transcript

Speaker 1:
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Speaker 3:
[01:03] Hello, and welcome back to Main Justice. It is Monday morning, April 20th. I am Andrew Weissmann, here with my co-host, Mary McCord. And notice I said Monday morning. And part of that, Mary, is because we have a really special guest in our first block. What's on our agenda and what's happening in our first block?

Speaker 4:
[01:24] Good morning, by the way. We're just jumping right in.

Speaker 3:
[01:27] Good morning. But this is one where we really want to jump in. Yes, we do.

Speaker 4:
[01:31] So we mentioned, I think, last week, because it had dropped right before we started recording, that we would be talking at some future time about the government's lengthy, lengthy report alleging that prosecutors in the Civil Rights Division and the US Attorney's Offices had been biased in their prosecutions of base act claims, which is the Freedom of Access to Clinic Entrances Act, and that a number of prosecutors had last week been fired. We will actually talk to one of the fired Assistant United States Attorneys. It's somebody I've known for a number of years, a prosecutor her whole entire career, just really the salt of the earth, and we'll get that first-person story.

Speaker 3:
[02:12] That's one where, stay, do not miss it. It says everything that you need to know. Okay, after that, what's next?

Speaker 4:
[02:21] Then we're going to talk about some other things that happened last week. A motion by the Department of Justice in the Court of Appeals, the DC Circuit, to vacate the convictions of the Proud Boys and Oath Keepers who had not been pardoned, the ones whose sentences were commuted but not pardoned. They want to vacate those convictions so that they can go back down to the district court and ask the district court to dismiss them. Even though-

Speaker 3:
[02:43] By the way, Mary, as you would say, that's thing one.

Speaker 4:
[02:45] Thing one.

Speaker 3:
[02:46] You know what thing two is in my view, and I'm pretty sure you agree, thing two is they probably saw what happened with Michael Flynn getting over a million dollars is my conjecture is thing two is they then will ask for money after having been convicted beyond a reasonable doubt for all sorts of activity including truly violent activities by the group.

Speaker 4:
[03:08] Yes. Exactly. That is thing two. At the same time, we will talk on the flip side of things about a recent lengthy decision by Judge Mehta in the District Court for the District of Columbia denying motions to dismiss by President Trump and the oath keepers and the head of the Proud Boys to dismiss civil claims that had been brought against them for a conspiracy to deprive federal officers and members of Congress who are the plaintiffs in this case to obstruct and prevent them from doing their job, their official responsibilities and to injure them in the course of doing their job.

Speaker 3:
[03:44] And this is a civil case. And so Judge Mehta is wrestling with the open issues in that Trump vs. United States Presidential Immunity case, saying, well, was the president on January 6th in the lead up to January 6th and a little bit after also, was he acting as a candidate or was he acting as the president? And there's more.

Speaker 4:
[04:05] Yes, and there's more. We will also talk about just briefly the fact that the lead prosecutor, who was supposedly investigating out of the Southern District of Florida, a grand conspiracy and starting back with the Russia investigation and coming all the way practically to present day. She had been really tasked with investigating John Brennan, the former CIA director, and she was removed from her position apparently after she said, I don't think we have a case against John Brennan. I'm paraphrasing. I don't know if she said those exact words, but the reporting is, and this is an experienced prosecutor, that she had problems with there being any case there. So she's been removed and a conspiracy theorist and attorney, Joe DiGenova, has been made a special counsel or some such thing to go down to Florida and lead this investigation. All kinds of problems with that. And probably that's about all we have to say about it for now, because that's about all we know.

Speaker 3:
[05:00] Other than Todd Blanche is saying, nothing to see here. This is business as usual. And the only thing I would say is he's correct if you're talking about Trump 2.0. It is business as usual. Nothing to see here. But it is not normal for any other administration.

Speaker 4:
[05:17] That's right.

Speaker 3:
[05:18] OK, but wait, there's more.

Speaker 4:
[05:19] Yes, finally, we will close out with the DC Circuit's very fractured opinion last week, really putting an end to or attempting to put an end to Judge Boasberg's efforts to determine whether the administration had been in contempt of court when he ordered all the way back on that weekend in March of 2025, he ordered no planes to take off if they were carrying any alleged members of Tren de Aragua accused under the Alien Enemies Act of being an arm of the Maduro regime. Whether the administration violated that order and was in contempt of court when, of course, two planes did land in El Salvador.

Speaker 3:
[06:00] And it's a fascinating decision. It's two to one. But even even the two have a yes, it's not quite a solid two because that there really is just a factual difference. And I thought it was at least a respectful exchange between that judge and the dissenting judge.

Speaker 4:
[06:17] That's right. It's very interesting. We'll talk about that when we get to it. OK, shall we jump in?

Speaker 3:
[06:22] Yes.

Speaker 4:
[06:22] Well, I could not be happier to introduce our listeners to my friend, Sunita Doddamani. She is one of the Department of Justice attorneys who was unceremoniously fired last week for having prosecuted FACE Act cases. And we'll talk about what the FACE Act is. That is the Freedom of Access to Clinic Entrances Act. That is an act that was enacted to make sure that people who were going to seek reproductive health care or to seek counseling about reproductive health care would not be physically or forcibly obstructed from seeking that care. And listeners will know because I think last week, Andrew, just before we started our podcast reporting, this almost 900 page report had come out from the Department of Justice that we'll talk a little bit about. But Sunita was an AUSA, an Assistant United States Attorney in Michigan, who had prosecuted along with others, prosecuted one of those cases and was fired. But before we get into that, I know Sunita for a number of years. She's been a prosecutor her entire career. I think since right after graduating law school, more than 20 years at the county level, at the state level, and then at the federal level. And we got to know each other because of some of the domestic extremist violence cases that she prosecuted that included, which every listener will know, the prosecution of the conspiracy to kidnap Governor Gretchen Whitmer. Just an amazing, amazing prosecutor. So Sunita, welcome to the podcast.

Speaker 5:
[07:52] Thank you for having me.

Speaker 3:
[07:53] Sunita, let's start with what happened last week. How did you learn that you no longer were going to be at the Department of Justice?

Speaker 5:
[08:01] Sure. I was a line prosecutor, an assistant US. Attorney at the Eastern District of Michigan for about three years. I was assigned to the FASAC case. I was a probationary employee at the time, and I was brought onto the trial team kind of right before the indictment. I was a part of the investigation, the decision-making process, essentially like the third chair of the case.

Speaker 3:
[08:23] And what case, what was the case?

Speaker 5:
[08:25] It was the Zastrow case, and it was Zastrow et al. It was seven defendants that were charged with FASAC violations and conspiracy against rights. And when you asked about how I was fired, I was fired by email while on vacation. I was, didn't even know I was fired. I got a call from the head of the security of my office, not even the US attorney, Jerome Gorgon. I was told I was fired to check my email. All my access to my phone and my laptop was suspended within a half an hour. I still haven't spoke to anyone in management at my office.

Speaker 3:
[08:58] Sunita, was there anything specific alleged? It's very rare for someone to be fired, but when it is, there's usually, I shouldn't even say usually. In my experience, I'm sure in Mary's too, it's one is better than usual, but there's a lot of process and you let the person be heard. But there's usually something specific that they did. There's some action they took. In the letter firing you, what did it say that this is based on?

Speaker 5:
[09:25] Nothing as far as I can tell. It said, Pursuant to Article 2, you are hereby terminated, affected immediately. Told me how to contact HR. I mean, it was signed, hand signed by Todd Blanche and dated that day. It was sent as an attachment by the Justice Management Division by someone I'd never heard of.

Speaker 3:
[09:45] But with no specific allegation, it's not like you'd had any notice, it's not like someone said you did anything. The only thing you can surmise is you were assigned to this case and we're about to talk about the FACE Act report. But I mean, you are one of many people who received not just last week, but in the past, what are called these Article 2 letters, which is just sort of like on behalf of the president, essentially, we don't believe in civil service rules, you're just out. Is that a fair summary?

Speaker 5:
[10:14] That's a fair summary.

Speaker 4:
[10:16] When you had said, Andrew, usually what happens is a reason I was going to amend that was usually before the Trump 2 administration, because like you just said, Sunita is one of dozens of people who received these Article 2 letters, including January 6 prosecutors involving not only the prosecutions of the rioters, but also those who were on Jack Smith's team and others. So this is part of, I think, a pattern or practice of baseless firings, that I guess they're based on something this administration doesn't like, but not on actual misconduct or behavior of any individual.

Speaker 5:
[10:54] I was going to say, I never received any OPR notice, Office of Professional Responsibility. I never heard from the OIG. None of that ever happened. My understanding after getting this e-mail is that afterwards, my USA Jerome Gorgon had a chiefs meeting, where he informed everyone I was fired for misconduct. I don't see misconduct anywhere in any of my paperwork.

Speaker 3:
[11:17] I think that misconduct is that you worked on a prosecution. I mean, just to be clear, that's what's going on here. I thought it might be worth before we turn to the prosecution that you got assigned to in the FACE Act. You're a career prosecutor. Can you give them a sense of your state experience, and then your federal experience, including working on some of the most remarkable, righteous cases? And by the way, just so you know, we asked Sunita to do this because we thought it was really important, even though I'm sure your first druthers is not to pat yourself on the back, but we really thought it was important for people to know who you are.

Speaker 5:
[11:58] Yeah, thank you. I've been a prosecutor since 2004. I've been a prosecutor for 22 years at the local level for 15 years in Detroit, in the suburb of Detroit. I handled cases ranging from guns and drugs to murders and shootings and robberies. I went to the state to work in the Michigan Attorney General's Office. I was there for four years. I was head of the Hate Crimes and Domestic Terrorism Unit. And then I spent through the last three years in federal service as a federal prosecutor. I'm a career public servant. I've never had a job other than this. I've tried over 150 cases in my career. I've handled several high-profile cases in the past, including as a lead prosecutor on the Whitmer kidnapping plot supporters at the state level. I handled cases involving neo-Nazi paramilitary organizations, the base. And I've also just handled drugs and guns and all sorts of other violent felonies.

Speaker 3:
[12:53] And during your career, is it fair to say, like, you've never received any letter like this or, I mean, you seem to have had a glittering career of doing remarkable cases. And I take it at no point was anyone questioning your competence, your ethics, your morality, your judgment. Is that fair?

Speaker 5:
[13:16] I've never been fired or accused of misconduct for anything. Yeah, I received an outstanding rating of my performance evaluation for this case. But no, I've never had anyone question my integrity. And in fact, so many people, it's so humbling, have come out, even defense attorneys that I've worked with, have said, current integrity is unquestionable.

Speaker 4:
[13:37] Yeah. They might be on the other side of the V from you in court. But as least I know, and I think Andrew does as well from my time as a prosecutor, that you often do have very good relationships with the criminal defense bar because you work against, but with each other for long periods of time and you develop actual trusted relationships so that a defense attorney knows that if you're the prosecutor, his client's going to get a fair shake. Then so it's really painful, I know for me to see somebody like you suffer the fate of the Todd Blanche article to letter as others have suffered. But I will say you are in good company, Sunita, because a number of very, very fine prosecutors have received those letters. And it is really just part of this administration's decision that on cases they disagree with, cases they wish people hadn't brought, a lot of those were purely political like the January 6 related cases. But in the case of FACE Act, and you don't need to answer this at all, this is purely my opinion talking here. This is something that essentially this administration from day one wanted to pander to its base and I'm sure this is when you first started to wonder what might happen because in January of 2025, the president in the same time he was pardoning all the J6 defendants, he pardoned I think what 24 maybe FACE Act defendants, people who had been convicted. So after you heard about those pardons, Sunita, including of the defendants in the case you prosecuted, that probably gave you some indication of what ultimately happened. It was more than a year, of course, before you were fired. But did you think the writing was on the wall?

Speaker 5:
[15:19] It seemed like in the last year that there was no other potential resolution to this. I did feel like this was coming because I've seen what's happened in the last year with other prosecutors getting fired. As soon as they announced the Anti-Christian Bias Task Force the day after the pardons, it felt like my head would be at a platter.

Speaker 4:
[15:44] Actually, it's important that this was done by, or this report anyway, was I think the first report by the Weaponization Committee at the Department of Justice.

Speaker 3:
[15:54] Sunita, you mentioned during you were describing the trial, one of the victims who testified, it sounded very poignantly. Did you or others then have to talk to the victims about the pardons that Mary just referred to?

Speaker 5:
[16:09] Yeah, it was horrible. We found out, so three days after President Trump took office, we found out that the cases were pardoned. No one talked to us. No one followed any sort of procedure, and we found out from the news. And I was at a fundraiser for kids, and I was in a ball gown, and I saw the news, and we quickly, my trial team got on a call to inform the victim before she read it in the news. And it was an awful conversation.

Speaker 3:
[16:40] Could we dive back a little bit? Could you just describe what the FACE Act is and what it protects? And then we'll turn to the actual prosecution that you were called into, I suspect, because of your credible experience and trial experience.

Speaker 5:
[16:57] Yeah, the FACE Act is the freedom to access clinic entrances, and it's just that. It guarantees everyone the right to access the entrance of a place that provides reproductive health care. And obstructing that access is a crime.

Speaker 3:
[17:14] And in your experience, how has that been applied? In other words, to what types of people or groups?

Speaker 5:
[17:20] I was only on this very one case. I had never done another FACE Act case in my career. I had to look up what the FACE Act was when I was assigned onto this case. I had to read about it and understand it. When I was assigned for my trial experience, it was likely that this case would go to trial. And there were eight defendants at the time, and there was one cooperator that ended up pleading guilty. So we had a courtroom of seven people smushed into a courtroom at long tables that were stacked up. I mean, it was a wild scenario. I had never tried seven folks all together at once.

Speaker 3:
[17:59] And what happened in the case? What were they alleged to have done?

Speaker 5:
[18:02] So there was a clinic in Sterling Heights that provided abortions as well as ultrasounds and birth control pills and examinations for women. They were alleged to have conspired to talk about how they wanted to violate the FACE Act by going and locating forming essentially a human chain in front of the doors of the clinic in Sterling Heights, Michigan. And all seven of them met on the sidewalk and walked towards the entrance and stood in front and sat down in front of the clinic entrances after the clinic had already opened with employees inside and patients coming in in the parking lot to go access their reproductive health care. And in the parking lot, one of our victims, our main victim in the case, was a young woman who was in her 30s, married, had IVF'd to become pregnant at 15 weeks, found out that there were massive fetal abnormalities. She was told by her doctors that she needed to have this procedure or her future health that getting pregnant was at jeopardy. She was leaking amniotic fluid and the hospital had a very expensive procedure that had a long wait list. And so her and her husband arranged with her mother to come to the clinic that morning and have the procedure. She was leaking amniotic fluid as she was sitting in her car getting called a baby murderer. She does fight all about this, this was all public. And she was blockaded from entering the clinic. It was terrible.

Speaker 3:
[19:37] And what happened during the trial? I mean, what was the outcome?

Speaker 5:
[19:41] We had a jury and we had weeks of testimony and argument. And at the end, they were convicted as charged.

Speaker 4:
[19:49] And I want to go back real quick to that FASAC. You described it perfectly well. But then when we apply it to the facts of this case, this blockade, that's exactly what the words of the statute talk about. It says, whoever by force or threat of force or by physical obstruction intentionally injures, intimidates or interferes with or attempts to do that, any person, because that person is trying to access reproductive health care services. So fits just like a glove to the facts as you portrayed them today. And obviously, the facts that the jury heard and found guilt beyond a reasonable doubt unanimously.

Speaker 3:
[20:26] As far as I can tell, there's so many ways to analyze what's happened to you. And on a completely individual level, your sin from according to this Department of Justice is complying with your supervisor's assignment to you. So that's on the basic level that you can read this in terms of, if you want to understand weaponization of the department, there's that. But then there's sort of a different level, which is the way that the department is viewing the FACE Act, which is that we do not want to enforce it. As Congress dictated and Congress put into place that you cannot do this, they weren't saying it's good to have abortions or it's bad to have abortions. They were saying you cannot take these actions. It is totally against congressional will to say we are going to fire people for enforcing a statute. To me, it's so hard for this department to say, well, we're going to stop the weaponization. This is pure weaponization and it also flies in the face of Congress and a jury.

Speaker 4:
[21:38] I would add judges to that, Andrew and Sunita, who's sentenced.

Speaker 3:
[21:42] I think it's so important that you're here. It's so wonderful for the public to see you, to understand what is happening to you and what signals in terms of how this department is acting.

Speaker 4:
[21:54] And humanize it, right? The behavior is just despicable of the way that this administration is treating people like you, public servants.

Speaker 5:
[22:01] I was fired for doing exactly what they're asking all current employees to do. Zealously advocate for cases you're assigned. In November of last year, Todd Blanche came to our office, the Eastern District of Michigan. We had an all-hands mandatory meeting that I was required to attend. He told us that our job was to follow enforcement priorities and do what's assigned to us. He told us that he understands we're being asked to do things maybe we don't believe in, but he appreciated that we were being professionals doing our job.

Speaker 6:
[22:35] That's what I was doing.

Speaker 5:
[22:36] I guess I was just doing it under the wrong president or something.

Speaker 4:
[22:40] That's what it would seem like because you had been assigned to this. When you use that term zealously advocate, those are words that came straight from a memorandum that former Attorney General Pam Bondi, I think it was under her signature, put out to all AUSAs when she took office saying, it's everyone's responsibility to zealously advocate. That is your responsibility as a lawyer, and that's what you've now been fired from. I know we don't want to talk with Sunita about the rest of the report, because like you said, Sunita, you weren't part of like 10 years worth or 15 years worth of investigating and bringing FACE Act cases, but there are a lot of misleading claims in that near 900 page report that suggest bias on the part of civil rights division attorneys and AUSAs in the prosecutions brought under that FACE Act. We're going to do something we do pretty frequently, which is refer readers to just security that has a very, very good report by Regan Rush and Megan Marks, who took the time to do what the rest of you can't, which is read 900 pages and show how there's a lot of fiction in that report. So I'd encourage listeners to take a look at that report on just security if they want to know more about the report.

Speaker 3:
[24:02] So Sunita, a last question. What would you say to both your colleagues at the department, now the line attorneys? By the way, on the podcast, we always ask compound questions.

Speaker 4:
[24:15] It's a rule.

Speaker 3:
[24:16] Because there's no judge, no one can object. But the second part of that question is, what would you say to young law students who are thinking of going into public service, in any service, local, state or federal?

Speaker 5:
[24:30] Yeah, with my former colleagues, I think I would remind them here, this is a perfect example, they will investigate you without the proper procedures. They will fire you just for doing your job. Public service has been the honor of my career. I don't do it for the money. I do it because I really believe in it, and I think we're all supposed to make the world a tiny bit better than where we left it. I feel like speaking out about this, when my two teenage girls are adults and they ask me, what did you do when the Department of Justice was weaponized? I want to tell them that I did things, that I stood up, that I didn't just go silently into the night with my head down. I kept my head up high and I did what I could.

Speaker 4:
[25:20] I have no words.

Speaker 3:
[25:21] I don't either.

Speaker 4:
[25:22] Can't say it any better than that. It's a real motivation for others. I'm glad you're speaking out. I'm glad you're not being silent because it's just so important for the country and the world really to know what's happening in our administration.

Speaker 3:
[25:35] It's a real privilege to have you here and to be able to speak to you.

Speaker 5:
[25:39] Thank you.

Speaker 4:
[25:40] Thank you so much for joining us.

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Speaker 2:
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Speaker 6:
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Speaker 3:
[27:10] So Mary, let's take a turn to something different. You had mentioned at the beginning that the DC circuit has now a motion that has been made by the government to dismiss, to essentially send the cases back to the district court of the Proud Boys and the Oath Keepers. They had an appeal pending, and so that's their right to have an appeal, to have the circuit hear the appeal of their criminal conviction of various members of the Proud Boys and Oath Keepers who had been convicted, they were appealing, but the government said, rather than them having to go forward, we'd like you to dismiss the appeal and have it go back to the district court for the purpose of the government dismissing these cases, even though they've been brought and a jury had concluded that they were convicted. And so we were seeing things like this in Trump 1.0 with respect to Michael Flynn. It was a different posture. Tell me, does the circuit have any ability to say no? And also if it gets back to the district court, does the district court have an ability to say no? I have one minor thought on it, you were an appellate lawyer in your former life, and you still do lots of appellate work. What's your view on whether the circuit and the district court are going to have any discretion here?

Speaker 4:
[28:35] Well, there is definitely discretion provided by both the statute that would govern the proceedings in the circuit and the rule that governs proceedings in the district court. And let me just add one point to what you said, and then I'll talk about what the statute and the rule says. The motion is not surprisingly unopposed motion being filed by the government, the Department of Justice, unopposed by the defendants.

Speaker 3:
[29:02] Yeah, the defendants want it, right?

Speaker 4:
[29:03] That's right, to vacate the convictions. And the only reason given in the very brief five-page motion to vacate is that it says, in the executive branch's view, it is not in the interests of justice to continue to prosecute this case or the cases of other similarly situated defendants. And that's because they had to file this motion in three different separate appeals because we had proud boys on some and we had oath keepers on others. That is the only reason. Now, one could say, but this is not what they say, that because the president has already commuted their sentences, time served, right? Not vacated them, not pardoned them, but commuted them just time served, it's not worth our resources to continue to defend these convictions on appeal. That is not what they said. The implication, of course, from everything else we have heard and seen from this Department of Justice about the January 6th, and from the president, frankly, about January 6th, the rewriting of history to say that it was peaceful protests. All of that suggests it's because President Trump or Jeanine Pirro, the US attorney in the office that filed this motion, wants to feed into that narrative of this just being a peaceful protest. But to your question about discretion, the statute that allows for the vacator of a conviction, says that a court of appeals may affirm, modify, vacate, set aside or reverse any judgment as may be just under the circumstances. And there's never been a Supreme Court decision that explains what it means to be as may be just under the circumstances. Let me just talk about the rule and then we'll come back to what is the upshot of this. Rule 48, 48A in particular, which governs the government's motions to dismiss a case, this is the rule that would govern what the district court is doing. It says the government may with leave of court dismiss an indictment or information or complaint. And that has been held to mean you can't even dismiss it because people might be thinking, aren't we way past indictment? Yes, we are way past indictment. We're through conviction, sentence and on appeal. But there is authority that you could still move to dismiss. And we talked about Michael Flynn just recently, even at that stage. Neither one of these say the government just gets to do it. And if the government does it, this court has to go along. Now, some people may think, but in the immunity decision, Trump, the US, didn't the Supreme Court say that the investigatory and prosecutorial power is purely a core presidential function and he can govern the executive branch and it's not really to be questioned? Yes. The difference here is we are not at the point of an investigation or prosecution anymore and there is at least some authority in the DC Circuit in an opinion called US versus Thorpe written by Judge Rao, a very conservative Trump appointee from the first Trump administration.

Speaker 3:
[32:02] We'll be talking about her shortly.

Speaker 4:
[32:03] We will because she wrote the lead opinion in the Judge Boasberg case involving contempt that we flagged at the beginning. She and actually not just her alone because it's an impelled court decision, but she wrote a decision that said, when you are at a final judgment, there is another interest here and that is the judiciary's interest. So as a matter of separation of powers in terms of the judiciary's role and function at that point after a case has already been through sentencing, which is what the judges have the authority to do, that it is something where at least you can't go back in when the case is up on appeal and go straight to the district court to seek a dismissal with leave of court. You'd have to go to the appellate court first and get the appellate court to vacate it. In the particular case she wrote about, the appellate court did vacate. But in this case, again, the standard is for any as justice requires for what a just reason is, the exact words, as may be just under the circumstances. I will say as of this morning when I checked the docket, the circuit has not ruled on this motion yet. If I were on that circuit, I would appoint an amicus to argue on behalf of the judiciary.

Speaker 3:
[33:14] That in many ways is what happened in the Michael Flynn case, where the district judge, Judge Sullivan, appointed an amicus, the former judge John Gleason, to essentially because as you said, you have papers being submitted where no one's dissenting. I mean, everyone's in agreement and the court wants to hear the other side. It doesn't mean the court's going to agree with the other side. But here, one good reason to appoint an amicus is so that somebody presents that law and also the facts that might differentiate adverse law. Generally, it's worth saying that the government, normally if they are bringing a case and if it's pretrial and they decide not to go forward, it is very, very hard for the court to say, no, no, no, you have to because she's going to prosecute it. The government is going to be like, we're not doing it, and you can't force us to, and that's a very different posture. In the Michael Flynn case, it was post plea where he was asking to have his plea back. So here it is post verdict by a jury and post sentencing by the judge and on appeal. So where you are in the process could make a real difference, and then also what the reason is that's given. If you find that the person is actually innocent, if there's some extenuating new fact that comes up, but that's where that could matter. But the legal standard is one that's really important, and then the facts that to support whether you've met that legal standard are really important. One thing that I had said even way back when the Michael Flynn thing was going on and things like that, and this was an issue that came up in the Eric Adams case as well, is here the unopposed motion that's made by the government says that we want it sent back to the district court. So it will be dismissed with prejudice. Now, that with prejudice, meaning that the district judge says it can never be brought again, that is not, I don't see anything in the law that requires the deference by the judge in that to say that. The judge even as a backup could say, I agree with you completely, Mary, that there should be special counsel, but the judge could easily say, if I'm going to grant this, it's going to be without prejudice. But here's how outrageous this is when we're dealing with this on a piecemeal basis. Imagine this hypothetical, the president becomes president of the United States and directs his attorney general. I want you to go through not just all your pending cases, but all cases in the last 10 years, and everybody who's a Republican needs to be let go and let freed. But by the way, if they're a Democrat, or you know what, not even every Republican. If it turns out they ever gave money to a Democrat or voted for a Democrat, you could stretch this out to just be completely antithetical to the rule of law. And again, to take it out of the abstract, Mary, what did these people do? And here I'm not going to say allegedly do, because a jury found this beyond a reasonable doubt. Again, subject to the right to appeal, but the jury made a conclusion beyond a reasonable doubt unanimously. What were some of the kinds of things that these people did? Because this was not peaceful protesting. No.

Speaker 4:
[36:32] The charges included, of course, seditious conspiracy, right? A conspiracy to, through force, undermine the functioning of the Congress, right? Because on January 6th of 2021, they did meet, but they were obstructed, and had to flee, and had to take cover, and recess for six hours at the constitutionally required meeting to count the electoral ballots and certify the winner of a presidential election. That is what was forcibly obstructed here, and these juries found that in the case of the Proud Boys, in the case of the Oath Keepers, that this was a conspiracy to do this. It had been planned in advance, it had been communicated in advance, and in fact, one of the things Judge Mehta talks about in the civil case suing for damages against President Trump and members of the Oath Keepers and Proud Boys is that the Proud Boys and Oath Keepers had actually announced an alliance before January 6th, that they were working together. As listeners know, we had over 140 Capitol Police officers injured in the course of those riots and attacks with the Vice President of the United States had to be whisked away because people were shouting to hang Mike Pence at the very same time that Donald Trump was saying that Mike Pence did not have the courage to do what needed to be done. I mean, it was a dangerous, dangerous, violent situation. That's what they were convicted of.

Speaker 3:
[37:53] Perfect segue there to the Judge Mehta decision. What Judge Mehta, to put it in context, had to decide was this is a civil case against a variety of defendants, including the sitting president of the United States, and much of it culminates with what happened on January 6th. Clearly, what the defendants argue in this civil case is we are absolutely immune. The president says, I am absolutely immune, because even though the Trump versus United States case is a criminal case, its logic and its reasoning should apply both because of what it says about presidential immunity in the criminal context, plus there was already law about how immunity would apply in a civil context. So the president wants to cloak himself with immunity. But to do that, it's one where there's a simple way of understanding this, which is if the president was acting in any way in his official capacity, and that's very broadly defined in the law, if he was acting as president, then he's entitled to some form of immunity, and there's a whole issue about what form of immunity. But if he was acting as a individual in his private capacity, or is in this case a candidate for office, and just be clear, you can be president of the United States, but if you're running for reelection, the judge has to decide, well, are you really acting as president, or are you acting just as a candidate? If you're giving a candidate stump speech, that would be a classic example of speaking as a candidate. So Judge Mehta had to decide on a whole variety of things, in what capacity was Donald Trump acting, and Donald Trump submitted certain evidence, lots of arguments, the plaintiffs submitted lots and lots of exhibits and arguments. And for the most part, except for things particularly related to interactions with the Department of Justice, Judge Mehta said that the president was acting as a candidate. And he went through all sorts of factors that had been articulated by a DC Circuit case, laying out sort of the principles that should govern, and he goes through all of those. We were reading a lot this week.

Speaker 4:
[40:06] Yes, we were.

Speaker 3:
[40:07] This is another one of these very long cases, but this is such a huge case, because it's really the implementation of the open issues from that Trump vs. United States immunity case.

Speaker 4:
[40:21] It is. And to put the legal context on the president's arguments, he argued that under the Take Care Clause, this is why this is part of my official responsibilities, because I thought that there were problems with the 2020 election, and as part of my authority under the Take Care Clause, I had the right, and as part of my official duties, to see to it that any laws in that election were rectified. And to that, Judge Mehta said, President Trump cites no constitutional provision or federal statute that grants or vests in the president or the executive branch any power or duty with respect to the certification of the electoral college vote. And he says, and that's because there is none. The Constitution spells out the respective responsibilities of various actors in the election of the president. It provides that the states select the electors, right? We've talked about this so many times before. It's that the president of the Senate, that is the vice president, in the president of the Senate and House of Representatives are the ones who open the certificates and count the ballots. There's no role for a sitting president. So to your point, his role there was, as a candidate, in his personal capacity, urging certain things. So I have to just be a little catty here, even though Judge Mehta was not catty, but he did call attention to the fact that the only authority President Trump cited for this take care clause argument is a law review student note, so written by a student, not even a professor, that suggested that enforcing election laws strikes at the core of the executive branch's duty to faithfully execute the law. What Judge Mehta then pointed out is, what President Trump omits from that quote makes the citation grossly misleading. The full quote reads, enforcing election laws through litigation strikes at the core of the executive branch's duty to faithfully execute the law. There was no litigation going here. The point of this student, I guess, to say through litigation is that the executive branch litigates. But as Judge Mehta pointed out, that's not what's happening here. There's no authority for what the president wants to do. The other thing that I think we should at least mention that Judge Mehta did in this decision is he rejected an argument that what the president did was protected by the First Amendment. He went through a lengthy analysis about whether he says First Amendment rights are broad. They're very, very broad when it comes to the president. We have to be very, very careful here about not infringing on First Amendment rights. But what the First Amendment doesn't protect, the Supreme Court has been clear since a case called Brandenburg versus Ohio from 1969, is that the First Amendment does not protect incitement to imminent unlawful or violent activity, where such unlawful or violent activity can be expected to occur.

Speaker 3:
[43:04] Judge Mehta has a wonderful discussion where he takes on an argument about there was a hypothetical given of like, what about a rapper who might appear and say something similar to what the president did on January 6th and he said, but you're ignoring all of the things that led up to January 6th that the president was either involved in or knew about. And so the context is one where given that entire structure, he thinks that there's no First Amendment problem here. Very fairly, he does certify that and say that essentially that's a way that the defendants can take it up to the circuit, saying that this is an important issue. So there's more on this, but this is a big, big win for the plaintiffs. And it is useful once again to see the district court standing up. And it is very much like a nice footnote to Trump versus the United States as to where the courts are going and how they're seeing the implications and the application of that case. So Mary, should we take a break and come back and talk about now going to the circuit level?

Speaker 4:
[44:10] That's right.

Speaker 3:
[44:10] It's a lot of DC Circuit, we're talking about the circuit and the two-to-one or maybe kind of one-to-one-to-one decision blocking though it is two-to-one on the result which is that Judge Boasberg, unless there is some change in the circuit, Judge Boasberg cannot continue his hearing and investigation with respect to whether there was contempt of his orders that you described with respect to those planes going to El Salvador.

Speaker 4:
[44:40] Yes, let's take a break and come back and dig in.

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Speaker 6:
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Speaker 4:
[46:11] With that lead in, let's explain a little bit what's going on here. This is again, the administration going up to the circuit on a petition for a writ of mandamus because they did not have any appealable order below. So they're saying, hey, hey, hey, what the district court did here is so wrong, so clearly erroneous that he's wanting us to actually produce some sort of evidence and declarations and support for our argument that we weren't being held in contempt. We want you to stop that circuit because we don't want to have to go through that. We don't want to have to produce any evidence in support of our arguments that we were not in contempt. That's the posture we're in.

Speaker 3:
[46:48] Yeah. And just to be clear, what the government's position is, we'll get into the facts, but the government's saying, under no set of facts could we be found to be in contempt of what Judge Boasberg did. And because there's no set of facts that could justify this, you should kill this now and not let it go forward. And let me just get into the weeds a little bit, because the argument about there's no set of facts, it becomes important to know that there were all these emergency hearings going on that Judge Boasberg's trying to find out what was happening. This is now, think way back to the beginning of the administration. And there are these emergency hearings, and the judge issues an oral temporary restraining order. And he says, to be clear, and this is Mary, you telegraph this to foot stomp it. He says, for the planes that are in the air, because the government's not saying exactly what's going on. And so Boasberg has to look through a glass darkly because he can't get the facts from the government, and says, if they're in the air, you have to essentially not let these people out of your control. Whether that means you turn the planes around, whether that means the planes land, but then you refuel and you take them back. But do not let go of these people because they cannot go out of your custody because I'm not letting you relinquish control of them. Thus, I lose control, essentially because I've got a huge due process problem here, and I need to decide that before you can relinquish control and take the law into your own hands. The lawyer on the case, Erez Rouveni, who later, by the way, gets fired and becomes a whistleblower, understands that because he is saying, I know at the time that we are currently under a temporary restraining order. The government lawyer understands that. The issue becomes that that's the oral order. Judge Boasberg does say at one point, and I'm going to paraphrase, essentially, don't bother writing this all down right now. I'm going to issue a written order memorializing this. And then there's more time to just buy, more evidence comes in, and he issues a written order, what's called a minute order, which is just a short-form order that goes on the docket sheet. And the written order is very much focused on the class action, where he has this sort of preliminary class action, and the judge is clearly thinking about not having these people removed from the country, saying, don't remove them.

Speaker 4:
[49:15] Well, can I just interject on the class, just to make sure people understand why that's significant? This case was originally brought on behalf of five plaintiffs whose attorneys realized that they were putting on those plaintiffs. And with respect to those five plaintiffs, they had been pulled off the planes as soon as the judge in the early morning hours issued a temporary restraining order, even before he had his late afternoon hearing. They had been pulled off the planes. So when the parties came back in for the hearing in the late afternoon, the plaintiff's counsel was saying, we're wanting to do this on behalf of a class of all of the alleged members of Trende Aragua who are on planes and being removed solely under the auspices of the Alien Enemies Act Proclamation and not for any other reason. So that's why this is important, because the judge had to rule about that class.

Speaker 3:
[50:00] Exactly.

Speaker 4:
[50:01] As well as what's going on.

Speaker 3:
[50:03] Yeah. The government had lots and lots of arguments. But the one the court latched on to and focused on was this issue of whether there was a discrepancy between the oral order and the written order. The government's argument that an oral order is not an actual order. The concurring judge and the dissenting judge were like no way, no how. So the issue is whether the oral order was because the judge said, I'm going to write it down and give it to you. Did that make it impossible to really have a violation of that order because it was going to be superseded and the real order was going to be the written order?

Speaker 4:
[50:41] Which did not say you have to turn around the planes or not disembark anybody.

Speaker 3:
[50:45] Exactly.

Speaker 4:
[50:46] That's the key part that it didn't include.

Speaker 3:
[50:48] The written order said, do not remove these people from the country. The oral order was saying, I'm going to deal with the class action. But by the way, if these people are in the air, I am ordering you to not let them disembark. Whether that means turning the planes around now, or whether you're going to land and refuel, but still hold on to them, I have no idea where they are, but don't do it and you're under an order. Do you understand? You are under an order now, and here's a quote, you need to make sure it's complied with immediately. The judge says that and the government attorney at the time says they understand. They keep on saying, we understand we're currently under a TRO. But that's the issue, is that you have the government and the judge understanding the oral TRO, and the issue is whether it's somehow been superseded and lessened by the written order that just said don't remove. The argument is removal is technically taking somebody who is currently in the United States, like continental United States, physically, geographically, until they're on a plane outside of our airspace, at which point they're technically removed. And so if they are somewhere after the airspace, but on their way to El Salvador, they've already been removed, so that if that written order is coming up after that time, there's no violation. And so this becomes very technical. And the concurring judge is basically saying that his view was that Judge Boasberg, by saying orally to the government, I'll write this down and send it to you, is saying his version of that is, don't really worry about what I've said orally because the real order is going to come later. That's the way he interprets it. And the dissent is like, that's not at all what he's saying. You're misinterpreting what he's saying, that everyone agreed the oral order was an oral order and everyone was operating as if it was an oral order and it wasn't superseded by the written order. So that's where there's a good faith disagreement between the concurring judge and the dissenting judge about how to read that. I agree that the concurring judge doesn't have a crazy argument. I agree. I didn't read it and go, oh, he's absolutely wrong. I was really thinking long and hard about this one because just to understand, to be in contempt, especially if it was to be in criminal contempt, that's like a big deal. And the issue is, should the order be sufficiently clear that it puts the potential contemnor on notice as to what's required? So I can understand why the concurring judge was saying, I don't find this sufficiently clear. But here's why I think that's sort of not a great argument. It's not just that the government understood the oral order to be binding and not subject to being changed for sure by the written order, because that doesn't seem to be the record. But if it was true that the written order was going to supersede, that would leave such a huge gap that Judge Boasberg was saying, well, I'm only going to be concerned about the people who are still in the United States, but I actually am going to issue a written order that doesn't in any way help anybody who's in the air. To me, that's the thing that's not plausible. So under the concurring judge's view, you would have to believe that the judge just said, oh, you know what, I don't actually care.

Speaker 4:
[54:15] Never mind.

Speaker 3:
[54:15] I don't mind, but that was the group that he was particularly worried about in the oral order. And if you thought it was superseded, he then has just completely thrown those people to the wolves and is not caring about that particular time period. There's no way that that's what Judge Boasberg thought, but it's also no way that's what the government thought, because they understood that was the critical issue was those people in that time period.

Speaker 4:
[54:40] Yes, I do agree with that, because it's like an overly mechanistic way of looking at this. I do understand Judge Walker's concurrence much the way you did, and I want to read a little bit of it to make sure our listeners understand. Judge Rao, who writes the majority opinion, and Judge Walker concurs with her, so that's why this two-judge majority governs. But the legal conclusion, like you said, is that we can just stop this proceeding that Judge Boasberg is engaging in, trying to find the facts here right now, because, like you just explained, these orders were ambiguous. Therefore, the government could not have been in contempt, because they can only be in contempt if they are in contempt of an order that's clear and unambiguous. So that's the legal ruling. Judge Rao does a 30-something page opinion explaining this, but Judge Walker is the one who struggles more. And just to get to your temporal explanation, that's really what Judge Walker focuses in on. He says, after the written order, the government took actions that the oral order had arguably prohibited. This is Judge Walker writing. And that the written order did not prohibit. So after the written order, government did things that violated the oral order, but weren't part of the written order. He then goes on to say, so if the effect of the broader oral order survived the narrower written order, the government's conduct would raise a host of difficult questions. But before issuing its oral order, the district court said, I will issue a minute order memorializing this so you don't have to race to write it down. In my view, this is not Mary McCord. In my view, says Judge Walker, the district court's, you don't have to write it down line simplifies this otherwise complicated case because it made the written order supersede the oral order. The government did not violate the oral order while it was in effect. At no point did the government violate the written order that superseded it. That's where your point, which I agree is, okay, I get that, I get how you've distinguished these. But it would just utterly undermine everything that just Boasberg was trying to do to not consider the oral order as part of the written order.

Speaker 3:
[56:58] Right, and that it wasn't superseding it because to me, it was so obvious that he was dealing with the bulk of the people who were still here.

Speaker 4:
[57:06] The class.

Speaker 3:
[57:07] Right, and so he's thinking of the class that's still here.

Speaker 4:
[57:10] Or even on planes.

Speaker 3:
[57:12] And also, as The Descent points out, it's not totally clear that there wasn't a third plane. She takes issue saying that it's not totally clear that factually there wasn't a violation of even the written order.

Speaker 4:
[57:23] Right, I mean, there was a third plane we know of that supposedly no one on that plane was being removed solely because of Alien Enemies Act. Meaning, there are other authorities by which people can be removed, and Judge Boasberg had also been clear that same day, hey, if you have some other bases to remove, I'm not enjoining that. There's an interesting grammatical discussion too, because this word removing, when you said that the district court ordered that they not be removed, he actually says the actual words are that the government is enjoined from removing. And her point is, to the extent the government is saying, oh no, by the time this written order comes, they're outside airspace, US airspace, therefore they'd already been removed. And all that Judge Boasberg was saying in his written order is that the government's enjoined from removing them. Therefore, those who have already been removed are not subject to that. She's saying in the context of when he used that term, and they have the time are saying, we don't even know yet the status of these planes. There's just no way you could read removing to not apply to the people who were on those planes.

Speaker 3:
[58:26] There's also a sort of amount of waiver or forfeiture. In other words, the government didn't raise this at the time before Judge Boasberg, because if they did, Judge Boasberg would have issued an order that made it absolutely, whether oral or writing, to deal with this issue of, we now have a very technical view of what it means to either be removing or removed, whichever tense you want to use it. If they had relied on that argument at the time, then Judge Boasberg would have dealt with that argument. But it seems a little like, are you kidding me? And this reads like, even though we didn't flag it for you, now we're going to say this is a gotcha when the government lawyer at the time was saying we understand that we are subject to that TRO.

Speaker 4:
[59:10] And I think that is one of the points made by the dissenting judge directly to what you've just illustrated there. She takes a step back at the very end. She's like, mandamus is an extraordinary remedy. We, as courts of review, we're privileged to declare and clarify the law and often are given ample time and briefing and anonymity for this role. She says, however, the trial court must face anyone who wishes to enforce and execute the law of the land. This is a trial court that must courageously ensure that our law is properly applied. There is nowhere to hide in the trial court's intimate setting where litigants, jurists, and the public convene, and where the court must fact-find and make conclusions of law and then do so again on remand, and then again after vacator, and then anew for the next case. Indeed, it is a difficult and delicate exercise, but it should not be a dangerous one. She's talking about the fact that here he was on a weekend with people being removed from the country with no due process, and he is just trying to deal with the situation in front of him. And now he's trying to deal with the fact that it appears that the government has violated his order and shutting him down with mandamus is not appropriate, is her conclusion.

Speaker 3:
[60:18] Yeah. We will keep an eye on this because there may be more to come, because we'll see whether the circuit decides to take this up with a full bench of active judges. But with that, Mary, quite the episode.

Speaker 4:
[60:32] Yes.

Speaker 3:
[60:33] And thanks so much to everyone for listening. And thanks to Sunita for her public service and for coming on the podcast to share that with all of her listeners. Remember, you can subscribe to MS NOW Premium on Apple Podcasts, and you can get this show and other MS NOW originals ad free. And you'll also get subscriber-only bonus content. As a reminder, we are now available on YouTube. Head to ms.now.com, mainjustice.com to listen.

Speaker 4:
[61:09] This podcast is produced by Vicky Virgalina. Colette Holcomb is our intern, with production support from Donnie Holloway. Our audio engineers are Bob Mallory and Mark Yoshizumi. Katie Lau is our Senior Manager of Audio Production, and Aisha Turner is the Executive Producer for MS NOW Audio.

Speaker 3:
[61:27] Search for Main Justice wherever you get your podcasts and follow the series.

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