Ep 237 — A Slush Fund By Any Other Name Would Still Reek

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Welcome to Law and Chaos, where the Trump administration has until Friday to certify that the slush fund is really dead. They are not suspending habeas corpus yet, and the Kennedy Center is free of Trump but still controlled by his crooked minions. We've got a lot to cover, so let's get after it. Hey guys, I'm Liz Dye, and with me as always is Andrew Torres. Andrew, how are you? I am great, Liz. How are you? I'm great. I had such a nice weekend. I did so much work, and I did so much family stuff and social stuff, and I'm like, I'm killing it. Yes, you are. I also had a great weekend. That's good. I am looking forward to it. As soon as we finish this record, I have my first Krivvij match, so we're going to see how that goes. I'll update you on my Friday show. Yeah, you're sharking it. Okay, we have so much to talk about today. It is a mostly Trump show. We have one non-Trump story in our docket alerts, and the subscriber bonus is not about Trump. It is about a Trump-adjacent figure. But first, duck and alerts. Okay, we will start at the Supreme Court, which did not issue opinions today, although we do expect some Thursday. The justices did issue orders, though. Yeah, maybe that distinction isn't clear to our non-lawyer listeners. Opinions are when the Supreme Court rules on cases that have been fully briefed and taken to oral argument before. Orders are when they either agree to hear cases, right, by granting a writ of certiorari, or dispose of them without a hearing, and usually that's by denying certiorari. So the orders list from Monday morning denied various requests, like motions to file under seal, motions for habeas corpus, petition for mandamus relief. They did the Supreme Court granted certiorari for the next for the fall 2026, 2027 term in three cases. They denied cert in about 40 others. Yeah, so the whole orders list is usually about five or six pages, and there will be roughly that many certs on each of these lists. Yeah, and often that orders list is followed by one or more justices writing to say that they disagree with the court's decision not to take a case. And remember, a grant of certiorari requires only four of nine justices. So this morning, Justice Alito vented his spleen, not an uncommon occurrence, over a death penalty case where the Supreme Court refused to sweep in and let Alabama execute a man after the state court ruled that the prosecutor improperly made reference to his failure to testify at trial, which is basic fifth amendment stuff. No person can be compelled to testify, right? Like, you have an absolute right in your own defense not to take the state. Yeah, that train, the Alito train is never late. The orders list is also interesting because it tells you what cases the justices will be hearing next term and what lower court, you know, circuit court of appeals precedence that it's going to let stand. So this morning, the Supreme Court granted certiorari in a case involving immigrant detainees who have committed a felony. So the operative question there is how long the government can detain someone without granting them a bond hearing? Pretty important question, right? And what standard the government has to meet in order to keep people in custody if they have no immediate plans to deport those people, i.e. folks on the non detained docket? Obviously, Trump's Department of Justice would like to hold people forever. Right. The Supreme Court also granted cert on a challenge to Florida's use of six person grand juries and felony cases. I cannot believe they're still doing that. Well, we will find out if that is legal in the next year, I guess. Okay, we will keep an eye on SCOTUS as you said Thursday is an opinion day and there are a lot of important cases outstanding. Yeah, and the term is coming to a close. And the term is coming to a close. There may be a retirement of one extremely cantankerous justice. Do not say that. Yeah. All right. Today, we have a couple stories involving the U.S. Attorney's Office for the District of Columbia and its esteemed leader, Jeanine Pirro. Do I detect a hint of sarcasm there, Liz? Maybe a hint. So we'll start with an article from the Wall Street Journal where reporters Dylan Tokar and Gina Hebe say that Pirro's office is investigating major banks for criminal debanking. Okay, this one pisses me off a lot. Look, here's what happened. Okay, Donald Trump tried to overthrow the government in 2020 and 2021 after which multiple banks told him that they did not want to do business with him because he was too toxic, which is a totally normal, a totally legal thing to do. It is in fact, a very prudent business decision to make. I mean, Bank of America, for example, just paid $75 million to victims of Jeffrey Epstein. And those plaintiffs claimed that Bank of America's failure to close Epstein's accounts allowed him to continue victimizing them. And that's a pretty solid claim. I mean, you know, that's why Bank of America paid out those claims. But Trump is currently suing J.P. Morgan and Capital One for closing his accounts in 2021. I think the theory is fraud that they misrepresented their corporate policies or some such whatever these lawsuits are basically DOA. Right. Companies have the absolute right not to do business with you. I mean, they can't discriminate against you because you're pregnant or you're not white, but they can they can choose not to hold your money. But now Janine Pirro is trying to make tortuous debanking a thing by subpoenaing banks. Yeah, she's like the failingest US attorney in the country. And you know, that's a stiff competition, but but she's doing it. She's constantly like, I have invented a spiffy new legal theory. No one ever thought of it before, but it's totally going to allow me to lock up all of Trump's enemies. Spoiler alert. No. No, it's it's not. And in other Janine Pirro news, remember how she tried to subpoena the Federal Reserve and Jerome Powell over supposed fraud in the renovation of the Fed building. And Chief Judge James Bolesburg quashed that subpoena because he said it was plainly issued for an improper purpose, namely to harass Powell and urge him to quit so that Trump could replace him as Fed chair. Right. That ruling was deeply embarrassing for Pirro, of course. And it's also inconvenient, right? Because she wants to reserve the right to go back and harass Jerome Powell some more. And an opinion on the books calling her investigation and abuse of prosecutorial authority would get in the way of that. So she asked Judge Bolesburg to vacate his hold. Yeah. Now, normally, if you don't agree with the court's ruling, the thing you do is appeal it. But the government did not do that here because Senator Tom Tillis said he wasn't going to vote to advance Trump's nominee, Kevin Warsh, out of banking committee until the investigation into Powell was dropped, which would have meant that Trump was stuck with Powell indefinitely because he couldn't get Warsh confirmed to, you know, to replace Powell as Fed chair. And so Pirro tapped out and didn't file an appeal because of the political exigencies of this situation. And so she asked Judge Bolesburg to just kind of give her a win because not her fault. She wasn't allowed to go to the DC circuit and get him overturned. Yeah. Surprising no one. Judge Bolesburg said no. Come back with a legitimate subpoena and it'll be fine. Otherwise get lost. You know, I kind of blame Dick Wolf for all of this. Wait, what? Okay. So member Wolf was the producer of like all of the law and order spinoffs and the original, right? That's how I got through evidence class in law school. Okay. So everyone in America spent the past two decades basically marinating in law and order. And we watched prosecutors who were like the heroes in D.I.T.E. defendants on new novel untested legal theories. And the series treated that like it was a normal thing, which it absolutely isn't. Certainly not for federal prosecutors. I mean, you know, state prosecutors are more kind of loosey-goosey, more willing to take a swing. And that's not a diss on state prosecutors, but federal prosecutors did not ever want to lose and were small C conservative. And now you have Jeanine Pirro out there being like, I have invented something crazy. And like, yes, you have invented something crazy and is not going to work. And it doesn't, it doesn't strike the public as crazy because we spend all everybody spent an entire generation being like, dun-dun, crazy stuff, you know? Okay. On the one hand, that's really interesting. And I think it's exacerbated by, on law and order, you have the cold open, right? You see that the criminal is guilty. And so the idea that you are in search of a legal theory for somebody that you know is 100% guilty of some kind of crime feels right. It hits those emotional sentences. On the other hand, like, I'm not sure all of this could be laid at the feet of Dick Wall. Yeah, but it is, you know, like, copaganda, man. We are swimming in it. Okay. Let, let us end this intro segment with a fun story about our doofus of the day. Really doofuses. Doofy, maybe? Okay, Boomer. This is another story about lawyers submitting briefs with citations hallucinated by AI. But this one has a twist because this time, both sides submitted filings with fake citations. Well, that's a new one. Yeah, so this case is in federal court in Mississippi. And what happened is an out-of-state party sued the city of Aberdeen, Mississippi, and the city, which was the defendant, hired out-of-state counsel and local counsel. And the plaintiff also had out-of-state and local counsel, right? So, so there's, there's really four teams of lawyers here, two on each side. The Pro-Hawk lawyers, that is the out-of-state counsels, did all of the drafting, and the local counsel signed them. But nobody in any of these four firms reviewed the citations to see if they were real. Okay. Look, I want to start this by admitting I am old. I'm not a Boomer, Liz. We are at the same age. But back in my day, the first thing you did, even as local counsel was, when you got the other side's brief, you pulled all the case citations, you downloaded those cases from Westlaw. Like, I just do not understand how this keeps happening. Okay. I get what you're saying, although I think the reliant, you know, you were in a big firm that had unlimited Westlaw, and maybe small firms don't have that. But what confuses me is that there are a whole bunch of AI programs out there right now that will actually check all the sites in a given document before it goes out the door or when it comes in the door. I mean, it's clear from the testimony in this case that the out-of-state lawyers didn't have access to a database that included local cases from Mississippi. But still, I mean, figure it out, right? You're getting paid to produce a real document, you know, by a month of your AI fact check or site check service from Mississippi or whatever. I have a solo shop now, like unlimited Westlaw is not that expensive. Okay. So anyway, in this case, Judge Sherri and Acock and her law clerks figure this out and they haul everybody on both sides in for a show cause hearing, at which point all the lawyers admit that they have violated Rule 11 and basically throw themselves on the mercy of the court. And Rule 11, remember, is the rule of federal procedure that says that a lawyer is required to use reasonable diligence in submitting a pleading to make sure that it is appropriate statement of law and that is not for any improper purpose, such as to vex harass or annoy the other side. Right. But Catherine Williams, who's the pro-hoc lawyer for the city, it makes it worse for herself in three ways. So first, she tries to tell the court that she has a scheduling conflict and can't be at the show cause hearing and no, no, you do not. She cites this hearing in New Jersey, but actually that hearing had already been canceled when she tried to tell the court in Mississippi that she'd be unavailable. Judge Acock said, though the court does not factor this conduct in determining the appropriate sanctions because Williams was first confronted with this issue at the hearing, it nonetheless finds it noteworthy to mention. Whoa. Yeah. Not good. Substantive. Don't lie about your calendar to the court. No. Substantively, Williams tried to convince the court that it was harmless error to file fake citations because she is actually right about the law, which is totally contrary to president. Also really, really stupid. Like, you have been caught taking your medicine. Don't try to deflect particularly because Williams is a partner and admitted at that hearing that her firm's policy is that all lawyers must verify the AI citations. And she just didn't. So the judge disqualified all the lawyers, both local and Prohawk on both sides. She fined them all a few thousand bucks each and she barred the Prohawk Council for practicing in the Northern District of Mississippi for two years. Okay. Well, I think we all learned a lot here today. And if you are a subscriber at any level, stick around for our subscriber bonus on Texas Attorney General Ken Paxton getting kicked in the jimmies. Ken Paxton, there is another character who could be the doofus of the day every day. He is just that prolific in his doofusery. Okay. And otherwise, it is Tuesday, the day that we thank all of our wonderful new subscribers at patreon.com slash lawn chaos pod. Thank you to Steve, Astrea, Natalie Bodiker, Tadeus Ursini, Carl and Doc Farnsworth. And on sub stack at lawnchaospod.com, thank you to Laksher, Glenn, Steph, E-Mixa, Shannon, Jen, and McKenna Wood. Welcome back. Thank you guys so very much. We could not do it without you. Thank you to all our new subscribers. And if you'd like to join their ranks, you know how to do that, just head on over either to our sub stack on lawnchaospod.com or to patreon at patreon.com slash law n chaos pod. Sign up to give us as little as a buck an episode and you will get these episodes ad free. You will get our bonus geekery episodes once a month. I'm having a lot of fun with those. You'll get all of our special goodies. And most importantly, you will help us continue to do this thing that we love so much. And for everybody else, we will see you on the other side of this ad break. Okay, let's talk about the Kennedy Center, Liz. Okay, wrote about it for our blog yesterday. But I do want to talk about it here because it is really such a perfect example of the union of corruption and bad lawyering. Yeah. Okay. So to recap, last year, Trump fired the entire board of the Kennedy Center and appointed a bunch of cronies instead. And he made himself chair of the board. He appointed Rick Grinnell as executive director. Grinnell then said about firing everyone and saying that anything that wasn't funded by ticket sales had to be cut, which is a fundamental misunderstanding of both charities and public institutions. The Kennedy Center was created by Congress to support the arts. It's a public good. It receives a congressional allocation of tens of millions of dollars every year, and it raises enormous sums through private donations. This is not the Ticketmaster arena that has to pay its own way. Treating this as if it's a for-profit business is really, it made a betrace that they don't appreciate the arts. They don't appreciate public goods. I mean, these are the same assholes who are like, we should get rid of public libraries because it's socialism. The arts are important to any strong nation. I mean, this is one of the things that I mean, one of the reasons that this place is named for John F. Kennedy is that Kennedy said really loudly, a great nation must have great art. And turning it into the cinema plex, it has to pay its own way. A UFC fight on the White House South Lawn. Kill me. I can't even talk about that. Okay. Well, but let's actually talk a little bit about the Washington National Opera's lawsuit in connection with the story because the Washington National Opera, which was affiliated with the Kennedy Center and has been since 2011, said that Grinnell tried to force them into a totally unworkable commercial funding structure. So I want to read a little bit from their lawsuit. The Kennedy Center pressured WNO to meet a new net neutral requirement under which WNO productions could not proceed unless fully funded in advance through projected ticket sales and confirmed sponsorships. That was a fundamental shift from the framework reflected in the 2024 agreement, which contemplated that WNO's annual budget would be balanced through a combination of earned revenue, philanthropic contributions, endowment distributions, and the Kennedy Center's annual contributions, not on a production by production basis. Because opera productions are planned years in advance and funded over time, the Kennedy Center's new business model was incompatible with WNO's operations. And indeed, with the operations of any major American opera company and significantly constrained WNO's ability to plan future productions. Right. I mean, that's exactly what we're saying. They want to treat this like a for-profit business and not a public good, which is gross and also totally in not compatible with the congressional statute, right? Congress established the Kennedy Center to support the arts, not to be a commercial business. Well, and two more points on that. Number one, it is a civic asset. Having an opera in your community enhances the value of that community. And number two, this is functionally a death knell, right? Like you cannot know, as it says in that allegation, the way in which these major opera companies are funded is primarily through donations. Absolutely. So WNO sues in the court of federal claims. Remember, that's the court that you go to to get your money back when the government stiffs you. And the opera says the Kennedy Center took their $17 million endowment because they didn't follow these new procedures and won't give it back. The lawsuit says that the center has actually used the money as collateral for its own line of credit. Yeah, this lawsuit was really shocking. Yeah. Apparently, the opera had outsourced its entire development back end to the center, right? Because, as we said, the center's mandate is to support the arts, right? And it had this resident opera company and they were totally intertwined. But then when Grinnell came in, he fired all of the development employees, including all of the employees, which were they were under contract, right? That the Kennedy Center, I think, was supposed to keep 10 development employees dedicated to the opera. But they just didn't. And then when a donor tried to make a $50,000 donation, there was no one there to run her credit card after which she said, screw this, I'm not donating to a shi-cho organization like this. And look, who can blame her? Yeah. So remember, at the same time that this is going on, the board of the Kennedy Center was arguing in a separate lawsuit that it would be fiscally imprudent to take Donald Trump's name off the Kennedy Center, that, you know, that would impede their donor stream. But at the same time, they were pissing off actual donors and stealing the opera's endowment. So it's not a great look. No. So, okay, we've talked about the case before. Ohio Democratic Representative Joyce Beatty, who's an ex-officio member of the board, sued to block the name change to the Donald J. Trump and the John F. Kennedy Memorial Center for the Performing Arts. And she sued to block them shutting the entire company down for two years to complete construction, which they did after it was clear that they had so many cancellations in response to the renaming that there wasn't going to be a season. The trial judge, Christopher Cooper, issued summary judgment on the issue of the name change. Since the entity was created by Congress, it was named in the statute, and it can't be renamed simply by amending the bylaws. And the judge issued a preliminary injunction blocking the two-year shutdown, because the board did not even satisfy the minimal standard for approved and fiduciary. I was not surprised at the injunction to take the name off of the center, because again, black letter law, it's right there in the statute. But I was surprised at the preliminary injunction blocking the shutdown order, because all this administration, all the all the board had to do was satisfy the very minimal standards required of trustees. They have wide discretion. Now, they are required to consider the long-term health of the institution, their statutory mandate to put on performances for the life of the entity, and the physical needs of the building. And in any way any of that, they didn't pretend to consider the needs of the institutions. They just took their marching orders from Donald Trump, and that will not suffice. Right. So midnight on Friday the 12th was the deadline for Trump's name to come off the front of the Kennedy Center. And it was not until after the close of business on the 11th that the center noticed an appeal to the DC circuit, and then asked Judge Cooper to stay his own order that was already two weeks old. That motion to stay the request was pretty desultory. It was just like five pages. They sort of mumbled about damage to fundraising, and it would confuse the public if the name came down and then had to be put back up later. Yeah, they were totally phoning it in on that one for a couple of reasons, right? Because this is a procedural requirement that before you can go to the circuit court of appeals and ask them to stay, you have to first ask the trial court judge to stay its own order. And they knew they were going to lose, which they did. Judge Cooper said that the center had not demonstrated that they will be irreparably injured absent to stay, given both the de minimis resources that would be required to restore the center's current name, the one with the Donald Trump and the Donald Trump in the event of a successful appeal, and the lack of evidence in the record linking increased donations to the current name. Right. So then the center docketed an emergency request for stay at the DC circuit. That is the one that they cared about. But in this, they made a brand new argument. A thing that is categorically not allowed. You cannot raise new arguments on appeal. And yet here is what they said. Without the name Trump on the building, our fundraising will not only come to a halt, but any and all monies raised or committed would be obligated to be returned, refunded, or terminated. The bylaws of the Trump Kennedy Center for the Performing Arts Foundation state unequivocally, the corporation may make donations to the center in support of its educational, artistic, cultural, and performing arts functions provided, however, that in so doing, the board of directors shall condition such donations to the center upon the name of the center remaining unchanged as the Donald J. Trump and John F. Kennedy Memorial Center for the Performing Arts. In the event the center should at any time remove the name of President Donald J. Trump from its filings, marketing, branding facade, or other affiliated location, the corporation shall recover from the center. The total of all gifts, donations, and contributions made to the center by or on behalf of the corporation. The reason for this clause is that people and companies who have given or will be giving millions of dollars to the center were only willing to do so with the name Trump on the building. Many did it because they loved the concept of two great presidents, one Republican, one Democrat, working together as one in many ways, a bipartisan relationship. All of this money, hundreds of millions of dollars will have to be immediately returned or not received by the center. I have a lot of thoughts, but first, this is even worse than a new argument, right? Because this is a factual assertion and it is not something that they said at any point prior to that emergency motion to the DC Circuit, which strongly suggested to both of us that the board amended the bylaws after Judge Cooper issued his order in order to point a gun at the institution and effectively threaten to shoot the hostage if the DC Circuit didn't give them what they want. Yeah, let me spell that one out. The board is saying that it has now changed the rules, the bylaws, to require the center to return all donations and to cut off all future funding if they don't get to keep Trump's name on the building. And keeping Trump's name on the building is illegal, as the court has already told them. So what they're saying is, let us do something illegal, or we will burn this place to the ground. And they're saying that five seconds after the trial court called them out for failing to live up to their fiduciary duty, right? Like now they're back threatening to voluntarily surrender. What is at least tens of millions? Hundreds, could be hundreds. They say in the pleading, hundreds of millions of dollars in funding to deliberately harm the institution to which they have a legal fiduciary duty to protect. Right. So notably, these bylaws with the new change are not attached as an exhibit. So you can't see when this change took place. I'm quite sure that it took place last Thursday. And these bylaw changes are not available online. Yeah, what are available online are the bylaws as of 2023, which do not add this. Also, notably, this emergency motion was signed by one and only one lawyer, Assistant Attorney General Brett Schumate. The motion for stay filed before Judge Cooper had three lawyers on it. And that was filed a couple of hours before this one was signed by Schumate alone. Yeah, well, Schumate was out of luck because he drew a panel that is judges Millette Wilkins and Katzis, Katzis being the only Trump appointee and over no noted dissents. Yeah, not even Katzis. They denied the motion to say, you know what, that doesn't surprise me at all. People who live in D.C. have really strong feelings about the Kennedy Center and saying, I'm going to burn down the Kennedy Center. I don't think Republicans, I'm not sure that you could find a panel on the D.C. Circuit except for maybe Justin Walker. Justin Walker lives in Louisville. Right, right. So he didn't give a shit about the Kennedy Center, but people in D.C. gave a shit about the Kennedy Center. That's why there were hundreds of them out there on that night. After the D.C. Circuit said, we're not going to stop this, the center erected this giant scaffolding and there were hundreds of people in the street and it was very hot on Friday. Very humid, very hot, unpleasant and, you know, D.C. is not that pleasant in the summer. People were watching online, hundreds of thousands of people were watching online and to stop Trump's opponents from getting a, you know, toppling of the Saddam statue moment, they unfurled these tarpolines, drapes basically, in front of this elaborate scaffolding structure to obscure, to hide, to ensure that nobody could film the letters coming off of the wall and they left it there to block off the Kennedy Center because if Trump can't have it, nobody can. It's pretty gross. Yeah. And as of this recording, that drape is still up. Yeah. I suspect that there will be legal action. There was another amicus brief filed. There's been lawyers filing into that D.C. Circuit case. I think we're going to hear about it. And I think the parties are going to ask Discovery for those new bylaws too. So can't wait to keep following that. Yeah, cannot wait. Okay, we're going to take another ad rick and we will be right back to talk about Donald Trump and the slush fund. And we're back on Friday. We talked about the so called anti weaponization slush fund that would have paid out $1.8 billion to Trump's co conspirators and trying to overthrow democracy. The administration publicly insists that the slush fund is dead. But reporting from the Atlantic, Sarah Fitzpatrick suggests that the administration is still trying to shovel tax dollars to insurrectionists, which seems unbranded. So now the question is, how do we keep up the pressure on all fronts, including in the courts? Right. So since this article, there were two legal developments. The first was in the case, Floyd v. Department of Justice, which is in front of Judge Leonie Brinkham in the Eastern District of Virginia. Judge Brinkham had issued a temporary restraining order prohibiting the government from taking any action to create or operate or disperse money from the anti weaponization fund. Now that TRO was set to expire on Friday. The government wanted to be out from under this case. So it argued that an injunction, a longer injunction, was no longer necessary since Todd Blanche had gone before Congress and Pinky promised that the fund was dead, although he refused to do it under oath or in writing. That argument persuaded Judge Richard Leon in DC not to issue further injunctive relief. But Judge Leon issued his ruling before Fitzpatrick's article in the Atlantic came out. So in this case, the plaintiffs actually filed her article with the court as a notice of supplemental authority. And I don't think it takes much to infer a straight line between that article and the preliminary injunction that Judge Brinkham issued on Friday. Let me let me read a little bit from it. It says, so the order starts off by repeating the same language from the TRO that prohibits the government from creating, operating or spending money on the fund. And then it also prohibits, quote, destroying any documents related to the anti weaponization fund, its creation, its procedures or claims submitted to the anti weaponization fund, or reconstituting the anti weaponization fund under a different name. Yeah. And then Judge Brinkham did something pretty clever. Like Judge Leon, she forced the government to come into her courtroom and make representations on the record that the fund was dead, which it did. And remember, we played those clips of Todd Blanche in Congress before this subcommittee and saying, well, I've said it, it's fine, although he refused to say it under oath and he refused to say it in writing. When you have a lawyer come in and say it to a judge's face, that is binding and there will be consequences for the lawyer. And then she said, to avoid any further litigation, acting Attorney General Todd Blanche, Associate Attorney General Stan Woodward and Treasury Secretary Scott Besant must each personally and individually file a declaration under penalty of perjury that they will not take any action to create or operate the anti weaponization fund. And that the anti weaponization fund will not proceed in any manner or under any name. So those three must file a declaration by this coming Friday, or she's going to let these plaintiffs go forward with their claim. So that's a pretty persuasive carrot and stick. We will see if they if these guys want to do it. If they want, I mean, because I think that they do have plans to do it in a slightly different way. Yeah. Going forward. And I don't think that they want to get cornered into making a representation to the court that they intend to undermine, let's say, by doing something which is functionally the same thing. Yeah, I honestly have no idea how that's going to go. So we will be watching the docket late into the night. I think it will be extremely carefully worded. I agree with that or yeah, there are lots of ways they may try and get around that. But I think Judge Brinkham is kind of cottoned on to what they're trying to do here. For sure. Other major development is still ongoing. That is in the underlying case of Trump the IRS that that was the one that led to the creation of the anti weaponization fund in the first place. That was the $10 billion lawsuit. It was filed in the Southern District of Florida. It drew Judge Kathleen Williams, a Democratic appointee. And as soon as that happened, it looks to me like Trump set things up so that he could settle with himself without Judge Williams's oversight. And the biggest procedural gimmick that Trump used was to file multiple extensions of time so that the government didn't have to actually answer his complaint. And that's because under rule 41 a of the federal rules of civil procedure, if you try to dismiss your case after the other side has answered, that requires a court order of dismissal. And it is by the language of the rule on terms that the court considers proper. But if you dismiss before the other side answers, you can do so by just filing a notice of dismissal. That that doesn't require court approval. It becomes effective immediately. Right. So he made sure that the government, which he controls since he's on both side of this lawsuit, never put its fingerprints on this case and that there was no way for Judge Williams to weigh in on the propriety of it. And that meant that the case went away without the court getting to look at the settlement. And Judge Williams had no choice but to dismiss it on May 18. But the next day, 35 retired federal judges moved to appear in the cases in Meekie. And they filed this motion for reconsideration, urging Judge Williams to reopen the case to investigate whether the settlement was a fraud on the court. Yeah. I want to delve into another little bit of procedural geekery here, which is ordinarily when a plaintiff dismisses their case, that deprives the court of jurisdiction. Right. The trial court can't do anything else because there's no live case or controversy for the judge to do anything in. The judge's request was to reopen that case under Rule 60 of the federal Rules of Civil Procedure, at which point then everything would be back on the table. Which is not exactly what Judge Williams did. Right. She did not reopen the case. What she did was note that in even closed cases, the court still has collateral jurisdiction to investigate attorney misconduct. Okay. So what she did here was she said, I am not going to reopen the case to see if there was fraud. I'm going to go in there and see if the attorneys lied to me. So you attorneys who were involved in this case, you tell me by Friday, June 12th. Exactly what happened here. I want to know about the charges that you colluded, whether the parties are truly in first, the assertion that the dismissal in this case was premised on a deception by the parties. And remember, the parties here are Trump, the government, and Trump, the plaintiff. Right. And three, the question of whether this case should be reopened because the court was a victim of the front. So she's once again saying, I don't have control over the IRS and I don't have control over Donald Trump, but you know who I do have control over? You jackasses who entered your appearance in this case. So you, Alejandro Brito, Trump's sparkle magic lawyer, you get your ass in here and you explain to me why you didn't violate your professional obligation to me. Yeah. On Friday, Brito filed that brief on behalf of Trump. And Liz, I might have to do a future Andrew was wrong segment because I have said on the show, I did not think this case is still hasn't. But Trump's lawyers seem to be doing their damnedest to make that happen by filing unbelievably stupid shit. So let's talk about it. Laugh a little bit. Be gleeful. The brief that Brito filed in response to that request to answer those three questions was 20 pages long. And of those 20 pages, the first 17 do not answer those questions at all. Instead, they insist that the judges lacked standing to intervene and therefore the court can't grant the relief that they want, which as you might notice, Liz, like, this is not responsive. Well, I have made my opinion about Alejandro Brito known on this show already. But okay, in those 17 pages, Brito's core argument is, I don't really have to answer whether there was collusion between Trump on the one side and the IRS and the Department of Justice on the other side, because even if there was collusion at most, that would establish that there was no live case or controversy. And if there's no live case or controversy, then the court has no jurisdiction and the remedy is to dismiss the case. And he put this, I think, very stupidly and very indignantly, where he says the requested relief is incoherent. Movements, that's the judges, asked the court to reopen a case that they simultaneously insist the court lacked jurisdiction to hear. But if the court lacked jurisdiction, the only thing it could do upon reopening is dismiss again, this time for want of jurisdiction. Either way, the case ends, and either way, the settlement, which does not depend on the court's jurisdiction, stands. Movements thus seek an elaborate procedural exercise that changes nothing except to invite the court to opine on matters outside its power. Well, I'm not really sure, first of all, about the wisdom of a strategy that depends on telling the judge she has no power to ask you about a thing, which she has already asked you to. Second, that's not the law. If I sue you, Andrew, in the U.S. District Court for Hawaii, and I submit a filing with a bunch of fake A.I. sites, just as a, for example, the judge is going to dismiss the case for lack of jurisdiction, since neither one of us lives in Hawaii. But that will not get me off the hook for the fake A.I. site. She's going to sanction me because I engaged a misconduct in her courtroom. Federal courts do have inherent power to sanction litigants and lawyers who engage in misconduct, even if the case eventually goes away, which Judge Williams already explained in depth and with long, very real case sites in the order instructing Breeder to answer her questions. So I think that's right. I didn't really understand this strategy. But let's talk about the three pages that sort of tried to answer Judge Williams' question. The first was whether the parties were truly adverse. And here, Brito writes this paragraph where he says, three of the four plaintiffs, Donald J. Trump Jr., Eric Trump, and the Trump org, are private citizens. They are not officers or employees of the federal government. They brought suit against federal agencies for the unauthorized disclosure of their confidential tax information. That posture wherein private plaintiffs sue the United States for statutory violations is inherently adversarial end of paragraph. I mean, I kind of don't know what to say here. A lawyer, someone who was admitted to the bar, just told a federal judge that Don Jr., Eric, and the president's own business, from which he has not divested himself, have no connection to the federal government. I don't know. Yeah. But as bad as that is, I think it's better than Brito's answer on deception, which is like, just not to answer. I mean, the word deception appears in this brief one time. He's just not going to answer whether he deceived anyone, which probably wise. We're in this phase of the case where the only person who's, forgive me, who's dick is in the trap here is his. His client is already skated. He's the one who's never one. Jeff Williams is not going to hold Donald Trump the IRS that never appeared. Right. So, but he could get sanctioned here, and it's him. Yeah. I think that's right. And I think here was the strategic legal choice, right? Because that second question about deception that he just declined to answer, overlaps substantially with the third question about whether they perpetrated a fraud on the court, right? Like, you can't defraud the court without first deceiving the court. But their answer on the fraud question is to assert this very technical defense, right? So, Brito cites actual 11th Circuit law that says fraud must be proven by clear and convincing evidence, and that it has to be egregious conduct and all of that. And I'm like, that's true for as far as it goes, but it totally misses the point, right? Because in her order, Judge Williams didn't say that the 35 judges proved fraud or even that they had made out a prima facie case for fraud. And now it was up to Trump to rebut it. What she said was that they raised grievous allegations that troubled the court. And so she invited Trump to explain what the hell went on, right? Detail your position on these matters. Brito's job was to assuage her doubts. And like, I think he just made her doubts much, much worse. Yeah. And once again, what Brito's done here is to try and muddy the waters by saying, well, the standard for criminal fraud is really high. Friend, they're not talking about criminal fraud. They're talking about attorney sanctions, right? And so this all this yelling about fraud, completely irrelevant to the fact that you may well have deceived the court and failed in your duty of candor because you brought this collusive case, right? So the standard for criminal fraud has nothing to do with anything, right? You have not made this better for yourself. But that is on you, not me. Judge Williams's order also gave the 35 judges the right to file a reply brief by this Friday. I suspect that they will exercise that right. And I suspect they're going to notice. Oh yeah, you think? Yeah. Yeah. Okay. Stick tight. We're going to take a quick break. And then we will come back and talk about the Insurrection Act and whether Donald J. Trump can suspend habeas corpus just for funsies. And we're back. Okay. On Monday, Maggie Haberman and Jonathan Swan, who have a book coming out about the Trump administration, published an excerpt or an article about their findings in Times entitled Frustrated by Courts, Trump Wades Suspending a Constitutional Right. We will link to the article in the show notes. It divulges two confidential legal memos circulated to Trump's inner circle by Will Sharpe, who works in the White House as assistant to the president and the staff secretary. He's one of Trump's lawyers out of Missouri. He's pretty much the only one of Trump's lawyers who has not been yet nominated to the federal bench. So those two memos from Sharpe, one of them is dated April 29, 2025. It is titled The Rit of habeas corpus. The one from October is titled The Insurrection Act. And so in both of these, he urged Trump not to take maximalist legal positions that were being publicly kicked around. Specifically, he encouraged Trump's advisors not to recommend suspending the writ of habeas corpus for immigrants and not to invoke the Insurrection Act to send federal troops into American cities. Having read these memos, Liz, I do not get the sense that Sharpe is a rich Donahue or Steve Engel type, right? Like those were the two very conservative appointees in the Department of Justice who nevertheless fought tooth and nail after Trump lost the 2020 election against the work of Trump's more corrupt cronies who wanted to try and steal the election, right? Like they debunked stupid and bad faith arguments and threatened to stage a DOJ wide revolt if Trump put this toadie in charge and tried to order states to seize voting machines. I don't see Sharpe that way. I don't see him as a whist of wire. Yeah, he's not an ally. As far as I can tell, he is still a mega loyalist. As you said, still working in the White House today, still in their good graces. Sharpe, however, is a Princeton undergrad Harvard law guy who is smart, right? Right. He was one of Trump's lawyers out of Missouri. He represented Trump in several of the criminal cases. And actually, several of his partners have been given jobs in the federal judiciary, including one of whom I think was, I think he made it, I think his hearing was today, Justin Smith, who's nominated to the Ace Circuit. So I mean, I guess Sharpe knows if he just hangs around long enough, he'll get that life tenure. Yeah. And I see these memos as Sharpe warning the dumbest and meanest assholes in the administration that they could do something so legally indefensible that even this Supreme Court would make it bad for them. Yeah, I think of these memos as more strategic than policy. Right. He says, here's what the law is, and if you push too hard, you'll get an adverse ruling and we won't like it. Haberman and Swan characterized Sharpe as belonging to a small group inside the administration that, while supportive of the president's agenda, was trying to pull him back from the stuff being pushed by Stephen Miller, right? The maximalist, crazy lawless positions. They describe Sharpe as worried over self-inflicted damage by, quote, weak legal arguments that would invite sweeping rulings against the administration and would constrain everything that came after. Okay. So let's start with the habeas corpus memo came out in late April after the administration had invoked the alien enemies act to summarily deport immigrants to secot in El Salvador by claiming that they were gang members who were part of oligarch, you know, they were shock troops sent by the president of Venezuela and thus we were under invasion. Yeah. The Supreme Court said that those immigrants had a right to bring habeas corpus petitions after being removed. Yeah. And as we have discussed on the show many times, from our perspective, that was a terrible ruling by the Supreme Court for the rule of law, right? It took what you used to be able to bring as a single administrative law challenge to the deportation policy of the Department of Homeland Security and then kind of distributed that out, put the onus on each and every individual immigrant to bring their own habeas petitions. And because of the law of habeas, those cases have to be in the judicial district where you are being held. So it also incentivized the government to start shipping detainees to deep red states, particularly those in the Fifth Circuit. Right. And we've again also talked about the flood of thousands of thousands of habeas cases that resulted from this terrible decision. Right. But the White House, this memo shows that the White House also viewed the Supreme Court decision as a loss because it gave due process rights to these immigrants and allowed them to file habeas corpus petitions. And Stephen Miller was very hot to just round them all up and ship them out without any relief at all, any court review at all. And so what he said was maybe Trump should just suspend the writ of habeas corpus for immigrants or for everybody, whatever. But that would solve this problem. Then they could just round everybody up, which freaked out Sharf who distributed this five page memo summarizing the law of habeas corpus in really mild terms. He wasn't like, Stephen, you f**king idiot. You know, he was like, well, actually. Yeah, no, it begins by noting that writ of habeas corpus is a common law right dating back to literal 13th century Saxony. And the only thing that the Constitution says about it is comes from Article one, Section nine, that's the section that contains limitations on the powers of Congress. So clause article one, Section nine clause two says the privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion, the public safety may require it. Okay, so courts have uniformly interpreted that language and the structure as meaning that the default rule is everybody gets habeas corpus, only Congress can suspend that writ, not the President. So the first thing that Sharf felt like he needed to address in this memo was sort of that common adage that even Stephen Miller knows of like, well, didn't President Lincoln suspend the writ of habeas corpus during the Civil War? Right, and the answer to that is yes, but only during a long recess in the middle of the actual Civil War. And as soon as Congress reconvened, it immediately ratified Lincoln's decision through the habeas corpus suspension act of 1863. Sharf's memo also goes through the limitations on suspending the writ of habeas corpus, even when Congress does authorize it, which it clearly would not do as Congress. And that included the 1866 case, ex parte milligan, which held that Lincoln could not order Confederate traders to be tried in military tribunals so long as civilian courts are open. It also included the World War II and Bush-era cases, the global war on terrorism cases, which culminated with Bumetti and V. Bush, which said that enemy combatants designated as terrorists were in fact entitled to file competitions for habeas corpus, even if they were being held outside the country in, say, Gitmo. Right. So what Sharf is doing is essentially foreclosing on all of the potential counterarguments. And here's how he concludes that memo. He says, the upshot of these cases is that for all persons held in de facto U.S. territory, and I think that de facto was thinking about CCOT. Oh, clearly. Right. That's why they were so hot to say, we don't control them. They're in control of the Salvadoran government. Right. Exactly. So all persons held in de facto U.S. territory under the control of the U.S. government, habeas rights apply or in the limited circumstance of military detainees, because again, as you pointed out, the administration was floating these arguments about how immigrants are really shock troops for the Venezuelan government. An adequate alternative to habeas must be provided. Right. So essentially his conclusion was there was no legal way for the administration to just summarily deport immigrants without any due process at all. And and Sharf's position in fact won out. Yeah. Okay. So fast forward six months. Now we're going to talk about the second memo. The administration has federalized national guard units to put troops on the streets of American cities in Los Angeles, in Chicago, in Washington, D.C. They have also federalized Oregon National Guard units and put them on standby just outside of Portland to deploy them into the city. And the point of all of those troops was to intimidate protesters, was to mix it up with protesters and eventually, you know, commit bodily harm against protesters. All to try and number one, sort of show this is the administration being tough on protesters. And right. Right. To dominate blue cities and democratic strongholds. That was the whole point of this, to say, you know, hand over your immigrants, stop being a sanctuary city and stop protesting because, you know, otherwise we're going to send in the troops. Yeah. And once again, Stephen Miller was the chief instigator thinking that didn't go far enough. And he was urging Trump to invoke the Insurrection Act to send in federal troops to those cities to enforce the law. So we've all heard of the Posse Comitatus Act, which was passed in 1878 in the aftermath of the Civil War at the request of the Southern states because they didn't want the federal government to use the military to enforce desegregation in their states. They did not want the troops in there. And the Posse Comitatus Act, which is codified at 18 USA section 1385 is just a sentence long. And it makes it a crime for anyone to use any part of the Army, the Navy, the Marine Corps, the Air Force or the Space Force as Posse Comitatus or otherwise to execute the laws unless specifically authorized by Congress. Obviously, the original statute did not refer to Space Force or the Air Force in 1878. Right. But okay, one of those authorizations by Congress is the Insurrection Act. That is 10 USC section 251 at sec. It expressly authorizes the use of the military to enforce the law. And Scharf in this memo describes the operative sections, which are 252 and 253 as, well, he describes it as incredible broad, but he means incredibly, right? He says they allow for essentially unbounded use of the military in any state with or without state consent or acquiescence with the only predicate being a proclamation declaring that an insurrection exists. Right. And Scharf is overstating that a little. Unlike suspending the rate of habeas corpus, multiple presidents have indeed invoked the Insurrection Act. Some of them over the objection of state governors to which the troops were deployed, right? Presidents Eisenhower, Kennedy and Johnson's did in fact send in federal troops to enforce court ordered school desegregation plans when the local governors refused to, you know, follow the law. But the question here, though, is whether courts get to review the president's declaration that there is an insurrection. And Scharf notes that the most any Supreme Court has said is that it might be possible to review such a declaration to see if it was made in bad faith or, quote, exceeded the range of honest judgment, which is a pretty deferential standard. Yeah, not to mention that at the same time he's writing this memo, we had seen talked about on the show the Ninth Circuit twice adopt an extremely deferential standard in the analogous cases questioning whether Trump could federalize National Guard units under Title 10, right? Like the Ninth Circuit after the trial court said, we don't really think that there's an inability to enforce the law in the streets. In the Ninth Circuit was like, yeah, but if the president says that there is, then there probably is. And that I think suggests I think Scharf is right that the courts, particularly the appellate courts, particularly the Supreme Court, will probably be pretty receptive to an argument that says an insurrection exists if the president declares that one exists. But here was his concluding argument. This is really interesting. Overall, while the president is highly likely to win a case at the Supreme Court, particularly with the current court, which has been generally deferential to executive prerogatives, you know, this is how they talk about when we're not listening, that does not mean that such an action would not result in vigorous litigation. We have consistently seen the same model of litigation during this administration. Left wing public interest firms or Democrat states rushed to court in friendly liberal dominant judicial districts, obtain immediate equitable relief, and then drag their feet through appellate review. That same model would likely apply to litigation over an invocation of the Insurrection Act, a very high likelihood of both long term success, but also short term disruption. And so once again, Scharf won out, right? Trump didn't invoke the Insurrection Act, but he won out on pragmatic grounds, right, even as the administration was reviving this debate after the killings of Renee Goode and Alex Pretty in Minnesota. Yeah. Okay. All right. Well, we will keep watching this guy and see if he gets fired for being out. It is a practical person who actually believes in the rule of law. Guess your days are numbered, although considering most of his brethren have wound up on the bench, maybe that's his out. Yeah. Okay. That's going to do it for us today. Thank you guys so much for hanging out with us and supporting the show at patreon.com slash launcaaspod or launcaaspod.com and by leaving us a five star review on your podcast platform of choice. We will be back Thursday with more written content and on Friday with another show. See you guys.