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Hello and welcome to Maine Justice. I am Andrew Weissman and I'm here with my co-host Mary McCord and we have something very, very special for you because the episode you're about to hear was recorded yesterday live at Maine Justice.

At Princeton University, which, Mary, I don't know. Is your alma mater. It is my alma mater. By the way, do you want a fun factoid about Princeton? Of course. It's actually about my class at Princeton. I graduated in. You don't have to say. No, you know what? I'm owning it. I graduated in 1980. And do you know who was in my class? No. Is this a trivia that I should know?

When I teach, I call this the what do I have in my pocket school of teaching. Oh, yes, that's good. That's right. Because it's like, really? Just tell me. In my class was Masha Yovanovitch, who was the former ambassador to Ukraine. She actually had lots of positions in the State Department, but she's well known for that because of the vilification she had to undergo by Rudy Giuliani and others. Yep. And...

General Mark Milley. Oh, my goodness. Wow. So and you didn't know then. Well, we didn't know where you all would end up. Exactly. Anyway, I hope everyone enjoys the discussion we had. It was it was great to be there. Yes, we had a live audience of students, faculty and alumni and no better place to be when speaking about both the rule of law and the importance of academic freedom in this moment. Here's that conversation.

So I have a surprise for everyone here and for Mary, which is I just think it's great that you all turned out to hear my defense of my senior thesis. That wasn't a joke. I just assumed that since I never really got to talk about it on air that, you know, it's a very interesting topic. But anyway, I've never had an introduction that was that great. So thank you so much.

Will it be in French? It's great to be back at Princeton, which looks fantastic and is beautiful. I have incredibly fond memories. So thanks everyone for coming. This is such a great academic institution that will be part of our discussion. And we didn't plan it this way.

but it could not be a better location substantively than to be here at Princeton. And I'm so proud of having been here. I'm so proud of the president for his stance, and we will turn to that. So with that, thanks very much for coming. Welcome to Maine Justice Live at

Princeton University. And as you know, if you are a listener, I turned it over to Mary to tell us what are we going to talk about? Because the hardest part for the two of us since January 20th is figuring out how to choose and synthesize in our own heads what is going on and then how to figure out the best way to sort of to translate that for people who are not necessarily in the weeds as much as we are.

And needless to say, there's just been a deluge of things to talk about. And oftentimes we'll text each other on Sunday with what we think we're going to talk about. And then Monday, everything will change. And so Tuesday morning, right before we record, we're both texting. Well, now we need to talk about this. And now we need to talk about that.

And per typical, we had a lot of action over the weekend. So we will start today by talking about the continuation of a number of cases involving deportation of migrants, immigrants without any due process. So we'll talk about the status of Kilmara Brego Garcia's case. We'll talk about the flurry of activity Thursday, Friday, Saturday, and even into Sunday morning over deportation.

Venezuelans being bused to flights to be, again, deported without any due process. And then we'll also talk about the contempt proceedings in front of Judge Boasberg in D.C. So a lot on that topic. And I will tell you, that alone, we could go on not just for the full hour, but for many hours. There's so much there.

Then we do want to turn to talk about universities and the executive overreach that has been happening targeted at Columbia and Princeton and my school, Georgetown and Harvard, particularly.

perhaps in many ways, most sort of explosively recently, and the threats that that type of action really poses for academic freedom and First Amendment rights. And then finally, we will talk about the Supreme Court's rather, at least for me as one of the litigators, surprise that it was going to have argument against

on the motion of the government to limit the scope of the nationwide preliminary injunction against the executive order that seeks to deny birthright citizenship to children unless one parent is a citizen or lawful permanent resident. And this is not on the merits, and we'll talk about what this means. This is solely about should it be a nationwide injunction or something less than that. So that's a pretty unusual thing for the Supreme Court to have argument on.

So shall we kick it off? So let's go to Maryland.

In federal court in Maryland, that is where the case of Mr. Obrego-Garcia sort of came to light in terms of our knowing about it. As we are all sitting here today, Mr. Obrego-Garcia is in prison in violation of his rights and admittedly by the government mistakenly. In El Salvador. Yes, in a foreign prison.

And there was a court order from years ago saying that this is the one country he could not be taken to, and that in violation of that court order, he was taken there. In addition, a couple of weeks ago, the Supreme Court issued a decision with no dissents that people are entitled to a pre-deprivation hearing. That is, in other words, you get to litigate the law and the facts

before you were removed from this country. And Mr. Garcia is a perfect example of why due process matters, because it's not just you can get the law wrong, but you can also not be in the group, not be the person as to whom the law applies. And so those were at least two law violations, and yet he is still sitting in a foreign prison with a governed position being that they can do nothing about it,

even though the third violation, in my view, is the Supreme Court has said that the government is required to facilitate his release from that prison. That's the exact word. You have to facilitate it. And then the second obligation from the Supreme Court is that the government has to ensure his due process rights as if he had not been wrongfully removed. That has not happened.

and part three, be prepared to tell the court what it has done to facilitate his release and what further steps might be necessary. That was the Supreme Court's order on April 10th. So if you've been listening to the podcast, we talked a lot about all up to that point last week. Exactly. And Mary wrote a really terrific piece in the Washington Post about what she thought should happen when this case was heard by the district judge in

And I will, I'm going to say it because you would never say this about yourself. It's exactly what the judge did. So Mary, what did you write about and what did the judge do? Yeah, I call this butts in seats. And what that means is it's time to get some people's butts in the witness chairs to answer questions about- That's so Brooklyn of you. Yeah, and I'm not from-

I usually say things like that. You're so much more refined. Butts in seats. Like when you've asked the government to provide daily updates about what it's doing to facilitate Mr. Obrego Garcia's return and their daily updates raise more questions than they answer, then that's when you need to have a live person with personal knowledge, a government official, come and swear an oath to tell the truth and testify.

Now, what the judge did the day after actually that published the day after we recorded the podcast, she had a hearing. She did very much criticize the government's explanation of what they think facilitate means in their view. Facilitate means we won't put up any domestic obstacles to Mr. Abrego Garcia returning to the U.S.,

but not that they have to do anything to actually get the president of El Salvador to release him so that he can come back. Now, remember. So if he breaks out of prison and somehow gets to our shores, then we'll let him in. And that I'm not joking. That is the government's view of what the Supreme Court meant when it said you have to facilitate his release from prison.

I mean, just to be serious, our government is saying that is what the English language dictates when the Supreme Court is ordering you to facilitate his release, that it meant only when he gets to our shores, then you have to do something.

And mind you, they also said once he gets here, he will be immediately put into detention to then go through, I guess, the due process that he was entitled to to begin with. But it's that facilitate that I think leads us into the Fourth Circuit opinion. So one of the things that the government did right after Judge Zinas, Paula Zinas in the District of Maryland, she ordered that there be detention.

rapid discovery completed within two weeks. In other words, she said, plaintiffs, that is Mr. Abrego Garcia's family, you can issue by last Friday interrogatories, requests for production of documents and notice depositions. What does that mean? That's legalese for you can ask questions up to 15 questions that the government has to respond to. You can request documents for the government to show what they've done to

facilitate the release of Mr. Obrego Garcia. And you can depose, meaning take the testimony of certain high-level government officials and have that all done by this Wednesday, two days from today, Wednesday, April 23rd. And then if on the 23rd you think you need some more depositions, you can notice up to two more of those and we'll hear from the government what they say and we'll schedule that order. And she wanted this all to be done within two weeks, really getting to the bottom of

What has the government done to try to get Mr. Obrego Garcia's release? Now, put aside for a moment that I think in both of our views, he's still in the U.S. custody because even though he is in a foreign country, he is there, at least according to the president of El Salvador, he's there because the U.S. government is behind him.

paying the El Salvadoran government to house him in their prison, just like you might pay a private prison to house people here in the United States who've been convicted of crimes. We wouldn't say then that those people are in, you know, the legal custody of that private warden. We'd say they're still in the U.S. custody. The prison's just being paid to house them. And according to the senator from Maryland, Ron Holland, who went to El Salvador, he said that we are paying

$15 million to have that country house our prisoners. So just to put on my Brooklyn, I started in the Eastern District of New York, which is in Brooklyn. So just to match you with butts in seats, I would say to the judge, I will give you 15 million reasons why the United States can bring him back to this country and can exert that authority. Just to be clear, the government has not

even said that they have asked to have him returned, that they will have not even represented that they have asked the president of El Salvador for him to be returned. And that's exactly what Judge Wilkinson said when the government then went to the Fourth Circuit, took appeal and said, stop this discovery. We shouldn't have to do any of this. This is the court

Usurping its, you know, the executive function, stop this all. And I think one day's time, the Fourth Circuit unanimously. It literally gets the petition. And before there's even a response from Mr. Obrego Garcia's counsel, issues its decision. That's right. And before, because I know you're going to read from it, but just so people know who the judge is who wrote this.

Judge Wilkinson is a Republican, very much a conservative jurist. He is sort of a leading conservative light that people look to on the right for certain school of thought that he adheres to. And he's highly, highly respected, but is no deep state, you know, quote, Obama judge. And

And so... Reagan appointee, been on the bench for probably 40 years or close to it. I mean, for my friends in that world, it's like the Wall Street Journal coming out, which they did saying what is happening with Mr. Obrega-Garcia is deplorable. Joe Rogan, just to take a different group, has said the exact same thing. John Yoo, Jack Goldsmith, these are...

conservatives in the best sense of the word who think that they did not sign up for this kind of conduct in this country. Right. And as to the term facilitate, just as Andrew just said, what Judge Wilkinson said is the Supreme Court's decision does not allow the government to do essentially nothing. It requires the government to facilitate Abrego Garcia's release. And I think even more

More importantly, Judge Wilkinson, speaking on behalf of a panel of three judges who all were in agreement, explained sort of what the government's position is. And I think it's really stark and worth reading. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order.

Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done. This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from the courthouse still hold dear. And I think this goes to your point, Andrew. This is not a partisan issue. This is about fundamental due process, because as Judge Wilkinson goes on to say,

If today the executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home? And what assurance shall there be that the executive will not train its broad discretionary powers upon its political enemies?

And, you know, this is not somebody being bombastic. This is a federal judge, as you just described, saying this path that the executive is on is a dangerous path because when you don't give people the opportunity to contest when the government is taking away rights from them, that could apply to many, many different things.

things. And you'll see when we talk about universities, there are due process claims there, right? When the government is saying, we're cutting off your funding, we're going to review you for your tax exempt status. Well, not review you. I'm going to direct the IRS, right, to take away tax exempt status. These are things that the government needs to provide due process for. And we see it time and time again in the executive overreach here. So one of the things Mary and I do is we surprise each other because we each have a

underline various pieces, and invariably, it's the exact same pieces. I will say that with Judge Wilkinson's decision, that wasn't hard just because we basically underlined the whole thing. Yeah, I mean, I highlighted it. I highly, highly recommend reading it. It is written for everyone to read. I'm going to focus on just another piece of it that we've been talking about. Moreover, the government has conceded that Obrega-Garcia was wrongly or mistakenly deported

Why then should it not make what was wrong right? Which is just, I mean, so simply said. And then this is the part that I want to make sure we cover. Is this the constitutional crisis part? Essentially. I'm going to leave that because the end is dark. But before we get there, one of the things that the judge says is the government asserts

that Obrega-Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not.

Regardless, he is still entitled to due process. So as you all know, due process is not a popularity contest. It's not something that you give if you like the defendant. Both of us were prosecutors for many, many years. Usually a lot of the defendants who we prosecuted have done particularly heinous things, organized crime figures, terrorist crimes.

figures, that's irrelevant to the rights that they're accorded. You would think of all people, somebody who was indicted four times in this country at the federal and state level would understand that they have that due process rights and that that is accorded to everyone and should be accorded. I think one of the reasons I wanted to highlight this is that the administration's tack right now

is to go on a smear campaign with respect to Mr. Obrego-Garcia to say he's a terrible person, he's a part of MS-13, even though, by the way, they in court had not said that. They had conceded this was all a mistake. But let's assume that they have found new evidence or they think that he is an MS-13. Their new effort publicly is to be, this is a bad person. Isn't it great that we got a terrorist person

Pam Bondi, the attorney general, said he has been designated a terrorist, which is technically wrong. He has not been designated a terrorist. And that isn't it great that he's out of our country? And her words are that shouldn't we be thanking Donald Trump for removing him from our midst? And that is such a dangerous argument for...

for anyone to make, let alone the Attorney General of the United States, precisely for the reasons that the judge calls out. If the government wants to have its day in court to prove his affiliation with MS-13 and that he can be lawfully removed,

There is and there was at the time a constitutional lawful path for the government to have done that. They could have reopened the decision that he could not be removed to El Salvador and they could have presented that evidence. All of this was entirely avoidable. And given him the opportunity to contest it with his own evidence, right? Absolutely. But all of this was totally avoidable. The only reason to proceed this way is to avoid the court's

And the people who are being seized, the people who are, as the judge said, being stashed to avoid them having a day in court. Because there is an entirely lawful way to do this and to have the attorney general say, because we unilaterally have determined this person is, quote, bad.

we can then just do whatever we want with them is anathema to everything that is foundational to this country. And when it's coming from the mouth of the Attorney General, I would say given that both of us worked at the Department of Justice for God knows a few collectively combined... Don't say it. Don't say how many years. I don't do math in public. So...

I'm sorry, I'm not going to say it. But there's another part of this that's anathema, which is where I was suggesting we were headed, which is what is this constitutional crisis? We are, you know, really in this case and the other cases we're going to talk about, we're really at that cusp of the government just outright violating court orders and what happens with it. And this is something else that I think is really poignant about Judge Wilkinson's opinion because he sees what's coming with the executive branch

asserting its authority, the judicial branch trying to impose rule of law. And I don't just mean the whole judicial branch, the Supreme Court. They're the ones who said facilitate his release. And here's what he has to say about that. Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around.

The judiciary will lose much from the constant intimations of its illegitimacy to which by dent of custom and detachment, we can only sparingly reply, meaning judges don't talk outside of their opinions. Right. So they're left with their opinions and their rulings and what they say in court. The executive will lose much from a public perception of its lawlessness and all of its attendant contagions.

The executive may succeed for a time in weakening the courts, but over time, history will script the tragic gap between what was and all that might have been, and law and time will sign its epitaph. He then says this case presents evidence

the executive with the unique chance to vindicate the values that are, you know, core to our Constitution and to summon the best that is within us while there is still time. That's where we're at with Abrego Garcia's case. The government is now, did not appoint,

to their credit. This is one of the one thing they haven't yet gone running back to the Supreme Court to do. So they are now engaged in this rapid discovery process back in the district court. And we will see what results from that. I think it remains to be seen what will happen when these depositions occur this week, if they occur or whether there will be some refusals.

But that sort of leads to the next thing that went up to the Supreme Court over the weekend. And it's such a, it's so remarkable because this case is now a backdrop to what happened in Texas on Friday and early into the morning on Saturday. It's continuing. But the backdrop from this case is,

is that the courts now know that the position of the United States is even if they wrongly remove someone from this country, there's not a damn thing they're going to do about it. That this person is going to rot in that prison and they're not doing anything about it.

So, to me, it reminds me so much when I was a very young lawyer and I was on the defense side and doing death penalty litigation. I mean, there's no reprieve. This is once that plane takes off. This is sort of what Judge Boasberg was dealing with. Once that plane takes off,

That's it. The government did not turn the plane around in spite of the judge saying, that's what you have to do. And so that is the backdrop to what was then happening with plane loads and bus loads of people in Texas with the court knowing that the government's position is once they leave this country, the view is going to be we're done and there's nothing we can do about it. Even if we concede it's a mistake,

even if we did not comply with the Supreme Court's unanimous decision that these people are entitled to a pre-deprivation hearing, a due process before they're removed. We're going to take a quick pause here, but more from our conversation at Princeton University in a moment. Stay with us.

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all sent directly to your inbox each morning. Get the best of MSNBC all in one place. Sign up for MSNBC Daily at msnbc.com. It's such an incredible story about sort of what happened on Friday with the ACLU representing people and going sort of very much like death penalty litigation, going very, very quickly to all these different levels. Mary, try to do it as quickly as possible. We've got so much

a substance to get to, and I'll try to give the thumbnail, but recall that the Supreme Court had already ruled on an emergency motion from proceedings in front of Judge Boasberg in D.C., which were about the government violating, as Andrew said, the court's order not, this is back on March 15th,

Right. Not to send these plane loads of people to El Salvador under the authority of the Alien Enemies Act. And we've talked about the substance of that. The government appealed those orders up to the Supreme Court and the Supreme Court said from this day forward, that was April 7th, you must not deport anybody without giving them notice.

and an opportunity to actually file, you know, with enough time and in such a manner as they can actually file a habeas petition to contest their removal. And all nine justices agreed with that. So what has happened since then? We'll come back to the fact that there are contempt proceedings ongoing before Judge Boasberg about whether the flights that went out on March 15th after he issued his own order to turn them around, whether they violate that. But in the

But in the meantime, what happened is really like on Thursday last week, lawyers got wind of the fact that there were hundreds of Venezuelans being moved into a detention facility in Texas that was not already under a separate TRO. Remember, we want to learn TRO, temporary restraining order, not to deport any of them to El Salvador. And the reason for that is right after the Supreme

courts ruling class action habeas were brought in multiple jurisdictions, including the Southern District of Texas. But there was no such TRO in the Northern District of Texas, a detention center called Blue Bonnet. So this is like whack-a-mole because the courts have said we're not going to have sort of a unilateral flat out ruling that covers everything. So suddenly the ACLU and other groups had to sort of go around the country where people are to get these orders.

And so the government, to stay one step ahead, kept moving people. So they're moving people from a jurisdiction where you can't do it to a jurisdiction where there had not yet been an order saying don't remove them. Except for, of course,

The Supreme Court's order, don't remove them without notice and an opportunity for due process. Exactly. A couple of quick things. One, just to go back to Mary's point, that the Supreme Court ruling about the requirement that there be due process, which is notice and a meaningful opportunity to be heard, 9-0. If you're looking at what is going on in this administration, 9-0.

That is why you have Judge Wilkinson. That is why you have the Wall Street Journal saying this is not right. I mean, this is, it's remarkable. When is the last time you had a 9-0 decision on something this dramatic and controversial in terms of what the...

policy is. I mean, it's really quite unusual. So anyway. And I think that's important, right? We know the justices probably have disagreements about how to handle deportations of those who are here unlawfully, but all of them agree you're entitled to due process. So what happened is these attorneys got wind that there were actually people that had been moved to this detention facility in northern Texas who were getting loaded onto buses or being told, given a

a piece of paper in English, not Spanish, that said essentially that they were going to be deported, didn't say where to, didn't say they had a right to seek judicial relief, didn't contact any immigration attorneys just and ask them to sign these papers, said they were going to be put on flights within 24 hours, maybe less than 24 hours, and some were actually put on buses. So these lawyers ran into court in Texas and said, stop this, stop this. Even if

the government gave this notice, this notice was not what the Supreme Court ordered. It was not sufficient to allow them to obtain judicial relief. It was not even in Spanish, and many of the Venezuelans might not be able to read English or speak fluently English. It did not give them nearly enough time to find a lawyer and file a lawsuit to challenge their deportation. It did not give them even the notice that they had a right to do that.

And so that's what happened. That motion was filed a little after midnight on early morning of Friday. The judge ordered the government to file its response within 24 hours. The judge then said he would rule, I think, by Saturday. Well, the folks that were worried about this said, that's going to be too late. We are hearing that there are people on buses right now.

So when that judge... And they're thinking, we saw what happened in Washington in front of Judge Boasberg. We saw the planes take off. And once they're in the air, they're not being turned around. We see what's happened to Mr. Abrego Garcia. So once those people get on that plane, it's over. So they're trying to do everything they can to try and get the courts to pay attention. And by the way, there's no rush here. Like, when you think about what is the government interest...

to race through this. These people are detained. That's not the issue. No one is saying they shouldn't be detained. Their claim is about deportation. There'll be ample time for a hearing on, like, should they be detained? Should they not be detained? None of these people are...

out in the populace committing crimes. There's no sort of claim, oh, we need to do this because there's a concern about these people are, you know, all of the sort of xenophobic language that's been used about immigrants. That's not the issue here. So there's

Zero reason for the government to be rushing through this other than the same thing that you saw on the East Coast, which was we don't want judicial review and we don't want these people to get to court. There's literally, when you're weighing sort of competing interests, which, you know, judges and lawyers do all the time, you can't see what is the weight on the other side here to not say, okay,

Why are you doing this now? What about giving them a week, let alone, you know, a month? Well, and typically the only other times the Alien Enemies Act has been used have been in times of war, and people got 30 days notice. 30 days. 30 days, right? As one court of appeals judge said, in reference to just that, said to the government, do you realize you gave Nazis, right after World War II, more due process than you were giving these people? That's right. Yeah.

And the underlying issues have never yet been fully dealt with, right? Is it actually legal for the government to rely on the Alien Enemies Act when we are not at war with Venezuela? And when Tren de Aragua, even if it is a criminal gang, which of course it is, and even if it's been designated now as a foreign terrorist organization, that is not the same as a foreign nation invading the United States. So use of that act is very questionable. And then besides that, these people have a right to say, I'm not even American.

a member of Trende Aragua. That's why they need their day in court. So, okay, so this is all happening like overnight. By midday the next day, the attorneys who brought this case were worried that there were, again, like I said, people being put on buses to go out to the airport. And so they went ahead even without waiting for the district court judge to rule. They appealed to the Fifth Circuit and they appealed directly to the Supreme Court.

Supreme Court at midnight, a little shortly after midnight, issued one paragraph. You can see it, one paragraph. And the heart of this is even though this case is still pending in the Fifth Circuit, Fifth Circuit hasn't ruled. This is how important the Supreme Court thought it was. You know how normally it's like district court ruling, appellate court ruling, Supreme Court ruling. They said the matter is currently pending before the Fifth Circuit.

But then they said the government is directed not to remove any member of the putative class of detainees from the United States until further order of this court. That means nothing.

And then they said, once the Fifth Circuit rules, United States Solicitor General, you should then file your opposition to the application in the Supreme Court, your opposition to this application for an order preventing the deportation. But even without waiting for the government to respond, the Supreme Court said directed. They did not mince words. The government is directed not to remove any member of the putative class. Now, if you're saying what's the putative class?

That means it was a class of all of those detained in the northern district of Texas that were potentially subject to the Alien Enemies Act proclamation and would be deported under its authority. That class hasn't been certified yet as a class. That's why it's called a putative class. But even that, the Supreme Court said you can't deport any of them. Now, the Supreme Court then noted Justice Thomas and Justice Alito dissent from the court's order.

And the statement of Justice Alito to follow. So one of the things just about the timing that made this so dramatic that had a lot of us up late at night was one of the places that the ACLU went when they weren't getting relief in Texas at the district level and the court of appeals level is they went back to Judge Boasberg.

And in the course of that hearing, Judge Broseberg ultimately was like, you know, I don't really have jurisdiction here in light of, for a whole variety of reasons. Mostly because you're arguing the same thing down in Texas. But he asked, what is the status? What is going on with these planes? And the government makes the following representation. Same lawyer who has been

in front of him, the one saying about the planes not taking off and don't worry, they'll get returned. I'm just paraphrasing. So the judge is like, what is going on? And the lawyer says, I can assure you that on Friday, that's the day that he's in court, today there will not be anyone, any planes taking off from

But I am told that I need to make the following representation to you, that the government reserves its right to do this on Saturday, meaning 12-01. The Supreme Court decision actually comes out shortly before 1 a.m.,

So you can fly on the wall imagining what's going on in the Supreme Court between 12 and this time, because that is a window where there is no order. And it's not when they usually work. And in terms of the race, it turns out the Fifth Circuit, the Supreme Court didn't know it when they issued their decision. The Fifth Circuit actually issued their decision yesterday.

But the Supreme Court didn't know at that point. And the Fifth Circuit, like the district court, sort of punted on this. So it's good that the Supreme Court ruled. Basically, the Fifth Circuit relied on the government saying no flights planned today and tomorrow, which seemed a little untrue. Right, exactly. Planned. There's a lot of emphasis on the word planned. And so this was all this very much this sort of cat and mouse or whack-a-mole and this race of,

And as I just to beat a dead horse, which Mary has to put up with, and now you do, there's no good reason for the race. I mean, this is there's just no identifiable government interest for doing this other than trying to circumvent what the Supreme Court said about

or doing it in bad faith. That's the part, again, we were talking, we did say this to each other, which is both of us worked under so many different administrations, Republican and Democratic. Both of us have been before judges who we agree with and who we disagree with, and none of that matters. It's like when a judge tells you to do something, you do it. You do it. And if you disagree with it, you can appeal or you can ask to re-argue. You'll appeal it.

That's what the rule of law is. And 99.999% of the people of the Justice Department are trained that way and behave that way. You also don't then go out and badmouth the judge and the petitioners when you lose at the Department of Justice. You speak through your pleadings. Exactly. So people are on bated breath waiting for what did Justice Alito say. So that we could talk a lot about the five pages that he put out at like 11 p.m. on Saturday night.

All kinds of reasons why this wasn't actually urgent. The Supreme Court should have waited until it worked its way through the district court and the Fifth Circuit. And at any rate, the government had represented that there were no planned flights on Friday or Saturday. No planned flights. That's right. But we know that that's not the case based on the reporting of what the Department of Justice official said.

said to Judge Boasberg, which is that I've been told to say we reserve the right to have flights take off on Saturday. Justice Alito, maybe he's not aware of that. I don't know. But he's saying no reason to do this, no reason to have this emergency, bunch of reasons we don't need to get into. But I think what's important...

is he does not disagree that these folks should have had due process. He says at the very end, both the executive and the judiciary have an obligation to follow the law. The executive must proceed under the terms of our order in Trump v. JGG. That is the order we talked about issued on April 7th, where the Supreme Court, all nine agreed, you must give notice immediately.

And an opportunity to actually contest this in court. So even Justice Alito is reiterating that obligation on the executive. I mean, that's the good I can pull from these five pages, right? On that point, they agree. So this is now pending before the Supreme Court. They issued this temporary order.

And they now have full briefing from the government and the ACLU. And so stay tuned. We don't know what will happen in terms of whether this will be extended, whether they will give direction to the district judge.

about the notice and whether it complies with their order, whether they will ask for briefing and direct the issue of whether the Alien Enemies Act, as Mary said, whether that even legally can be used here. All of that is something that sort of before the Supreme Court and...

I fully expect that sometime this week we are going to get guidance from the court as to what's going to happen. And although it technically is in this case coming out of Texas, it is going to be generally the law of the land in terms of every other court looking to see what it is they have to do. Indeed, the plaintiffs there, the attorneys for the plaintiffs, those who are part of this putative class, in their reply brief just filed this morning said,

Treat this as a cert petition and just take this up on the merits, Supreme Court, to answer all of these questions. We'll see what the court will do. We'll continue this special episode recorded in front of a live audience at Princeton University. Back with more in a moment.

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Okay, we can't spend nearly as much time as we would like to on the contempt proceeding. So let's flag that and do a deeper dive on that next week so that we can make sure we talk about universities because we are, in fact, at a university. So suffice to say, Judge Boasberg, notwithstanding that the Supreme Court said—

the case you've been, you've issued your TRO in, this needs to be brought by individual habeas cases in the places where the people are detained. That did not end that matter because he still is entitled to determine whether the government was in contempt of court when he ordered them to turn planes around and did not deport people under Alien Enemies Act without due process. And the government did not turn those planes around. So he issued a 46-page appeal

opinion last week that I would love to read from, but we're going to do that next week, where he says, essentially, I find a fair likelihood that there's probable cause that the government willfully violated my order. And therefore, I find probable cause for criminal contempt of court. And I'm ordering the government to either remove the contempt, which it could do by bringing all those that deported in violation of my order back,

or to tell me who made those decisions to not turn those flights around. And he joins other judges who are looking at contempt proceedings. Amy Berman Jackson, who is a colleague of Judge Boasberg in D.C., who Mary has certainly appeared in front of us, as it says up high, and Judge Zinnes in Maryland. This is, again,

just to make sure you understand for the two of us, it is remarkable. The idea that there are contempt proceedings with respect to the government not complying with a court order, I just want to make, that does not happen. This is so, just not something that you see every day. But this is maybe a good segue to the universities because we're going from one

admitted mistake where the government said we removed and forcibly took Mr. Obrega-Garcia mistakenly to El Salvador where he is in jail. And that, they agree, was a mistake to, let's just take Harvard as an example, not Princeton, where the government now has the remarkable position that when we sent that letter and three of us signed it at a very senior level,

And when Harvard said, we're not doing that, and we doubled down and said, we're going to look at your IRS status, we're going to take your funding, we're going to want records with respect to your international students. Oh, by the way, that was a mistake.

So it's like another mistake. Now, that's just not plausible. I mean, again, you want to know sort of what's going on behind the scenes, but it's just not plausible that all of that happened by mistake. It's not like this is a letter where someone just, you know, pressed an email and it went. It's not like the signal chat where you just happen to have... By the way, just to be a dog with a bone in that, when people say that signal chat, the government has been saying...

That's unintentional. No, no, no. What was unintentional was having the editor-in-chief of The Atlantic on the Signal Chat. The Signal Chat was intentional.

They were intending to have the signal chat. That is not some mistake. Oh, I'm sure somebody just hijacked every one of their phones and created that. But again, just to focus on Pam Bondi, Pam Bondi has said, well, the reason I'm not looking at that issue is because it's unintentional. That's one of her reasons. And it's like, that's not unintentional. It is intentional conduct. But we digress.

So obviously this audience knows very well sort of the state of play because both the president of Princeton and I will also say the dean at Georgetown have been very, very strong in terms of academicism.

of academic freedom and the First Amendment concerns that raises a lot of the same issues that we have seen with now four federal judges finding that this administration violated the First Amendment in connection with the executive orders of four different law firms. So there's no stranger to violations of the First Amendment, and those firms have taken those to court.

Each of them has gotten a ruling in their favor. And Harvard is now taking this to court. They filed last week and then they amended, I think, today. Because, you know, notwithstanding that this letter that went to Harvard was later claimed to be a mistake. And let's just be clear about this letter. This was...

extraordinary in what it was demanding, demanding essentially to take over for the federal government to essentially take over faculty hiring, student admissions, what could be taught there. I mean, when I read it, I, it was really, well, you can't really say jaw dropping because everything is jaw dropping. Like I need new adjectives. We need a whole new like set

of adjectives. Special Trump administration adjective lexicon. Yes. Anyway, so Harvard said, no, right? We're not going to do that. They came out strongly. And what happens after that?

You know, freeze $2 billion of funding, seek, you know, potentially revoking tax exempt centers. What does that sound like to you? Sounds pretty retaliatory. And so Harvard has gone into court and said, first, you know, this is a violation of First Amendment rights to freeze this, to make these threats.

This is a violation of due process. There's no authority under law bringing claims under the Administrative Procedures Act, which basically says government, when you make a decision, government agencies here like the Department of Education and HHS, when you make decisions, they have to be in accordance with law. They can't be arbitrary and capricious. Multiple, multiple different causes of action, much like the law firms who challenged the blacklisting. The law firms got defrauded.

decisions in their favor in just like nanoseconds in legal terms. You know, in many cases, a hearing and a TRO the same day they filed their cases. I don't know if the Harvard one will move quite in those nanoseconds, but I do think it will move quickly and their arguments are very, very strong. Yeah, I mean, especially the tax-exempt issue is one which seems that it may be there as a sort of an extortionist, you know, element to have a sort of Damocles

But the potential for that happening, and this is certainly not my area of expertise, it just seems so remote. And if the law were to change, I mean, talk about a bludgeon, because it's not just going to apply to Harvard. It's going to be like every single 501c3. So that just seems...

pretty fanciful. And then if this does, in fact, go forward, although, you know, certainly the news reports of this being, quote, a mistake, suggests that they're looking for a way out to sort of figure out a resolution where, you know, a settlement's always like both sides are either sort of somewhat unhappy and somewhat happy that

sort of is the definition of a settlement. Usually not everyone gets everything they want. It seems like it's going to go that way from the fact that that's now being said and they're looking for a scapegoat to say that we didn't ever really mean this. But assuming it really does get to decision-making, one of the issues when it gets to funding, even assuming that the government can meet its factual claim with respect to

we're doing this because of a real concern about anti-Semitism or a real concern about DEI being not just a policy difference but against the law. In other words, even if they can meet that, which that's a big if, just because you give a dollar for X thing to a private entity doesn't mean that you then can ask for things that are completely unrelated.

There has to be a fit between the funding and what the remedy is so that you're not just saying, well, I gave you money for your football team, and now we want to be in charge of your Middle Eastern studies program and have a monitor over it, just to take a hypothetical approach.

from, you know, Colombia. So a bigger picture that this does focus on though is, and I'm going to just channel my inner Chris Eisgruber, which is the need for collective action and to be doing things together. Obviously that's gotten a lot of attention with respect to law firms where people are very much pointing out the fractious nature and how the administration takes advantage of it.

And with the universities, I certainly am not the first to talk about that. So I told Mary I had something I was going to float to her. And I said, we really don't discuss this beforehand, but here's my idea. So...

We just spent the first part of our discussion with you talking about the immigration cases where the ACLU and others are trying to bring class actions because you can't bring them each individually. There's just too many. And you talk about whack-a-mole. I mean, that is just going to be, you know, thousands and thousands of moles. And you have to bring it as a class action to try and get relief for the whole group. And so the question I have is,

whether you're dealing with law firms or universities, is there a way to bring that as a class action?

Now, to bring a class action, the main issue is not every single law point or factual claim has to be the same for every single person. But in the immigration cases, what the lawyers are arguing is there are a sufficient number of addictions

identical claims. For instance, how does the Alien Enemies Act work? What does it provide? When it comes to individuals, those can be decided individually. But for the common issues, decide them as a class. And my thought was, is there a way to do that with respect to law firms or universities? Because if you don't do that, it allows the administration to sort of have this

terrorizing effect of, am I going to be next? And maybe I should cave, or maybe I shouldn't have solidary. And it's not clear this will ever get to the Supreme Court, because that's the only other way of sort of putting an end to it, which is the Supreme Court, assuming that

The administration follows it. The Supreme Court says, here's the rule. But until then, you just have too many courts deciding it unless you have a class action where you can have a, you know. So what do you think? So I think it's a tougher thing to do as class action than the cases involving the immigrants, because the common issues there are what you said.

can the Alien Enemies Act even be used in a situation where it's not a foreign nation invading this country? That's just a straight-up legal issue. It doesn't make any difference which immigrants, which Venezuelans are being subject to it. And so the court could answer that question and then...

may or may not have to, you know, if they say Alien Enemies Act is not an authority for that, then, you know, then it's done, right? If they say it is an authority, then you'd have to have individual cases with each person. For the universities and the law firms, you could certainly say there are common issues of these types of measures violating First Amendment rights, violating principles of due process, violating the case of law firms, the right to counsel.

But it's a little harder because each one is based on some facts that the government is alleging, the law firms or the universities are engaging in certain things, or there's things that they're retaliating against. But I do think the need for many to come together, even if they're in individual cases, but with sort of like, you know, holding hands as we challenge this is important. And I will say, with respect to the law firms, ICAP filed an amicus brief

Now, in three of the four cases, we'll file it again in the fourth on behalf of a bunch of legal ethics professors saying that for a firm that capitulates, that enters a settlement agreement, that really compromises the lawyers in that firm, their ability to fulfill their ethical responsibilities, their duty of loyalty to their client. Because when they're now dealing with the government, are they going to be saying what's in the best interest of their client? Right.

Or are they going to be saying what's in the best interest of the firm to avoid being penalized by the government? These could be two very different things. We also said that settling with the government by offering to provide $100 million or $125 million worth of pro bono services in return for an official act, not issuing an executive order blacklisting your firm, certainly starts to smell a lot

like violating the federal anti-bribery laws. I'm not about ready to say that they have the criminal intent to do that, but it gives up that appearance. And so, you know, hopefully those types of concerns will stiffen the spines of some of the other law firms. I'd

I do want to say, because we said we would talk about it, with respect to birthright citizenship, many of you probably did see that the Supreme Court last week ordered argument on May 15th in three cases. There has been some misreporting about that argument. There has been some reporting, including from journalists I respect, who just got it wrong and they think the court is actually going to hear the substance of the constitutional question. Does the 14th Amendment really provide for citizenship by birth or

Or is that something that is susceptible to the executive order's attempt to sort of redefine what citizenship by birth means and being born in the United States and subject to the jurisdiction thereto? That's the constitutional question. That's the question that these cases raise.

prevailed on at the district court level. The case we have where we represent five pregnant mothers and two membership organizations, immigration organizations that have many hundreds of pregnant mothers whose babies would be impacted by this order, that's one of the cases. We got a preliminary injunction nationwide. The two other cases are on behalf of states. One is four states and the other, I think, is 19 states who also got nationwide preliminary injunctions saying that

You know, their standing is a little bit different. They're not pregnant mothers. Right. But there are states that are saying if a lot of people in our state end up not being citizens, that means we're going to be having to provide benefits that the government, the federal government would oftentimes provide. And that means these states are injured as well.

The issue that has gone up to the Supreme Court is not the merits. That has been won in the district court on a preliminary injunction that's all on appeal in the federal circuits, the Fourth Circuit in our case, the First Circuit, the Ninth Circuit. But what they've gone up on is don't let this be nationwide. So let's just talk about that for one second. That would mean that during this period, while this is all being briefed,

If you are a pregnant woman and you're not a citizen, you can be here lawfully on a silent application, on a student visa, on a work visa, on temporary protected status. But if you're not a citizen or a LPR and the father's not a citizen or an LPR, meaning a green card holder, your baby would only be a citizen if you happen to live in one of those states.

or you were a member of the organizations that we represent, the Asylum Seekers Advocacy Project or CASA of Maryland, or you were one of the five named plaintiffs. So proving up the citizenship would be incredibly complicated if you were born in Washington State,

You'd be a citizen. If you were born in Texas, you would not. It does not seem sensible. And so the arguments on May 15th are limited to this nationwide scope of the injunction. Ultimately, someday the Supreme Court will rule on the merits. And if they rule that what President Trump tried to do violates the Constitution, that will be the law of the land across the entire country. But this is all in these interim steps. So if you read something that suggests something else...

Take it from Mary. Yeah. Unless, of course, the Supreme Court issues a, you know, order tomorrow saying, actually, now we're going to take this up on the merits. You know, they could do that, but they have not done that yet. So one form of continuity in terms of our conversation, in terms of relating what Mary is saying is going up to the Supreme Court on birthright citizenship and our immigration discussion is you can see how.

some of these technical issues in the law about where do you have to bring the case, what's the scope of the jurisdiction that you have to be in, and then the substantive relief

really relate to each other. So in the immigration context, that's why you have the ACLU running all over the country playing whack-a-mole because the Supreme Court had said, you have to do it that way. You can't just bring this as one nationwide injunction. And so you have this issue of this sort of crazy quilt going forward. And so that's what Mary's dealing with in a really, in a different context, but the same issue is coming up of,

Can't there be nationwide relief? And I would say, just to be partisan, because you're my co-host and also you're right, which is... That's not partisan. Yeah, is if there's any case for nationwide jurisdiction, you would think it's birthright citizenship, where even if you thought in general, there might be some issue with nationwide injunctions, which by the way, when it was President Biden...

Nobody likes nationwide injunctions in the government. Exactly. The government didn't like them when it was President Biden and the people suing the Biden administration liked them. And now the shoe's on the other foot. So the legal issue of nationwide jurisdictions is one that reasonable minds could differ. But I would say your particular context, it makes a whole lot of sense to have them.

And even if the Supreme Court were to limit it more generally, they could still say this is one where the need for that kind of uniformity and to avoid chaos is important. Exactly. So more to come. Yes. So stay tuned. Stay engaged. And thanks to all of you. Thank you for hosting us. Thank you.

Thanks for listening. And thanks so much to Princeton University for hosting us this week. Remember to 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. And to send us a question, you can email us at mainjusticequestions at NBCUNI.com.

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