BREAKING: Federal Courts Correctly Notice Color of Sky, Pope's Religious Affiliation

Transcript

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

0:00:01 Matt: The government designates you this thing, and then they ship you out. So you're not seeing an immigration judge, you're not getting federal review. No one has to actually even confirm that you're from that country, let alone that you are a gang member.

0:00:18 Jenessa: They are literally talking about it like these cities are war zones, and that's total propaganda. Today, I walked to the grocery store, and I did not, in fact, have to, like, put on a flak jacket and camo and hide in the bushes. I walked there in my flip-flops.

0:00:40 Jenessa: Welcome to Opening Arguments, the podcast that analyzes the law and the news. With me is Matt Cameron, immigration attorney.

0:00:47 Matt: And of course, this is Jenessa Seymour, former scientist, current voting rights attorney. Today, we're covering some good stuff from courts. This has been kind of a theme we've been trying to pick up on, and we didn't have to try that hard this week to find good news from courts, like big, big good news. We'll see what sticks and what doesn't, we'll talk about that. But across the board, things are working, and they are stopping things from happening that it shouldn't be happening. We're not going to even have time to talk about the plane load of Guatemalan children the government was trying to deport that was narrowly stopped.

0:01:13 Matt: And I think that's going to be held up. We'll keep a watch on the Epstein situation. Looks like a lot more might be coming out soon. There's an interesting civil war happening between the Republicans.

0:01:21 Jenessa: Hell yeah. Hmm.

0:01:21 Matt: And we're not gonna talk about it today, because I think that by the time you hear this, maybe things will be moving. So we'll pick it up again next week and see where we're at. Today, we're going to talk a little bit about how things are going in DC with the different attempts to charge people. In relation to protests, we'll see how things are going with the Alien Enemies Act, which is something I've been following very closely for quite a while now. I get some amazing news from the Fifth Circuit on the Alien Ememies Acts that I have to say, I don't know that I expected it. I don'T think this is actually what I expected them to do. So it's pretty exciting. And then we've got from Charles Breyer, we talked a little bit about the Posse Comitatus litigation that was going on in California about the Guard. And that's something to keep a watch on because, of course, Trump now wants to send the National Guard just about everywhere. And this is not going to be binding in those places, but I think it's a very good analysis and I think we should go a long way. Then we'll talk about what is going on with tariffs.

0:01:52 Jenessa: Mm-huh. Yes. Yes.

0:02:09 Matt: I think you've got some material on that. Potentially good news? Seems like good news.

0:02:11 Jenessa: Please don't run screaming. I'm not going to try to explain economics, but we can explain the decision and its importance.

0:02:18 Matt: Well, I think those people already ran screaming last week when we tried to explain the Federal Reserve, which neither of us really understand. But once again, we are lawyers, not economists, so don't write. It is very important that we talk about that tariff decision because it's also good news. I have to say it's pretty much what I expected, but we'll see how it's being teed up for the Supreme Court to look at tariffs. And then I've got a footnote on what is going on in Brazil. And I don't mean to make the entire country Brazil footnote, but this is a little outside of our jurisdiction usually, but it's very good news for justice and potentially a great model for how we should be doing things now that we've got better taste of authoritarianism. Brazil's already pretty familiar, unfortunately, with dictatorship. So there's a lot to cover, a lot of good news. And certainly a lot of not great things happening too. I'm going to acknowledge that. But let's talk about the good stuff. We'll come back and get going on that.

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0:03:06 Matt: All right. Just wanted to pick it up quickly at the beginning. This joke has already been made so many times, but I'm just going to say it one more time because it's such a good joke. It turns out the Department of Justice can't indict a ham sandwich. You probably heard about Sean Dunn, who threw a sandwich at ICE and National Guard officers in DC. He's not actually the only thing we're talking about. I just wanted to lead with him because it's the case that most people have heard about. But he was at a protest where he was yelling, you know, why are you here? I don't want you in my city. There's a lot of this going on in D .C. right now. People are not happy with, you know—the guard's not doing anything, and ICE is certainly running wild. And this is a guy who's a former DOJ paralegal, so he's pretty involved in the federal government. And they tried to charge him with a felony for throwing a sandwich at an ICE officer. And let's see, I'm looking for the indictment here. The video depicts Dunn screaming at V1, the victim in this case, within inches of his face for several seconds before winding his arm back and forcefully throwing a sub-style sandwich at V1. I do like how they have to specify the kind of sandwich, right? Because just

0:03:26 Jenessa: Oh, yeah. Forgot about that. Forcefully. Like, what's the other option?

0:04:14 Matt: A softball underhand. I guess you got to make sure it's not like a T-style mini sandwich or something. It also doesn't say if it's a six -inch or 12 -inch, which I feel like is really relevant and what it was loaded with.

0:04:25 Jenessa: Yeah I mean like if he filled it with rocks maybe it would matter oh

0:04:30 Matt: All the jokes have already been made about submarine warfare and all the other obvious, obvious jokes about the Delhi assault here, so I will not make those jokes. But I will point out that the grand jury declined to indict, even though they had a video of him throwing something at an officer, which is actually a federal crime. And there's a trend now. In the last week, just this week alone, four DOJ cases have not gotten through the grand jury. Related cases like this of people yelling at ICE or protesting or otherwise getting in people's faces. And of course, as I'm sure you know, it's very, very rare for a federal grand jury to not return an indictment, and not just say, sure, there's something here, go ahead and take it to trial. So, you know, this is an interesting sort of peek at what's going on right now, because obviously the people of D .C. are not happy. Obviously the people of D。C. Are sitting on grand juries. One of the cases they couldn't indict was actually somebody who made a pretty serious threat against the president. Now, I don't think it's something that anybody thought that she was going to do, but she said, I am willing. She didn't say she was Going to. She said she's willing, which which I would argue is first matter, might make a difference. I am willing to sacrificially kill this POTUS

0:05:36 Matt: By, it gets better, by disemboweling him and cutting out his trachea. Yeah. With Liz Cheney and all the affirmation, I don't know what the affirmATION is. It's in caps. I have no idea what that means. It sounds like an indie band. I didn't look into it. So DOJ brings her in and she actually doubled down and said that Trump was a terrorist and a Nazi. And I mean, this is the kind of thing that does get people sent away during the interview.

0:05:42 Jenessa: Oh dang she said that to the doj that takes balls man

0:06:03 Matt: Yeah, it should take a lawyer to tell you not to do that but uh you know I guess she went without brave got through all that and did not uh get prosecuted now again don't threaten the president on instagram or social media or anywhere else don't say that you're gonna disembowel him like none of this stuff is gonna work out well for you you will get a visit from the secret service uh and it's only I think because she lived in dc that she was fortunate enough not to be

0:06:06 Jenessa: Yeah get a lawyer so you're saying that because a dc grand jury you're thinking at this time the The people living in D .C. are fed up.

0:06:30 Matt: Indicted yeah and unless there's like an actual serious dangerous violent crime happening it seems like they're not very interested in indicting protesters which is great because this is these are overkill these charges they also refused to indict someone named sydney reed who tried to stop someone from being taken by eyes I will say, in the not-so-good news, Sean Dunn, the sandwich thrower, they couldn't proceed on the felony except, of course, a grand jury. But they did proceed on The Misdemeanor under 18 U .S .C. 111, which is the catch -all I've been talking about for a while. It's kind of a dangerous statute that essentially is anybody who interferes with or harasses or annoys or intimidates ICE, which can be a broad range of conduct. They've been using this statute quite a lot. I've been keeping a Watch on kind of its range. So he's still potentially facing federal charges, but big difference between federal felony and federal misdemeanor for someone with no record. Just a little note there to say that the grand jury system is doing its job, and this seems to be pretty frustrating to DOJ, so good news. All right, the really big thing I wanted to talk about today, though, was the Fifth Circuit was taking up the matter of the Alien Enemies Act, which, just to remind everybody, there was a presidential proclamation in March 2025 in which the president basically deemed Venezuelan men of a certain age, over 14, to be subject to the Alien Ememies Act, which is a 1700 statute that's hardly ever been used. The most notable use of it, unfortunately, was the internment of the Japanese and Germans during World War II. So the Alien Enemies Act was very clearly on its face designed for what they call invasions or incursions, and not just random Venezuelans with tattoos in the United States. Because in this presidential proclamation, he's essentially saying that he reserves the right to designate people who are here from Venezuela, who they believe to be members of Tren de Drago, which the boogeyman this term. I've been hearing a lot about TDA actually recently, not the same way we did at at the beginning. I think they actually did deport a number of TDA members, and it turns out there just aren't that many of them here. It was always kind of an overblown boogeyman situation anyway.

0:07:19 Jenessa: Interesting. How big could a gang possibly be?

0:08:20 Matt: TDA is pretty big. I mean, they're international. They're throughout South America, but they're based in Venezuela. Again, there are not that many of them there, and they don't last long, usually. As I'm sure we've talked about many times, as I'm sure you're familiar, they put together a plane load of people, including quite a few people who later turned out not to be gang members at all. They had absolutely no evidence other than their tattoos. And they designated them AEA members and flew them down to El Salvador. And there were a lot of other people that didn't want to be sent to El Salvatore, obviously. The Kilmer Obrega-Garcia situation was pretty unique because he was Salvadoran with an order of withholding from El Salvador, but he was already subject to an order to El Salvador. He just wasn't supposed to go to El Salvador. And generally speaking, the real debate has been about third country removals, which are people who have removal orders and can't be executed for one one region or another. They can't send them to the places they're from. So for example, now just I think today, they've announced that they've signed an agreement with Uganda to start taking people. They've designated a safe third country potentially where they can send people who are seeking asylum, but also they're going to take some of our deportees.

0:09:20 Jenessa: So wait, Uganda is going to take people who are coming to the U .S. seeking asylum, which is totally legal, which is a thing we're supposed to do under international law. We're going to be like, we want you to go to Uganda instead? That's a thing?

0:09:31 Matt: So as insane as that sounds, a safe Third Country Agreement does actually allow us to send people who are seeking asylum at our border to a completely different country to seek asylum. Yeah. So without allowing them to apply.

0:09:47 Jenessa: That's so wild. So even before they apply, they come here and they're starting to say, I seek asylum. And before they even finish the sentence, we're like, welcome to Uganda.

0:09:58 Matt: Pretty much. But the Alien Enemies Act deportations, and I hesitate to call them deportations because they're not deportations. The reason the government was so intent on using them is that there is no due process at all. Basically, the government designates you this thing, and then they ship you out. So you're not seeing an immigration judge. You're not getting federal review. You're not getting anyone, and this has come up obviously throughout the appeals on this. No one actually has to even confirm that you're from that country, let alone that you'RE a gang member.

0:10:25 Matt: So it's potentially very dangerous. And this was our concern, is that they were trying to find the the most extreme possible thing that they could do with the least amount of due process and just ship people out. This has been up and down. And again, as usual, as we're doing everything now, there's a lot of shadow docket activity on this, but it did make it up to the Supreme Court and they did a kind of a midnight injunction in a per curiam decision to their credit. This was one of the small credit type things. It wasn't the full decision I wanted, but I pulled the initial injunction on this. And they found that, the thing I didn't like, is they found the proper venue was actually in Texas, not DC, because they were trying to bring all these claims in DC because they're moving people around and they said you know because this is where the government is and they have to do this on habeas rather than through the administrative procedures act which is a whole other question the real holding from this was that notice has to be provided in some kind of due process and then they remanded it down to the fifth circuit to see if there should be a preliminary injunction because this was just an initial starting temporary string order we

0:11:15 Jenessa: And the the Fifth Circuit is one of the ones we don't trust very much correct

0:11:20 Matt: Really don't know it's generally speaking I mean it's you know often been nicknamed the fifth circus and it has all kinds of nutty things coming out of it and it does have a couple of judges at least who seem to to be right-wing enough that they really don't care about the law, like truly, in a way that is scary. Maybe we didn't get those judges on this decision. Maybe this was just so obviously the right thing to do that they actually did it. I don't know. This was sent back essentially to ask some questions about if there should be a full preliminary injunction pending all this. Because right now, this is life and death stuff, right? Because we're talking about an injunction that keeps the governments from snatching people off the street, designating them alien enemies from Venezuela or whatever, and just sending them out of the country without a hearing. Now, the notice that the Supreme Court ended up requiring that was upheld, and the Fifth Circuit does uphold this, is essentially a piece of paper they hand them that says, we're designating you an alien enemy. You have some basic habeas rights. If you want to file the claim, here's how you do it. There are lawyers standing by in these places that are generally watching for this kind of stuff, but it's still pretty dodgy.

0:11:30 Jenessa: You mean standing by like literally in the physical location at the courthouse or oh oh

0:12:20 Matt: No, I mean, just generally. In the areas where the detention centers are, the ACLU has been very active in other organizations. But again, that is still more due process than is guaranteed under the statute, which is really nothing. Thing. They just found there has to be some kind of protection somewhere with this. And as we discussed when we talked about the AEA the first time, this is something that by definition is not very reviewable because you're talking about an executive order that's typically involving war and wartime, and the courts do not want to get involved.

0:12:46 Matt: It's like the last thing they want to get involved in is wartime decisions. But of course, you can't just say that we're at war with Venezuela. And it is actually, I'm sure you've been following, but they're basically trying to start a war with Venezuela right now. And there are a number of reasons that'd be advantageous, but one of them is the Alien Enemies Act would kick back in automatically if they're actually in an actual war. Yeah.

0:13:02 Jenessa: Right god damn it no well

0:13:07 Matt: So we could just be deporting Venezuelans like crazy at that point with no real need to justify it.

0:13:12 Jenessa: I mean at that point it would be like the Japanese internment you wouldn't even have to be a member of the gang right

0:13:19 Matt: We can just designate all citizens of Venezuela to be alien enemies that they're all, you know,

0:13:22 Jenessa: Well and again if there's no due process, we can also just designate you and me are Venezuelans, like whatever.

0:13:30 Matt: Yes, and nobody's going to check it. Yeah, no. And And this is, as we've always said, you know, this kind of exception, these states of exception these emergency things never go anywhere good. And there is nothing, nowhere near the kind of urgency that you might need to justify anything like this. We're not talking about sleeper cells of Venezuelans all over the country, ready to rise up and defend Maduro. Like this is the people, I know a lot of Venezueans, and they came here to get away from that government universally. And also because the country's in really bad economic shape, but there are actually real threats to their security, to their lives. As we've discussed before the best thing we could do politically would be to actually protect them but we're not going to do that because we just that's not our wiring this is an interesting case because the fifth circuit is looking at something this is kind of a test in an authoritarian kind of way this is a very authoritarian thing to do to test reality right to say like how far into reality do we actually want to look and they actually look some distance into reality they take a quick look at the case law at the beginning this is george w bush appointee wesley southwick it's a pretty good opinion he starts out by saying that because there's not a lot of case law obviously on the Alien Enemies Act, it's hardly ever been used, that judicial humility is particularly appropriate here. A decision must be made for acceptance or rejection by the Supreme Court in this and some other case. Our analysis leads us to grant a preliminary injunction to prevent removal because we find no invasion or predatory incursion. Conclude in the current record that the updated notice satisfies due process and remand for further proceedings. The remand is going to be interesting

0:13:58 Jenessa: That's why they're here. Yeah. Mm hmm. Mm hm. Oh, mm hmm.

0:14:56 Matt: As they obviously continue on to figure out how much notice is available, what the courts can find, how much of a hearing do you get to determine if if you're a gang member, because obviously the Alien Enemies Act was not written with gang members in mind. They were thinking about maybe like a Pancho Villa kind of situation, but right, right, like militias from an enemy country that may or may not be sanctioned by that country that are just doing border excursions, right? That's pretty common.

0:15:07 Jenessa: No. Being at war. Yeah Oh,

0:15:19 Matt: They have to actually look, obviously, to get the full preliminary injunction, they have to look at likelihood of success and the merits. And the biggest question on the merits is, should the Alien Ememies Acts apply to any of these people? That's pretty clearly no, but they go through the analysis pretty well, and they find that it's not an invasion because it turns out, ready for this, we define an invasion for purposes of the AEA as an act of war involving the entry into this country by a military force, or at least directed by another country or nation with a hostile intent. So they say straight up, they're going to succeed on this. Remember, there was kind of that juked up intelligence report where they were trying to suggest that Venezuela was directing TDA members to come here, that they they worked with TDA, and that's just not true.

0:15:58 Matt: There is corruption, obviously, and some people are bought off by gangs, but the Guinness Women's Government has really been trying to fight them. They don't work with them.

0:16:04 Jenessa: Yeah I mean that would imply that they are the government essentially which is the whole point is that their government is at war with this gang

0:16:09 Matt: And the gang is not helping the government. They're also looking at predatory incursion, which that's maybe a little bit more of a question, but it's still not a question because they find it has to be unauthorized entrance by units of another nation's military to commit acts that are destructive to the interests of the United States.

0:16:27 Jenessa: Yeah so again you'd have to be part of that government not some yeah random group of people

0:16:33 Matt: Also that these are sort of short -term incursions, just kind of popping over, doing some damage and leaving, not people who are just living

0:16:39 Jenessa: Also like not for nothing but this should really only apply to like canada and mexico they're the only people we share a freaking border with like somebody's probably gonna find for me some other country we share a border with I don't know yes my new position is justin trudeau is our deepest enemy no that like this all is like the way this is all written sounds like a like traditional war ground invasion and like

0:16:49 Matt: Here oh I thought you meant that the only countries should be our alien enemies I was a radical new position for this program it is

0:17:13 Jenessa: That that's basically physically impossible for the united states like this This doesn't even make sense to exist to begin with. Where is this supposed to come from?

0:17:22 Matt: At the time when this was written in the 1700s they did have people coming over from canada we were at war

0:17:28 Jenessa: Oh, I always associate this with Japanese internment. So I associate it with World War II, at which point it would also be extremely silly because like manifest destiny, we control one ocean or the other. So that makes more sense when it was like literally there was a giant colonial war happening over here. Yeah.

0:17:49 Matt: Yeah and we were just very aware of our borders but also that package of bills the alien enemies act and the alien friends act andthe alien and sedition act the sedition act the other one you've heard of generally seem to be too far

0:18:00 Jenessa: Yeah. Yeah, I don't like it either way. At least it's just slightly more logically possible when we had contested borders at all.

0:18:09 Matt: This is a very important thing for them to say out loud they say there is no finding that this mass immigration was an armed organized force or forces I mean I know it sounds stupid you have to find that but they do need to find that it is an action that would have been possible when the aa was written and the aea would not have covered it the aaa does not apply today either that's a really important point they're actually just in case you're going to go originalist on this they were familiar with the concept of maybe a country would send over a whole bunch of people at the same time just to live in your country, right? Just kind of what Crump is saying. There was actually, there's this rumor for many, many years. And you can imagine the way conspiracy theorists ran wild even before the internet. But throughout the West Coast, there was this rumor that any day now China was preparing an invasion fleet that was going to colonize the West coast.

0:18:49 Matt: We don't know. We do not have CNN and the internet. And like, you know, China is this very scary, faraway place. And there was a lot of anti -Chinese sentiment in the West cost, basically just take over and colonize West coast.

0:18:56 Jenessa: And they were going to come over and then what? Okay. Oh my god.

0:19:01 Matt: They would outnumber us because there are so many of them. Yeah. But, you can see how that thing would get going, how people would believe these kinds of things. So they're making the the point that yes, this was something that another country conceivably could have done, that anybody could have thought of this at the time, that maybe they could send a whole bunch of colonists essentially to just sort of occupy our space.

0:19:17 Jenessa: It is hypothetically, theoretically possible, but that doesn't mean that is what's happening.

0:19:23 Matt: Sure. But you think about the entire Western territory that was hardly touched at the same time, and how hard that was to regulate at the time. And it's conceivable. And the Fifth Circuit is very clear to Trump that they want him to deport people he thinks are gang members. They want him to do it with the existing law, which already allows you to deport existing gang members, like that's just, you know, They're like, just put them through the process. Do it the actual way you're supposed to do it.

0:19:43 Jenessa: People act like it's so hard to deport somebody, but, like, really, if you're not here legally and you are committing violent crimes, it's pretty easy to get somebody out, right?

0:19:56 Matt: It'll go a lot faster. They still have to go see a judge. They still Have to confirm that you have that conviction. So yeah, this is really interesting all around. I was very happy with the way this came down. The dissent, of course, is pretty predictable from Andrew Oldham, who's a pretty hardcore Trump appointee. And I just wanted to read a bit of his whining. It's very long. This whole thing is 185 pages combined. So I wasn't going to read the dissent.

0:20:17 Matt: But from the dawn of our nation, until President Trump took office a second time, courts have have never second -guessed the president's invocation of that act. Not once. They've hardly ever invoked it. I mean, it's part of it.

0:20:27 Jenessa: And the time they didn't second -guess it was Korematsu, the Japanese internment, and everybody's ashamed of the fact that we didn't Second -Guess it. Like, God. Yeah yeah

0:20:35 Matt: And Supreme Court themselves soft overruled it, basically said in so many words in Trump v. Hawaii that it was no longer the law. No, you're absolutely right. And they make the point at the beginning, it has only come before the court at all for three times ever. So that's not really much of a reason. We've just never questioned it because most presidents know better and nobody's ever tried to use it outside of war time. It just makes a lot of sense. He's going as far as to say, and this is what I would expect out of the Fifth Circuit. This is honestly what I was halfway expecting the majority opinion to say. Determining whether the AEA's preconditions are satisfied, whether there is a declared war, any invasion or predatory incursion, being perpetrated, attempted to threaten, depends on matters of political judgment for which judges have neither technical competence nor official responsibility. Whether it's a declared War, something you can read about in New York Times. They're supposed to pretend. Right.

0:21:28 Jenessa: Literally saying that that we've just come full circle on like did does congress have to declare war or like are all these wars we're getting ourselves into not really wars he's just like yeah war subjective you know are we really at war are we not at war like this is an illegal

0:21:47 Matt: Who's to know? And just wait until we've always been at war with East Asia, Eurasia. But just the idea, though, that judges do not have the technical competence or official responsibility as a matter of fact -finding to determine whether or not we're at war. But also, the fact of whether we're war or not, such a black and white binary Binary thing. Like, this is not a balancing test. Is there a war happening? Right.

0:21:51 Jenessa: Word it's literally your ass job who does if they don't have that competence who does

0:22:16 Matt: Only the president. And it used to be Congress. It's been a while since we had Congress actually declare a war, but now we just bomb Iran apparently.

0:22:23 Jenessa: Yeah like we've been complaining about this for decades that we keep getting ourselves into conflicts that we refuse to call a war because if we called it a war we'd have to admit that we did it without getting congress's authorization and this guy's a judge and it's like yeah you know whatever come

0:22:34 Matt: So, yeah. Yeah. There was a point at which I remember reading not that long ago that the list of countries that we were officially in hostilities with, not at war with, but just any kind of hostilities, that list was classified. So you can't even find out. As a citizen, you can even find out, as a voter, which countries you could be drafted to be sent to, or that your son, if he joins the military, could be sent. Those are things you should know.

0:22:53 Jenessa: On I feel like you should know that when you sign up oh my god

0:23:03 Matt: Yeah. I'd like to see that list first, please.

0:23:04 Jenessa: Oh it's chaos all right

0:23:07 Matt: If we're going to be occupying France, I know they get better food, at least. So, all right, that's it for the Fifth Circuit. I was happy with this decision. It's being remanded again to finish out the case. We'll be watching it, obviously. But this is a sign that even in the worst appeals court in the United States, that they're not going to go along with completely made -up nonsense.

0:23:26 Jenessa: Yeah so where we ultimately land is they are saying this does not meet the definition of a war an invasion none of the core terminology is being met here so the whole act just doesn't doesn't apply at least well enough to hit our preliminary injunction and to remand

0:23:40 Matt: So yeah, right. And so they're saying there is a high likelihood of success in the merits. And also for reparable injury, I thought this was interesting, something else you usually have to prove for this. They made the point, as I'm very familiar, that just just deportation itself is not considered to be a irreparable harm. But they're saying this kind of deportation is, like potentially when you're being sent back to, you know, when you were sent to El Salvador, the SICAD, like that's pretty harsh harm potentially.

0:24:02 Jenessa: It oh oh they acknowledge that

0:24:13 Matt: Yeah. No, they actually said this is sort of like different in kind. And also the fact that this is not really a deportation, right? It's just a thing that they can do to people. It's not legally a deportration. They're just throwing them out of the country without anything. Yeah, I appreciate it that much too. This is more Fifth Circuit appreciating, I think, that I've ever done in one place, certainly for the longest time I've ever done it so let's move on before I get too too much fuzzier we'll be back with uh let's talk tariffs when we get back why not let's do it

0:24:25 Jenessa: That's impressive yeah been a

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0:25:57 Matt: Let's talk about something that really fits our theme today of the government just saying that there's an emergency and the court's finding that there isn't and of course this is on the aspect of all this we understand the least which is tariffs and that's fine we will move on we'll talk about the full decision I'm sure another time especially once this gets to the court supreme court will be talking a lot more about it but we had previously talked back in february when the uh court was at court for international international trade? Is that the one the federal court we're dealing with? Yeah. A court that we definitely both knew existed. We just couldn't remember the name of, obviously. So moving on.

0:26:20 Jenessa: Well, yes, I totally

0:26:29 Matt: And of course, decisions from that, because they're a federal agency, go to the federal appeals circuit that only handles federal agencies. Is that how that works?

0:26:28 Jenessa: Yeah they handle well so I knew them from they come up a lot in law school with they do patents and trademarks. So unlike the other circuits that are geographically based, if you have a patent case, if You have a trademark case, doesn't matter where you are in the country, you're going to the federal appeals circuit. And international trade is also going there. Things like federal employees, if they're suing over their public benefits, that kind of thing.

0:27:07 Jenessa: There's certain jurisdiction uh that is rather than geographic it is subject matter based that they handle and so it's definitely helpful in this one that they have exclusive jurisdiction over this international trade so we're not going to louisiana with this case yeah

0:27:23 Matt: Yeah. Makes sense. It's a pretty good design because everybody's affected everywhere throughout the country and they certainly would have grounds. So it's good to limit it to one circuit. This is a big one, though, because we talked about the lower court decision that is essentially questioning about how much this is an emergency. And I'm seeing that this came down a little differently, actually. And we'll just acknowledge this and kind of move on. But they actually found that regulating importation under the Economic Emergency Powers Act, the AIPA, which, again, just very briefly, that the president does have the right to impose some kind of extra financial regulations or trade regulations that he wouldn't otherwise during certain kinds of national emergencies related to economic things. He declared an emergency, what was it, based on two things, I think. Based on the trade deficit itself, and then also just the fact that there is a trade deficit, because he doesn't understand what it is. To him, it's like, oh, yeah, it is so bad.

0:28:05 Jenessa: There's quotes from him about like we have unfair trade of a deficit of just him using a whole bunch of economic words way worse than I do which is impressive so it part of his emergency was that the emergency is that there's an emergency is practically how it's written um some of it was like border crisis drugs crossing the border and then some of it was just we have a true economic emergency and the emergency is they're making more money than

0:28:47 Matt: Exactly. Yeah, no, I mean, a trade deposit doesn't have to be good or bad. But to him, just it is always that language of like who's getting one over on us? Who's winning? Like we're losing somehow. We're the losers in this. I don't know. Maybe we don't need to import, you know, as many pancakes as we export or whatever. I can make our own pancakes. Could have just gone with guns or butter, the usual, but I had to go with pancakes. Anyway, so yes, we're doing our best, folks.

0:29:06 Jenessa: Us that one job one thing to come up with oh don't ask us for economic advice but when it comes to the legal side of this it's it's a different story I think

0:29:23 Matt: Basically, though, we talked about this before that there was the set of tariffs that were just because we don't like the way trade is going. And then there's a set of tariffs that's based on our border and China, also where they're alleging the opioid and fentanyl issues that are coming through. The interesting thing to me about how this ultimately came down from this court is they basically found that the power under AEPA doesn't include tariffs. Not that it wasn't necessarily an emergency, but that you just can't do that. The president just can'T unilaterally impose tariffs. So I think that's a pretty good decision.

0:29:51 Jenessa: It's really important to point out you know if we were once again in the land of oh he can just do whatever he wants well then why wouldn't he just declare tariffs and that would be the end of it why does he you know I'm sure he didn't personally do this why does his lawyers sit down and try to tie it to a national emergency because maybe we can get it through with this thing because they do actually think they have to follow the law they do understand that in normal times congress decides the tariffs so if we want the president to just unilaterally impose tariffs we're going to have to come up with some legal basis he's not just a dictator so I think that's important too to read through and see the ways they tried to to come up with a legal justification and it is very silly and the court finds that the justification is very

0:30:45 Matt: It is. And that's very good point. And it's make is that there are things, and I know people hate it when you say this online, but there are things the president actually can't do. And you can't actually force all of these people, I mean, I guess on pains of quitting or whatever, but like, this is not like the military where they have to follow your orders. All of the people involved to impose a tariff, there are quite a few of them, right? And if they generally are of the opinion that this is something the president can do, and I'm not just talking about CBP and everywhere else, I'm just, I mean, there's this huge bureaucratic system that is required here. So I don't know, maybe that's significant, maybe Maybe it's not, but there's just degrees of how hard it is to implement policy. And when your policy can be implemented by guys with guns that you order around, that's pretty easy. But again, and I guess you could send a guy with a gun to every agency and every person, every employee of the government, stand there with a guy and watch them impose tariffs. But these kinds of levers of government are a little harder to move.

0:31:13 Jenessa: Silly yeah yeah it's worth pointing that out here too is like well what if he ordered some other agency to do something like why did they go along with this until we get this court order because this is customs and border protection why those two are attached who could could say but the head of customs and border protection is just like a grade a douche and he's gonna do whatever trump wants him to do that guy could have said no congress sets tariffs like go ahead and try to force me by suing me and but of course he didn't right so why does trump sometimes write a executive order that's ridiculous and have it get followed when he has some toady in charge of the department and you can still sue and stop them which is what's happening so sometimes it just takes longer it depends on who's the head of what department and what department he's telling to do what there's reasons it's happening it's it's not chaos there is an underlying logic happening here

0:32:04 Matt: So sure, sure, right, sure. As is the case with all three of our major subjects today, the administration still sat sat down and in some cases came up with ridiculous conclusions, but they presented something that resembles the law, which again, it's bad faith. I feel like I'm almost defending them here. This is, you know, I'm not right, but there are still any number of employees. I mean, most of them, the federal government, they're going to need to see that there's a legal authority or a court order that allows them to do things because they could be prosecuted later. It is possible under a future administration for completely illegal activities.

0:32:53 Jenessa: No no no let's be clear it was bad faith and and ridiculous and contrived. Yeah.

0:33:11 Matt: There are people who are liable here that maybe Trump couldn't pardon. I don't know. Maybe this is all just a naive tangent, but I just feel like it's worth noting the difference between military occupation of cities, which I am very concerned about, and which can be easily implemented, especially when you're talking about an agency like ICE that's really only accountable to the president, is assisting, and tariffs, which require a vast machination of government of people who don't have guns to implement. I don't know. Maybe it's just because I know less about this, but it's a important difference.

0:33:37 Matt: My point is that this is a victory, obviously. We'll see how it goes getting up to the Supreme Court. I wouldn't be surprised at all if they found that the president has authority to to impose tariffs? Sure.

0:33:46 Jenessa: I I think this will be a big test, honestly, because it does seem very straightforward in terms of like, if he can just declare an emergency that's extremely contrived, and then stretch the powers he's allowed to exercise under an emergency to its most extreme and then the supreme court just says well you know he's the president I I think that would be really bad news I think that would be really dangerous so fingers crossed that is not what happens trump did of course immediately say we're gonna go to the supreme court I think tomorrow like he's just you know talking out his ass but they are gonna going to apply for expedited review. I think that's what he meant.

0:34:34 Matt: Like the gang member issue we were just talking about, that court reminded immigration authorities that they still have plenty of other options for deporting gang members. And I was looking, I mean, there's so many other options. For tariffs, potentially, especially if you believe that countries have taken unreasonable or discriminatory actions that negatively affect our trade, you can definitely, there is actually a law for that from 1930 for retaliatory measures. We can do retaliatory tariffs. That's what some of these here are saying that they were. But he's doing them all under IEPA and it's just not going to go as far.

0:35:00 Jenessa: It's not like Congress has never passed and contrived stupid law. Like, the problem is that you can't get Congress to do it right now. So you're trying to do it unilaterally. That's the issue.

0:35:14 Matt: We'll see. And there's a lot more to talk about And there's a lot more legal stuff on this I want to go deeper on, but we should move on to our third example of the courts severely limiting the president, not only just telling the president that he can't do something, but telling them the entire framework is wrong.

0:35:29 Matt: So we'll come back and talk about what's going on in California.

0:35:32 Matt: So this incredible trial that I thought should have gotten more attention in which Charles Breyer, who's the brother of Stephen Breyer is sitting in San Francisco as a federal judge and being asked to consider whether the president sending troops to LA to assist with law enforcement is a violation of the Posse Comitatus Act. Now, the thing that jumps out immediately to me when I first thought about this, and as I was thinking about it again today, reading this decision, Posse Comitatus Act is a criminal statute. It is not a civil statute. It is a crime to order the military to act as law enforcement, to do domestic enforcement. And I really like that design. That's a lot more of a straight up, you really shouldn't do this, right?

0:36:12 Jenessa: Yeah.

0:36:12 Matt: Like, you're not going to get sued. You're going to go to jail. That's what's super interesting about this trial is that Pete Hegseth, unfortunately, is is not being charged with a violation of the Posse Comitatus Act, because that would require somebody somehow who is willing to charge him with that crime.

0:36:25 Jenessa: But one could is what you're saying.

0:36:28 Matt: Yeah, it seems like pretty bad design when you've got a criminal statute that you know could never be enforced against the sitting administration. Right.

0:36:34 Jenessa: Oh, yes, because who's going to do it?

0:36:37 Matt: If the administration really is in on the idea of, you know. But I think the idea is to punish rogue. And this is when it's been used before. I think we talked about this. I think the two people convicted under it ever were soldiers individually. And Breyer is making the the point that it's never really been brought against a government agency before. And obviously, as he noted from the beginning, Trump, unfortunately, can't be held for any kind of crime here. So potentially, though, Hegseth could, and the other people who are implementing it. So it's a really serious thing because the founding fathers, turns out, did not want the military doing police stuff. That's why we have most of our constitutional rights, because the military, the British military, was in the streets, pulling people out of Boston houses, searching their papers and properties, beating them up, arresting them and holding them without habeas, all the stuff that we'd have guaranteed now.

0:37:19 Jenessa: You're seeing one could get together a posse and arrest Hegseth. Oh, my God. This is going to get really messy really fast.

0:37:25 Matt: Yeah, it's true. It's true, we could get our own Posse.

0:37:33 Matt: Posse Comitatus, I've been fascinated with from the beginning because there's so much interesting stuff, and it's such a patchwork of stuff. Because the exceptions, and one of the major questions in front of Breyer is what Trump has done here, which again, of course, as always, all the things we're talking about, emergency justification for something that's not really an emergency. The original thing that kicked this off were protests in LA, people mad about ICE, and, you know, they were getting rowdy, but it wasn't anything that the LAPD couldn't have handled. They very specifically said they could have handled it. And it's something that Trump really wanted to do on a pretext, and this was the pretext. And everybody knows it. Breyer knows it, and he's very clear about that. And I love that, his clarity in this decision. The provision, as we talked about before, that was used here has never been used this way before, not quite like this. 10 U .S .C. Section 124063. Now, again, there is such a patchwork, as I said, such a mess, such a mangle of Insurrection Act statutes. There isn't even one Insurrection Act, it's just sort of a collection of statutes, informally called that. And then there's some things that may or may not be exceptions to the Posse Comitatus Act. And one of these is this section 124063, whenever the president is unable with the regular forces to execute the laws of the United States. So very specific circumstances, and it's always been very unclear how this fits into the Insurrection Acts. And he actually finds that it is not an exception to the the Posse Comitatus Act, he not only finds that, he says that the court is unaware of any person, government lawyer, military or civilian official, court or

0:38:55 Matt: Commentator, or commentator, who has made this argument other than defendants' lawyers.

0:38:55 Jenessa: Yeah that's incredible because he's even saying they're like even your favorite federalist society law review article is not making this shit

0:39:11 Matt: Saying it's a direct exception. Yeah. He does find also that the testimony was pretty clear that everybody involved believed that the PCA applied. They all thought they weren't supposed to be doing domestic law enforcement. But here's what happened. They had a very ambiguous training. And he gets into the facts here talking about how in their training, there's a list. Actually, he has a picture of the slideshow of the PowerPoint here, where during training, they're being told, here's the prohibited functions. Here's the things you can't do. And it's a pretty long list of all the stuff you'd expect that only the police do, that we don't want military doing. But in red, in the middle of the list, in red they wrote security patrols, traffic control, crowd control, and riot control. And they said during the training, and they said that this came all the way from the top of the Department of Defense, that those four things listed in red were subject to what they were calling a constitutional exception. And this constitutional exception is not in the Constitution. It's a made -up thing. And it's something that I think Nixon also argued that inherently that there is a constitutional right that's never really been tested, that the Constitution says it is the executive's responsibility to protect federal persons and property. So just automatically, they get to do whatever they want if it has anything to do with federal persons of property.

0:40:01 Jenessa: Up what okay the extent to which people will like confess to crimes on camera in writing is insane to me they so they had the list instead of being like let's take the list of stuff you're not supposed to do and just delete the part that we want you to do because that will be confusing they were like just highlight it in red and say that you can like what the how do go ahead and and create Exhibit 1 for the

0:40:53 Matt: There's definitely an exception to this. Yeah, that's what they said. Well, it gets worse because at trial, the defendants took the position with Breyer that there didn't even need to be an actual threat to federal property personnel or functions to deploy. They just had to have a preventative measure. They said they could just deploy anytime they felt like it was necessary.

0:41:00 Jenessa: Case against us. Oh my god. They can just preemptively be worried about federal property? Hmm.

0:41:22 Matt: Yeah. That was actually something that was told to to them in training, was that as long as they're defending federal personnel or property, they could do some law enforcement action. So that's just obviously wrong, and everybody responsible for that should be liable to prosecution under the Posse Competitus Act, because they're inciting people to do it, or instructing them to do It, literally. So he goes through some of that, the training. He also talks about their actual actions, which are pretty shocking. He mentions up front that the troops and the ICE agents were both wearing camouflage. He said even people who know camouflage couldn't possibly tell the difference between these federal officers and the National Guard, and that's a problem. Problem. He said it on the stand that the Los Angeles field director for ICE and the major general who's in charge of the National Guard could not tell the difference.

0:41:59 Matt: And when they're shown multiple pictures, they couldn't name which personnel they're looking at. So that's a problem.

0:41:59 Jenessa: Even when they had time to like look and think about it. That's that's pretty intense.

0:42:07 Matt: Federalized Guard troops went along with 75 % of ICE arrests during this period. And they also did some other random DEA and FBI stuff. So there's not anything resembling this mission. He talks about Operation Excalibur. They always have these cool names for their cool operations, these operators. You might've seen these pictures. They went through MacArthur Park in LA and they just did these draconian just sweeps of the park, just ten abreast walking through. It was ridiculous.

0:42:31 Jenessa: Yeah, I love those videos because they're just walking through and I'm like, you're in an open field. I can tell you with 100 % certainty because I have two eyeballs, there's nobody in front of you like great job everybody all right

0:42:41 Matt: I really appreciate it. He drops a footnote on Operation Excalibur. Footnote, Excalabur is of course a reference to the legendary sword of King Arthur, which I appreciate. Thank you for the context. But then I really Appreciate this little note though. This is the perfect use of a footnote, comma, which symbolizes his divine sovereignty as a king.

0:42:51 Jenessa: Thanks

0:43:03 Matt: Isn't that great? He's like, yeah, look at that. You're telling me that you're a king? I'm telling you're not.

0:43:01 Jenessa: Oh that's a dig. Nice job

0:43:11 Matt: I did appreciate that footnote. I mean, why else would you put that in there? We all know what this sort of, I mean we don't all know, maybe it doesn't matter, but I like that little detail.

0:43:16 Jenessa: I don't think that the administration is smart enough to have done that I just think they think that word sounds cool but but that was a that was a sharp dig on his

0:43:27 Matt: That's a great footnote one of my favorites in a long time. You might have heard the story about the raid they did on a cannabis farm, which many years ago of course would have been because it was illegal, but it was actually because it was an ICE raid looking for undocumented workers at the cannabis farm. And he makes the point that was 80 miles outside of LA. There's no federal property to be seen. And yet here you've got troops helping to block traffic and stopping people and questioning them and doing all kinds of stuff they're not supposed to be doing. So it's a pretty easy analysis. And it goes through. And what I really appreciate when he starts the legal section of this is he cites Marbury v.

0:43:57 Matt: Madison right up front to remind you that it's the province of duty of the judicial department to say what the law is, one of the the most famous quotes in U .S. legal history. And then the next case he cites is Trump v. United States from last year, the immunity decision. And he says, if the president claims authority to act, but in fact exercises mere, quote, individual will, and quote, authority without law, the courts may say so. Isn't that great? That's a quote from Trump vUS, that if the President is just completely acting out of line, just doing something because he wants to do it, the courts can say so, and as John Roberts says it doesn't mean that you get to convict him of a crime, time, but apparently you can say something. So he's taking his right to say something now.

0:43:57 Jenessa: End incredible that feels like such a shooting at your feet kind of move like a watch it of you're getting real close to the lot even the line they drew there which was so exceptionally generous I'm quoting it to tell you you're coming up to even that line you are beginning to approach oh

0:44:57 Matt: After that, he gives the example from numerous quotes that both Hegseth and Trump have provided in the last month or so about how disgusting Democrat cities are and how they have destroyed their own cities and how we have to send the National Guard. So obviously this is all undermining the very serious intent that they had when they sent people into LA. So there had previously been a stay, a preliminary injunction that the Ninth Circuit had imposed on his previous finding that the National Guards should not be in LA. And that was an injunction he'd put in at at the time they reversed that injunction. The Ninth Circuit basically said, this is an executive thing. We can't get that involved. Very similar to the Illen enemies act kind of thing. So now we're going to trial on the posse comitatus issue to see if there's a violation of the cop possecomitatus act. And this is a weird hybrid thing because as he points out, it is extremely unusual to see an injunction under a criminal statute. Think about what that means for a minute.

0:45:43 Matt: Because you're not looking for civil equity relief here. You're looking for someone, you know, potentially be charged with a crime basically, right?

0:45:48 Jenessa: That'd be like saying stop breaking into my house it doesn't make a lot of sense right

0:45:55 Matt: But it's in a situation where for some reason someone's not going to be charged ever with breaking into your house. And we all know it. So we're getting a criminal injunction, essentially. He said this is an appropriate circumstance for criminal injunction, even though they are generally disfavored, because we need a clear statement from the court to say, you are going to commit a crime if you do this. You are in clear violation, knowing that nobody's going to prosecute that crime, but it's important that the courts say that there's a crime happening. So that's where we're at here. And he goes through and he talks about the stay that the Ninth Circuit had previously imposed. And I've never seen a lower court criticize a higher court this much for imposing a stay on their decision is really interesting. He's not being too mean about it, but he's making it very clear that he does not agree with the Ninth Circuit. So he says basically that the Ninths Circuit had imposed this stay and that the courts could only review the way that he's invoked 12406, the thing that he used to federalize the guard, to determine if there's a colorable basis and if it's made in good faith. The Ninth circuit did not clarify those standards. For example, it did not explain how a plaintiff could challenge or how a district court could evaluate, especially on an expedited basis, a presidential invocation of 12406 for lack of colorable basis or good faith. Nor did the Ninth Circuit suggest that courts are well -positioned to evaluate whether the president acted in good faith." And he has so many good points here. Breyer is clearly seeing where the wind is blowing. He understands this in a way that I feel it's such a relief, honestly, to see a federal judge actually

0:47:18 Jenessa: Yeah yeah

0:47:18 Matt: Understand the stakes. Sotomayor is the one who's consistently been doing this too, right, Jackson? But to see it, a district court judge at the trial level saying directly, I know what you're doing. I see you. And so here's something that was kind of a terrifying footnote, but exactly the thing that's been on my mind. The Ninth Circuit's test would likely enable a president to use federal law enforcement agents to stoke tensions and then use any resistance as justification to call out the National Guard. And that's what we've been saying forever, is he's going to say there's an insurrection, right? And by causing an inspection, by making people mad about immigration enforcement or detaining somebody like Mahmoud Khalil, right, that is so clearly that intersection of Palestine Stein and ICE is so explosive, right? And he says that as long as the president actually believed that the resistance significantly impeded his ability to execute federal law, it's hard to see how a court could find that he acted in bad faith, especially under the Ninth Circuit standard. He's saying that even if we all know that he purposely instigated this and then called on the National Guard, as long As he believed he needed to call on the National guard, we'd still have to find

0:48:14 Matt: Good faith. Then he gives a bunch of examples. Yeah, good.

0:48:14 Jenessa: Right so you have to put this barrier up because otherwise you could have a totally peaceful protest going on which is your first amendment it right and he shows up and puts his people in place to purposely instigate violence and that out in the open let I mean like imagine the the most ridiculous scenario where somebody says hi I work for the president I'm about to purposely institute violence I'm doing it on camera high and that would still justify it in that case if it turned violent now he'd be allowed to like Like, obviously that can't be the test, if there is violence, now the National Guard can come in. That can't be the line.

0:48:51 Matt: Then that's exactly right. He does the thing that I love so much in the law, where you just take it and you're like, all right, let's play this out. Not a parade of horribles, but just like, how weird could this get? And he comes up with some scenarios. He says that the president, using IRS data, could show that the percentage of corporations and individuals are using tax shelters to avoid paying taxes and claim he's unable to execute the tax laws. I would love to see him call out the National Guard on Jeff Bezos and Elon Musk, but it's not going to happen. Exactly. Perfect. That's exactly, yeah. The president relying upon EPA studies showing showing that pollution at a river can't be defendably traced back to a specific manufacturing plant, could claim that he's unable to execute the Clean Water Act, right, and send a National Guard to factories.

0:49:21 Jenessa: Just invade Delaware. I'm liking this more and more.

0:49:38 Matt: Yeah. I mean, this is martial law for social justice. Yeah, the president relying upon health data, showing people present in hospitals narcotic -related symptoms, could claim he's, I mean that one's conceivable because they already used it to try to deal with tariffs, right, to talk about drugs as a, yeah. So the president relying upon anecdotes from state election officials, here's the very scary one, that voting machines are glitching or that fraud exists, could claim he's unable to execute the election laws.

0:50:02 Jenessa: He's already talking about this. Yes.

0:50:04 Matt: Exactly, and that's where he nails it, because he's saying right up front, the phrase that Charles Breyer uses in this decision, which we're going to talk about anyway, but I knew I had to talk about it today. He talks about how the president now has a national police force. That's the expression we should be using, and he says, you know, we can't do this. We can't have a national police force, that's on page two. It's exactly the kind of thing that we're not supposed to have. He's specifically talking about the intention that they've stated to put 19 states calling up National Guard to send them into training right now to send to blue cities a year ahead of the election and getting used to the idea of a presence of military in the streets for an election. That doesn't happen here. That's not how we do things. And certainly in Reconstruction, that's different, but this is something. So no matter what comes of this, Charles Breyer is a hero. He is a legal hero for this decision. Of the things that we're talking about, I think this is the one that they can certainly just overrule the most. It's the military. They can do whatever they want at the end of the day. This is something that I'm not going to say the judge is necessarily going to stop in the way that I am convinced that he can stop bureaucrats from carrying out the Own Enemies Act and the tariffs in their own way.

0:51:13 Matt: It is all degrees. We are talking about degrees of awful here.

0:51:14 Jenessa: Yeah. No, but I think this is really great that he's coming out with such clarity on it and and calling out not just ludicrous things, but also ludicous things the president has threatened to do. And, and, you know, the whole thing is premised on this idea that like, oh, these blue cities are so dangerous. And like, hey, me and you both live in one of those. And today I walked to the grocery store and I did not, in fact, have to like put on a flak jacket and camo and hide in the bushes I walked there in my flip -flops like it's not actually like a war zone but they are literally talking about it like these cities are war zones and that's total propaganda if you live in a rural place and you're not sure I can assure you we're fine we're safe and we don't need this and we're all doing great. It's fine.

0:52:09 Matt: Demonstrably, Boston is one of the safest cities in America. 24 homicides last year, 24. And I live in East Boston, which is a majority immigrant neighborhood. And I walk the streets as I will tonight, all hours of the night to get home. Never had a single concern for my safety. And Casey takes walks down to the park in the middle of the night, 11 or 12 at night, never thinks about it. Come visit. Come see for yourself. Anyway, that's enough of that. So this is good stuff. We'll see where it goes from here, obviously. And I'm not going to sit here and pretend that a one federal judge can completely stop the president from doing what he wants to do if he wants to do it. But as with the other things we're talking about, there are other people who know that they could be on the hook and Trump certainly could pardon them all. But this requires a lot of people to act in conspiracy together if they want to completely overwrite a court order like this. So I'm not saying it couldn't happen. I'm just saying it's something to watch. And then we do have so many good judges on the bench that are willing to enforce the law as written. So speaking of that, we're going to come back over a very quick footnote. I have a lot to to say about this. We'll keep it brief. But we're going to talk about what's going on in Brazil, speaking of judges actually holding people accountable. So we'll be right back with that.

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0:54:46 Matt: Footnotes I usually pick because they're kind of fun or interesting. I also just like to choose things that are unequivocally good news that we can talk about on the way out of an episode. And we've had a lot of good news this episode, but this actually fits the theme of a government standing up and saying, this is too far. You have gone too far, we're holding you accountable. And that's what the judges were doing in these cases. And that is what the Brazilian legal system is doing to Jair Bolsonaro, who is, as you may know, he is basically the Trump of of brazil he's actually a lot worse than trump in all kinds of ways he's been an extremist his entire career he's pretty dangerous guy and the things he has said over the years about pretty much every group that you would think he would say things about is so much worse even than trump so trump's awful but bolsonaro has his own kind of awful I've known a lot of brazilians worked with a lot braziliens in my practice love brazil I haven't been yet I gotta go but I've worked with brazillians across the board who have different opinions about bolsonaro there's certainly plenty of them that love him um but most of the brazillions I know do not maybe that's why they're here. But obviously, he's not the president now, fortunately, because there was a plot on January 8th. Their January 6th was actually on January 8th, and it was a lot worse. But it was January 8th 2023, not 2021. And this is a plot. There's no other way to say it. We still don't really know exactly the full contours of what happened on January 6. We may never know for sure who was involved with what or who knew what. I'd still like to know how my congressman's emergency stuff was removed the night before.

0:56:03 Jenessa: Openly?

0:56:03 Matt: There is a lot of stuff that I really think needs to come out still. But there's no arguing this, though, that the January 8th was much worse. It was a sustained attack on all three branches of government that was led by Bolsonaro, the president, to keep Lula out of power. Oh, yeah, I mean, we know now. It wasn't as open at the time, but they have fully figured the whole plot out. And the only reason it didn't work, he's trying to get himself back into power. The only reason that didn't works is that enough of the military didn't go along with it. It. Brazil has a long history of dictatorship back and forth for many years. And I've met plenty of older Brazilians that remember living under a dictator in the 80s. It wasn't that long ago.

0:56:41 Matt: Most people in Brazil don't want that, but there is a pretty healthy amount of the population that is okay with fascism, as there seems to be in every country now. And Bolsonaro has got the kind of classic strongman kind of deal. He was an army captain and carries himself that way and has the tough, strongman thing going. Bolsonaro made his name prosecuting corruption and talking about how corrupt all the elites were and all the stuff that you would expect.

0:57:02 Matt: Tried to get Lula out of office. Lula back in office. Very good from as much as I know. Point is, Bolsonaro had people outside a Supreme Court justice's house ready to kill him on the day that they were also invading the legislature and the executive branch. They had like full on, yeah, they were trying for an actual simultaneous assault on all three branches of government. It wasn't directly inspired by January 6th. And it actually, it sounds like at the time from what I saw that January 6 actually got a conversation going in Brazil about how this could be heading their way because they've seen enough, the kind of MAGA movement going on in Brazil, that people might be willing to take that kind of action. But there's an 884 -page police report just against Bolsonaro alone in Portuguese. Obviously, I didn't read it, but I've got a summary here. But it found that Bolsonaro planned, took action, and had direct and effective control of the executory acts carried out by the criminal organization that sought to execute a military coup and dismantle the rule of law. So that's pretty direct. You're saying the former president was trying to take power again through a full -on military coup and had total planning power over it. So this isn't like Trump being aware that some people might do some things on January 6th.

0:57:14 Jenessa: Oh dang. Wow. Yeah. Yeah, wow hey

0:58:05 Matt: So he's charged with attempting to abolish Brazil's democratic order by force, plotting a coup d 'etat, leading an armed criminal organization, committing violent acts against state institutions, damaging protected public property, because there was a big kind of January 6 style invasion that caused a lot of damage. The maximum for all of this apparently is only 40 years in prison. You would think you'd be getting multiple life sentences in this country, if not executed for treason. But yeah, I don't

0:58:26 Jenessa: You know what time's time I

0:58:29 Matt: 40 years for Bolsonaro, it's a life sentence anyway. But he's also being charged with some of his closest allies. His defense minister, security minister, his Navy commander, the head of the Brazilian intelligence. This is a real coup. They just didn't get quite enough people on their side. The trial's been going for a while, and it's going to be wrapping up, I think, by the 12th or so. We'll have a verdict pretty soon. I'll be able to talk about that. But I just think it's so instructive that Brazil has lived through these times. They know what dictatorship leadership looks like. And they know enough as a democratic society not to allow those things to happen again. I know that we haven't been through that kind of thing, and maybe it's not as natural to follow it or to care about it as it would be if you've already lived through it. But it's such a national

0:58:36 Jenessa: Guess wow yeah yeah yeah

0:59:09 Matt: Shame that January 6th is now remembered the way that they're trying to rewrite the history and the complete abandonment of prosecution for pretty much everybody involved.

0:59:17 Jenessa: I the pardoning that was focused on like individual civilians and like the real focus needed to be on the people at the top and particularly the government officials who were involved I feel like we never got real accountability for that.

0:59:33 Matt: Yeah. And Brazil will. Brazil is going to find out exactly who did what, and that's how it should be.

0:59:38 Jenessa: Hell yeah.

0:59:38 Matt: And I want to I'll point out too, just as we're going out, that the Brazilian dictatorship did not just collapse overnight. It was a sustained popular movement of people in the streets, a million and a half people at a time, just out in the street demanding direct presidential elections. And it's unfortunate to get that far, but the history of Brazil alone is living proof that you can have peaceful change. And obviously, dictatorship did horrible things to people, but it didn't require a civil war.

1:00:00 Matt: They were able to get through and change their government the way you're supposed to.

1:00:04 Jenessa: Awesome.

1:00:05 Matt: Brazil is a success story in a lot of ways, and I'm just very happy to be able will see this. I hope that... I don't know what I hope. I was going to say next time. Yeah, I don' t hope for next time, but if there were to be next time let's learn something. Good job, Brazil. And I think that's all for today. Any other closing thoughts?

1:00:18 Jenessa: Yes, exactly. I hope there will not be a next time.

1:00:27 Jenessa: No, I love it. I feel like we had some, some good people holding the line today.

1:00:32 Matt: Courts standing up for the actual rule of law. It's possible. It can be done. And it does mean something. And please don't tell me it doesn't mean something because it's already working. But it still takes that combination. It can't just be the courts. It takes what Brazil learned that you have to organize and you have to get people out. And I think that there's a critical mass at this point that's willing to do that. And we're out there with you. So we'll see you next time.

1:01:38 Matt: I don't know. Maybe we don't need to import, you know, as many pancakes as we export or whatever. I don'T know why I came up with pancakes, but we can make our own pancakes. I don' t know.

1:01:43 Jenessa: That one job, one thing to come up with.