Sending in the Military
59:14 Share

Building a business may feel like a big jump, but OnDeck small business loans can help keep you afloat. With lines of credit up to $100,000 and term loans up to $250,000, OnDeck lets you choose the loan that's right for your business. As a top-rated online small business lender, OnDeck's team of loan advisors can help you find the right business loan to fit your needs. Visit OnDeck.com for more information.

Depending on certain loan attributes, your business loan may be issued by OnDeck or Celtic Bank. OnDeck does not lend in North Dakota. All loans and amounts subject to lender approval.

We all belong outside. We're drawn to nature. Whether it's the recorded sounds of the ocean we doze off to, or the succulents that adorn our homes, nature makes all of our lives, well, better. Despite all this, we often go about our busy lives removed from it. But the outdoors is closer than we realize. With AllTrails, you can discover trails nearby and explore confidently with offline maps and on-trail navigation. Download the free app today. ♪

Hi, welcome back to Maine Justice. It is Tuesday morning, June 10th. I am Andrew Weissman. I'm here with my co-host, Mary McCord. Hi, Mary. Let's get started. Yeah, that's right. No beating around the bush today. There's just a lot and it just keeps becoming more. We're going to talk about L.A., but I want to make sure everyone understands that this is something that a lot of people have thought about because of things that the president had

Thank you.

that people have really worried about, which is the use of the military domestically. Mary, you'll be happy to know I have done a ton of reading. I'm sure you have. I never doubt that ever.

I'm so looking forward to this. So we're obviously going to talk about what is happening in L.A. It is top of mind, but there's so much else we're going to talk about as well. There's a lot, right? Then we will talk about there's been also huge developments involving not only Abrego Garcia, who has been brought

back to the United States. So this idea that the U.S. was unable to bring someone back has obviously been shown to be not true because he is back in the United States. Now he was back in the United States to face criminal charges that were brought against him while he was in El Salvador. So we'll talk a little bit about that whole situation and what's happening in both his civil case, right, his case to try to facilitate his return, and the criminal case. And that relates directly

to Judge James Boasberg's ruling last week in the habeas and due process case brought by those still detained in El Salvador, the alleged members of Trende Aragua. And there's a real intersection here because Judge Boasberg, spoiler alert, said that they have a right to due process. The government needs to facilitate their ability to be able to bring habeas claims

And one of the issues in that case also is, can they be brought back to the United States or not? So the Abrego Garcia situation of him being returned is really going to, I think, bear quite heavily on the case of all of the rest of the detainees that were sent to El Salvador. So that will be very interesting. And Mary, you know, we famously always agree on things. I have a little bit, I'm going to be interested because I, of course, I have an enormous respect for Judge Boasberg, but

leaving that aside. I have a take on his decision that I'm going to put out there. Oh, I've had to spend a lot of time with his decision, yes. And so I'm going to put out a proposition and you can dismantle it for me. Okay.

Okay. And then finally, we probably will run out of time to get to these things, but there are a few things we want to flag. People may have completely lost track of this, but tomorrow, Wednesday, there is an argument in the Second Circuit, the United States Court of Appeals, in the case involving Trump's conviction in Manhattan. Now, you might be saying, wait a minute, those were state charges. Why is this in the federal court of

Court of Appeals. But people may recall that Donald Trump tried to remove that case, the case brought by the district attorney Alvin Bragg for falsifying business records.

They tried to remove that case to federal court under federal officer removal. That was denied. And they have appealed that. And you might say, why does this matter? Because the whole case is over now. Well, we'll talk about why Donald Trump and apparently the Department of Justice, led by the very attorneys who represented Donald Trump and filed the original appeal, also believe that it should not be over.

And then at least flag something big that came out last week that we won't have nearly enough time to talk about, which was another emergency docket ruling from the Supreme Court, this time staying in junctions by the lower courts that were preventing Doge from getting access to private and confidential Social Security information with no rationale at all. And Justice Jackson, joined by Justice Sotomayor, have written an, I think, 10 or 11-page dissent

explaining that there is no reason for the court to be doing this and all the reasons why it's a bad idea to stay those injunctions. So there will be more to come on that as we move forward. And since there are a lot of double negatives always when you have a court saying we're going to stay an injunction, what that means is that in fact,

the Doge employees can now actually access the Social Security Administration data and all of the district court's restrictions on that, which, by the way, the district court did not say you can't do it at all. It was just a lot of bells and whistles to make sure that privacy rights were adhered to. Those are all gone. And during the pendency of the case. Okay, Mary, I'm

I thought a way into the discussion about L.A., we could block it out in this way to sort of have people understand what's going on, which is to first talk about what exactly is happening, like who is being sent and by whom into L.A.? Like, who are the people? What part of the sort of military? What kind of is it law enforcement? What are the numbers? The second part

thing, what is it that they're assigned to do? Like, what is their mission and for how long? And then the third, which is really then the big enchilada, which is what is the legal authority? What is the cited legal authority? And what is sort of the potential other legal issues out there

One thing just to make sure people understand is there is now a legal challenge that we will talk about that was brought by the state of California and Gavin Newsom, the governor of California, to the action. Yes. So...

In terms of who has been deployed there, of course, all of this arose because ICE on Friday and continuing into Saturday was continuing the raids that it has been doing in various places around the country, particularly targeting service industries. So ICE vans pulled into parking lots of Home Depot and went to other places, really rounding up people and arresting people. So these were not targeted people.

at people with criminal charges or things like this. These were just sort of roundups. There had been no, at least according as alleged, no previous notice to the Los Angeles law enforcement, right? The LAPD, the police department, the LA Sheriff's Office, no notice. And this caused many people to get very upset about the way these migrants were being treated.

And, you know, these are masked ICE agents, you know, jumping out of vans and rounding people up. So that's led, understandably, to protests. A friend of mine commented on this, a former prosecutor. The note that you said, which is,

Masked. Masked. Terrible. That is unbelievable. Law enforcement wearing masks? I mean, why? We are not in COVID right now, right? Like, there is no reason to wear a mask except to hide your identity and, frankly, scare people. Right. And let's just go back for a second to Judge Wilkinson, who is in the Fourth Circuit. He is a conservative jurist who wrote the very scathing decision in Abrego-Garcia.

And, you know, he talked about this issue and he's not alone. There are many judges talking about the way in which this is done. And it feels like it's almost intentional to have that scary effect. So anyway, this led to lots of protests. Much of it peaceful. But even the state of California agrees some of it was not peaceful. Yeah. And that's

Fairly common in peaceful protests. There will be some agitators who throw rocks at law enforcement. There were some cars set on fire. As I understand it, they were Waymo taxis set on fire and the vast majority peaceful. But yes, there were acts of violence.

So typically, and the way this started out is local law enforcement and state law enforcement. They have the police power under the Constitution. They're the ones who are keeping the situation under control. And by all accounts, they were keeping the situation under control. They were making arrests as needed.

And they were able to continue to enforce the law. They were getting the protesters, you know, moved out of certain places so that ICE could do its job, etc. Nevertheless, the president then on Saturday night issued a

presidential memorandum that does not say anything, just mind you, about California or Los Angeles or anything like that, just talks about numerous incidents of violence and disorder that had recently occurred and threatened the enforcement of federal law by ICE.

He therefore authorized, and we'll come back to this in our legal discussion. He therefore relied on a federal statute that we'll talk quite a bit about to authorize the federalization of the California National Guard to temporarily protect ICE, other government personnel, U.S. government personnel performing federal functions, and to protect federal property. You mentioned how long he authorizes this for 60 days.

So again, and this is important, we'll come back to this. He doesn't specify California. He doesn't specify Los Angeles. His reason for doing this ostensibly is that to the extent these protests or acts of violence directly inhibit the execution of the laws, they constitute a form of rebellion against the authority of the government of the United States. So that's his rationale. So what happens then is the Department of Defense

reaches out directly to the adjutant general in California and says that the adjutant general must call up 2,000 California National Guard members. This means these are the National Guard. Many people listening probably are members of the National Guard. It is a state-

authorized militia. I mean, the word militia really means the lawful militia. It normally is performing state functions, but it can be federalized because it is a dual system of enrollment. And most typically, we'll see also National Guard right can be called upon to go overseas and federalize there working directly with U.S. armed forces in places abroad where they are deployed.

They can also, in some limited circumstances, be federalized within the United States. And that's the legal issue we'll come back to. But they are from California. They are Californians, right? So we are calling forth the California National Guard now in California to be ostensibly protecting federal property, etc., but against protesters who are their own community members, potentially, and their neighbors, right? So that's the first tranche is 2000. That's right.

So then, even though, by all accounts, including from President Trump himself, things have been much calmer, and not necessarily because of the California National Guard, because it seems that things were relatively calm before that, except for sporadic incidents. Nevertheless, just yesterday, Secretary Hegseth, Department of Defense, called upon 2,000 more California National Guards. I don't do math in public, but I can do that. You can do two plus two. So that's 4,000. Okay.

That's right. And that's because the president's order had said that he was also leaving stuff to the discretion of the secretary of defense, even with respect to the number of days. But that's why he was able to then call up yet another 2000. Let's leave aside for the moment. We're going to be talking about the legality. But like, I want people to just focus for a moment on just the government's supposed to be thinking about how to calm waters.

How to de-escalate. That is such a huge part of good law enforcement. And this is, I mean, again, it reads like intentionally doing the opposite and using this as a ruse or a pretext because you just don't understand. But anyway, I think I'm interrupting the story because there's even more. There's even more. Yeah.

As you indicated, that presidential memorandum had left certain things to the secretary of defense. So not only did he order up 2000 more California National Guard yesterday, he also ordered up 700 Marines.

to deploy into Los Angeles. So sending in the Marines. Yes, the memorandum had said, in addition to federalizing National Guard, the Secretary of Defense may employ any other members of the regular armed forces as necessary to augment and support the protection of federal functions and property in any number determined appropriate in his discretion. So we now have almost 500

5,000 Federalized National Guard and Marines. And when I said Federalized National Guard, that means they are now part of the U.S. military. So we have almost 5,000 military members being deployed into L.A. Just to be fair, Mary, you and I are not condoning it.

any way violence. No. These are people who, the ones who are doing something that are violent, they deserve to be investigated and appropriately dealt with. Like, that has to be done. Charged if necessary, right? Here's the ruse idea, but I totally agree with you. You know, we may talk about

The last time there was a huge incident in California, and I think the Newsom complaint talks about that. Just to talk about, I think there were 12,000 arrests and this was the Rodney King. This was in 1992 after riots broke out when the police officers who had been charged with brutally beating Rodney King were acquitted. And yes, there were deaths. There were thousands and thousands of people involved and thousands injured.

And those of us old enough, certainly, we all remember the videos of this. There was nothing comparable. And that was on the request of the governor to please, you know, help with U.S. military to quell that violence. The reason it's useful to talk about this, this idea of how big is the problem and then

because it really feeds into Donald Trump's, like, we need to go in with massive force. And essentially, it's like impose the death penalty for minor things, to use hyperbole, because then it won't happen again. You know, this could read that way, and listeners should stay tuned because it becomes relevant to the

to the illegal issue about what are the triggers for the particular statute. But Mary, I wanted to go back to something you said about what these people are allowed to do. Are they allowed to just be like politicized

police officers or do they have like specific things that the president or the secretary of defense is saying is their mission while they're there? Is there some limit on what they're supposed to be doing while they're there? Well, one is like what is in the presidential memorandum and the other is what the law is. So I'll talk about both. The presidential memorandum, as I indicated before, says this is to temporarily protect ICE, other

other government personnel performing federal functions, including the enforcement of federal laws. So see, for example, federal immigration law and to protect federal property at locations where protests against these functions are occurring. Now, one of the remarkable things that I'll come back to is, again, it wasn't in California. It says at locations where protests against these functions are occurring or are likely to occur based on current threat assessments and planned operations.

So in other words, this presidential memorandum purports to give carte blanche across the country to the federalization of the National Guard to protect ICE and federal property anywhere where protests might be taking place. So it's predetermining that there is a rebellion in those places, which seems to me

to be legally extremely dubious and remember we're talking about sending out federalized national guard at protests first amendment protected activities but that's where your question really comes into play what are they allowed to do again right here it's just about protecting federal property a federal law called the posse comatatus act it is a criminal statute it prohibits

the military or including the Federalized National Guard from engaging in domestic law enforcement. Right. And that goes back historically to the fact that our founders never wanted and proceeding up through the ages, never wanted to have military doing normal policing. And they certainly didn't want civil authority. That's right. This is you know, who was a huge champion of this?

Eisenhower. Yes, absolutely. Which to me, you know, there's certain people where it speaks volumes when they're the ones who champion it. And this was General Eisenhower. Yes. A military general. Major, major figure. And he was warning about the military and understood. And by the way, this is true of many, many secretaries of defense. We saw it at the end of the Trump first term where the secretary of defense and former secretaries of defense rebelled

raised this alarm about the use of the military when there was this discussion about what role they might have

Lafayette Park right outside of the White House. And that's why in 2020, after George Floyd was murdered and there were protests around the country. Yes, absolutely. So, OK, so that so that's the law that prohibits domestic law enforcement. But the devil is in the details. What is domestic law enforcement? Does it include these things, the protection of federal property and the protection of

federal ICE agents. Our government, at least, the Department of Justice, takes the position that no, that is not domestic law enforcement. And case law involving the Posse Comitatus Act overrides

over, you know, decades, there's not a ton, but there is case law about what does that mean, has really kind of narrowed it down to those sort of core police functions. So think search, seizure, arrest, detention, like the things that police officers do when they're investigating a crime. And

And so if it's really sort of like providing protection, a barrier, let's say, between ICE agents doing their job and the members of the public, a barrier around federal property, including ICE detention centers, that

That is not considered, for purposes of posse comitas, that is not considered to be domestic law enforcement. And so it would not be in violation of that statute. And also just a little footnote here. When the National Guards are not federalized, when they are in state active duty status or they're operating voluntarily on federal missions,

still under the control of their governors because the governors are the commander in chief unless and until they've been federalized. They are not subject to posse comitatus because people may be saying, wait, haven't we seen National Guards being deployed to help with law enforcement occasionally? Yes, we have. And they are not subject to this.

But the military that never gets deployed that way or shouldn't, except for in constitutional or statutory exceptions to posse comitatus, they do not have that authority. But when the National Guard is federalized, they become just like regular active duty military and they are barred

from this type of domestic law enforcement. So the question really, and I think what reason why a lot of people are very alarmed about this is this kind of prospective authority across the country to federalize National Guard and to bring in active duty law enforcement to protect federal property. Will that veer into or bleed into actually doing domestic law enforcement, right? If there is protest activity, will there start to be searches, seizures, arrests, detentions?

And if so, will it be without any proper authority? There is an authority for allowing an exception to the Posse Comitatus Act. And that is a declaration or an invocation of the Insurrection Act, something that President Trump had promised during his campaign that he was going to do on day one. And that is something that is a congressionally passed statute that is the most common exception to Posse Comitatus.

It applies during insurrections, rebellions, situations where the law cannot be enforced using regular law enforcement. It is normally throughout our history has normally only been used when a governor has requested help, like after the Rodney King riots, as we were discussing earlier. The only times other than way back during Reconstruction when it was ever used without the governor's consent have been the civil rights cases right

at the time of desegregation after Brown v. Board of Education. So it is very, very unusual to use that authority over a governor's objection. But that is not the authority that President Trump has invoked right now. Yeah, that's sort of like to come.

Let's take a break. And when we come back, let's turn to the statute that the president actually invokes, this 12406. I don't know if that's how people rephrase it, but it's like that. I've been saying 12406. Okay, so we'll go with that. 12406.

And this is going to be one that, just to give a little preview, this is one which is going to seem reminiscent to our listeners when we talked about the Alien Enemies Act and we talked about invasions.

And sort of what are the prerequisites to trigger the application of this statute? People remember that one of the big issues that immigrants were raising was, does this statute apply? Was Trendy Arroagua invading our country? By the way, I think we're up to four courts that have now reached the merits saying, no, it hasn't. That's not an invasion. And this statute requires invasion or rebellion or

are being unable with the regular forces to execute the laws of the United States. So let's come back and see which of those three could possibly apply here. And by the way, that's not all. There's more. That's right. I was going to say, hold, hold, please. Hold, please. OK, let's take a break. Come right back.

Building a business may feel like a big jump, but OnDeck small business loans can help keep you afloat. With lines of credit up to $100,000 and term loans up to $250,000, OnDeck lets you choose the loan that's right for your business. As a top-rated online small business lender, OnDeck's team of loan advisors can help you find the right business loan to fit your needs. Visit OnDeck.com for more information.

Depending on certain loan attributes, your business loan may be issued by OnDeck or Celtic Bank. OnDeck does not lend in North Dakota. All loans and amounts subject to lender approval.

We all belong outside. We're drawn to nature. Whether it's the recorded sounds of the ocean we doze off to or the succulents that adorn our homes, nature makes all of our lives, well, better. Despite all this, we often go about our busy lives removed from it. But the outdoors is closer than we realize. With AllTrails, you can discover trails nearby and explore confidently with offline maps and on-trail navigation. Download the free app today.

Ryan Reynolds here from Mint Mobile with a message for everyone paying big wireless way too much. Please, for the love of everything good in this world, stop. With Mint, you can get premium wireless for just $15 a month. Of course, if you enjoy overpaying, no judgments, but that's weird. Okay, one judgment. Anyway, give it a try at mintmobile.com slash switch. Upfront payment of $45 for three-month plan, equivalent to $15 per month required. Intro rate first three months only, then full price plan options available. Taxes and fees extra. See full terms at mintmobile.com.

Welcome back. So, Mary, I'm just going to do a very, very quick read so that people understand what we were talking about. What does this statute that the president invoked say? And it says whenever one, the United States or any commonwealths or possessions is invaded or is in danger of invasion by the United States,

by a foreign nation. Not applicable. I like it. Ruled already. We got a ruling from the bench. And to be clear, the presidential proclamation does not purport to suggest there's an invasion by a foreign nation. Although, you know what? It doesn't. But you know what? I've seen a bunch of tweets and statements

saying we've been invaded by immigrants. Well, that's something that started back in the first Trump administration, didn't it? So let's say, I mean, just to be clear, there's still it's again, think Alien Enemies Act, this idea of an invasion. But this idea it's been invaded or is in danger of invasion by a foreign nation. So very much the Alien Enemies Act issues that we've covered before. Second,

There is a rebellion or danger of a rebellion against the authority of the government of the United States. Remember, this has to be a rebellion. It's not resistance. It's not a skirmish. It's not a few people, you know, even more than a few people.

who are acting out or committing acts of violence. And then third... So perhaps, just perhaps, something like we saw on January 6th, 2021, a rebellion against the authority of the government of the United States with an intent to change the leadership. I would say if that's not a rebellion...

how is this a rebellion? It's like, really? This is the perfect question for a judge to be like, so let me just understand your definition and let's just go over everything that happened on January 6th. Anyway, this is where, like, there's a reason we do this together. Yes, that's right. Because it's exactly, it's like hypocrisy. Yes. Order of one. Heart palpitations. Yes. Okay. So there's invasion, there's rebellion or danger of rebellion. And three, the president is unable with the regular forces to

to execute the laws of the United States, unable. And that then allows, and it gives a little color, this calling up of the National Guard to repel the invasion, suppress the rebellion, or execute these laws. And then it says, orders... And here's the kicker, one of the kickers, many kickers. One of the kickers, yeah. Here's another prerequisite. Orders for these purposes are,

shall be issued through the governors of the states."

And here, Governor Newsom did not go along with this. He actually objected to it. That is why he is suing and the state of California is suing. And according to the complaint, he was never even... No request was ever made to him. Instead, the request from the Department of Defense went directly to the adjutant general. So every state National Guard has an adjutant general. It's usually, I think in most states, probably all states, appointed by the governor. But it is somebody who...

has also, you know, in this case, serves in a military position, but is reporting to the governor in that role as the adjutant general. So the orders came directly to the adjutant general, not to the governor. And apparently the adjutant general complied and passed those orders along in order to federalize the National Guard. But as you say, that is one of the bases for the lawsuit that Governor Newsom in the state of California has now filed against the Trump administration is that the statute requires the

the consent of and cooperation of the governor. That's why orders are to be transmitted through the governor. And I will just say as a legal matter, there'd be no reason for that to be in the statute if it did not have some teeth, some effect. If the idea is you can do this without the governor, then why does the order have to go through the governor? Yeah, exactly. So one of the things that is alleged that marriage

Mary, I know you know, but I just want to make sure people understand this because some people might go, what's the historical precedent for this? And hasn't this been used? You mentioned one which had to do with the civil rights statutes in a different context.

But one of the things that is in the state of California civil complaints that is now pending, there's no decision for everyone to. Yeah, just was filed yesterday. Yeah, we don't know what's going to happen with that. But on paragraph 58, they say this is only the second time in our nation's history that a president has relied on the exclusive authority of this provision to federalize the National Guard.

And this is the other time. It tells you everything about what Mary's talking about in terms of when you would do this and the relationship and the responsibility of the president. The first was President Richard Nixon.

But in such a different circumstance, right? Just to make sure the mail got delivered. So that's what I was going to say. The first was President Richard Nixon when he called upon the National Guard to deliver the mail during the 1970 Postal Service campaign.

Right. So that is not law enforcement. Right. Not engaging in law enforcement. Absolutely. And so this is such an interesting thing, because when I first started looking at military authorities well more than a year ago, because we were worried even early in 2024, based on things that Donald Trump was saying as a candidate, we were worried about the misuse of military authorities at protests and also to engage in immigration enforcement. And to be honest, conflict.

kind of surprised it's taken four and a half months. You know, this is something Donald Trump had said he would do day one, but he did say he would invoke the Insurrection Act. When I started doing that research and when my team started doing that research, that's the first time I took a close look at 12406 because I thought, what's the point of the statute if we have an Insurrection Act that is an exception to posse comitatus? That's what the president should use if there is an invasion, an insurrection, a rebellion.

right, against the authority of the United States. In fact, many of the prerequisites that you read, Andrew, from 12406 mirror, they're not word for word, but they're very parallel to the prerequisites for the Insurrection Act. So, you know, looking further into it, it seems like this has been and, you know, people are scholars and constitutional military lawyers are not

entirely all I think of one mind of what the purpose of the statute is, but it appears to really be an implementing statute, right? So that when there is a need, it's a way to implement orders for the federalization of the National Guard. And so the question here is, could it ever on its own stand alone to allow the federalization? And as you've just indicated, only one other time has it been used standing alone, but that wasn't to engage

in any type of domestic law enforcement. And we can say right now, so far, according to the presidential memorandum, it's not to engage in domestic law enforcement. Again, protection of property, protection of federal functions and federal personnel

is not domestic law enforcement, but still highly unusual to use this and even more unusual to use it over the governor's objection. Mary, so one factoid and then one sort of analytical point. The factoid is the statute that we're talking about was passed in 1903.

And then it was amended thereafter to add this governor's provision that there has to be. Passed after the Insurrection Act, I should be clear, right? Yeah. And they sort of amend, though, this 12-4. What did you call it? 12-406? 12-406. It is in Title 10. Title 10 is the title of the United States code that applies to the military and makes sense because we're talking about when it's federalized. Yep. So it was passed in 1983 in something called the DIC Act.

act. So sort of, you know, I'll leave that. I'll just leave that there. Named after somebody. Yeah, exactly. Although we did notice that Richard Nixon was the first to use it. So there is maybe like a little, you know, Yeah, that is interesting. Tricky dick. Yes, exactly. A little just starkle interest there. And then to me, the issue here is one that as lawyers, we focus on a lot, which is something called the slippery slope or the camel's nose.

And in law, you sort of think about somebody having the camel's nose is under the tent and the next thing you know, the camel's in the tent. And that's where it sort of comes from, this idea that this is the first step. And this is huge. And I think one of the reasons is it is so untethered to the actual facts on the ground. It's so disproportionate to that. Two, there's no...

factual findings that go to invasion, rebellion, unable to

execute the laws with regular forces. And pardon my interruption, but nor could there be, because remember, the presidential memorandum doesn't even talk about a specific ongoing protest. That's exactly what I was going to say. That to me, that to me is like the tell. It's exactly right. Make sure everyone really gets what Mary's point is, is that this isn't geared to a factual context

And so you'd have to be able to say the whole nation is under rebellion. Really? I'd like every listener out there to go, really? Do you feel that way? Or we're invaded? Or even being generous, being generous or not generous, but being looking most favorably at the verbiage. He's saying anytime there are acts of violence during a protest, that's a rebellion and that triggers this. And that's not what the statute says, right? It doesn't say...

you know, respectively, it says whenever there is a rebellion. Now, it does say we're in danger of rebellion, but that would still imply there are facts on the ground you can point to, not sort of, I am prospectively authorizing something anytime there's protests that have individual acts of violence. And that, to me, is one where, and the law doesn't do a great job at this, which is there's no fit between

between the people protesting and the acts of violence. You would need to know, is it 1%? Is it less than 1%? What is it that's leading you to think that this is a sufficient trigger here? So there's a real dearth of findings. Now,

Everyone should stay tuned because, you know, we're going to get a response from the government to the Gavin Newsom State of California lawsuit. There's sort of legal responses, which I think is what they kind of are going to need to do. But they're going to need to, I think, amplify how they justify which of these things is actually going on here, let alone why this is applicable. I mean, I know it's just State of California, but it's like this is one that, frankly, every state

could be suing because it's like this is globally applicable. Yeah. And I think that, you know, the point you just made is one of the other key arguments made in the complaint, right, which is that the conditions in California do not

fall under any of those prerequisites in the statute. Rebellion is generally understood to connote an organized attempt to change the government or leader of a country, usually through violence, right? That's not happening here. And when you think about it, if it only takes a protest with some individual acts of violence to be a rebellion,

I mean, there aren't that many protests in the country where maybe somebody doesn't do something like could be purported or accused of being violent.

So it really would like completely invade the capital of the United States to prevent the counting of presidential votes. That one, I think, really is a rebellion. I guess I'm making a different. Exactly. Lots of protests. There's some agitator, but the mass of the people are being peaceful. So if that's going to be a rebellion, you're talking about a massive crackdown on core fundamental First Amendment rights.

Now, caveat here on everything. The courts traditionally have given incredible deference to the president when it comes to matters of national security, and at least in the Insurrection Act area, have given a lot of deference to his judgment about whether there is an insurrection or rebellion. We don't have any case law on 12406 to see what the courts will do. But one thing that the Supreme Court said with respect to Alien Enemies Act is, you

The courts do have the responsibility for interpreting a statute and its constitutionality. So interpreting a statute is key here. And I would say the courts can do that. Right. And that just to before we take our next break, which is I want people to understand the courts will say we're deferring to fact finding to the judgment, to the analysis that the executive branch, absence, clear bad faith, they're going to defer to

But the courts will decide what is the definition of a rebellion in this statute? What is the definition of invasion? Because that's where that's what's happening in the lower courts of the Alien Enemies Act saying it does not meet that. You have found X, Mr. President, but X is not an invasion.

And so that's where the courts do have a role. And they've actually been pretty strong on that. Yes. Right now, we still have the 4,700 people, the 4,000 National Guard, the 700 Marines. At least as we're recording this, things seem relatively calm, which is good news all around. But this is an extraordinary step forward.

in our country, when you think about the other times this has been used, you think about Rodney King or the Civil Rights Act. When I say this, I mean the idea of military use. Right. The Selma March and Renewable

Remember Little Rock, Arkansas, when the governor there deployed his state National Guard to prevent the children from entering the school after Brown v. Board. And that's when Eisenhower used the Insurrection Act to send in the 101st Airborne to protect those children entering the school. He invoked the Insurrection Act. So very unusual for that. But that was not even 12406, right? That was actually the Insurrection Act. So.

So why don't we take a break and then come back? And we need to flag a lot of things, which we'll try to do pretty quickly. What's going on with Ebrego Garcia and related to the Judge Boasberg case? And then we'll sort of flag, why don't we just flag it right now? Which is, you know, tomorrow there'll be this argument in the Second Circuit about once again, the president trying to remove it. The only really new thing here is that the Department of Justice has now flip-flopped and saying he can remove it.

And I think we'll have a chance, hopefully next week, to talk more about the argument rather than talk a lot about it before it happens. I say that, but between now and next week, there'll probably be a dozen other huge issues. So exactly. We'll do our best. OK, let's take a break.

Building a business may feel like a big jump, but OnDeck small business loans can help keep you afloat. With lines of credit up to $100,000 and term loans up to $250,000, OnDeck lets you choose the loan that's right for your business. As a top-rated online small business lender, OnDeck's team of loan advisors can help you find the right business loan to fit your needs. Visit OnDeck.com for more information.

Depending on certain loan attributes, your business loan may be issued by OnDeck or Celtic Bank. OnDeck does not lend in North Dakota. All loans and amounts subject to lender approval.

We all belong outside. We're drawn to nature. Whether it's the recorded sounds of the ocean we doze off to or the succulents that adorn our homes, nature makes all of our lives, well, better. Despite all this, we often go about our busy lives removed from it. But the outdoors is closer than we realize. With AllTrails, you can discover trails nearby and explore confidently with offline maps and on-trail navigation. Download the free app today.

Hey, guys. Have you heard of GoldBelly? It's this amazing site where they ship the most iconic, famous foods from restaurants across the country, anywhere nationwide. I've never found a more perfect gift than food. GoldBelly ships Chicago deep dish pizza, New York bagels, Maine lobster rolls, and even Ina Garten's famous cakes. So if you're looking for a gift for the food lover in your life, head to GoldBelly.com and get 20% off your first order with promo code GIFT. That's GIFT.

That's goldbelly.com, promo code GIFT. Welcome back. So...

I tell you, Andrew, if it hadn't been for what happened this weekend, I think we probably would have spent at least one and a half, if not two segments talking about both Judge Boasberg's case involving alleged members of Trenda Aragua, who are still to this day at the terrorist detention center in El Salvador. They've been there since March the 15th. And the Abrego Garcia return to the United States in criminal charges. But

Lots of other things happen. And so we are constrained on time. So just to start us off, last week, Judge Boasberg, you know, he originally had a case of people being removed to what's called SECO, the Terrorist Detention Center, alleged members of Trendyaragua, ostensibly under the Alien Enemies Act proclamation of the president. That case went to the Supreme Court and the Supreme Court said these people

Cases have to be brought in habeas in the place where the people are detained. And when Judge Boasberg had originally handled that case on a very much an emergency basis on when people were already being loaded into planes to take off to El Salvador, they were not in D.C. where Judge Boasberg is. They were in Texas. And so the Supreme Court made clear they have to bring these kind of matters through habeas in their places of detention.

of confinement, but they are entitled to bring habeas cases. They are entitled before their removal. Of course, these people had already been removed, but going forward, entitled before their removal to notice that they are to be removed under the Alien Enemies Act and the opportunity to bring a case in court to challenge that. Okay.

What has happened then, since he no longer had jurisdiction over people who are detained in different places around the country before the removal, the attorneys for the men removed to Seaco sought to bring a case in habeas before Judge Roseberg on behalf of that class of people detained at Seaco because he can't bring it against the jailer, the person, the place where they're confined because they're in El Salvador. And there is case support that when you've been removed from the country,

you can bring your cause of action in D.C. So what Judge Boasberg was ruling on last week was a couple of things that we won't get into, but the main thing that he ruled on was, yes, you can bring this as a class action on behalf of those who were removed March 14th and 15th to SECO under, solely under the authority of the Alien Enemies Act.

But you cannot bring habeas in front of me because what he found was that, and this is where it gets really...

challenging, I think. He found that there was insufficient evidence, although the evidence was mixed, that the detainees at SICO were in the constructive custody of the United States. Now, you and I have talked about, and I have felt pretty strongly, that if this is some sort of monetary agreement between the United States and the government of El Salvador to host detainees for money, that they certainly remain in the constructive custody of the United States.

And Judge Bojberg recognized that, but he had in front of him a declaration of a U.S. government official that under oath that said that they were being held. It was squishy language that you might have right in front of you. It was that they were being held under the law of El Salvador. That's right.

But of course, that's, and the judge recognizes that and says, well, I know that's true, but it doesn't really say that much. Of course, they're being held under a law of El Salvador. That doesn't really speak to

are they in the constructive possession of the United States? Like, it's not directly... Anytime the person's there, it's just saying they're not here illegally. There's a provision. So it was a weird thing. I have a theory for why he did this. I do too, but I think it is important to point out before we move on to that, which is that he recognized that there's a lot of evidence suggesting they're not in constructive custody. He said, the law, though, says...

essentially, when I've got a declaration under oath from a government official, I need to defer to that. And he makes clear that was under oath. And I remind you, right, of your obligations when you are under oath. By the way, Mary, that's what I wanted to ask you. I wanted to ask you that. I have never seen that from a federal judge to the Department of Justice. It is in writing saying basically that

I know how inconsistent this is with the public statements by a whole slew of federal officials, including the president. Including the president.

And he basically is like, if I find out, you should know there can be a prosecution for perjury. Of course, that's going to have to happen in some, like, another time and place because it's not going to happen under Pam Bondi, in my view. That's right. But, you know, that was sort of remarkable. I will give you my theory for why he did that because I think he thought, I mean, this is just, you know, what I'll call educated speculation. He was saying, look, there's a due process claim that I can grant and there's a habeas claim.

complaint that I can grant. But he views them as kind of, it's one or the other. Yes, that's right. And so by saying, I'm not going to give habeas because of this jurisdiction, it's sort of the one that would be the most fraught on appeal. And if he ruled on that ground, he would not be able to rule in their favor on the due process ground. So by doing this, he sort of gives them the strongest argument on due process and protects them on appeal from this issue of

should he have deferred to the sworn declaration and the case law that says how much you have to defer to it. So I think it sort of, sort of in ends justifies the means. And it's sort of better than that. It's not like because he has an argument for doing all of this. It's not like it's fanciful in his decision.

And ultimately, I think, and this is what I'll explain now, the due process ruling kind of all leads back to the same place, because what he says is I can hear the due process challenge and following directly what the U.S. Supreme Court said in this very case.

These detainees were entitled to notice and an opportunity to challenge their removability pursuant to the Alien Enemies Proclamation. And he goes on to say, let me just read a couple of quotes, then I'll turn it to you. That process, which was improperly withheld, must now be afforded to them. Put differently, plaintiffs' ability to bring habeas challenges to their removal must be restored.

In other words, defendants must facilitate plaintiffs' ability to proceed through habeas and ensure that their cases are handled as they would have been if the government had not provided constitutionally inadequate process. And the kicker here, absent this relief, the government could snatch anyone off the street, turn him over to a foreign country, and then effectively foreclose any corrective course of action. See Abrego Garcia, Statement of Justice Sotomayor.

Okay, I'm going to give a criticism and then I'm going to just want to quickly read the way that Judge Boasberg starts the opinion. My criticism is like, there's no question he does a lot of work here, particularly with respect to, as you said, particularly with this issue of the class action.

This issue of due process, he comes right out and says, like, the Supreme Court's already ruled on it in this very case. That's right. So there was a lot of this where I'm like, okay, you just spent how many pages saying something, saying what the Supreme Court has found, which is you have to facilitate their return or their release. And these people are entitled to due process and they didn't get due process. I mean,

I mean, it's like, yes, we know the Supreme Court's done it. So like, move on. The issue is these people are in jail as we speak. Their due process violation has been found by the Supreme Court. So like, let's go. There was a part of me that was like,

Okay, I understood that the first time when the Supreme Court ruled 9-0 this happened. I understood the second time when the Supreme Court said, we meant what we said. Yes, there was part of this that was new, but there was parts where I was just like,

Judge, come on. In fairness, I think he was in some way responding to this notion that the government had asserted, which was that the Supreme Court's opinion was prospectively. Remember, they said from here going forward. Yeah, but he cites that. He cites that and says that's not right.

Let me just start with how he starts, because I think it's so important. It's a big picture. For those people who have heard the phrase Kafka-esque coming from France, Kafka, this is how Judge Broseberg starts. And I'm just going to do my best Rachel Maddow on this, which is because my words are not going to be anywhere as eloquent as his. This is how he starts.

One morning, Kafka's Joseph K. awakens to encounter two strange men outside his room. As he gets his bearings, he realizes that he is under arrest. When he asks the strangers why, he receives no answer. Quote, "'We weren't sent to tell you that,' one says."

Quote, "'Proceedings are underway, and you'll learn everything in due course. Franz Kafka, the trial.'" And then gives the sites. Bewildered by these men and distressed by their message, Kay tries to comfort himself that he lives, quote, "'in a state governed by law,' unquote, and one where, quote, "'all statutes are enforced,' unquote. He therefore demands again, "'How can I be under arrest and in this manner?'

"'Now, there you go again,' the guard replies. "'We don't answer such questions.' "'Undeterred, Kay offers his papers and demands their arrest warrant. "'Good heavens,' the man scolds, "'there's been a mistake. "'Our department,' he assures Kay, "'is only attracted by guilt. "'It doesn't seek it out. "'That's the law.'

I don't know that law, Kay responds. You'll feel it eventually, the guard says. And this is his point about this is where we are. And the government's just saying, trust us. The next sentence is, such was the situation into which, and he names the names of the Venezuelan non-citizens say they were plunged on March 15th, 2025, when, as you know, in the early morning hours, they were loaded onto planes and transported to El Salvador.

So with Obrego Garcia, I wanted to note two things. He obviously was indicted, as you said, somehow he's able to come back here. And so clearly the government, when they want him back here, they say they presented an arrest warrant to El Salvador and that led to his being released. One, Todd Blanch, the Deputy Attorney General of the United States, tweeted the following.

He attached in his tweet the indictment, and he had as his line coming from the deputy attorney general of the United States, the number two person, the phrase, welcome home. That tells you everything you need to know about this Justice Department. Welcome home. I mean, classless is too mild. It's inconceivable in any administration I have ever worked in that somebody would do that.

Yeah. It's just cruel. It's not even on the chart of the level of what you would expect from a government. We don't make fun of people. And I know he will now. He's indicted by a grand jury. He will get due process of law in a federal district court in Tennessee, or he certainly should. I mean, that's up to a judge to do. It's not solely up to the United States Department of Justice. But we don't

I say we. You and I were prosecutors a long time. You do not talk about people that way. Right. And you don't be facetious that way. Second, whether he is guilty of these charges or not, he may very well be, is irrelevant. It's totally irrelevant to the issue of his being denied due process and other people being denied due process. It is not even a factoid.

The Department of Justice is not somehow vindicating itself by charging him. I mean, maybe they'll prove the case. Great. If he's guilty, that's fine. The jury will decide that.

But the issue of his having been mistakenly taken from this country in violation of court order without due process, and then them saying we can't do anything about it, that is not remedied in any way, shape, or form.

by whether he happens to be a criminal. In many ways, that is what due process is about. That's right. As you and I know, we don't get to say, by the way, you know what? We don't really think we need to have a fair trial because the defendant's guilty. That's sort of what Judge Boesberg's getting at, which is the guard doesn't get to decide that. 100%. The jury does. And then I wanted to just point something out, which my colleague at NYU, Ryan Goodman, pointed out, which is what appears to be a big error

in the indictment. Whether it becomes material, whether it plays out, whether there's an explanation, I just wanted to flag it for people. And this is, I just want to give Professor Goodman credit for this.

which is one of the key things that the government relies on is this traffic stop from a few years ago in Tennessee. And in the indictment, they call it out because Rego Garcia is driving, there are nine people in the car, and he's asked questions. And according to the indictment,

He lies, they say, because he's asked sort of like, where have you been? And he says, oh, you know, we've been in St. Louis doing work on our way to Maryland. Construction. I'm paraphrasing. There's lots of details. But that's sort of the gist of it is that we've been here. And they say that's a lie because we know from license plate reader and telephone records that, in fact, he was coming from Texas, Texas.

And he didn't reveal that. And this is the problem, is that Professor Goodman went back to the actual report that was issued by the Tennessee State Police, I think. Yeah. And that was made public, by the way, I believe, by the government when they were trying to tarnish Ebrego Garcia, when they were trying to say, oh, you know what? He's not this great guy. He's a bad guy, which, by the way, may be true, maybe not true. I mean, that remains to be seen. But let's assume it is true.

The report says that when he is pulled over and asked, where are you coming from? What are you doing here? He says, and this is in the report, that we are coming from, wait for it, Texas.

I'm not joking. So there is an inconsistency here between the actual contemporaneous report that the Tennessee Highway Patrol took back in November of 2022 and what the government is alleging in the indictment and in its motion to detain Mr. Obrego Garcia. I should probably say for listeners that he was indicted with charges of illegally smuggling aliens and conspiring to transport aliens illegally. So that's why this traffic...

Traffic stop, according to the government, is relevant to that because their claim is that the nine people he was transporting were aliens that he was smuggling as part of this nine-year conspiracy that is alleged in the indictment and the charging documents.

I agree. We will find out as more evidence comes out what the merits of these charges are. I will note, and I don't have explanation for this, but I will note that the chief of the criminal division in the Middle District of Tennessee, someone I actually worked with years ago in the D.C. office, resigned on the day that this indictment was returned by the grand jury. It initially was turned under seal.

They then brought Mr. Obrego-Garcia back to the country and it was made public. I will say also, honestly, just reading this indictment and reading this motion to detain Mr. Obrego-Garcia,

It just didn't read like indictments I'm used to and motions to detain that I'm used to for a case alleging such a significant thing. Normally, even think back for our listeners who listen to us when we would talk about the indictments that Jack Smith returned, right? Lots of details about the source of the information.

excerpts of actual conversations or reports from different, you know, cell phone tracking things, right? There's a level of detail that tells you the government has a whole lot of

credible sources for the information. I'm not saying these don't exist. I don't know. I'm just saying it doesn't read the way I'm used to for allegations that are this serious. And that gives me a little bit of concern. Yeah, I agree with that, that usually, especially if it had been a complaint and not an indictment, it would be like, you know, cooperating witness one says X, cooperating witness says this, and cooperating three says that. So there's a lot of just...

we know this, but it doesn't really say how. I though, to my mind, I have no idea whether he is guilty or not. There's things in this indictment that give me a lot of questions about his innocence, let me put it that way. But obviously it's going to be for the government to prove the case beyond a reasonable doubt. And maybe they can. And by the way, if he did all these things, then he deserves to be prosecuted. And it wouldn't be selective prosecution in the sense that this is a kind of criminalization

crime that is prosecuted if he did all these things. And the circumstances are obviously, to say the least, unusual. But that all remains to be seen, whether it may be that the case falls apart, it may be that it gets proved, it may be that there is selective prosecution, it may be that the witnesses are not that good. I mean, we just don't know yet. But to my mind, it's sort of a distraction.

from the real issue, which is that due process was violated. That's right. That has nothing to do with the violations that we're concerned about. And in many ways, I think it's an important thing for people to understand that

Heroes are not always people who have heroines who have a clean white hat. I remember this during Enron. There were people who were viewed as, oh, this whistleblower, and people want to view this as a knight in shining armor who are just, you know, have never done anything bad in their life. That's not the take-home here. It is that you have somebody who could have been as guilty as the government says he is, and his rights were still violated.

That's right.

completely antithetical to that goal when you have it coming from this Justice Department and the sort of cavalier comment from Todd Blanche is so antithetical to who we're supposed to be as a country. And just on that point, two final things to note.

The case, the civil case, Bradobrego-Garcia, where the Supreme Court said you must facilitate his release and provide him the process that he should have happened, the due process he should have had before he was removed. The government, of course, has now said that case should be dismissed. He's now back. It's moot.

His attorneys there are saying, oh, no, no, it's not. There are still contempt proceedings that can be had for the failure for all of this time to bring him back when you could have done so. So that question to due process and to the government's compliance with Supreme Court directions is still, at least right now, a live issue. And second is, this is exactly what is now going to be on Judge Boasberg's plate as he's

getting from the government due tomorrow their proposal about how they will facilitate providing an opportunity for all of the people at SECO to file a habeas? Are they going to say, sorry, Judge, we can't bring them back? And is he going to say, well, you brought back Abrego Garcia? This all remains to be seen. And it's because due process is so core, like you just said, Andrew.

Mary, I know this was like an incredibly intense podcast episode. Mary, I want to just thank you personally, because I always learn so much. It's so great that you were steeped in this. I'm sorry for the circumstances that brought you to it. But yeah, it is something that was great for us to get the benefit of. Well, that's very gracious of you. Thank you.

And thanks, everyone, for listening. Remember, you can subscribe to MSNBC Premium on Apple Podcasts to get this show and other MSNBC Originals ad-free.

And you'll also get subscriber-only bonus content. This podcast is produced by Vicki Bergolina with production support from Max Jacobs. Our intern is Colette Holcomb. Our audio engineer is Bob Mallory. Our head of audio production is Bryson Barnes. And Aisha Turner is the executive producer for MSNBC Audio. Search for Maine Justice wherever you get your podcasts and follow the series.

Busy work weeks can leave you feeling drained. Prolon's five-day nutrition program rejuvenates you at the cellular level with boxes labeled by day so you know exactly what to eat. Developed at USC's Longevity Institute, Prolon supports biological age reduction, metabolism, skin health, and fat loss when combined with proper exercise and nutrition.

Get 15% off plus a $40 bonus gift when you subscribe at ProLonLife.com slash Pandora promo. These statements have not been evaluated by the FDA. Products are not intended to diagnose, treat, or prevent disease. See site for details.