Weekend Law: Tupac Trial, Special Grand Jury & Administration Not Obeying Judges

23:05And for good reason. The idea is you don't want to compromise an investigation by announcing to the world that you're investigating. It could cause people to destroy documents or tamper with witnesses or flee or otherwise compromise an investigation and even harm the reputation of the person under investigation if it should turn out that no charges are ever filed. So we may not know, but oftentimes hints spill out because witnesses and their lawyers start talking to the press. They want to be able to sort of tell their side of the story in the court of public opinion. And so for that reason, sometimes we see these leaks.

23:41Sometimes people suspect that it's members of the grand jury or the court or the prosecutors who are leaking. In my experience, it's usually the lawyer for someone who's been called before the grand jury because they want to make it clear that they're a witness and not a target of the grand jury. and be the first to kind of tell their story. So we don't know. It is possible that they're reviewing some of these prior cases. Could be something completely different. Could be preparing for some criminal investigation relating to the upcoming elections. I don't know. The timing of it, though, also concerns people because it comes right after Todd Blanche is confirmed and right after Jeanine Pirro falls into disfavor for dismissing the case against David Hearn in the reflecting pool case.

24:22So I think, you know, some see it as an effort to, you know, make good and please the president. But of course, we really don't know exactly what's going on. Another concern some people have is because the special grand jury can issue a report at the end of the investigation, even if the prosecutors don't bring charges against anyone in particular. So there could be a report out there on you, even though there wasn't enough evidence to bring charges against you, and even though you didn't have a chance to refute the charges at trial. Yes, and I think that is concerning as well. You know, if you're acting in good faith, most often grand juries do not issue a report, but they could.

25:03They could issue something similar to what Robert Mueller did at the conclusion of his investigation. Usually it's written by the prosecutor who is leading it, in this case, Stephen Van Der Velden, to discuss what they found, even if it doesn't result in charges. So one could imagine, this would be, in my opinion, and abuse of the process, but one could imagine an effort to bring some witnesses to testify based on some conspiracy theory. The grand jury ultimately declines to issue any charges, but a report gets issued that does dirty up somebody politically. So that would be another concern about an abuse here.

25:36But there's this longstanding presumption of regularity when it comes to the Justice Department that we assume good faith, we assume they are using their tools appropriately. But of course, many judges have found just the opposite in this administration. So I think that's why people are concerned. And prosecutors only have to show that there is a preponderance of evidence of wrongdoing. So it's a really low standard to bring out one of these grand jury reports. Yes, a report would really just be, you know, they were, as I said, they were formed for the purpose of organized crime. And I think the idea was that even if you couldn't get an indictment against everybody, or maybe you did, you could give the district sort of a state of the district, where you stand on organized crime so that the public could be educated about something that was happening in the shadows.

26:24And I'm not sure I've ever seen one of these things, but they are authorized to do it. And so I suppose some of the concern is that even if there is insufficient evidence to bring a case, there could be this effort to dirty people up. Remember Ed Martin, he was somebody who was at one time the interim U.S. attorney in the District of Columbia. He then got appointed to be the head of the weaponization task force and the head of the office of the pardon attorney. I think he's still there as the pardon attorney, but he's become very quiet in recent days after his efforts to indict Letitia James that seemed to fall apart.

26:58He said something really interesting when he first took on those roles, which was we're going to name and shame people, even if we don't have the evidence to convict them, because that's what the public cares about. That is a distortion of the Justice Department's mission, which is to bring cases only if you believe the evidence is sufficient to obtain and support a conviction on appeal. And so the idea that you would just use it for the purpose of naming and shaming seems like a violation of DOJ's policy guidelines, the principles of federal prosecution to avoid engaging in partisan politics.

27:31So I worry a little bit about that aspect of this, this ability to issue a report. Is there any protection in the fact that a judge has to decide that there is a preponderance of evidence of wrongdoing before signing off on the issuance of a report from the grand jury? Yes, I think that is a check. But, of course, a preponderance of the evidence is much less than the standard that prosecutors would use to bring an indictment, even though the grand jury may bring an indictment based only on probable cause, which is a level actually below preponderance of the evidence. Proponents of the evidence is kind of 51 percent.

28:08Probable cause doesn't have a number attached to it, but it just means reasonable grounds to believe that a crime has been committed by this person. And so it's a lowish standard. But the principles of criminal prosecution say that a prosecutor should only seek an indictment if they believe they can prove the case beyond a reasonable doubt, that very highest standard. And so the judge will apply the law. They're not applying their opinion about whether they think this is a good thing or a bad thing. But if there's a preponderance of the evidence, 51%, even if it could never be proved beyond a reasonable doubt, means that that could become public information.

28:43And so as a former prosecutor, I worry about that a little bit. Prosecutors are trained to be very circumspect with filing charges and to bring them only if they believe that the case can be proved beyond a reasonable doubt because of the recognition of the awesome power of a prosecutor to ruin someone's life. Not only to take away their liberty, but to take away their reputation. And I think a report could do just that without the other part of having evidence beyond a reasonable doubt. It seems like there's a lot to be concerned about. Thanks so much for joining me, Barb. That's Professor Barbara McQuaid of the University of Michigan Law School.

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32:01Suzanne Monyak:It has become ever more apparent that to our president the rule of law is but an impediment to his policy goals. More high-profile examples followed, like the administration ignoring the order of the D.C. chief federal judge to turn around two planes carrying Venezuelan migrants to prison in El Salvador in March of 2025. Judges are fielding more requests to force the administration to comply with their rulings against the federal government than in any other prior administration, including the first Trump administration. A new study by Bloomberg Law shows that judges have found the administration has not complied with their orders regarding motions to enforce preliminary injunctions in more than half of the 25 cases identified.

32:55Bloomberg Law reporter Suzanne Moniak crunched the numbers. So, Suzanne, ordinarily, a judge issues an order and the parties either comply or appeal the order. But tell us what's been happening with orders issued against the federal government during the Trump administration.

33:15Suzanne Monyak:We've seen some recent examples where the Trump administration has been at least accused of, and in some cases found of, not fully complying with these court orders. We looked at promotions to enforce preliminary injunctions, but I think it's an interesting example to look at because it shows a compliance issue really early in a case. A preliminary injunction would come down pretty soon after a lawsuit showing that the challenger was likely to win its case. And so then we're seeing the government, you know, immediately potentially not following that order. I think it's an interesting place to look.

33:43Suzanne Monyak:I've tracked two dozen examples, at least, of times when the Trump administration has been accused of not fully complying with initial preliminary injunction orders. What kind of cases are we talking about? All different types of cases against the government. We've seen them in big cases over USAID funding cuts, the dismantling of international broadcaster Voice of America, other big cases across the country where there were early preliminary injunction orders granted against the administration telling them to stop doing something. And then we saw the challengers come back into court and claim the administration wasn't fully following that order.

34:18Suzanne Monyak:And in 14 of those 25 instances, the judge agreed either fully or partially. In a few other cases, it was either denied, sometimes it was resolved otherwise, or even mooted sometimes, as the case just progressed past that stage. But 14 out of 25 was still somewhat of a striking number for comparison. Under the Biden administration, there were only two motions to enforce preliminary injunctions filed against the government. And one of them was partially granted in a Medicaid-involved case. And during the first Trump administration, we saw 11 motions to enforce preliminary injunctions. About half of those partially are fully granted.

34:51Suzanne Monyak:So somewhat of a similar statistic, but I mean, that was 11 over four years. We're looking at 25 in a year and a half. So I think we can expect potentially this number to grow as the number of court challenges grow and as we see the administration kind of see what they're able to do with these court orders. There was a scathing opinion by a Reagan appointee in the Voice of America case. And in another case, a senior D.C. federal judge said that the Defense Department's actions flout the court's explicit directives. So these federal judges are not beating around the bush. How upset are the judges about this failure to comply with their explicit orders?

35:31Suzanne Monyak:In some cases, pretty upset. And obviously, when it comes to judges, sometimes they're upset and they still write a pretty boring opinion. So it's hard to always know. But yes, as you mentioned in a couple of examples, the judges did, in fact, let us know that they weren't happy with the government's conduct. In that one instance, you mentioned Judge Lambert, a Reagan appointee in D.C., when he was handling the Voice of America case, said that he thought the government was, quote, in violation of even the most meager reading, end quote, of his court order. So definitely not pleased. We've also seen plenty of orders where the judge is kind of very matter-of-factly is like, I don't see the government as having fully complied with this order.

36:05Suzanne Monyak:These are inconsistent. You know, you need to do this differently if you want to be in compliance with my order. A few judges wanted to take things further or did take things further. So in Minnesota, you had the chief judge finding that ICE had violated nearly 100 court orders. And then there was another federal judge in Minnesota who held a government lawyer in civil contempt, although that didn't last very long. Yes. In this story, I was tracking motions to enforce preliminary injunctions, but there have been a lot of different types of motions filed to force compliance with court orders against this administration.

36:41Suzanne Monyak:And in that one example you mentioned, we saw a Minnesota federal judge actually held a government lawyer briefly in civil contempt of court for not correctly facilitating the release of a detained immigrant. He was released in the wrong state without his property. And it came out that the lawyer hadn't forwarded the court's order to ICE on time. So there was just a full breakdown in communication. The lawyer actually, you know, did apologize and said, I've just been really overwhelmed. But the judge had ordered essentially a financial penalty for every day that the detained immigrant, you know, was not with his property.

37:13Suzanne Monyak:And the government did remedy it very quickly. I don't believe the government lawyer who was representing ICE did actually end up having to pay anything personally. but it was a pretty significant sanction to see against the government. So in these cases, the government is giving instructions about what the court said and what the agency is supposed to do. Do you know, is it a lot of times that the government lawyers are screwing up or that the agency is just not complying? I think it's a mix. In the case I just mentioned in Minnesota, we've seen the government actually say, like, look, we can't always be responsible for what the agency does.

37:50Suzanne Monyak:The Justice Department, of course, represents federal agencies in court. And so, you know, that's really kind of an interesting question as we see some of these compliance issues come up in cases. To what extent is the Justice Department responsible for a federal agency not fully following a court order or interpreting it too narrowly and, you know, not complying in the full spirit of the order? I think that's an interesting question and one that we've seen come up already. One of the first and probably still most famous cases is where the chief judge in D.C., Judge Boesberg, ordered the government when they were sending Venezuelan immigrants to prisons in El Salvador to turn the planes around.

38:28And they didn't. And he wanted to have a criminal contempt investigation. But what happened?

38:35Suzanne Monyak:The D.C. Circuit ruled against him on that issue and, you know, blocked a hearing from being held. Proceedings are still pending on that issue. But yes, that was probably one of the most famous issues of court compliance that have happened in this administration and happened so early. Kind of set the tone, perhaps, for some of the issues to come. And in that case, we were talking about criminal contempt, which is a different form of contempt than we were discussing with the Minnesota lawyer. That was civil contempt. So quite a bit more serious. Is this all a reflection of the Trump administration trying to flex its executive power?

39:08Suzanne Monyak:Certainly, it depends who you ask. I think that it is fair to say that when we're seeing this many motions to force compliance of court orders, more motions to enforce preliminary orders, but also some of the other ones you've talked about to compel compliance, to consider contempt, that does probably show that we're dealing with an executive branch that is, you know, maybe interpreting court orders in a new way or really, you know, drawing more of this litigation as well. The Department of Justice did respond to our reporting and they blamed really more the plaintiffs. You know, they said this is not a pattern of noncompliance on our part.

39:40Suzanne Monyak:Our DOJ lawyers work closely with the agencies to make sure they're complying and said that it's actually the plaintiffs, the court challengers who are trying to test or expand the scope of injunctions. So I think what we're also kind of seeing and not only is sort of this flexing of executive power, but it's also the tension between executive power and judicial power and the administration saying, you know, what can we do with the courts ruling as they are? And plaintiffs are saying, what can the courts do to keep the administration from doing what it's doing? So we're kind of seeing a lot of that push and pull lately.

40:11I've talked with a lot of former federal prosecutors and former judges who say that what's called the presumption of regularity is being eroded by the Trump administration's actions in court. I've talked with a lot of former federal prosecutors and former judges who say that what's called the presumption of regularity is being eroded in the Trump administration. The presumption of regularity is basically judges assuming that the government acts in good faith in court. But these days, judges are not trusting what the Justice Department lawyers are telling them in court.

40:52Suzanne Monyak:That's certainly a consequence when we're talking about court compliance issues. If we're seeing examples where the government is making, I mean, in addition to court compliance issues, there have also been notable examples where government lawyers have made mistakes in court, said things that they've had to go back and later correct. And even if they are still correcting it, which is what you're supposed to do, if you notice an error, you're supposed to correct it. And that still does work to chip away at that presumption of regularity or, you know, the assumption judges make that the government's acting in good faith in court.

41:20Suzanne Monyak:Some of the lawyers I spoke to, you know, one of them told me that she didn't see the presumption of regularity as being in full crisis at this point yet, but that it's certainly being tested. So I think that's another thing that we're going to watch and both during this administration and in administrations to come. To what extent will the government be able to recover from this? It's also true that the Justice Department is throwing a lot of inexperienced lawyers into court because so many experienced lawyers left the department. And that's particularly true in the immigration cases because there are so many habeas petitions that the Justice Department has to deal with.

41:58Suzanne Monyak:Yes, the brain drain in the Justice Department is certainly a significant factor when it comes to these issues. Anytime you see a lawyer make a mistake in court who's really new to the department, I mean, you have to wonder if perhaps having had more of those career people who had years of experience being there might have helped. And certainly, again, in that Minnesota case, we were discussing the attorney who was briefly held in civil contempt was a military lawyer who'd been dispatched, apparently, to help out with the surge of immigration cases happening in Minnesota at the time because there wasn't the staffing to handle it.

42:30Suzanne Monyak:So, I mean, those are the things that happen. Things do slip through and you end up with mistakes being made, even under the best intentions, when there isn't full staffing or full level of experience. And immigration law is so complicated. Add that to the problems these young lawyers are facing. Thanks so much, Suzanne. That's Bloomberg Law reporter Suzanne Moniak. And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at www.bloomberg.com slash podcast slash law.

43:05And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m. Wall Street time. I'm June Grosso, and you're listening to Bloomberg.

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