Just When We Thought Big Law Could Not Be More Pathetic

Transcript

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

0:00:57 Thomas: Hello, and welcome to Opening Arguments Live. Wait for the crowd reaction. No, there's no crowd, but it is live. I'm here with some beautiful people. Matt and Liz. First, Matt, how are you doing?

0:01:03 Matt: Live from New York. I got to say that you're all taller than I thought you'd be. Yeah, yeah.

0:01:12 Thomas: Especially Liz.

0:01:14 Matt: Yeah. Liz is pretty tall. Just for context.

0:01:17 Liz: Really? I do get that a lot.

0:01:17 Thomas: Matt, any other personal observations you have before we get going?

0:01:21 Liz: Yeah, anything else.

0:01:24 Thomas: And my style is terrible. Okay, I'll set it. Now go. How's Liz doing?

0:01:27 Matt: Let's

0:01:27 Liz: I'm doing good. It's great to have everyone in New York. You all should do this more often or move here.

0:01:32 Matt: Get

0:01:30 Thomas: Yeah, it would be very fun. Okay, but law stuff. All right, it's hard. We're in person. What's going on? Tease the law, Matt. Matt, what are we talking about today?

0:01:38 Matt: Back to incipient fascism, our favorite topic.

0:01:41 Liz: Why are we saying incipient?

0:01:43 Matt: That's true. No, no. I'm just so used to saying incipients. Today we are going to mostly be talking about the ongoing constitutional crisis with the J .J .G. and Abrego Garcia cases, is the most important thing happening in this country. Some of the most important things that have ever happened legally in our lifetimes that we have to talk about. But we're going to do a quick update from OA 1143 when we talked to Liz last time about what's going on with the firms. And then we're going to finish off with a fun New York City footnote from Liz Skeen.

0:02:06 Thomas: Call it the New York Minute. Now, it's our new segment. In a New York minute. And we're going to play that.

0:02:10 Matt: How did I not think of that?

0:02:12 Liz: Probably won't be a minute, but yeah,

0:02:13 Thomas: That's such a Matt reference. Everything can change. Harmony. You guys were supposed to learn your harmony. All right. Okay. Well, we have to take a break while I teach them the harmonies, everybody. And then we'll get to it. Go to patreon.com slash law. That's where you can get all that good stuff. Skip this ad. Thanks to our patrons. Okay. We'll take a brick.

0:02:17 Matt: You guys were supposed to hear me. We have to take a break. I'll teach you.

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0:02:35 Matt: Picking up from OA1143 the last time that Liz joined us on March 28th, we had a talk about what's gone on with big law and Trump. We got some good news, but mostly bad news, of course, because big law is continuing to fold in the face of all of this. The good news this week was from April 15th, when George Lauren Olley -Kahn blocked the administration from carrying out the executive order that he put out against Sussman Godfrey, who represented Dominion Voting Systems in the Fox News suit. Obviously very unpopular on that side of things. Do you know anything about Sussmann Godfey, Liz?

0:03:00 Liz: They're a great firm. I mean, they do a lot of plaintiff work, a lot outstanding place.

0:03:07 Matt: Great. Well, good for them because strong finding here in this TRO. Judge said the executive order is based on a personal vendetta against a particular firm. And frankly, I think the framers of our Constitution would see this as a shocking abuse of power. I think you just copy and paste that into every one of these. So that's a minor bit of good news, at least. We'll take that.

0:03:23 Matt: But in the meantime, we've got five more big firms that have caved to Trump since the last time we talked.

0:03:27 Thomas: The figure I saw, Matt, was a billion dollars, like a billion dollars of legal whatever bullshit. Like, this is pathetic. Like I have low expectations for lawyers. No, not in present company, not included. Low expectations. A billion dollars. They just want to do this. They want to doing this. There's no other explanation. It's pathetic.

0:03:48 Liz: I mean, yeah,

0:03:50 Matt: Yeah, there's nothing else to say.

0:03:51 Liz: It's nuts. Bringing us back to the last time we talked, you know, some updates. I remember when we last talked about this right after we heard that Skadden was going to be signing. I was like, guys, we got to get back on. Live update. And everyone's like, Liz, calm down. There will be more. And in fact, there were more. But yes, Kirkland & Ellis, Latham, A&O, Sherman Sterling, Simpson Thacher, Cadwalader. On a personal note, there's a great brief that was written by Munger Tolles, basically just saying this is absolute nonsense. And one of the only big law firms to actually sign on to it is my former firm, Freshfields, Bruckhaus, Derringer, really put themselves out there. I mean, they really did put themselves up there. And I was like, OK, I don't have to be embarrassed about something for one minute.

0:04:29 Thomas: For those those playing at home one or two of those firms were totally made up as an improv game and you have to decide

0:04:34 Matt: That's right. Right in.

0:04:36 Liz: I think Freshfield's, when they first opened in the U .S., used to get phone calls because people thought it was a supermarket chain. Absolutely not even like absolutely. People would try to order turkeys from them. So which, you know, I

0:04:40 Thomas: Which yeah

0:04:40 Matt: Yeah. I literally thought that. But Sockdollager and Crump is still doing OK as far as I know. Those first four that you just mentioned, again, to name those, because I think it's worth naming them again, Kirkland & Ellis, Latham & Watkins, A&O Shearman, Simpson Thacher & Bartlett, they've each agreed to $125 million in pro bono work. That's a lot of money. And those four also received a deranged letter from the Equal Employment Opportunity Commission. Again, we're going to do a full update on the firms at some point, but I thought this was worth mentioning because this is all about DEI and making sure that we're not discriminating against white people, the true victims of 2025.

0:05:14 Thomas: About time that white people got some break in law firms

0:05:18 Liz: Mean in this letter is totally bananas. So they all got it back in like mid -March and it's 20 law firms got it. I'm not sure how they were selected. It tends to be law firms on the bigger end of big law. So I think that's how they Were put on the list. And Freshfields, my former law firm, was also on this list.

0:05:33 Thomas: Oh that's my supermarket I stopped

0:05:34 Matt: Who

0:05:35 Liz: Once again, they all Got this letter that asked for, among other things, an Excel spreadsheet with every candidate that has applied with their law school GPAs and name. It's like a name and shit. Like everyone.

0:05:42 Matt: Cares? Who needs this?

0:05:49 Liz: It is so insane. Sane. It is so personally invasive. I don't think that they have any legal basis to do this. I was thinking about this .I was actually chatting with Matt about this part of the show. I did law firm recruiting and I did interviews. We didn't get some sort of sheet with everyone's GPA.

0:05:49 Thomas: There that's so

0:06:04 Liz: We got a resume and we interviewed someone. There wasn't a sort of ranking or anything. Nothing. Stats? No. Nothing.

0:06:04 Thomas: Stupid, yeah

0:06:08 Matt: Ranking of stats. Well, what you're not accounting for is that the legal profession has dropped dangerously below 80 percent to 79 percent of the legal profession now white. So actually fewer than 89 percent of the partners are white in all law firms. That's 88.6 percent.

0:06:26 Thomas: My god well okay you should have led with that. Now I'm not mad about any of this, Matt.

0:06:27 Matt: So yeah, but as Liz was saying, they are putting out all these invasive questions. At any point since 2019, if any partnership decision has been made motivated in whole or in part by candidates race or sex, you have to provide all the related documentation, DI and diversity considerations and everything. And then the data for the lawyers since 2019 considered for partner, just a long list of information. I don't know enough to know if this is actually legal, but it seems like way too much. I guess it's legal if you agree to it.

0:06:53 Thomas: That's what I was just going to say. I mean, I've learned a thing or two about what's legal. What's legal is what you can stop or I guess what you want to stop. And if they don't want to Stop it, then you know, yeah,

0:07:02 Liz: I do not think the EEOC has any basis to make these. As far as I can see and from talking to a few labelers, I do think they have no basis to be making these requests other than the fact fact that if you do it, it's legal. If you comply, it is legal.

0:07:09 Matt: It yeah sure and if they that's right if you give them the information which they shouldn't do should not be giving into this because there's no problem to solve

0:07:15 Thomas: Okay, here's how I took this the first time we were talking about it. It seemed like there's some real cowardly or shitty people who wanted to do this some firms that that caved right away too fast. And then seemed like There's the hero swashbuckling firm or two or whatever it was that was gonna like try try to fight it. And I felt maybe naive little me, which is so weird when it comes to law firms. I have not a high opinion of these folks, but I still thought, okay, well, maybe that's a freeloader thing where they're just waiting for someone else to fight. It may be now that one firm is fighting it, they're going to, but like, it seems like since then it's even more caving. And it seems like actually fighting it is the minimal exception to the rule and everybody else is just willing to cave.

0:07:53 Liz: I think people are really, really lame. And by people, I mean lawyers. And in particular, when you put them in groups such as Big Law.

0:07:56 Matt: Here yeah yeah I mean they certainly could have agreed ahead of time to just hold the line and not have anybody agree to any of this but that's not

0:08:05 Thomas: Are they all doing the thing where they're like, we're agreeing to pro bono work, but then we're going to say it's what we're gonna do anyway. Are they all trying to do that?

0:08:11 Liz: Well, that's in theory what they're trying. I mean, trying to do one other observation worth noting, by the way, is that, you know, the amount that they're all agreeing to is slowly ratcheting up. Right. It started, you Know, you It's 100 and 125. It kind of looks a little bit like a reverse cartel thing. In the U .S., if you are a cartel and you self -report, you get leniency. And I think that they're trying to create that impression to get more law firms to do this. But, yeah, there was a great article in The New York Times this week on exactly this issue where a bunch of law firm leaders were grumbling, saying hopefully they don't make us do things that we didn't actually really want to do.

0:08:44 Matt: Yeah we all thought we were actually going to be fighting anti -semitism but it turns out yeah yeah

0:08:44 Thomas: And just remind me, this was all because the one thing that really they held over them, that Trump held over him, was that we're not going to let you in federal buildings or something?

0:08:57 Liz: More or less.

0:08:57 Thomas: Or was there anything else?

0:08:59 Liz: It's security clearances, but very few of them have big businesses that require security clearance. Some of them do, but it's not it's we won't let you into federal buildings. Things. We're going to make it really, really, in theory, including courthouses. But it was so absurd that no judges upheld this.

0:09:15 Matt: And also in the Paul Weiss episode we were talking about the idea I think that was Paul Weiss themselves that were saying that we didn't want clients to have the perception that the federal government doesn't like us we can't do business with

0:09:24 Liz: And I think that's the fear. But anecdotally, I actually heard from a friend at a big law law firm that said that they had actually some incoming clients from some of the firms that signed agreements, clients who were like, can you please not sign an agreement? I don't want to say that there's a business case for this because there's a moral and rule of law case. But I think there actually is a business case for not signing. Anecdotally, I know someone else who's at a firm who, you know, was remarking like, hey, maybe it's not great to be signing an agreement with the administration that's bankrupting some of our clients. It's not a good look for anyone. Going back to what you said, like Trump's been tweeting and saying all these things indicating that he expects them to not just be doing anti -Semitism pro bono, veterans pro bonо, but potentially suing states that are trying to implement environmental regulations or whatever sort of things that he deigns. You know, he's like, oh, I've now got this war chest of a billion dollars of free legal work. That is what he seems to think. And it makes total sense. Again, you're making a deal with the scammiest scammer of

0:10:28 Liz: All time. I mean, you can't make a deal. With this person who doesn't respect you can like, to

0:10:32 Thomas: It's stupid. There's no reason for that. But do we know if anyone's done any actual work for him yet? Has he cashed any of these insanely huge checks for pro bono work? Yeah.

0:10:41 Liz: My knowledge, no. And I would say, have fun doing that. It takes, I mean, in my experience, in order to get an engagement set up through my old law firm, because these are big bureaucratic places, they run real conflict checks, it would take two weeks to be able to send a client an engagement letter sometimes. Certainly a pro bono client where maybe it wouldn't have been as prioritized. So any sort of work that he wants them to do has to go through the proper procedures. So it has to be sent over to, oh, do we have a conflict with this? Has to be send over to counsel. So I don't think anything has actually happened.

0:11:11 Thomas: Yeah. And how would that work? I mean, you talked about it a little bit right there. So, like, presumably, okay, let's say he's like, I want to steal another election. Now I have all these lawyers that can do it. Call one of the many, many, many piece of shit firms that has pledged to help me do this and get them going on. Like, how does that actually work? And at that point, if the firms are like, oh, we don't, we're not going to do that. Like, we Don't want to do That. Like, what happens? You know what I mean? Like, when he tries to cash this check.

0:11:35 Liz: I think that's a good question. I mean, it would be something like you reach out to the, I mean someone from his, it's totally all ad hoc and made up, someone from DOJ I would guess would maybe reach out to a firm saying we're fighting Nevada on this environmental regulation, we want you to file the suit because we've totally decimated our civil division, please do this and then they have to run a conflict check, can they sue the state of Nevada, maybe they have a conflict with that, then in theory then they staff that up with like a partner and other associates. I mean, I just, in general, pro bono at these firms and any firm I know was always by choice.

0:12:10 Liz: You were very, very forced onto a pro bono matter because the whole point is you're supposed to be doing things of interest to you that are good for the world. It would be enormously problematic to be making individuals from law firms to be doing work that they don't want to bedoing. But we might see that. I think we'll see a class. The other thing, the question that I have is we've seen the sort of press statements and the the truths or whatever. But I've never seen, there's no agreements that I've seen. I'd actually want, I do think they did sign some sort of agreement, every single firm.

0:12:10 Matt: Worth

0:12:39 Thomas: Lawyers are pretty famous for that kind of thing.

0:12:39 Matt: A try

0:12:40 Liz: I would love to see those. I wonder if you could get them through FOIA.

0:12:44 Thomas: Oh, yeah. That's a really interesting point.

0:12:45 Liz: Because I don't think that they're exempt offhand. I don'T see why, well, maybe you could come up with a way, but well,

0:12:47 Thomas: Point that is interesting

0:12:47 Matt: Because national security or something but right yeah so with your example thomas I was just thinking you know obviously if they signed an agreement that includes something like election fairness right and you're saying they can you know they force them to participate in in stealing an election do you send after after another firm of pro bono lawyers to sue them when they don't enforce the agreement.

0:12:53 Thomas: Yeah but on the government side right like yeah

0:13:11 Liz: That's what I was wondering. I was kind of wondering how you, yeah,

0:13:12 Thomas: That all right send me a spreadsheet with each the firm and which wants to sue each other and then I'll make a circle of suing each other until you do it

0:13:20 Matt: Right. Just set them off. What a mess.

0:13:22 Thomas: I wonder then if that's any sort of explanation for this at least somewhat because it just makes no sense and maybe I'm just resisting the idea that all these assholes just are amoral and don't care maybe they don't but like it's not not even about their morals it's about like even public appearance wise is just so pathetic like it's just so pathetic and so are they all thinking well he can't actually make us do anything that we don't really want to do so screw

0:13:44 Liz: Think that was kind OF the thinking behind it. And I think, and you know, in the New York Times article, a bunch of sources said that Brad Karp, the leader of Paul Weiss said repeatedly to Trump, we're not going to be doing anything that we don't normally do. You know, but that's that's the idiocy of this is that Trump is not making these agreements just for purely the appearance of these law firms kowtowing to him, which they are, but also because he actually wants them to do this.

0:14:08 Liz: He's now bragging about his war chest. I mean, I don't know if I I would do the same if I were in that.

0:14:02 Thomas: It yeah yeah yeah if I yeah you can't you can'T really if I were you know it's like if I were lord sauron I would want the

0:14:15 Liz: Yeah, I know. I just went down a really dark road and I want to agree. Right. I would say, yeah, you know, my suing Sussman Godfrey into bankruptcy is, in fact, a priority of the administration and it's a priority of your law firm and it'S consistent with your work.

0:14:21 Thomas: One ring you're like I don't know Oh, man.

0:14:33 Matt: That is dark. And of course, to return to the perennial OA topic, fascism does require lawyers. And here you've got a whole bunch of other contract lawyers that can come on and do things. And as we're about to talk about for the next segment, we might be finding fewer and fewer lawyers who are willing to do some of these things for the government. So maybe we should get onto that.

0:14:48 Thomas: All right. We'll take a quick break and get on to the next part here.

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0:16:22 Matt: All right. Well, let's return to our constitutional crisis in progress. We have the two big cases, the most important two cases that I hope everyone is following with the case of Kilmar Gregor Garcia, who was stuck in El Salvador. There's been some updates on that. And then we'll talk about what's going on with JGG, which is the overall Alien Enemies Act case. So as I'm sure People have been seeing the Department of Justice was ordered to file daily status reports every day because they were not complying. And these status reports are basically just been checking in about how they're not compying and explaining how they are not compiling. The most recent one that they actually filed was just quoting the president of El Salvador, Nayib Bekele, in his visit to the Oval Office a few days ago, in which he specifically said when asked that he would not be bringing him back because it's not his job to import terrorists or whatever. To smuggle terrorists. That's right. That's Right. Yep.

0:17:02 Thomas: Well, I can't smuggle a terrorist back in. Even OK, even setting aside. Sorry, I can'T you can'T set aside the 16 layers of stupid that is. We do things called extraditions, right? Like between countries, like even if you wanted to say, oh, you have a criminal of ours who's a terrorist, bring him back to us. That's a normal thing that happens, right?

0:17:22 Matt: Yeah. Well, this isn't. There's nothing normal about this, but yes, but that, but sure. Yes. Right, right.

0:17:24 Thomas: No, I'm not saying this I'm saying the excuse of he would have to smuggle a terrorist in is silly for

0:17:28 Matt: Well, it's also, it's willfully misunderstanding the entire situation. Everybody in that room, in that Oval Office room, every single official we had, like, if you look at that picture, you got Trump, you got Vance, you get Rubio, you've got Pam Bondi, you had Stephen Miller, they're all there together. And they are all under a court order to facilitate and effectuate the return of this man. And Bukele is sitting there saying, well, I can't bring him back. No, that's not the point. They have already agreed to bring him bank. That's what they have to do. Too. The entering the country part is not the problem, Naeba Kelly. It's the getting him out of prison, which is you are the one guy who can do that.

0:17:28 Liz: Yeah. It's insane. Right. Mm hmm.

0:17:57 Matt: You're the guy who make the call. So Judge Zinnis is not happy, obviously. And she held a hearing earlier this week on Tuesday where she called them out. She said they're just nothing's been happening here. So you're going to have two weeks worth of hearings. We're going bring live testimony from everybody involved to find out what happened and why it is that nothing has been done to facilitate or effectuate my order. She said there'll be no tolerance for gamesmanship or grandstanding. So DOJ immediately appealed. And I wanted to feature today the decision from Reagan appointee. There have been a number of Reagan appointees still involved in the game here.

0:18:23 Thomas: And like they're like the heroes of the story yeah

0:18:24 Liz: Legal dinosaurs. The entire legal field. No one retires.

0:18:29 Thomas: It's an interesting mix because some of them are so dinosaur -y that they can't keep up with the fascism they're like wait what's what what's happening there's still an old -fashioned republican mode like I don't know this is newfangled fascism I like the old

0:18:42 Matt: That's why I want to feature this because J. Harvey Wilkinson, we talked about it the last time we talked about Gregor Garcia. He had had this little back and forth, very friendly back and forth. But with Stephanie Thacker, who had written this amazing decision for the Fourth Circuit on this case before it went to the Supreme Court most recently, they had this exchange in which she said, my colleague Wilkinsson thinks that this is somehow more complicated. I'm just oversimplifying it. I see it as straightforward. But now in this decision, Wilkinsons clearly sees it. And they agreed on the end point. It wasn't they They just hit a concurrence. It wasn't a dissent. But in this decision, they are unified. And he wrote, I think, a beautifully poetic decision in this case. And I just want to read a bit of it because it's really worth taking this moment to acknowledge that this man who has been on the bench since 1984, 1984. And as you said, it's a fairly traditional conservative Republican. He also, he wrote literally wrote the book on the crisis over school desegregation and how the federal government had to enforce that and the constitutional crisis around that. So he's very familiar with this kind of stuff.

0:19:12 Liz: Before

0:19:18 Thomas: Fascism wait

0:19:22 Liz: I was born.

0:19:33 Matt: I haven't read the book.

0:19:31 Thomas: Like from which perspective sorry yeah I don't

0:19:34 Matt: So judging from this, I think maybe the right side, it is difficult in some cases to get to the very heart of the matter. But in this case, it's not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done. This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear. The Government asserts that Ebrego Garcia is a terrorist and a member of of MS -13. Perhaps, but perhaps not. Regardless, he is still entitled to due process. If the government is confident of its position, it should be assured that position will prevail in its proceedings. So, and he goes on.

0:19:37 Thomas: Know I'd seen that quote and I was like oh awesome what woke uh you know justice had written and it's like no it's somebody who's from 19 yeah

0:20:20 Matt: Born in 1944. Yeah. So yeah. The executive possesses enormous powers to prosecute and to deport, but with powers come restraints. If today the executive claims the right to deport without due process and disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home. And what assurance shall there be that the executive will not train its broad discretionary powers upon its political enemies? The threat, even if not the actuality, would always be present. This is such a moment. He cites the Eisenhower example and his, you know, his order to desegregate schools. Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around. The judiciary will lose much from the constant intimations of its illegitimacy, to which by dent of custom and detachment we can only sparingly reply. The executive will lose much from the public perception of its lawlessness and all of its attendant contagions. The executive may succeed for a time in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph.

0:21:23 Matt: That is poetry.

0:21:23 Thomas: Jesus christ this freaking guy this is amazing I love this it's that's that'S how but these people I'm sure in normal times would be the enemy of everything we stand for it's LIKE but but like that's how how far we've come. It's really valuable to see even the Reagan response to this stuff. Like that's how far are we fallen? You know?

0:21:26 Matt: So good. Sure.

0:21:27 Liz: It's so good. Yeah

0:21:43 Matt: Oh, and for perspective, Wilkinson was the the one who wrote the original Hamdi decision that was reversed by the Supreme Court, where he said that somebody in Guantanamo had absolutely no rights. And now he's seeing where that goes. And I think that's a really important moment.

0:21:54 Liz: Yeah absolutely. That's a really good point. The last paragraph at the very end is really beautiful. It is as we have noted all too possible to see in this case an incipient crisis but it may present an opportunity as well. We yet cling to the hope that it is not naive to believe our good brethren in the executive branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.

0:22:28 Matt: So good. Well, there's still time. That is chilling. And it's true.

0:22:30 Matt: Yeah. Yeah, I mean, that's and think about reading that as a government lawyer. If you're a responsible lawyer in the Office for Immigration Litigation, which, again, just lost one of its best people because he was honest with Judge Dennis and saying that this was frustrating to him, too, and that they had deported him mistakenly. Imagine reading that And like really thinking through what you're part of right now, we might start to need some contract lawyers from Kirkland and Ellis to fill in for some of this stuff.

0:22:31 Liz: I was. Yeah, I actually have chills. Yeah. Mm hmm. Apparently. Yes.

0:22:53 Thomas: Yeah, I and I want to just say I know this is like totally preaching to the choir kind of thing. But just to say just in case any folks want to talk to their like Republican family members about this kind of thing. If anyone doesn't have due process, then none of us have due due process. Like it's so simple. Like, and, and yet I know I can already hear like what my stupid family would say, but well, it's, but it's the terror, you know, the MS, the gang member, whenever, you Know, they would say something like that. And it's like, okay, but what if you're not that? And someone decides you are, how do you prove you're Not because you don't have any due process. That's what the due process is. And they just think that it won't affect them again, because of the color of their skin. Likely it's just the most, the easy, casual Republican racist thing is that, well, but It's those people.

0:23:34 Thomas: It's not, they're not going to come after you and I, You know, and it's it's so racist. And so and like, but they might also like there's there's every chance that they might. And it's not going to stop here. Like there will be the next thing, as you always say, Matt, once they decide Antifa is the next thing, then like, honestly, they might come for some white people. And maybe these white Republicans might consider that someday. Like, I know it's hard to get people to just have compassionate opinions. There's a million and one reasons already why this is bad. But like, yes, eventually they will come for you too, or they could. That's why due process exists. Like we have to all have it otherwise no one has it

0:23:40 Liz: Absolutely. But they might.

0:24:07 Matt: And I think even, maybe this is naive, but showing them a couple of the paragraphs we just read and making the point that this same judge 22 years ago found that it was okay to hold somebody because the government called them. That's great.

0:24:15 Thomas: See

0:24:16 Liz: Yes, because the government said so.

0:24:16 Thomas: He's right he's as racist as you mom come on

0:24:20 Matt: Because he thought enemy combatant was a perfectly fine designation.

0:24:22 Thomas: He's yeah yeah you would love his greatest hits of racism it's come

0:24:23 Liz: And definitely no No process. Yeah.

0:24:23 Matt: That is what he said. Right. Right. And it's it is powerful that it is this man and not an Obama or Biden appointee. You know, this is so.

0:24:28 Liz: I mean, it's sort of amazing. No, no.

0:24:27 Thomas: On this isn't some yeah no and it's good it's it's really good good for him

0:24:36 Matt: Yeah, that is really I mean, as much as there's good news in any of this, seeing the judges stand up like this. And that's kind of the theme here today, because obviously the other thing we have to talk about is Judge James Boesberg, who has put out an outstanding order finding probable cause for contempt against pretty much everybody involved in the alien enemies case.

0:24:50 Liz: Amazing. Amazing Chris

0:24:53 Thomas: So yeah I just want before we move on the maryland senator was able to visit yeah brego garcia what a bizarre thing like what a bizarre. So like, how does how does any of that work? Like, how does any Of that work, because like, for first, I saw a headline that Democrat senator was turned away, but then Republicans, they were letting them in to visit. And then then I saw this picture. And it's like, oh, clearly, he got through. But like, doesn't this mean that they could just get him? Like can't How does this not mean that someone could just get him? I don't answer me that. I don'T get it.

0:24:54 Matt: Case yeah

0:24:57 Liz: Van Hollen. Yeah, yeah.

0:25:23 Matt: Mean it was a photo obviously they they put they dressed him up they let him wear regular clothes and they let them meet with the senator in some kind of hotel with nice glasses of water in front of them I think because there's been so much talk about maybe he's not alive anymore maybe he is being tortured maybe he has been tortured but he at least looked okay for this I think that because he was reluctant to do it until maybe they realized it was a good idea I really don't know what that's been to to show the

0:25:41 Thomas: But why is it a good idea? Like I don' even if he's in there already saying, we don't we can't he's a terrorist. We We can't smuggle a terrorist, you know, like if they're already, they're already, their position has been max fascism where they're like, we don't know who he is, where he is. Don't care. But then clearly they do. So like, how does this help anything on their side? I guess is what I'm curious about, but how is that better for them? Like, I don't, I know, not like even for the bad, for the bad side, like, cause they're, they are. They're wanting to say like, it's out of our control, out of our custody. We have no idea. And then now this is like, well, no. Okay. They very clearly know exactly where he is. So couldn't you just call and be like, give him to us.

0:25:43 Liz: Why is it a good idea to do what?

0:25:49 Matt: World just shows he's alive I think that might be he's still the bargaining chip I don't sure

0:26:21 Liz: Yeah,

0:26:21 Thomas: So that's worse for their whole shtick, I thought. I thought it was like, hey, he's one of those nameless, faceless people. We've shaved their heads and packed them into this horrible, horrible place. Now it's like, oh, no, he'S right there. I don't know. Like, what is that? Can't this mean they can be like, Hey, the judge can be like ,Hey, contempt, contempt. Contempt. Just get him. He's right there, I see him. I can see him, I can a picture of him. Go get him,

0:26:41 Matt: It underscores the point but at the the end of the day, he's still under the custody of the Salvadoran government. He is beyond our custody, which is actually why this contempt order from Judge Boasberg is going extra hard, because Boasburg making the point, he is in Salvadoran custody because you defied my court order, because you did not allow my court order to go forward and you didn't turn these planes around. So I want to talk a bit about criminal contempt in the federal context and how this works. This is so unusual. Everything about, obviously, all of this has been so unusual, but we're in some really strange territory here because criminal contempt is a crime, as they say, in the ordinary sense.

0:26:56 Thomas: Weird

0:27:12 Matt: That's from a 1968 case. It's like an, it's an actual statutory crime. Yep. Again, of course, there are options for civil and criminal contempt that we can talk about, but it's codified and it's sort of always been understood to be an inherent power, but it'S codified in 18 USC 401. The relevant provision here, obviously, is if you see disobedience or resistance to a lawful writ process, order, rule, decree, or command. And the maximum sentence is six months. Now, obviously Donald Trump cannot be prosecuted for criminal contempt because he can't be prosecute for pretty much anything that he does when it's part of his job.

0:27:13 Thomas: If it wasn't, yeah, he could contempt a guy on Fifth Avenue.

0:27:39 Liz: Right. He could. I means, wow.

0:27:42 Matt: All over the place. But of course, anybody beneath Donald Trump, including every one of the defendants named Kristi Noem and Mark Arubi and everybody else could be found in contempt and do six months potentially and immediately be pardoned. I've seen some kind of argument that maybe they couldn't actually be pardon, but it's still a crime that the president can pardon. So there is, you know, open question. Yeah.

0:27:57 Thomas: Oh, it is. Oh, wow.

0:27:59 Matt: Now, but, but the Supreme Court found a hundred years ago that civil contempt cannot be pardonED by the president.

0:28:00 Liz: Because it's any crime, right?

0:28:02 Thomas: I never thought about that. Can we get like a Magic the Gathering type, like, it's like, crap, contempt, pardon, contempt. Pardon, contempt but like the judge can just keep slapping contempts like as fast as he can pardon them kind of thing.

0:28:16 Matt: It's a funny idea, did actually just like every day another round of pardons yeah just make make the point but there is an argument to be made here now he is going hard on criminal contempt in this 48 page order that's what he's finding and I think as I understand it my basic review of the case was that he doesn't even actually have to find probable cause he could just go forward to contempt but sort of as a courtesy that's the way they've done it as they do like a probable cause and they say look you can make it right or you can go forward with this he's giving them a week to fix this to what they call purge the contempt and if they can't do that in a week then they They have to start giving up names about who is exactly responsible for defying these orders. But let's dig into this a little bit because there's so much good stuff in here and so many good concepts, I think, that we should try to explain. So the basic contempt analysis is that there's a sufficiently clear, reasonably specific, unequivocal order. There's a violation of that order and that it was a willful violation. And the DOJ is doing all kinds of double talk trying to get out of this, just backflipping all over the place. One of the things they're trying to argue is that they didn't actually violate the order because it was only the oral order, not the written order. And

0:29:12 Matt: He has a lot to say about that, obviously, because it's not like it doesn't matter because I didn't write it down. He actually makes the point that if that were actually the standard, you could just go out and violate the order, you know, in the few hours before it actually hits the paper. That's just not how anything works.

0:29:15 Liz: Coming from a practice where almost everything is oral. I would love to tell some judges that what they they told my clients to do didn't didn't matter because they only said because they said it on the record, But they didn't write it down.

0:29:31 Thomas: Didn't count. Yeah. You didn't say Simon says. Yeah.

0:29:35 Matt: That's right that's right just

0:29:36 Liz: Bail? Doesn't mean anything. Didn't write down.

0:29:40 Matt: Something you said just words man yeah but they're making this ridiculous argument though about I wanted to mention about jurisdiction in airspace out of airspace when a removal is actually effectuated and this is kind of an interesting technical point but a removal which is deportation is only actually complete at the point at which you're received by the country that you're being sent to so he's saying that at the point at which the planes landed they're still not fully removed because the country hasn't taken them in yet and so that they should have turned them around at that point because the order had been in place for hours. There was only one like very shaky Ninth Circuit case that they were citing to support the idea that somehow that they'd been removed as soon as they left the U.S. boundaries. So he just takes this on piece by piece, takes them apart. And he's very upset. I mean, this thing is like 25 pages of facts. And then by page 25, he's kicked into overdrive. He just doesn't even care anymore. He's just going for it. Hustling class members to an airport before the proclamation had even been published and in the face of a suit that sought a TRO was bad enough. The decision to launch planes during During the afternoon hearing was even worse. The government knew as of that morning that the court would hold a hearing on whether anyone in its custody could, consistent with the law, be removed pursuant to the act. And yet it nonetheless rushed to load people onto planes and get them airborne. So he's talking about the willfulness. But there has never been anything quite like this. I was going back, I found a law review article from Harvard from 2018, and he was saying, you know, that on average, basically, federal judges have threatened some kind of criminal contempt maybe once a week between 1990 and 2018. There's been 67 attempts to even really try to do it. But in his review, pretty much every time the higher courts were very reluctant to allow anything to happen. He cites a case from 2011 where on the record, the judge said, I'm not even sure how I would hold the FDA in contempt. I just don't even know how to do that. And it is also a big mess in many cases to try to hold somebody in contempt because when you're talking about an agency that's supposed to do something like regulate certain pollutants or give certain kinds of notices when you're denying Medicare benefits, it's complicated. There's lots of negotiation. There's a lot of back and forth and you have to follow up and you Have to make sure they're doing it right. You know, but this is not this is black and white. This was where are these planes?

0:29:42 Liz: Interesting. That makes sense. Yeah, sure.

0:31:12 Thomas: Right.

0:31:32 Matt: But the plane's somewhere else. So this is a rare case where the contempt really is very straightforward and easy to do. The real question, though, is what happens next, because that's what is being set up in both Obrega -Garcia and in J .G .J., because Judge Dennis Zinnes and Obregra -Gracia has made it fairly clear that she's more than happy to talk about contempt if things don't go the way that she was expecting in these next couple of weeks when these hearings, and I'm sure there are going to be multiple officials who just won't show up, which is, of course, going to get an automatic contempt order, because she's going to have them testify under oath about what happened. But in this case, he's got a lot of specific things about how they can purge the contempt and what they can do about it at the end of the day what he's saying is that he has the right to appoint special counsel to actually appoint a prosecutor to prosecute for contempt and he does actually under rule 42 of the federal rules of criminal procedure this has been done very very rarely before most recently with the case of stephen donziger which we really should talk about another time very famous

0:32:12 Thomas: Why does that sound familiar to me?

0:32:24 Matt: There was a New York lawyer who took on chevron in ecuador on behalf of indigenous people in Ecuador he got about a nine billion dollar judgment it's never been enforced because an american court it found there was issues with it. I don't want to get into the details right now, but he ultimately refused to give up client information and refused to pay Chevron attorney's fees, about $3 million attorney's fee he's ordered to pay. And it is a little strange

0:32:42 Thomas: We got to talk about that sometime. That sounds like, yeah.

0:32:42 Matt: Because we do, it's a great case. I think we could probably get him on.

0:32:45 Liz: I think that wouldn't be too hard. Yeah.

0:32:47 Matt: For the sake of mentioning this though, the judge in that case did have investments in Chevron and he appointed two special attorneys that had most recently worked for Chevron three years ago. It's pretty bad. To prosecute him for contempt.

0:32:58 Liz: I mean that case is I mean, that case has a whole bag of worms and intrigue and much has been written and said about it. But I mean it was really any position you take on this. It was just absolutely heinous to appoint. Point. The reason the judge appointed a special prosecutor, to be clear, was because DOJ was not interested in prosecuting the case against Donziger.

0:33:01 Matt: Yeah. Hell yeah. Yeah. There's a lack of another. Not for corrupt reasons.

0:33:17 Liz: They deferred, right? And they said, we don't want to criminally prosecute this man. And so the judge in those circumstances, they're allowed to appoint someone from the private bar to do so, which is what we might find ourselves doing here, because I can't imagine anyone from DOJ is going to be interested in prosecuting here.

0:33:31 Matt: They just, no, not happening.

0:33:33 Liz: And that went on for quite a while. He was under house arrest for years. I mean, it was it's really horrific, still

0:33:38 Matt: Yeah. But this is a whole other thing because obviously this is just corruption. And just to add one more layer to this, David Nola Rutgers' law recently wrote for Democracy Docket. He noted that Rule 4.1 allows the court to appoint not just a special prosecutor for something like this, but to appoint a special marshal to actually serve it out. So he could appoint like a DC cop or a state cop to go do the U.S. marshal's job because as we've discussed before, the order is only as good as its enforcement. And the Department of Justice is responsible for the U.S. Marshals. And certainly we've never had this happen before in hundreds of years. But you could have a situation where the president or the attorney general orders the U。S. Marshals not to enforce an order. So you could be in a position where you have a special attorney appointed to prosecute a case and then the enforcement of that case carried out by a specially appointed deputy marshal. We could really be going that far. And then, of course, the question becomes, what happens if none of that is honored? And that's what the Supreme Court has been trying very hard in both of these cases not to get involved. They're going to have to get involved. There's just no way around it.

0:34:36 Thomas: That's not fun, man. I don't like the words the Supreme Court is going to have to get involved because when they get involved, often it's not good. I saw they're taking up the birthright citizenship case.

0:34:46 Matt: Yeah, we'll probably have something on that soon. I am still more optimistic on that than any of this, but we'll see.

0:34:49 Thomas: Fair.

0:34:51 Liz: Optimistic in the sense that it's a literal constitutional amendment. A war, a war was fought and a kind of like, like, yeah, yeah.

0:34:55 Matt: We'll see, yeah. It's a war of thought that they can read words that are on a page, maybe. I don't know. Yeah, that's bleak.

0:34:57 Thomas: I'm pretty sure that they can read the words that are on a page. Maybe. Maybe. I don't know. We think it's so bad. It's so bad.

0:35:08 Liz: I mean if that goes down, I mean I'm, I'm implementing my move to Portugal, but I'm selling all my assets and buying citizenship.

0:35:12 Thomas: Yeah, that's I hear that's the place. I hear that's we'll start a discord server of OA listeners that want to go to Portugal. All right.

0:35:15 Matt: It's true. Ready to move. All right, well.

0:35:20 Thomas: Well, we are going to have to call it there for that before we get to our New York Minute, right?

0:35:19 Liz: So

0:35:28 Ad: [Ad break 4 — ad music]

0:35:29 Liz: In honor of us all being in New York, I just wanted to give a little New York mayoral election update, which ties back to some of the stuff we've talked about with Eric Adams, which is to say this past week we learned that New York has an incredible matching fund system. And what it means,

0:35:46 Thomas: The thing he was abusing, right. Yeah.

0:35:47 Liz: The thing that Eric Adams was abusing to the tune and what's incredible about it is if you are a New York resident and you donate to a New York City resident, to be clear, and you donate to a candidate, you have to be a citizen. You get eight to one matching. So if I give one dollar to Zeron, he gets eight dollars. Well, actually, yeah, I think there actually is a minimum. So maybe it has to be five dollars.

0:36:06 Thomas: Matt, how many dollars? Oh, he can do eight to one, but try two dollars.

0:36:10 Matt: I was was literally sitting here sweating you're gonna say something like 250 dollars and I was gonna have to multiply that by eight okay

0:36:12 Liz: But anyway, Adams, of course, did not do that. Adams made what will often can happen is, and Adams is not the first person to do this, but you'll come up with, they're like, oh, I apparently don't have enough people to donate to me. I'll just start making up fake people or I'll give someone $10 and I'll tell them to donate, so on, so on. So that was one of the many things that Adams got in trouble for in the indictment.

0:36:33 Matt: Well to be fair there was just a lot of turkish citizens were just very motivated to give to eric adams they really liked

0:36:38 Liz: That's fair. So the way the matching funds program works is there's a couple of different deadlines. You submit your papers, the CFB reviews them, the campaign finance board, and then you get your matching funds. And so a big one just happened this past week and who was notably absent in getting matching funds, but the former New York governor, Andrew Cuomo.

0:36:57 Matt: Him and leader of the mayoral race so far somehow

0:36:59 Liz: And unfortunately, maybe my next mayor, which is another reason to move to Portugal. But yeah, so it was pretty incredible. So everyone got the other sort of people. There are a couple of other candidates in the race. My personal favorite and my friend, Zaran Mamdani, is somewhat below Andrew Cuoma in the polls, but he got almost $4 million. Brad Lander got money. Zellner got money, Scott Stringer, Jim Walden. But Andrew Cuomo did not get any of his matching funds. He was supposed to be getting in the range of $3 million. Why? Because of a computer glitch. And I will just just bring this back to you. I have done some in my one of my lives. I do a bit of lefty politics. I have done Some work on this issue. Basically, Andrew Cuoma is just a total noob. And his team did not Get you have to it's you do the CFP is great. They're very clear. They have have tons of trainings. They have lots of documents. And he he just didn't get matching funds because I think I think it sounded like it was some issue with maybe not getting an employment verification.

0:37:43 Thomas: Yeah you don't say step one you have to print a pdf oh

0:38:01 Liz: One of the fields was not filled out. OK. And this is amazing. By the way, going back to Adams, Adams has now applied repeatedly and been rejected the first time.

0:38:09 Thomas: Okay I was like man I got turkish people to do this like pretty easily you couldn't handle listen wow

0:38:15 Liz: No, but like actually. So Adams is running as an independent right now. But back when he applied originally back several months ago and they were like, no, you're literally indicted for this. And then he applied again and they were like, your paperwork sucks. And so that's and then now we have Cuomo getting denied. So that's awesome. Everyone who's in New York voters are on it really. So I think they were using NGP, which is as one of their which is one of the sort of vendors. What I understand is I think that they didn't collect employment information from people. So they sent this email to everyone the night – or it may have been some other bit of data, but this is very fixed. They should have known this. So, like, the Sunday before, they send this insane email being like, hey, so sorry, need you to do this DocuSign immediately, which if I got that, I would think it was a scam, obviously. Like, must fill out this Docusign for Andrew Cuomo.

0:38:27 Matt: How did this actually happen?

0:38:35 Thomas: Please

0:38:54 Matt: Yeah.

0:39:03 Thomas: Oh yeah yeah yeah

0:39:08 Liz: And it was legit. And so they just didn't get that information. So they're denied. They have until like mid -May to try to get all this information to get that infusion of funds. But it's a huge deal. I mean, he didn't get $3 million. And the thing about the New York matching system that is really important to understand is it actually creates – if you're participating in it, it creates a limited world. So what I mean is like you have basically a max of around – I think it's around $8 million. So if you participate in it you can only spend up to your sort of max budget. It's not like he can just fundraise through other donors. The way he can like in order I mean he can he can't he

0:39:42 Thomas: Even if he effed it up he can't like opt out of the

0:39:45 Liz: Can well that's the thing is like once he's let me rephrase once he's in he's kind of fundraising on the basis that he thinks he's going to get all this matching right and but yeah he can'T go above this this sort of eight million dollar threshold and he also is subject to certain donation limits so if you're participating you can't donate more than two thousand dollars to a campaign so he canT accept personally accept donations more than $2 ,000 so and some people who are listening may say wait what didn't bill Akman, the great individual that he is, donate $250 ,000 to Andrew Cuomo last week? And the answer would be sort of.

0:39:48 Matt: Naturally.

0:40:16 Liz: He donated it to the super PAC that Andrew Cuomo is not involved in. So that's so really.

0:40:20 Thomas: Of course yeah he doesn't even know about it it's a secret don't tell him

0:40:22 Liz: But what it just exactly. But just really hamstring really makes his like campaign pretty hamstrung because he can't just like get a half million dollar donation from someone or $250 thousand donation because he's limited to this $2 ,000 limit. And until he gets He's not going to get this matching benefit until mid -May now, at best.

0:40:40 Thomas: Well that's awesome and I wish it mattered I hope it could it matter does it matter could it it matter? I don't want to, sorry, I shouldn't rain on the parade. That's awesome. Good news in the New York minute. I love it.

0:40:45 Liz: I mean, good news until Andrew Cuomo becomes my mayor.

0:40:52 Thomas: Yeah. Can I try to vote real quick while I'm here? Like just a quick pop in vote. Any voter fraud? Yeah.

0:40:56 Liz: I'm not going endorse anything on this podcast.

0:41:01 Thomas: Well, I'm going to shout it really loudly while I're here. Hey everyone, don't vote for that guy at least. Who, sorry. What's the name of the candidate? Please do that everybody. As a fellow New Yorker, I want to say. All right. Well we are unfortunately out of studio time I wish we could go on but thank you so much it's so great to see you guys this was amazing

0:41:06 Liz: Vote for Zoran Mamdani. Rank Zoron number one.

0:41:19 Matt: What

0:41:20 Liz: This is so fun. Oh, my God.

0:41:20 Matt: A pleasure.

0:41:20 Thomas: It was so much fun if we all lived here we could just do it all the time it'd be fun okay thanks for listening everyone what a joy we'll take pictures we'll post places and we'll uh we'll hang out so uh thanks matt thanks liz and see you next time

0:41:23 Liz: All the time. Thank you.

0:41:31 Matt: All right. Good seeing you. Okay. Something is definitely wrong. Hold on. Oh no we're recording my waveform and matt's waveform are identical oh that can't be good I have me on one and you on two something has gone badly something's badly wrong if we're identical waveforms yeah I know that by now oh like identical wave oh yeah literally identical like if we'RE recording the same yeah it's only recording okay there must be some routing thing we have radically different waveforms as a matter of policy they're both radical yeah they're just different

0:42:18 Thomas: In fact so much fun that I will I we will tell multiple stories about our trip for patrons after we have an actual episode because if I start talking now we'll never get to any law or anything and then and everyone will quit the show. But we'll have a nice time. We'll be like most podcasts. We'll just talk to each other and then try to get our parents to listen or something.

0:42:35 Liz: I actually think New York Theater Reviews with Thomas would just be a great podcast. Podcast that would be such a good that would be such as a podcast you know you could you like a miniseries like every time you're here of like six episodes yeah

0:42:39 Thomas: Oh, my God. I have a lot of opinions. I do. That would be six episodes. Man, I have seen some theater, folks. It was some really good stuff. Some really overrated stuff. I'm not going to tell you which until... There's Glen Gary Glen Ross. Sweet. With, if people don't know... Great show. Saul Goodman. I'm on the spot. I won't remember anyone's name.

0:42:49 Liz: Karen

0:43:03 Thomas: Macaulay Culkin's brother. Nice.

0:42:53 Matt: Sweet great show nice oh

0:43:05 Thomas: Kieran kalkin michael mckean who I fucking love I love that guy and bill burr were the main four I gotta see and then the other thing I saw was so far picture of dorian gray with sarah snook from succession and one of them was incredibly overrated and one OFM was incredibly amazing and I'll I'll save it I'll say it for after wait we're still in pre -show teaser mode are you this is all teaser matt you've gone on at length no I said tease the law and you're just in okay Okay. Why don't we... We are unfortunately out of studio time. I wish we could go on. I'll just cut the part in the beginning. The theater jokes, unfortunately. He could contempt a guy on Fifth Avenue.

0:43:11 Matt: I gotta see this sure wow a deranged letter oh no I'm sorry I thought we were going I'm going to I'm so sorry my rhythm's off

0:43:35 Liz: In the law he's in New York he's talking big law he is yeah if you do it it's legal