100 Days of Hypocrisy
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Hello and welcome back to Maine Justice. It is Monday evening, April 28th.

I'm Andrew Weissman. I'm here with my co-host, Mary McCord. But it's a little weird because, Mary, you're in D.C. I'm in D.C. But we're not in the same room. We should have tried to be in the same room. Exactly. We're in the same city, different locations. But it is great to be with you. We have a ton on our plate. I was thinking before we get into the substance that we're about to be at the 100th day of

And I think our discussion today is, I think, going to be very fitting for that idea of the 100th day. So before we get into that, we have to thank everybody, everyone who's listening, including the MSNBC producers and sound people and...

the whole team that supports us because, one, they always, all of you always deserve it. Yes, we thank them always. That's right. But we, again this year, so we've only been on for two years. So our first year, we won two Webby Awards. And this past year, we learned we just won two Webby Awards. And it's just such an honor. One is voted by the judges and the other is voted by the people. Yeah.

You, all of you listening. Exactly. So thank you all very, very much. It is very gratifying to be engaged in this adventure and know that people are getting something out of it. Yeah, very exciting to get that and very appreciative, just like you said. So...

Back to our theme. We want to start with the news that broke Friday about a Wisconsin state court judge, Judge Dugan, being arrested, I believe, in the parking lot of the courthouse on Friday morning as she was presumably going to work. Arrested and actually by the reporting, actually handcuffed and charged with obscenity.

obstructing or impeding a proceeding before a department or agency of the U.S. and concealing an individual to prevent his discovery and arrest. And we'll get to that. It all has to do with ICE seeking to make an administrative arrest, arrest on an immigration warrant, not a criminal warrant of a person who was appearing in her courtroom that day. So we'll talk about that. And then we will talk about a lot of the other immigration-related cases. And I think the through line there is the

the lack of due process. And even when there is some process, the utter lack of evidence that the government is bringing forth in so many different arenas. We're seeing judges across the country all lamenting, more than lamenting, really starting to get... If words on paper could have a voice...

It feels like they're getting pretty testy, these judges. And we're going to read some of that. Yes, oh we are. Because it is language that you do not see except when somebody is really, you know, going off the rails. They've had it. They've had it. Really had it. And it will be the instances, not just the Abrego Garcia case where the government has admitted a mistake so you understand why there's due process.

A case out of Texas that originated in Virginia is another example of that where it's going to be a really live example for people about why due process matters. Because when there was a hearing, the government fell flat on

They absolutely did. Absolutely did. So no wonder they didn't want to provide due process. And then we will close out with a discussion of what some people may have seen on the news or maybe thought, what is this all about? And that is a change in the Department of Justice policy.

We call it their media policy, something that Andrew and I were both very familiar with in our many years at the Department of Justice and for Andrew also at the FBI, which governs when the prosecutors can use legal process. That means subpoenas, search warrants, all of the like to get information from members of the news media. And that has always been controversial because the news media likes to think that they're a fourth branch of government.

government. They actually aren't. But it is something that does threaten, particularly under this administration, does threaten the freedom of the press. And we'll talk about that. And if we have time, we'll mention the fact that last week we wanted to talk about the mass exodus from the Solicitor General's office and we ran out of time. And this week reporting is mass exodus from the Civil Rights Division. The bottom line is a lot of people leaving the Department of Justice, a lot of career experienced people.

who've been there through many different administrations are leaving. So before we turn to the arrest of the judge and what the criminal complaint against her says and what we think of all that, can I just give a little spoiler alert for our third topic with respect to the changing rules about when the Department of Justice will release

permit subpoenaing reporters or notes and documents from reporters. The memo from the Attorney General of the United States, Pam Bondi, dated April 25th, 2025, begins with the following sentence. And I just think it's a good overview and another theme for this, which is abuse and

hypocrisy. And I'm just going to read it. See if you can catch the hypocrisy here. This is the way her memo reads, quote, safeguarding classified, privileged, and other sensitive information is essential to effective governance and law enforcement, unquote. Pot,

I mean, it turns out... I mean, I don't disagree with that. Do you? No. It's like I was going to say, I think she forgot to change that intro language that might have been Attorney General Garland's memo in connection with what the events in...

Mar-a-Lago. I mean, it is really rich. But oh boy, once we get to page two, she clearly did not use Garland's memo. So let's not again, let's save it. Let's save it. People will come back to it. But actually, this is something of a good transition because one of the things that has annoyed me among many things about the arrest of the judge in Wisconsin is the way that the attorney general spoke about it. And one of the things the attorney general did, and there's all kinds of like

policy issues about not speaking about cases, you know, on TV and giving press conferences, except for in really extraordinary situations. But if I put all that aside for a minute, just talk about some of the things she said. One of the things she tries to argue is that this is so necessary to go after these judges who are impeding immigration enforcement and, you know, putting law enforcement officers at risk

ICE officers and other law enforcement officers at risk by what we're going to get into by maybe as alleged trying to prevent the arrest of this person appearing in court. And I thought, weren't there some police officers put at risk on January 6th of 2021? I mean, I just don't think

that this attorney general, this president, this vice president, this FBI director should ever get to say that without the response being, what about police officers on January 6th? Because every single one of the attackers, including the attackers...

who violently beat law enforcement officers got pardoned or their sentences were commuted or their cases were dismissed. All right, I'm off my rant. So Mary, I think it may be true that we've done this for two years together because in my notes, under hypocrisy, I had the exact same point. And so while we're sort of on the topic

attorney general reaction to this and the government's reaction and the statements in the press and the way they handled it. Why don't we cover that? And then let's go into sort of what's actually alleged with respect to this judge. But as you said, the attorney general made these comments and made them about it now a pending criminal case. The FBI director also used FDIC,

formerly known as Twitter, to do the same thing and then took it down. Because it was before it was public, right? And at least to his credit, he took it down. But, you know, that is also against DOJ guidelines to have that kind of denigration of a defendant in a criminal case and prejudging that.

And, you know, in your day and my day, when the rules still applied, you know, people got in all sorts of trouble for doing that. So you have that sort of reaction. And then I think you have even the bigger, not just what they said, but I think it tells you and speaks volumes, even big if, even if.

it was appropriate to charge this judge. And we still don't know all the facts, but even if it was appropriate, the idea that you would do an arrest as opposed to saying, as happens all the time in cases. Arrest with handcuffs in the parking lot. Exactly. That's just not how you handle, do you know every single case in the Mueller investigation that people want to constantly denigrate in the magosphere? Yeah.

Everyone self-surrendered because there was not a sort of palpable risk of flight or danger to the community. And so people are allowed to surrender to a field office to be processed. Then you don't engage in these kinds of perp walks.

And so it tells you everything about what they're doing here and the message to judges. And also to jump from this situation to suddenly the fact that judges around the country of all sorts of political persuasions

are loudly decrying what the executive is doing. To me, this is what we had expected, the war on judges because they are pushing back in the same way there's been a war on the media, a war on members of Congress, anybody who's pushing back. It's an intimidation tactic. And you know, our good friend and listeners who's been with us for a long time will remember Judge Michael Ludig.

He was quoted in the paper this morning saying this is about intimidation. I'm not reading it directly, but it was that this is to scare judges into not wanting, I mean, putting aside that this particular arrest was over something that she allegedly did to obstruct the arrest of this man. The way it was done, as you just described, with an arrest in the courthouse parking lot, handcuffs and everything, only to have the magistrate release her immediately when she was

presented in front of him. But this is about scaring people. Right. And that actually is the big story. I mean, there's a story about her and the charges and what happened. But the big story, the big takeaway is the government's response, both what it's saying

which is improper, and the fact they actually did the arrest this way, which tells you everything. To me, that is, I think, why we're starting there, because that is really the story, and there is a violation here

And the violation that we know for sure is of the DOJ guidelines about how you're supposed to speak and not speak. Shall we turn to what's alleged in the criminal complaint? Yeah, if anybody doesn't know, they're kind of like, what are you guys talking about? You've already talked for 10 minutes and we haven't told the story. So let's tell the story. Okay, this is a state court judge.

She had a defendant showing up at a hearing before her on some misdemeanors. Domestic violence charges, I think, yes. You know, nothing to praise him for. I mean, this is, at least as alleged, improper and illegal and unlawful behavior. Right. And apparently there were victims who had appeared or alleged victims of what he was being charged with. And what happened was six agents, ICE agents, FBI, DEA, come to the courthouse

and they are seeking to arrest the defendant. And there hasn't yet been a policy set by the chief judge in that courthouse as to exactly how it can be done. The government says in its filing that they had done a couple arrests in public spaces, but there hadn't been a policy yet. And so... And people might be thinking, why do we even need a policy regarding where arrests could take place?

And it's because the courthouses, lots of people are there. Victims show up there. Witnesses show up there. Jurors show up there. If this becomes a place where you have armed agents making arrests, particularly of immigrants, it becomes a very scary place for people to go. And you would really see, I think, a real reluctance of victims of crimes, witnesses of crimes,

jurors to want to go and do their civic duty if potentially if any of them have immigrants in their families or maybe they're immigrants themselves, or even if they aren't, and they're just worried about the dangerousness of the situation. So many courthouses have had policies about, we understand if you have an arrest warrant, but let's talk about where you can make that arrest so that it does not interfere with the proceedings in the courthouse. Exactly. And the

The government had an immigration warrant that's not a judicially sort of like an Article 3 federal warrant.

But it is a warrant. It's a civil warrant, right, to arrest for violation of civil immigration laws. And to your point, it's not signed by a judge. You don't have to even go in front of a judge. It's something that agents themselves can swear out a warrant. And so they were trying to figure out how to do this. There's some back and forth with the deputy clerk. That's sort of somebody who helps the judge.

and saying that there's sort of a don't do this in the courtroom, you should do it in the public space. The judge then learns about it and basically is saying you need to go to the chief judge. There's some back and forth described with the chief judge, where the chief judge basically is saying it's not totally clear the whole conversation, but basically...

in public spaces, but he does say there's, apparently, there's no policy yet. They're working on it or something like that. And we get all this from the complaint filed by one of the officers doing the arrest. If people are wondering, how do we know this? We're just taking this from what the government alleges. Right. And that's in the complaint, the criminal complaint against the judge. Right, right. Not against the defendant who was to be arrested, right? Right.

And so the key allegation here is that the judge, when the agents come back, the six of them, and they at one point are in the courtroom, then they're out of the courtroom, they indicate that the judge sort of forcefully waived the defendant and his counsel to not go out the sort of public door in the sort of front of the courtroom, but to go out a side door, a side door that's used...

apparently by the judge, by jurors, by the marshals, the sort of court staff and jurors.

And we don't exactly know the configuration, but while there's a private area, when you go outside that door, it then connects to the public hallway. Here, the defendant and counsel do go out that door, but then go to the public space. And notably to me, they then are seen by at least one agent. They go down the elevator. With one agent. And in the elevator is one of the federal agents. Right.

In other words, the judge doesn't secrete them into like a private elevator or a private space. They just go to the public space. And then when they get downstairs, and to be fair to the agents on this, if there was only one agent in the elevator, you could understand why the agent would not do an arrest with just one person there. And they say the agent is communicating to the other agent saying where he is. And they then...

see the person go into the public space of the courthouse, go outside, and then it looks like, I mean, they describe it as he sort of tries to run, but the agents are there and arrest him. And so the issue is by allegedly directing him or encouraging him to take this, or permitting him, actually is a better word, to take this side door, is that sort of the obstruction of justice, which, by the way, continuing hypocrisy, everyone will remember that

obstruction of justice was two of the schemes that were charged in the Mar-a-Lago case were obstruction. Obstruction of an official proceeding. People will remember us using that phrase a lot last summer. Yeah. And the other crime, though, too, we should mention, which is concealing a person from arrest, right? Yeah. And the concealing is a little... I was looking at that going, concealing seems a little tricky when the person goes from a public courtroom to a public hallway, right?

And I do think that there's an argument that the judge's intent was to slow this down. But here's the conundrum factually for me. And by the way, I'm putting on my former law enforcement hat. Like, people should not obstruct justice. No, absolutely not.

But this seems like a very, very weak case to me. And the reason is not just that the person went from public space to public space. In other words, it wasn't like secreting him out the private way. Like he clearly could get arrested. But I think you could imagine a very innocent explanation on the judge's part, which is I don't want an arrest in my courtroom and I don't want an arrest right outside my courtroom door where the public is going in and out.

I don't want to have that scene with people being there who have to come in and out. Again, we don't know all of the evidence yet. We don't know what her intent is, but it seems like such a weak case that, you know, Mary, you and I would have said, is there a grownup in the room before you break this case? And, you know, it's particularly weak if you compare it, at least in my opinion, there was a case from the first Trump administration where a judge in Massachusetts did something similar, right?

But the allegations are much more, I mean, if believed, and this never had to be proven up in court, and I can say why, the allegations were that when she knew ICE was there to arrest a defendant appearing before her, the allegations are she had the defense counsel come up,

asked the court reporter to go off the record, allegedly in violation of the courthouse rules, had a 52-second conversation in which the government alleged she concocted a plan with the defense counsel, then went back on the record, said, you may go down to the cell block in the basement with your client to talk to him, Mr. Defense Counsel. And once down there, the defendant was let out a, called a sally port door, essentially a back door of the courthouse.

And she was charged with similar offenses. She was not charged with the concealing somebody for whom there's arrest warrant. She was charged with the other version of obstruction of an official proceeding, the same one that was narrowed this past summer in the Supreme Court in the Fisher case. But there again, and that case never went to trial because ultimately,

The U.S. attorney under the next administration worked out a deal by which the charges would be dropped and she would essentially turn herself over to the Judicial Discipline Commission in the state. And she's facing allegations there that could result in her losing her license, I assume, and certainly her judgeship. But if you take that, those allegations are much more significant if they were proven than what

So I think you're right that on the facts, this seems to be a weak case with a lot of ambiguity. And then we've got the legal questions, which, of course, we can talk more about when we get to them. But those include things like...

Does the statute even cover this? Like, is the procurement of a civil arrest warrant for an immigration violation where it doesn't even have to go in front of a judge, is that really an official proceeding of a department or agency that you can be obstructing? Or is the arrest, the effectuating of arrest itself part of a proceeding? So that's unclear to me. And then there are issues involving judicial immunity and...

federalism types of concerns and commandeering concerns, which may or may not be dispositive. So the point, and I think you've made this numerous times since this happened, Andrew, that there's factual and legal issues here. Yeah, absolutely. And, you know, the Supreme Court has been no fan of the obstruction statute. I know that very well from over

over 20 years ago in the Arthur Anderson case where they changed the law and made it more restrictive. We talked about the Fisher case. There are a series of cases in not exactly the same statutes, but where the court has construed

concerns about the vagueness of the statute. And here, if you think about the idea of does it really mean to cover which door you go out the courtroom and when it's still going to a public space that raises factual issues, but even legal issues about is it clear enough? Because here's the hypothetical from Ms. Boom-Cortez. What if she had just said, don't do the arrest in my courtroom? What if the agents had wanted to do that? Yeah.

Under their view is what stops that from being charged. And those kinds of hypotheticals are the things that leads the Supreme Court to be concerned about abuse of prosecutorial discretion. And it really goes back to and it tells you why the idea of doing this very public arrest in cuffs of the judge is the story. Yeah, that's right.

Right. And you know what? Actually, this is a perfect segue to break because when you talked about vagueness, the reason vagueness is a problem is because it violates a person's rights to due process, which we're going to come and talk more about after the break. This kind of due process is... God, Mary, you're good. You're good, Mary. That's right. So anyway, let's go to break and then we'll transition into due process when we come back. Sounds good. Hi, I'm Roman Mars, host of the podcast 99% Invisible.

Design is everywhere in our lives, but it's easy to not notice or take it for granted. 99% Invisible is a weekly exploration of the process and power of design and architecture. It's stories of who we are through the lens of the things we build. Like, have you ever wondered why we use the one kilohertz bleep sound to cover up inappropriate words on radio and TV? Or what aspects of infrastructure allow five-year-olds in Japan to run

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Welcome back. Okay, Mary, lots to discuss. So in the due process vein, this week saw so many different types of immigration cases and so many ways in which judges are pushing back, not just the Abrego Garcia case, who, by the way, I want to just keep reminding people is in jail.

still today. In El Salvador. In El Salvador, an admitted mistake by the government, and he is still, as a result of the government's actions, and now in action, sitting in jail with

with the government not doing anything that we know of to get him back. Well, there is an amendment there because one of the reasons right now that the judge in that case stopped requiring the daily reports and paused the discovery, remember, she'd ordered depositions, is because the government filed a sealed pleading agreement

The attorneys for Mr. Obrego Garcia filed a sealed pleading. The judge said in light of these sealed pleadings, which means the public doesn't see them, I'm going to pause the discovery. I don't know about you. I think that means the government is saying that it's doing something. Now, whether that something will actually facilitate his release from custody remains to be seen. But I can't imagine this judge pausing things if she didn't feel like things were moving in the direction that she wanted them to. What do you think? I...

hope and pray that you are right. And my initial reaction was exactly the same as yours, Mary, that that must be what's going on. Like, there's just so many times it was going to get yelled at by the court, be told it was wrong, including the Supreme Court, Judge Wilkinson, the district court. However, what gives me pause is there's no question in my mind

that if the Trump administration said we want him back, they could do it like tomorrow. He'd be here. Exactly. But don't you think... The flight is not that long. Yes. Don't you think they want to play it out as though this was a big negotiation and then kind of get the credit for negotiation? Yes, they could be engaged in fraud.

And cruelty, because not only that it would be fraud, and then the cruelty would be that we're going to keep them there longer to make it. Yes. So it looks like. Yes, to cover for this. Yes. And to the listeners, we are, I am engaging in rank speculation. Yeah, me too. This is rank speculation.

Mary, tell us, where do you want to start? Well, first I want to, you know, finish off that transition. The due process I was just talking about that was about the vagueness of the statute, that's because part of the due process clause basically says people have to know that what they're doing might violate the law. And if a statute's too vague, you don't know. And that's a matter of due process because you're not

That first piece, you don't even know that what you're doing could subject you to criminal liability. The due process we're about to talk about now, that is a through line, not just through the Abrego Garcia case, but through many of the other deportation and immigration related cases. But beyond that is about the ability to have your day in court.

when the government is taking something away from you, you get to go to court and say, no, you might lose, but you get your day in court. And that was what was made so clear by the nine justices who were all in agreement in the Alien Enemies Act case that this was brought in the wrong place when it was brought in D.C. It should have been brought as habeas in the different jurisdictions where the people were detained. But all nine justices agree that each of these people was entitled to notice that

that they were going to be deported under the Alien Enemies Act, and the opportunity with enough time and in such a manner that they could go to court and challenge, at the very least, challenge their being members of Trende Aragua and certainly also challenge more broadly the Alien Enemies Act. And I wrote about this also in an op-ed that published actually in yesterday's physical paper, but a few days before in the Washington Post.

pointing out that even Justice Alito last weekend, I guess, when he dissented from emergency relief overnight when people were being bused to planes, and we talked about this extensively last week, even in his dissent, you know, he said, we shouldn't have done this on an emergency basis, but the executive needs to abide by the law as we already directed.

which referred to due process. And one of the points I made here is that due process exists to protect all of us, not just Abrego Garcia, not just the Venezuelans who are being accused of being terrorists as part of Trend de Aragua. It also protects the law firms that have been blacklisted from

engaging in their profession. It protects the universities who have had their funds cut off without following the procedures that the law requires. It protects in many of these cases, we are seeing challenging the Trump administration's executive overreach right now. Due process is a part of that because there's been restrictions or utter deprivations on any type of process before the government deprives someone of rights or something that they have otherwise had and been entitled to under the law.

And nothing could be more clear on that than the memo that we're about to talk about from the attorney general. So what I was going to do is I was going to read, this seems to be the episode where I'm going to be reading from the quotes from Pam Bondi. That's our theme. And then I thought we would then talk about the Texas case because it's such a great illustration of why due process matters. And so, Mary, your...

point is it's 9-0, 9-0 in the Supreme Court that these people are entitled to due process, a notice and a meaningful opportunity to be heard. So everyone remember that. That's the Supreme Court.

On March 14th, 2025, I am reading now from a memorandum from the Attorney General of the United States, Pam Bondi. And what does she say about the implementation and its guidance for implementing the Alien Enemies Act? That is for many of these cases, not all.

That is what we're dealing with. And this is what she says about this need for due process. The alien is not entitled to a hearing hearing.

appeal or judicial review of the apprehension and removal warrant. Everyone got that? It's on page three of her memo. It then is repeated verbatim with all of that, making it absolutely clear that there is not to be a hearing for these people. So just to be clear, her memo is something that the Supreme Court has said repeatedly

is wrong legally. That they're entitled to this hearing. Now, why don't we talk about the facts of the Sanchez-Puertes case? It's a husband and wife. They actually get their hearing. Well, after their third time, right? I mean, they get hearings each time, but yes. Yeah, they ultimately get a hearing. There's a long history and a tortured history. The government looks horrible.

And it's all recounted in the decision. But they ultimately get their day in court to say the issues of the Alien Enemies Act, the issue that the judge deals with, he says, I don't even have to get to is the statute legal? In other words, does it lawfully apply to them because there's an invasion or the gang is a part of the government? He says, I don't need to get to that. And I'm not dealing with that. I'm dealing with the issue of has the government decided

proven that they're part of this gang. I'm going to tell you what I think the standard of proof is. In other words, that's a big part of deciding an issue. And it's what he says. He announces in his ruling. Yep. He says, I'm going to tell you the standard of proof. I'm going to talk a little bit about the nature of the evidence because the federal rules of evidence imply. And then I'm going to talk about the evidence about her and

And him. The hardest part of this ruling is I can't tell you how many parts of it I underlined. I know. Me too. So, Mary, what does the judge do here on those various issues?

The issue of the standard that he applies and then how does he deal with the facts that the government or lack of facts that the government presents? Well, let me skip right to one of the key phrases. This court takes clear offense to respondents, meaning the government, wasting judicial resources to admit to the court it has no evidence.

Now, that was with respect to the husband, but it's pretty much what the judge said with respect to the wife as well. In case people want to look for it themselves, that is on page 32 with respect to the husband, where literally the government's physician is, well, he's married to her.

Right. And even for her. And that's where the judge is like, are you kidding me? That's it. He's married to her. That's all you've got. Guilty by association. By association. Right. But even for her, he finds basically no evidence. He says, government, what you've given me are just some reports based on multiple levels of hearsay hidden within declarations of declarants, meaning the person who is

you know, putting down the information in the report that was supposed to know the facts, declarants who have no personal knowledge about the facts they're attesting to. They're not the ones who interviewed Ms. Sanchez-Garcia. They're not the ones who captured her allegedly making incriminating statements. They're not the ones who collected quote-unquote intelligence.

and generated reports that contain, quote unquote, highly reliable and verified information. He says, what is astonishing is that these declarants cannot even so much as identify what government official did receive the alleged information directly. They asked this court to accept their claims going off of nearly nothing to substantiate their mammoth claims that the petitioner is a senior member or perhaps just a member or maybe at least an affiliate member.

of Tren de Aragua. The court would not accept this evidence, even in a case where only nominal damages were at stake, let alone what is at stake here. So the other things that he points out is he says, you know, the government's all over the place on the facts. In front of the court, they say that she is a senior member of TDA, and they tweeted a

about that. I mean, God knows what are they doing tweeting about it? CEG, the statements by Kash Patel and Pam Bondi when there are these pending cases. But now when they're in court, it's like suddenly she's not a senior member. She's possibly a money receiver and lookout. And

They describe the changing testimony. And so essentially, it's like, which is it? You know, these are contradictory statements. Is this person a senior person or not? And even then, what that was based on is what the judge says is people who don't have any personal knowledge. Right, exactly. And it all comes down to that she says 10 years ago, her first husband, she thought, was in the TDA. And...

she's like, what does that have to do with whether she is in it? And now, 10 years later, and the court is so definitive on citing that this is really, you just don't have it. It's not there, is the kind of very strong language. And

And cites to Judge Brinkema, a very well-respected judge in Virginia, who had had an earlier iteration of this case saying, oh, it also said the facts are just not there. And so this judge is in sort of violent agreement that the facts just don't support it. And the court says, with respect to the standard that needs to be applied, the court says even if it was bad,

applying just a preponderance standard, which means just is it more likely than not that they haven't met it? And there's even if you apply to really low standard. But this is one where what the government is doing and its position in the Abrego Garcia case really plays into this because the

The court says, you know, when I'm looking at what the standard should be, the standard here, given how dire the consequences here of shipping somebody off to a foreign prison where God knows they may never come back, the court says that the standard needs to be that it would rise to clear prison.

clear unequivocal and convincing evidence. That's a standard that the court says the government must reach clear unequivocal and convincing evidence. And the court just says it is not there. It is not there even under a lower standard and throws this out and says these people have to be released, both him and her. And he says,

Everyone in the Western District of Texas, anyone who is currently being held for deportation under the Alien Enemies Act or might be, needs 21 days notice before they're deported and that opportunity to actually have a hearing like this. I think at this point he thinks it could be all of them for which there's no doubt.

no real evidence. And that, you know, he on his own said, this is now extending to everyone in the Western District of Texas. So really, really serious stuff. And it's just one example of some of the, I think, really serious reactions that we've seen of judges in the last week. Before we get there, I just wanted to read one other thing. I told you there was so much I underlined, but I just thought there was one thing he said that I thought sort of gets to our idea of due process and what's at stake here. Yeah.

And I think it resonated for me. On page 18, he says, while the president claims grave national defense concerns in its TDA proclamation, and then says, quote, it would indeed be ironic if in the name of national defense, we would sanction the subversion of one of those liberties, which makes the defense of the nation worthwhile.

And cites a 1967 Supreme Court case. And that's due process, right? Exactly. So, Mary, we talked about Judge Brinkema. We talked about Judge Kieran Townsend.

Texas. But there was more. These were not the only two judges. There is more. It turns out that somebody else was unlawfully deported to El Salvador and another alleged member of TDA. But it was also a mistake because he had come here as a minor, undocumented minor, and as part of a court-ordered settlement.

He and other members of a class action of undocumented minors, all who have asylum petitions pending, that court-ordered settlement that is that none of them could be deported until they had had their asylum claims, you know, finally resolved on the merits through all of the due process they're entitled to. Yet he was deported, same as the others, without that due process in violation of the court order.

And the judge says, you know, the government came in and said, well, that settlement agreement doesn't apply if you're a Trendyaragua member. Well, the judge says, first of all, that settlement agreement is a contract. It had no exceptions for members of Trendyaragua, members that are part of being deported under the Alien Enemies Act. None of that. None of that was in the contract. You don't get to just

devise additional provisions of this contract. And he also got no due process like everyone else that they've deported to even challenge whether he was a member of that gang. Remember, he came here as an undocumented minor. And the judge there says, like Judge Zinas in the Abrego Garcia matter, this court will order defendants to facilitate Christian's return to the United States and

so that he can receive the process he was entitled to under the party's binding settlement agreement. And remember, Judge Sinas ordered that for Mr. Obrego-Garcia after the Supreme Court said...

that, you know, the government needed to facilitate return. And wait, she ordered one more thing. Well, that's the best part. I love this part. The court further orders that facilitating Cristian's return includes but is not limited to defendants making a good faith request to the government of El Salvador to release Cristian to U.S. custody for transport back to the United States to await adjudication of his asylum application on the merits. In other words, just...

Ask them at a minimum. Ask them. Just ask them. I feel I feel heard and seen. Oh, gosh, I know. So, by the way, this judge was who wrote this decision was appointed by Donald Trump. But there's more. There's more. In Massachusetts, there's a case where the judge said that people are entitled to sort of appeal and

And their sort of final order of deportation, they're entitled to due process and ordered the defendants before him to not remove anybody, to hold them. And that was principally the Department of Homeland Security. And he orders that. Well, what happens? The Department of Homeland Security appears to have simply transferred them to the Department of Defense itself.

And a filing is made saying— Well, that's what they claim. So let's say what physically happens. These people all get sent to Guantanamo Bay, where DOD is running a detention facility. And then, whoop, suddenly they're not in Guantanamo Bay anymore. They're in El Salvador. And when the judge says, what happened—

Yes. Right. DHS is told they can't do this and they were in DHS custody. By the way, under agreements, I think even in Guantanamo, they're still in DHS custody. Well, that's the big point I thought we were coming to. I've got the memorandum of understanding right in front of me on the screen. So they come into the court and they say, oh,

Not us, not us. They were flown out on a Department of Defense flight where no DHS agents or employees were even on that flight. They never say specifically DOD made the decision or anything like that, but they're very kind of cagey there. It was a DOD flight. No DHS people on that flight. Kind of like not us, not us.

Well, guess what? That memorandum of understanding. So when agencies agree to work together or departments, they will often enter in essentially a contract of how it's going to work. That makes clear that legal custody of those who are sent to Guantanamo Bay, IAs, they call them illegal aliens, remain in the custody of DHS.

It's DHS then that is responsible for any transfers, releases and removals of those people, not DOD. Right. So DHS is clearly on the hook here by all accounts because they were in the custody. But before they got to Guantanamo, Mary, what we're talking about is that even at Guantanamo, they're in custody so that transferring them to DOD is impossible.

in violation of the court's order. But by the way, the court's order isn't limited to just DHS. It says, and...

Not only can DHS not do this, but no one can essentially aid in a bet or conspire and engage in this conduct with them. So DOD is going to have to say, I had no idea that there was this court order and no one told me about this court order. I mean, this seems like, again, a blatant violation. And so stay tuned. But you know what? There's more. There's many more. But last one we have to talk about. Yes. People have probably read about U.S. Citizen Children Act.

And I don't even like...

Deported is not really the right word, I guess. I mean, except they were deported. But I mean, well, I guess you could say deported is not the right word for anyone because they didn't get processed and you're only deported really if you've had process. Physically extracted. Physically extracted, right. And then just to be clear, they're physically extracted and the people going to El Salvador, not only are they seized in this country without due process and flown out of the country, but it's not like they're then in London going to the theater. That's right.

actually in jail. Now, that is the case for the people we've been talking about so far, not for the children. So let's move to the children. But just to be clear on that, yes, everyone else we've talked about, right, it's not like here, go, you know, make a life in El Salvador. It's like, no, you're in prison in El Salvador. These cases involve children whose mothers are being taken into detention and deported

And at least insofar as the allegations in the case that I've read, in the memorandum order I've read, the mother allegedly by the government says, well, if I'm being deported, I want to take my child with me. So the government's position is kind of actually to use the term I use, oh, they're not being deported at all. They're just the mother said that she wanted to take the child with her. And so we sent the child with the mother. Problem is,

at least in the case I have up on my screen, there's a father. Right. And the father had the child's birth certificate and the child tried to get into contact and the lawyers tried to get into contact with the mother and, you know, with the authorities to say, hang on, hang on, hang on. This is a U.S. citizen child here with a birth certificate. And I guess there was some brief maybe contact, but

but not enough to do anything about it, not enough to stop the flights from taking off. And by the time they went running to the judge to get an order and the judge

you know, was quickly trying to resolve to keep this child here. What do you know? Judge says he gets the petition. He tries to get counsel for the government to get a hearing together so that they can speak to the mother, see if she really had consented to take the child with her, and then learned by counsel for the government just less than an hour after he called the government to try to arrange this hearing that

A call with the mother would not be possible because she and presumably the child had just been released in Honduras. So what the court says is in the interest of dispelling our strong suspicion that the government just deported a U.S. citizen with no meaningful process, it is ordered that the matter be set for a hearing on May 16th. In other words, government, you come explain yourself. Two things. That judge appointed by Donald Trump.

Yet another, just you get the continuum. This is not partisan. Remember, we started with 9-0 in the Supreme Court. That's why you're seeing or calling out who appointed these judges. This, again, this is not the so-called MSNBC crowd. This is not the deep state. These are people speaking up for due process of law. And these cases put meaning into it. Final beating a dead horse on this. What you want to think about, like,

Does this make any sense at all? There's no reason for the rush. There's no legitimate reason. In other words, there is no reason if the people are in custody, there's no danger that's going on. It's not like a bomb's about to go off. This is all about wanting unilateral power that is about acting through executive order.

not congressional action. It's about not having people have their day in court, not having judges be heard. That, to me, is the theme of the 100 Days. It's a theme of our discussion today is this idea of not unitary executive, unitary government.

is really the theme of what's going on here. And there's so many ways to understand that. And I think kudos to the various judges who are sticking to their guns on this and insisting that is not who we are. Yeah. Judge Shardy says this directly. The government contends this is all okay because the mother wishes that the child be deported with her.

But the court doesn't know that. Exactly. I don't know that. You're just telling me that in court. That's what due press is about. Get in front of me. Let's talk to the mother. Exactly. And go back to the March memo from Pam Bondi saying no hearings, no hearings. That obviously was in connection with the Alien Enemies Act. But if you think about the whole point of what we're talking about, it's the denial of due process, whether it's in the

the Alien Enemies Act case or any other. They're real life consequences. They're real people. With that, let's take a break and come back and talk about something else that Pam Bondi has done, which is change the rules of the road within the Department of Justice with respect to reporters and when they and their notes can be subpoenaed in investigations. Sounds good. Hi, I'm Roman Mars, host of the podcast 99% Invisible.

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So, Mary, let's talk about the Attorney General revising the media guidelines at the Department of Justice. I started us off by reading the first line, which is the safeguarding classified privilege and other sensitive information is essential to effective governance and law enforcement. But this essentially changes the policies that the holder, you know, when he was AG, he had policies that attorneys

Attorney General Garland actually tightened those even more on when you can actually subpoena somebody from the media or their documents. But this is now a new policy from Pam Bondi. And essentially, what's she doing and what's your takeaway? Yeah.

Yeah. Well, I think a little background is probably necessary here because these policies have been controversial for years and years. I mean, when I was the criminal division chief in the U.S. Attorney's Office in D.C., there were cases where we had

use legal process to get records of reporters in national security cases where we were trying to determine whether there was somebody in the government who had leaked, yes, classified information. And I shouldn't say not just classified, but information that would be particularly dangerous, right? Serious or grave danger to U.S. nationals, U.S. national security, U.S. interests.

in trying to determine who had leaked some of these things, things that put lives of, say, our covert agents at risk, lives of cooperators at risk. In one of these cases, that's exactly what was happening. And, you know, you're cautious to do it. I actually have a journalism background, hugely respectful of the free press. But sometimes when you're hitting up against a brick wall and you're trying to figure out who unlawfully communicated this information that put lives at risk,

Sometimes you just do want to get a hold of records of what phone numbers journalists might have been making with phone numbers of people in the government who were the ones who knew the information. And I can tell you also in my experience, I think we talked about this a year or so ago and probably in yours too, I've been the person that journalists and reporters have tried to call to try to kind of like urge me to share classified information before. And I've often thought, you know who goes to jail if I do that? Not you. I'm the one who goes to jail.

And I'm not doing that. It would also be wrong and blah, blah, blah. Can I just say that on the competing interests, just, you know, when I was in government, you're sitting there going, God, it would just be so easy if we could just subpoena this stuff from, you know, reporter A, these sort of phone records or email records, or if we could just ask. From the phone company. Yeah, exactly. And so could we just get them? And it's just going to short circuit this. But when you're out of government, you realize,

That this is like, you know, sometimes the medicine is worse than the disease. And that this is exactly what happened. The issue is the chilling effect on reporters and the role that they're supposed to play and also the abuse that could happen when the government is using it improperly. The one thing I will say in this area is there's no, you know, I think these are all

interesting efforts and it's and they obviously have evolved. And so I do think it's a difficult issue. If Pam Bondi were doing this in good faith, if she didn't have all of the background that we just talked about, I might be saying, well, this is a different it's not illegal for one, as opposed to the things we've been talking about. This is a policy difference.

And if you could assume good faith and you could assume that there in fact was going to be clear oversight and good judgment being used, it's a different approach. I'm not sure I would do it, but that was sort of my general take. Yeah. And I think that's where I was trying to get to with that background. So that, you know, under the...

Holder, Department of Justice, there were new, more stringent requirements put in place for when a prosecutor could seek to use legal process. It could be a subpoena. It could also be a search warrant, right? You know, it had exceptions for things like when the reporter is willing to provide it to you or when the reporter is

might be involved in an actual crime and other things like that. But it was a process to make sure that you couldn't just have prosecutors out there willy-nilly, you know, subpoenaing reporters' records. Then under Garland, that got, like you said, it got made to where basically you couldn't do it. You just weren't going to be able to even run it up the flagpole in important cases unless, in fact, the reporter was alleged to have committed a crime unrelated to news gathering.

So, you know, hacked into a computer system to get the information, something like that. And, you know, that I think some people might think went too far and made it too hard to get information where it might be warranted. So what...

What Bondi has done, like you said, is backed off of that until we actually see the regs, her memo. It's not entirely sure exactly how it would match up to the policies before Garland or even under, you know, the Holder Department of Justice. But it definitely is easing up on what Garland did.

And as you said, I mean, reporters on Friday were saying all kinds of things, and I don't disagree with them about the salt on the free press and things like that. And I think part of it is also an intimidation tactic, like so many things. But to your point, if we had better faith and trust in the government, it might not be quite as alarming. But here's what makes us lose that faith, because paragraph three, after the lovely and non-controversial first sentence you read, Andrew, and some other

Not entirely controversial sentences in the first two paragraphs. We get paragraph three. However, under the Biden administration, elitist leaders in government weaponized their undeserved influence to silence perceived political opponents and advance their preferred and often erroneous narrative about significant matters of public

debate. This weaponization included prosecutors trying to muzzle First Amendment speech, criticizing the Biden administration, including through gag orders targeting not only President Trump, but also other criminal defendants such as Dr. Ethan Haim. The Biden administration also abused Garland's overly broad procedural protections for media allies by engaging in selective leaks in support of failed lawfare campaigns. The

The leaks have not abated since President Trump's second inauguration, including leaks of classified information. So here's where we'd like, oh boy, okay, now I know what this is about. This is about weaponization. Yeah. So some of the things that she says that are less controversial are,

because it really is going to be like how this gets implemented. She does say, you know, this is not something... Going to reporters and going to their records is sort of a last resort, not a first resort. That's right. She's going to look to see whether there are other means that have first been used. She's going to be looking to see, except in unusual cases, whether there's been an effort to negotiate with the news media and that before anyone would be arrested in the media, that that has to be approved by the attorney general. Again,

That reads a lot like the policy before Garland, honestly. Yeah, exactly. And so a lot of this comes with the context and the overlay and particularly that paragraph on page two. And I have to say, we're sitting in the middle of Signalgate where the attorney general has said,

that she's not investigating at least the first part of Signalgate because she sort of unilaterally determined that there's no classified information there and it was inadvertent. I've already talked about the inadvertent part only deals with somebody on the Atlantic being on Signal, but the use of Signal and the dissemination of material on it was intentional. And the idea that it was

not classified is something that has been very much challenged in news reports. I mean, let's get real. I mean, let's just be grandmoms for a second. The location of where we're going to have military strikes, that's classified. That's classified. And so people are in jail now for leaking classified information. I'm certainly no fan of that. But here...

It's hard to read this against that backdrop. It's like several things we've talked about today. You know, don't talk about protecting law enforcement while you've, you know, let go all these people who attacked law enforcement. Let's not talk about protecting classified information while high levels of our government are using an unapproved commercially available app to communicate classified information, the hypocrisy. Mary, I'd love to say,

It's so great to be with you. I just wish there was some good. Yeah. Yeah. The good is, hey, there is good. Judges, they are just really doing their jobs.

people bringing these cases, supporting the constitutional rights of so many. Again, it's not just, you know, immigrants like Abrego Garcia or Venezuelans. It's all of these cases. And judges are really stepping up. And let's hope that continues all the way up. Judges of all political stripes, which is so important for people to understand, this is not a partisan issue. It's an American issue involving the rule of law.

Mary, with that, thanks so much. And thanks to everyone for listening. And a note to listeners, Mary, you and I have another date this week. This one in person. Exactly. We'll be joining Ari Melber for an MSNBC special. I think it's at 7 p.m. on Friday. Eastern. It's featuring a legal review of the first hundred days of the Trump administration. So all the stuff that we haven't gotten to. And we'll be joining Ari Melber for an MSNBC special.

And some of the stuff we did. Be sure to stay tuned. Mary, I look forward to seeing you in person in my city. Absolutely.

That's right. And remember, you can subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC Originals ad-free. You'll also get subscriber-only bonus content. To send us a question, you can email us at mainjusticequestions at nbcuni.com. This podcast is produced by Vicki Virgolina. Our associate producer is Jamaris Perez.

Our audio engineer is Katie Lau. Our head of audio production is Bryson Barnes. And Aisha Turner is the executive producer for MSNBC Audio. Search for Bane Justice wherever you get your podcasts and follow the series. Hi, I'm Roman Mars, host of the podcast 99% Invisible.

Design is everywhere in our lives, but it's easy to not notice or take it for granted. 99% Invisible is a weekly exploration of the process and power of design and architecture. It's stories of who we are through the lens of the things we build. Like, have you ever wondered why we use the one kilohertz bleep sound to cover up inappropriate words on radio and TV? Or what aspects of infrastructure allow five-year-olds in Japan to run

errands by themselves while kids in the U.S. are completely dependent on their parents or their parents' cars? Or why the historic flag of South Vietnam shows up at right-wing protests all the time? Or why people are obsessed with houseplants? And when did we start bringing plants from halfway around the world into our homes to begin with? 99% Invisible will explore all of that and more every Tuesday. Follow and listen to 99% Invisible wherever you get your podcasts.