Judge Dismisses Some Trump Charges. Should We Be Worried?

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:53 Thomas: Hello and welcome to Opening Arguments. This is episode 1014. I'm your host, Thomas Smith, and that over there is your co-host, Matt. That's kind of my, wait, is he your co-host or my co-? Anyway, it's Matt, the real lawyer. How's it going, Matt Cameron?

0:01:05 Matt: Belong to the world. I'm good.

0:01:08 Thomas: You live to serve.

0:01:09 Matt: It's true. And

0:01:10 Thomas: Am super excited about today's episode. I wanted to mention that But had I the bright idea to post on Wednesday on Patreon kind of what we're thinking of covering for Rapid Response Friday. I think it's going to be a great kind weekly tradition because posted the stories that we had our eye on. You know, there's so many things to cover. There's so Many Options and there's such limited time, obviously. And we always have ideas. It's not, it's not a lack of ideas on our end, but it was more like, Hey, maybe, you know, we'll get an indication of what questions people really have right now, you know, to know like, which are the things that people particularly would want us to cover.

0:01:44 Matt: Did we ever. It was great.

0:01:45 Thomas: Did we ever, it was a smash hit. It went out, so many comments, so much interaction. I think it's going to be a great thing for us to do. I'm going to do it. I've said it, a reminder now, I'll do it every Wednesday. And so it's another great reason to join patreon.com/law, have some input into what we cover. It's not like you democracy or anything. We're still going to make those decisions, but it's good to know what you're interested in, and in particular, the questions you might have about the topic that we're going to cover. So I think it's going to be a really good way to get listeners and patrons more involved and make sure we're covering things in a way that's going to be the most kind of useful to everyone. I'm super excited. I couldn't be more pleased. It was one of those things where you post it and you're like, ah, is anyone going to interact? Out and it's like 50, 60 comments and like all kinds of things. So yeah, really good ideas.

0:02:26 Matt: Yeah, all good ones. Really, I mean, I just want everybody to know, like, I've tucked some of these away. There's some really good ideas here that we're going to use. So please keep them coming.

0:02:33 Thomas: Yeah, absolutely. Thanks so much to the patrons for doing that. Patreon.com/law. And you can also avoid the ad break you're about to hear right now before we get into today's stories. Off, we're going to get to the very in-demand stories that I can't wait to cover, but we had a little update. I think I Matt, I would say you single-handedly ended the Don Henley Eagles, whatever bullshit criminal thing that was, whatever nonsense that was. Seems like your coverage of it just completely squashed it.

0:03:00 Matt: Thomas, I think it was already gone. I got more of these. I regret I can't use them all.

0:03:05 Thomas: Oh, my God. That wasn't even planned. You just, oh,

0:03:08 Matt: No, I didn't even have that written down.

0:03:08 Thomas: Man, you're amazing at this. You're

0:03:10 Matt: I just, yeah, no.

0:03:10 Thomas: Like an Eagles pun savant. This is a, speaking of hidden talents. Okay.

0:03:16 Matt: It just, I have too many lyrics in my head. It's just a side effect of being in a band. So yes, the case has been dropped. It turns out that the Manhattan DA's office can check out anytime likes. That is what's happened here.

0:03:17 Thomas: Yeah.

0:03:29 Thomas: But they can't leave, I guess. So they're still there. They're like, well, I'm still in the courthouse because we checked out. There's but I can't leave, so I'll be here.

0:03:35 Matt: Like Don Henley can't ever leave. We'll get to that, but he's stuck on this one. But yeah, no. So there was a last minute disclosure, like extremely, not even last minute, it was late. It was extremely late. 6,000 pages of material were turned over by Henley's legal team. And it sounds like they'd been trying to hide behind some kind of attorney -client privilege, and they finally had to turn this over.

0:03:37 Thomas: Yeah. Wow. Where have I heard that before? Was Also Terrence Bradley, actually, was involved somehow in this Eagles series. Like, I thought all this was privileged.

0:03:55 Matt: Yeah, totally. Very popular tactic. And yeah. Been advising, you know?

0:04:04 Thomas: It's not forks over a bunch of legal pads with Eagles lyrics on it. I

0:04:05 Matt: Yeah. Yeah! So it turns out that, of course, in these 6,000 pages, there's some really bad stuff on the part of Mr. Henley and his lawyers and his agent. They, in the words of the judge, were working to obfuscate and hide information that they believed would be damaging to their position that the lyric sheets were stolen. So this is actually pretty much what I said in the episode, is that they don't seem to have any clear story about how they were stolen or why or to be able to prove that

0:04:32 Thomas: Want to clarify, I made the joke that this was the legal pads, this obviously wasn't that, so this is like correspondence that they were trying to keep secret Yeah email. Okay, and all was kind of in on this Eagles conspiracy. Jeez.

0:04:37 Matt: Emails, emails, yeah Don Henley, his agent, and two of his lawyers were corresponding about how they could kind of set this up to make sure these people got convicted. And so the judge very rightfully found that this would have been very helpful for the defense had it been disclosed earlier, turns out. And yeah, he made some cutting remarks about the prosecution being a little starstruck, maybe taking this case. And in fact, I think I said something like that myself, that

0:04:50 Thomas: I think that's a good decision. Good job, judge. That, I agree. Well, well, that's why I asked, I was wondering if we're... I going to get something truly crazy, which was, like, was the prosecutor involved in any of this nonsense? Sense

0:05:14 Matt: More involved than they would have benefit were just me having my lyrics stolen, pretty sure. Nobody wants my lyrics though. But yeah, no. So he He acknowledged that it was in the interest of justice. This was the only result. Gave him a little lecture about that. But that was it. Case dropped. And

0:05:19 Thomas: Oh does anyone get in trouble, so no, sorry I don't take that seriously anymore so, but like Don Henley's not gonna, no, nobody, because it seems pretty messed up. Like, could they, could they sue, could these people sue who are essentially, you know, I could imagine them being like, hey, we were set up, like, you know, there's gonna be some sort of damages, maybe, for for that, huh?

0:05:30 Matt: Definitely could be a bar complaint from what I'm seeing about this. But Yeah. Sure. Yeah. Understandable.

0:05:50 Matt: Yeah. Yeah. Mean, yeah, it's certainly defamation. These people were out there. Like, their first comment was, it'S time to work to get our reputations back. Because these were pretty well -known people in the collecting world and they'd all kind of had this association of criminality. But as for Don Henley, he's still shaking his fist and he's made it pretty clear he might have other options. I don't know if he's going to try to sue them or whatever, but as it is, these people still have the lyrics and I would assume they're not going to try to sell them quite yet, but maybe they could try to unload them. They're a little hot right now, maybe, but we'll see. But at this point, my advice to Don Henley is don't look back. You can never look back and that is all.

0:06:26 Thomas: All right, well, uh, we'll keep an eye on any dad rock related cases going forward, of course, uh, but it's time to get to, uh, the story that it seems like I and everyone else wanted to know about folks may have seen on, uh, I don't, I don't know, everywhere, the internet generally, that some of the charges in the Georgia case were dismissed by Judge, what's his name? Who's like 28 somehow, but looks 100.

0:06:30 Matt: You know it for sure.

0:06:50 Matt: Scott McAfee, we love him. He's a great judge.

0:06:51 Thomas: Yeah. Yeah. Scott McAfee. Yep. That's interesting. I see people online who are not as big a fan as you are, but okay. Interesting. Of the charge is dismissed and I've seen a range of reactions. This is a perfect OA story because I would like to know, particularly from someone like you who has real criminal justice experience, people are wondering, well, shoot, does this mean the prosecutors messed up and bringing too many charges? Is this a bad thing for the case? Does this matter? Or is it going to be the kind of thing where it's like, hey, they had, I don't know, 91 or something, and now they lost five counts. So, like, big deal. Uh, I represent that properly. Uh, secondly, um, how do you think this affects everything? What's your breakdown, quashels?

0:07:03 Matt: It is.

0:07:29 Matt: You're right. Scott McAfee woke up on the quashing side of the bed on Wednesday. He was ready to go with those quashings. I think quashels is actually the word, quashles. Yeah, I love it. So yes, six counts of the 41 count indictment have been quashed. And of the counts for the same charge. And it was solicitation in of oath by public officers. So essentially soliciting someone to violate their oath. Let's keep that in mind. A very specific charge. And there's a bunch of weird stuff about it. And I'm going to tell you right now, this is one OF the situations where commonsense completely parts waves with criminal law, law, because there's a big difference sometimes between criminal law and common sense. But as a defense attorney, I have to tell you, I completely understood why he did this. I think I support it. It doesn't really matter who the defendant is. I Think that there is an issue here. It doesn't actually kill the rest of the case, but we'll get there.

0:07:37 Thomas: Wow. Oh.

0:08:14 Thomas: But off the bat, I often charges are like super repetitive, you know, and I think there's good reason for that. And it does seem weird to the lay person, like, oh, they're charged for this and this and that, all sounds like the same thing, but is it might be different. And I know there's a lot of reasons that happens. Like it's, there's also like lesser included kind of offenses stuff, but that, what you just said, I mean, what, to violate an oath, I mean, just descriptively, that sounds like it might've happened. It doesn't seem like the most outrageous set of charges, I guess, just right off the bat.

0:08:41 Matt: No, it's funny, too, because you and I have been talking since I was on Serious Inquiries Only about how it must be so easy and obvious. Obviously, we got the guy on tape. He's saying, find me the votes, right? That has to be a crime. But it's hard to actually find the crime this is. And unfortunately, count count 28 of this indictment has been dismissed. And that is the big one involving the call.

0:08:49 Thomas: You Right? Yeah, you would think. Oh, really? The

0:09:01 Matt: I'm going to get there.

0:09:01 Thomas: Big one?

0:09:01 Matt: I've not there yet. That's the big ones.

0:09:02 Thomas: I don't like the sound of that, Matt.

0:09:03 Matt: Is the one we all know about. It's the sexy one, right. It's one that you would think you could prove the easiest because we've all heard him say it. You would think that would mean something, but It's a lot more complicated than that. So we have to break down what this charge actually is, because I haven't seen anybody really do this yet, and it's going to be a little painful, but we've got to do it. So this is a compound offense. Essentially, you're talking about solicitation to do something else, right? So I could solicit you to kill a guy, and you have to prove both that I asked you to do it and that this meant the elements of killing a guy to

0:09:10 Thomas: Yeah.

0:09:30 Thomas: I don't have to actually kill the guy for that to be a problem, right?

0:09:33 Matt: Exactly. Exactly. I just have to solicit you. Now, if we agree to kill the guy, then it's conspiracy. And there's a number of conspiracy charges throughout this indictment involving a lot of different people. But of course, we all know Raffensperger did not agree to do anything. So it's not a conspiracy. In this case, it's just somebody asking someone to do a crime. But is it? And did he? That's the question. So yes, I hope you would hope, right? But you're not going to like the answer.

0:09:55 Matt: You're really not going like why this is. There's some real lawyer answers here, some very lawyer -brained kind of thinking. But this lawyer -brand kind of think is how we protect protect our rights, unfortunately. So let break this down. .1 is the violation of oath by public officer statute. And I will just read it so you know what it is. Public officer who willfully and intentionally violates the terms of his oath as prescribed by law, she'll be punished.

So essentially there's a sentence to that, but I just want to make sure you understand the exact terms here. So the solicitation for that would be that you are intentionally trying to get someone to willfully and intentionally violate the terms of their oath. It's pretty clunky just to begin with. Can hear how that's extremely technical, but there's not really otherwise a crime around asking someone to rig an election, unfortunately. This is the only way they could do it.

And these charges are not central to the RICO indictment, which charges a number of overt acts, right? A lot of false statements, a lot of sort of going in and pressuring people to do things. But the solicitation portion of this is not absolutely essential to proving the conspiracy, which is the larger RICO case.

0:09:49 Thomas: Okay. Yes. Oh sorry. Yeah. Uh, okay.

0:10:54 Matt: So I just want to say that off the bat, we don't have to worry that the whole thing is going away.

0:10:57 Thomas: Gotcha.

0:10:58 Matt: These charges could even be brought again, as I'll talk about at the end. Six charges, these counts are specifically tailored to individual acts that individual defendants did, sometimes alone, sometimes together.

0:11:08 Thomas: Don't want to slow you down. I'm so sorry, but since you did that little correction, what's the difference between a charge and account?

0:11:10 Matt: The are under the actual statute that we're talking about, but the count are each time you violated that statute.

0:11:20 Thomas: I just have never thought to ask this before.

0:11:24 Matt: It's interesting to think about because even in the course of an assault, you could end up with several counts if you assault somebody several different ways, several counts of assault assault because you've violated different directions. So the all solicitation to different elected officials, most famously, of course, the Secretary of State Brad Raffensperger, but also members of the House of Representatives, a senator, And they were charged with soliciting members of the Georgia House of Representative, for example, this is Smith and Giuliani, to violate their oaths of office. So right away, as a criminal defense attorney, when I read this indictment, I thought, well, how? Because it says, by requesting or importuning them to unlawfully appoint presidential electors, but they didn't take an oath of office to not request or importune or unlawful appointment of presidential electores. They took an oath, and I looked up all the oaths in this case. Oath they took was to support the U.S. and the Georgia Constitution, which are are very different documents, as we'll discuss.

0:11:29 Thomas: Wow. Okay,

0:12:14 Matt: So this is going to sound a lot like the officer thing we were talking about last week. It's kind of going down that road where it's like, well, I didn't actually swear an oath to...

0:12:19 Thomas: Yeah. I know. I never had to think so much about oaths before. It's so old -timey. Yeah, it's so stupid.

0:12:24 Matt: Yes, and oath breakers. I know.

0:12:29 Thomas: It is like, oh, the oaths.

0:12:31 Matt: Yeah, I did want to point out that you can only become an oath breaker with the permission of your DM if you're like a level three paladin. So that's just something to keep in mind. There's

0:12:38 Thomas: That will factor in. We will cover that when When Judge McAfee talks about it.

0:12:42 Matt: At least five people appreciated that, I'm sure.

0:12:44 Thomas: Oh, more than that. We have a lot of D &D players, yeah.

0:12:46 Matt: A lot of Dnt out there All Right, um, so the oath, though, this is because crucial, the defendant's first argument, which was pretty funny actually, was that, well, they, they didn's say which of these people took and the judge is like, come on, let's be serious, there's just one oath, you can look it up, it's not that hard, like We know what it is, so that didn't go anywhere. But where they win is the argument, argument, that the term of the oath alleged must be expressly prescribed, meaning that there's something that is explicitly something that they're supposed to do or not do. And this, to some extremes, I'm going to tell you about an extreme that's cited actually in this decision from Jowers v. State in 1997, is about as extreme as it can get, though, because we're talking about a police officer who had sex with a minor who was in his custody. Right. Extreme stuff. There have been a lot of cases like this.

0:13:00 Thomas: Yeah. Wow. Please don't tell me he's about to get off because of an oath didn't say expressly he can't do that.

0:13:31 Matt: Almost that bad. It is almost that Bad. Okay, you're not even ready for this. He argued that upholding state law was not expressly in the terms of his oath. Oath.

0:13:32 Thomas: Oh, my God. Oh, no. Oh, for...

0:13:41 Matt: And the court agreed. And I looked up his oath, and he's right. The terms of his oath basically talk about...

0:13:44 Thomas: Okay, but, but we're not doing a deep dive into that case, I'm sure. But like here, well, I'll tie it to a general question I've been wondering. I always thought, and maybe it's because I've always been an atheist and the oaths are usually like the under God hereby swear to my soul. I don't know. I just tune it out. Like, I honestly, I hear white noise whenever anyone there's any, it doesn't matter. Cause always taught that the oath were just kind of the icing on the obligation cake. Like I would assume there are rules and laws you got to follow. And then the oath is just like, but pretty please, definitely pinky swear that you will do it.

0:13:46 Matt: No.

0:14:01 Matt: Sure. Right.

0:14:15 Thomas: I'm worried now is our most government and our society tied to these stupid oaths that like, if you don't specifically swear to do something, then it's fine. Or is it like, well, no, this is just because this particular charge involves like breaking the oath, but there's going to be some other way that I hope this police officer was punished. Oh,

0:14:35 Matt: The case was sent back, so I don't know what happened. The conviction was reversed, because I know. And it really is true. He didn't take an oath to uphold state law just to carry out... That's

0:14:38 Thomas: God. Okay, but if it's sex with a minor, I haven't taken any oaths that I'm aware of. And I don't think I can just do that.

0:14:46 Matt: A crime. No, he was charged with that. But this This other charge, the court, you know, said, right, sure.

0:14:50 Thomas: Okay. That's what I was saying. So he's still like, so this was like an additional thing.

0:14:53 Matt: Right. Yeah. He's still responsible.

0:14:55 Thomas: And similar to this case, it sounds like, in Georgia, where this doesn't mean all the charges are going away. But the ones tied to, you know, kind of the oath -taking crap.

0:14:56 Matt: Right. Right. Right. Yeah. It sounds like it was a creative prosecution, much as this was. I'm honestly left not quite sure what this offense, how you would meet this offense. But I'll tell you a little bit more about what McAfee is saying here, because, again, he is thinking about it from the defendant's side. And I think in a way that I would, I would be making all the same arguments as a defense attorney. I think these are very reasonable arguments to make, because saying that the only oath that these people took was to uphold the Georgia constitution and the federal constitution. One thing he doesn't mention that occurred to me is there's actually no right to vote explicitly in the US constitution, but there is one in the Georgia Constitution. But here's the worst part, Donald Trump would have to know that.

0:15:06 Thomas: Yeah. Okay. Mm -hmm. Yeah. Oh, god.

0:15:43 Matt: If you're hanging a case on what Donald Trump knows, then yes.

0:15:44 Thomas: God, enough of the, he's the perfect criminal. Yeah, you can't, he doesn't know anything or you can'T prove he knows anything so he can do any crime. I'm pretty sure everyone in the country mostly thinks there's a right to vote in the constitution. What if he thought there was? Like what, this, oh my God, we're getting to philosophy. Is a justified untrue belief that ends up being true because of the Georgia constitution. Oh my God. That's actually, there's speaking of five people, that's actually a really good comparison to the justified true belief, all that philosophy epistemology.

0:15:46 Matt: Yes. Oh, sure. Yeah. Yeah.

0:16:15 Matt: It's pretty reasonable to believe that there is. You would think, you would hope so.

0:16:17 Thomas: Exactly. So like, what if he believed there was a right to vote in the regular constitution? He And was wrong about that, but there turns out there is in the Georgia constitution. I think there's something here. Give me some credit. What do you think?

0:16:31 Matt: Well, unfortunately, the real problem here is that the state just did not say how he was supposed to have been violating the Constitution, how he's being asked to violate it, right? So the McAfEE said, on its own, the United States Constitution contains hundreds of clauses, any one of which can be the subject of a lifetime study. Now, I have a problem with this, I'm going to tell you right away. Trump wasn't asking him to arrest a journalist, right? It was a clear First Amendment problem.

0:16:38 Thomas: Okay. Darn.

0:16:52 Matt: He didn't say, hey, let's start a postal service in Georgia, right? The Constitution gives to the federal government. He was asking him to throw an election. But again, I understand the point that to prepare a defense, you have to know what the charge is. And the demurrer that they're seeking here is to have the state clarify exactly what the judge is supposed to be. And obviously, if they issue an indictment saying you shot a guy, you have the right to come back and ask, you got a name? Do you know who I shot? I'd like to know that. I need to defend myself.

0:16:52 Thomas: Our quartersome troops. Yeah, yeah, yeah.

0:17:22 Thomas: That's all I know, Matt. I

0:17:24 Matt: So he gives the example, which I think is a pretty good example, to something like aggravated assault with a handgun. And he says, well, you can only do that in a couple of ways, right? Literally, you can only shoot somebody with it or beat somebody with it. And that's it. Those are the only ways you can assault somebody with a handgun, so it's not that hard to imagine what you're being charged with. Is actually only the second time in the history of Georgia that a special demur has been used to quash a solicitation indictment.

0:17:45 Thomas: Was So many nonsense words, Matt. I'm so sorry. That's the first time that a squash court special demeanor? I don't know, say it again. Okay.

0:17:55 Matt: To say that a little more clearly. This is the first time in Georgia history that this vehicle has been used. The special demurrer has been used to quash a solicitation indictment. So to say this solicitation is not specific enough. Of course, what the defense was seeking was a special demur, which is asking the state to clarify what the charge is and what kind of the actual framing of it is, because you want to be as specific as possible, obviously. And the only other time this has happened, I thought this was kind of interesting, was it was solicitation of felony drug possession. So would you like to hold my drugs, I guess, would be the question in that case. The Court in Sanders, as 2002, found that the state had to specify the drug and the the quantity or else the defendant doesn't have a good defense, right? It wasn't just like

0:18:04 Thomas: Special, I Okay.

0:18:36 Matt: You tried to ask somebody to hold some drugs. It has to be, would you like to be in possession of 1.3 kilos of black tar? It's heroin, right, you have to ask. Sense, I guess, but yeah,

0:18:44 Thomas: I Specific? Do you need to be, like, on one... One hand, I think this makes sense as a way to protect our rights. Like, don't have the state coming in and telling you, hey, you are in trouble for what. Uh, I'm not gonna say. Yeah, you got to be able to defend yourself, but, like, how fine grain do you have to get? Like, 1.21 gigawatts of of heroin, you know, like, it's got to be within reason, right? Like, some quantity about this much, about yay high of heroin, sure.

0:18:54 Matt: Right. Yeah. Yeah, yeah. You got to try to put something else though, besides just solicited to possess drugs. And in this case, it was just solicitted to violate oath of office. So if they'd included some of the statements from the call, where you could frame it as showing that Trump was asking him to violate the Georgia state constitution's right to vote, could be fixed. And I think these indictments could still be fixed if they want to go to the work. And we'll talk about that at the end.

0:19:14 Thomas: Sure. Are they allowed to do that? Procedure Just wise, are it's not like a double jeopardy thing. We've had bar questions about that, right?

0:19:31 Matt: Yes. Double jeopardy because we're not anywhere near a jury Yet. We have the chance to mess with the indictment. Now, of course, remember, it took a year in the special grand jury and I think nearly a year and the regular grand jury to get to these charges. But this one would be shorter because it would just be going back for a quick little redo, a quick visit back to the grand jury.

And I think if they frame it a different way and they provide some of the statements they think meet this, then it might be worth preserving just not to lose this. Now, let they have the right to go back and try, and it might be worth it to them to do that. The judge also extended the statute of limitations by six months so that they could have the chance to do that If they want to. That would, of course, be yet another delay in this case. So it's good for Trump. But it may or may not be worth it. I think that they can proceed with what they have based on what I've seen in the RICO indictment. It's pretty solid. It is pretty well put together. That was the idea. These charges do kind of stand alone in a way. Okay.

0:19:38 Thomas: Yeah. Yeah.

0:20:21 Thomas: Was well put together, meaning they They hired good people to help them at $250 an hour put together. Okay.

0:20:24 Matt: Right. Learned all about that. Something I did see a lot of people saying is that this completely keeps the phone call out and it makes, means they can't charge him with a crime for the phone call. That's not exactly true because he's got two other counts in which the phone call is raised. Is in which he's charged with false statements made during the call, in that call, as there are in any Trump conversation. And he was also charged with tweeting. And honestly, this just does my soul good.

0:20:26 Thomas: Yeah, yeah.

0:20:50 Thomas: Charged with tweeting. Tweeting. Yeah.

0:20:51 Matt: He's, finally.

0:20:51 Thomas: More people should be charged with tweeting. I think that's a, in general, I was going to say, yeah, look, abolition, all that. Yeah, whatever. But if it's for tweeting, I do actually think more people should be convicted.

0:20:55 Matt: Don't generally support more charges, but this guy. But when it's at real Donald Trump, Yes, some of these were just criminal tweets. I mean, he literally tweeted about his call with Raffensperger and talked about about how unwilling and unable he was to answer questions about all the scams and the ballot destruction and everything. He has no clue, right?

0:21:06 Thomas: Yeah?

0:21:18 Thomas: He couldn't answer any of my questions about completely made up crap.

0:21:22 Matt: Who knew? So that was a crime because it obviously is timed to pressure him a little bit more, right. That's a good example of the kind of thing where you're providing the exact words that he used, and you're saying that's enough to meet the statute. There are ways that he can go down for the phone call, but it's not the big one. It's not one that we were hoping for, which is at the moment, at least, as long as this charge is gone, it's not the thing that we all thought was super obvious of just asking him to rig the election.

0:21:34 Thomas: Right. Wow.

0:21:45 Thomas: Well, you say it's the big one. I, I would think in terms of like punishment, would the big one in all this be, you sort of like solicited oath violation? I would think the big One in layman's terms would be trying to subvert an election in some way, but is that really like this was the big On?

0:22:01 Matt: No. No, I'm sorry. I is the one you know about. When you think of this case, this is what you think of news -wise.

0:22:04 Thomas: Big in, okay, recognizable terms. Oh, thank God. Okay.

0:22:08 Matt: Because the RICO charge, the Rico setup with the conspiracy that they've alleged between all these different people is pretty solid, and that carries plenty. So this far if I'm lost.

0:22:15 Thomas: Massive sigh of relief across the audience, I'm sure. Sure.

0:22:17 Matt: Yeah, absolutely. Even in these sideways ways, they can still get the phone call if they want to. I think it would probably be at this point in the best interest to just try to press on whenever we get this decision, which could be as soon as today, when this episode is released, we could be hearing about what happens to Fonny Willis. Still predicting that nothing will happen.

0:22:32 Thomas: Yeah. Speaking of we decision has not come out as of now, if you're listening and it has come out, sorry, we didn't know. But we may, depending on when it comes out, we may try to do a little quick emergency pod or something. It all depends on timing, you know, as Judge McAfee, As much as I wish he would, he hasn't returned my fan mail. So I don't know what he's thinking. I don't know what his schedule is, but we can only do what we we can do. Oh.

0:22:45 Matt: I am down, for sure.

0:22:55 Matt: Yeah so that's where we're at is these charges are gone and and it's not just to Trump. So I will say we need to congratulate Donald Trump obviously because he's gone down from 91 pending charges to 88. Very respectable. Deductible. Three other defendants here were Giuliani, Meadows, and Ray Smith, who was a campaign attorney. They also had these same charges dismissed in this, but the three of them were belong to Trump. So that's where we're at. We'll see where this goes from here. Of course, a lot of it depends on what's going to happen with Fannie Willis. But at this point, I got to tell you, he's coming out with a decision as if this is going to be going ahead. I don't know. It seems like strange timing if he's going disqualify the prosecutor tomorrow, right, to come out with this today, but who knows?

0:23:23 Thomas: That's Good point. Yeah. Interesting. Yeah. And think of that. Yeah.

0:23:29 Matt: Just some tea leaves, hard to say. Of course, I've never thought this is going anywhere with the funny Willis disqualification, so I'll me, I'd be very unhappy to be wrong, but I think I'm right. Yeah,

0:23:30 Thomas: Yeah. Yeah. So you of what this means, the context of was this a big by the prosecution, is this kind of, you know, whatever, it's this happens kind kind of thing. How common is this? Not this exact thing, but like the idea of counts or charges being dropped in a way, but still ultimately the case being fine. Give us a sense of that.

0:23:55 Matt: It's pretty common in a big sort prosecution like this where you've got a lot of people and a lot of acts involved. You can lose a few along the way. They could fall off the turnip truck and you can be okay at the end of the day.

0:24:05 Thomas: Especially with Trump.

0:24:07 Matt: Yeah, great. Yeah. Not too concerned about the ultimate RICO thing. I do think, and I will say, when I read the indictment the first time, I was wondering about this violation of oath of office thing, because it seems so sideways. It seemed like such a strange way to get to what we're all trying to say, which is that you asked me to rig an election. It's, I think it was the only thing available. I think they just should have thought through a little more about how they specified it. And that's what McAfee came down on one more thing, Thomas. I did have a question as I was reading this about why the defense couldn't just file a bill of particulars.

0:24:07 Thomas: Yeah. Hmm. Oh, what's a bill of particulars?

0:24:37 Matt: A great question. A bill of particular is something that's used at least here in Massachusetts to clarify a charge. So the judge can actually demand that the prosecution do it. But just saying like, so, you know, for example, if your charge with breaking into a car on May 1st, 2024, you can come back and say, well, what time of day was it? What kind of car was it and where was it, right? These are all things you need to know for your defense. It can't just be a car in the city of Boston, right. Would be a problem. So in this case, I was wondering why the defendants couldn't just come back say, how did we violate the statutes? What's your theory here? Because that is what you could do in Massachusetts and in federal court. And the answer is that they don't have bills of particulars in Georgia. It's that simple. So

0:24:44 Thomas: Oh, okay. Okay. Yeah. Oh wow. So

0:25:15 Matt: They couldn't do do it.

0:25:15 Thomas: Wait, does that mean you only, okay, so based on my understanding of what's going on here, you've got these charges and then the other side, the defendants are saying, hey, these aren't specific enough, but the way they're doing that because of how the law works, are they doing it in a way where the judge basically basically only gets to say yes or no, it's good enough or not. Whereas you're saying in other states, the other side can be like, here, clarify, give you some more details.

0:25:38 Matt: And actually, Judge McAfee has this great footnote where he says, this is an area of law where federal courts in Massachusetts have achieved greater efficiency, and one might wish that future grand jurors could be spared this inconvenience for something so easily remedied. And he cites federal law, and he's like, why don't we have this? But specifically, they don't recognize bills in particular. So it's either that you have to state it right the first time, or it's quashed. And that's what happened here.

0:25:52 Thomas: Oh, wow. Yeah. That's weird. Huh? Wow.

0:26:03 Matt: So yeah, it's too bad he didn't do it in Massachusetts. Yeah.

0:26:05 Thomas: Yeah, interesting.

0:26:06 Matt: There you go, just wanted to uh add that little footnote, uh, footnote for you. Oh,

0:26:09 Thomas: See why you love Judge McAfee so much.

0:26:12 Thomas: You're a real homer for this judge. We'll see when the the decision comes out if you still like him.

0:26:16 Matt: I think I will, yeah.

0:26:18 Thomas: We'll keep an eye on that and also keep Keep an eye for more pods. If the Fonny Willis decision comes out.

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Remember to head to zbiotics.com/opening and use the code opening at checkout for 15% off. Thank you, ZBiotics, for sponsoring this episode and our good times. So now, Matt, we're going to talk about something that honestly I don't think came up on the Patreon thread. Texas border decision that we haven't covered yet on the show, that I'm really curious to hear more about from someone like you, who is a bit of an expert in this kind of thing. What's going on?

0:27:57 Matt: We're talking here about SB4 in Texas, which was a Senate bill essentially criminalizes immigration in a way that I'm very concerned about. Now, to set this up, you might remember in 2010, Arizona put out SB 1070, which was a comprehensive attempt to regulate immigration in Arizona. And the reason I'm concerned this time, besides the obvious, is that SB 1070 got a massive national reaction that became a conversation across the country. Activists got involved from all over. People were really good on the ground in Maricopa County, County, especially fighting Joe Arpaio, were very vocal about this.

0:28:27 Thomas: Arpaio, That Effing guy, I Haven't heard from him. And did he die or something? What's going on with him? He's 91 years old.

0:28:29 Matt: Yeah. He's convicted of multiple things.

0:28:34 Thomas: Holy crap, okay,

0:28:35 Matt: Is still with us. Yeah. So I just wanted to compare because SB 1070 is very similar, but SB4 actually goes further in many ways, many extreme ways. So I just want to talk about what it is and how we got here and what's going on with it, because Alito on Wednesday extended the previous stay of this. It hasn't gone into effect yet, and I'm concerned because he only extended for five days, and before that he'd only extended it for a few days. And this is going to be argued in the Fifth Circuit on April 3rd, I believe. So,

0:28:59 Thomas: It's the Fifth Circuit, so how is he extending it then?

0:29:01 Matt: So Judge David Ezra reviewed this law at the behest of activists, and he found all kinds of problems with it. And this was in a ruling back on February 29th, not that long ago. And this was brought not only by activists, but by El Paso County, which was concerned that its jail system couldn't possibly handle what could be incoming if this happened. So let's just hit the highlights, I guess the lowlights of SB4, so we can talk about where we're at here. Most salient feature is that it essentially makes entering the state of Texas from a foreign country a crime.

So it's just kind of like a state -level illegal entry charge that already exists at the federal level 18 U.S.C. 1325. That's been around for more than a hundred years. And that's just illegal entry into the United States. You can charge them if you catch them coming in. But it's not a state thing because states, as you might know, don't enforce immigration law and should not be enforcing immigration law. And it's only that, but there's also a separate offense of if you're caught illegally entering Texas from a foreign country, which is obviously Mexico. I don't know why it doesn't say Mexico.

0:29:17 Thomas: Yeah. Yeah. Oh.

0:29:58 Matt: If you're caught having re -entered after removal or a previous immigration violation, which means that state judge would have to sit there and look at your immigration history and try to figure it out, which I have a problem with as well. Their justification for this is that Texas is being invaded. They actually went with that. Is the rhetoric. And I'm very concerned about this rhetoric because it's becoming mainstream Republican rhetoric.

0:30:12 Thomas: Wow, yeah. Well, And obviously from the same assholes who brought out SB 8, which, right? Is the bounty hunter abortion bill thing. That was just absolutely crazy. They're not afraid to make this a pattern that I actually wanted to bring up when we were talking about sort of the anti-drag legislation when we did that episode, which, which is, um, a consequence that people not think of when, when we see this good news of, hey, place full of bigots tried to pass an obviously unconstitutional law. Then the court struck it down.

But one not as though everyone, every citizen, every potential drag queen is like an expert lawyer who's going to know, like, well, this will ultimately be struck down. Like, there's going be a lot of periods of time and places and where, for all intents and purposes, people will be under the impression that drag is illegal for a period of time. Right. And in the same way, Texas is perfectly happy to pass these unconstitutional abortion and bounty hunter system in the same way, enforcing some sort of state immigration bullshit. I think that's something I meant to ask during the bill conversation. There's going to be some sort of chilling effect to these things. And it's not good that Republicans in don't see it as a problem to just keep passing unconstitutional stuff.

0:30:23 Matt: Yeah, exactly.

0:31:27 Matt: That's part of the strategy. I have no doubt that they want people, especially immigrants, right? Because I see the effect on my clients all the time when there's headlines, because the law stuff is so confusing around Immigration law. It's more confusing than most. And Spanish media, unfortunately, kind of rushes to these things too, and kind of tries to get clicks by making things sound worse than they are sometimes. So we get panicked calls all the time from Clients who've seen headlines about things that they think are going to apply to them that aren't even close to being law.

They're still at the planning stages, right. But even things that are law that they don't understand how it applies because nobody's explaining these things right. I, that's all part of the strategy, is to try to pass these things that you know aren't going to work. But so the word gets around that maybe Texas isn't the place for immigrants in the same way that a lot of these other restrictive places have done that and tried to drive immigrants out. There's another portion of SB4 that is very concerning, and it essentially allows state judges to deport people.

0:31:36 Thomas: Yeah. Yeah. Wow.

0:32:15 Matt: Is new. Yeah. So if they're already in their custody, they can, as a term of the sentence, require them to return to their country. And this can actually be carried out because it's a border state. They can just take you to a port of entry and watch you leave. Now, that, again, not the state's job. The other really concerning thing about all this is that the statute explicitly says that even if somebody is about to be in federal removal proceedings where their status is going to be examined and they have the rights in immigration court, even if they are in those proceedings now or they're about to being initiated, the judge can still do this and still order them out of the country when at that point they get to go to an immigration court and present their defenses.

0:32:27 Thomas: Huh.

0:32:51 Thomas: Doesn't seem great, Matt. Doesn't seem great.

0:32:53 Matt: At all. Not at all, and it's so much beyond the terms of SB 1070, because most of the SB 1070 was struck down by the Supreme Court, you might remember, almost all of it, and one thing that Alito actually said was that, well, at least they're not trying to use this to deport people from the state, like that was actually in there. So I would think he'd have to be, I mean, if he were a consistent and logical man, he would have to stick with that opinion, but

0:33:14 Thomas: I don't think they're that upset about just being absolutely shameless hypocrites. But

0:33:18 Matt: I don't count on them to be anything but hypocrites. And they don't care. There's no shame. But I just want to point out that he did say that Just in case he comes Back and says something else in this case. So David Ezra, the judge, went through point by point and pretty much everything that Texas was saying and said this doesn't have a chance of passing based on the Supreme Court's Arizona case, right? It actually goes beyond the Arizona thing in many ways, but it's also trying to do a lot of the same things that Arizona was doing, where it's trying to get state law enforcement to be more involved in federal immigration enforcement.

And the only part of SB 1070 that survived in Arizona was the part allowing enforcement officers to verify legal status of people who were arrested. And that Supreme Court found they could do that. But there were so many other things in that law, and they were all struck down by the Supreme Court as being too much. And I would hope that even the Supreme Court, I can't say they would, but I would hope that they would see how out of control SB4 is. But of course, our friends up at the Fifth Circuit, once this got up to them, once Ezra's decision was being reviewed, immediately lifted the stay of

0:33:24 Thomas: Yeah. Yeah. Hmm.

0:34:17 Matt: The law that Ezra had put in place. And they said, you can go have the Supreme Court review this, but we think it should go into effect. And of course allowing this to go into affect is devastating and it could really start to turn things in the wrong direction right away in Texas.

0:34:17 Thomas: Turn Things in the wrong direction, man, yeah.

0:34:30 Matt: Let me, for immigrants, excuse me, make things even worse. Because this kind of thing, there's a statute of limitations of two years on this, which means they could try to have cops out there on the ground and cops will do what they want. Can try to come out and say, well, it looks like you might have crossed within the last two years. So let's try this out. Let's see how this works. You have to litigate this terrible unconstitutional thing in so many different directions. Greg Abbott specifically said, to his own detriment in this decision, He specifically said that they were trying to exercise the supremacy of Texas law over federal immigration enforcement.

0:34:32 Thomas: Hmm. Geez. Yeah.

0:35:00 Matt: Probably shouldn't have said that because, of course, in their briefing, they came back and said the opposite. They said, of course, we're not trying to subvert federal law. And the judge in a footnote was like, what's this? You can't have it both ways. Like, you know, you're trying to do it or you're not. The invasion thing, too. He pushed back really hard about this language about invasion. He's like, show me the army. Show me the country that's declared war on us. Like, these are migrants.

0:35:09 Thomas: Yeah.

0:35:19 Matt: These are people seeking asylum. This is not invasion. And you're not allowed to defend in any kind of literal sense from people coming across the border. So what Ezra decision stayed the law and then the Fifth Circuit vacated that stay. And then it went up to the Supreme Court to see if the law should go into effect or not. So it was immediately stayed again. The weird part about this that caught my attention was that it was stayed. It was stayed for about a week to March 13th. And then on March 12th, Alito extended it again to Monday, March 18th. This is very strange because it's going to be argued in front of the Fifth Circuit on April 2nd. So you'd think he could just extend it that far. It makes

0:35:32 Thomas: I See, yeah.

0:35:51 Thomas: What

0:35:51 Matt: Me a little concerned that they might actually let this thing come to effect. I don't think they would get a majority to do that. This law for now is too extreme. But the thing I was thinking about this particularly is because SB 1070 seemed very extreme in Arizona. That was 14 years ago. And it was something that got everybody up in arms and got people talking about how much states should be enforcing federal immigration law. It was a big cause. It was a big thing. And now we've had virtually silence on this. There's hardly been anything that I've seen because there are just so many other things to pay attention to right now.

0:35:52 Thomas: The Hell Yeah Yeah.

0:36:20 Matt: Now. And I want to keep a watch on this because I'm very concerned about state efforts to encroach on immigration law, to enforce immigration law. This is a very popular cause. This is something that a lot of people would like to see happen. And I think people think they want to live in the kind of place where the states can do this, but I guarantee you, you do not want to live in that kind of place. That's a police state.

0:36:37 Thomas: Yeah. I seen some talk on this to effect that this this is like, you war type stuff. Like if you have federal, folks and state folks disagreeing on something, are they fighting it out? Like what, or is there going to be some sort of like who, who wins in a disagreement on border enforcement or something in this crazy world?

0:36:55 Matt: To that in Eagle Pass last month. We'll talk about that another time because I want to talk about the border a lot more than we are today. But we had federal officers being stopped by state officers. There was a whole part of this park that was fenced off, and they were trying to keep them out, keep them from doing their jobs to help people who were drowning on the border. Yeah, no, I mean, there is all kinds of flashpoint potential here. This is a mess. And this is a very popular cause in places like Texas and Arizona. And I think the drumbeat's just going to get louder because this invasion rhetoric, they're not dialing this down.

0:37:06 Thomas: Yeah.

0:37:26 Matt: And once you've kind of staked that claim that these aren't just people coming from other countries looking for a better life, but these are people who are invading us, you might have heard the expression military -aged men used a lot. That's been sneaking into the rhetoric a lot, that's very concerning, to characterize all these people as fighters, You just want to keep a watch on this particular kind of rhetoric, because this is the leading edge of fascism in America, is how we treat these people, and how we respond to immigration, and it is the thing that historically is always very useful for fascism to start with talking about threats at our borders before you start to turn things in and talk about the threat within.

And Trump was doing plenty of both during his term, and he's got the chance to do a lot more of that. The judge said, this turns us from the United States of America into a confederation of states. What a nightmare. He actually said that at the hearing when Texas was talking about this. And he made the point that California could get its own immigration statutes, maybe Maine wants to do its own thing with the Canadians coming across.

I got to say, this is one of the things that got me thinking differently than you did last week, because I've been so attuned to state efforts to interfere with federal law. I think that I was very sympathetic to that argument,

0:37:36 Thomas: Yeah. God. Yeah.

0:38:28 Thomas: Interesting.

0:38:28 Matt: Even though I very much disagree with the court's decision. I think that they absolutely should have kept Trump off the ballot when they had the chance. But that was why my sort of gut, my initial start was maybe states shouldn't be interfering with these kinds of federal powers, because this is what I think about all day.

0:38:39 Thomas: Interesting. Yeah.

0:38:40 Matt: Having given another week of thought, I completely agree with you, and you've won that debate very fairly.

0:38:44 Thomas: Really? I didn't hear that. Oh wow. This just in. I know definitely there are plenty of people, uh, both sides among our audience. You know, I think people certainly agree with you that it doesn't, uh, make sense to have states doing this. And that's interesting, I mean, there are other times where it's fine. Like when you talk about sanctuary cities, For example, I mean, I feel like that's an instance on the left when we're pretty cool. We're pretty chill with that. And you could cast that in the same terms. So I think we got to be more detailed than just like states interfering with federal stuff. You know, I think it matters exactly how that's happening. Right.

0:38:45 Matt: Oh, yeah. I'm happy to give it to you. Sure.

0:39:14 Matt: Sure, sure. I would push back and say that in the case of sanctuary cities, states are just saying the federal government has to do its job, and we're not going to do any part of your job for you, right? Whereas in this case, they're saying that the state has every right to do ICE's job for it, and I'm sure ICE would be happy to let them do it. Are soft deportations, basically, and I don't see how this could possibly be upheld as long as the law is what it is. But if we continue to push this envelope and continue to see these things develop, I am very concerned about where it goes. Because if you have states openly passing statutes that directly conflict with federal statutes and federal law enforcement, federal and government begins to allow that to happen, then Judge Ezra's right. We're looking at a nightmare. Right?

Because ICE is happy to have the help. They don't have that many resources. And of course, as you might know, one of the things that ICE very successfully did over the last several presidential terms is start to work with state and local governments so that they can deputize them. And that's one thing that is encouraging here, of course.

And Texas is also saying that there is absolutely no way that any state or local jurisdiction can ignore an immigration detainer, that they have to follow every single detainor that they get. That's a topic we're going to talk about another time, but that's another serious issue in of this. But

0:39:24 Thomas: Yeah. Yeah, by Is it that, at least? What's

0:40:20 Matt: Oh, so yeah, the detainer, that issue is when ICE says, we want this person, you know, we're interested in turning him over. And there are all kinds of reasons that even conservative politicians and sheriffs don't want to do that, because it's actually very expensive for them.

0:40:26 Thomas: Oh to have to like do their job for them constantly

0:40:35 Matt: Right. Hold on to people and transport them. And it costs a lot of extra money. And even diehard ideologues have a problem with that in many cases, because the absolute minimum is the federal government should never be asking the states to spend that kind of money to do its job. They have their own resources. They have their own detention centers. They've got their own officers.

0:40:52 Matt: But you've got plenty of states that are happy to jump in and do that. To keep a watch on this. Certainly, I'm sure we'll talk about it after argument, and we'll see where it goes. But think that this has to stay in place, but I am very concerned about what Alito's doing, and I just think it's worth seeing what happens on Monday with that.

0:40:35 Thomas: Yeah Yeah What Is he doing? So I think he clarified the procedural history kind of stuff for us. So at first we got a sensible judge saying, what in the world is this nonsense? And he stayed it. And then the Fifth Circuit, uh, is like, we love nonsense, we're huge fans of nonsense, um, bring us your nonsense. So they were like, un-stay. Then I assume the other side would have appealed that to the Supreme Court to say, hey, you got to keep the stay in place at least.

0:41:21 Matt: Yeah. Right.

0:41:32 Thomas: In the meanwhile, this isn't on the Supreme Court's docket. This is still waiting in front of the Fifth Circuit. And so the weird thing is, though, what's going on with Alito staying at a little bit at a time? Like, what is that?

0:41:38 Matt: Is the shadow docket. It tells me there's probably a real argument going on inside the court maybe, about how much they want to do this. Well, that's the only thing I can divine.

0:41:52 Thomas: Really? Well, but but it's not in front of them. Like, what would they be arguing?

0:41:56 Matt: You're still going to, this is again on the shadow docket, this is going to make a decision, but you still have the other justices weighing in. And so they'd be arguing about whether or not they should let this law go into effect.

0:42:05 Thomas: Right. So it's not the merits of the case, though, is all I'm saying. It's not it's it's but but some of them, I guess, must think it should go into effect.

0:42:08 Matt: Right, right. Because to get an injunction, you have to show this is not likely to succeed on the merits. And the judge has found very clearly, based on the Arizona case especially, that there's no way this proceeds and wins on the merits. And I would think based on their own precedent that the court would have to agree with that, but it does make me wonder if there's people willing to expand this a little further. I don't know. This is speculation, but we'll find out with the Fifth Circuit arguments and where things go.

0:42:21 Thomas: You wouldn't think.

0:42:31 Thomas: Well, what's the normal thing? I know it's hard to say that, but like pretend this isn't this weird case. This is just any other thing. Would Alito normally do? Be like, well, OK, you have a—you have, it seems like you have a court date coming up. Why don't we stay it until that decision? That the normal thing?

0:42:46 Matt: I think maybe we could compare it to SB-8, which you just referenced, the bounty hunting abortion bill.

0:42:47 Thomas: Hmm. Oh, God. Well, that was awful because I remember they did use the shadow docket to like let that go into effect. It was the stupidest thing. Absolutely catastrophic. And it totally signaled that Roe was done. Right.

0:42:59 Matt: Yeah, that this is how they can really wreak havoc, is just by allowing things that they may or may not think are going to succeed on the merits to just proceed. And of course, to do all the damage they're going to do in the meantime until the court actually gets to review it.

0:43:11 Thomas: I guess my question is, he's not. He's just staying it a little bit at a time. So if we're trying to do some tea leaves, I see what you mean, though. I guess that's why I asked. So, what would Justice Matt Cameron do if you were Alito? Would you say, oh, okay, well, we stay it until the decision in the Fifth Circuit? Is that the normal thing?

0:43:15 Matt: Right. Right? Yeah. Until it's been fully heard. Yeah? I mean, that would just make sense. Just

0:43:29 Thomas: Yeah. Why I was asking for the baseline of comparison, because like this, so the really bad conservative bullshit thing to do is to say, no, we're not staying it. That would obviously be really bad. But this weird middle ground. So I see why you are speculating that maybe there's some internal debate here that that maybe they'll end up not staying it.

0:43:46 Matt: It's that or he just didn't do his homework on time. You know, it could be that he was, because he had to make a decision by 5 p.m. on Wednesday and maybe it was like 4:45 and they're like, oh, that one, got to do that. I don't know.

0:43:52 Thomas: Yeah, that actually does happen, right?

0:43:56 Matt: Oh, sure. In every office, it happens sometime. Who knows? I don't want to divine too much, but I just thought it was unusual to see it two short stays like that when you have upcoming arguments.

0:43:58 Thomas: Yeah. Yeah. It twice, too. It's not just once. Oh man.

0:44:05 Matt: Yeah, yeah, yeah. I do have better immigration news though that I wanted to share. So I think this is a good place to close. Was a very good immigration decision. And it was heard by Drew Tipton. I don't know if you've heard that name, but he's generally pretty terrible. He's a Trump appointee, real ideologue from what I can tell. And he found in favor of the Trump administration when they were trying to say that ICE's ability to set priorities in their own cases was illegal, which is absurd. Every law enforcement agency has the right to set its own enforcement priorities.

And we're going to talk about enforcement priorities in detail another time. But ICE basically set up tiers of enforcement and said, if you meet these qualifications, justifications, you're top of the list, right? It just makes sense. You can't go after everybody indiscriminately all of the time. That's not how any justice system works. It's not how any law enforcement works. That would be absurd to just arrest everybody in front of you when you can prioritize people and decide which ones are more important to you than others. But there is this outcry, and we talked about this in terms of the impeachment because there was actually an article of impeachment that

0:44:21 Thomas: Hmm. Hmm? Yeah, yeah. Hmm.

0:45:03 Matt: Mayorkas did exactly the same thing that the previous three administrations had done of setting priorities, just basic priorities on paper saying, this is how we proceed in our enforcement. And they were howling about this and talking about how this was just an absolute abrogation of his duty. And he's saying he's not going to go after the people. And again, ICE is small. CBP isn't that big relative to the number of people coming over. They have to set their priorities. So in that case, US v. Texas, Tipton agreed with the government, and then he was massively overruled, 8-1, only Alito dissenting in that case. The court slapped it back and said, no way. Absolutely. ICE can set its own priorities. What are you talking about? And I don't know if he's been chastened by that, if it made any kind of difference to him, but who knows? This time he's reviewing a parole program.

And essentially just what this comes down to is that there's this option in immigration law called parole that allows people to be admitted, permitted with the permission of the government. And it's not like a visa. It's just sort of, you know, it can be for humanitarian reasons. Like if you're a sick kid or something, it can be because you're applying for asylum and we want to let you in for a certain period of time.

The Biden administration, as one of the things they did to control the flow at the border, was to set up a parole program for certain people from certain countries that represented the most people coming to the border. So

0:45:04 Thomas: Oh yeah. Yeah. Yeah, sure. Hmm.

0:46:18 Matt: This is a very sensible measure to keep people from rushing the border and just allow them to apply in their home countries. I've got to say, it works very much like what I think most Americans think the immigration system already works like.

0:46:29 Thomas: Already is.

0:46:31 Matt: Yeah. Because I think that most people assume, because this is how it used to be when many of our people came over, certainly when my people came up in the early 20th century, it used to be that you could just have a sponsor. You could just somebody that was going to be responsible for you. And you could get off of Ellis Island and lie in while you wanted in a few questions and just walk off the boat. And that's how it use to be. And I think a lot of people assume that if you have a sponsored, I get asked about this all the time, about US citizens and saying, hey, I've got, you know, my friend's brother is in Venezuela. I really want to help him get out of there. How can I sponsor him? You can't.

0:47:00 Thomas: Wow.

0:47:00 Matt: You just can't, and well, you couldn't until now. You couldn't.

0:47:00 Thomas: Really? Could you, though, back in the 1800s? Like, when did this no longer be the way we did it?

0:47:07 Matt: There was no kind of sponsorship for people abroad before, but yeah, but like, yeah, no, it's not really even a thing. I mean, you have to have a visa petition. You have to have somebody that qualifies to file a visa for you, but generally speaking, though, right now, you have to have not just a visa petition, but you have to have a financial sponsor. And if you're doing a family visa, that's going to be that family member that's gonna be financially responsible for you, basically. So this is a little different because it's just parole. It's temporary. It's not an immigration option. It's just a way to come here for a little while.

And this applies to Cuba, Haiti, Nicaragua, and Venezuela, all are all countries that represent a major amount of the population that's coming to the border right now. And I think about 360,000 people have benefited from this program who would have otherwise come come to the border. And the Biden administration was claiming at one point that it lowered the flow by 44% or something. And again, if you actually care about this kind of thing and you want to see order at the border, this makes sense.

It's a way for people that can be screened and vetted and they can come over just the way that most Americans think they can. So of course, inevitably, 22 red states had a problem with this. They didn't like it. And they

0:47:10 Thomas: We just thought there was. Huh.

0:48:11 Thomas: Wow,

0:48:11 Matt: Thought that it was Biden.

0:48:12 Thomas: I'm not great at geography. Are there 22 states on the border? Wow, that's, geez, yeah, I'm gonna going to have to, I feel so embarrassed. I didn't pay that much attention in my crappy small town public school. I'm surprised to learn there's that many states on the border of Mexico, but hey, you know, wow.

0:48:17 Matt: It's pretty crowded. Yeah. That's a really good point. Turns out Alaska has been relocated. Who knew? It's part of the suit. These states were saying that this was a burden and that this program was somehow causing them injury, right?

0:48:39 Thomas: You don't even go here, Alaska.

0:48:41 Matt: Yeah, exactly. Right. What are you doing? A pretty simple question. And this comes up a lot in these cases where all of these these red states try to join together and get something done with immigration. Very basic question of standing, like, who hurt you? Like what actually happened here? Right.

0:48:53 Thomas: Yeah. Yeah, well, I might make a website someday that an immigrant could use. Okay, yeah, totally.

0:48:59 Matt: Right, exactly. Yeah, the standing here, you know, you're gonna have to show some kind of injury. And Judge Tipton very reasonably found that not only is there no injury shown, but by definition, this program is bringing in people who are not going to be taking public benefits because they already have somebody who's signed off on them. Exactly. These are people that have already been spoken for and there's consequences if they don't follow them.

0:49:12 Thomas: Yeah it's the opposite, right? It does seem like like, weirdly, this is one thing that could be bipartisan in terms. Like, if you told citizens, some of which are horrible and others who are on the left, hey, do you think this is a good idea? I feel like everyone would say yes, don't you think?

0:49:32 Matt: I think that about a lot of things, that people already think of the law. If you told them, you know, well, you just went out on the street and asked people, hey, do you think that people who have been here, I don't know, for 15 years and have never been arrested for any reason and have three U.S. citizen kids, you think that guy should get a green card? And everybody's like, yeah, of course.

0:49:35 Thomas: Yeah, yeah, gosh.

0:49:45 Matt: Why doesn't he get a green card when he's got kids? And that's not how it works. That's just not at all how it works.

0:49:45 Thomas: Or you, you know, served in the military, boy,

0:49:51 Matt: Right. Right. Yeah. Yeah. Used to be how it worked, and Trump tried to stop that, too. Too. So we have good, I just wanted to end with that because I think a Trump appointee who has otherwise behaved pretty badly on these things come around and say, you know, this is ridiculous. You don't have standing. And this is actually, this program is fine. Think that's a good thing. I'm happy to see it.

0:50:07 Thomas: Yeah. He didn't get the company-wide email from the fascists of, like, we don't care about standing. It's just when we want something, then yes. If we don't want it, then no standing. That's all. This judge, this is going to be embarrassing for him when he finds out.

0:50:20 Matt: Those Federalist Society parties, maybe he's going to get a cold shoulder and ass.

0:50:23 Thomas: Hey, it's the guy who cares about standing, guys. Oh, you idiot. I don't wanna blow your good news part, because that's awesome, good news. But I did see you tweet or retweet something that I thought was astonishing while we're on the topic, which is the backlog of everyone waiting in what, immigration court? It was a city, would be the third largest city in the U.S.?

0:50:45 Matt: 1.4 million, I believe.

0:50:47 Thomas: That's nuts. What does that mean? Really? Like I get all the words kind But what does that actually mean? Who are those people and what what they doing?

0:50:48 Matt: That quite a lot of them. There are folders in my office. Very real lives that I'm working with. And some of these people have been in proceedings for 10 or 15 years, because as we've discussed, there's no right to a speedy trial in immigration proceedings. And there are all kinds of reasons these can be delayed. The problem historically has been that the pipeline in the immigration courts is pretty small, and the flow is very large. And this is one reason that ICE needs to have enforcement priorities, because otherwise, if they're just dumping everybody in the Immigration Court, the pipeline's not getting that much bigger. Now, Jeff Sessions set a record, unfortunately, for appointing immigration judges, so he widened the pipeline quite a bit. And then there's a big project right now in a very bad way.

0:50:58 Thomas: Yeah. Right. Yeah.

0:51:25 Thomas: But in a bad way. I was just going to ask, can we build infrastructure bill? Let's build a bunch more Immigration courts. But I guess it depends on who we're putting in those, huh?

0:51:30 Matt: Yeah, really does, because immigration judges are hired and fired by the Attorney General. They are not judicial judges who are appointed by Congress.

0:51:39 Thomas: Wow, so that's... And they don't serve, at the you know, forever until they... Well, effectively forever, like most, like other judges constitutionally, I assume? So like, this is the kind of thing where this can swing pretty wildly by administration, hmm.

0:51:50 Matt: It can. We have plenty of holdovers that have gone through multiple administrations. And of course, I love my immigration judges in Boston. You know, they can be variable. I mean, just looking at the results around the country, right? Even just looking as something as simple on the TRAC website, which I can recommend anybody looking for really good immigration data, especially anything with immigration court, but they keep a record of just something like asylum grants, right, and which judges are granting the most. And something is wrong with the system when you have one judge that is denying 98 % of their asylum claims, and you've got another one that's approving 60%. They're looking at the same law, so it really makes you wonder how they can get there.

0:51:54 Thomas: Yeah.

0:52:22 Thomas: Is this the kind of thing that we shouldn't actually talk about? We should all be real quiet, because, like, could theoretically the next administration just go in and fire all of them and replace all of them? How does that work?

0:52:32 Matt: But they do have a union. They do have some protections.

0:52:33 Thomas: A union. Wow.

0:52:34 Matt: Yeah, pretty good union. Once they get past the two years, they have protections. But they can still be fired, as I understand it, because again, they don't have to be impeached the way that a judicial judge would have to pay.

0:52:36 Thomas: Wow, yeah. That's why I was worried. I mean, it sounds like the kind of thing, okay, but there has to be some sort of cause, maybe.

0:52:48 Matt: Yeah, I would think. But I don't know that much about immigration judge firing, actually. I just know about the hiring.

0:52:51 Thomas: Oh, okay. Well, topic for another time. I just, yeah, that worries me, but okay.

0:52:53 Matt: It is a lot to talk about.

0:52:56 Thomas: Well, didn't mean to mess up your good news.

0:52:56 Matt: Yeah. No.

0:52:58 Thomas: That ruling is good news, and we're always going to be keeping an eye on the border, just like apparently 22 red border states that we have here, so.

0:53:08 Matt: And actually, It actually reminds me of something else I meant to mention, that in this invasion rhetoric, I was astonished to learn in the course of this that there was a suit in the mid-90s brought by a collection of states that included New Jersey, making similar arguments. And New Jersey was saying that it was being invaded, which I think was pretty funny. They sued the government in the 90s for failing to protect them from these migrant surges and talking about this invasion kind of language. But those were dismissed at the time. I just didn't know that that kind of thing went back that far.

0:53:09 Thomas: Oh.

0:53:35 Thomas: Crazy. All well, this man, I learned so much in this episode, Matt, thank you so much, this was excellent, this is uh everything I want from OA, and I hope the uh listeners feel the same, so uh looking forward to Monday when we get part two with Asul, and as promised, I did promise that I will have part two up for patrons some unit of time early, and it will be more than 24 hours, I promise, but uh that's just obviously a lot on my plate, but I will make good on that, I promise, because I love our patrons. And we're also looking for a couple of ways, including our first Law'd Awful Movies, to make sure we are rewarding our fine, fine patrons. So all good reasons to pledge at patreon.com/law. As always, Matt. Did we forget anything? Are we signing off here?

0:54:14 Matt: I think that'll do it for Friday.

0:54:15 Thomas: Excellent. Well, looking forward to next episode. See you all then.

0:54:18 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.