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Episode 7 | Maryland Man and Law Firms

• Center of the American Experiment

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Our hosts, law professor Ilan Wurman and Kathryn Johnson, are joined by special guest host Will Chamberlain. They take a deep dive into the Kilmar Abrego Garcia case and study it as a microcosm of immigration law and the immigration bar. What is the difference between asylum and withholding of removal? Can Kilmar be deported to a third country? Why can't the government detain him? Are district judges playing interference and engaging in lawfare against the Trump Administration? Do immigration lawyers coach their clients to lie? What are the Supreme Court's leading precedents about "due process" and detention? They also discuss a crazy case out of the Third Circuit where the lower courts held not only that the Biden Administration couldn't detain illegal aliens pending deportation even if they had committed serious crimes, but also that the U.S. taxpayers had to pay their attorney's fees. Finally, our hosts talk about Trump's crusade against big law -- and why they think big law does need to be brought to heel.

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SPEAKER_01

Welcome back to Rationally Based, a podcast about law and politics on the edge. Catherine, what's on deck?

SPEAKER_02

Well, first we're covering all things immigration. We have updates on the Kilmar Abrego Garcia case, more on Trump's attempt to end temporary protected status for Haiti. And finally, attorney's fees for illegals. Then we'll cover Trump's executive orders targeting law firms. And are they legal?

SPEAKER_01

Let's dive in. I'm your host, Elon Werman, a law professor at the University of Minnesota Law School.

SPEAKER_02

And I'm Catherine Johnson from Center of the American Experiment.

SPEAKER_01

And we are joined today by a very special guest, Will Chamberlain of the Article III Project, and I believe also the Edmund Burke Foundation. Yes. Will, we are very excited to have you here. Why don't you briefly introduce yourself? Tell us who you are.

SPEAKER_00

Yeah, um, I'm Will Chamberlain. Uh I'm a lawyer. My primary gig is senior counsel of the Article III Project. The Article III Project is a political and legal advocacy organization. We're out there trying to get judges confirmed, get President Trump's nominees confirmed, and push various causes uh through Congress and you know, and also pressure judges, you know, even from the externally to make the right decisions in general. Uh I joke sometimes that my job is to bully people, uh, but that's that you know, that's not very formal. We're we're we're an advocacy organization. Um we do a lot of people. And you bully you bully judges. No, um sometimes senators, judges. I I I mean it depends, you know. But bully, you know, bully is obviously the aggressive way of forming saying that we are going to make aggressive arguments about why you should do a certain thing. Uh uh and then also, you know, put out ways for our our followers uh to do to do similar bullying by you know emailing their congresspeople, for example.

SPEAKER_01

Well, we are so so excited to have you here. And you're also pretty much an expert on immigration law. You've been writing and thinking a lot about this, you've been out there, and so today we have four immigration topics um that we're gonna talk about. Not birthright citizenship, though. If we talk about that, that would be uh great as well. The our audience who watches us will notice that this is our first episode on Zoom. I'm actually here in a hotel room with this beautiful bedspread uh behind me. I'm here in DC because I'm going to be testifying uh in the the House, uh the Senate, rather, Judiciary Committee, the subcommittee on the constitution on birthright citizenship. And we've promised our viewers so many times already a deep dive into birthright citizenship. But we've got so many other topics we want to cover today with Will, who again really knows his immigration law. And so I think we're gonna start, Catherine. What do you think? Kilmar Abrego Garcia?

SPEAKER_02

Is that what we Yeah, let's do it. I was gonna say one other thing about Will is that he's like the best ex follow. So if there's even a single person watching this who doesn't follow Will on X, highly recommend it. One of the things that you've talked a lot about, Will, is this Kilmar Abrego Garcia case. He is the Maryland man, right? Like one of the OG things that people uh were using as an example of uh it's so bad what Trump and ICE are doing. So will you start at the beginning for us, kind of like how he got on the scene, where that started, and where it's going gone from there?

SPEAKER_00

Right. So this is all go all the way back to April 1st of 2025. So almost a year ago now, um, when the Atlantic put out an article about the Maryland father who had been wrongfully deported to El Salvador and it was seen as this massive injustice. They they described him as having a protected legal status in the United States, and therefore that he, you know, it was a complete injustice to remove him to El Salvador. And from the beginning, this this was framed pretty dishonestly, I thought, because he was found removable. He was an illegal alien. I mean, the story of this guy is he crossed illegally sometime in 2011, was picked up in 2019 in the company of known MS-13 gang members, ordered, uh, found removable, and then was given what's called withholding of removal, meaning that you are basically you're still a removable illegal alien, but we're not going to remove you to one particular country because you have some claim that you are going to face uh oppression or persecution if you return to that country. But that doesn't mean you can't be removed anywhere else. All it means is you can't be removed to El Salvador, which is his country of origin. And just off the top, there were sort of a bunch of reasons why this is sort of ridiculous. El Salvador under Bukele is no longer a dangerous place where you can reasonably say you fear persecution or at least unlawful persecution. I mean, you might he might find himself back in Seacot because he's an MS-13 gang member. Uh, very likely an MS-13 gang member, let's put it that way. Alleged, alleged. Alleged, alleged. Actually, no, but here's the tattoo thing. The immigration found he was an MS-13 gang member. Uh there that was something that happened early on. They they they tried to like, you know, the district judges in this case tried to work around this and say, oh, they didn't have sufficient evidence. BS. We can mean that's a whole other thing. One you the we can talk bro more broadly about the problems of the immigration bar that I feel like this case is a microcosm of where, you know, because I feel like the immigration bar thinks they're acting like Robin Hood and doing fundamental good, they're where they're willing to play fast and loose with some of the facts that in their briefing. I found that to be the case when I was reading through the filings in Obrego Garcia.

SPEAKER_01

Oh, it's okay. I want to I wanna seize on that, but but first for our audience, um, let's get your CLE continuing legal education in. So, Will, you mentioned something about a withholding of removal as opposed to, I guess, asylum, right? So the standard for withholding of removal is actually the same standard, or at least the grounds for withholding of removal are the same grounds as for asylum. Actually, a higher bar. It's a higher bar. Okay.

SPEAKER_00

It's a higher bar, meaning you actually, you know, the I think what you have to, the judge has to find that there is a a probabil, like a more than 50% chance that you will face persecution or oppression, where as the asylum bar is not that high. Uh the idea being that, you know, a reasonable probability is a sufficient for asylum. The reason that he couldn't get asylum is because you have you're time barred from making an asylum claim if you don't make the claim within one year of crossing the border.

SPEAKER_01

I see. So he could possibly have gotten asylum, which is also crazy to think about, which I guess we'll talk about that in a second, but he possibly could have gotten asylum because he was 15 years ago, right?

SPEAKER_02

He's been here for 16 years or so.

SPEAKER_00

Yeah, if he had file, you know, made a claim for asylum by 2012, he could have. But I mean he crossed outside of Board of Entry. And again, the guy was understand what what was this guy doing in the United States? If you've actually ever seen his clips, you know, he's speaking in 2025, having lived in the United States consecutively for 14 years, and he doesn't speak a lick of English. What is he doing here, right? How is he making a living? Well, the answer is, you know, the probable answer is he's a member of MS-13 and he was caught in Tennessee, uh, you know, basically ferrying illegal immigrants from Texas to Maryland. Uh the guy works for the gangs, for the cartels, uh, and that's that's his job. Uh, and so he's not actually involved in the broader economy. He's not even working under the table as some sort of day laborer.

SPEAKER_01

Uh so I suppose my question is what is the connection of gang memberships to asylum? Like, how could he have ever even applied for asylum? So, so first of all, so the grounds for withholding of removal are actually the same as the grounds for asylum, right? But he missed the asylum train. So if he had been granted asylum, he would have been allowed to stay in the United States, right? Right. Because that's a grant of asylum. So he missed that train because he filed, he didn't file on time, but we can still, or he could still file for withholding of removal to a particular country. So you can't stay here, but we won't remove you to the country where you think you're gonna be persecuted, right? Do I have that distinction between withholding of removal? You have that right. Okay, and the grounds for withholding of removal, although the bar is higher, is the same as the grounds for asylum, right? Namely, persecution um or a central reason uh uh for the persecution. So you're being persecuted, and the central reason for that persecution is some protected characteristic, right? You you are you are being persecuted because of a political opinion, because of your religious uh affiliations, because of your ethnicity or your nationality, none of which applies to a Brago Garcia, right? So it's this other, this fifth catch-all, not catch-all, but it's or membership in a social group. Right so explain to me what the heck that means. And is he so withholding of removal because he's a member of is it because his family's being targeted?

SPEAKER_00

Yeah, they're just gang? The social groups. And this is where I need to, you know, go back and do my reading on like what social group should be, like what did they actually mean when they wrote this legislation and you know, the proper narrow interpretation. But certainly the immigration judge, and I'm I believe the the law in this area was actually interpreted really broadly to basically mean any so any group that you could conceivably be persecuted on the basis of. And the way that his lawyers framed this was well, he the reason he would be oppressed if he returned to El Salvador is because the 18th Street gang, way back in 2011, was trying to extort his mother's papusa shop, which apparently was the best papusa shop in all of San Salvador, uh, or a very, very good one that all the all the neighbors loved.

SPEAKER_01

What is a papusa?

SPEAKER_00

A papusa is a Salvadoran, I think it's like a tortilla and cheese concoction of some sort. I've never had one. Uh, but it's like a I think it's like a stuffed tortilla. So it's not like a taco or a quesadilla necessarily, but like it's actually in there. And I think it and it's a thicker dough than a tortilla, right? So is my understanding. So something more like a torta dough. Well, you you've clearly researched it because that's a pretty good answer. Not not off the top of my head, but I just recall, I recall what papooses were like. I think I had one once. Uh okay, sorry, I distracted you. So so she had a very good papusa shop and she like didn't pay money to Yeah, the anti-stream gang, which is one of the two big Salvadoran gangs, or was, uh prior to Bekele, uh, one of the two big gangs was extorting that papusa shop, is the story that Kilmar Brago Garcia was saying. And so uh as a result, he was being threatened. He had to leave. And he was said, if I went back, I would I would be persecuted because the 18th Street gang didn't forget the lack of protection money being paid uh in that circumstance and was going to go after him.

SPEAKER_01

Now But wait, so so and you know, Catherine's giving this facial explanation.

SPEAKER_02

And I just like, what what's the Americans uh what is our why do we care? I I don't mean that that sounds kind of like, you know, uh, but really, why do we get involved in the on the gang violence or the disagreements that go on in other countries? Uh you you can't come here necessarily. There are lots of other places you could go. But is there a I don't I guess I maybe that no one knows the answer, but why do we get involved? Why do we care?

SPEAKER_00

Well, so there, you know, there actually is a good reason, and it actually has, you know, when it was implemented, I mean. Uh so this actually go, you know, you have to go all the way back to kind of the the history of the Salvadoran Civil War back in the 1980s, uh, when there was actually a really brutal right-wing uh dictatorship in El Salvador, and people were fleeing it to come to the United States. That's sort of the origins of why we started to have a real Salvadoran community in the United States was people people fleeing the Civil War. And when we started turning people back, uh, because what you know, maybe they weren't eligible for asylum for this reason. So we're like, okay, well, you then you have to go back. And they'd go back and they'd get killed. And so Congress, in its wisdom, was like, okay, you know, even if they're not eligible for asylum, we need to not be complete more, you know, completely horrible here and ensure that they're not being removed back to a place where they can reasonably expect that they're just going to get murdered by a terrible regime, uh, especially because they've they've now come back because they fled. So that's the reason the law was there in the first place. The problem is that it's now become this overwhelming, it's become a loophole for people who otherwise would not be eligible for asylum. Um, and we can get into the detail. I went to, you know, Alan was there for my speech at Natcon when I went into detail about the sort of the reason why this became a real problem is because of the Supreme Court case called Zedvaitus v. Davis.

SPEAKER_01

Uh, which so I so I I do want to talk about Zedvaitus because that is part of the reason that he, Kilmar Abrego Garcia, has been released from detention now, right? Because the the federal judge and basically crazily says there's no plausible way you're going to deport him somewhere, which is also like weird because like you're wrong on the facts.

SPEAKER_00

Wrong on the facts. She's she's playing a lot of games here.

SPEAKER_01

So there's this due process concern in Zedvitis, right? Is is the case. But before then, like I want to go back to Catherine's question. So, Catherine, like Catherine's question, by the way, this is why we have you here. Like, why do we even have asylum? Like, I like the answer.

SPEAKER_02

That makes sense. It's just hard when you think of like we can't do that for everyone, you know, of course.

SPEAKER_01

Right, right, right, right.

SPEAKER_02

But you know, as much as I want to.

SPEAKER_01

So it seems to me that the the that the purpose of the asylum laws isn't just to bring in people from terrible countries where the economies are bad, or there's a general failure of civil society and government functions. It was very specifically after World War II this idea, and that's where the refugee convention comes from, that okay, targeting Jews because they're Jews is bad. Targeting gypsies and gays because they're gypsy or gay is bad. It's this idea that if you target people on some widely shared characteristic uh that is somewhat out of their control or that they shouldn't have to control, like your political views. That is something we cannot tolerate, and we will open our doors for that. Now, maybe we didn't have to do that. Maybe that was a mistake, but it seems to me that the real problem is the way the immigration laws have since, as Will said, been interpreted and brought in. So, for example, here, again, this is not a World War II persecuting Jews situation. This is so so, Will, based on what you said, I see two problems. One, it's not the regime targeting him, it's gangs targeting him. And maybe the regime is incapable of stopping it, but that's very different than the kind of persecution we're talking about. So that's one problem. And then the second problem is again this idea your family pissed off a gang. And so now they're targeting you because you are a member of the family. That seems very different to me. And I can't really put my finger on it why. But that just seems very incongruous, you know, uh, to relative to the other your political viewpoint, your ethnic and national origin, your religious viewpoint. The fact that your family pissed somebody off and now they're going after you just doesn't seem like it fits. Like I can see sort of, you know, it's not if you didn't piss off the gang, but they're going after you anyway because you're a member of a family and you can't control which family you're a part of. I sort of get it, but it just seems so different, doesn't it?

SPEAKER_00

Then yeah, and I think the other thing, the other big problem is it's so horribly unverifiable, right? You can just kind of make up any cockamaney story, like, you know, my mom's papoosa shop was being extorted. Like it's just, you know, as a result of the fact that any a social group can be such a small, such a small thing.

SPEAKER_01

Um so in in going back to the gang thing, then is the idea do you have to show in asylum proceedings or withholding of removal proceedings that the government is like encouraging the gangs or a part of the gangs?

SPEAKER_00

Or just that you're just that you're being oppressed by it. And and moreover, your testimony, you don't even need evidence. Like basically, the you know, the there's if you read through the immigration judge's opinion, it's you know, this is not the first time this has come up. And they basically say, yeah, because asylum applicants often are not in a position to provide substantive evidence to prove their allegations, the immigration judge is just allowed to take their take their word of face value about the sort of oppression they'd face.

SPEAKER_01

And that's why credibility findings are sort of important. Like do you down good in front of the immigration judge or not?

SPEAKER_00

Yeah, but then I mean the that the problem is that that's a you know huge amount of discretion in the immigration judge. And I mean, one of the things that's there's a lot of reasons to think that you know, especially given that Mr. Obrego Garcia's story changed from April to September when he had in 2019 when he had his uh Okay, that's what you that's what you exed about?

SPEAKER_01

What do we say? Tweeted, posted, posted, posted, posted, okay. We don't say tweeted anymore. So that's what you posted about on X, which I so we'll come back to this question of Zidvaitis and can we deport him somewhere or not? But your claim was even just on the withholding of removal, he totally changed the story and was clearly making this up. So you posted something about this and no one else seems to be talking about it. So tell our audience, what is it that you uncovered in the 2019 proceedings with respect to this withholding of removal order?

SPEAKER_00

So basically, in a filing back in January, the DOJ included something that hadn't been in the record before, which was the transcript of his one of his very first hearings in front of an immigration judge where he was asked to uh without he was didn't have counsel present, was just asked questions with a translator about you know what you know what he was worried about. You know, are you did you cross legally? He like concedes, no, I didn't. Um, are you afraid of anything? Which country would you like to be removed to? And actually, he actually said El Salvador, which was interesting.

SPEAKER_01

Uh which which country he wants to be removed to?

SPEAKER_00

Right. So he basically was for at first he was saying, Oh, I, you know, El Salvador is fine, I can be removed to El Salvador. And then the judge asked him, Well, is there any reason you wouldn't want to be removed to El Salvador? And he's like, Well, you know, they're saying I'm a member of a gang. I'm worried about that. And that was his answer. And it's it's sort of like, yeah, I would I in his shoes, he'd think, like, yeah, if you send me back to El Salvador and you're saying I'm MS-13, that would be a problem for me when I'm back in El Salvador. So I'm worried about that. And then in response to that, the judge was like, okay, you get here's the forms, you fill out the forms, and we'll come back and we'll do your uh, you know, dang your danger hearing to figure out whether or not uh you we can you're eligible for asylum or withholding or removal. And then so that's what he said in that first hearing. And then six months later, the you know, fully armed with the forces of our wonderful NGO immigration lawyers, he has this new story about the papoosa shop and his mother's, you know, being persecuted by the 18th Street gang. None of that was when he was asked point blank, what are you afraid of in El Salvador? None of that appeared in that transcript. Um, can I ask you a question?

SPEAKER_02

Wait, I have a solution to this. I have a solution to immigration court. Like, why? We need an American, an actual American to argue the other side. How come there's no one being like, uh, okay, this guy, pro, maybe he has good papoosas, okay? That's a pro, maybe for his for his local community. Con gang member, okay? That's a con for Americans. And then we weigh those things from the perspective of someone who already lives here and is an American. Wouldn't that like solve this issue?

SPEAKER_00

I feel like this is all so, I mean This is a product of the incompetence of the immigration lawyers in this case. Like there, this wasn't uh ex parte. There were there was somebody representing DHS at these hearings. Uh just didn't didn't do a very good job.

SPEAKER_02

Okay, so that exists. There is someone who's supposed to uh advocate on behalf of the American person. I just always hear the side of the immigrants, and I think, well, that's that's one side, the Maryland father, and then you get the other side, and it's well they're not allowed, Catherine.

SPEAKER_01

They're not allowed to talk to the media, are they? Right? I mean, what DHS lawyer, line attorney is allowed or immigration lawyer is allowed to talk on the side of the government is allowed to talk to the media. So that's sort of a a big you know disadvantage that they have. But it sounds like, Will, you mentioned the other disadvantage is that, well, what what so if Catherine, you know, she's uh this actually does illustrate something interesting, which is even though DHS has lawyers, well, if you if they're not if they don't have to prove their claims, you know, if it's just like do you sound believable, what is the DHS lawyer? Like, oh, I went to the papoosa shop. Like, no, I didn't go to the papoosa shop because I'm a DHS lawyer in the middle of like Texas. Like, I'm not gonna go collect evidence. So it just seems like these proceedings aren't really um uh geared toward gathering evidence uh of a serious kind. So, you know, maybe that's one problem. But the other thing I wanted to ask you, because you got close to saying it, and I don't want to force you to say anything you don't want to say, Will. But immigration lawyers, NGOs, do you think they're coaching their clients to lie? I guess I do, I do 100%.

SPEAKER_00

Tell me more about this. So, you know, it's a it's a combination of looking, you know, honestly, looking at you just look at this case and you say, here was his story. He could have mentioned something about this papoosa shop or about being persecuted by a gang, but he was worried about being labeled a gang member. And then six months later, he suddenly has a story that uh can very, very conveniently fits into existing precedent about what would allow him to stay in the country. I'm sorry. Like I think I know what's going on here. Uh the other thing was actually, you know, this goes all the way back to April 2025 when I was just going through the original filings that uh the lawyers were making for Abrego Garcia in court and finding things where they were they were being really slippery with the facts, if not outright dishonest. So a really good example of this. There was a claim made in the original complaint that was then echoed in both the district court opinion from Judge Zinnis and the Fourth Circuit opinion affirming it. That the re you know, DHS was claiming Brego Garcia was in the MS-13 gang and he was a member of the Westerns Cleague. And the reason that that was probably implausible is because the Westerns Cleague operated in New York. That was the original claim. Um, and then the judges interpreted that as the Westerns clique didn't operate in Maryland. Where I believe he got this from is I just looked at the DOJ website and Googled Westerns Clique MS-13. And the only results on the DOJ website came up from uh this one case in New York where somebody was some a completely unrelated case about somebody getting murdered who was a gang member as in in New York as a member of the Westerns Cleque. But then I did more research on it and found, yes, of course, actually, there was a massive RICO indictment in the DC metro area of MS-13 gang members. And the Westerns clique was an obvious and like notable part of, you know, it was operating in Maryland where where Abrego Garcia was. So the I don't know if this lawyer was just outright lying about it or being deceptive in the way he framed it, but basically the you know, this meme that the the government's clearly lying here, the Western's clique doesn't operate in Maryland, there's just blatantly false and disproved by like overwhelming evidence of you know a Rico investigation that a bazillion people pled to.

SPEAKER_01

Now the lawyer said this in court, or was this in like the media?

SPEAKER_00

Here's what the lawyer said. This is what the lawyer said to avoid a blatant act of dishonesty. What he said was in the complaint, like you know, he said statement one, the DHS has said that Abrega Garcia was in the Western clique. Statement two, the Western clique operates in New York.

SPEAKER_01

Well, that doesn't mean they don't also operate.

SPEAKER_00

But that's the implication. He let he let the court believe in this like very odd this implication. That was that is false. That's a false Catherine, go ahead.

SPEAKER_02

Just to be clear, the the lawyers, these NGOs, they get government funding like crazy, right? Like I'm pretty sure they do.

SPEAKER_00

If not immense, you know, big money funding from like the liberal billionaires. I don't know how much government funding they get, but I assume they get some.

SPEAKER_01

Uh my students who are watching will know that the canon of interpretation applicable to this situation is the expresio unius est exclusio ulterior canon of interpretation. The specification of one thing implies the exclusion of other things, similar things uh that aren't listed, but it's context dependent. So simply saying that there are gangs in New York, unless there are other reasons to think that you are like analyzing the whole country when making that statement, the expressio unius statement probably shouldn't, like, or the expressio unis canon probably shouldn't apply to that situation. But okay, so immigration lawyers maybe not lying, but get slot get lots of money to coach their witnesses and to walk right up to the line, which is so fascinating because people accuse the Trump administration lawyers of constantly, you know, like like misleading the courts or walking right up to the line. Does anyone uh attack immigration lawyers for this?

SPEAKER_00

I mean, like there's a lot Apparently I'm the only one who thinks that there just needs to be this mass. And I mean, I just this one case. You go through this one case and you get in the filings and you realize like these guys are playing, you know, these these guys are making these are ethical violations. Like these guys are playing really fast and loose with the facts and really fast and loose with their representations to the court. And as a result, you have, you know, two two courts who adopted your, you know, who actually used your canon of statutory interpretation, right? Or the canon of statutory interpretation, and put false claims in their opinions.

SPEAKER_01

So let me stop you there because this is a good uh segue into the Zadvitis case. Because my understanding is we can't with with we can't remove him to El Salvador. And you said that order is ridiculous anyway, but putting that aside, the withholding of removal order is there. It doesn't mean we can't um remove him to other countries. Uh and I think the Trump administration was trying to remove him to various countries in Africa, I think. Yes. And for whatever reason, we couldn't do that, and I'll get back to that in a second. And so then the judge in this case said, Well, you can't plausibly remove him anywhere. There's no prospect of removing him to all of these countries, and you can't detain him indefinitely. That's the Zedvaidas case. And so we ordered him released, and that's like the newest thing. But before we get there, so my question is why can't we remove him to these other countries? I my understanding is that he was making cat claims, convention against torture claims in all these countries. How can the lawyers plausibly know that he who has never been to this country would be uh tortured in count these these these countries that I don't know, like is you explain, explain it to me, right? Like it's in other words, what I'm trying to get at is it sounds to me like the lawyers are coaching him to make cat claims or outright lying and without any basis of knowledge, just saying, oh, he'll be tortured there. Like, where where do you get that from? Or are these lawyers lying? So let's start there about the removal to third countries. Like, what's happened? Why can't we do that? What's going on?

SPEAKER_00

Uh yeah. So that's a well, I mean, there's an there's more interesting history here. So the first thing they try to do, they they're again, they're trying to pursue removing him to a third country. Then Judge Zinnis says, well, you don't have an actual order of removal in your file, so you can't do that. Now, this was incorrect because basically, like, she she is a district court judge who doesn't understand how immigration court works. When an immigration court gives somebody withholding or removal, they are implicitly saying you can't get withholding or removal unless you're found removable in the first instance, right? You know, you have to get you have to be removable to get withholding. So he was found removable in that first instance. The fact that there wasn't a specific document that said that said this is the uh order of removal is irrelevant. But she she made that claim. And the reason that's important is because she's jurisdiction stripped if there's an order of removal, right? There's a district court judges are not allowed to review the execution of orders of removal. So she had to say that no such order existed. Then what the DOJ was like, fine, we go back to the immigration judge. Immigration judge issues a quote unquote amended order of removal, and they go back to the court and they're like, You're done here. You don't have jurisdiction, and we're gonna remove him to uh the to Liberia is where we want to remove him to. We actually have a commitment, a verbal commitment from the Liberian government that they're ready to take him. Uh and then so the most recent opinion is of hers is saying, Well, actually, uh, I don't I don't even know how I need to look back and how she got packed past the jurisdiction stripping problem because she really should not even be in the case.

SPEAKER_01

Oh, judges are very creative about getting around jurisdiction stripping, as Catherine and I know. Especially in the immigration context, dear lord.

SPEAKER_02

What does that mean? You just like, how do you you pick your judge? What I don't get it.

SPEAKER_01

No, it's it says the statute says, suppose you get an order of removal from an immigration judge. It says you get one appeal to the Board of Immigration Appeals, and then from there you get an appeal to a court of appeals. And usually it's very deferential. And these district judges just they don't have jurisdiction. The statute does not give them jurisdiction to review the immigration judge order orders, and yet they're doing it anyway. And they're coming up with all sorts of reasons. Like, I don't know, like, well, he's making a constitutional argument, and I have jurisdiction to consider constitutional arguments. Is that what they're saying? Do you know in history?

SPEAKER_00

I mean, that's one of the claims they're making. They're basically saying what they're really saying is this it this isn't about the execution of the order of removal, it's about some other thing related to the order of removal that is not specified in the statute that strips jurisdiction. So this is like the TPS thing that I wanted to talk about too, where the judge is very similar.

SPEAKER_01

Basically, so I'll jump the gun a little bit, but you know, we had that Judge Reyes decision um where um the Trump administration finally ended temporary protective status for Haiti. Uh, and the statute says district judges do not have jurisdiction to review a determination about the continuation or not of TPS status. And so what the judge said was, well, I can have jurisdiction over the question whether the process leading up to this determination was followed, which is utterly insane, and not what the cases you know actually say that she relied upon. So, Will, I know I we didn't get to this, like what's actually going on and why can't we remove them to these third countries? But what is going on with these district judges? Is this just lawfare? Is this just district judges doing this onslaught of things to stop the administration, even though they don't have jurisdiction? And what they just know that, you know, as a Ninth Circuit judge famously said, Reinhardt famously said, well, the Supreme Court can't get them all, right? That yeah, what's going on here with these judges?

SPEAKER_00

That's exactly right. That's that's it, it's a straight up judicial rebellion against, and it's not a rebellion against, it's not a separation of powers issue. This is a vertical story decisive problem, right? They're just not respecting uh but either the the statutes passed by Congress or higher court rulings on point. Uh that's that that's crazy.

SPEAKER_01

Okay, so they exercise jurisdiction and they say he can't be removed to the these countries. Why? Because of torture?

SPEAKER_00

So no, so he can't be removed to the argument. So this is where we get into Zedvitis, right? And so understanding Zedvitis is important. So we can let's just talk about that case, you know, wild one, honestly, one a big Supreme Court miss. Uh so the facts. Zedvaitus was this career criminal who was a displaced person in the after World War II, I think born in Lithuania, but he was displaced from Germany, never got his citizenship papers settled in those countries when he was a kid, and then was brought to the United States as a refugee. But never got his citizenship settled here either, right? So he wasn't a legal alien, he wasn't a legal resident of the United States, or he might have been, but he might have had it stripped. I don't remember exactly what the the what's true there. But in any event, basically, he committed a bunch of crimes and eventually DHS wanted to deport him. So they went to Germany, and Germany's like, he's not our citizen. We're not taking this career criminal. They went to Lithuania, same, same answer. They went to even the Dominican Republic, which is where his wife was a citizen. Like, well, you take this guy? And they're like, no gracias. And so we're back to he's just in immigration limo because he's he's been stripped of his right to be in the United States, but he has no other country he can go to. And so then there's the statute that that is the subject of, okay, well, the statute actually seems to say pretty clearly that there is this period of I think 90 days where they're supposed to remove an alien who's been found removable. But there was a statute, there was a provision that said, and in the proper case, the the district, the uh US attorneys can just continue to hold them indefinitely. And this got all the way to the Supreme Court, and the Supreme Court said, well, you know, this indefinite detention without any prospect of being eventually removed to a third country creates possible due process problems. So we're gonna do constitutional avoidance, right? We're gonna interpret the statute to say that there is a uh time limit because alternative interpretations would raise constitutional questions. This is bogus because the statute's actually unambiguous, and you're only supposed to use constitutional avoidance when there is an underlying ambiguity in the statute, and then you're picking between two plausible interpretations.

SPEAKER_01

It's unambiguous because it says shall detain, putting aside the fact of the 90-day respiration.

SPEAKER_00

It's not shall detain, but it's have the she shall have the discretion to detain. Okay.

SPEAKER_02

But so that seems like such an issue though. What are what what's your what do you think you do with him otherwise if no country will take him? What's the alternative? I mean, should he just sit in in detention in America forever?

SPEAKER_00

I mean, it's it's not obvious, but it's uh the alternative is worse, right? Basically, like the guy, you know, the the alternative is worse. And the the reason the alternative is worse is because what it it creates a problem whereby people, you know, migrants who have been found removable have an incentive to uh not work with the government and try and prove that they can't be removed to a specific country because then they know that if they just stay and they can be released into the country despite being a removable illegal alien, which is exactly the problem created in the Ubrego Garcia case, right? This guy isn't a legal alien. He has no right to be in the country. He was, you know, crossed illegally and was picked up eight years later. He doesn't fit into any, he's not eligible for asylum. Um, and you know, he's only fighting withholding of removal because he knows that if he wins withholding, it's a pain in the ass to get him removed to a third country where he's not a citizen. It's a lot of work that it just won't get done. So effectively by winning, withholding, or removal, because of Zedvidas, it becomes backdoor asylum, becomes a backdoor way to stay in the country.

SPEAKER_01

I have so many sort of follow-up points and questions. The first of which is Catherine, that was so uncharacteristic of you to ask that question. I thought, so I'm I'm going to channel like the Catherine that I know and love, which is wait, so why should we have to take him into the country? Like as opposed if no other country is gonna take him, but we are not uh allowed or we don't want uh to take him. Why must we release him into the country? Which is I thought, Catherine, what your you know position would be. Oh, go ahead. You want to do that?

SPEAKER_02

No, I it's true. I just don't, it seems like everything is a bad result. Like I get the I get the situation here. It's like it's difficult, but I mean, if no one wants it, there's probably a reason no one wants him. So I don't know, maybe he should just stay detained. I I don't know.

SPEAKER_00

Right. Maybe and it's a rare circumstance. Like it's a bad, it's a really I mean, the the case where somebody just literally doesn't have citizenship anywhere is a very, very bizarre circumstance.

SPEAKER_01

I just feel like uh who was president when all this was going down? Clinton? Like this was Clinton, yeah. Trump would have turned the screws on the Germans and the Lithuanians, and he would have said, You want that NATO money? You want uh terror, you know, no tariffs, take your citizens, right? I mean, that's really, I guess, what would solve this problem. But I do find it fascinating that there's like a supposed due process problem because like that's clearly preposterous as a historical and original matter. What you're really saying is, well, the statute says that we can detain you because you're not allowed to be here. No other country wants to take you, or you don't want to go to some other country, which I suppose you could choose at any time. So we're just gonna detain you until this is resolved forever. To say that that's a due process problem, even though Zedvitis fell within the category, it was acknowledged to fall within the category that the statute says can be detained. The statute says you can be detained. There's no due process problem, right? You have all the process you've been due, unless what we're doing, Catherine, if you remember our episode on substantive due process, is this idea that there are unwritten limits on what the government is allowed to do, which is preposterous. Basically, what they're saying is it would be unconstitutional for Congress to pass a statute that says we're going to detain aliens indefinitely who aren't allowed to be here if no other country takes them. It's substantive due process. It's not due process. Am I getting that right, Will, or is it social.

SPEAKER_00

I think part of the reason is they didn't they didn't want to make that claim, you know, in the Supreme Court, right? Like the the principled way for the Supreme Court to approach this was to say the statute's unambiguous, but the statute's unconstitutional. They didn't say that. They want they got cute. They're like, well, there could be a due process question raised by interpreting the statute in such a way, right?

SPEAKER_01

And so yeah, don't get me started on the so-called doctrine of constitutional avoidance. Okay, my students know that like I totally hate this doctrine and think it's totally made up. So just to emphasize what Will is saying, it's one thing, and it would be consistent with the judicial power to say the statute, if it means X, would be unconstitutional. And therefore, we're gonna narrowly interpret it to mean not X or to mean X minus epsilon so that it would be consistent with the Constitution. That's fine. But what Will is saying, the court did here is well, we don't know that the statute is gonna violate the Constitution. We aren't saying that it would violate the constitution, but it might. We have a doubt, and therefore we're gonna rewrite Congress's statute. That is judicial legislating. That is lawmaking from the bench, that is legislators in rogues, the doctrine of unconstitution, not unconstitutional conditions, I'm sorry, the doctrine of constitutional avoidance is totally preposterous as it's done uh in the modern day. Okay, well, we I want to move on to the other immigration topic, but first, so bring Zedvitis home to us in terms of the Kilmar Abrego Garcia case. So I still don't understand why can't we remove him to Liberia?

SPEAKER_00

So basically, what what Judge Zinnis did, again, this is she just it's amazing how she just all she always finds a way to keep this guy free in the United States. Let's start there. So she's basically basically saying, despite the existence of this commitment from the Liberian government to take him, and despite the DHS's commitment that we are going to remove him there, she's have found it improbable that he would be removed to Liberia. And therefore, because it's improbable, it triggers this advice problem where there's this you you can't just hold somebody indefinitely if you don't have a for he's not re if it's not reasonably foreseeable that he will be removed.

SPEAKER_01

This is wait, this is like Judge Zinnis saying, it is improbable that I will allow you to do this thing that you're allowed to do, and therefore it is improbable that you will do that thing, creating this constitutional problem. Am I crazy? What's happening?

SPEAKER_00

I don't think it's quite that abusive. I think she's just she's just dismissing the actual evidence of commitment from the Liberian government to take her. I think that's what's happening.

SPEAKER_01

Okay, all right. Well, we had a bunch of immigration topics we wanted to talk about. We'd already talked about the temporary protected status thing. So let me just quickly say that the DC uh uh district judge who had stopped the Trump administration from suspending the temporary protected status or ending the temporary protected status for Haiti was upheld on the emergency docket of the DC Circuit in a two-to-one decision. So we'll see. Again, there's that jurisdiction question, which is super bizarre, and we will uh see what the Supreme Court does with that one. There's some other stuff in the Ninth Circuit about the refugee admissions program, but I really want to talk about this dental from Judge Amil Bove, uh, who was uh Trump's number three in the DOJ and then was nominated to the Third Circuit, involving the Equal Access to Justice Act. So, first of all, to the listeners or viewers, what is a dissental? Well, a dissental is when most appeals are heard by three judge panels, but then you could you could request that the full court, like the third circuit, right? Court of appeals for the third circuit or the fifth circuit, whatever court you're in, you you can request that the full court hear the matter on banque, or as my judge used to say, in bank, because this is America. So, like we don't have to use all these lad terms. But anyway, so you could petition the court to rehear it as a full court of nine, 10, 11 judges, what have you. And if the court refuses to rehear the case, then some judges can dissent from the denial of the rehearing. And we call this a dissental. Uh, and then it goes up, uh, that's a signal to the Supreme Court that, hey, you should really take this case. Okay, so this dissental that I just saw involves the Equal Access to Justice Act. And the Equal Access to Justice Act allows uh the granting of attorneys' fees whenever the government has come after you or sued you or done something to you, and you prevail against the government, okay? And the government's position was not substantially justified. Okay. So we have these cases uh arising from the Biden era, where even the Biden administration was trying to detain these aliens. Okay. It involves criminal, uh illegal aliens, not just illegal aliens. Those who were criminally here, one had this violent like uh assault and resisting arrests and all sorts of violent charges against him. The other alien in question uh not only was illegally here, but committed like four and a half million dollars in fraud. And so the government, so they were convicted. Uh one, let's stick with the fraud guy, he was sentenced to time served in 2020. And the Biden administration then tried to detain him pending the removal. And because I think of Zedvitis and cases like it, the judge, the lower judges, the district judges or the magistrate judges who are assistants to the district judges, ordered that they be released, even though, like, you're criminals, we're trying to deport you, there's no reason to think that you're gonna, you know, show up. And so they ordered them released and concluded that their detention was unlawful because of due process or whatever. And I guess that the government's position was not substantially justified in detaining them, which is also kind of insane. So not only are they released back into the country, and hopefully they'll show up when we finally remove them, but we, the United States taxpayers, had to pay their attorneys' fees. Okay, and so this is this is the setup, okay? And so the question here, I guess there are two questions. The first question is um on the I guess the the statute, Equal Access to Justice Act, applies to civil actions, any civil actions. And there's a question of whether a habeas petition is a civil action. We've talked, Catherine, right, about the habeas corpus before, uh, how to pronounce habeas corpus and how I was made fun of in law school for mispronouncing habeas corpus. Basically, a petition to have the government release you to produce the body and justify the detention. Is that a civil action? Is sort of the first question. But the more crazy question is how is it possible that the government's position is not substantially justified such that it would defeat an attorney's claim, a fee, you know, an attorney's fee claim, right? I mean, do we have some of the facts in these in this case? Uh I think we printed something up from the bov, the amo bove opinion. Um, okay, so here we have the the violent one. I have it's just absolutely crazy what he did. Um, but uh okay. Kathy, do you have it? I think I'm getting there. Here we go.

SPEAKER_02

Yeah, so he was okay, uh, while remaining in the United States without authorization, he was arrested several other times for offenses relating to narcotics, aggravated assault with a firearm, and aggravated battery on a pregnant woman.

SPEAKER_01

And then we removed, we ordered him removed, but then he absconded, right? This is all from the Bovey Dissental, and then he got another arrest. So after he was arrested, ordered, removed, and absconded, he got another arrest for a violent crime. And then the the Biden administration, can I just emphasize that for a second? The Biden administration said, you know what? I think we should detain you. And in fact, like we should detain you before we remove you. And so not only did the judge say, well, actually, even though the statute allows you to detain, and I actually wonder if it says shall detain in this part of the statute based on certain offenses, but so not only does the statute at least allow you to detain and possibly actually say you must detain, but actually we think there are due process problems, and there's no reason to think he's a flight risk. He didn't show up the first time. He's already absconded. Yeah, already absconded the first time. And you have to you found him again when you arrested him on like another violent crime charge, right? But anyway, so not only do we we release him, but because the government detained him unconstitutionally, because the statute violates due process, I guess, you have to, we the taxpayers have to pay him his attorney's fees.

SPEAKER_00

Isn't that insane? I mean it's insane enough to release him. It's you know, one of the many things I think uh I mean, there's so many insane things here, but really first off, bail for these people just as a default is insane, right? Like that's the whole discussion about this Fifth Circuit opinion that came down right uh recently, right? Like, you sorry, I mean, if you're an illegal alien, you don't have a right to be in the country, right? And everybody agrees you don't have a right to be in the country uh until you are eventually maybe granted asylum or withholding. Uh so why do you get to go out on bail in the interim? Like bails for American citizens who have a right to be in the country until they're convicted of a crime. You you you don't have the right to be here. Everybody agrees that.

SPEAKER_01

So if the Fifth Circuit decision is upheld by the Supreme Court, does that actually solve this problem? Like we took a deep dive into I'm not sure.

SPEAKER_00

It doesn't solve it for everybody because I think the Fifth Circuit opinion only applies to a the class of aliens who never presented themselves at a port of entry, right? So there's uh there's illegal aliens who are here, but they are their visa overstays. So they did present themselves at a port of entry. And so they they wouldn't be, they wouldn't fit into the category of people who could just be detained without. Bond. So instead of shall be detained without bond. I see.

SPEAKER_01

So instead of eight USC 1225, those cases would be 8 USC 1226, which is actually gives more discretion, it seems to me, to the government to detain them. But your point in the Zedvidas opinion and other cases say discretion or not discretion, shall detain or not shall detain, doesn't matter. There's this due process limit. You have to have these bond hearings, which is just sort sort of crazy. Okay, I want to read one other part from the Bovey opinion. Yeah. Then uh I'll say something about civil action, and then we have to talk about our next topic, which is law firms. Uh, before we stop the the kill bar breaker Garcia, we wanted to take a deep dive with Will. There's so much there.

SPEAKER_00

There really is so much there because it's been going on so long and it it just it it it's like amazing how one single case could just reveal so much wrong with our immigration law. Like that's it's crazy.

SPEAKER_01

And this descental reveals more that's crazy with our immigration law. So here I just had to read this. So the second petitioner, this is from the Amil Bova um uh dissental. I can't even uh well, Aduwumi Abioye. Okay, I'm gonna just uh so abioye overstayed his visa, appears to have attempted to obtain citizenship through marriage fraud, and perpetrated a massive financial fraud in this country that caused 4.6 million in losses to more than 10 victims. He admitted that 1.5 million of the fraud proceeds went to accounts that he controlled. Abiolie had not completed his supervised release component of a sentence at the time he argued in his habeas proceedings that his continued detention was unreasonable. And his sentence also included orders to pay millions of dollars in forfeiture and restitution. In effect, the fee award in this case under the Equal Access to Justice Act directs the government to pay him instead. So we I mean, can we like take the say, okay, fine, we'll give you attorney's fees, but we're actually deducting it from the millions of dollars you owe Americans for having defrauded them? Like, at least you should say that. Okay, one point on the legal thing, and then let's move on to law to this law firm stuff. Is a civil action, is a habeas proceeding a civil action? The argument that that Judge Bove makes is that civil actions, you know, there there's uh the federal rules of civil procedures say there shall be one form of action, the civil action, and that's it. But of course, there are non-civil actions, there are criminal actions, right? So when we say the one form of action, the civil action, where does that come from? Well, historically a common law, you had to file very specific writs, very specific actions, like this is an action on the case, or this is an action for a writ of replevin. And if you didn't file the exact case with the exact writ in the exact form required by the common law, then like you would be kicked out. And so in the 1930s, we merged law and equity, we merged all these causes of action, and we said there's one cause of action, the civil action. The federal rules of civil procedure apply to all of those actions. You file a complaint, you can make your claims. That was the point of it. But it doesn't tell us what is a civil action as opposed to a criminal action or as opposed to something else. And what Judge Bove says is that habeas proceedings don't the federal rules of civil procedure don't apply to them. It's not started with a complaint. It's fought, it started with a petition. And the petition is governed by federal law, very distinct from the federal rules of civil procedure. And so his argument that it's not a civil action, and I guess what other people say on the other side, I suppose, would be that there are criminal actions and there are civil actions. And that's how the world is divided, and this isn't criminal, it's civil. But I I tend to agree with Judge Bove that I think the world doesn't neatly divide into just civil and criminal. There could be other things. There could be administrative, there could be habeas.

SPEAKER_00

And it's also, I think that remember that the other the other big point is that since it's it's Equal Access to Justice Act and it's about sovereign immunity and the government paying you money and your your entitlement's money from the government, there's the whole, there's the first idea that the government must speak clearly when it's actually ceding its sovereign immunity over something. So if there's some ambiguity here, there's some question about whether habeas constitutes civil action, then you then you default in favor of the government whenever it comes to something like attorney's fees paid by the government.

SPEAKER_01

So there's gotta be the Supreme Court has got to grant this.

SPEAKER_00

I would assume. I would assume. Yeah. This sounds like a based on what I'm reading, like I'm not deep on this literature at all. Like I just, you know, I actually, you know, you flagged it for me and I read about it uh earlier this morning. But having read the opinion, you know, in brief, I'm like, yeah, this is gonna, this sounds like it's gonna get reversed. I and this also, I mean, habeas in particular, whenever I I just remember like the Supreme Court has had to slap down so many appellate decisions on habeas that have it's it's the same problem we, you know, the funny thing is it's all unified by the problem of district and appellate court judges wanting to do things that they are clu Congress is saying, please stop doing this. And habeas is another example. Like, you know, please stop giving out habeas randomly to everybody. You know, we're literally jurisdiction stripping you. You can only do it in these extremely narrow circumstances. And the judges are like, la, la, la, la, la, we don't care. Go freedom.

SPEAKER_02

The local angle here in Minnesota is our you know, district attorney or our um attorney, state attorney out of Minnesota, Dan Rosen. U.S. attorney. Yeah, yeah. US attorney, thank you, Elon. U.S. attorney Dan Rosen, he is being threatened to be held in contempt by a judge because, uh, multiple judges, because of all these habeas cases. And the the thing that they're complaining about basically is that they like lost some of the um detainees stuff in in the way. And so this is like a horrible, horrible thing that the government has done, including like one shoelace from a guy. And and that's why they're holding him in contempt of court, the actual uh US.

SPEAKER_01

Yeah, he so is this, Catherine, I can't remember, is this the whole thing there was this judge who said you've violated the Trump administration has violated 80 orders, you know, from this court about habeas. But I think this was a different judge who threatened to hold Dan Rosen himself in contempt, the US attorney for violating these court orders. And if you actually listen to the proceeding, it was like five cases ultimately that maybe they had violated, and one of the cases was a shoe, the shoelace. Like we bought it.

SPEAKER_02

The violations are like, or the guy they they're waiting for the lawyer to come pick up the guy's passport, and they're like, we will put you in jail unless you give him his passport back. And they're like, we're waiting for the lawyer. Um I mean, it's just crazy. Clearly, the judge is on some sort of like uh, you know, ego trip or something where he's just so incensed by what's going on and is just so anti-Trump that it's like whatever he can do, I think is well.

SPEAKER_01

This is great. Next, next weekend, I there's a big conservative law student conference, and I am debating or was supposed to debate, though it's a little trouble finding a debate opponent for me, but you know, put that aside. The proposition that district courts are a threat to the republic. And okay, it's kind of cute, you know, the way we asked it, but this is giving me some fodder. So I guess Will, the through line here is that judges and immigration lawyers are kind of out of control. And okay, but are law firms out of control? That's the last topic I guess we want to talk about today. And the setup for this is um there was some crazy development in the executive order respecting law firms. So you'll remember that uh when Trump uh assumed power again a year ago, he uh issued these executive orders basically revoking security clearances and government contracts for all these super liberal white shoe law firms who routinely litigate against the Trump administration, routinely litigate against Republican ideas and you know, ideas that half the country sort of agrees with. And some of the firms were involved in like the 2016 Russia stuff, which is I think was particularly sensitive. So he so he issued these orders. Almost every big firm settled, right? With the administration, and like whatever. It wasn't like they just what they promised like to do a little bit more pro bono for conservative causes. God forbid you show some impartiality, you know. Like when it comes to unthinkable, right? Yeah, billions of dollars of in-kind contributions to like one party. Uh like it's just through pro bono legal services. So, but but four law firms persisted. Um, one of which uh is Perkins Couie, and I think Wilmer Hale uh was another one. And so not surprisingly, the four district judges said this was unconstitutional, violation of what the First Amendment, I guess. And so there's some interesting law there uh to discuss. But this all was consolidated, went to an appeal at the DC circuit, and the DOJ lawyer entered into a voluntary agreement to dismiss the case, to withdraw, that we're not pursuing this appeal. And three days later, the DOJ came back and said, Nope, just kidding, we are pursuing this appeal. Like, so I have no idea exactly what happened, but this is in the the the news again. And I suppose I wanted to get your sense on like what is going on with these law firms. I have some stuff I want to say on the legal element of it, but like, I don't know, isn't Trump this is probably the most base thing I'm gonna say today. Does don't the law firms like need to be brought to heel in some respect?

SPEAKER_00

Yeah, they do. I you know, the the thing about the Ebrega Garcia case, it just it really, you know, this isn't a criminal case. He doesn't have a right to an attorney, you know. So this is all optional. Like he's he he's not, I mean, he does have a criminal charge in Tennessee, which of course obviously he's entitled to legal representation, but he's not entitled to legal representation in his it is habeas proceedings, I think.

SPEAKER_01

Um and you know certainly not certainly not in the removal proceedings and yeah, yeah.

SPEAKER_00

So the fact that they're I mean, my old firm is Quinemanual. There are like six Quinemanual partners on the briefs in their burger. Yeah, on Kilmar. Wow, Quin Emmanuel, six lawyers. Yeah, like a ton of a slew of partners.

SPEAKER_02

And I'm like, didn't they just do that pro bono?

SPEAKER_00

Yeah, they're just doing it pro bono, I'm sure. I'm sure this is their pro bono work, uh, because there's nobody, you know, like there are there are nonprofit, you know, uh uh immigrants' rights firms that do this stuff and you know do it pro bono for for for migrants, but Quinemanual isn't doing you know, Quinmanual is not getting funded by nonprofits to do this stuff. Quinemanual's a massively profitable law firm independently, so it's just you know, it's this is the lawyers doing this pro bono. Um, and Quinuel not taking any money for it. Like, why? Why what what is you know, there aren't more deserving targets of pro bono representation than an MS-13 gangbanger who, you know, beat his wife, like there's the there's the allegations of him beating his wife, human trafficking people. Like you don't have any better idea of how to spend your time?

SPEAKER_01

There there are better ways. Git mode detainees defending them.

SPEAKER_00

Right. And yet nobody, and this is a big bone I have, not a single one of these people dared take a January 6th defendant. Not one. And there were serious constitutional concerns. I mean, the J6 defendants won a bunch of cases at the Supreme Court that were being brought by, you know, lawyers taking money because that's the only people who would represent them. But it wasn't certainly the big law firms were nowhere to be found with the J6 defendants, many of them in their own city. And they could have been there to help protect people from like overweening abuse by DOJ, but no, not there. You know, they're just untakable.

SPEAKER_02

There are firms here that will uh they require you to do a certain number of hours for diverse causes or diverse clients. That's like a certain number of billable hours you have to have. So if it's a white person, it's like, nah, it doesn't really count for as much. Sorry, I'll pass on the J6 guy, but I'll help build Braiko, which is that's just insane.

SPEAKER_00

So it's something Harmine Dillon should know about. I don't know if she does know about that. Well, you should do it too.

SPEAKER_01

Like there's at least one way.

SPEAKER_00

Flag the details of that for me, and I'll get it to Hermit's attention.

SPEAKER_01

That's crazy. And like I have some personal experience with this um on the homelessness front. So, as uh our listeners kind of know, I've hinted at this before, and one day we'll talk about this in more detail. Uh, I have this uh litigation practice on the side where I sue municipalities over public homeless encampments under public nuisance theory. And we've won in a couple of these cases. I've got this big trial going to Berkeley. But what's fascinating about this is the number of big law firms that always go on the side of the people who are camping and obstructing even like legitimate city attempts to remove them. So in San Francisco, there was this whole uh big to-do when Latham and Watkins represented, I think it was called the Coalition for Homeless, for the homeless, where they basically, the city of San Francisco finally, for the first time in years, said, okay, we actually need to do something about some of these encampments. There's like, they're like really bad. And these big law firms just represented this coalition that basically prevented the city from doing it. Where are the big law in Phoenix? In the case that I won in the uh in state court, there was a parallel filing in federal court to try to get the city to not clean up of the 800-person homeless encampment. And our big law firm, the biggest law firm in Arizona, um, Snell and Wilmer, represented them along with the ACLU. And I'm like, wait a minute, what about the mom and pop sandwich shop that I'm representing on my own? Any big law firm want to help me with that? Like, not a single one. And then it comes to something that I posted about on X after the birthright citizenship case, which again, I'm here to testify about that today. And I filed an amicus brief in that case. Not a single white chew law firm filed a brief on behalf of any organization, right, uh, or or person supporting the Trump administration about this, but they sure as heck did uh in the um support, uh like they they they filed Wilmer Hale, one of the four firms that is being targeted uh by the law by the EOs uh that has not settled. They represented Catholic social services or what's that group? Uh Catholic Conference of Bishops or Yeah, Catholic Conference of Bishops, I think.

SPEAKER_02

Yeah.

SPEAKER_01

Uh and so um, which led me, you know, so so this guy at Wilmer Hale tweeted, um, I'm sorry, posted. Uh, I was honored to file an amicus brief today in the birthright citizenship case before the US Supreme Court, expressing the view of the Conference of Catholic Bishops that the president's executive order is contrary to Catholic social teaching and immoral. First of all, what? It is immoral to not have a birthright citizenship rule, like or one that doesn't extend to illegal aliens or people who are temporarily. I mean, totally, utterly insane. And so then that led me to post um the following, which was here's a white shoe law firm filing a brief, invoking an interpretation of Catholic teaching to support expansive birthright citizenship, even though not a single one, white shoe law firms, filed a brief in support of traditional marriage in the 2015 Obergefeld case. Fascinating. So you'll represent Catholics when they want to file a brief that advances these progressive liberal causes, but you won't represent Catholics. You'll leave them to fend for themselves when they support traditional marriage. Of course, not a single white shoe law firm filed a brief in support of traditional marriage in 2015. All of which brings me back to the point, Will, Catherine, putting the legal stuff aside, which I do want to touch on that before we let our listeners go here, but like these law firms, this this is a real problem. This is a real problem. And I don't want to sound too radical, but I'm pretty radical on this, I think, which is a society is unsustainable when the elite law firms, the elite legal services provide billions of dollars in free legal services, in-kind contributions to a particular political viewpoint that less than half the country actually supports. Doesn't that just help perpetuate anti-democratical, like oligarchy aristocracy? Like it's unsustainable. Isn't it good that we do something about it, whether the EO is the right answer or not?

SPEAKER_00

We can come back to. But am I crazy? No, you're not. And I mean, I I mean you could this problem starts in the law, you know, it's in the law, legal academy. Uh, it's everywhere. I mean, the fact is that like both the legal academy and white shoe law firms, like basically that is, you know, call it the cathedral if you want it, the legal cathedral. They're they're inexorable, they're completely left-wing. And if they're just an arm of the Democratic Party, then then I mean it obviously it connects to legal questions. Why should the a Republican administration just treat them, you know, as though they're these nonpartisan corporate entities? They're not. They're they're part of the Democratic Party. They want access to classified information. Well, we can't trust you with it because lefties leak on righties. Sorry. Uh you know, that's interesting, right? Like, why should we trust you with classified? Why why are you entitled to see classified information given given the conduct of of these hard left-wing lawyers over the past decade against President Trump? I think that you know, we can I had a whole debate on this subject with George Conway actually at a FedSock event. I mean, FedSock doesn't record them, so I don't, you know, it's lost into the ether. But you know, I think my my fundamental point, and I I just I I never got around to this, where people were making this like, well, it's a First Amendment, you're punishing them for their speech. I'm like, can there really be any j justification for a judge coming in and telling the president he needs to let somebody access classified information? Like if the president deems it not in the interest of the country?

SPEAKER_02

Well, it's like firing someone almost, too, isn't it? I mean, okay, so sorry you can't come in during this administration. How is that like what's the legal issue here? It's it's they have a right to do this? So great question.

SPEAKER_01

And we'll already set up part of the legal answer. So the legal framework here uh is the following: there's no right to government contracts, there's no right to government employment, there's no right to a government security clearance. They're what we call privileges, they're public privileges, and you're not entitled to it. But there is a doctrine of constitutional law, which is sensible most of the time, right? Uh, where it says you don't want to condition uh the receipt of government benefits on people forgoing constitutional rights or other rights if they are otherwise unrelated to the purpose of the program, right? So you don't want to say, hey, we'll give you social security benefits if you give up your guns, right? Because there's no connection between guns and social security. We don't want to say, hey, you know, we'll only give you lucrative government contracts if you voted for us in the last election. Like as a general rule, we don't say that. And it's called the doctrine of unconstitutional conditions. But if the condition is related to the purpose of the privilege in question, then the court does routinely allow Congress or the president to condition receipt of those benefits. So, for example, there are cases from the 70s that say you the government can require you to let them in for suspicionless welfare home searches, which would otherwise violate the Fourth Amendment, if you want to receive welfare benefits, because there's a connection there. Government employees lose First Amendment rights uh at the at the government building door, right? There's a whole case about you know about this will the kicking out students for speech. And fire filed this loss, uh, foreign students. And fire, Foundation for Individual Rights and Expression, I think they call themselves now, like filed a suit saying it violates the First Amendment. Well, are you telling me we have to accept into our country people who spew hateful things and want to destroy this country? Of course not. So the question here is the condition, the six, you know, reasonably related to the purpose of the privilege. And Will, I think you answered it. You said security clearance are really important. You're if you just come back and turn it around and use it against my administration, uh, and if you leak information and we can't trust you for whatever reason, like why should we give you access to that if all you're gonna do, rather than be impartial and an impartial arbiter of the law, is represent clients whose sole goal is to undermine my administration, including the legitimate things that I'm doing. That does seem somewhat related, doesn't it?

SPEAKER_00

Yeah. And I mean, I I think also you got to think back to, you know, where how do these places abuse classified information? How do they abuse a lot of what they were doing? I mean, if they were involved in RussiaGate, I mean, for example, like Perkins Kooey is the classic example of this where Perkins-Kooey was used to launder uh all the conduct, uh all the conversations related to the you know, the Russian dossier, the steel dossier, that was totally fake. Um, and that was definitely, you know, they were getting, I'm pretty sure they were getting some classified leaks in the as a part of that too. So yeah, I mean, yeah, it's okay. Why should and how how can the Trump administration, after what Perkins-Cooey did on with Mark Elias in back in 2016, trust that Perkins-Coey will handle classified information appropriately? Why should why are they forced to do that? Um, and again, because classified is such a discretionary thing, like the the statute creating the uh whole classification structure vests all the authority to classify or declassify in the president. Um, and so if the president says, no, these people don't get classified, the idea that uh Article III judges could come in and say, no, no, no, no, Mr. President, you have to disclose our nation's secrets to these people. That can't be right. It just can't be.

SPEAKER_01

So we are nearing our hour here. Actually, we're a little past it. Will, this has been a great conversation. We're gonna have to have you back to um tease what I want to talk to you about in a future episode. So, on our last episode, Catherine and I debated whether international law was real. I think it's real, but the UN sucks uh and doesn't reflect international law. And there was this thing called international law before the United Nations. Catherine, what did you say? It was fake and dumb.

SPEAKER_02

Fake and dumb.

SPEAKER_01

Yeah, that's her click.

SPEAKER_02

Where do you stand, like like briefly, where do you stand, Will?

SPEAKER_00

I I think international law is the B2 bomber. Uh that's what the international law is. Uh threats backed by force. What did you say? The sovereign is he who decides the exception. Well, nobody can enforce international law against us. So we are sovereign over international law, and we say what international law is because we have the United States military.

SPEAKER_02

Um, you can come back whenever you want, Will.

SPEAKER_01

That's hey, hey, hey, hey. So, yes, uh, you you in fact can, uh, even though you you and Catherine could tag team up against me on this John Austin versus HLA Hart, but definitely a discussion we want to have in the future. But we were so grateful to be able to do this deep dive into the Kilmar Brago-Garcia case and immigration in general. Will Chamberlain of the Article III project. Thank you so, so much for joining us to our listeners. Our next episode will be our live taping with the most conservative students, uh, law students in the nation. Uh, we're gonna do that uh later this week. So please stay tuned uh for that. And as always, like, subscribe, follow us, share the uh spread the word, and we will see you next week.