trump's troll lawyers chills speech. Even if these organizations win, they will have a strong disincentive to criticize Trump when they know that they may end up having to spend millions of dollars fighting off another garbage lawsuit. So on Friday, Judge Altman granted Capital One's motion to dismiss, but he said they still had to participate in discovery, which is a new one on me. I mean, I have fully been practicing law for 28 years. It's a new one on me too. Here's how Bloomberg reported this. They said Altman, Trump appointee, said that the complaint was deficient for numerous reasons, which it was, but he nevertheless gave the Trump organization a chance to file a new complaint. He said that the company had done quote, just enough to allege that the accounts were potentially closed out of political animus, even though the complaint lacked specifics. And so Altman said to Trump's lawyer, the aforementioned Alejandro Brito, I'm going to ask you to beef up those general allegations. And like, no, like when you win on a motion to dismiss, you don't have to produce discovery. What is this? I mean, here's the thing, like you could win on a motion to dismiss and maybe the case gets dismissed without prejudice and they're entitled to refile. I'm not really sure. Yeah, but you don't have to produce discovery in the interim. This is ridiculous. Again, I think that. And I do. I want to drill down on a little bit, right? Because we do talk about that. Like, when you file a motion to dismiss and it is dismissed without prejudice, you may, as the plaintiff, refiled that complaint. But you have to fix the problems that led to the dismissal in the first place. Right. We talked about that in the Blake Lively lawsuit, right? Like, she had sued Justin Baldoni and his buddies and then they had filed a counterclaim against her. They'd filed another lawsuit that got merged into it. The judge dismissed that out without prejudice and said, hey, you could come back here and make these claims make sense. And they never did because there wasn't a way to do that. Right. So I just think I think it is worth pointing out that having the right to refile is not the same thing as it being practical to refile. Yeah. Yeah. I mean, we're is having any justification to refile. Right. So, okay. I mean, it sort of actually reminds me of another Trump defamation suit, one against CNN. That was also in front of one of his own appointees, Judge Raj Single. And I think that's, I think he's in the Southern District of Florida. He might be in the Middle District. And Single did eventually dismiss that case, but he let Trump harass CNN for like a year. And indeed, Trump continued to harass CNN by like chasing them over to the 11th Circuit and filing for an on-bunk review. And I think that kind of counts as a victory for him because it's unpleasant for CNN and for the BBC and for Capital One and for JPMorgan who are all in this situation. And it of course, does have that chilling effect on speech. So there are options. Judge Roy Oldman, do you want to be a Raj Single and give Trump a minor victory or an Eileen Cannon and a complete hack? Right. And have it be the first line of your obituary and have everyone think that you're an asshole. Like never go full cannon. Indeed. Okay. One last stock alert, which is the story we wrote about for the blog. Go ahead and read it. It's not paywalled. It's called, Hegseth gets loomered in court. Magamedia menagerie mooted is the deck and has a little pride of that one. You can take the girl out of Wonkat, but you cannot take the Wonkat out of the girl. Always Wonkat. Okay. So what happened here is that Pete Hegseth did not like all of the negative coverage of his drinking and womanizing and roofing and being a terrible manager. And including journalists on your signal chat and we are clean on the opposite. So he, they promulgated a new media credentialing policy at the Pentagon. So in September, Defense Department spokesman Sean Parnell rolled out a new policy for the Pentagon facility's alternate credentials, PFACs. And they are sort of like hard passes at the White House. They allow reporters to access non-classified areas of the Pentagon and, you know, dedicated workspace and be there physically in the building for all of the press conferences announced and unannounced. And it is those interactions in the hall that often lead to really in-depth reporting. And yes, sometimes that kind of those interactions lead to friendships where people lead classified information. But that has never been, you know, they've been there for decades, right? It's been 50 years that they've been in this kind of these PFACs. And no administration has tried to impose any kind of, you know, take them away penalty for reporters who report things that the Pentagon wishes they hadn't. Until now, when the DOD decided that the way that they would ensure no bad reporting was to force anybody who held one of these PFACs to sign an acknowledgement that they would never report anything which was unflattering or unauthorized. They would never make any unauthorized reports that they would essentially be stenographers for the administration. Well, and the policy in particular said that anything that violated the terms of this new policy might be grounds for rescinding access, right? And so the trial court judge, it's Judge Friedman, ruled that this policy violated both the First Amendment, right? It was obviously viewpoint discrimination. It was intended, they couldn't stop talking about how, you know, now we're taking away the credentials from the New York Times and giving them to Laura Loomer and Tim Poole, who's a legitimate Russian agent. Tim Poole was too stupid. Right. This is the whole, it's so funny that they said, we have to do this for national security. Tim Poole literally was too stupid to know that he was being paid by a Kremlin cutout to air anti-Ukrainian propaganda. Right. Like that guy's really stupid. James O'Keefe, whose entire shtick is secretly filming people, often government officials and deceptively editing and airing that footage. So for the government to say, well, this is a perfectly legitimate policy. It's not, it has real rules. It's not void for vagueness. There isn't, you know, it doesn't allow unfettered discretion. It was ridiculous because you can't say that all of these defense department, you know, old hands, people who have been there 20 years are a security risk. But a guy who literally pled guilty to sneaking into Senator Mary Landrieu's office dressed in a telephone repairman costume seeking to plant a bug, that guy's not a security risk. That's what James O'Keefe did. Yeah. And you actually transitioned to that second reason, which is that in addition to violating the First Amendment as viewpoint discrimination, right, we're going to come down on those who are hostile to the administration and permit those who are fawning sycophants of the administration. It was also void under due process grounds for being vague. Right. There was no way, if you were a journalist, to comply with this policy in a way that allowed you to know that your credentials weren't going to be revoked. So good, good ruling. And I thought it was interesting, Liz, you want to talk a little bit about the procedural posture because the journalists here did things a little bit differently. Yeah, it's interesting to me that they deliberately seem not to have taken an immediate appeal. We've talked about like all of these TROs, the temporary restraining waters. They did not move for a temporary restraining water. They didn't move for a PI saying, give us back our passes. And I suspect it's because, A, this was going to be a case which was about pretty quickly. I think they filed in December and here it is, you know, March and it's over and done. They've had the trial and it's done. But partly because as we've seen the Trump administration get their appeals in really exceptional circumstances, be able to appeal everything, when they appeal in an emergency posture, they often wind up before these emergency panels at the DC circuit. And I don't know why those panels always, always, always seem to feature these Trump appointees. But that's really set back a lot of the litigation which proceeded in this emergency posture. And so I don't know whether that was their calculation, but they seem to have said, basically, we'll sit out. Look, every reporter walked out. Right. Everybody but, I mean, even Newsmax walked out and said, we could not possibly surrender our journalistic integrity by signing this thing, only like one America. And then, you know, all the rest of these, you know, Star Wars bar weirdos trooped in to take the place of the New York Times in the post and even Fox. And so I speculate that the reason that they let this go, they just, they just filed a motion for summary judgment because the facts really weren't in dispute. Right. And they let it go, you know, to trial. So now the appeal will not be in an emergency posture. And they'll never have been in front of one of these panels, which has been, I mean, I suspect it's because the emergency panels have people say, I'm willing to sit for an emergency panel. And the conservatives have said, I am willing to serve on an emergency panel. Yeah, we do not know. We have run the numbers on the mathematical improbability of Justin Walker and Naomi Rowell popping up over and over again on these emergency panels. And now the government is still free to run to the DC Circuit and the Supreme Court and seek a stay. But there has been tremendous amount of fact. This is a ruling on summary judgment after both sides said, yeah, we've gotten all the facts out, right. And that that's a better posture to be in, right? Like, it's harder for a court to come up with a different adjudication once a court has conducted actual fact findings on the merit. Yeah, just just one more thing. Because in part because of the Supreme Court's ruling that injunctive relief can only extend to the parties, the only people who are getting their passes back are the seven named New York Times reporters who who were on plaintiffs in this case, everybody else, all of those other journalists who stuck to their guns. I mean, I assume that they will quickly file to get their passes back in a, you know, sort of me too claims. But they do not automatically get relief. And that again is thanks to Justice Roberts. Yeah. Okay, we're going to take a quick break. And then we will come back to talk about Kilmar, Abrego Garcia. And we're back. Okay, as Liz said before the break, it is time to talk about Kilmar, Abrego Garcia again, his criminal case on trumped up charges remains pending in Tennessee. Judge Waverly Crenshaw held an evidentiary hearing on February 26 on Abrego's motion to dismiss and has requested supplemental briefing. Now, most of that has been under seal, right, the motion and the response. So we're not sure exactly what's going on other than obviously his arguments are at minimum non-frivolous if the judge wants to see more. Exactly. Meanwhile, Abrego has agreed to be deported to Costa Rica. But the Trump administration flat out refuses to send him there. Instead, they have tried to send him to a series of African nations, including as with teeny, Uganda and Ghana. And now they're trying for a fourth to send him to Liberia. And their legal arguments are indefensible. Yeah, we haven't talked about this guy for a while. So let's quickly go over who Abrego is and why this case matters. In 2011, when a break was 16 years old, he fled El Salvador because gangs were extorting his family's papusa shop and had threatened to kill him. He lived with his brother in Maryland until 2019 when he was stopped by cops for loitering in the parking lot of a home depot. And the Hyattville cops handed him over to immigration officials who immediately initiated deportation proceedings. During those proceedings, immigration judge David Jones found Abrego's testimony credible that if he were to be returned to El Salvador, he would be possibly killed by the gangs. But as a matter of law, you have to raise claims for asylum within one year of arriving in the US. So Abrego was by then seven years too late to qualify. Right. So Judge Jones did two things. First, he issued a final order of removal, saying that yes, Abrego was deportable. Put a pin in that. Second, along with that final order of removal, the immigration judge also issued an order withholding removal to El Salvador based on Abrego's credible fear of being sent back there, which meant that Abrego could be deported, but not to El Salvador. Now, the Immigration and Naturalization Act does create a legal process to deport non-citizens with an order withholding removal to their country of origin to a third country. But practically speaking, until Trump's second term, what every administration has done, both Republican and Democrat-like, in these sorts of cases, was to make an initial determination if that non-citizen was a danger to the community or not. They were, then yes, they'd be arrested or removed to a third country. But if not, in the overwhelming supermajority of these cases, then it just didn't make social or economic or moral sense to go through that third country removal process. Instead, they would be released onto what is called the non-detained docket, where you work, you pay taxes, you obey the law, you check in regularly with ICE. And that's what happened with Abrego. The Department of Homeland Security, which, let's remember, that was during the first Trump era, determined that Abrego was no risk to anyone. And he went on to the non-detained docket where he'd stayed for six years. And he got married, he had kids, he joined the union, he worked as a sheet metal labor. Like, he lived his life, he was fine. But then Trump got reelected, and Stephen Miller said ICE had to arrest 3,000 immigrants a day. And all of a sudden, that non-detained docket was like low hanging fruit, because there's, that's a list of people, you know where they are, and ICE can just go pick them up, which is exactly what happened. On March 12th, federal agents pulled Abrego over with his little boy in a car and told him that his status had, quote, changed, which it had not. And they threatened to take away his child, put the kid in foster care if Abrego's wife didn't show up within 10 minutes. And then three days later, Abrego was on a plane to El Salvador with hundreds of other men destined for the, you know, Seacot, the mega prison there, despite the fact that there was this order that said he couldn't be sent there. Yeah. Almost immediately, the government conceded that when it deported Abrego to El Salvador that it had made a mistake, that plainly violated the 2019 order of withholding of removal. The Department of Justice called it an administrative error in writing in court, but they didn't treat it like an error. The administration, you know, usually when you make a mistake, you're like, Oh, my bad, I'll fix it. The administration refused to try and bring Abrego back from El Salvador, even after Judge Paul Xenis in Maryland ordered it to facilitate his return. And even after the Supreme Court affirmed that requirement, right? Instead, Abrego Garcia remained imprisoned in El Salvador until June 6th, 2025, for months, when the federal government suddenly returned him to the United States, only to then immediately indict him in Tennessee on charges of human smuggling under 8 USC, Section 1324. And that is a criminal offense for unlawfully transporting or harboring immigrants for financial gain. Right. So meanwhile, the government hasn't stopped lying about Abrego, which they had to do because they kept saying, well, we, he's exactly where he should be. It wasn't an accident that we deported him, whatever. They smeared him as a violent criminal and a gang member and a terrorist and a human trafficker and a wife beater, even though they've not charged him with any of those crimes. And when Judge Crenshaw ordered Abrego released pending trial, he returned to Maryland where he was detained again by ICE at his voluntary check-in in Baltimore's agency office. So Abrego then petitioned to reopen his asylum case, but that petition was denied. And at that point, Abrego kind of basically gave up. He said, fine, okay, deport me to Costa Rico, I'll leave tomorrow. But the government said, no, we're not going to send you to Costa Rica unless you agree to plead guilty in your criminal case as a precondition. Otherwise, we're going to send you someplace much more unpleasant. And when he didn't agree to plead guilty, they said, cool, we're going to send you to Africa. Yeah. And now we pull that thing. Remember when I said that the immigration court in 2019 issued a final order of removal for Abrego saying that the government could deport it? We actually don't know that for certain. We don't have a copy of that order, right? The government, I don't know, lost it, right? All they had was a copy of the second order with holding removal to El Salvador. So what that means is this administration tried on multiple occasions to send Abrego halfway around the world to a bunch of countries in Africa on the State Department's watch list as obvious retaliation. And they didn't have the paperwork to deport him at all. So on December 11th, just before the holidays, Judge Exenis granted Abrego's habeas petition and ordered him released from ICE custody altogether. We talked about that in Episode 190. But I want to emphasize that Judge Exenis' order wasn't just about the paperwork technicality, right? Like that order tore into the Department of Justice for repeatedly lying to her in open court. Administration lawyers told her that Liberia was the only country that would take Abrego that Costa Rica had rescinded its offer or added contingency. And those were lies. And by the way, there are pending contempt proceedings before Judge Exenis for those lies. Yeah. So wonder of wonders, immigration judge Philip Taylor Suesponte, all on his own, at that point, issued a supplemental notice correcting a quote, Scrivener's error in Abrego's 2019 order with holding removal to El Salvador. Scrivener's error is like fixing a typo, basically. And Judge Taylor said, oopsie doodle, this order should have also said the respondent is ordered removed to El Salvador based on the charge contained in the notice to appear. That was like inserted before the bid about withholding removal to El Salvador based on, you know, Abrego's credible fear of being captured by gangs there. And the judge did it, what he claimed, Nunk Pro Tunk, which is Latin for now for then, meaning that the correction gets backdated to 2019 as if it had been effect for five or six years. Okay. And if you're not a lawyer and you're hearing Liz, I get that part sounds kind of crazy, like going back in time six years and Nunk Pro, but believe it or not, that's actually the normal part. One of the things that was true before Trump's second term is that the law mostly does not work by the incantation of magic words and pieces of paper and technicalities. Like, look, brass tacks, we do know by inference that there had to be a final order of removal against Abrego at some point, because if you're not going to be deported, there's no reason for an immigration judge to issue a second order of withholding for that non-existent removal. Yeah, or look, maybe Judge Jones thought that he had done it, maybe he believed that it exists. Look, there's a million people moving through immigration court, under Democratic presidents and Republican presidents. I don't know if it existed. I know that Judge Jones believed it existed. Yeah, I think that's right. So whether there was a good faith basis for thinking that this piece of paper existed when it did, or whether they lost a piece of paper, like, I do not have a problem in the abstract with the government being able to say, come on, let's just reissue that piece of paper. Oh, I actually have a huge problem with it. I mean, look, when there's a legal principle that errors are construed against the drafter, in my understanding, the government is the drafter here, and if they screwed it up, that is on them. They don't go to like magic words back in time, hot tub time machine back, and be like, now there actually is one. Like, no, man, you screwed that up. Right? If an immigrant screws up their paperwork, that certainly construed against them, I think it should absolutely be construed against the government. Well, and to your point in a Brago's case, when he got here at age 16, he did not know that the asylum clock started running from the moment he arrived on American soil, and that expired when he was 17. And no, when he was a child, yeah, and there's no, there's no going back in time. So a very good point. The administration did next was even worse, which was they said, Oh, now there's a final order of removal. So that restarts the clock, and ICE can go detain him all over again without due process. Right. Just to be clear, they were saying this order existed seven years ago, and also it exists right now. It's brand new now, and also Nong Pro-Chunk it was there then. So under 8 USC 1231 A1, once DHS has a final order of removal, that starts the 90 day removal period for the government to make arrangements to deport you. And during those 90 days, a non-citizen quote shall be detained, which kind of makes sense, right? If the government is going to deport you and you know it, you have incentive to flee, and they have incentive to keep you where they can put you on a plane. But the mandatory detention provision is not open ended. They cannot hold you forever. And that's because of a 2001 Supreme Court case called Zadvidas v. Davis, where the justice is held that if a non-citizen is not deported during the removal period, there's another three months in which detention is presumptively reasonable. But once those total six months are up, if a non-citizen can demonstrate that there is no significant likelihood of removal in the reasonably foreseeable future, the government has to let them go. Right. So what the government tried to do here was leverage its mistake. And you know, you and I can go back and reasonable people can disagree over whether that should be, whether they should be allowed to correct that or not. But they said, oh, now because we made this mistake, now we get a new six month period to detain a break. Oh, and that's it's such bad faith and a terrible argument. And in February, Judge Xenie said, no, no, no, you don't. Nunk protunk means that what we're all pretending was a scrivener's error was retroactively corrected. That became administratively final in November of 2019. So that six month period ended six years ago. And under Zed Vitas, Judge Xenie's held that there was no significant likelihood of removal of a brego to any country in the reasonably foreseeable future. Here's what she said. Since a brego Garcia secured his release from criminal custody in August of 2025, respondents have made one empty threat after another to remove him to countries in Africa with no real chance of success. At the same time, respondents purposefully and for no reason ignored the one country that has consistently offered to accept a brego Garcia as a refugee and to which he agrees to go Costa Rica. So now the government has moved to vacate that injunction claiming that it has sealed the deal for real this time. They're going to send him to Liberia, Liberia is because that's one of the things that they kept saying, we're going to send you to Ghana and Ghana was like, you're what now? We've never heard any of that. And that happened about four times. Now for reals, they say that Liberia is willing to accept him and that sending a brego to Costa Rica where he does agree to go would be, quote, prejudicial to the interests of the United States. What's the prejudice? Well, we have a new memo today from acting ICE director Todd Lyons laying it out. He says, to date, significant US government resources and political capital have been expended, negotiating with the Republic of Liberia for its acceptance of third country nationals and specifically for its acceptance of Mr. Obrago Garcia. Those high stakes political negotiations at the most senior levels of government also resulted in reliable assurances that aliens removed to the Republic of Liberia will not be persecuted, tortured or refowed to a country in which they would be persecuted or tortured. Importantly, these assurances have been reviewed and considered at the highest levels of the United States government, including the secretaries of state and homeland security. In addition, abandoning agreements negotiated at the highest levels of government could cast doubt on the diplomatic reliability of the United States in relation not only to the Republic of Liberia, but also other nations with whom it negotiates on these and other matters. Okay, Todd. I guess some catch that catch 22. That's the best there is. To the extent that there was a legal argument here, let's try and unpack it. It is pursuant to 8 USC, section 1231, B2, sub-subsection C, which says that the Attorney General may disregard a non-citizens designation of what country they wish to be deported to if a couple of things happen, if they don't name a country promptly or if that country won't take them. None of those apply to Obrago. Costa Rica has said it will take him and he did name them promptly. But then sub-sub, sub-subsection 4 says that if the Attorney General decides that removing the non-citizen is prejudicial to the United States, he can be sent somewhere else. So, okay, the first problem here is that Todd Lyons works for ICE and he is not the Attorney General. He doesn't even work for her. He has no delegation of authority from Pam Bondi. So he doesn't get to decide shit. And nor does he work for the State Department, right? He works for GHS. Although I'm sure Bondi could work up something. Yeah. But that wouldn't matter because prejudicial has a defined meaning in the regulations that interpret that sub-sub-subsection, right? It is 8 of the Code of Federal Regulations, section 215.3. There are, I'm not going to read all 11 different ways that the Attorney General can make that determination, but they are very precise, right? They're things like if releasing that non-citizen to that country would harm our national security or the national defense. If he would go to that country and take confidential secrets or wage rebellion or war against the United States, that's what prejudice to the U.S. means. There's also a category if the non-citizen is a fugitive from justice, right? If he's on the run or even if he's a pending witness in another criminal case, right? If he's needed for a government investigation, those are the kinds of things where the Attorney General can step in and say, no, we have a superior need to keep that person here. Don't deport them. Embarrassing Marco Rubio is just not one of those 11 things. No, nor is like sweat equity. Like, well, we spent a lot of time working on it. That's not a thing. Yeah, we shopped him around to four different countries. Exactly. Exactly. So, look, I think the administration knows it's going to lose given that this motion to dissolve demands that Judge Exenius ruled by Friday, April 17th or else, quote, the government will consider the court to have denied dissolution of both injunctions, which like, go say bet there. And then, clearly, they're going to appeal to the DC Circuit and ultimately the Supreme Court. Two quick practitioner notes. First, just to unpack that time, right, that they set it four weeks in the future, you get 14 days for a Brago's lawyers to respond to that motion, and then the government gets seven days to file its reply. So that would be 21. So in effect, this is saying, after the close of briefing, Judge Exenius, you better rule on this motion within seven days. I mean, I do not tell judges in federal court when to rule on my non-emergency motions, right? I mean, in some sense, it would be better for them not to have a ruling because her ruling is going to say, like, what the hell? That's not how the statute works, you assholes. Well, and that gets to the deemed denied part, right? Like, I don't know if I'm Judge Exenius. The government could consider anything that I want. Like, what the government views does not give you the legal standing to file an interlocutory appeal, but it's stuck in my cross. We both know what's going to happen, right? Like, she's almost certainly going to rule within that period to avoid this unnecessary fight. And either way, the government's going to appeal. Yeah. So the DC Circuit, as we said, the emergency panels have been like crazy bad. I don't know how you wind up with like constantly Naomi Rao, Justin Walker, Gray, Rick Hatsis, the three Trump appointees, plus Karen LaCrafe Henderson, who is... A lot closely aligned. Yeah. Closely aligned, but not... She's been there a long ass time. She's been there since like the first Bush administration. Yeah. I gotta say, Liz, I'm a little bit optimistic. I'm not sure that matters, right? Because remember, this is the case where the Supreme Court has already said that Judge Excenis was within her authority to require the government to facilitate Abrego's return to the... I mean, I think... Okay. Not Alito, not Thomas, probably not Gorsuch, but like, I really think Roberts and Barrett are just... They're not going to put their neck on the chopping block for Donald Trump to exact petty revenge against somebody that's embarrassing. I don't know. What do you think? Honestly, what I think is that now that Kristi Noem has functionally left the building, rode her horse and her boyfriend off into the sunset or whatever... The girl at a South Dakota. Yeah, yeah. Right. I don't know where she's going. Like to be Starfleet commander or something. I don't know where the hell she's going. It doesn't matter. She's gone off to some made up position. I think that the Trump administration is trying to take down the heat on DHS in some sense. I don't know. Mark Wayne Mullen is definitely a bomb thrower, but I do think that they're trying not to be in the news all the freaking time. And so they might just let the guy go to Costa Rica because, remember, they've got this trial, and the trial is going to be bad for them. Yeah. I think that whatever... And it will be public, right? Like they can file all these motions under seal, but that trial is public. I think they don't want to go to trial in Tennessee. And so if it comes down to that, they'll just send him to Costa Rica. I think that's exactly right. Okay. We're going to take another quick ad break unless you're a subscriber, in which case you will not be taking an ad break today or ever. And we're back. Okay. Buckle up because Liz, I got a religious liberty story. Your favorite kind. And I find myself with some very strange bedfellows. Yeah, I know. Okay. Look, it is no secret, if you're a show listener, that I think from the moment that John Roberts became Chief Justice of the Supreme Court, this court has been at its most lawless when it comes to the establishment clause of the First Amendment, right? Which says that Congress shall make no law respecting an establishment of religion. Yeah. So for 50 years, the question of what constituted an establishment of religion was governed by this three-part test called the Lemon Test from the Supreme Court's decision in a case called Lemon B. Kurtzman. A law had to have a legitimate secular purpose. It had to neither advance nor inhibit religion, and it must not excessively entangle the government with religion. Now, some academics criticized parts of the Lemon Test, both from the left and the right, especially the event about what constituted, quote, entanglement. But by and large, it was pretty clear until the Roberts Court started burning it all down what the law meant. And then in 2022, there was a case called Kennedy versus Bremerton School District, in which the court more or less overturned Lemon. Yeah. And while the Supreme Court was eager to wipe out the Lemon Test, it had no idea what to replace it with since it was just. I think Jesus. They tend to replace it with Jesus. I mean, the law, you joke, but the law is in such a vacuum right now that lawyers are presently, as we record this, arguing in the Fifth Circuit that states can require public schools to post the 10 commandments in every classroom. And that sound you hear is my brain explode. I mean, like the only thing the Framers were more clear about was that the federal government couldn't quarter soldiers in your home. Well, it's a historical document, don't you know? Don't think you got away with winding me up about Kennedy versus Bremerton, right? That that was the Praying Football Coach case. That was the one in which Neil Gorsuch, writing for the right wing majority, said that Coach Kennedy was just engaged in direct, quote, a quiet, private, personal prayer. And that was such a preposterous lie that just as Sotomayor did a thing to sit that I've never seen the Supreme Court do before, and that was put in multiple photos to show that the majority was lying. She had these pictures of Coach Kennedy standing on the 50-yard line in his school uniform, hoisting up his little football helmet in the air while over 100 kids kneel around him in a prayer circle. He did these altar calls after every single football game at midfield in his quiet, private, personal, my ass. Right. So calm down, sir. That takes us to Friday. When the Supreme Court issued its one opinion in a case called Olivier V. City of Brandon, it was unanimous, 9-0, written by Justice Elena Kagan. Lawyers for the plaintiff called it a win for the right to share your faith in public and the judiciary protecting our constitutional right to spread the gospel. So are you for it or again, it's... Well, there is no 43rd amendment that says you have a constitutional right to share the Christian gospel, but I have to tell you, I agree with Justice Kagan. I agree with the Supreme Court because this case is not about religion. It's not about the First Amendment. It's really about how to interpret 42 USC section 1983. That's the Civil Rights Act of 1871. That is the federal law that lets you sue state and local law enforcement who violate your civil rights. And the court got this one exactly right. Okay. So let's start with the plaintiff, Gabriel Olivier, a Christian street preacher who, in the words of Justice Kagan, believes that sharing his religious views with fellow citizens is an important part of exercising his faith. So his, quote, vocation sometimes took him to the sidewalks where he could find sizable audiences attending events. Yeah. Okay. So Justice Kagan hasn't quite gone the full Neil Gorsuch on us here, but this does not accurately describe what really happened. Olivier, and let's quote him directly from the trial court, seeks to, quote, impart the message that everyone sins and deserves eternal damnation, but for Jesus Christ. So what he does is set up his little outfit outside the crosswalk that leads to the main entrance to the Brandon amphitheater, Brandon, Mississippi, which seats 8,500 people. So one particular, there's a Hank Williams Jr. concert going on. I'm picturing the Blues Brothers. And a lady named Heather Perry is trying to get to the show. Olivier starts shrieking into his megaphone, which is hooked up to an amplifier and a loudspeaker. There's a whore walking down the street. Then he says, nasty, nasty, nasty, grody, grody, grody, nowhere in the Bible does it say a woman is to be dressed half naked in the street at night. So another witness in the case is this traffic cop who confirms that Olivier targets single women and teenage girls, calls them fornicators and Jezebel's and whores. So I mean, it's kind of the Westboro Baptist playbook. Yeah. Yellow obnoxious shit at people. And then when they punch you for being a jackass, you get a free publicity and maybe a settlement and that's earned media, right? Yeah. So Heather said she wanted to punch him and like extremely fair. The cops said he frequently had to stop directing traffic and go escort pedestrians so they wouldn't like punch Olivier. And as you might imagine, people were trying to avoid this asshole when they're trying to go to the amphitheater. So now everyone's walking across the main highway instead of using the crosswalk, which is a traffic hazard. Yeah. And so all of that in 2019 led the city of Brandon, Mississippi, to adopt ordinance 50-45, which says that anyone engaging in protests or demonstrations, regardless of the content and or expression thereof, while there are live ticketed concert events at the amphitheater must do so in the designated protest area, which is away from that crosswalk. And look, I love designated protest areas, right? Like there's a long history of protests as consciousness raising, right? And you need to be in front of people to raise their consciousness, right? But at the same time, these sorts of local ordinances are presumptively valid in a 1989 Supreme Court case, a landmark decision called Ward versus Rock Against Racism. The Supreme Court said that localities can place restrictions on the time, place, and manner of speech without running afoul of the First Amendment or needing to satisfy strict scrutiny, so long as they do so in a manner that is content neutral, right? And is it always really content neutral? No. Okay. But bottom line, I think it is pretty unlikely that Brandon Mississippi, you know, deep red county that went 75-25 for Trump, I don't think they're harboring a secret grudge against Christians. Well, I mean, I think they're harboring a secret grudge against a person who says that you're a whore, but okay. So in 2021, Olivier shows up outside the amphitheater during a live concert to do his evangelism. He is stopped by the city's chief of police who hands him a copy of the ordinance and orders him to go to the designated protest area. Olivier wanders over there and says he doesn't like it, because it's too far away and he can't hardly scream at anybody from over there. And so he comes back to scream at women in front of the amphitheater and the cop writes him a ticket. Olivier pays the $304 fine and gets a year's probation during which he, you know, somehow manages to behave, breaks his megaphone, whatever. At the same time, Olivier files a lawsuit under 42 USC section 1983 seeking a declaratory judgment that the ordinance is unconstitutional and an injunction prohibiting the city from enforcing it. And that's when Olivier runs up against a jurisdictional bar, because the Supreme Court has said that you can't file a civil 1983 claim as an end run to challenge your criminal conviction. It comes from a case called Heck versus Humphrey. Let me draw this one out. It's a little weedy. Heck was convicted of involuntary manslaughter. And while his appeal of that conviction was pending, he also filed a 1983 claim against the prosecutors. And that 1983 claim said that they had destroyed evidence and illegally framed him. And if he had won on that 1983 claim, then he would have had a legal determination by a court of competent jurisdiction that he was being wrongfully imprisoned. And he could have taken that civil judgment into federal court and essentially forced it on residue to Cata grounds to grant the writ of habeas corpus, right? He would say, look, a court is already determined. I shouldn't be here, right? They framed the evidence. So the Supreme Court essentially said, no, we're going to cut this off at the past. They said, when a state prisoner seeks damages in a 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the validity of his conviction or sentence. If it would, that 1983 complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. So Olivier had initially asked for damages, but when he appealed to the Fifth Circuit, he dropped that request. He says, I'm only asking for prospective injunctive relief. I'm not saying my conviction was invalid because I paid my 304 dollars. I just want to be able to do it and not get arrested again. And Olivier managed to draw a panel at the Fifth Circuit that contained a George A.W. appointee and an Obama appointee and a 2022 Biden appointee, Dana Douglas, who wrote the opinion. And she says, no dice under our existing precedent, the injunction you want would necessarily imply your conviction was invalid, so you're out of lock under the rule and hack. Yeah. So Olivier first petitions for rehearing en banc from the entire Fifth Circuit, which you can understand that's not a very representative panel. And that petition for rehearing by the entire Fifth Circuit just misses nine to eight. It splits the Fifth Circuit right down the middle. Andy Oldham writes an impassioned dissent about how wrong the panel opinion is. James Ho writes another one. Those guys are such assholes. They both think that they're going to be appointed to Alito State. And I deeply am deeply annoyed that I have to be on their side. I'm with you. Like I said, strange bedfellows. But yeah, I'm with Oldham and Ho and against the most left leaning Fifth Circuit panel that you could comprise. Like so anyway, he loses on the petition for rehearing en banc. Olivier petitions the Supreme Court for certiorari. And last Friday, the Supreme Court reversed the Fifth Circuit said, yes, you can bring a 1983 claim despite a prior conviction. So long as what you're seeking is prospective injunctive relief, you're not trying to relitigate your conviction. You're not trying to do an end run around habeas corpus. And and Justice Kagan puts the analysis pretty simply. She says, when we're talking about your civil rights, applying the rule in heck here, barring prospective injunctive relief would put you to a Hobson's choice, right? Like either you have to break the law again. And like in Olivier's case, that would trigger that probation, right? He would go to jail and like, or the other horn of the dilemma, right? Which is that you self censor, right? You just decide that you're not going to engage in freedom of expression. And the reason you're put in that position is because you paid the ticket last time. Right. And like, that's crazy, right? This is not a situation where you've got somebody trying to evade a habeas preside, right? Like, and I want to be clear here, I think ordinance 50-45, that the Brandon Ornate, I think it is constitutional, right? I think it is very clearly a time, place and manner restriction. I think Olivier is going to lose on the merits of his 1983 claim. I don't think it's going to be close. But I do want him to be able to make that argument, right? And I certainly want other protesters to be able to go into federal court and argue that an ordinance rule statute violates their First Amendment rights, even if they previously been convicted, they, you know, pled guilty, paid the ticket. So I think the Supreme Court got it right. Yeah, I think I would largely agree with you. Okay, that is going to do it for us. Unless you are a subscriber, in which case you should stick around, because we're going to talk about the Supreme Court's attack on Andrews Alma Mater. Thank you guys so much for hanging out with us. We'd love for you to become a subscriber, and we would love for you to leave us a five star view on your podcast platform of choice. Will you act Thursday with more written content and Friday with another show.