Ep 219 — DOJ In Disarray

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Andrew, how are you? I'm great, Liz. How are you? I'm ready for the weekend. Everybody I hear is working for the weekend. I am definitely working this weekend. But I regret to inform you, Andrew, that it is over for us. A new contender has entered the podcast arena. One bro to rule them all as it were. Well, we had a good run. Sadly, Robert Kennedy is about to start a podcast where he promises to name the names of the forces that obstruct the path to public health. Let's beat him to the punch. I mean, look out, big pasteurization. Your days are numbered now. And probably ours too if we drink raw milk as the Secretary of Health and Human Services recommends. Or if we try to compete with the dulcet tones of our FK. There can be only one. If there's anyone on earth who looks less like a Highlander than Robert F. Kennedy, do we really think the Highlander gets spray tan? I mean, immortality would be a non-insane explanation for the shit that man puts in his body every day. Okay, this is a law show and we have a ton of stories today. We've got a roundup of the utter chaos at the Justice Department. I mean, firing Pam Bondi didn't fix it all like magic. Oh my God, Santa Claus vision to a bail couldn't fix the DOJ at this point. I mean, we're all going to be living with this shit for years. Plus, we're going to talk about the history of the 25th Amendment and Kilmara Brego Garcia's motion to dismiss his criminal case for selective and vindictive prosecution. But first, Duncan Alerts. Okay, let's start with some good news. Judge Brian Murphy in the District of Massachusetts blocked termination of temporary protected status for 5,000 Ethiopian nationals. He joined several other judges in finding that while the DHS secretary can terminate TPS if she finds that conditions in the recipient's home country have improved, she can't just cut it off arbitrarily with no reason. Which is exactly what Kristi Noem did. On his first day in office, Donald Trump put out a horrifically racist executive order declaring that immigrants are criminals and ordering Kristi Noem to terminate TPS status for as many groups as she could to quote, protect Americans. And then, unsurprisingly, Noem terminated the TPS program for 13 separate countries, apparently, without any real evaluation of changes on the ground in those countries. I remember that TPS, Temporary Protected Status, is a humanitarian program that says, we do not deport people to countries that are subject to natural disasters or civil war, otherwise seemed to be a death sentence if we send you there. The way a normal administration determines whether or not to continue TPS is by looking at those countries to see if the infrastructure's been rebuilt, to see if the war is over. Yeah, that sort of thing. Right. And as Judge Murphy pointed out, the TPS statute mandates that the secretary, after consultation with appropriate agencies of the government, shall review the conditions in the foreign state for which a designation is in effect under this subsection and shall determine whether the conditions for such designation continue to be met. And the only communications between DHS and the agencies about the appropriate agencies. Right, right. One email from DHS on July 21 listing the deadlines to terminate TPS for Syria, South Sudan, Burma, and Ethiopia. One reply the next day from the State Department saying, I confirm that state has no foreign policy concerns with ending these TPS designations on or before these states. As you are aware, sanctions on Syria have recently been lifted and we have partnered with South Sudan on immigration-related issues. We can partner with South Sudan. It is still on the State Department's Do Not Go list. Right. It's one of the most dangerous places on earth. Okay. All of that very plainly violates the Administrative Procedure Act. So the underlying statute with respect to TPS is 8 USC, section 1254A. It says that there's a process and the Trump administration has basically said, F the process. And so a court has said that that action was arbitrary and capricious and thereby blocked it. Notably, the Supreme Court is going to hear a consolidated oral argument on TPS termination for Haitians and Syrians on April 27. The Supreme Court, you might recall, let Kristi Noem's termination for TPS for Venezuela go through in 2025, but they did not stay the injunctions on Haiti and Syria in 2026. Make of that way, your guess is as good as mine, Liz. Yeah, my guess is that they get embarrassed about being called out for their gross humanitarian violations. Yeah. Meanwhile, Secretary Mark Wayne Mullen is making sure that we all know nothing is going to change at DHS. Now that Kristi Noem is out. Well, well, almost nothing. Apparently, Milani is getting Noem's f***ed jet. Is that what's painted on the side? I mean, not anymore. Now that Noem's not flying around the country with her special advisor, Corey Lewandowski, DHS decided that they don't need this plane. So they're giving it to Mellon. I said no comment. Probably for the best. But Noem and her goons had an amazing knack for going on television and saying, hey, just in case there is any middle meter of doubt, we are about to do something totally illegal. So if we ever try to argue in court that we're doing it for national security or whatever reason, you can just play this clip for the judge and it'll prove that we were just being racist. And then Mellon picked right back up this week when he threatened to pull customs agents out of airports in, quote, sanctuary cities. He told Fox, if they're a sanctuary city and they're receiving international flights and we're asking them to partner with us at the airport, but once they walk out of the airport, they're not going to enforce immigration policy. Maybe we need to have a really hard look at that because we need to focus on cities that want to work with us. Three things. First of all, sanctuary cities or whatever this administration decides to call them are completely legal. Every single time that the Trump Department of Justice has sued a city or a state or other jurisdiction over its refusal to cooperate with ICE, it has lost in court. I mean, a judge in Colorado just dismissed the Department of Justice's Sanctuary City lawsuit against that state two weeks ago. That's because the 10th Amendment says that states do not have to carry out federal law. The end, right? Second, in terms of coercing jurisdiction, federal courts have also ruled that the federal government cannot extort states to carry out federal law by retaliating against them when they don't by withholding unrelated federal funds or other government benefits. So the federal government can, for example, tie federal highway funds to states enacting certain speed limits or DUI laws, but not to immigration policy, right? Even though, you know, you might argue immigrants use roads or whatever. So my point on all of that is that Mullins' plan is DOA, even if they would be stupid enough to act on this, you know, well, we got to take a hard look at it, which, by the way, this administration won't, right? Because third point, people would hate it. I mean, like, and they would properly blame this administration. I mean, look, the Homeland Security shutdown was arguably Congress's fault. I mean, they didn't fund DHS and lots and lots of TSA agents called out sick and quit because, you know, no one works without paying, nor should they, right? And that caused chaos at airports. And the blowback was ugly enough that Trump was, that Trump stole money from God knows where else to pay TSA agents and put it into that. Right. And that's an impoundant violation. We wrote about it on the site. Congress passes the budget and Trump cannot just shift money around at will. But since Congress is currently MIA, there's no one to stop him. And then recently he stole even more money to pay the sections of DHS outside of TSA. The first, the first time you only stole money to pay the TSA agents because it was too politically painful for him to have these airports shut down. Particularly with the ICE agents wandering around getting paid. But as it's gone on, he's stolen money to pay the other components like FEMA whose employees were not getting paid either. But no one really noticed because that didn't impact air travel. Anyway, the point here is forcing international flights to reroute through like Boise or I don't know, Miami. Airports in red states. That's not gonna work out well for anyone. People will be really mad, including in the red states, right? That will snarl traffic in Miami, right? It will wreck airports in Miami. It will make all, you know, they're not gonna do it. They're not gonna do it because they know that they're gonna get the blame. Yeah, I dare you to enact this plan, tough guy. Yeah, so okay, speaking of tough guys. Nice plug. Michael Ivanotti out of prison. Moved to a halfway house last week. He will be in BOP Bureau of Prisons custody for a couple more years, but he will not be in jail. Well, that's nice for him, I guess. I gotta admit, I was on that Ivanati train for embarrassingly long after I should have gotten off. Not me. I clapped that grifter a mile away. I mean, fair. Good on you. I mean, you know, I'm still way behind you if we're keeping score. All right, so let's end with some nice news. Election day was Tuesday in multiple parts of the country. In Wisconsin, liberals further cemented their majority on the state's highest court when Christine Taylor crushed conservative Maria Layser 60 to 40. That court is now five to two liberal. And yet Ron Johnson is still a senator in Wisconsin. How? How? It is a damn shame that he is not up for reelection this year. Yeah. But you know who is? John Ossoff in Georgia, and he has got to be thrilled with the results in the special election to replace Marjorie Taylor Greene who retired. Yeah. Now, don't get too excited, right? Because Republican Clay Fuller won that seat handily. But that district went for Donald Trump by 37 points in 2024, and Fuller's margin was just 12 points, right? He won 56 to 44. That is a 25 point swing. Yeah, that's just incredible. I know, Andrew, that you don't read a lot into these special elections, and I know this because you are needling my kid Joe, our elections expert, about it in our group chat. Well, I know he's not really going to stab me. I mean, not the least of which is he's 750 miles away. But I got to say, you guys, in our group chat, Andrew's like, meh, I don't know, 25 point shift, whatever, whatever. Look, what I said was in very red districts, I would not read a 25 point shift as reflective of the electorate, right? As in the electorate is 25 points to the right. Because I think a lot of Republicans say, well, no, you know, I'm going to go in and I'm going to vote for the Democrat to send a message because they know at the end of the day they're going to contract that margin from 40 points down to 15 or whatever. If they really, really thought that their vote was going to flip, I think it's like when people answer polls, right? Like I think when push comes to shove, hardcore Republicans will come up with an excuse to vote Republicans. So that was my point. I mean, I take your point that it is not going to be a one-to-one correlation, right? But I don't think that that's, I don't think that you can sort of write it off. I think this is a very clear sign that the electorate is extremely unhappy with the Republican Party and is going to continue to show up and say so with their votes at the polls. I think that's right. I just would not read this as a 25 point blue. You want to tell me there's going to be an eight or nine point blue wave? Eight or nine points. And I welcome it, which is you. You would take the Senate, right? Yeah, absolutely. And I am here for it. But when people are talking about we're going to get 53 Democrats in the Senate and we're going to sweep in Texas and Alaska and Ohio and I'm like... Oh, I think we can get Alaska. I think we can get it. I think all those states are in play, but I'm just a little nervous. All right. All right. We're going to be back in a hot second with a little DOJWTF roundup. Unless you are a subscriber at patreon.com slash law and chaos pod or law and chaos pod.com, in which case not today, no ads for you, not ever. Let's talk about the DOJ, which is currently a shit show debacle. Legal too. Legal stuff. Yeah. We wrote about it for the blog in the context of Todd Blanche's gross toadying as he jockeys to be named the permanent attorney general now that Pam Bondi is out on her keyster. Let's play the clip. Let's play a clip. I love working for President Trump. It's the greatest honor of a lifetime. And if President Trump chooses to keep me as acting, that's an honor. If he chooses to nominate me, that's an honor. If he chooses to nominate somebody else and I go back to being the DAG, that's an honor. If he chooses to nominate somebody else and asks me to go do something else, I will say thank you very much. I love you, sir. So I don't have any goals or aspirations beyond that. I love you, sir. I love you, sir. To, sir. With love. I saw that movie. Way to go for the James Bond deep cut there. James Bond. To, sir. With love. No, that's from Russia with love. Oh, yeah, you're right. To, sir. With love was a movie with Sidney Poitier. Oh, you're right. Oh my God. Bryce, you got to leave this whole thing in. Of course, absolutely. Okay. Look, it's been a long day of writing stuff. Have I mentioned that we are not the same age? Okay, fine. You want to go back to what you were saying about it? Yeah, look, like I stand by my misunderstanding of like old movies and stuff. Look, what Todd Plants just said here sums up absolutely everything that is wrong with our government right now. It is a fascist regime. It is centered on the personality of Donald Trump. The only thing that matters is praising dear leader and giving him what he wants, the competence and any other factor just irrelevant. Well, it's lucky that competence doesn't matter because Jeanine Pirro, the unlikely US attorney in DC, also wants the top job at DOJ. And you know what? I take that back. I don't think she's completely incompetent. There was this fascinating piece on her in New York Magazine this week. I'm going to link to it in the show notes. And it really captures the two sides of Pirro and why she and Trump have gotten along so well for decades because look, they are both simultaneously doing a real job and playing the character of themselves, doing that job on television if you catch my drift. Say more about that. Trump didn't make most of his money as a property developer. He pretty much went broke as a property developer. He got rich playing a successful property developer named Donald Trump on TV. And Jeanine Pirro was indeed a real prosecutor. But she also kind of, first she ran for public office as this caricature of a tough prosecutor. And then she parlayed that into a role on TV as Judge Jeanine. That's really interesting. Right. And look, then Pirro's life fell apart when her horrible husband got indicted for fraud. And I mean, did she know? She signed their tax returns. I don't know whether she knew. It doesn't even matter, right? That she was in this horrible position because her husband was in jail in Florida and Trump took her in, you know, flew her back and forth and put her up at Mar-a-Lago so she could visit her husband in jail and helped her get back on her feet. And he also did the same for Rudy Giuliani after Rudy lost the 2008 Republican primary and sort of fell into this crippling alcoholic depression. Is the reporting it anyway? Rudy's another person who, as we said, basically plays himself on TV, right? Anyway, this New York Magazine article has Pirro being interviewed in the presence of this PR minder who was her PR guy at Fox and is now her PR guy at the Justice Department, which is insane. It's so perfect. Here she is, Jeanine Pirro, the actual United States attorney in the most important federal district in the country. And she's still, as you say, playing a part. Right. And that's what makes this profile so fascinating because she really was a prosecutor, unlike many of the goobers that Trump puts in charge, right? You are, you know, this is the soft bigotry of low expectations. Fine, fine. But I mean, yes, it was a long time ago and it was in the state and not federal, all of that, you know, caveat. But she talks about coming into the office in D.C. after Ed Martin, like that goober, got packed off to main justice. And she says it was tumbleweeds in the office. Like she says, I come in here on my first day and there's like nobody. I was like, where is everybody? And I realized the office was short 150 lawyers. No one was in charge. People have been fired, demoted, senior staff were leaving. I, where is, right? Give you, I, yeah, you are absolutely on the days dangerously close to an accurate assessment of the office, right? Like by contrast, Harmey Dillon, another Trump land lawyer that we're going to talk about more in a couple of minutes. She loses two thirds of her staff in the civil rights division at the Department of Justice. And then she goes on Twitter to pretend like that's great, right? I bet those grapes taste terrible. Like thank God all those deep state liberals that were embedded in my office are going, we don't need them anyway. Right. Or Todd Blanche in his first press conference as acting attorney general. He said basically the same thing. Right. Even as the DOJ's public integrity section is functionally dead. There's, there's no one left to prosecute white collar crime. I mean this week they announced that they were raiding the fraud division at Maine Justice for the new fraud division to racist boogaloo. I mean it's basically dedicated to harassing Somalis or whoever's on Trump's shit list this week. Anyway, Blanche had to stand up there in this press conference with a straight face and say, no, we have had so many lawyers, the best lawyers, only a leftist trader press would write that we're cannibalizing our staff. Fake news. Right. Right. And in this article, Jane Pirro is like, no man, like in the US Attorney's Office, we need lawyers to do the work. Yeah. They should actually be competent. I guess I am persuaded by your point on this, Liz, that like she does understand that this is a real job, right? At the same time, like everybody else in this horrible fascist regime, like she understands that pleasing Trump is job one and two for 99. Yeah. I mean, that's not doing very well there. CNN has an article confirming what we've all seen for the past year with our own eyes, right? DC Juries hate her, distrust her office, will not convict when she brings cases. Her office has a much lower conviction rate than comparable US Attorney's offices across the country. They all average like 90% because federal prosecutors don't like to lose. Because the Justice Manual instructs you to prosecute cases where you can. I mean, they settle 95 to 99% of cases, right? You don't go to trial when you can lose. That's why you don't have a 50% success rate. Right. And that's what Pirro's got more or less. And that's not counting all the crappy gun charges. They get tossed and the cases where she gets no billed by a grand jury so that the cases never even get to indictment and much less a trial. Yeah. You can file all of that under the real job part of her duties that she understands as a former prosecutor. There's also the political part of her duties, which she understands as a Trump toady, right? And so that involves her indicting protesters in the light. I gotta tell you, she's not doing great at bringing Trump the scalps of his enemies either, right? Like she got exactly zero grand jurors to vote to indict the members of Congress who made that video urging troops not to obey illegal orders, right? That was led by Senator Markelly, right? Chief Judge James Boasberg quashed Pirro Sapina to Federal Reserve Chair Jerome Powell. I mean, not exactly hitting the Mendoza line here. Not on TV, not in her actual job, not in the Trump land part of her job. Right. Yeah, I strongly doubt she's going to be the eventual nominee to replace Pam Bondi. Yeah, I wonder what the Cal-C she shares on her selling that right now. I refuse to ever look at that. Good for you. Anyway, Politico had a piece on the succession fight, though, and it says that Harmeet Dillon, the current head of the Civil Rights Division, whom you just mentioned, is actually in the mix. I had kind of discounted that possibility when I read about it last week because, like, Dillon is batshit. Yes, like, okay, she is trying to criminalize DEI and harass trans kids for sport, but I don't really think Trump, in his heart of hearts, gives a shit about that. I think he gives a shit about, you know, scalps up his enemies, as you said. On the other hand, Dillon and White House counsel David Warrington used to work together. They represented the Trump campaign and various other conservative causes. And now they're cohootsing to boost Dillon's odds of getting the top job. I love that verb. I'm going to have to start working it into the vocabulary. But look, I share a lot of your glee at Harmeet Dillon possibly being attorney to judge because she is so incompetent. Yeah, I'm not sure I'd call it glee, but I mean, I guess it's like, it's one of those, if we were on Kashi, to me, it's got like a very high probability of her being too incompetent to make anything happen. But there's also at least a small chance that she could make really terrible things happen. You know, it's just more of a distribution of risk. Yeah, and to that end, her office is currently investigating Cassidy Hutchinson. That is the former fairy braver young aide to Mark Meadows who turned star witness for the January 6th committee and everything that Donald Trump did to ruin her life in connection to that. The goons have been gunning to lock up this young woman for perjury for years. And now Harmeet is on the case. Now, you might be wondering, how does the Civil Rights Division wind up investigating perjury, which if true would be a crime? The answer is nothing. Like, no, they did. But the New York Times reports that former Attorney General Pam Bondi gave the case to Harmeet when she Bondi was trying to save her job and that she didn't offer that to Jeanine Pirro. Yeah, I don't even know how to interpret that. Like, there's a couple ways. Like if you squint hard, it's kind of a compliment to Pirro because for all her faults, Pirro does seem to be trying to color sort of inside the lines, right? Like, interesting. Lindsay Halligan did manage to get indictments of Comey and Tish James in the Eastern District of Virginia when Bondi kind of shoved her in there. But the judges who saw the grand jury transcripts of Halligan's presentation flipped their shit. And I think it was three judges, which suggests that Halligan either misled the grand jurors or made basic misstatements of law. Yeah, porcano loaves. Right, it's just a strong suggestion that is opposed. So Pirro keeps getting no-billed when she presents these cases to grand jurors and they reject it. And that's deeply embarrassing. But it also suggests that she knows there's some shit you cannot say, even if it would help get the scalp, you know, even if it would help get the indictment that Trump wants. And I kind of read Bondi passing the Hutchinson case off to Dylan, not Pirro, even though Pirro is a criminal prosecutor in this district, as an acknowledgement that no one with even the tiniest shred of confidence and ethics would be able to make this case against Cassidy Hutchinson. Because, I mean, if you were willing to say any kind of shit, you might be able to get it. You might be able to bring her in. But if you had any kind of governor module, no, no, you're not going to, you can't get this. This is ridiculous. That is so interesting. We'll have to see what happens because Dylan's cause took a bit of a hit today, as yet another court told her that she cannot access full unredacted state voter rolls. No, not even if she says she's doing it for the civil rights. We have discussed these cases on the show before. Check out episode 203 for a full discussion. But basically, the Department of Justice is taking the Civil Rights Act of 1960, not to be confused with the Civil Rights Act of 1964. It's, you know, more famous older brother and is absolutely perverting. So that law, the Civil Rights Act of 1960, said that local registrars had to retain materials submitted by voters and turn it over to the Department of Justice if needed. That was obviously the clear unmistakable intent of Congress was to ensure that local officials didn't just throw away black citizens voter registration forms, reimpose a form of, you know, voter literacy test or whatever. But the Trump administration wants to take that law and use it to build a national voter list and demand that states delete people from that list on demand. Right. And in fact, the president just put out an executive order saying that the post office should refuse to deliver absentee ballots for people who are not on that list, which is insane and illegal. And we will talk about the litigation to block it next week. I think that odds of that actually going into effect are basically zero, which is why everyone has ignored it. But for our purposes, Harmeet has sued at least a dozen states for refusing to hand over their full unredacted voter rolls. And she is 0 for 4 in court. This week, it was Judge Leo Sorokin in Massachusetts who said that the Civil Rights Act requires the AG to state a reason for demanding these voter information. And, you know, to ensure that the state is complying with the law isn't a reason that's completely tautological. So tough luck, Harmeet. Proving once again that it is a lot easier to promise the rubes that you'd make all their dreams come true if you had the power than to actually deliver on those promises, which means delivering indictments or prove that there's rampant imaginary voter fraud or make sanctuary cities help with immigration if I could go. Right. Right. But and that's that's kind of why to bring it back. Todd Blanche's disgusting display in that press conference. I love you, sir. Right. So insidious because he pretends that this filthy perversion is virtue. Like, you know, Nixon, we always go back to Nixon, his Attorney General, Elliott Richardson, and then the Deputy Attorney General, William Wreckleshaus, resigned rather than fire special prosecutor Archibald Cox. And that shocked the country because we felt in our bones that it was wildly inappropriate for the president to interfere in the Justice Department, that there should be this separation to ensure blind justice. And there's been this firewall for generations between the president and the DOJ. That's why it was so unacceptable for Bill Clinton to talk to Loretta Lynch on the tarmac when she was investigating Hillary Clinton's email server. And yet Todd Blanche is out there saying, of course, the president has the right to control investigations at DOJ. And it is killing the entire institution. This personalist regime is just rotting it from the inside. And they have lost thousands of lawyers. They cannot hire really talented people. And they're using what talent they do have on stupid political stunts like this fraud task force or whatever it is. And it's affecting everything that comes out of the DOJ. The quality of lawyering that we're seeing in these cases, we talk about this all the time, is often terrible because these people are forced to make bad arguments to defend bad law and bad faith acts by often DHS. It's a vicious cycle. I mean, to borrow a common comparison, they're banging themselves on the jaw with a hammer and thinking, make us stronger. You know, you bloody idiots, you are shattering your jaw. You are shattering this department. It's stupid maxing, as it were. Yeah. All right. I'm gonna hop off my soapbox. We're gonna take another ad break and we will be right back to talk about the 25th Amendment. And we are back. Okay. I don't know whether you guys noticed this, but it was an exciting week at the White House. It was like the Grandpa Simpson gif where he like, you know, hangs his hat up, he comes in, hangs his hat up, turns around, takes his hat off. Like, yeah, if Grandpa Simpson had the nuclear football. Right. So the war is over. Question mark. Donald Trump after tweeting. This is ceasefire that hasn't ceased any fire. Correct. Yeah. Look, you all know what happened, right? Trump tweeted that he was going to end Iranian civilization and, you know, open the straight, you fucking weirdos or whatever it is that he tweeted. I mean, he's, look, we all saw the tweets. And then the blowback was so severe that all of these politicians were like, oh, we need to call for the 25th Amendment because this is a disaster. You can't do this. This is like war crimes. Are you threatening to nuke this country? Yeah. And then Trump said, okay, I guess it's over. Everything's fine. We've agreed to a framework with Iran. And Iran was like, yes. And the framework that we've agreed to is that we can turn the Strait of Hormuz into a toll booth and collect $2 million in Bitcoin for every ship that wants to go buy, which like, I mean, the art of the deal. Yeah, like, we've agreed to give Iran everything he could ever possibly want. And okay, but look, before we get into the weeds on the 25th Amendment, which is kind of my walk-up music, let's talk about the baseline rules in the Constitution, because the Constitution, as drafted, contemplated the possibility that a president might die in office, right? That's Article 2, Section 1, Clause 6 of the Constitution. That established the principle of succession. It says that if the president dies, resigns, or is removed from office via impeachment, or is unable, here's the precise language, to discharge the powers and duties of the office, then the vice president becomes the acting president until that inability is cured or a new president is elected. If there's no vice president, then the Constitution says it's up to Congress to provide for a line of succession, which by the way, it did. Again, one of the very first things Congress did, it's the Succession Act of 1792. And with amendments, that's still good law today, 3 USC, Section 19. So the statutory line of succession is JD Bantz, obviously the vice president, followed by Speaker of the House, Mike Johnson, then followed by President Pro Tem of the Senate, that is like the person who's been there the longest, which is currently Chuck Grassley, the slightly 92-year-old, yes, he's running for reelection, followed by Treasury Secretary Scott Besson, followed by Secretary of Defense, blah, blah, blah. I have an good authority that we don't have a Secretary of Defense. We have a Secretary of War! Well, that's probably for the best use. I don't think that Pete Hicks has to be in charge of like bringing snacks to the soccer game. I think if it got to number five at line, he would quickly say, I'm happy to be called Secretary of Defense if you call me. Anyway, look, that legal scheme, right, the Constitution Succession Clause plus the Succession Act of 1792, it still left some unsettled questions that the framers hadn't necessarily thought about. So for example, the Succession Clause says, as I emphasized that if the office of the president is vacant, then the vice president becomes the acting president, right? He doesn't, under the Constitution, become the president because the same language applies whether the president is out on a permanent basis because he's been impeached or dies in office or resigns or whatever as to temporary vacancies, right? Like, he gets knocked out for a colonoscopy, right? And so let me give you a couple of examples that happened in history. Franklin Delano Roosevelt was elected to his fourth term in 1944. FDR died in April of 1945, just, you know, three months into that term. Vice President Harry S. Truman, under the Succession Clause, became the acting president. But because there was no mechanism to fill the office of vice president, right? So for almost four years, Truman had no vice president. And if something had happened to Truman, we would have been left with the Speaker of the Halt, right? Like, so in 1963, it happened kind of for the last time, right? Like, President John F. Kennedy was assassinated, Lyndon B. Johnson becomes president. He had no vice president in 1963, the end of 1963 and most in 1964. And in fact, like, that situation, the vacant vice presidency happened a lot in our nation's history. In the 175 years from George Washington to Lyndon Johnson, there was no vice president for 37 of those 170. That's 20% of our nation's history. Yeah. And I mean, interestingly, the vice president breaks a lot of ties right now. I don't think that that used to be the case, but it is certainly the case now. When there's basically no comedy in the Senate, that could have a really interesting impact. But the 25th Amendment was passed to fill in these gaps. It has four sections. Section one says that if the president dies, is impeached or resigns, then the VP shall become president, clearing up the ambiguity over acting. Section two says that if the office of the vice president is vacant, the president can nominate a new vice president who can be confirmed by a simple majority vote of both houses of Congress. So problem solved, unless, by the way, you don't have two houses of Congress. Because, you know, look, if we took back the Senate or the House, we would never, we would never confirm anybody. I sure wouldn't. Nope. And I would vote for anybody who primaried any Democrat who voted for one. I mean, think that through, right? Well, why would we confirm a vice president when the vice president is the one who breaks ties in the Senate? There is no way in hell we would do that. Right. Or when, if the Democrats recapture the House of Representatives, the speaker of the House is next in line. Yeah, exactly right. Uh-huh. So section three and four define what counts as being unable to discharge the powers and duties of the office of the president. Section three is voluntary. So if the president himself says, I can't do this job, then the vice president serves as acting president until the president says he can resume his duties. That's the colonoscopy. George Bush had medical procedures a couple of times that required him to undergo general anesthesia, and he sent letters to Congress saying, hey, while I'm out, Dick Cheney is in charge. And he reclaimed the office once he regained consciousness, and everybody said, wow, I can't believe I'm glad to have you back. Right. That's just those miss me yet, billboards. I've just taken out a new meeting. But, but okay, that's voluntary. What if the president, that, you know, themselves does not make their own determination and capacity, specifically two of the drafters of the 25th Amendment, that is Senator Birch Bay and Representative Richard Poff, they were worried about a couple of different scenarios. The first was if there's a sudden accident, right, where the president is alive, but unconsciously in a coma, so he can't send that article three letter. And the other scenario, and this is explicitly on the record from the congressional debates over the 25th Amendment is, what if the president is unable or unwilling to make the rational decision to step aside, right? If you can't evaluate things properly, maybe you can't evaluate that you can't evaluate things properly. And that is what we're talking about with Donald Trump. All of those scenarios are governed by section four of the 25th Amendment. That is the involuntary removal of the president. So we're going to break dance a long section, but first it gets invoked. And the way in which section four gets invoked is by a written letter to Congress. That letter has to say that the president is unable to discharge the powers and duties of the office, right? That reflects the language in the Constitution from the succession clause. That letter has to be signed by both the vice president and a majority of, and now either the cabinet or such other body as Congress may by law provide. Now, Congress has not provided such a body. Might be a good idea to get on that now, but okay. So what you need is you need the signatures of both JD Vance and a majority of Trump's cabinet. Right, specifically the 15 executive departments that are in the line of succession. So yes, that would include Secretary of Department of Homeland Security Mark Wayne Mullen, but not EPA Administrator Lee Zeldin unless he becomes the AG, which I suppose it could happen. Currently the office of the AG is vacant, which suggests that Todd Blanche does not get a vote as the acting attorney general. No one really knows because section four has never been invoked. But either way, you would need eight people to sign on to that letter. Yeah, right, whether the acting AG, it's either eight, seven or eight, six, but still eight. But okay, so that's how you get the letter. And as soon as that letter is transmitted, right, with the vice president's signature and at least eight cabinet members, then the 25th amendment says the vice president shall immediately assume the powers and duties of the office as acting president. So JD Vance would instantly take over the powers. I feel like a lot of people rooting for the 25th amendment have maybe not thought this part through, but yeah, right, okay. But after that letter happens and JD Vance takes over, the president can try and take back the office, right? So if Donald Trump sends his own letter to Congress signed in that chump of his and says no inability exists, right, that's what he's got to write, then here's what the section four of the 25th amendment says. He, meaning Trump, shall resume the powers and duties of the office unless the same group that sent that first letter, right, the VP and a majority of the cabinet, they send another letter within four days that says no, he definitely cannot resume the office, like he's nuts. I'm paraphrasing, but I'm only paraphrasing lightly. But okay, if that second letter gets sent, then Congress has to decide, right, they've got to assemble, they have to vote on which party they believe, the president on the one hand, or the vice president and the cabinet on the other hand. And this is the critical part, it takes a two thirds vote in both houses to side with the vice president and the cabinet. If not, if you fall short in any of those ways, then the president wins and he takes back over. And I want to contrast that with what it takes to impeach a president. Yeah, that's a good point. Yeah, because it takes, it still takes a two thirds vote of the Senate. But to get an impeachment resolution, as we well know from both Clinton and Donald Trump in his first term, it only takes a simple majority of the House. So in other words, it takes more votes to continue to keep out a president through the 25th amendment than it has to just impeach the guy. And that is by design, right. And the reason for that is because there isn't anything in the text of the 25th amendment that defines what unable to exercise the duties of the office means, right. Some people, for example, suggested removing first Bill Clinton, and then Donald Trump during the impeachment trials, right, because the argument was they can't effectively do their jobs while they're standing trial for impeachment. Obviously, that never happened. But in principle, if it had, right, like if two thirds majorities in Congress had removed Bill Clinton while he was impeaching, like, I don't think he could have gone to the Supreme Court and gotten an injunction to get back in. Right, like, this is not a justiciable question. It is up to Congress to figure out what unable to exercise the duties of the office means. And the Constitution sets out the remedy, right, that guarantees against, you know, a coup by the vice president aided. If you're an unpopular president and you're being railroaded, right, but you can head off being removed from office by section four, all you got to do is first persuade the guy you chose to be vice president, right. Or if you can't do that, persuade half your cabinet, right, the people you handpicked to make those decisions. And if you can't do that, if you can't get your VP and you can't get half the cabinet, all you have to persuade is one third of one House of Congress. And if you can't get any of those three things, like, you probably have bigger things to worry about. Yeah. And if you were Donald Trump, you would just fire eight members of your cabinet. I mean, I have spotted a problem with this plan. There are so many problems. Yeah. Okay, let's be for real. No one thinks that this is actually going to happen right now, right? Vance is in the driver's seat. And even if he somehow decided he would like to be president tomorrow, right, all of those totes walking around in size 17 floor shims will never sign on to this. But I think the fact that we're having this discussion still matters. I mean, lots of people on the internet yelled at the senators and members of Congress who said, 25th Amendment now, because they were like, why don't you just impeach this guy? You know, as you said, the threshold is lower. But I think we all know that's not going to happen. And I still think it matters, right? Trump's behavior is so routinely crazy that it becomes background noise. And we basically ignore it. We tune it out, right? He does 10 things before breakfast that would have gotten any other president impeached. Right? I mean, and not just like the little things, Hillary Clinton was blamed for an attack on an embassy in Libya when she was thousands of miles away. Yeah. Trump and Rubio and Hexeth did nothing, zero, to protect and harden our embassies in the lead up to this ill-conceived war. And they have been attacked. And that gets no mention at all, right? Trump's craziness and in his incompetence are just like baked in at this point. And the fact that he did something so batshit crazy that it broke through the news cycle. I mean, it's terrible, right? The United States president should not be threatening genocide. But on the plus side, it did finally get Trump's manifest unfitness back into the news cycle again. And that little fire under Democrats, who spent so much of 2025 on the back foot. That's a really good point. And I should add, it clearly freaked Donald Trump out, right? I mean, to the point that he dropped everything and ran away, right? He left Iran in charge of the Strait of Hormuz, even as Israel is still bombing Lebanon. Right. I mean, he clearly ran screaming for the hills because the cost of this war got a little too close to his orange ass, if you forgive me. And I don't know how to get the press to stop Sane Washington Trump. I don't know how to get people to notice and care that he's completely unfit for office, not just morally, but also mentally, which is increasingly obvious every day. But for a minute, Trump managed to show people to the point that everybody paid attention to a thing which everybody ignores. Yeah, good point. Okay, we're gonna take a quick ad break and we will be right back to talk about a brago Garcia spanking Todd Blanche, we think, we hope. Okay, Andrew, I know you're excited to talk about Kilmauer, a brago Garcia's motion to dismiss his human smuggling case in Tennessee on grounds of selective and vindictive prosecution. I am, because these motions are almost impossible to it basically never happens. And I think this guy just might do it. Wow. Okay, you want to define that what is a selective and vindictive prosecution? Right. Well, first off, it's actually two separate things, although they are almost always pled together. Selective prosecution is when the government prosecutes you, but not other people similarly situated, which suggests that they went after you because of some sort of improper animus. And vindictive prosecution is when the government prosecutes you to punish you for exercising your constitutional or statutory rights. It must be more than just the prosecutor doesn't like you, prosecutors often strenuously dislike people they think are criminal, right? That is not the test. The test is, is the federal Department of Justice using the court system as retribution. You know, yes, yes, yes, but these cases are almost impossible to win because, among other things, prosecutors have an enormous amount of discretion, right? It is not a defense that the government hasn't prosecuted other people who have broken the same law, right? Like, the government gets to pick and choose whom it wants to prosecute and courts virtually never second guess that prosecutorial discretion, right? That is why we said correctly, right, that Donald Trump did not have a shot in hell improving selective and vindictive prosecution in these stolen documents and election interference cases. He raised emotions to dismiss in both of those cases in DC and in Florida and not even Eileen Cannon bit on the vindictive prosecution player. I mean, look, I gotta tell you, like, hard to heart, like, Jack Smith probably does hate Donald Trump, right? Like, I hate Donald Trump, right? But to get your case tossed, you have to show that you're being prosecuted as punishment in retaliation for exercising your rights. And here with a brago, that's really pretty clearly what happened. I mean, we all saw it, right? After the administration illegally deported him to El Salvador, a brago exercised his constitutional right to file a habeas corpus lawsuit demanding that the government bring him back. And he won, right? The Supreme Court affirmed that the government was at least required to facilitate a brago's return to the United States. And then the government dummied up this criminal case two years after the alleged conduct occurred. So here is, once again, Deputy AG, Acting AG Todd Blanche talking to Laura Ingraham on Fox News. Here she's, so she's asking, did you deport this guy in retaliation for losing in court? And Blanche doesn't exactly say no. So this had nothing to do with Judge Boesberg's decision, which I thought was, you know, over the top, Supreme Court saying, you know, you got to try to facilitate the return. So you're saying tonight that that, the warning of possible contempt charges against administration officials, none of that had anything to do with the investigation. No. I mean, first of all, the Supreme Court stayed any contempt proceedings by Judge Boesberg. That case has been stayed. In this case, we had a judge in Maryland tell us that, oh, no, there's not any evidence that he's a member of MS-13. You had no right to deport him. And so we, what should we do as a Department of Justice? Would a judge is accusing us of doing something wrong? We have an obligation to everybody, including you, to investigate it. And that's exactly what we did. And so the reason why he was returned and the facilitation that brought him back here is not a judge. It's an arrest warrant issued by a grand jury from the Middle District of Tennessee, charging him with two counts of very serious charges, involving nine years of smuggling aliens all over this country, from Texas to Maryland and other states. That's why he's back. And that's why the government of El Salvador agreed to bring him back because of a federal arrest warrant. Yeah, that's a lot of double top. But from a legal perspective, when Blanche says he's not coming back because of what some judge in Maryland says, he's coming back on an arrest warrant, I think that sure sounds like it might be a vindictive prosecution. So back in October of 2025, Judge Waverly Crenshaw in the Middle District of Tennessee ruled as a matter of law that a brego had made out a prima facie case of vindictive prosecution. Here's what Judge Crenshaw said in that order. Deputy Attorney General Blanche's remarkable statements could directly establish that the motivations for a brego's criminal charges stem from a brego's exercise of his constitutional and statutory rights to bring suit rather than a genuine desire on the part of the Department of Justice to prosecute him for alleged criminal misconduct. The totality of events creates a sufficient evidentiary basis to conclude that there is a realistic likelihood of vindictiveness. So translating that into English, the effect of Judge Crenshaw's ruling was to shift the burden, right, to say, okay, a brego has now made out a prima facie case of vindictive prosecution. So the burden is now on the government to prove that it didn't just dummy up a case against him to then back formulate a justification for deporting him to El Salvador and that they're not prosecuting him out of spite for a brego having embarrassed the government by winning his habeas case. Right. So Judge Crenshaw told the administration that they would have to explain, and again, let's quote from the order, how did a brego's case arrive on U.S. Attorney Robert McGuire's desk? And why did it show up on April 27th, 2025, when the case had previously been closed by the Department of Homeland Security on April 1st, 2025? Cases, again, this is from Judge Crenshaw himself. Cases do not magically appear on the desks of prosecutors. The motivations of the people who place the file on the prosecutor's desk are highly relevant when considering a motion to dismiss for vindictive prosecution. Okay. So now let's talk about the government story here, because it does not bear the indicia of credibility, as they say. The government's version of events involves Rana Saoud. She's the special agent in charge of Homeland Security investigations in Nashville. Being forwarded an article from the Tennessee Star newspaper titled, 2022 Tennessee Traffic Stop of Kilmour, a brego Garcia, was day three of trip that originated in Houston, took detour to St. Louis, crossed trafficking hubs and areas with MS-13. Agent Saoud says that politics was the last thing on her mind. In fact, what happened is she was so agitated by this story in the paper that she, plump, forgot which friend, somebody in the department, sent her the article. Instead, she got on the horn with the U.S. Attorney's Office to ask U.S. Attorney McGuire if he was investigating this hardened criminal of brego Garcia. A hardened criminal who was at the time of her inquiry in a Salvadoran torture prison supposedly never to set foot on American soil again. That call from Saoud led McGuire, again, this is the government's version of events, to reopen the investigation into a brego. And lo and behold, McGuire found all this evidence of what a bad guy a brego was. And so, McGuire then got on the horn with Maine Justice, again, on his own initiative and announced that he and he alone had decided to go to a grand jury and get an indictment of a brego in absentia, because that was the best use he could think of of prosecutorial resources. McGuire insists... Maybe not a lot of crime in Nashville. Yeah. Is there? So, McGuire insists that all of his communications with Todd Blanche, the Deputy AG, were in his words a one-way street, that is from his office to D.C., and it was just this really crazy coincidence that McGuire came up with a plan to indict the guy that Blanche and Pam Bondi and Stephen Miller and everybody at the Department of Homeland Security and the President, by the way, were all trashing and saying was a hardened criminal. It was also a coincidence that the longtime head of the Criminal Division of the Middle District of Tennessee quit the day before they indicted a brego, almost like he wanted nothing to do with this corrupt shit. Okay, so that is the government's story. Saoud reopened the investigation and McGuire decided on his own to charge a brego and no vindictiveness and no dismissal. Yeah. There are only four or so glaring problems with the story. Okay, number one, a brego lived in Maryland, so the criminal investigation into his 2022 traffic stop was not initially run out of Homeland Security's Nashville office. It was run out of the Baltimore office because that's where he lived and it was Special Agent John Van Wee working out of the Baltimore office who closed that case on April 1st and reopened the case on April 17th of 2025. That was a week before the Tennessee star story came out. Oops. And for months in response to Judge Crenshaw's orders, the government had been saying in response to interrogatories and as part of the basis for its refusal to produce documents as to how the case got reopened of, no, that was up to Special Agent John Van Wee in Baltimore. We're going to put him on the stand and you'll be able to hear his testimony. You'll be able to ask him questions about it. He was on the witness list to show up in court in the Middle District of Tennessee on February 26th. And when February 26th rolled around, the government did not produce Agent Van Wee. No, they produced just two witnesses. They produced McGuire, the U.S. attorney, and they produced Agent Sayud. But Van Wee just wasn't there at all. And a brego's lawyers say, come on, Judge, you know why they didn't put him up here. They didn't put him up because we were going to eviscerate this guy on cross-examination. So because he was an unavailable witness, they were at least able to ask some questions of McGuire on cross-examination. Right. That's the get around the hearsay. Exactly right. Like you can't otherwise say, hey, Bob McGuire, what did Agent Van Wee tell you? But if Agent Van Wee isn't there, then you can. And when they asked McGuire, hey, what did Van Wee tell you about why he reopened the investigation, McGuire said, well, he told me that it was in response to inquiries from the headquarters. Okay. So headquarters is main justice, right? Well, I think it means the Department of Homeland Security there. But at any event, it means higher up the chain. Okay. Right. And a brego's lawyers say, look, like the whole question is, is this a top down prosecution? And you deliberately didn't put on the witness whom we could ask about whether the instruction came from the top down or whether it bubbled up from bottom. Right. So the government to try and get around this problem, right, that Van Wee is the one who actually reopened the investigation says that basically it was like a, you know, Saoud also reopened it in parallel, had nothing to do with it. It was a completely separate case. And she says under O, she, Agent Saoud, says that she was not swayed, that it was independent of anything that had ever gone on in Baltimore, which like, okay. Okay. Let's pretend for a minute that we believe that I'm not going to go ahead. Right. Now, let's talk about Agent Saoud said, I figured out about this case from an article that I read in the Tennessee Star. Let's read paragraph one of that article. Shall we see, see if you can, you know, where's Waldo this one? The Department of Homeland Security said last week that Kilmah or Brego Garcia told the Tennessee Highway Patrol that he was traveling from Houston, Texas to Temple Hills, Maryland with a stop in St. Louis, Missouri during a late 2022 traffic stop. Despite the suspicions by the Tennessee Highway Patrol, the agency told the Tennessee Star that the Biden era FBI instructed officers to release a Brego Garcia and his passengers. Okay. So what, what the article says here is that DHS was in fact the source of the article. Right. So you can't say I was inspired separately from DHS to investigate this case when DHS was the, was the source for the article. Right. So even if you believed Agent Saoud, the fact that someone at DHS sent her the article of which the DHS itself was, was the source doesn't exactly disprove the inference that higher ups demanded an investigation of a Brego after he kicked their asses in court in his habeas case. Yeah. And it gets better because that Tennessee Star story ran on a Monday. Right. But Saoud did not contact U.S. Attorney Robert McGuire on that month. She waited six days, which according to my math, is a Sunday. So what you have to do to believe this testimony is think that Agent Saoud was so perturbed that she did nothing for six days. And then on the weekend said, I must contact the U.S. Attorney's office today. Cannot wait 12 hours for a normal business day. As it turns out though, Saoud was not the only one hitting up U.S. Attorney McGuire about a Brego on the Lord's Day. You don't say. McGuire also got barraged by Todd Blanche's top deputy who describes himself as an enforcer, Associate Deputy Attorney General Akash Singh. Singh's correspondence does not look like Robert McGuire is driving the bus and he's just like getting, you know, location updates. McGuire twice reassured Singh, we're hammering as hard as we can. Singh demanded daily updates. In fact, he said, get me a draft complaint by 5 p.m. tomorrow because this is a top priority for us. And McGuire did it. He got saying his complaint by 5 p.m. So it certainly looks like main justice was controlling this case, pressing McGuire to charge a Brego. And Judge Crenshaw explicitly told the government that it was their burden to prove that the decision to charge a Brego was a local exercise of prosecutorial discretion in Tennessee, not an act of political retribution being demanded by main justice. And the prosecutors defending this case in the evidentiary hearing before Judge Crenshaw did not call a single witness from main justice. They just put the locals, Saoud and McGuire on the stand with this cockamamie story about it being totally their own plan. The government actually said, I would read from this brief, Mr. McGuire provided updates to Mr. Singh, but no commands or corrections were ever passed back from Mr. Singh to Mr. McGuire. So, they say McGuire, quote, had exclusive control over the decision to prosecute and was not influenced or induced to make that decision. And the coup de grace here is that this brief in which the government insists that this is just a normal case brought by normal prosecutor, why would you think the big wigs in D.C. are calling the shots? So, only within the discretion of then acting U.S. Attorney Robert McGuire. No pressure whatsoever from Todd Blanche or his hatchet man Akash Singh. This brief was not, in fact, signed by Robert McGuire. It is signed by Todd Blanche. Of course it is. So, look, bottom line. As we said at the start of this segment, vindictive prosecution motions are almost impossible to win. We explain all the reasons why, like as a matter of law, as a matter of public policy, but the standard longstanding precedent in the Sixth Circuit is that once the defendant has shown that presumption of vindictiveness, that was the order that Judge Crenshaw entered in October of 2020. At that point, the burden shifts to the government and it shifts to the government to provide objective evidence rebutting that presumption. And Abrego met that first test. We do not know what documents the government submitted because they submitted those in camera. Only Judge Crenshaw has seen those. But from the testimony that they put on, it does not seem that it even responds to that argument, let alone rebuts the presumption. Because even if those things were responsive, right, McGuire saying, well, I felt like I was the guy called in the shot. Like, that is... I bet you did, friend. Yeah, that is subjective evidence, right? That is the kind of evidence that the Sixth Circuit has said is not good enough. It does not count. So, I gotta tell you, I go out all the way. Like, I think this case might get tossed on vindictive... What do you think, Liz? Have I convinced you? Have I brought you along? No. Well, I didn't think so. But... Look, I mean, it would not astonish me. But I also think that it's, as you said, it's almost impossible to win these motions. And I think that it's such a politically charged case that I'm not sure that Judge Crenshaw is gonna be... I think that it will be much harder for him to dismiss it on what's gonna be treated as a technicality or a subjective judgment. I mean, look, crazy things are happening. And we've said from the beginning that the lawyering in this case, and the facts in this case are ridiculous, right? As was so much that is coming out of this Justice Department since Trump was inaugurated. It's garbage. The legal arguments are ridiculous. The facts on the ground demonstrate an absolute lack of good faith. If any case was gonna get dismissed on a motion for selective vindictive prosecution, this is it. And yet, it is very, very hard to win. And I wouldn't... I would never suggest that it was more likely than not. And I think that this case is gonna go away on its own because I don't think that the government wants to bring it. I don't think that the government wants to test these charges and get its ass kicked in court again. I think that they will blink in the end and send him to Costa Rica where he's agreed to go for months now. Right. You know, they've been trying to get him deported to someplace much more unpleasant where he does not want to go. And I think that that position is gonna become untenable as we get closer to this trial and they'll tap out. I will take that as a win, declare victory and withdrawal. You know, you and I'm not even gonna like try and, you know, turn this podcast into a toll booth. I have a 10 point plan. Oh my god. Did you see? Trump said there's no 10 point plan. That's fake news and CNN has to go to jail for reporting it. Oh my god. All right. Well, that's gonna do it for us. I hope you guys have a lovely, lovely weekend. I know the world is crazy, but it is spring in our part of the world and we're gonna go outside and we're gonna keep on living because what better FU than to make it through this shit. Have a great weekend and thank you guys for supporting the show. Law and Chaos Podcast is production of Razor to Media LLC. It's intended solely as entertainment does not constitute legal advice and does not form an attorney-client relationship. This show is research and written by Liz Dye and produced by Bryce Blank and Engel. Law and Chaos Podcast, operate Razor to Media LLC, All Rights Reserved.