Florida Judge Says Congress Can't Make Noncitizen Voting a Federal Crime

Transcript

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

0:00:34 Thomas: Hello and welcome to Opening Arguments. This is episode 1303. I'm Thomas. That over there is Matt Cameron. How you doing?

0:00:42 Matt: That happens when you start putting out a fire and you realize the thing you're putting out the fire with is on fire. Ever had that one?

0:00:47 Thomas: Yeah. I think you're just talking about fire. It's just all, everything, all fire. Just. Just, yeah.

0:00:51 Matt: Just everything's on fire. Yes. Just that kind of a day. But very happy to talk to you. And we've got a lot of great stuff to talk about. It's actually good news. We have majority good news today, which I didn't have to try that hard to find some good news. So I'm hoping that helps.

0:01:05 Thomas: And it's, in fact, so under the radar. Matt has sold me on under the radar stories. He wouldn't even tell me what they were before we go. So I'm as curious as all of you.

0:01:10 Matt: Yeah. We got some good ones and a very funny footnote, but let me tell you very quickly, just we in time for this major criminal prosecution in Minnesota, in which they're indicting a bunch of people for unlawful voting, a federal judge in the Southern District of Florida has struck down the federal statute that makes it a crime to vote if you're not a citizen.

0:01:33 Thomas: What? Oh, boy. There's. There's so so many moving parts to that. I'm not sure what I'm rooting for in any of the situations. That's so funny.

0:01:41 Matt: Yeah, it's really, when I read this, I was like, no, that can't be what he did. He only did it for one person so far, but the logic is pretty hard to argue with.

0:01:47 Thomas: I don't think you can just knock out a law for one guy, can you?

0:01:50 Matt: I know.

0:01:51 Thomas: That guy doesn't have to do that.

0:01:52 Matt: I don't really understand that. Exactly. This person can vote illegally and everybody else. But it's a great decision. I want to show you what he did here because it's really something. And then we have another fantastic decision about... I don't know if we've talked about this yet, but something I was very concerned about because I keep seeing this with clients now. Trump administration did the thing that the Trump administration loves to do, where it dredges up some law that nobody's used before and then just uses the hell out of it. What they've been doing is fining people for being in the United States. I don't know if I've told you about this, but yeah.

0:01:55 Thomas: Yeah. You all, though, you're under arrest.

0:02:20 Thomas: Finding them? I don't think you have told me about this.

0:02:23 Matt: Yeah, this is quite an accounting opportunity to figure out fines as they add up here, because it comes out to $998 a day with inflation. So you can imagine if you've been here for 20 years and such, we're getting some pretty massive fines. So that was finally stayed. And I'm very happy about that because it was really under the radar. It was one way that they were punishing immigrants that was really devious because it's civil, right? It's just so much easier to do. Prohibitive and it ruins people's lives. They really think they're gonna have pay this money back. If nothing else, it means they can never immigrate because they owe the United States $2 million or whatever. You're talking about a single mom with two jobs and two kids, she's not going to come up with $2 million. It's just not going to happen.

0:02:26 Thomas: Yeah. Huh. Yeah. Yeah. No, obviously.

0:03:00 Matt: They Know it. Great news on that front. And then I want to talk about the big immigration case for the term. We talked before last week about the third country removals case, which I think is going to be the other one, but the one that is actually going to make the most difference to the most people. And it's an issue that's been brewing since I brought this up with a secret memo that we weren't allowed to read last year. I think we were the first people to report on this. And now it has become something that the Supreme Court is going to review on cert. So I want to kind of bring it home, explain what's going on, tie it back to the original reporting I did on this back when this was just a fantasy that ICE attorneys had all the way back in the midst of 2025.

0:03:00 Thomas: There's a sparkle in Ice Attorney's eyes.

0:03:37 Matt: And now it has gone all the way to be reviewed by Samuel Alito. Yeah. I'm not optimistic to be honest, but I mean, It's an interesting issue. It's another one of those where the Trump administration has decided that the sky is yellow, and we're just going to go with that. So there's all that. And then I promise for everybody, even though we already got plenty of good news, I found a hilarious footnote, a very, very fun footnote very funny footnote that involves a gorilla that does not exist and a federal agent playing the role of lifetime. Time. And a lot of gorilla shit.

0:03:41 Thomas: Boy. Cool. Cool, cool, cool.

0:04:04 Thomas: What? Okay. Wow. I when you think about it, most stories involve a gorilla that doesn't exist. Just in there somewhere. Yeah. Yeah.

0:04:12 Matt: I'm not looking at one right now. Just as we speak,

0:04:17 Thomas: I don't know if I mentioned it. There isn't a gorilla in this story. Yeah. No, I assume it's more specific than that. Sounds fun though. Can't wait.

0:04:17 Matt: There's not one right here.

0:04:26 Matt: Yes. It's a good time. Not on fire right now. We're going to sit and have a good time and talk about... That's

0:04:29 Thomas: It was five minutes ago for Matt, but now it's all fine.

0:04:32 Matt: Right. But I am at rest. Here we are.

0:04:36 Thomas: Can't wait. All right. Well, we'll take that first break. Let's see what's going down. Do we have anything to announce?

0:04:41 Matt: I do have an announcement. Yes. So quick book club announcement. We're going to be reading, and I'm sorry for the late start, but it's not a very long book. It's a great book, but it's called Into the Woodchipper by Nicholas Enrich. He's one of the senior people at USAID, or he was. It's Nicholas Enrich's account from the inside of what it was like to be told to dismantle this institution that he loved so much, and that he'd had a big part in, and sort of the ways that you can, as somebody inside the system, when you're being told to do that, do what you can to preserve it for the future. And it's a really interesting look at a good guy trying to do the right thing. It's October, so it's our legal horror story for the month. It's literally called Into the Wood Chipper. So I thought that was pretty much.

0:04:54 Thomas: Yeah.

0:05:16 Thomas: That one, I'm probably going to, I might read that one. Did you say there was an audio book? I think I asked you. Okay. Yeah, I'm going to do that.

0:05:23 Matt: There is. Yeah, he'll read it to you.

0:05:24 Thomas: That's such a, bigger story than it gets credit for, you it's everybody you hate against everything that's good.

0:05:26 Matt: Yeah. And you get to hear from somebody who really believes in the institution and the the tragedy of realizing that he's gotten to this point in his career where he's doing really well and suddenly he has to do this. That's an interesting read.

0:05:40 Thomas: Well, that's the monthly book club, of course. And, you know, we get the usual Lotawful movies coming at you later this month and all that good stuff. Off patreon.com/law and avoid the ads, all right, we'll be right back.

0:05:54 Thomas: Matt, under uh the radar, story numero uno of

0:05:57 Matt: Yeah, you got it, sure. You've been hearing about the Trump administration's absolute obsession. I'm going to cross a little bit over into Genesa territory here. I think you might have talked to her a little about this too, but they're just obsessed with the idea that people are voting illegally. And we've talked about it certainly back and forth. I just read that ICE now is being told with every ICE arrest that they have to ask people a whole bunch of questions about if they've ever voted. And I'm sure that they'll get honest and not at all coerced answers from everybody that they talk to. Coming up to the midterms, it's the Trump administration's obsession. I'm sure they're going to tell us that we're going to have a massive blue wave in November because of all of the undocumented people who just rushed out to vote because that's what they're here for.

0:06:31 Thomas: Yeah, I mean, they, they know what's coming, so they've really got to prep the the lore, they gotta do the world building ahead of time.

0:06:37 Matt: Exactly. Things, we talked last week about the massive complaint that's been filed against pretty much every district court judge in Minnesota. The same time they were filing that complaint that week, I don't know if I mentioned this, but they also brought a massive voting fraud case. And it's across multiple years and all these different people. They basically tried to find whatever examples they could, the worst examples of people voting without permission. I had never really questioned the fact that the federal government has the right to charge you with a crime if you vote in a federal election illegally. But we have a judge who has not only questioned that, but has struck the statute down. So I'm going tell you what's going on here. Sending you is the decision entered on the 1st of October by David Leibovitz in the Southern District of Florida. And we've got a very good Florida federal judge here. This is USA v. Chelsea Michelle Ann Cox.

0:07:23 Matt: And she is a non-citizen who is alleged to have voted. I believe she's Jamaican. I think the best way to explain this is for you to read the introduction to this order because it's really well written, I really appreciate Judge Leibowitz's commitment to writing something that everybody can read.

0:07:35 Thomas: This is an unusual, usual criminal case. It rests upon a 40-year-old federal statute, uh, blah blah, that prohibits the act of voting in a federal election by a non-US citizen. Until very recently, no federal court has been presented with the following question about that statute: Did Congress have constitutional authority to enact it? Huh, that's interesting, that's unusual all by itself, there's a footnote.

0:07:58 Matt: Yeah. It's actually, I'm gonna have skip this for once I know we'll

0:08:00 Thomas: I a skip a skip of a footnote that must be a particularly bad one, but yeah. Yeah, yeah. Do you want me keep going?

0:08:04 Matt: Come back to others But yeah. I know, so that's the setup is like, did Congress have the power to criminalize federal voting by people who are not citizens like that? You would think that wouldn't even be a question.

0:08:15 Thomas: Yeah, I would think that wouldn't really be a question. Okay. But This case is even more unusual than that because the government's principal defense of the statute's constitutionality invokes a single Supreme Court case that is very, very weak. Let me say that a different way. Wow, that's a weird... What the hell is this writing? Okay.

0:08:18 Matt: Let's keep going.

0:08:31 Matt: I like it. It's very conversational.

0:08:33 Thomas: Let me say that a different way, period. Okay. The leading case cited by the government to uphold the statute is of minimal precedential value. That's not my characterization. It's just Justice Scalia's. We'll get to that. This was dictated or something. Was this read like just spoken and then some. OK. And the application of other binding precedent shows that the government's leading case simply does not control this one. So why does the government lead with such a weak hand? Because it's the best hand it can play. And why is that? Because the text, the structure and sorry, you said this was a judge.

0:08:46 Matt: I like it.

0:09:05 Matt: Yeah. Isn't it great?

0:09:06 Thomas: No, it's weird. Sorry. I mean, I get that like it's probably Probably because you like where it's going, but it's a weird style for a judge.

0:09:14 Matt: I think it's very refreshing because he knows that people are going to hear this holding and be like, what are you talking about?

0:09:18 Thomas: I guess, man.

0:09:19 Matt: Right? I guess they want to read it.

0:09:19 Thomas: I don't know. Asking me rhetorical questions in the middle of this thing? And why is that? Because Because the text structure and original public meaning of the Constitution show that, in italics here, Congress does not have the constitutional power to enact the statute. Right.

0:09:33 Matt: And let's take a look at the statute before we continue. I'm going to send it to you remember, of course, as we know, voting is regulated by the states, and that's part of his point, Florida, of course, already has a state statute that says that non-citizens can't vote in federal elections, but she's being charged under the federal statute. He's saying, of course, the state has every right to do this, but the federal government doesn't.

0:09:40 Thomas: Oh, right.

0:09:51 Matt: 18 U.S.C. 611 is the statute in question. It shall be unlawful for any alien to vote in any election held solely or in part for electing any federal office." Basically, they list off all the federal offices. You just would not think that that'd be an issue. Basically, the only exceptions are if you might be a citizen by the operation of law, which happens with your parents sometimes, that if you believe at the time of voting that you're a citizen, which could happen. You can definitely have had people who believe they're citizens citizens who aren't. It does happen. So those are the only exceptions. And he's going to explain why Congress actually did not have the authority to pass this statute. And I really think this thing has legs.

0:10:22 Thomas: Right away when you said, like, well, the states have a law about this, it's like, oh, yeah. That's I mean isn't that a basic kind of preemption or whatever the heck it's what is it called uh it's the federalism stuff right I mean there is that stuff where it's like the states can do it or the federal government can do it but if the federal government's going to do it it has to like specifically preempt the states right

0:10:25 Matt: Right, But you'd think this might be a federal preemption because we're talking about federal elections." And federal people. The heading says it all, right? The Constitution grants the states And not the federal government the general authority to pass voter qualification laws. And.

What he's saying is this is a voter qualification law because it requires the federal government to go in and look to see if you're qualified to vote and of course, it's the federal government that determines whether or not you're a citizen, so you'd think that might be. But he's pointing out that the only case they're citing here, this 1970 Supreme Court case, doesn't really say what they say it says. And that as he says, even Scalia against them essentially.

It's just never been actually full-on looked at. And I just thought this was fascinating because I didn't hear anything about this this week at all, about the fact that a federal judge struck down one of the primary tools that the Trump administration is trying to use right now against non-citizens and to put forward its narrative that all of these people are voting illegally, which we already knew, like those of us who in are touch with reality already understood that this is not happening very often at all.

0:11:32 Matt: And it's much more likely that you're doing the kind of thing that a lot of Republicans have now been caught doing where They're voting in the wrong state, where they actually are residents of Florida and they vote in Michigan or whatever. Just going for all the potential constitutional bases that the government is saying they have.

They think that they have an elections clause the constitution, the election clause that allows them to quote, protect the integrity of federal elections, election clause does not actually allow them to voter for qualification. And that's something that's It's very important right now because we saw what happened with the USPS mess, the idea that they could mess with state ballots, right? That's just so sacrosanct you have to let the states do it.

And the election clause, of course, says that the time, place, and manner of holding elections shall be prescribed by the states, but only Congress can by any time make law or alter such regulations except to the place of choosing senators. So he's saying this just stretches it way past the textual limits that the states have to be able to say who can vote and who can't.

0:12:19 Matt: And: It's unconstitutional as applied to this one person who's being charged with this one crime, because this is motion to dismiss in a one criminal case. They're not looking for an injunction to say that the entire thing is struck down. But that is essentially what he's doing for this one person in this case. And I think that this is really helpful. I hope the Minnesota judges are looking at this. And I'm sure that there's going to be motions to dismiss now in every single one of these cases ever brought going forward, because this is pretty strong logic. I love it I just love to see it that you have a judge being this bold yeah, 40 years and there's A reason it's never come up because very few people are ever charged with this because it hardly ever happens

0:12:48 Thomas: It's just never come up yeah a particular kind of asshole for us to be in this position.

0:12:59 Matt: Exactly once again as with so many other things the trump administration has to push it to the limits to have us realize that this is actually maybe something that congress couldn't do at all

0:13:07 Thomas: Okay. So which part, yeah, I'm not sure I totally get it. Which part can they not do and which part can they can do?

0:13:16 Matt: What he's saying is essentially it is this statute, the way it's written, is that it is a voter qualification statute that you're saying that they were going to exclude certain kinds of people from voting in federal elections. And he's saying that is exclusively the state's job. Know, you can regulate other things about elections, but yeah, no, I know it's an interesting thought because you would just, I wouldn't have given it a second thought that the federal government can say, we determine who's not, who is and isn't a citizen. And therefore we can say that people aren't citizens don't get to vote and it's a crime. And that's part of his point, it's crime, it's a pretty serious thing, so we have to take it seriously.

0:13:29 Thomas: Really? Okay. Huh? Okay. So to clarify, does that mean a state could say that non-citizens can vote?

0:13:53 Matt: Yep, they can and have, and he said that's perfectly fine for Florida to do. And he said if Florida had charged her, yeah, no federal elections, because the states have to do it.

0:13:56 Thomas: Really? In federal elections? Huh. MAGA conspiracy theorists are not that wrong when they say that we could, like California could just be like, all right, all illegals, you get to vote. Am I crazy? How could that be right?

0:14:11 Matt: In terms of it's not a crime, I guess, I don't know.

0:14:13 Thomas: It's not a crime. Okay.

0:14:14 Matt: Yeah, we're getting into strange territory. But. He's talking about what he considers the worst problem with this section. He says, the voter qualification clauses are a foundational limit on federal authority, motivated by the framers' aversion to concentrated power. He says it's first impression, but this is the way it looks. I have to think maybe the Supreme Court would see it differently, perhaps, the way they've been handling the voting stuff. But it's just a really interesting out of nowhere left field decision that I did not expect, and I thought it was worth talking about.

0:14:32 Thomas: Yeah. Yeah. Yeah. And it's not like it's a federal judge. Judge it's not like it's nothing wow okay

0:14:46 Matt: Yeah, And then I've got another under-the-radar unexpected story, as to the fines I was telling you about. I'll tell you a little bit of the history here. This is a statute that, as I said, it's been around a for long time, but at least since 1996 when they had the big immigration reform. And at the time, the idea was it was $500 a day. The federal regulations allow anything in statute to be adjusted for inflation. So unfortunately, $500 a day can now be $998 a day, so the original idea of penalizing people for willfully failing or refusing, now this is part of the problem, for the purpose of the government here, is has to be willful, and there are people out there who just don't know they have deportation orders. This actually happens all the time, missed some mail, you didn't go to court. Milo Yiannopoulos, we've talked about just last month, ended up getting deported. He claims he didn't know.

0:15:27 Thomas: Well he might have willfully

0:15:29 Matt: He may have, hopefully. His official story is he didn't know. And there is some evidence he may not have, but hard to say. And of course, they have to put that in there as well, because what if you're doing 20 years for a bank robbery, right? You've overstayed for 20 years. They can't fine you for that. What we did in 1996 in the single worst immigration reform in world history, massive Massive changes to every part of the system.

A lot of the things I complained about in the immigration system were introduced at that point. And one of those things was the set of fines that come with all this. Now, there's a criminal version of this, as I said, but there's the civil version. Of course, anything that's civil is much easier for them to enforce, and you get far less due process. Much from 1997 until 2017, in the first Trump administration, it was not being enforced.

And even in the first Trump administration, because evil takes a while to get going sometimes, times. From what I saw, they charged 25 people with it during that time, and the total fines that got paid out came out to something like $4,500 or something.

0:15:29 Thomas: Done well I forgot

0:16:17 Matt: In 2019 alone, a they whole operation where they were targeting people who were living in sanctuary and churches just to really stick it to these churches. The time, they had to give you notice and they they had to give you a right to an appeal and you could take it up. The Board of Immigration Appeals basically upheld this.

There's a separate penalty for voluntary departure, which makes a little sense because with voluntary departure, you're being told by an immigration judge, you have this much time to leave. If you don't leave, it becomes a removal order. You've been given notice, you're in court. You can't accidentally get voluntary departure the way you could get an accidental removal order. So the voluntary departure one is also being challenged and that's also being stayed.

I'm going to say right now that the way the District Court of Massachusetts Judge O'Toole did this, I really appreciate it, but I think it's a little little too broad and I think he's going to get punished for it. I think he's going to get slapped down, I should say, because this to me resembles a universal injunction for reasons I'll talk about. I think it's little broad.

0:17:04 Thomas: Don't have those anymore more.

0:17:05 Matt: The Biden administration, of course, rescinded this when after the Trump administration set up this whole new rule. And then of course, Trump comes in, signs an executive order that becomes what we call the the, interim final rule for the imposition and collection of civil penalties is for certain immigration offenses. So this thing is harsh because it basically removes the notice, it removes any merit to an appeal, and it makes it extremely difficult to challenge. And instead of 30 days, you have 15 days, and it raises everything to $998 a day. So I've seen some of these bills. I mean, people have brought these in, and the best we could tell them was try to join this class action that's happening right now, this one that is just being settled in Massachusetts, which is now binding on the country, because there's nothing we can do for you. This is going to require impact litigation by the big guys. And that's what's happened. The big civil rights guns have come out. And this is just one of so many different immigration programs that most people haven't even heard of that has not even made the news.

0:17:55 Matt: And this is one of the most punishing ones. Short of actually locking somebody up, this is about the worst thing that you can do to them, putting this thing over their head. Because you're talking about people who get U.S. citizen kids that might have the right to immigrate in the future, even if they have to leave the country now. And how are they ever going to do that? If they owe the country this much money. They're never going to get visas. It's very intentional and it's extremely cruel. This is a really good decision. I really like the way that it's written. Not quite as conversational as the last one, but it's very straightforward and it's a little more complicated, but essentially, what's

0:18:22 Thomas: This one's not, you know what grinds my gears? These fines that they're trying to put on people.

0:18:28 Matt: The deal with these fines?

0:18:29 Thomas: I says to my wife the other day, I says, it's pretty much like it was boring

0:18:30 Matt: Pretty much. I don't know. I'm defending Judge Leibovitz.

0:18:37 Thomas: On that. Yeah. I don't know, man.

0:18:38 Matt: We'll link to it, but you can decide for yourselves, listeners. But I think Judge Leibovitz is pretty cool. I would hang out.

0:18:40 Thomas: It was weird. Yeah.

0:18:43 Matt: The rest of the decision, I will say, is written in a very straight-ahead Judge Leibovitz way. And like it's –

0:18:44 Thomas: Look, I'm not a formal guy. I'm very informal guy, But, like, I kind of expect federal judges are going to be that way. Like, somebody should be formal, right? Have

0:18:48 Matt: Sure, sure, though, so this is yet another thing where they're trying to make new law through regulation. That's what he's finding. They're actually changing the substance, not just the full procedure, and removing any kind of notice or appeal rights, essentially. Very much like the next thing we're going to talk about, just because you haven't used it, just because it's been dormant essentially for 20 years doesn't mean that it's not the law. But it is something you come to rely on. And suddenly when you come and just start doing this in massive amounts to the maximum possible to a whole lot of people at the same time, it's going to get judges' attention. Rule is pretty strict. Course, as usual, they skipped everything and they didn't do the proper notice and comment. That just seems to always happen.

0:19:30 Thomas: They ever done a notice in common?

0:19:32 Matt: Know the right way, even Obama did it wrong all the time. Oh yeah, they had all kinds of issues, some courts. Also a weird clash because there's the civil version of it and there's the criminal version of it. Civil one version has willful in it and the criminal doesn't. That's very important because there are lots of ways you could not It gets confusing. It is a mess. But I was looking around the world, and I could not find any examples. I looked up the UAE, right? Because the UAE famously, and a lot of the countries in that region, have extremely strict immigration laws. That is actually in that Douglas Murray video, the one part that I don't think we watched this part, but he was talking about how here in Qatar, they'll deport you on a dime, right? That's just like, they have very strict laws here.

And it's true. But the UAE, even if I'm getting this right, about $14 a day all visa types. And there's no official cap, but I mean, that could be a while, obviously. It could add up, but it's nowhere near $998 a day. And the other countries, I found something in Italy that there's actually a fixed range that can't be, I think, more than €10,000, right? I mean, again, it makes sense. It's a penalty. You have a removal order that's civil. You have to have a civil way to enforce it.

0:19:35 Thomas: Oh, really? Geez. Hmm.

0:20:36 Matt: I get all that. But to make sure the human face is on this, the two big plaintiffs here, both... One's Massachusetts nail technician, who's been fined hundreds of thousands of dollars under this section 1324D, which is the civil one we're talking about here. And the other one is just a regular woman working two jobs. She's under an order of supervision, which means that she's already known to the government. She's been allowed to check in with ICE, which makes it extra cruel, right? When you're suddenly saying out of nowhere, because you stayed here, because we let you stay here all this time, now we're going to fine you. She got a $1.82 million fine. And that was affirmed on appeal. She is now, this is why this is extra important to her, she's now a permanent resident. So now she's here, she's here lawfully, and she's stuck with this massive fine. Is really important, and it's such a massive weapon in their arsenal.

0:21:19 Thomas: See. So they've gotten around the intent thing by having it be a civil thing rather than criminal is what you're saying?

0:21:25 Matt: And again, when you're under an order of supervision, when you're being allowed to check in, which means essentially they're giving you a break for a while and letting you check in, and eventually they'll put you on a departure plan, make you buy a ticket and go home. But the deal you make with an order of supervision is I will keep showing up, doing my check-ins. And there's a lot of misreporting on this in the media, unfortunately.

I don't know how many times you've seen these stories, but there are so many stories of Florida mother goes to a routine ICE check-in. It's not a routine check-in. She has a deportation order, and they're checking in to make sure that she has not committed any crimes and still is at the same address and isn't going anywhere, and then they'll give her another year to come back. But that's not the same as an immigration interview where you're trying to get a benefit.

That is just them allowing you to stay here. So that's an important distinction. And of course, if they're giving you that reliance, they can't just come back around and fine you. You. That pretty much all of the very cruelest immigration policies, and of course we talked about one last week that is slipping through, but it was stayed for quite a while, third country removals, the worst of them are still being stopped routinely by federal courts and are not in effect.

0:22:19 Matt: We'll talk about one next that is on its way to the Supreme Court now, but a lot of the stuff has been blunted by good judges like this. This is how it should be. These are real people facing very real situations. I understand to a point, again, if you were told in immigration court, you are being ordered removed, you have this much time to leave, or you're getting voluntary departure and you have six months and you don't have to go. I understand the point of saying there should be a fine maybe, but we have to cap it at some point. It becomes cruel and unusual at some point when you're talking about millions of dollars for working people.

0:22:47 Thomas: Yeah, it's not like they're getting this money from anyone. So what do they do? Do They use it to just scare people more? Does it help them get people out of the country? Retrieve Oh, Because I see

0:22:51 Matt: Yeah, and keep them out Not going to get that visa. You owe them that much money. The interesting thing about the order is that it stays everything. It 65,000 of the fines they've already put out. It stays the rule itself. It looks a lot like a universal injunction. I think it's a little much under CASA.

I understand that it was good intentions, probably because he's going so far beyond these two plaintiffs, I think probably what he's supposed to do was stay it as to these two plaintiffs and say that we'll see about these previous 65,000, but going forward, you have to stay it. It's... I think the stay in some degree is going to survive, but I don't think the whole thing is. But he did a good thing, certainly, by trying to stop all of it.

But I'm just a little concerned about how broad this actually is. It's still a great decision, and I think the First Circuit is fundamentally going to uphold, this would have been a lot easier, Yes, just to remind everybody, of course, that was the first birthright citizenship decision, which had nothing to do with birthright citizenship, which said that you can't have a universal injunction against one federal rule that just applies to everybody that it might possibly apply to, that you have to narrow it down to the people in front of you. And conceivably, I guess that you have to have everybody who might be affected come in front of the court at some point, which is very stupid.

But there still was, we've talked about ways to get around that, different kinds of ways to form a class certification, which is what they should do. Like we should have an actual class certification now and just build that record. Think that there's going to have to be more developed on what willfully actually means for this purpose, because it's pretty broad and he doesn't really get into it as much. But this is promising. I still think it's a great thing.

And for now, just having this stay in effect and not having to have these people worry about it is well worth it. And so far, I haven't really seen anybody talking about it, so I thought we should.

0:23:40 Thomas: Importantly, pre that stupid CASA decision, this is fine, right? Completely, this is routine.

0:24:30 Thomas: What we do here, all right, well, this is awesome because this was just a really fascistic thing to intimidate people who really already don't need it and are some of the least privileged people in our society, society.

0:24:39 Matt: Likely to ever be able to pay it. And meanwhile,

0:24:41 Thomas: Yeah. Threatening them with bazillion dollar fines is just ridiculous.

0:24:45 Matt: Think about all of the corporate fines. I know this is such an obvious point, but all of the wage theft from these same people that has never

0:24:47 Thomas: Yeah. Oh God. And even when we do find a corporation, if you were to do the equivalent for these immigrants, the fine would be negative $5. It wouldn't even be anything relative to their purchasing power.

0:25:01 Matt: Exactly. The first time offense for knowingly hiring an undocumented person, I believe is $1,000 per person.

0:25:09 Matt: And that's how much they're paying per day under this order, per day. Reality of the law in this country and many places.

0:25:16 Thomas: So you say it's too broad and going to get, do you worry about this just getting struck down right away though?

0:25:22 Matt: Yeah, I think it's going to be narrowed down or struck down. I think it's still possible that the down of the past ones could survive, but it's going to have to probably come in front of the Supreme Court at some point. Don't. As far as I know, this is the first decision on this point, and certainly it is a national injunction, so I guess the judge thinks so too. Good news for now, and it is once again, the federal court's doing the right thing and stopping the very worst of this stuff.

0:25:42 Thomas: All right. Another good news story. Right, well, we've got to take a break and we'll be right back to talk Supreme Court.

0:25:51 Thomas: All right, Matt, Supreme Court, this uh, is their time when they're, they're on vacation, but it's a working vacation, you know, or whatever or they come back yet, I can't remember yeah

0:25:56 Matt: Still checking their emails, way back on July 18th, 2025, a beleaguered younger immigration attorney came to You and told you about a new secret memo that he had just learned about. And this was in OA if you want to go back and listen to that. And that at the time was breaking news that we were getting this confirmation that ICE was making an argument in immigration court that had never been made before.

0:26:06 Thomas: Wow.

0:26:23 Thomas: That feels like yesterday to me.

0:26:25 Matt: Yeah, I know. And rewriting reality, basically. And I went through the complete legal explanation at that time and what was kind of the state of the law and what was going on. And I can give you kind of an update and I can give you a summary here, but it is very complicated. But the essential thing you need to know is that there are two basic statutes in play here. To do the immigration lawyer thing. I'm going to refer to them by their INA citations, because this is how we do it, the Immigration and Nationality Act. Instead of referring to the actual U.S. code, I'm going to be talking about the INA because that's how I remember it, but it is still 8 U.S.C. 1225-1226. I'm not going to go through the entire legal explanation again, but what I will tell you is that there are two ways to treat people essentially when they're being held in custody. Well, there's only one way they're really being treated, but there's two ways legally to treat them. Either they're going to be eligible for bond or they're not, depending on how they entered.

Now, there's lots of other factors that determine whether or not they can be eligible for bond that mostly have to do with criminal charges. But in terms of looking at somebody and saying, does the court have jurisdiction to consider your, your case at all.

If you came on a tourist visa, as is about half the people who are here undocumented right now, you came on a tourist or student visa and overstayed it, there's never been any question court that has jurisdiction to consider your release because you were lawfully entered and inspected and you're put into removal proceedings under 1226, the provision that governs actual removal proceedings. Explain how important this is.

0:26:47 Thomas: Does that mean, yeah. You Yeah.

0:27:42 Matt: Because the Outcome of this case, I'm already getting technical on you. I want to make sure that we get the broader humanitarian view here. The outcome of this case will determine how many people are going to be held in ICE custody. And right now it is a lot because rule has been in effect since the time of the secret memo. This is the reason, just to set this up, this case is the reason why I've had to go get habeas petitions for every single person in ICE custody that we've been been Working with, except a few that did actually enter in visas.

0:27:42 Thomas: Oh, that's right. Yeah, because it didn't used to be the case that automatically you just get, you just go into custody.

0:28:07 Matt: No. And that you're held and you're mandatory, Right? The way the law views it is, either the way the law viewed it, I have to remember, this is not the law officially right now for a lot of places. If you came over the border without inspection, you are able to get a bond hearing, to get a review, because you're not what's called an arriving alien. You weren't somebody who was seeking admission. But if you were seeking admission, which means if you came in on what's called parole or another form where you're entering through a port of entry, your custody is determined by ICE and not by the immigration courts. And of course, ICE is not going to reconsider your custody. You can ask, but they won't. They've always had the ability to set their own bond, technically, and this used to happen a lot under other administrations where ICE would actually arrest somebody and then give them an order of bond on their own, right, without the immigration courts being involved. They could just say, you can come back if you give us $10,000. ICE has always had the authority to say bond.

0:28:12 Thomas: Yeah.

0:28:58 Matt: So the question becomes, who has the jurisdiction? Is it Immigration Customs Enforcement or is it the immigration courts, which of course are a division of the Department of Justice? It's always been a pretty pretty simple division the entire time I've been practicing right up until last year, that if you came on parole, you're ISIS jurisdiction. And if you came any other way over the border, then you're the court's jurisdiction. It's a pretty easy way to remember it.

And parole, again, just to remind everybody, this is not like criminal parole. This is just permission to enter the United States. And if you walk up to the border and seek asylum, then you're going to be given that. And a lot of people come seeking asylum over the border because it's the way that they're brought here. And it's easier the ports of entry have been clogged for a long time with people seeking asylum, and there's been these months-long waiting lists.

All comes down to the definition of what's called an arriving alien. And we talked to Aaron Reikland-Melnick about this as well. I talked about it in this episode I'm telling you about where we first brought it up. But you would think arriving would mean you just got here. Here.

0:29:48 Thomas: Yeah.

0:29:48 Matt: But no, the new interpretation under this ICE memo has been that it's anybody who's even if they've been in the United States for 20, 30 years, they're still arriving. They're still in the process of getting here. Bought a house, had three kids, got married, got a good job, but you're still arriving. They've kind of twisted things around and they've looked at some original source from 1996 that tells them that they think that they can do it this way.

There is an argument, I mean, I will still man this, I will say that it, it is possible that there might be some people in Congress who thought that this was what they were doing when they passed this law. I'm not going to say that's impossible. It is not how it has been interpreted for all of this time. There was one habeas petition that made some waves, I think it was in Washington State last year, that before all this kicked off, where a judge found this.

And then the Board of Immigration Appeals made a series of decisions that made us start to wonder if they're heading this direction, if they're going to get to the point where they're going to say that everybody who came over the border is an arriving alien who's subject

0:30:33 Thomas: What do you mean last year? I thought this happened, like, already.

0:30:36 Matt: To Oh, the beginning of last year. Yeah, so this is the November guys are going in July. I think they got some ideas. This idea had been percolating, apparently.

0:30:37 Thomas: Okay. I see. Okay. So it happened really fast. I guess. Okay.

0:30:43 Matt: Yeah, and this is actually more good news that I want to make sure I mention. At the time, ICE had huge plans to build these massive warehouses that we've talked about before that you might have seen. And they've been stopped. These things have become like the data centers of immigration. Nobody wants these giant human warehouses. And land deals have been canceled. Protests have worked. This is one place, and I think I said this at the time, where you can have so much local pressure because it's development. Anything that involves local development, you can stop if you get together.

This is one place where people can always organize. And these fights have been winning, even in deep red places. We have not yet had a single one of these massive inhumane warehouses built. We have plenty of other inhumane facilities. We've got got an alligator alcatraz and such. We've got plenty of other detention facilities. But I'm going to say it's one of the major wins of the Trump administration so far for the good guys, for regular people, for organizers and the people on the ground, that every time they have fought one of these warehouses, it hasn't worked.

0:30:55 Thomas: Right. Yeah. Yeah.

0:31:33 Matt: They were thinking at the time, they're gearing up for, we're going to be doing mass deportation. We're going to be holding as many people as possible. And the only way we can do mass deportation is to mess with the law, is to change the law so people can't get out.

0:31:42 Thomas: Well, wait, I thought we learned on Wednesday that buses really are what you need.

0:31:46 Matt: That's right. Messes are the way. And they didn't think

0:31:48 Thomas: They didn't think of it. They're not smart enough. They're not as smart as your heartthrob boyfriend, Douglas Murray.

0:31:48 Matt: Cupid. They're not listening. Douglas Murray, my problematic fave and my problematic crush. I'm trying not to get too technical here, but I really want people to understand the stakes that are going on because most of the circuits to consider this, pretty much every district court. And at one point, I've come back to this topic a few times on the show over the last year. At one point, I showed you a footnote in one of those footnotes that really gets me going.

One of those very exciting footnotes where it's pretty much the the whole page, which most people hate, but I just think is wonderful because I'm just a huge perv. Like, they're making a point in this footnote of basically like, here's every federal district court and every decision that has found this is wrong. Every time Every we bring these habeas petitions, we win because in Massachusetts, they have no patience for this. All over New England, we've pretty much never lost one of these habeas.

And this is happening everywhere. Again, even in very red states, the judges have have found across the board. And ICE just keeps filing these responses to our habeas that are like, well, you know, you found the same way the last 500 times.

0:32:43 Matt: You'll probably find it this way too. If you were to find this way, I guess this is what we have to do. They refuse to back down because this is the single most powerful tool in the mass deportation toolbox that they have, is the idea that we can't release them.

0:32:53 Thomas: My impression from you too, is it's just a numbers game of they're just getting away with what they can get away with, right? They don't care that the argument's bad.

0:32:56 Matt: Yeah, Exactly. And they don't care if every district court in the country disagrees with them, which is pretty much true, true. They're going to keep doing It because it means that anybody without a lawyer, which is almost everybody, is not going to get bond because they're not going to be able to go get a habeas within the time they need to do it. They're not going to be able to go do their own bond hearing.

You've just added a massive new step, a completely pointless step to the process in which you have to go to a federal court and say, well, here I am, here's the thing they're saying. And the federal court immediately within 24 hours basically just orders orders a bond hearing. In some cases, orders are released if they really don't like the way it's been done. This is the question.

This And is why I don't want to get too much in the weeds about 235 versus 236, because it matters so much the next two years, especially when Trump is unleashed. And when he potentially has a Congress that is not going to be getting along with him, he's still going to have all of the ICE authority.

0:33:46 Matt: They're still going to have all these detention facilities. Congress can try to regulate them however they can. They can try to shut them down. They can try to defund ICE. It's going to be very difficult to do. I hope they do everything they possibly can. But as long as they have this tool, and I'm concerned the Supreme Court is going to affirm this tool. We have enough tools available on the Supreme Court to potentially do it.

0:34:02 Thomas: Yeah. Shouldn't they have to recuse because they're tools? Sorry. You're You're a tool, you can't be Judging your own, yeah.

0:34:05 Matt: That's right. It's just too close. That's right. Circuit including, of course, mine, has found that this is illegal and shouldn't be happening this way. Person in question here, Barbosa de Cunha, has been living here for 20 years. I how can you say he's an arriving alien? This is insane. Have to mean what they mean, what they actually mean.

0:34:27 Thomas: You would think for those originalists, no one ever would have thought "arriving alien" means someone who lives here for 20 years.

0:34:33 Matt: Right, we've got this mess, of course, because as I predicted, the Fifth Circuit found this was fine. And course, the Fifth Circuit presently, and probably indefinitely, has the most detention facilities in the country. It is where they all concentrated, Texas, Louisiana. It doesn't really matter what the rest of the country says if that's where the people are being held.

0:34:49 Thomas: That's true.

0:34:49 Matt: And that's the problem. So we have to have the Supreme Court settle it. Of course, we have an unfortunate situation right now in which, the Fifth Circuit has found one way and the rest of the country. So depending on where you're being held, you have different rights, right? And that shouldn't happen. Anyway, is huge for future of the immigration enforcement and for the Trump plans for the next couple of years and potentially for whatever future Republican administration wants to do anything like this in the future. You know, it's these kinds of little technical differences about whether your notice to appear is issued under INA 236 or whether you're charged as an arriving alien and are no longer eligible to be... It's that kind of thing, right? It's just this stuff matters. It matters a lot. I don't know how to explain to people that it matters except that they do mass deportation or not.

0:34:49 Thomas: And You're saying the Supreme Court's looking at this, so is this

0:35:31 Matt: They just took cert last week.

0:35:33 Thomas: They just exert, but is this a shadow docket thing?

0:35:35 Matt: Potentially, yeah, there could be a shadow docket stay in they're... I mean, this is my nightmare in which they say that all the other circuits are wrong and they're going to go with the government's interpretation and we, we can't have any more habeas. I mean, that's very possible.

0:35:46 Thomas: That could be really bad.

0:35:49 Matt: I don't know if they have enough votes for that necessarily, but we'll see. I really don't know. I'm not sure how this one's going to come down. It's such a technical point. I'm not really going to predict right now without having seen the briefing and how it's going to be put together. I'd interested to hear the arguments and how the justices react to this. This could be one of those where Gorsuch actually ends up being a white knight. I don't know. I really don't know,

0:36:06 Thomas: Yikes. That's what we have to hope for. This sounds scary, Matt.

0:36:08 Matt: That's right. It is. That's why I saved it for last year because it's not great news. I mean, it's good news in a sense that they're taking cert because otherwise we're stuck with the fifth circuit forever having this rule, where they detain everybody. We got to get a decision on it, but we'll see.

0:36:21 Thomas: All right. Well, we'll keep an eye on that for sure. On that dismal note, let's take a break and then get to the footnote, which, uh, Matt's excited about.

0:36:29 Matt: I sure am.

0:36:29 Thomas: I am too, but I don't know what it is. So, all Right, man, what do you got?

0:36:37 Matt: What if I told you that I had a gorilla that I could could sell you. Would you be interested in that?

0:36:41 Thomas: I'd say not again, I'm not gonna fall for this again.

0:36:46 Matt: Yeah, because it could actually end up being a guy in a gorilla suit. That could happen. And it did. In fact, yeah, it's pretty funny. I think it's the funniest sting operation in US history. I just learned about this. It's actually from 1993. So this is not new news. This is actually a fascinating case in a lot of different ways. We'll get to the trial part. I really wish that the trial were probably not lost to history. I may be someday, this might be a dream gavel gavel, if I could track down the testimony from like three days of this case, it'd be very funny.

0:36:51 Thomas: Oh. I'll take that. That's fine.

0:37:11 Thomas: The gorilla? Yeah. From the not gorilla? Wait,

0:37:14 Matt: This is a weird situation. We've got the director of a zoo in Mexico. He's under a lot of pressure because there's some kingpin in Mexico who's very upset that this gorilla died in the zoo, and he's under a lot pressure to get into a gorilla. It was a bear.

0:37:26 Thomas: I just want to make clear, we've had a gorilla story before, that was the... or no, it was a bear. I'm sorry, the bear

0:37:33 Matt: We did have a guy in a suit story, yes.

0:37:33 Thomas: Okay I just I was like, we've had a fake animal story before, which, is I'm remembering, is a different story where it was like the car insurance fraud, something, trying to pretend to be a bear. Okay, so are we getting another one of those? Yeah.

0:37:47 Matt: In case, of course, they destroyed their own cars in a bear suit. It was actually a Fish and Wildlife employee reviewing the video that was like, that's not a bear. These people did not have that kind of expertise. I will just tell you right now. This guy is under pressure, Victor Bonneau, and he is going up and he meets with this guy in Miami who's an informant because he himself has been smuggling animals, he got caught. And so he flips and helps the government and he sets up this crazy scheme where he takes this guy who's director of a zoo to the Miami Zoo and he points at a gorilla in the zoo and is like, "That's actually my gorilla, they're hiding it for me." He took him after hours to meet the gorilla at MOHA. Actually, I'm corrupt and this zoo is corrupt and they're holding onto my gorilla.

0:37:54 Thomas: Yeah. Oh. God. Okay. Wow.

0:38:26 Matt: So if you want to buy my gorilla, I've got a deal for you. This was the sting.

0:38:29 Thomas: This is the new, "I've got a bridge to sell you" or whatever. If you believe that, I've got a gorilla to sell you.

0:38:33 Matt: Exactly. I've got a gorilla in Miami. Yeah.

0:38:39 Matt: So this guy was a little nuts, the informant, it turns out. His name was Picone. Actually, he had a lot of fun playing a character called Jorge Blanco, George White. He was wearing a wire. He was just going off. Apparently, the recordings from this are hilarious.

0:38:50 Thomas: So, Wait, that's the sting operation, is trying to sell a fake gorilla? That or a gorilla that you don't if it's a sting, can't they do something better than that? Because that's stupid.

0:38:53 Matt: Halfway through, The sting. Yeah, a gorilla you don't own. They know the guy wants a gorilla. Also, I should make it clear, there's some other monkeys involved. Gorillas aren't monkeys, but you know what I mean.

0:39:06 Thomas: Primates.

0:39:07 Matt: There's some other apes and such. There's also a moment that's very funny. He's like, well, this is an illegal permit and you can't buy these animals legally. He says it very coyly, just to as coy as possible. And this is a forged permit, essentially. Essentially. They wired $92,500 to this guy's account Yeah, this guy from Mexico. He gets for these apes. And Customs, at the time before we get CBP, Federal Customs supplies a plane, a cage, and some gorilla manure. That's my favorite part. Her name

0:39:08 Thomas: Yeah. Who Does this one mark Some crew, you think think they just had that, and they're like, oh, we can, like

0:39:40 Matt: Yes. Where did you get gorilla manure? It's

0:39:46 Thomas: A grill took a dump in here and no one's cleaned it up, uh, and we also have this. No,

0:39:47 Matt: So to sell this, they had to go down to a costume store and buy a gorilla suit. They got a guy who apparently was very good at making monkey noises. That was his qualification, they said. This that's right, go for the best.

0:40:00 Thomas: Yeah. They got Andy Circus to, like, there's Like, there's only one man for this job. I think

0:40:11 Matt: That's right. We played King Kong, he'd go on to great, great things. It'd be really funny, Andy Serkis origin story.

0:40:17 Thomas: Yeah, not not King Kong, the the Planet of the Apes thing, I think you're thinking of, right?

0:40:20 Matt: Did he also play King Kong in the remake? I don't know. I assume he plays every animal, but I could be wrong. I don't know.

0:40:21 Thomas: Uh, you know Maybe you're right, I don't know.

0:40:28 Matt: Mean, who else is going to do it? So this guy is crouched. If you can picture this, he's crouched in a cage covered with gorilla dung.

0:40:36 Matt: That's my favorite part. It's like, they're like, no, we got to sell this. You have to smear gorilla dung on you, obviously.

0:40:39 Thomas: I owe you a huge apology. I didn't even know that was in 2005. Wait,

0:40:45 Matt: The Peter Jackson remake, right? King Kong. I did see it, I think, at the time.

0:40:47 Thomas: Oh, yeah, wow, I don't, that's a poll, I didn't know that that. Wait, is that the one? Is that the one that had Jack Black in it? Oh, it's that one. Yeah. Okay. I was trying to get Arlo to watch that, but he thinks King Kong's too boring. He's obsessed with every kaiju or whatever, but can't can't get with good old fashioned American King Kong.

0:41:03 Matt: Wow. The giant ape.

0:41:06 Thomas: What a communist. Okay. He played, wow. I did not know that. I owe Matt an apology. That was a more dated, I think, reference than I was familiar with. I'm, I'm into anti-circus's later monkey albums. Yeah.

0:41:21 Matt: I'm showing my slight older age here. But yeah, I mean, you're Peter Jackson. You've got one guy. You're not going to get anybody else for this. He's your guy for creatures.

0:41:22 Thomas: Yeah. So He did King Kong and, like, the Plan of the Apes crap, and that, wow, that's interesting.

0:41:34 Matt: Yeah. What a career. What a guy. Yeah, this is what he does. Again, this is 1993. Who knows what Andy Serkis was doing in 1983? He wasn't available. I just love this image, though, of like, they're getting this guy ready. They smear gorilla shit on him to get him ready. And it's a great tactic.

0:41:38 Thomas: Rules, he's like Sorry, he's like, "Would I, as a gorilla, have shit on myself?" Like, I don't think, I don't think this makes any sense. No, you're doing it. Oh,

0:41:57 Matt: If anything, not enough. More, please. No, but the idea was, and this is pretty smart, they didn't want them getting too close. So, you know, that works. You know, it's the shitty gorilla.

0:42:04 Thomas: So they're like hey, this uh, but what about the part where they still would want to buy a gorilla that shits itself? He's like, do you have a non-shitting one? No, just this one.

0:42:11 Matt: That's true. I think at this point, any gorilla is going to do. Yeah. Yeah. It was also raining at the time. So it's perfect. It's like raining and lightning.

0:42:22 Thomas: No.

0:42:22 Matt: And you can just imagine the scene. I want to see this movie. They do the exchange on the runway. And so they don't get that close. They don't look. And the guy's sitting there doing guerrilla stuff.

0:42:30 Thomas: Way, the role of a lifetime. Bows

0:42:32 Matt: And so they immediately arrest him. And the guy climbs out of the cage, takes off his head, starts smoking a cigarette. I just think that's a funny detail. This went to trial. And they tried to argue entrapment. Literally, they had a guy in trap, I guess, but it was the gorilla.

0:42:38 Thomas: Oh. Okay. Yeah. The Gorilla did try to order traffic. Oh.

0:42:51 Matt: No, it actually is an interesting entrapment case. What I thought was actually pretty cool about this, because I don't like the idea of, I'm not like totally making fun of all of this because the guy actually, he claims, one of the defendants claims was that he was told by this nutty informant, which I think maybe happened, that the gorilla was going to be killed otherwise if they didn't buy them.

0:43:08 Thomas: Way, you get all this, and now I'm on the other side. You gotta be kidding me.

0:43:12 Matt: This he had hours and hours of tape. This wasn't on tape. He said it happened, yeah, it might have.

0:43:15 Thomas: He just made made it up, maybe Let's, let's assume he made it up, because otherwise he's hero

0:43:20 Matt: You shouldn't be smuggling wildlife, obviously, but this is a little different from the usual. This isn't like you're going to smuggle it to abuse it to sell it to a collector.

0:43:26 Thomas: But if you're like, "Buy this guy in a gorilla suit, or else I'll kill him," that's a bit of different of a crime.

0:43:30 Matt: Put a gun to the gorilla's head, yeah. Of can you be convicted of buying a gorilla that doesn't exist is, of course, that is a gavel-gavel trial. That just has to be.

0:43:38 Thomas: That's it, that's the, what's the sound of one hand clapping? What can you be, it's deep philosophical question that, you they pondered forever.

0:43:41 Matt: That's right. One missing gorilla. But he purposely arranged all this. He knew the permits were bad. He knew this is illegal. He knew he wasn't supposed to be doing it. But it also is not the typical animal trafficking case where you're selling it to some wealthy collector. You're taking it to a zoo. The guy himself was a conservationist. He was a real zookeeper. This was a real thing. Jury basically thought that it wasn't Travman, but they they convicted anyway.

0:44:05 Matt: They thought they were bound by the instruction. And several said that in the jury room, they said, this feels like in the ordinary senses, entrapment, because they really kind of went out of their way to get this guy to buy this gorilla.

0:44:15 Matt: Well, no, this is the thing. So this is actually the happy ending, kind of, is the judge did a sentencing departure, because this guy should have been doing 24 to 30 months, which just seems like a lot under these circumstances. So he gave him 70 days time served, $40,000 fine. And he found specifically that he could do a downward departure in the sentencing, because Bernal himself was a conservationist, and that he wanted for breeding and exhibition. So not like the usual stuff that you're doing under the Endangered Species Act, you, it's an interesting case, but it presents this wonderful picture of a federal agent crouching in a cage full of gorilla dung, making ape noises, perfect footnote.

0:44:14 Thomas: All Right, well, then come on. Oh, All right, yeah.

0:44:46 Thomas: I thought you're gonna tell me the happy ending was actually, there's a case about a girl in a gorilla suit on the next door, and then they, they met eyes, and then, and that's how Andy Circus met met his wife. That was fun. Good.

0:44:54 Matt: Perfect meet cute after they both took a shower. Yeah. So try to find the transcript and someday we can do a reading, but

0:45:04 Thomas: Oh, man, that would be really fun. Good times, Matt. We should, you know, maybe we do need to get, uh, some amount of just wacky stuff, because it's always, you know, for GG, it's, it's hard, though, because it's like you want to cover the important stuff, but good old horseplay or gorilla play would be a good idea.

0:45:14 Matt: Yeah.

0:45:23 Matt: Man, if only Donald Trump would go on trial again. That was such a good one.

0:45:26 Thomas: My god, yeah.

0:45:27 Matt: That was the perfect trial. Nobody got hurt. So much fun. Great characters. Good writing.

0:45:27 Thomas: It was fun. You got got convicted in the end. Sorry, spoilers. Didn't matter at all. Yeah.

0:45:35 Matt: Yeah. And it didn't even matter. Yeah.

0:45:40 Thomas: Good times.

0:45:40 Matt: Was, it was really proof of concept for Gavel Gavel, and, if uh, you know, if, if we could go ahead and charge Donald Crump with some more funny crimes, whether they stick or not, any conviction, yeah, at this point, let's do it. So yeah, there you go.

0:45:47 Thomas: I'll take any crime. Yeah. Charge him with anything. Well, that was fun. All right, Matt. Well, some good news. One thing we really got to keep an eye on and a gorilla that wasn't there, but the gorilla was the friends we made along the way.

0:46:01 Matt: You should also keep an eye on. That's right, look out for those invisible gorillas, folks.

0:46:06 Thomas: Right. Well, thanks for listening. We'll see you next time.

0:46:12 Clip: This has been Opening Arguments, produced by Thomas and Lydia Smith, with editing help from Peter Baird. The intro is by Thomas Smith. This outro is by Matt Cameron. Support the show at patreon.com/law. Contact us through Patreon or openarguments@gmail.com. Make sure to follow our blue sky, at OpenArgs. But most of all, please share the show. Thanks for listening.

0:46:44 Thomas: Not, you know what grinds my gears?

0:46:47 Matt: I just think is wonderful because I'm just a huge perv.

0:46:51 Thomas: Do you have a non-shitting one no just this one sorry, you said this was a judge.

0:46:53 Matt: Yeah. Yeah. Isn't it great?

0:46:58 Thomas: No, it's