Alito Fails to Understand a Kids' Book — and Other Fascist Mega-Fails of the Week!

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. This is episode 1153. I'm Thomas Smith. That over there is Matt Cameron. How you doing, Matt?

0:01:04 Matt: It's a beautiful spring day in Boston and good things are happening. I'm feeling good.

0:01:07 Thomas: Oh, shit. I accidentally posted the podcast where it was us talking about how we didn't have a good podcast and it wasn't going to work out. Crap. That's the one I accidentally posted. Well, hopefully people are hearing the right one now. What a, what a goof.

0:01:20 Matt: Well, I'm feelin' good about this. We have a lot to talk about. There's a lot of fascist incompetence happening all over the country right now. I don't think we should.

0:01:26 Thomas: That was what my bit was referencing. Agreed.

0:01:30 Matt: Good enough.

0:01:30 Thomas: It's incredible. There's so much incompetence. We're doing an incompetence special, everybody, buddy. It's that much, you know, it's, we deserve a nice thing. And this is a nice thing because holy moly, the thing I was referencing was them literally, we'll talk about it, literally filing a letter that was an internal letter instead of, you know, the one you would file on the docket, filed an internal letter, the Trump administration did, talking, and it gets where it's not like, oh, what do you want to do today? You know, whatever, like, let's, where do you want to eat? It's like, hey, we don't have a case. It's like, it's amazing. We'll get into it.

0:02:01 Matt: Nightmare. Nightmare!

0:02:01 Thomas: But yeah, it's incredible. And so a nice little treat for all of us, we get some incompetence special. Any other incompetences you want to tease? Besides mine, you know. Sure.

0:02:09 Matt: We've just got, well, you know, we've got Alito not understanding things, you know pretending or otherwise not to understand things. We've got multiple orders being blocked or reversed. They're great for the signs of justice. The usual stuff where they just can't really do do anything right. And the courts, when they actually look at these things, make the right decisions. So let's keep that going.

0:02:27 Thomas: And the more it happens, you can actually measure it. A barometer is how insane Stephen Miller gets on Fox News. You know, like you go, I mean, it's hard. It's subtle. It's like you're dealing with Kelvin instead. You start at like 300. It is hard or whatever. You know room temperature is like a million most insufferable guy every time there's a decision against them it's a communist judge appointed by checks notes ronald reagan or

0:02:54 Matt: Yeah. He's always talked like that. I should mention too, that we've got Sarah Palin taking a big L and we have got a meta footnote about footnotes, of course. So I ought to wrap it up pretty well.

0:03:02 Thomas: Whatever which you can find in the footnotes

0:03:05 Matt: That's right. That will be in the footnotes.

0:03:05 Thomas: Everybody this is meta meta meta awesome So much to talk about. I can't wait also we have the patron hangout coming teased it on the t3b episode but that's on monday april 28th at 2 30 pacific 5 30 eastern it's always a great time matt and I I and Lydia, we're intimately involved with people's lives, as I joked about last time.

0:03:08 Matt: Good times. Good Times.

0:03:25 Thomas: And then, of course, we also talk law stuff and answer questions and all that. So a lot of fun. Patreon .com slash law is where you can find everything you need to know on that and where you can avoid the ads. So that's where you should go. Let's take our usual break and then we'll get to all the incompetence that is this administration and various and sundry other Republicans, I suppose.

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0:05:08 Thomas: Right, what's our first stop on the tour day of incompetence,

0:05:11 Matt: Well, let's start with the best news I think of the week. Actually, we learned this when we were out together Friday night, hanging out in New York. We got that news from the Supreme Court. And we actually have multiple pieces of good news from the Supreme court today. It is springtime in Boston, feeling good. All right. So this case actually is called AARP. It has nothing to do with retired persons, but this is one of the deportation cases and they all have initials. So they're easier to track that way. I got to say, ACLU did incredible work, even for ACLU in getting this in front of the Supreme courts. I mean, this was just an absolute rocket of a case that they fueled right through the Supreme Supreme Court because they got word that a bunch of Venezuelans were being moved around and there was going to be another round of flights to El Salvador under the Alien Enemies Act. So, of course, there's already been this order from the Supreme Court that if they're going to be deporting people under the alien enemies act, they have to give them notice and it has to be reasonable, whatever that means. And of course, as I'd predicted on the show, when this happened, this was not reasonable notice. It was provided less than 24 hours from when they intended to deport these people.

0:06:05 Thomas: It was on their new name tag in the hellhole prison that they get deported into essentially like Like, hi, you're here now. Here's your notice.

0:06:12 Matt: You had the right. Yeah. You could have done something. Yeah, no, but the, of course the notices were in English. And as the plaintiffs note, of of course, most of them speak Spanish. They just were not particularly helpful. So this was something the ACLU knew they had to get done, because obviously, this is the definition of irreparable harm.

0:06:26 Matt: We know at this point, from these cases, that you send these people to El Salvador, to the SECOT, or anywhere else that Buckele wants to keep them, they're not coming back. That is the official position of the administration.

0:06:35 Thomas: I mean, on a scale of one to the government, I'm trying to even remember what the ridiculous Alito one was from last time. The irreparable harm of the government cutting a check it was required to cut by contract and not, yeah, like I can't even, it's like, oh, I accidentally paid my phone bill that I definitely owed. Is it that level of irreparable?

0:06:46 Matt: Yeah, that's right. Having to pay money on. Yeah.

0:06:56 Thomas: On a scale that we all both agree that's an 11. So on a skill of one, two, that a

0:06:59 Matt: There's nothing worse than being made to pay your bills. We can all agree on that. That's fine. But yeah. So this is a case where I think this is a really good sign.

0:07:01 Thomas: Four. Yeah.

0:07:07 Matt: And I know that sometimes I've been called an optimist a little too much, sometimes I'm an idealist. But when I see what the Supreme Court did here, and I want to just say again, like the Supreme Court is a complicated institution. It's not all one thing or another. And this order, I think, really tells us a lot in just a very short paragraph. So what happened was that, again, the ACLU knew for sure that these people were destined to El Salvador as quickly as the government could put them there. And Drew Ensign from the DOJ, who's been arguing for the DOJ in these cases, had actually said just the day before that the government had reserved the right. He had just spoken with ICE to make sure that he knew their position. They reserved the right to remove people tomorrow, which would have been the 19th, but they said that they weren't going to be deporting them that night, which was the 18th. But they reserved the right to deport them the next day. So it doesn't get much more of an emergency than that because that means they're going to do it, no question.

0:07:55 Matt: And this, of course, is the same lawyer that told told James Boasberg last month that he was unaware of any plans to deport people, even as they were in the air, basically. The Supreme Court also, I think, is starting to learn they can't quite trust anything the government's saying about any of this.

0:08:05 Thomas: Well, correct me if I'm wrong, they're talking to a new lawyer every time because the last one accidentally told slightly the truth and then gets fired. So that's a part of it, too.

0:08:11 Matt: Right. Yeah, he's out. I noticed he was still on the docket today, actually.

0:08:15 Thomas: There's been a couple of them, right?

0:08:16 Matt: But yeah, no, that one for sure, though. But the timeline on this, I've never seen anything like this. I mean, it is really just, they gave like 45 minutes for the Fifth Circuit Court of Appeals to consider a stay, and then they were just straight up the Supreme Court. Because the rule just says that you have to have sought a stay. It doesn't say It doesn't say it under the Supreme Court rules that you have to receive a stay for the court to have jurisdiction to review it. Now, the jurisdiction here is pretty interesting because the Fifth Circuit hadn't ruled by the time that the Supreme court took it up. The Supreme court knew that this was enough of an emergency that the Fifth circuit was still considering it. The Fifth circuit and Supreme court actually ended up issuing decisions right around the same time. But what's really extraordinary about this is it was around one in the morning on Saturday. Supreme court does not work at one in the morning.

0:08:55 Thomas: Not usually.

0:08:56 Matt: That's pretty unusual. They knew thatthis was real. They knewthat this was a real emergency and that these people were not coming back if if they were getting sent there. So I think that's really heartening that they took it that seriously. And, you know, they acknowledge the matter is currently pending before the Fifth Circuit, but the Solicitor General is invited to file a response, but government is directed not to remove any member of this putative class. And they hadn't even defined the class yet, but they know it's Venezuelans who are on their way to El Salvador until further order.

0:09:14 Thomas: The class is victims of fascism. Anyone in that class?

0:09:23 Matt: Yeah. At this point, the really extraordinary thing, I think, I've never heard of this happening before, is Thomas and Alito are going to dissent, but statement from Justice Alito to follow. They didn't wait for him.

0:09:33 Thomas: Oh, wow. I love that.

0:09:35 Matt: It's so good. They did not wait because they knew that he was going to take his time and write up a big, long, angry dissent. And they didn't have that kind of time because we're talking now one in the morning on the day when the government has reserved the right to deport them. So this was really heartening, I thought. This was great news all around because you've got the court stepping in to do the right thing when there's a real question about jurisdiction because the Fifth Circuit hasn't even ruled yet. And when they're not even waiting for the dissent statement. I mean, that's usually as a courtesy. They let let each other, you know, attach a dissent when they're doing this. But, you know, it's Thomas and Alito, and it's Alito's statement. Yeah.

0:10:00 Thomas: To be fair, it's just old man man yells at clouds. They're like, can we just reprint the last one? Like, do you mind?

0:10:08 Matt: Right, yeah. Just recycle.

0:10:09 Thomas: You really need to write a new one? It's the same thing every time, dude.

0:10:11 Matt: Oh, man. He didn't even, I mean, it is bullet points. He spent, like, a lot of his Easter weekend writing this thing. And I love the idea of, you know, Easter weekend when we celebrate, you know.

0:10:19 Thomas: Probably important to that guy.

0:10:20 Matt: Yeah, you would think that he really took the time to consider how Jesus would deport people, I guess. I mean it's the most important thing.

0:10:26 Thomas: What an irony. Yeah, just like, come on. No sense of, like, at least, can't you do your own religion, everyone? I get it. I don't, I'm not a religious person. It's all silly to me, but like, least do the ones you say you're doing, right? Come on. Yeah?

0:10:39 Matt: Yeah, yeah, no. The way this man cares about making sure that people get deported to hell. A man who actually believes in hell.

0:10:44 Thomas: Just like Jesus Christ would have wanted. Yeah!

0:10:47 Matt: That's right. That's right. So I just want to mention Alito's dissent because it is so typically Alito, like it's so whiny. It's so disingenuous. And he just gets a number of things. Oh yeah.

0:10:54 Thomas: Oh, so we got it now. So, it wasn't out at the time, but now he's like sharpened his quill yeah he's got okay

0:10:57 Matt: Yeah. We were all eagerly awaiting it over the weekend. It was, it finally dropped and it's bullet points. He literally, I've never seen this before, but without even writing, he just writes out some literal bullet points about why he thinks that the court didn't have jurisdiction and why this was such an emergency. Why was it such an emergency? He's pretending like he doesn't understand the irreparable harm portion, as if we could have had like a leisurely debate about whether or not this was going to happen. He openly misrepresents the record about what the court had been told about the deportations. He says an attorney representing the government in a different matter, which was the JGG, Main Alien Enemies Act case, informed the district court in that case during a hearing yesterday evening that no such deportations were then planned to occur either yesterday, April 18th, or today, April 19th. And again, this is public information. This was not only on a public record, but it was reported in multiple places. The exact quote was, was, I've also been told to say they reserve the right to remove people tomorrow, which is the 19th. So he just got that completely wrong, whether

0:11:49 Matt: It's on purpose or not. It's just wrong. He has multiple other complaints about why they didn't have jurisdiction and why they're acting so hastily, and he just doesn't understand the rush, because why would he? Why would he care about the rush? Shortly after midnight yesterday, the court hastily and prematurely granted unprecedented emergency relief. And yeah, it is unprecedented, but so is kidnapping people and sending them to the CICAD in El Salvador. This is completely new.

0:11:49 Thomas: Fairness to him I think he wants to create hell on earth for immigrants here too so he's Like well it's just a different layer of hell you know so it's not really harm that's probably in his mind

0:12:19 Matt: Yeah, Yeah, totally fine. But you know, again, I think this is good news. And I hope that the court continues to stand up this way. You know, we've all been wondering what's going to happen when these cases get up to them, because this is going to be the constitutional crisis is what happens when they they keep dodging these court orders. Also, in what we're talking about incompetence and bad faith lawyering, I wanted to talk about another one of these cases, which is actually called DVD. No word on VHS. But this is the worst argument I've ever heard the federal government make in any record.

0:12:22 Thomas: Yeah it really is

0:12:44 Matt: It's really bad. We haven't covered this case yet.

0:12:44 Thomas: Hmm bold listeners right in if Matt's forgetting something he said was that before it's hard to track.

0:12:52 Matt: It''s a little more under superseded, I think, whatever I said before. So this is a case that does not involve the Alien Enemies Act. This actually involves the third party rule where the federal government is trying to find ways to deport people to third parties. Rwanda is actually now on the table as of this week as one of the places that will send people that we can't send to their places. But Costa Rica and El Salvador have also been on the table here. And this was implicated in the cases of people that were sending to Guantanamo. I remember there was very briefly that time when we were sending people to Guantonamo Bay. And for different reasons, they haven't really been doing that as much. I think there might still be a few people there. But this argument, okay, so the Massachusetts District Court judge, Brian Murphy, ordered that none of the plaintiffs in this case under the name DVD be removed as of March 25th. He said they all had to be given the opportunity to file Convention Against Torture claims to any other defenses to the deportation. Again, this is not Alien Enemies Act stuff. This is regular deportation stuff.

0:13:40 Matt: And he wanted to be able to consider fully the argument that they could go to this third country. And so the government's response yesterday was to file a series of documents in which they explained that, in fact, I don't know how else to say this, that there's no jurisdiction over this because they named the wrong defendant. In fact, it turns out, yeah, this is so bad. DHS sent these people to Guantanamo, and then the Department of Defense, after the court order, again, this was after they'd been ordered not to leave the country. And this is very important because, again, this is how they're playing games right now to find any

0:13:53 Thomas: So much buildup here. What?

0:14:12 Matt: Way they possibly can to say that they're getting around on a court order. It was the Department of Defense with no DHS personnel on board, which actually carried out the flights to El Salvador. So they're saying, you know, it's fine, actually, because the Department of Defence, for some reason, the military was carrying out these flights.

0:14:28 Thomas: If you didn't want to be disappeared, you should have written a letter to the correct person who disappeared you, I guess. Sort of.

0:14:33 Matt: It's so bad. It gets worse. Like, it gets actually worse to say that it's okay for the military, which has no role in deportations. They sometimes do contract military planes to do this stuff, but DHS is actually trying to argue, I mean, they're not saying it directly, but my understanding from what I'm reading in this, the best I can tell is they're trying to argue that, I guess, DOD spontaneously decided to take these people from Guantanamo Bay.

0:14:54 Thomas: It's the perfect crime.

0:14:56 Matt: Yeah. DHS had custody. They transferred them to DOD, including to the DOD based in Guantanamo. And then they just, I guess, decided to put them on a plane to El Salvador with no input from DHS. It's so bad. They're just trying to say that, okay, we didn't violate the court order because it was actually DOD that went ahead and did it. It wasn't us. We were under the order. DOD wasn't.

0:15:11 Thomas: You see, I hired a hitman. And more than that, a hit man just volunteered. I didn't even hire a hit men. A hit man did it. Why did I call him a hitman that's weird. I um a man killed my wife yeah

0:15:26 Matt: No, it's just playing. And this is what they've been doing. And of course, we know it's what they'd been doing with Obrego Garcia, where they were told to facilitate and effectuate the return of this man from El Salvador. And they've been dragging their feet and doing everything they possibly can to not do it and to not follow any of the court's orders. There was an outstanding order from Judge Zinas, an eight-page scathing discovery order, where she ordered them to, told them directly, this was all in bad faith. They weren't complying, that she understood that everything that they'd been presenting to her did not meet what the Supreme Court had told them to do and ordering them to actually comply. Now, we don't know what's going on with Ombrego Garcia right now, just to mention that, because she just put in a one -week pause, and there's a number of sealed documents that went in, but both parties apparently agreed after seeing these sealed documents that they could give it a week. So we'll have to hold that and see what happens with Ebrega -Garcia.

0:16:05 Thomas: It does feel to me that some of these judges are finally losing their chill finally and they should have a long time ago but it's nice to see better late than never like there's some real lost chill on the judge's

0:16:13 Matt: Oh yeah, no, for sure. Yeah, I can't wait to see the response to the DOD argument. I just, I can'T see that going very well for them.

0:16:26 Matt: We've got some more judicial good news I can talk about here. We got Ramesa Osterich. We haven't really talked about her very much, but she was arrested over in my backyard in Somerville, Massachusetts. She's a student at Tufts. And she, we now know, is being held in ICE custody in Louisiana, very much like Mahmoud Khalil. She was arrested under the foreign policy grounds. But unlike Mahmood Khalil, she had not been out front organizing and talking about Palestine. She had signed on to an editorial with three other students. That was it. And DHS has now acknowledged that is why they're holding her in custody in very crowded conditions. She has had three asthma attacks now and is, I believe, what we understand is she's being held in a place that's supposed to hold 14 women, and there are 24 there. So this was all in violation of a court order as well, just to continue the theme here, that DHS was under an order not to move her from Vermont. There was a habeas petition, very much like with Khalil, that was filed immediately as soon as she was arrested. She was being held at Vermont because that was where they had space to hold women from Massachusetts. And they sent her down to Louisiana in violation. And so as of last Friday, she was actually ordered back to Vermont. She's going to be held in Vermont. And now Vermont will have jurisdiction over her habeas, which is a much better deal, obviously, than Louisiana. That's what we want. And I can tell just from reading this order, ordering them back, that the judge doesn't like any of this. The judge goes into detail about exactly what DHS is saying they get to hold her on. And I'm very pleased to see this because I think we're going to actually get some real justice here. He's actually ordered a bail hearing that's going to be coming up soon. So she may actually be released. So that's very good news in terms of just judges pushing back and actually ordering things to happen. They're going find some way to try to not bring her back, but that's

0:16:24 Thomas: Part yeah right yeah

0:17:53 Matt: Just another opportunity to play games. But I still think in the end, she's going to be brought back here.

0:17:57 Thomas: Yeah. I did go hard on the incompetent cell but crucial caveat a lot of this is weaponized incompetence. Oh, I didn't know that oh whoops we transferred her to another you know still I'll say it's incompetence but yeah it's

0:18:07 Matt: Yeah, no, for sure. I mean, it's just like I've been saying when we talk, yeah, no for sure, I mean it all kind of goes to the same thing. It's all just kind of, they're just not great at this. You know, when I've been talking about the Obrega -Garcia case, you know, I've putting mistakenly in quotes quite a lot because I'm not sure that he was mistakenly deported and they certainly, you know, we talked about how they blamed the manifest as if it was, you, know, some sort of living breathing manifest that was responsible. You know and you might have seen that they quote -unquote mistakenly released information about his wife, Doxter, basically, and now she's in hiding. It is terrible.

0:18:10 Thomas: Intentional still fits the theme though yeah Yeah. Oh God. I did see that whoops butterfingers yeah of course sure

0:18:39 Matt: I get emails from DHS. I'm just on their mailing list and they're not much fun, especially these days. But I will tell you that over the last week, I have received multiple, multiple emails directly assassinating Kilmore Obrego -Garcia's character. They're on this rampage right now. Let me read you some of the subject lines. I mean, I'm on the mailing list. I should probably just unsubscribe.

0:18:54 Thomas: What they're emailing you sure but like what I still don't really get like just your what is the mailing people who want propaganda get your propaganda daily

0:19:06 Matt: Yeah. They are often very helpful because it's often things like, you know, we're changing this form or, you know, there's some new policy going into effect. So it's stuff that I need to receive.

0:19:14 Thomas: We're using a new font on the

0:19:18 Matt: Yeah. Let me just look from the last few days from DHS emails, just searching for his name. DHS releases bombshell investigative report on Kilmar Abrego Garcia suspected trafficking incident. This was him in a car with some other undiagnosed, excuse me. This is him in a car.

0:19:28 Thomas: Propaganda he was in Traffic. It's

0:19:34 Matt: Trafficking. Yeah, pretty much.

0:19:35 Thomas: Like the asylum stuff all over again with trump he's a trafficker he's. I mean it's a traffic jam it's trafficking

0:19:38 Matt: It's the, it's the thinnest thing too. It is. It's like from when he was pulled over for driving without a license and he had other people in the car and they'd been doing a road trip. Like that was not, they're going for whatever they can. We've got in caps, the real story. Kilmer Obrega -Garcia is an MS -13 gang member with a history of violence. None of those things are true. In case you missed it, quote,

0:19:58 Thomas: In case you missed it because we didn't do it like it's fake

0:19:58 Matt: DHS sets the record straight.

0:20:01 Thomas: And we're just trying to do it now oh in case you missed the nothing we're making up right right now. Can't believe you missed it, Matt.

0:20:08 Matt: It's terrible though. I mean, to have taxpayer funded emails, they are like full of typos and they're full of stupid, like fascist language. But, you know, setting the record straightforward about Kilmer Arbrega Garcia. And, you might've seen the thing about how his wife at some point got a restraining order. They're still together. This happens all the time. And if you're going to be judging anybody for restraining orders or any kinds of allegations, and again, there's not really even a serious allegation about this, but we've got Pete Hegseth, we've got Donald Trump.

0:20:31 Thomas: Yeah, tell you what, why don't we look at every police officer?

0:20:34 Matt: Yeah.

0:20:34 Thomas: We'll see what their record is. We'll put it up next to every immigrant and we'll see. What the rates are.

0:20:38 Matt: And Trump senior officials. I mean, we got plenty of people up there.

0:20:41 Thomas: Yeah and whichever group wins gets to be the new police. I actually like that. The immigrant, I would rather have immigrants as police than police now as police by a million.

0:20:46 Matt: I I mean this thing, it's like literally this is a DHS official release and it says US Department of Homeland Security at the top, office name here.

0:20:55 Thomas: Yeah does also say like buy gold in the bottom of it or any that's some supplements yeah

0:21:03 Matt: It's pretty close. I mean this is basically, it is like a Newsmax story. Literally it starts out with, the mainstream media has peddled a sob story about Camargo Garcia. This is an official, this is embarrassing. Our taxpayer dollars are paying for this. At one point, they talk about a roll of cash, R -O -L -E of cash.

0:21:21 Matt: I mean, who is responsible for writing these things?

0:21:16 Thomas: Incredible is that from tango and cash or something yeah the role of cash yeah yeah

0:21:27 Matt: To be played by, yeah. But again, they are, I just, I mean it's all ridiculous, but they are assassinating the character of somebody who they've already tried to assassinate, basically. Sent down to horrible conditions. And they're retroactively working as hard as they possibly can. I mean, one of these reports is dated April 17th from ICE. They were well after he was sent out. They're just trying to find everything they can.

0:21:45 Thomas: That's the part that I was joking about they're trying to well we had this the whole time we just didn't do any of it because you know but you should have known in case you missed it

0:21:51 Matt: Right, right. Oh, you want it now? Right, exactly, exactly. So yeah, just a little sidebar there that I just, I can't believe. I guess I should believe anything at this point, but it's so bad.

0:22:00 Thomas: Guys, incredible Still rough to see. Yeah, yeah. Hmm.

0:22:05 Matt: More good news though. Following up with OA 1136, when we were talking to Jenessa Seymour about the SAVE Act, there was an executive order we didn't really talk about on March 25th, where Donald Trump basically decided to just do the SAVE Act, to just try to do an executive order that would force citizenship for all voters, proof of citizenship. And this was obviously wrong. It was illegal in multiple, multiple levels. But as of the day that we're recording, it has been blocked. So we have a great order. It's a very long order. Uh, it doesn't block the entire thing because some of it's premature, but it blocks the important parts.

0:22:32 Matt: This is a 120-page order from DC district court judge, uh, Colleen Kohler -Catelli. And I will say too, I just, again, to praise the different organizations that put this litigation together. The impact litigation on this has been incredible because they brought together all of these different organizations to file multiple suits and they figured out how to structure the defendants, how to structure the suits to make this work as quickly as they possibly could. And, you know, this is a very complex suit to just stop this as quickly as possible. But this touches on a few different things I wanted to mention because, again, this is great outcome because it's blocking, first of all, things that the states are traditionally doing. So the executive order on March 25th was called Preserving and Protecting the Integrity of American Elections.

0:23:08 Matt: And it was basically purporting to force the federal government to make the states do all these things that it just can't make them do. But most interesting to me was that it was forcing something called the Election Assistance Commission to do things. And this kind of fits into the executive order we've talked about a while back, I think it was March 12th, where he's talking about reining in executive agencies, where the unitary executive, and we don't have any independent executive agencies. Even though there are quite a number of agencies, including this one, that Congress has created to be independent.

0:23:37 Matt: And this is a bipartisan commission that was created in 2002. We talked to Jenessa a bit about the the 2002 Help America Vote Act. It was signed by George W. Bush. And it was actually in light of the things that happened in Florida that caused so much trouble in the 2000 election. And basically just not to have that happen again, it gave out $3 billion in federal money to kind of make sure that the states would have the right kind of voting equipment, that it would create guidelines, federal testing and certification, and the National Voter Registration Form, like all the stuff that could help to regularize elections. But at the end of the day, the states still are responsible for determining who gets to vote and not. And that's part of what the judge found here. That's half of it. But the other half is that Trump was directing the Election Assistance Commission to do things. And she found that's what we call an ultra vires beyond the law, because this is an independent commission. It was created by Congress on purpose to be independent. The commissioners are nominated by the president based on recommendations from the majority and minority leaders. No political party can be represented by more than two commissioners, and it is supposed to be independent. And Trump just said in his order that he had authority to do this. And she found that he didn't. So that's, you know, yet it's going to be yet another appealable issue here, but it's just one more place where judges are pushing back and saying, no, there are independent agencies. You can't just have the president tell every part of the government what to do all the time. So, that's the right direction. She also acknowledged that the defendants in these consolidated cases didn't even really say anything about the question of whether he can dictate these policies unilaterally. They've offered almost no defense of the president's order on the merits. Instead, they argued that these suits had been brought by the wrong plaintiffs at the wrong time. So she denied that.

0:25:06 Matt: I will say, though, that she did leave open because of just timing and jurisdiction. There was an order included in the EO to allow Doge to get into certain voting databases. I hope that can still be stopped.

0:25:16 Thomas: That still happening? God.

0:25:17 Matt: Something's still happening. I haven't heard much about them recently. But they wanted to look for non-citizens in voter lists, which I don't even know what that has to do with governmental efficiency. And there's also an order in there to require all mail ballots to be received by election day, which I think should also be a state issue. But that's something she said she couldn't touch right now. So yeah, but that's good news overall, because that is just clearly wrong to have the president trying to make law through executive order, and we've got a reasonable judge finding that he went too far.

0:25:22 Thomas: Man,

0:25:41 Matt: All right, one more piece of absolutely unqualified good Supreme Court news from a case that just came out this week. It's Monsalvo Velazquez v. Bondi.

0:25:49 Thomas: I can't take any more good news.

0:25:51 Matt: So much.

0:25:51 Thomas: It's too much good news! Boy, I wish we had some negative things to talk about on the show once in a while. It was because we met in person and reset the space-time continuum.

0:25:56 Matt: That might have been it. Things have been feeling good.

0:26:01 Thomas: Yeah, it was a good week.

0:26:02 Matt: Maybe we switch timelines, because, I mean, this is a good Neil Gorsuch decision on immigration. Yeah. Yeah.

0:26:03 Thomas: Yeah, oh, that'd be nice. What? Okay maybe we did. Now I was skeptical, but now.

0:26:10 Matt: This is the kind of thing that Neil Gorsuch is good for. If he's good for anything, it is just for straight up and down textualism of saying, this is what the law says. And in the same way that Scalia was very good for Fourth Amendment stuff, because he actually really did believe in the Fourth Amendment. He really did believe in Sixth Amendment right to confront people against you. These people are complicated. We don't like Neil Goresuch very much, didn't like Scalia very much, but they got their moments.

0:26:31 Thomas: They're mostly bullshit, but not 100% bullshit.

0:26:35 Matt: Yeah. And honestly, Gorsuch is a textualist. He does just read what's in front of him. And the fact is, this ist a case that is is about the definition of the word days, which is the kind of thing that immigration lawyers care quite a lot about because, yep, yep. Because, you know, our weekends and holidays, days. Pretty classic question.

0:26:45 Thomas: I love it. Human answer would be, yeah, no, those are days. I've memorized all seven different days, Matt. It took me a lot of work.

0:26:57 Matt: I've been alive through quite a while. I mean, I've lived through a lot of Saturdays and Sundays. They felt like days. But yeah, this is actually very important for people's lives though. And Gorsuch does understand that. We have something in immigration law called voluntary departure, where you agree to leave basically. And you have 60 days under this order to leave the United States. And if you don't leave, then it becomes an automatic order of deportation, and you're going to be barred from certain immigration things for quite a while, about 10 years. So if you don't leave within those 60 days, that's the trigger, right? So you do have the opportunity, if you want to file a motion to reopen, if there's anything else that you think should get your case back in front of a judge, you can file that within the 60 days. And in this case, the plaintiff, Monsalvo Valesquez, filed on the Monday when the 60 Days was on a Sunday. And the rule across the board, as Gorsuch points out, in all of the immigration regulations since the 50s has been that weekends and holidays don't count as days when you're counting deadlines. Even something as strict as a 30 -day appeal for the Board of Immigration Appeals, if it's received on a Sunday or if the day falls on a

0:27:53 Matt: Monday, you still count the Monday, obviously, because there's no mail. It just makes sense.

0:27:57 Thomas: Yeah. Jokes aside, yeah. It's like, yes, those are days, but we're familiar with business day stuff. That's very common in other elements of life.

0:28:02 Matt: Right, right. And if the U .S. Postal Service isn't running and if you can't get things to there on a Sunday, then that just makes sense. So he just upheld this. And it's good for a lot of other immigration things as well, because it's not always that well-defined everywhere. So just having something as simple as saying that in all cases that weekends and holidays don't count as days, and we can go to the next business day for any of these deadlines. It's great. And of course, you got an Alito and Thomas dissent because they're all hung up on jurisdiction because that's all they got. So that's just a good, straight up and down, simple, straightforward Supreme Court decision.

0:28:32 Thomas: Wow. What a great Supreme Court. No, I'm sorry. I can't keep the bit up that long.

0:28:38 Matt: I got a couple more stories about the government not quite understanding easy things. So let's come back and talk about those.

0:28:44 Thomas: Let's take a quick break and then more. And we've left the more incompetent for later.

0:28:48 Matt: It just keeps coming.

0:28:51 Thomas: This episode's brought to you by Notion. Look, there's definitely no shortage of AI tools and AI related things out there. But if you're like me, it's hard to even figure out where to start with that. I need AI to tell me about the AI. But then which AI do I ask? Not to mention, I've got my notes and things in so many different places. But that's where Notion comes in handy. Notion combines your notes, documents, and projects into one space that's simple and beautifully designed. Notion is your one place to connect teams, tools, and knowledge so you're empowered to do your most meaningful work. All right, I've got the best reason to use Notion. It says here, teams that use Notian send less email, already great, cancel more meetings, bam, sold, done. There's nothing better than canceling meetings. I can't stand meetings. And save time searching for their work and reduce spending on tools, which helps keep everyone on the same page. You had me at hello. So try Notion for free when you go to Notion .com slash opening. That's all lowercase letters, Notion dot com slash opening to try the powerful, easy to use Notion AI today. And when you use our link, you're supporting our show. Notion, dot com, slash opening,

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0:30:02 Matt: So this was oral argument, and I haven't had a chance to completely pick this apart yet, but in Mahmoud v. Taylor, this is a Supreme Court case that was just argued this week. You might have heard something about it. This is a question about parents' religious exercise in schools. Let me just read the question for the Supreme Court so we can frame this. To public schools burden parents' religion exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents' religious convictions and without notice or opportunity to opt out. So the petitioner and a class of parents from Montgomery County, Maryland are suing the Montgomery County county department of education for mandating that teachers include books about lgbtq people in their curriculum without notifying them or giving them a choice to opt out and we're talking pretty straightforward kids books about things like your uncle's getting married to a man right this is not like graphic sexual stuff this is just like regular part of life kind of stuff so the question of exposure versus coercion right is it coercion to make people believe things by just reading them a book by just exposing the idea that men get married to men

0:31:00 Thomas: Just replace it with interracial marriage and then you have your answer.

0:31:03 Matt: Right yeah exactly Exactly.

0:31:04 Thomas: There's no it's every single one of these is well is it okay that teachers are normal okay what if it was interracial marriage do they have to ask permission for that like what level what if it's a woman working what level of thing I didn't watch these oral arguments and I'm sure somebody brought this up like it's the same thing every time and what's frustrating about it especially is yeah we know the supreme court's going to supreme court but a lot of this argument in my mind is really about the zeitgeist you know like I think we made so much progress on gay marriage and stuff and they're really trying to roll that back, not just legally, but like culturally and societally. And I think this is for them a great opportunity to be like, yeah, maybe this isn't so mainstream now.

0:31:44 Matt: No, it's pretty straightforward, I think. I mean, it's just like kids are going to find out that men get married to men. You can't opt out of this forever. This is just life. And the parents are trying to say there should be some kind of like a special session. I guess they could take the select special children that aren't supposed to hear about the fact that men marry men and I guess teach them something else for a minute. It's absurd.

0:32:04 Thomas: That would be cumbersome.

0:32:05 Matt: Yeah, that would really be obnoxious because they were doing opt-outs. They were trying to offer opt-outs and the district reversed course. And in 2023, they just said, said, you know what, we're just going to have everybody learn this. This is just how it's going to be.

0:32:14 Thomas: That's so nice. Good for them. Everybody should do that.

0:32:15 Matt: Yeah, easy enough. But the Beckett Fund for Religious Liberties took this suit up and using it as just like a broad spectrum of different faiths that don't want to hear about this. I just wanted to feature a little moment here with Justice Alito not understanding a children's book. It's one thing when he doesn't understand the court's own rules or when he pretends not to understand what a lawyer said in court the other day, but we're talking about a children's book.

0:32:35 Thomas: Are we talking about pout pout fish? Are we talking about where the, there's cause there's some that are a little abstract. I'll give them credit. You know, it depends. I'm keeping an open mind here.

0:32:41 Matt: I haven't read this book myself, so maybe I'm not being fair, but it doesn't sound complicated.

0:32:46 Thomas: If it's Clifford, the big red dog, I think it's just a big red dot. Like if it's that one, we'll find out. OK, are we going to play it?

0:32:54 Matt: Kids shouldn't be lied to about the size of dogs. And that's just a real problem.

0:32:57 Thomas: Oh, yeah. I need to opt out of that. I don't want kids to learn that stuff.

0:32:59 Matt: That's right. This book is called Uncle Bobby's Wedding. And it's a children's book, just basic stuff about same -sex marriage. It just features a same - sex marriage, right? And it's just part of the story.

0:33:07 Clip: I don't think anybody can read that, and say, well, this is just telling children that there are occasions when men marry other men, Uncle Bobby gets married to his boyfriend, Jamie, and everybody's happy, and everything is, you know, it portrays this, everyone accepts this, except for the little girl, Chloe, who has reservations about it, but her mother corrects her, no, you shouldn't have any reservations about this, as I said, it has a clear moral message.

0:33:31 Thomas: And they execute her.

0:33:37 Clip: It has a clear moral message and it may be a good message it's just a message that a lot of religious people disagree with and when you add to that your honor instruction if a student disagrees teachers are supposed to say things like well I have friends in that situation do you think it's really fair for you to agree or to suggest that it's hurtful for students who disagree mr baxter I I guess I'm interested in what the nature of the rule you're asking for for is. When you started, it was about matters pertaining to sex. But as you've answered some of these questions, you've basically said, well, my clients have religious principles that conflict with what is being taught. Does it go that far? In other words, does it matter what the subject matter is? Does it matter what the age of the child is? Does it matter what the nature of the instruction is if so how does it matter or in the end is what you're saying when a religious person confronts anything in a classroom that conflicts with her religious beliefs or her parents that that the parents can then demand an opt-out it's really the latter your honor and that's exactly what Montgomery County allowed in its

0:33:39 Matt: What

0:33:45 Thomas: Oh, maybe. Wow,

0:34:58 Clip: Anything that violated a student's or imposed a substantial burden in their language

0:35:03 Thomas: That was him just admitting that that's what it was.

0:35:05 Matt: I wanted to point out, though, is Sotomayor is trying. At that point, we heard her try to jump in. And what she's trying to do is correct him on the plot of a children's book. This has to be a first in the Supreme Court.

0:35:13 Thomas: Now, you see, Clifford, he's just a big red dog. And then I heard I don't know this. I haven't heard this, so I don't know what the correction is. But I did hear a very defensively. Oh, no, let me finish. Let me finish like I want the chance to misrepresent it, please, please, before you correct me, oh,

0:35:28 Matt: And he just can't stand being corrected on a children'S book. Again, never has to have happened in Supreme Court history. So let's hear a lawyer will actually explain the plotof a childrenS book to him now.

0:35:36 Thomas: Do you need someone to mansplain it, like, hmm,

0:35:41 Clip: Is teaching third graders or second graders precisely that. And the fact that in that case, it's Uncle Bobby and Jamie rather than in Uncle Peter's Chinese American wedding, I'm just as Sotomayor and I were discussing this before, we could have a book club and have a debate about how uncle Bobby's marriage should be understood but I think it clearly goes beyond that it just it doesn't just say look uncle Bobby and Jamie are getting married it expresses the idea subtly but it expresses the this is a good thing mummy said Chloe I don't understand why is uncle Bobby getting married Bobby and jamie love When people, when grown up people love each

0:35:54 Thomas: No, I already know, shut the fuck up, what, uh -huh,

0:36:32 Clip: Other that much, sometimes they get married. I mean that's not subtly sending a message I think that's a way of a mother consoling her daughter who's annoyed that her favorite uncle is distracted But even if the message were, some people are gay, some people get married, I don't think there's anything impermissibly normative about that.

0:36:34 Thomas: Uh‑huh, yeah, oh, that's great, oh-, I want to keep listening, just in case,

0:36:54 Clip: It is a story that is being used to teach students that just as in the 99 of the 100 books that we read about couples, it's a man and a woman, I mean, why is the Montgomery County Board of Education in this argument running away from what they clearly want to say? They have a view that they want to express on these subjects. And maybe it's very good view, but they have a definite view, and that's the whole point of this curriculum, is it not? I'm not running away from anything. Thing the board has used to defend this I think what's in the record is that the board wants to teach civility and respect for difference in the classroom there is obviously an incidental message in some of these books that these life choices and these lifestyles are worthy of respect I don't know how you can teach students to respect each other without teaching that if the book were about you know uncle Bobby's wedding they get married and the rest of it is that was awful then there would be a serious equal protection violation in the presentation of that curriculum so the incidental message that these things ought to

0:37:19 Thomas: Maybe, yeah-,

0:37:57 Matt: Good

0:37:58 Clip: Be normalized and treated with respect I think is simply part of the work that the school is doing in cultivating respect in a pluralistic school well the plaintiffs here are not asking

0:38:06 Thomas: So good oh all right god I just want to listen to the whole thing though oh I love it so much man I love I love so much so I had seen headlines about that and I wasn't sure because the headlines were like oh he revealed his hidden homophobia I'm like okay that's not hidden at all might as well say he revealed His Catholic faith or something it's like we all know we all but it is better than what I thought where he's like he thinks well you see this little girl like in god is not dead or something like this little hero of of a girl was trying to say like but why is that good because you know they're gay and they should go to hell and then the mom is like no it's fine in

0:38:06 Matt: Stuff. Yeah. Yeah, wow. Right,

0:38:43 Thomas: In alito's mind like that I think that's what's going on and then he's like well no the little girl's like oh no my favorite uncle is distracted by a wedding oh

0:38:51 Matt: Yeah exactly. He won't spend enough time with me anymore. The fact that they're dissecting a children's book, I mean, the whole thing, it should be a complete embarrassment. It already is an embarrassment, but I hope that, you know, even five or 10 years, this is going to be appalling to anybody who reads it that we were even thinking about. I mean it's just, I thought Evan Schoenfeld there from Wilmer Cutler, Pickering and Hale actually, representing the school district there, did a great job of elaborating.

0:39:13 Thomas: Yeah are you not allowed to teach kids to respect other people's life choices is that too far

0:39:18 Matt: Right. Well, and like incidentally mentioned that people make these choices even, right? I mean is the message supposed to be that it was terrible that they got married?

0:39:19 Thomas: Is that that too far? Yeah. Yep. Yeah.

0:39:26 Matt: It's just such a good response. That is a really dumb headline if that's what which you saw, because we all know who Samuel Alito is, and he's certainly the disdain with which he's describing all of this. You can't miss it in his voice. Yeah.

0:39:35 Thomas: It's so, it is so tiresome. It is so, it's so fake. Well, it might be a good moral. Oh, it might be. And it might, and it might not be. It might be a good one, but you know, like it might be that we're saying that black people are equal and that might be good, but no, no, but every single time. And he thinks he's so much smarter than everyone else. Oh yeah. It might be good. Yeah, no. I just, I just think it might be a moral, but there is a moral there. And so therefore I should be able to say my religion says no. No.

0:39:51 Matt: So bad. Yeah, yeah. Well, we'll see. This could be yet another opportunity for the Supreme Court to misrepresent the record in a religious freedom case and decide that it's just completely impermissible for the students not to be able to opt out of this, we'll probably look at this closer.

0:40:14 Thomas: Matt, they don't have a great track record on this. This was a weird one because I wanted to ask you, because I have only seen dueling headlines on this, I've seen everything from like, well, this was a great sign, they're not going to go for it, the oral arguments, I mean, to, oh no, we're effed, like we're totally screwed. Are you more on the like, this is going to be okay side of the prediction here?

0:40:31 Matt: From what I've seen of it, it's hard to say. It seems like you can't really tell. Gorsuch was keeping it kind of down the the middle with the doctrine. And Kavanaugh, I don't know, it just kind of seemed like he was going back and forth about the whole thing. I couldn't really tell. Just from my review of it,

0:40:45 Thomas: I don't know about that.

0:40:45 Matt: I'll have to look at the filings and see how it comes out. But we'll talk about it when it comes down. But it could be really bad, obviously, if it goes the wrong way. We'll see.

0:40:52 Thomas: What was the decision on the coach one?

0:40:54 Matt: That was Gorsuch making up facts. Yeah.

0:40:56 Thomas: Yeah, so what I'm wondering is, that's what they do, like they can't really, often they don't have actual meritorious arguments, so they have to make up facts to make it fit. Did you notice any evidence of that in the oral arguments? Do you think there's the opportunity to do that again here?

0:41:09 Matt: I mean, for all we know, he's going to make a decision that says that they locked these kids in a room and put headphones on and made them listen to the Onus. I don't know. But no, there's no indication of anything like that yet, but we'll see, we'll say.

0:41:17 Thomas: Okay. Well, that's a good sign because there definitely was in those oral arguments. They were all in on this support coach. All he did was just privately make an entire team pray on midfield with everybody watching.

0:41:29 Matt: But if the question is, is exposure indoctrination? I think we all know the answer to that. It's just exposure. It is life. So we did have a quick patron question here from Effa Davidson, one of our favorite recent jokes. Good in-joke there. Sarah Palin v. NYT. Why was the first one a mistrial again? An honest mistake definition would be handy. Having said that, it could also be part of an eventual vNYT deep dive, which is true because as we've talked about before, Sullivan v. New York Times, which has the standard about libel against public figures, is under assault. Sarah Pailin herself was assaulting it in this case. And Steve Wynn recently tried to assault it, but it looks like the Supreme Court did not take up cert on that case, fortunately.

0:42:03 Thomas: This is interesting because it's a crossover for GG right now. We've recorded tens of hours on this, but we still need to edit it. Because we're at the Baldoni v. New York Times complaint there. And I was going to actually talk about this very thing, at least just in a limited way, because it was interesting. The stat that I was working with, teaser for that, is the New York times has not lost a libel type case in the entire 50 whatever years it is since New York time v. Sullivan.

0:42:28 Thomas: But these were the two asterisks on that because they did win this one. And then it was, I guess she, by some technicality, she was able to get retrial on it. How did this go?

0:42:40 Matt: This was a weird one. Just to set this up very quickly, though, she sued the New York Times for libel because in 2017, there was an editorial, and you might remember after Steve Scalise was shot, the Republican congressman, there Was this question raised by this editorial, because they also mentioned Representative Gamby Giffords being shot. And they mentioned that before the shooting, Sarah Palin's political action committee circulated a map of targeted electoral districts that put Ms. Gifford's and 19 other Democrats under stylized stylized crosshairs. So the map didn't actually do that. The map did have crosshair, as you might remember seeing this, but it was just over the districts. It didn't put faces under the crosshaires.

0:43:14 Matt: I think that's kind of a petty distinction. I mean, you're still putting crosshars over parts of America. They actually ran a correction, though, saying that no such link was established between political rhetoric and the shooting of Gabby Giffords. There was no actual map that showed individual Democratic lawmakers beneath stylized acrosshairs, but she's still suing for libel. Now, of course, Sarah Palin is a public figure, so you have to be able to show that it it was actual malice, reckless disregard for the truth. And the New York Times in discovery had produced kind of some correspondence where they maybe should have known. And, you know, the person and people writing the editorial should have had some reason to believe that they knew there was no connection and that what this map actually showed. But Judge Jed Rakoff considered a Rule 50 motion.

0:43:51 Matt: And Rule 50 allows judgment basically before a jury verdict comes back on the law. And he was actually deciding on the issue of actual malice. And he said that he didn't think that a jury could find that there was actual Malice here because she is a public figure and because it It wasn't reckless disregard for the truth. The part about this that got kind of messy was that he was waiting for the jury to come back on their verdict so he could sort of integrate his finding into their verdict. But some of them got push notifications about the fact that he had dismissed part of the case.

0:43:59 Thomas: - Mm. Whoa. What?

0:44:16 Matt: Yeah, on their phones.

0:44:17 Thomas: That doesn't seem good. No.

0:44:18 Matt: I don't see that they think they should have had them. News coming up about the case that you're supposed to be deliberating on at the time. So the Second Circuit took this up and found that his finding was actually incorrect to begin with, that there was enough in front of the jury on their record that they could have made a finding, that a reasonable jury could still find that there is reckless disregard. And that actually there might have been defamation per se as well, because you're saying that she might be responsible for the shooting of a public official. That's pretty bad. So this was sent back on remand for a retrial. And Sarah Palin got her retrial, she testified recently that this, she has to prove damages also, this actually hurt her somehow. And I didn't find this to be very convincing, to be honest. She said it was a game changer and the effect of her life, just having this editorial, right? Of all the things, you know, when you've got SNL doing parodies of you every week, this was the thing, I guess, that did her in. I felt defenseless. It just kicked the oomph right out of you.

0:45:02 Matt: Pointing out that she was contributing to a toxic rhetoric and that a political action campaign associated with her had put out targets on individual lawmakers' districts. I mean, it's, come on.

0:45:11 Thomas: Sure. Yeah. All that stuff would go to mitigate damages somewhat, I would think.

0:45:16 Matt: Yeah, yeah. But as it was, they came back for the defendants. There was no finding of libel at all.

0:45:21 Thomas: They went through the whole retrial and she lost, right?

0:45:23 Matt: Yeah. New York Times won.

0:45:25 Thomas: Well, there you go.

0:45:25 Matt: So yeah, there's another one for the good guys. Just another case that really probably shouldn't have been brought.

0:45:29 Thomas: Sure. You know, and it's an interesting distinction. I think New York Times v. Sullivan should be good law, but that doesn't mean there is no such thing as actual malice. It doesn't means there's no such things as the ability to meet that standard with a public figure. You don't mind where it's something like, yeah, give it to the jury. If the facts are a little bit ambiguous, yeah. Let a jury decide. Sure, I feel like that doesn' t threaten the precedent. That's still using the precedent there can be be such a thing as actual malice. They're just with the New York times because they're so experienced and professional. Usually they don't get that close to that, but it sounds like maybe they had a bit of a slip up here.

0:46:01 Matt: The best that Herler was able to do in this argument was that they had violated their own policies in the way that they'd wrote the editorial and the way they put it together. But when you're writing under strict deadlines and you have to get these things out, mistakes will happen. And this was, as the New York Times said, said it was an honest mistake. Fair enough. So no libel.

0:46:15 Thomas: All right, Matt. Well, we got to get to one last, my favorite bit of incompetence that I teased at the outset. What happened with the filing of the wrong? It was a bad note. It was the wrong letter.

0:46:27 Matt: Yeah, this is a real legal nightmare. This is exactly the kind of thing you do not want to do as a lawyer, right? You're just sending the judge a picture of your ass, basically. So the case here involves fan favorite Louis Lyman in the Southern District of New York, Mother Court. This is the MTAV's Sean Duffy, a former reality star, now the Secretary of Transportation, because why not? That's where we're at now. So this was, as you said, a letter that just appeared on the docket, and it went to the docket on April 23rd as letter addressed to Judge Louis J. Lyman. When you open the letter, you realize that it is not, in fact, addressed to judge Louis J Lyman, it is addressed to Aaron Hendrickson, a senior trial attorney at the Office of Litigation Enforcement from the U.S. Department of Transportation. It is an 11 -page letter which undermines their own case very, very badly. It just explains in detail the problems with the case, the fundamental weaknesses, and about the considerable litigation risk in defending it.

0:46:29 Thomas: This is filing something with your your pants off like you forgot to wear underwear yeah oh my god oh so good imagine

0:47:23 Matt: It's unlikely that Judge Lyman or any further courts or review will accept the argument that the congestion pricing was not a statutorily authorized value pricing pilot under the value pilot program. So again, just directly stating that they don't have a case.

0:47:35 Thomas: Boy you just you just wish it was any other random letter how do you how do You end up posting that one it's a real real boner how did who yeah of all the pdfs all the gin joints in all the world Yeah, you had to send that one.

0:47:40 Matt: Absolute nightmare of all the PDFs. And then they had to compound it by filing on April 24th a letter explaining the letter and asking the judge to To seal the letter.

0:47:59 Thomas: Yeah. Yes, it was a letter of new phone who dis.

0:48:05 Matt: Exactly. At 9:04 p.m. last night, Undersigned counsel inadvertently uploaded an attorney-client communication rather than a letter intended for your honor. Immediately upon realizing the inner error at 9 .18 p .M., that must have been a fun 14 minutes, we contacted all counsel of record via email advising of this inadvertent filing and asked them to download and to delete it.

0:48:22 Thomas: Yeah, I mean, in fairness, this stuff happens with normal stuff. And that is the protocol, right?

0:48:25 Matt: Sure, sure.

0:48:26 Thomas: You accidentally reveal attorney -client privilege. And if you're the client, you want to have that protection in case your attorney makes a mistake. It's not like you should be out of luck. So I get at least that part is like, all right, yeah, whoopsie. But the idea that, I means, it's already everywhere in the media. I guess they have to go through the motions of saying that.

0:48:40 Matt: There is actually SDNY case law on this from Mizachi v. Windsor Owners Corp that actually this exact situation of accidentally uploading something to the docket Yeah, does not waive attorney-client privilege communication.

0:48:52 Thomas: Yeah, sure. Sure. That's fair.

0:48:52 Matt: So it's actually still privilege communication, that's only fair.

0:48:54 Thomas: But we can't erase it from our minds. So we all know what happened. So good luck with that. Yeah.

0:48:58 Matt: That's right, we can all enjoy the memory, that' right. So, you know, one little further piece of governmental incompetence.

0:49:02 Thomas: So good. Unbelievable. Did somebody get fired yet or what? Like what's the that's man can't imagine that awkward. I would be calling it. Oh boy. I got dealt triple COVID a hundred COVID. I'm out for a while. Boy, I'm sick.

0:49:07 Matt: Yep, yeah, it was only a couple days ago, so, well, time will tell.

0:49:19 Thomas: I can't even see straight. Who is this? Bye.

0:49:19 Matt: It is going to be fun for the rest of this case to just pretend that didn't happen. They're all just going to have to do that.

0:49:24 Thomas: Yeah, it's a shame. So that means at least it means the other side can't site to that. See where the opposing council admitted this sucks. No, they're not allowed to do that, I guess. All right. Well, we'll take a last quick break and then I'm excited for the foot super meta footnote. This show is brought to you by HIMS. All Right, men, dudes, dude, bros, guys. HIMS is changing men's health care by providing you with access to affordable sexual health treatments from the comfort of your couch, which that's the best place for it. I'll be honest with you. Trying to go in and talk to someone about this in person can be not the most fun thing to do. So forget that and try HIMS. The process is 100 % online, so there's no need for uncomfortable doctor's visits. Just fill out an intake form on their site and a medical provider will determine the right treatment option. If prescribed, your medication ships directly to you for free. No insurance needed and one low price covers everything from treatments to ongoing care. With hundreds of thousands of trusted subscribers, HIMS can help you find the ED option that works for you. So start your free online visit today at HIMS .com slash opening. That's H -I -M -S dot com slash opening for your personalized ED treatment options. HIMS dotcom slash open. The featured products include compounded products which are not approved nor verified for safety, effectiveness, or quality by the FDA. Prescription required. See website for details, restrictions, and important safety information. Price varies based on product and subscription plan hymns .com opening all

0:51:01 Ad: [Ad break 3 — ad music]

0:51:01 Thomas: Right matt met a footnote here we

0:51:03 Matt: One's a heartbreaker, I got to tell you up front, because it involves James Boasberg, who I think is an American hero. District Court DC judge who has been standing up hard for rights and liberty in the JGG Alien Enemies Act cases, at the end of the day, though, revealed something I really do not like about him. I have to say, if this were any other judge, I might be considering a bar complaint for his arbitrary tyranny in this case. Absolute tyranny. And I want to thank listener Lydia S. for bringing this one to my attention. She knew that it was just my kind of story. So I'm going to have to tell you. This involves American Oversight v.

0:51:03 Thomas: Go yeah oh no oh no

0:51:32 Matt: Hegseth, which is a very funny name because Because Pete Hegseth is American Oversight. Like, it's just like nothing but oversight, just constantly overseeing things. And of course, this is about the Signal Chat, the infamous Signal Chat. And the fact that they tried to delete some of the chats. And American Obersight is an organization that does great work in trying to obtain records. And they're saying we can't get these records. Yep.

0:51:50 Thomas: You're not supposed to do that man there's a records act right

0:51:52 Matt: Yeah, all kinds of problems there for destroying sensitive national security conversations that you're having on Signal. So this case is brought under the Federal Records Act and the Administrative Procedure Act. And American oversight tried to file an injunction that Judge Boasperk didn't like. Because it had too many footnotes. Heartbreak. I mean, I've never, and again, still love the man, Trump

0:52:10 Thomas: Oh no it's like you're on a dating app and you discover they're a republican or something you know he was yeah I mean matt was just all heart eyes at this judge and then this you

0:52:15 Matt: Voter right at the end, right? Exactly. April

0:52:21 Thomas: Know never looked on the same

0:52:22 Matt: 22nd, minute order. The court orders that plaintiff's motion is stricken, that's in caps, as violating the court's local rule on excessive footnotes. Excessive. First of all, Massachusetts still has no such local rule. So this is a shock to me. This is a DC local rule, I had to look it up. It's in rule 5.1. And I'm going to read it to here and you can...

0:52:37 Thomas: Yeah they're a sundown town on footnotes they're really really racist against footnotES over there

0:52:40 Matt: That's fine. Footnotes, which shall not be excessive, shall also appear in 12 point font. That's part of the rule that's relevant. I have multiple problems with this, starting with the fact that footnotes should be in 10 point or less. I don't think they should be in 12 point.

0:52:53 Thomas: Oh so that so is that the reason for the rule they're saying the footnotE's need to be like almost the same size as everything else and so they're like naturally you can't fit as many because we're making them bigger is that kind what's going on

0:53:02 Matt: Yeah, footnotES are a really common way to try to get around page limits, try to squeeze more junk in. And honestly, looking at this motion, I didn't think this looked unusual at all. There were 34 footnotEs and 34 footNotES is not that many. And none of them were excessive. They were mostly just citations. I think he just didn't like that they were putting citations into footnotes. But it's a 36 -page document with 34 footnotES. Come on, man. There's nothing wrong with that.

0:53:10 Thomas: Well okay matt yeah what what is a healthy a man asking for a friend what's a normal like what's considered in the normal range footnote

0:53:28 Matt: I mean, look, it says excessive in the rule. To me, excessive is something which I will admit that I have done more than once where there's more footnote than there is text. I'll give you that. You shouldn't do it. And I do it sometimes because sometimes I just have things to say in the footnotEs. But there's no rule about it. And the ABA Journal actually specifically called Boasberg out on this, not just for this one, but apparently he's a stickler for footnote brevity. He just really doesn't like it. And he's many times, people have run up against his hatred of footnotes. So, you know, everybody's got to have a flaw. Everybody's got something wrong with him.

0:53:40 Thomas: Quantity yeah wow he's the anti -mat anti

0:54:05 Matt: But he's on this one thing. But he apparently has drawn some kind of arbitrary rule about how you have to have 10 footnotes and 40 lines, like no more than 10 footnotes or 40 lines. And that's just tyranny. That is absolute judicial tyranny, he is an activist judge, get him off the bench. I'm actually completely with Donald Trump now, let's impeach James Boasberg.

0:54:21 Thomas: -matter wow jeez he's yeah he's a communist or something I don't know who's ideal who was anti -footnote historically in that conflict conflict which side of the cold war was anti -footnote I don't remember I'm not good with history

0:54:32 Matt: Yeah, I don't know. You know, I think footnotes are very American. I think that, you know, like trying to squeeze more information in.

0:54:40 Thomas: They're definitely I'll give you this in slight seriousness footnotes I think are anti -fascist I think they're more anti -fat like if we were going to go with the vibe of a footnote like it's for usually usually further explaining something it suggests a love of knowledge you know like it'S usually usually the footnotious people are and matt yourself included very hyper literate it. Enjoy reading. You're not going to see a lot of Stephen Miller footnotes.

0:55:06 Thomas: He's already yelling in his annoying, obnoxious voice.

0:55:07 Matt: It's true. So true.

0:55:10 Thomas: I mean, maybe he could do it to be a troll, but it would just be more of the same bullshit. So I'm going to go ahead and side with you slightly. I would maybe disagree where the rule is, where the line is. But I do think that they are in the fascist, anti -fascist dichotomy. I'm gonna put them more on anti - fascist.

0:55:25 Matt: Beautifully said. Freedom is in the margins. Give me footnotes or give me death.

0:55:30 Thomas: All right. Well, what a fun one, Matt we had everything including an amazing footnote a footnote of a footnote which we will again put in the footnotes of the show notes just to make a triple meta why not see if that top wobbles at the end of the movie or not yeah we'll see all right well and once again check out Patreon for that Q &A and that hangout we're gonna do on April 28th that's Monday but we'll also see you for a fresh episode that day as well we'll See you then have a great weekend thanks for listening

0:55:39 Matt: That's right. For sure, of course. Inception. Yeah. All right. Later.

0:56:17 Matt: Test, test. Coming in. Better? No? No. No, I mean, I move closer, but I don't. I'm just, it's just, I've got this.

0:56:19 Thomas: Did you change anything? I don't know. I mean, okay. It's like if you're just saying test, test without doing anything. I've memorized all seven different days, Matt. See where the opposing counsel admitted this sucks.