Ep 203 — The Fifth Circuit Goes Full Korematsu

Now she's made herself a fact witness and probably dragged her entire agency into discovery. So well played, Tulsi. Yeah, there was some back and forth as to how this particularly stupid episode went down. First Gavard said that she had been there at Trump's request and then he denied it. There's Pampondi blah blah blah. She patched him through to the FBI agents during the raid. So I guess Donald Trump is a fact witness as well. These people are so stupid. Welcome to Lawton Chaos, where election officials in Fulton County are suing Pampondi to get their ballots back. And the fifth circuit is Greenlighting mandatory concentration camps for immigrants and whatever Tulsi Gavard stepped in wreaks too high heaven. We've got a lot to cover, so let's get after it. Hey guys, I'm Liz Dying with me as always is Andrew Torres. Andrew, how are you? Great, Liz. Welcome back. Thank you. Thank you for manning the barricades in my absence. I was not here on Friday's show, but you did an amazing job. If you guys haven't listened to it, it's some extreme nerd assery. I like that. Atari, Commodore, and Nvidia chips. You should definitely, definitely give it a, I'm only I tease him about being a big nerd because he is. But the show is great. So I definitely encourage you guys to listen to it. Thanks, I think. No, for sure. Okay, it is as usual a day with one million stories. We've got the DOJ trying to magic away Steve Bannon's conviction for contempt of Congress and the fifth circuit has discovered a little known loophole that allows the Trump administration to intern immigrants indefinitely without a hearing. They really put their backs into getting that order out the door pronto. And we will try to work out what the hell is going on in Fulton County. Plus for subscribers, we break down FCC chair Brendan Karsthreat to investigate the view. Yeah, don't you know that putting Democrats on the air is illegal now? I mean, of course, CBS and Fox could give Trump unlimited free air time. Uh, yeah, that's how I understand it. But first, a word from someone who is definitely not freaking out about the midterms. Not at all. Don't be a panicking. We're winning and we're not slowing down. Under President Donald J. Trump's leadership, this administration is smashing through the chaos and destruction left by Democrats and unleashing the most aggressive pursuit of the America first agenda in history. While the fake news and radical left collude to distract the press and divide, they're simply lying to mask the undeniable truth. America is safer, stronger, richer, and more secure than at any point. In decades, don't take the bait. New victories pour in daily as President Trump delivers on his promises and rebuilds the foundation for long term success in the greatest nation on earth. You don't let them put in the paper that I got mad. Right. And don't you Republicans get any crazy ideas about crossing me because you think you're about to lose in the midterms. That panicking thing you read was actually an official White House press release. This was not just his usual screaming on social media. Yeah, although his usual channels were quite busy. Trump rage tweeted about the halftime show and said bad bunny isn't even handsome. Oh, yeah. I guess if you buy that, you'll buy that the economy is indeed humming along. That manufacturing is up, gas is cheap, and prosperity is just around the corner. I mean, I don't buy any of those things. I think by, by most metrics, he's a handsome fellow. Not, nor do I think that China is about to ban hockey in Canada. Yeah, wait, what? What Trump said today that would be the inevitable result of a Canadian trade deal with China. He also said that Canada has to give us half of the bridge. They just built at a cost of $5 billion to connect Windsor Ontario to Detroit. And he said he won't let that bridge open until they give it to us. He is so demented. I know, I know. It is so unhealthy to live in a new cycle where every time you look at your phone, you get like a minor panic attack. Yeah. Okay, well enough to chat about that fun topic. It's time for... Duck it alerts. Duck it alerts. First up, Galein Maxwell took the fifth in testimony before the House Oversight Committee this morning. Yeah, because she's not an idiot. There is exactly zero benefit to this person from telling Congress anything. And look, she is watching the Trump administration trying to lock up Jim Comey, the former FBI director for testifying truthfully to Congress more than five years ago. Of course she shut the hell up. I mean, belatedly she did give that two day interview to Todd Blanche, Trump's personal lawyer, and the second in command at the Justice Department. And Coincidentally, she completely exonerated Donald Trump, the man with the literal keys to her cell. So according to Galein Maxwell, she never saw him do anything inappropriate. At which point, she was moved, I'm sure coincidentally, from a crap facility in Tallahassee, Florida to a cushy minimum security facility in Texas, which would normally be unavailable for convicted sex offenders. Well, the White House says they had nothing to do with her getting through. Well, the White House says a lot of things. That's true. The committee members came out of Galein Maxwell's Zoom Testimony saying that she'd offered to exonerate both Donald Trump and Hillary Clinton under oath, as opposed to in conversation with Todd Blanche. She said she would do that in exchange for clemency, that is get out of jail free and never prosecute me again. You just give her that and she'll talk. I think she would have better luck with this administration if she said she could exonerate Trump and incriminate Clinton. Oh, for sure. And speaking of Bill and Hillary Clinton have now reversed course and agreed to testify to the House Oversight Committee about the Epstein fight. Yeah, speaking of not being idiots. I mean speaking of not being idiots belatedly. I fair. We did say on this show two weeks ago that when the Clinton's first told Oversight Chair Jim Comer to get bent, that they were really handing him a potential stick to beat them with. There is nothing that the right wing wants more than to lock up the Clinton's. I still cannot believe that their lawyers let them risk a contempt of Congress charge. Yeah, so they appear to have thought better that. Yeah. And now the issue is how this testimony will go down. The Clinton's demand that it beat public. They both posted it at length on social media Friday saying that doing it behind closed doors is a political ploy which doesn't serve the victims. Yeah, which was the same tack taken by Hunter Biden. But Republicans control the committee and so it's going to go down however they say it. Well, at this point it is reportedly going to be a recorded interview that will then be released after the hearing. I mean, look, we all know that this is a political stunt. But if you were going to make a rational argument in favor of this position, right, record then release, you would say that you don't have live testimony about sex crimes, particularly those involving minor victims, which is a very, very good argument, right? Like you have to allow time to redact any names that could come out. Yeah, I think that's right. And speaking of redactions, the Justice Department briefly published what appeared to be child sex abuse material last week or at least non-consensual new imagery of women from Epstein's stash along with personally identifying information about some of his victims. They quickly unpublished it. But that doesn't really give one tremendous amount of confidence in this review process. Yeah, a review process that DOJ lawyer Todd Blanch says is now complete, right? They said they had three million more pages to go just about a week ago. But hey, wouldn't you know, turns out they were all duplicates. I mean, I'm sure that's going to put the matter to rest. Members of Congress are currently being allowed to view the unredacted files at the Justice Department, but not to remove or copy them. I believe Representative Jamie Raskin was the first to take the government op on that offer this morning at 9 a.m. Yeah, my former rep Jamie Raskin, love that guy. Okay, we have one more Epstein related story today and it involves the resignation of Brad Carp as the managing partner of the mega coat factory law firm Paul Weiss. So Carp is the one who negotiated the first law firm capitulation deal with the Trump White House and agreed to provide $40 million of legal work to mega favored causes. That caused the exodus of about a dozen partners at least who did not want to be affiliated with this project. And that was before the release of emails last week showing that Carp was in regular correspondence with Jeffrey Epstein and Dindead his home multiple times. Epstein also helped Carp's son get a job on a Woody Allen movie. So that plus the fallout from the prior Trump deal pushed Carp over the edge and he handed off the reins of serving as managing partner to someone else. Well, I guess you'll have to scrape buy on a few hundred thousand dollars less a year, but where's my tiniest volume? Okay, let us leave Jeffrey Epstein to rock and talk about a more sympathetic criminal and that guy is a murderer, actually, it's gotta be Luigi ding ding ding. We haven't talked about this case in a while, but obviously man, Joni is accused of killing Brian Thompson, the CEO of United Health Care in December of 2024. He is being tried in New York and federally before he was even indicted, though, Attorney General Pam Bondy announced that they would be seeking the death penalty. I know we say a lot here, but that Pam Bondy is such a disgrace to the legal profession. Like, look, you may think the death penalty is a good thing. It is not, but okay, some people do, they can have that opinion, but you were talking about the state killing a human being. There are due process concerns. This is supposed to be a considered decision. Ethical prosecutors don't just announce it on social media for the likes, besides which it violates your duty as a prosecutor, not to try and prejudice the jury pool. Well, as it happens, Pam's gambit did not work. Yeah. On January 30th, US District Judge Margaret Garnett nixed the two counts, which would have made Manjony eligible for the death penalty. The legal reasoning there is really too long to get into and docket alerts, but basically the government needed interstate stalking to be a crime of violence to substantiate a federal murder charge. And it's not a judge Garnett was a little annoyed because of the way this decision was handed down. But as she said, you can stalk somebody without being violent to them. And so it didn't work to substantiate the murder charge. Right. Which leaves the state law charges and there is no death penalty in the state of New York. So there will be no state sanctioned killing here, which again, I personally think is a good thing. Now, I in the New York state case, prosecutors have also had their indictments trimmed down judge Gregory Caro, dismissed the two terrorism charges in September, which got rid of the mandatory life sentence. Yeah. Mark and Karen Agnefalo are very good lawyers. Yes, they are. They represented Diddy, if I remember correctly. Yeah. So throughout this case, there has been this push and pull between the Manhattan District Attorney's Office and the federal court in the Southern District of New York. The state has always said that it wants to go first. But then after Judge Garnett dismissed the federal murder charges, she accelerated that trial to September 8th, which pissed off the state prosecutors who wanted to go first, because that forced them to accelerate their case. If they wanted to, you know, retain that that first in line position, which in turn pissed off Judge Caro, who groused in court last week, that quote, the federal government has reneged on their agreement to allow the state who has done most of the work in this case to go first. But Judge Caro had a solution for that. And it was to force the state case to go to trial in June. Really, really pissed off Manjone and his lawyers, because now they're under the gun to get this huge case prepared in a relatively short period of time. Yeah. Everyone's concentrated on Luigi's outburst in court where he yelled out same trial twice. One plus one equals two, double jeopardy by any common sense definition. And, you know, not as a matter of law, but I'd be, you know, he does have a point about the show trial nature of this. Absolutely. And look, that's the reason that the state is adamant about going first. Right. They know he's going to appeal the verdict on jeopardy grounds and probably lose. But if someone's conviction gets tossed, the state wants it to be the federal conviction, not theirs. But as of now, this case looks likely to go to trial in late spring, unless, unless the federal case gets delayed, which it might, in which case Judge Karos said he will delay the state case to. Yeah. It is just unseemly, right? There's jostling for scouts. And yeah. And speaking of unseemly, Liz, did you hear that the FCC is going to investigate the view for torsious of having a Democrat on the show? I mean, that seems extremely seemingly at least in this administration. Indeed. We are going to break down that story in the bonus. If you are a subscriber at any level at patreon.com slash law and chaos potten, if not, we're going to take a brief ad break and come back with the equally unseemly Janine Piro. That's how I would describe her. And we're back to talk about the US attorney for the District of Columbia. Janine Piro, you may recognize her from the TV. Today, she filed a motion to dismiss the indictment of Steve Bannon for contempt of Congress. That's weird, because I could swear I wrote one million stories about him getting convicted by a jury in July of 2022. Yeah, you're not wrong. Bannon served four months in prison because he refused to testify to the January 6th committee. He and Peter Navarro were basically the only two who did it because after they got referred for contempt of Congress, everyone else twigged that they should just show up and say, I plead the fifth over and over and over again, which like even Alex Jones was smart enough to just like show up and refuse to answer any questions. But the two people who did, well, that's not true. Actually, Mark Meadows and Dan's Cofino didn't, but they did it in a sort of like we're still negotiating way and whatever. But Bannon and Navarro both got referred for contempt of Congress and both got convicted. Yeah. And that conviction, it was two USC section 192. It is failure to respond to a congressional subpoena that reaching that verdict was the easiest job any jury has had in American history. And as you point out, Liz Bannon served his time three years ago, right? The only reason that the Trump administration is trying to do this now is because Donald Trump is obsessed with rewriting history. So we've always been at war with East Asia, the 2020 election, the stolen, the January 6th insurrectionists were peaceful protesters and the January 6th committee was a witch hunt led by Democrats like Liz Cheney. So, okay, procedurally what Trump is trying to do here is to get the Supreme Court to bless them retroactively, unconvicting Bannon. And here's how they're trying to do it. Under rule 48 A of the Federal Rules of Criminal Procedure, the government can move to dismiss a pending criminal indictment with leave of court. Now, if that rule sounds familiar, it's because Trump first tried to abuse it in his first term by having Attorney General Bill Barr move to dismiss the indictment of Lieutenant General Michael Flynn under rule 48 A, even though Flynn had already pled guilty and reaffirmed that guilty plea in open court twice. I filed an amicus brief in that case. It got mooted because eventually Trump gave up trying to persuade judge Emmett Sullivan to grant the motion to dismiss and just pardon Flynn, which is absolutely right. But Bannon got indicted when Biden was in the White House. So, there was no one to blow up his case at the time. Well, Trump did pardon him on a different prime the day before he left office the last time. Right, Bannon mastermind did this weird scam to solicit funds to build this like homemade border wall, privately funded border wall on the on the southern border. And everyone involved said they were doing it for free. No, no salary. But they were not doing it for fun. They were funneling to all of these companies owned by themselves, advertising costs and the like. And then Bannon and his co-conspirators were in legal jeopardy for that. But Trump pardoned actually Trump pardon Bannon and not the co-conspirators on January 19th of 2021. I think he pardoned the other guys later though. Yeah, well, this time around, Bannon got convicted of contempt of Congress as we pointed out. He then appealed that conviction and lost at the DC Circuit. He requested rehearing on bond, lost on that too. Then Bannon moved for reconsideration, lost on that too. You may sense a plan to kind of drag this out so that people forget about it. And now his appeal is on the doorstep of the Supreme Court. And what solicitor general John Sauer has asked the Supreme Court to do is a GVR. And this is offensive on all levels. But but let me unpack some procedural geekery here. GVR stands for Grant Serscher Roy and take Bannon's case on appeal. V stands for immediately vacate the district court's judgment. And then R is remand the case back down to the trial court for a new trial or not have a new trial, which is what they intend here. Cus Jenin Piro already filed this rule 48 motion to dismiss so that there wouldn't be a new trial, which obviously Bannon doesn't oppose. And Sauer isn't even pretending that this is anything other than like a motion to do us a solid and help out a guy who's on our team. Yeah. Here's the argument that he made in his actual legal brief. The government has determined in its prosecutorial discretion that dismissal of this criminal case is in the interest of justice. In several previous cases, including earlier this term, the court has granted the solicitor general's request to grant a petition for Ritter Serscher Roy, vacate the court of appeals judgment and remand the case that's a GVR so that the government can pursue dismissal under rule 48 a the same is appropriate here. So basically in English, he says you've let us retroactively undue convictions against other of our cronies. And how about you do us another one? It is staggeringly corrupt. So I'd say 50 50 that this Supreme Court gives him what he wants. I mean, that that would then put this rule 48 a motion in the hands of Trump appointee judge Carl Nichols in DC. Now, Judge Nichols has occasionally had an independent streak about him. He convicted bad in the first time. Right. And he could do what his colleague, Judge Sullivan, did in the Michael Flynn case, right? That would be to say, yeah, both the government and Steve Benner are obviously going to be on the same side of this motion to let Steve Benner go free. So I'm going to appoint an independent amicus to argue the other side of that rule 48 a motion. And then he could deny the the government's motion for leave to dismiss. But you know, my strong impression is that he's just going to let it go. I mean, I guess that that kind of puts the car before the horse in my head. I'm not sure that the Supreme Court is going to want to do anything on this. Like why would they I mean, aside from they give Trump everything that he wants. But this is so meaningless, right? It's not like a pending case that they're trying to blow up. This is a conviction by a jury where he's already served to sentence Trump can pardon him again and get rid of it and you know, make it as if it never was. I'm not sure that they would want to expend the political capital to make this thing happen. I hear you on that. I hope you're right. I love it when you're the optimist on the side of the table. It's so they've got so many things that they want to give Trump that matter. And this one matters zero. So, you know, I think that they why would they expend the political capital? But maybe you're right. I hope you're right. Okay. Well, thanks Chief Justice Roberts. Maybe question mark. We're going to take a quick ad break and we will be right back unless you are a subscriber at patreon.com slash long cast pot or law and kspod.com in which case no ad break for you. Not today. Not ever. And we're back. Okay. Well, moving on to Georgia where the justice department is in the midst of a bizarre effort to prove that Trump was correct about election fraud in 2020. And he didn't actually lose the state which has two democratic senators. How could it be? On January 28th, the FBI executed a warrant at the Fulton County Election Hub and Operation Center in Atlanta. They took all the ballots and election materials from 2020, which is wild. And they did it under the supervision of Tulsi Gabbard, the director of national intelligence. I, which is way more than wild. That is super weird. Gabbard is prohibited by law from taking part in domestic law enforcement. Although now she's made herself a fact witness and probably dragged her entire agency into discovery so well played, Tulsi. Yeah, there was some back and forth as to how this particularly stupid episode went down. First Gabbard said that she had been there at Trump's request and then he denied it. It was Pampondi blah blah blah. She patched him through to the FBI agents during the raid. Yeah. So I guess Donald Trump is a fact witness as well. These people are so stupid. Uh, and shortsighted. Also according to Reuters, Gabbard's office apparently seized voting machines in Puerto Rico in May. That was an operation with the FBI office working out of Florida that was supposedly hunting for evidence of Venezuela involvement in vote rigging. I mean, Tulsi Gabbard probably doesn't know that Puerto Rico was a part of the United States. But uh, Asha Rankapa, another legal commentator in our space said that maybe Trump is going to lean on Nicholas Maduro to say that he personally rigged the election in 2020. Well, Reuters says that Gabbard's team did not find any Venezuela and fingerprints on the machine. So instead Tulsi put out a statement saying that she found all these cyber vulnerabilities in these voting machines that could have allowed for hacking. I, it's Sidney Powell has been saying. I mean, it's been six years. They have zero evidence that a single vote was ever changed because no such evidence exists. Yeah. Let's come back to Tulsi in a second. Uh, I do want to talk about Georgia where there's been a lot of legal action in the two weeks since that raid. We're really seeing now how much pressure the Justice Department has been putting on election workers in Atlanta is they try to manufacture proof that Trump won the state in 2020. So apparently there were two lawsuits seeking to enforce subpoenas for these exact same records before the criminal action. One was in Fulton County Superior Court where Judge Robert McBernie refused to quash that subpoena, but he said that the DOJ would have to pay production costs to copy the data. That is that they'd have to pay to duplicate it and it was going to be a lot of money and they could just take all of Fulton County stuff, uh, the original ballots and such. And then the Justice Department filed another case in federal court under the Civil Rights Act of 1960, which not to be confused with the Civil Rights Act of 1964. That's the one we always talk about. The 1960 version was specifically passed to ensure that black citizens were allowed to register and cast their ballot. It ordered state registrars to retain all materials that came into the possession and turn them over to the DOJ for inspection. So in the past, registrars might have, say, thrown out ballots by black voters and this was a law to kind of force them not to do that. So now the Civil Rights Division is perverting that law to demand unredacted voter rolls, including driver's license and social security information so that they can purge voters at scale. But courts have rejected this argument at every turn. In fact, on February 5th, Judge Mustafa Kasubai in Oregon said that it sure looks like the Trump administration is compiling a national database of voters both for immigration enforcement purposes and potentially as a means of voter suppression. I mean, poor Kenola Stostright. Yeah. If the government knows that an immigrant is married to a citizen, then having that citizens voter registration data is a pretty good way to figure out where to find the undocumented spouse. And if family members have undocumented people know that, then there will be less likely to register to vote at all. Right. Which is voter intimidation. They have a legal right to register and vote. A pretty neat suppression trick. Then Attorney General Pam Bondi sent that letter to Minnesota Governor Tim Waltz saying, you know, we'll get ice out of your town. If you give us your full unredacted voter rolls and, you know, some other stuff, of course. But if you've got the civil rights division supposedly filing these cases to get the voter rolls for one reason and the Attorney General demanding the same data set for a totally different reason, it strongly suggests that at least one of them is making shit up and poor Kenola Stost, as you run out. Judge Kasubai said, the context of this demand within a letter about immigration enforcement casts serious doubt as to the true purposes for which plaintiff is seeking voter registration lists in this and other cases and what it intends to do with that data. The presumption of regularity that has been previously extended to plaintiff, the US government, that it could be taken at its word with little doubt about its intentions and stated purposes no longer holds. When plaintiff, in this case, conveys assurances that any private and sensitive data will remain private and used only for a declared and limited purpose, it must be thoroughly scrutinized and squared with its open and public statements to the contrary. Yeah, I am so glad to see judges just saying that flat out, right? The Justice Department no longer deserves the presumption of regularity because it lies in court all the time. I mean, it lies out of court, but it lies in court all the time. It lies to judges all the time. Also in this order, Judge Kasubai said, I'm going to take notice of what Donald Trump has been saying about taking over state elections. He says plaintiff's words and actions outside of the four corners of its complaint in this case, including statements that it intends to create a nationwide database of confidential voter information and use it in unprecedented ways, including immigration enforcement efforts, is chilling. The possibility of the Oregon's voter registration list could be used to further these efforts in the absence of congressional action may very well lead to an erosion of voting rights and voter participation. Okay, so he said, I hear you, Donald Trump, saying that you're going to take over voting in minority blue states, big cities. And so, you know, I'm not going to enable you to do that. So Judge Kasubai dismissed the case with prejudice. He didn't even give the Justice Department an opportunity to amend its complaint. Right. Said any amendment would be few, right? And so far, the Justice Department has filed two dozen of these cases demanding unredacted voter rolls under this Jim Crow era law. And no court in the land has agreed with this reasoning and given it to them. But on December 11th, they rocked up to the Fulton County elections, people with one of these putative civil rights suits, which is bizarre because the elder cases bit against states, not one specific county where there just so happened to be a lot of black voters. And this lawsuit isn't even asking for the voter rolls. It's asking for the same ballot information that just got seized in the rate. Yeah, what was that that Judge Kasubai was saying about the presumption of regularity being gone? Yeah. I mean, you have the civil rights division of the Department of Justice saying they need this stuff to protect the ballot on a theory of the case that has been rejected by every single court to examine it. You have two parallel state cases on an entirely different theory that are going to kick loose mostly the same records. And you've got the FBI and for some unknown reason, the director of national intelligence kicking in the door and grabbing the exact same documents on a third theory because of supposed crimes. It makes no sense. Right. So on February 4th, Rob Pitt, who's the chairman of the Fulton County Board of Commissioners, filed a whole raft of motions challenging the search and then later the county joined in as a is an additional plaintiff. That case was assigned to Judge John Paul Boulay a 2019 Trump appointee. Judge Boulay granted the county's motion to unseal its filings and ordered the magistrate to unseal the warrant by Tuesday if not before. And that will show us the underlying affidavit explaining the government's theory of the case, the factual theory, but we do know the law. Yeah. And we've been able to piece together a lot of this from the documents that that are out there. And the case seems to have some serious holes as the county's motions point out. We talked about this on episode 200, the warrant references 52 USC sections 20701, which obliges election officials to retain ballots and 20511, which criminalizes vote fraud. The first thing that the county filed was a motion for return of property under federal rule of criminal procedure 41g. That's the same process that Dan Richmond used to get his stuff back. That rule says a person agreed by an unlawful search in seizure property or by the deparation of property may move for that property's return. This petition is actually quite interesting. Yeah. Yeah. Yeah. First, it points out that the vote fraud allegations have been exhaustively investigated and disproved. So it looks like a search without probable cause in violation of the Fourth Amendment. Second, the county's petition says that the section 20701 charge imposes an obligation upon the state and local officials to retain records for 22 months. We are obviously more than 22 months out from the 2020 election. I mean, I suppose the theory could be that there's evidence of destruction of records sometime in 2021. That seems like a stretch. Yeah. And that's also true with respect to section 20511. That's the vote fraud statute. And it has a five year statute of limitation. So there's no possibility, even if there were kind of fraudulent records, nobody could go to jail for it. So there's no possibility of prosecuting anyone. So if there is a warrant that says we suspect we're going to find evidence of crimes, we know you're not, because there's no crimes to be prosecuted there. I see. And on top of that, the county says, look, there's already all of this civil litigation over these exact same documents. So the fact that you guys kicked in the door and took them when you were in the middle of litigation to get them, which you might have lost, is a strong indication of bad faith by the government. Yeah. If it walks like a duck and it quacks like a duck is probably a duck. A very corrupt duck. Okay. So before we leave this segment, can we just circle back and talk about the Tulsi camper? Yeah. So lower complaint for a second, because that is popping off this week for sure. I feel like this is like so many different echoes of the first Trump administration in one story. Yeah. I agree. The corruption here is supercharged this time around. Okay. So according to the New York Times and the Guardian, last spring, the NSA picked up two foreign nationals discussing quote, a person close to Trump and that discussion was about Iran. Can I just lay down a marker today that that person is Trump's middle east envoy, Steven Whitkopf. That guy is in business with Trump personally. His sons are minority owners in the Trump family's crypto exchange. He's got contacts all over the Gulf. And he wields this outsized power in the Trump White House because he has this personal and financial relationship with the Trump family. And you know, he's the one constantly talking to all of these Gulf state leaders. Oh, I noted. Okay. So there's a whistle blower in the intelligence agencies who says that Tulsi Gabbard buried his conversation brought it to the attention of White House chief of staff Susie Wiles and then shoved it under the rug. So he then this unknown staffer filed a whistle blower report, which is supposed to trigger disclosure to Congress within 21 days. That's mandatory. That disclosure never happened. Instead, what happened is that the acting inspector general for the intelligence agencies, a guy installed hand picked by Tulsi herself issued this kind of melee mouthed report saying that it was impossible to assess the credibility of the report. So it didn't need to go to Congress. Yeah. The whistle blower disagreed and requested assistance from Gabbard's office on how to make that disclosure to the relevant congressional committees with respect to national security since there are multiple highly classified elements to his report. Tulsi's office then did nothing for eight months until the whistle blower's lawyer said last week, Tulsi, tell Congress by Friday or we will on Monday. Right. So today, the New York Post, which is a pretty right-wing publication, had this exclusive story on a letter sent by ODNI General Counsel Jack DeVirre to the whistle blower's lawyer Andrew McCodge warning him that any further disclosure to Congress might subject the lawyer to prosecution for leaking classified material. There is definitely nobody in the trunk of this car officer. Yeah. I mean, this just looks hinky as hell. And look, just to spell out what I mean by the echo, we talked about Mike Flynn in the prior segment. Mike Flynn in the first Trump administration was the national security adviser and he got picked up by on a wiretap talking to the Russian ambassador and promising sanctions relief. That was before Trump had been sworn in. It was during the transition. And then when the FBI came and asked him about it, he lied. Yeah. Well, this time around, I think the odds of cash Patels FBI asking, Whit Cough, or whomever it might be, any unpleasant questions at all is less than zero. I mean, mostly because you can't tweet about that. So, you know, what's the point? Like a subscribe. Okay. But the second echo is of course to that whistle blower report regarding Trump's conversation with Ukrainian president Volodymyr Zelensky. We're Trump demanded dirt on Joe Biden before he'd released the Congressional allocated defense funds. That two was swept under the rug by Bill Barr. And it led to Trump's first impeachment. So like, this story has a lot of strange echoes, right? You've got this whistle blower report that should have been disclosed to Congress was not disclosed to Congress. You've got the whoever it is getting picked up on this wiretap and they're trying not to let that come out. I mean, it's just like all of the things at once, but worse, worse this time because everybody involved is more corrupt, the control every side of the equation. And Pam Bondy's more corrupt than Bill Barr, which is impressive. Yep. Okay. We're going to take another quick ad break and we will be right back. And we're back. Okay. Let's finish up by talking about that horrible decision that came down late Friday night in the fifth circuit. But I repeat myself. Before we get to the nuts and bolts, let's situate this in the larger discussion about what the Trump administration wants to do, which is you have the Department of Homeland Security send ice and CBB he goons to seize any immigrant anywhere in the US without due process. No matter how long they've been here and irrespective where they are in the immigration process, anybody who doesn't have a green card or permission to stay here, they want to ship off to a concentration camp in Texas to be held indefinitely. And kind of the subtext of this is they want to make it so unpleasant that people will give up their asylum applications or whatever. And as they put itself to port. Yeah, this is not to put too fine a point on it. Police state stuff. And let me say the power to indefinitely detain immigrants and send them to concentration camps in Texas is not a power that was delegated to the Department of Homeland Security by Congress. In episode 200, we discussed the primary way that the administration is pretending that it has that power. This is an internal memorandum that was issued by ice on July 8th 2025. It was titled interim guidance regarding detention authority for applicants for admission. So that memo conflates two separate provisions in a 1996 immigration law. The first provision is a USC section one two two five. And that is mandatory detention without a bond hearing for applicants who just crossed the border. Right. So if you cross the border and you turn yourself in, they can hold you before they decide what to do with you. The second provision is 1226, which is discretionary detention for undocumented immigrants or aliens as a legal term anywhere inside the country. And the crucial distinction is that if you're picked up by the Department of Homeland Security under 1226's discretionary detention, you are entitled to a bond hearing before an immigration judge. They can't just hold you in some concentration camp indefinitely. And if the court determines that you're not a flight risk and you're not a danger to the community, it can order you released on bond. And if you're subject to 1225 mandatory detention, you don't get that bond hearing. And that's what the administration wants to nationalize. So in this ice memo that they put out in 2025, they argued that the narrow provisions of the mandatory detention under 1225 actually apply to anyone anywhere in the country at any stage of their immigration process. So that basically reads 1226 out of existence. Yeah. Two things. Again, we unpacked in detail how wrong this argument was back in episode 200. But you know who else panced this argument eight years ago? That would be noted liberal squish Samuel Alito in a 2018 Supreme Court decision called Jennings versus Rodriguez. The Supreme Court very clearly explained the difference between 1225 and 1226. So first, the court said that the decision of who may enter this country and who may remain quote, generally begins at the nation's borders and points of entry. Right. So where you are matters from there, the mandatory detention provisions of 1225. And again, I'm going to quote directly from the decision quote, applies primarily to aliens seeking entry into the United States, right? Meaning at a port of entry. The discretionary provisions of 1226 on the other hand. And again, quoting directly from the opinion applies to aliens already present in the United States. So summing it all up again, the words of Samuel Alito section 1226 a creates a default rule for those aliens by permitting, but not requiring the attorney general to issue warrants for their arrest and detention pending removal proceedings. Section 1226 a also permits the attorney general to release those aliens on bond. And then it says accept is provided in subsection C, which covers immigrants who have committed violent felonies or terrorism charges. But but the importance of the decision is that for everyone else, federal regulations provide that aliens detained under 1226 a receive bond hearings at the outset of their detention. Okay. So let us translate from Alito to English. If you are picked up the border, you may be subject to mandatory detention under a USC 1225B and held without bond. But everybody else is subject to the discretionary detention provisions of 1226 where you do get a bond hearing and you get to argue that the government can't hold you indefinitely. Right. So the argument from this internal ice memo from 2025 is a stone cold I prefer lie. Yeah. All right. The lawyers who wrote that memo lie, which gets to my second point or actually, this is your point, Liz. It is that a critical part of this story is how the Supreme Court enabled and facilitated this outright lie through its decisions in the JGG and the Casa cases. So in JGG, the Supreme Court said that immigrants who are rounded up by this administration must bring their claims as petitions for habeas corpus. And in Casa, the Supreme Court basically took nationwide injunctions off the table, which meant that trial judges were severely hampered in their effort to reign in this administration's illegal policies towards immigrants. They can only grant relief to the people directly in front of them. Upshot of which is that this administration gets to litigate the same wrong position over and over and over again because judges can't say stop doing that illegal thing altogether. They can only say stop doing that illegal thing to this particular defendant. And that's why we are seeing the Trump administration make the same wrong bad faith argument about bond hearings over and over and over and over again because scotus has really tied trial judges hands behind their backs. And again, this argument about mandatory detention is not working. Yeah. Right. Literally hundreds of judges have told them it's not a thing in late November, Judge Lewis Kaplan in the southern district of New York smacked it down. That time it was a case of a Peruvian citizen named Sergio Alberto Barco Mercado and he crossed into the US illegally in 2020 surrendered to CBP pending his asylum determination, which is what happens at the southern border. He walked up and he said, I'm here. I would like a asylum. He was released on a $3,000 bond. Yeah, which again, just to be clear is what the law requires. Now, there's a backlog of over a million asylum applications. And the statute says that you agree to be detained without bond for no more than seven days. So after that, if they haven't deported you and an immigration court determines that you're not a danger to the community or a flight risk, that immigration judge can order you released on bond. Again, subject to various conditions checking in, not committing crimes, that sort of thing. That's the non-detained docket. That's where a breakout Garcia was. So while Barco Mercado's asylum application was working its way through the immigration courts, he lived and worked as a carpenter in New York and he became a father, and he paid taxes and he was never convicted of a crime or anything like that. And importantly, he always showed up in immigration court to check in as required by law. And then on August 8th, he showed up again at which point the immigration court set a final hearing date for his asylum application. But as Barco Mercado left that courtroom ice, was waiting and they grabbed him and threw him in jail and revoked his bond and made him file this habeas petition to get out, which he did. Yeah. And then the administration proceeded to make this exact same argument in front of Judge Kaplan, arguing that any alien anywhere is really an applicant for admission under the immigration law. So they don't get bond hearings and Judge Kaplan and I'm sure his clerks worked overtime on this one. But Judge Kaplan and his clerks did the work and they read every single case on the record where the government has made that argument. And you know what, I'm just going to read Judge Kaplan's summary from that case. This is not the first time that the administration's change of heart has been challenged in court. By a recent count, the central issue in this case, the administration's new position that all non-citizens who came into the United States illegally, but since had been living in the United States must be detained until their removal proceedings are completed, has been challenged in at least 362 cases in federal district courts. The challengers have prevailed, either on a preliminary or a final basis, in 350 of those cases, decided by over 160 judges sitting in 50 different courts spread across the United States. Thus, the overwhelming, lopsided majority have held that the law still means what it has always meant. Yeah, so that's Judge Kaplan. Go look, you guys have lost 350 to 12. And as far as I can tell, those 12 are exclusively Trump appointees, right? Every other judge, Democrat or Republican, I said, you know, get the hell out of here with this bad faith. Right. And a bunch of Trump appointees have agreed with it too. Yes. Yes. So, okay, one of the 350 judges who told them to get out was Lee Rosenthal of the Southern District of Texas. On October 7th, she ordered the government to either provide the plaintive in that case, who is his name is Victor when Rostro Mendez with the bond hearing or release him. And as in all of these cases, the administration released him rather than hold the hearing. Yeah, because this administration is well aware that their position is nonsense. And in virtually all of those other 362 cases, that's been the end of it, right? Like the government didn't try to appeal Judge Kaplan's decision in the Barco case to the second circuit because they knew they would lose. Indeed, in the only case that they have appealed up, they appealed up to the seventh circuit and they lost there too. That case was called Castanjan Nava VDHS. So, you can see the government strategy. Pick up immigrants first, toss them in a camp with no due process, make them get a lawyer and file a habeas claim, lose, let them go, rinse, repeat. But also wait for a loss in Texas where you can then appeal to the fifth circuit, the most activist right wing pro Trump appellate court in the country, a court so spectacularly right wing that it is the most reversed appellate court at even this Supreme Court. And that's what they did in Bluena Rostro, Mendez's case. Right, and the fifth circuit jumped in to help the Trump administration hold people without due process as quickly as possible. So, even though Bluena Rostro Mendez was released and there was no plausible need to expedite this, the government moved for expedited consideration and they got it. Yeah, let me emphasize from a practitioner perspective, this appeal was filed in November. It was then consolidated with another case. That was over the winter holidays. The court schedule required the parties to complete briefing in January, set oral argument for February 3rd. Like, ordinarily, a case like this would take six or seven months to go from filing the notice of appeal, transmitting the record, filing the briefs, setting an oral argument. And then after oral argument on February 3rd, the panel issued its opinion three days later. I have never, I've literally never seen an appellate court do that in a non-emergency case, right? Like, it strongly suggests that they had this one written up in advance. I mean, it's all part of the service. Yeah. Right, you're on the fifth circuit, have the bench, things they're going to take over for Justice Thomas or Alito next year. Those guys are going to ship product. I mean, okay, I know Edith Jones doesn't think she's headed for the Supreme Court. She just does it for the game. Yeah, she's just mean. Yeah. I want to put some numbers on this because according to statistics maintained by the administrative office of the courts, the fifth circuit averages four and a half months from the close of briefing to oral argument as opposed to one day in this case. And nearly two months from oral argument to written opinion three days in this case. And by the way, that those are averages, like those include a bunch of straightforward cases, like presidential opinions that are 23 pages long like this. To do it in three days, it's insane. I've never seen it. So what they did was by two to one vote, they reversed the trial judge's order and held that immigrants anywhere in the country are applicants for admission and subject to this mandatory detention without a bond hearing. And the reason is that after passage of the 1996 immigration law, the known as the illegal immigration reform and immigration responsibility act or I reira, an alien status as an applicant for admission does not turn on where or how the alien entered the United States or when or when, which is pretty much exact opposite of what Justice Alito said in the Jennings case. And as for the fact that no president in history, including Trump and his first term ever interpreted I reira this way, well, they say, that's true, but the government's past practice has little to do with statutes text. Years of consistent practice cannot vindicate an interpretation that's inconsistent with the statutes plain text. In any event, that prior administrations decided to use less than their full enforcement authority under 1225B does not mean that they lack the authority to do more. Well, no, but gosh, it sure seems coincidental that it is only the brain geniuses that Trump's now hollowed out Department of Justice that features like no lifers who have all of a sudden discovered these readings of laws that no prior administration, including the last Trump administration ever noticed before. I mean, six justices just discovered that nationwide injunctions are illegal. So there's a lot of that going around. But look, this is not a legal opinion. This is two right wing judges in the nation's most right wing court setting up a kind of a law-free zone in the fifth circuit for the administration to lock up immigrants. In fact, a destination for them to lock up immigrants without due process. We've had Aaron Reiglin Melnik on the show. He's an immigration expert and he says the decision is going to do two things immediately for it's just going to it's going to incentivize ice to immediately kidnap people and and fly them to Texas before they can file habeas petitions. Although, I mean, we've seen Minnesota judges say bring this person back from Texas. They're they're a Minnesota resident. They get to they get to file here. That's going to that's going to be a bone of contention. I'm quite sure. Yeah. But we've we've seen them do that everywhere. Fly people to Texas and Louisiana. And secondly, courts outside of Texas will have to do more proactively to preserve jurisdiction over these habeas cases because habeas cases have to be filed where the plaintiff is. Yeah. And as an example of that last year, we saw the judges of the district of Maryland put in a local district rule requiring notice and a 72 hour freeze before ice can take immigrants out of state that would then give them time to contact their lawyer and file habeas petitions, right? And the reason that that judges can do that is because of the all ritzak that gives courts the power to issue orders of whatever kind to preserve their jurisdiction. Yeah. And this is this is more work for district courts, right? We've talked about all of these trial judges like laboring hours and hours particularly in Minnesota. We talked about all those habeas petitions that are flooding that courts in Minnesota. These judges are overworked and they're understaffed and the Supreme Court keeps changing the rules and then yelling at them. Even as they double their workloads. Yeah. So I guess that that really funnels into the last question, which is is this going to hold, right? Is this decision going to get overturned? And there are really two procedural vehicles that are open, right? Like the plaintiffs could seek a rehearing on bonk before the full fifth circuit, not great, or they could file a petition for search your r i from the Supreme Court, also not great. And Liz, I should say two of the legal analysts that we follow are actually split on which one of those bad options is the best strategy here. Let's talk about each one of those. Okay. So rehearing on bonk, that is the whole that is the whole fifth circuit would listen to this case again. That would require at least nine of the 17 active judges on the court to vote in favor of it and maybe overrule the panel. Can you get there? Chris Geidner of Law Dork says start with the democratic appointees on the fifth circuit, which there are five, including Judge Dana Douglas who was in the minority on the panel. And then there are three George W. Bush appointees who are pretty conservative. But in this context, they pass for reasonable. That still leaves you one vote short. It won't be the most senior judges, it's Jones, who was on this panel and she wrote the majority opinion. She's very conservative. It won't be the other Reagan appointee Jerry Smith. He says possibly some of the Trump appointees who came out of the state courts and like actually believe in the rule of law might do it. Yeah. So as you're crossing off all those names, that leaves just three judges, two of whom are Trump appointees. One is the chief judge. You know, it seems like a pretty narrow path. You know what what you might call drawing to an inside straight. And it's a high risk strategy, right? If you're the plaintiffs and you get the nine votes to re here at Unbunk, that would have the effective immediately vacating this terrible panel opinion, which would be a really, really good result. That would immediately stop the administration from being able to dump detainees at those horrible camps in Texas and hold them indefinitely without a bond here. They're still going to funnel detainees into Texas, but they would at least have they would not have the cover of this order. Right. But if you petition for re hearing on bank, all of the time that they take to like vote on it, you're stuck with this order. Exactly. And I think that's why taking the other view is friend of the show Steve Vladak, who says go go straight to the Supreme Court and ask for certain. And and I think that's where I come out Liz. I'm I'm not sure you're a Vladak argument is just that this law is so obviously wrong that you can bring over some of the right wing justices who like being right. I mean, you're not going to win Clarence Thomas. And you know, it will be fun watching the Lido squirm and trying to disavow the words that he said eight years ago in Jennings. But you know, the Supreme Court has at least pushed back at the margins on this administration on, you know, some of the most extreme immigration cases. It's not great result. What do you think Liz? You know, I hate to sound like Justice Kavanaugh. But me too. Yeah. But one of the things that he said is like stop screwing around in these lower courts because you know, we're going to be the ones to make the decision. And whatever happens in the fifth circuit, it's going to be the Supreme Court that makes the decision. So either they're going to reverse it or they're not. I tend to think they might well reverse it just because this will be a totally totally destructive order to do. I mean, this would be green lighting the administration setting up concentration camps all over the country because they would be able to take into custody a million people, right? It would be so destructive. You know, we we talk about the Korematsu decision, which was the which was the decision which Greenlit Japanese internment during the Second World War. And I tend to think that this Supreme Court understands that if they let them do this, they will be remembered in that way. They will be responsible for these concentration camps coming up all over the country. So I don't I don't think so. And so I agree with Steve that I think you should go to the Supreme Court because a they're the ones that are going to be the deciders and b I trust them more than I trust the fifth circuit. Yeah, I think you persuaded me on on both counts. And I think that that Kavanaugh concurrence is a really good point. Yeah, I just want to point out one thing if you're looking for a silver lining. And something to watch for you guys. I mean, we've talked about the fifth circuit, all of these horrible reactionary judges who want to take over for Alito and Thomas. I would note that neither of them has retired yet. Even as we get closer to the midterms, I would have banked on them leaving. And they still could, right? And certainly this Senate would rush through any kind of reactionary replacement. But one thing to keep watch for you guys is you'll see commenters like David Lat, who's really plugged into this talking about whether they are hiring clerks or not hiring clerks. And if they're hiring clerks, it likely means that they intend to stay. People knew the Kennedy was going to leave in part because he wasn't hiring those clerks. So that's just something to watch for. I think I think it's a good sign. I mean, it's terrible as it is to say. I think it's good that Alito and Thomas are still there. I think it's good that Alito and Thomas are still there and we're not stuck with some horrible 50 year old called from the fifth circuit. If you're looking for a little silver lining, stick it out, Thomas. I mean, if we could take the Senate in the midterms, Trump couldn't name any more justices. Right. All right, that is going to do it for us today. Thank you guys so much for hanging out with us, giving us your time and your trust. If you would like to support the show at law and chaos pod dot com or patreon dot com slash law and chaos pod, you know, we would be grateful and we would be very grateful if you would give us a five star review on your podcast platform of choice. We will be back Thursday with written content, Friday with another show. Thanks again for hanging out. Law and chaos podcast is production of razor to media LLC is until it's solely of the entertainment does not constantly do advice and does not form an attorney client relationship. This shows research and written by Liz Dying produced by Bryce Blank and Angle. Law and chaos pod copyright razor to media LLC all rights reserved.