Trump in Trouble as Full Appeals Court Poised to Let New Criminal Case Against His Admin Go Forward

0:00Michael Popok:It's been a terrible week for Donald Trump legally and politically. And let me use as an example something that happened just yesterday. The full en banc 10 judges in the D.C. federal appellate court that heard oral argument about whether Donald Trump and his administration, including Kristi Noem, Todd Blanche, and maybe even Emil Bovee, now in the Third Circuit Court of Appeals, are going to be held in criminal contempt and prosecuted for criminal contempt or not. What was at stake yesterday during the oral argument was whether this panel, by majority rule, so you need six judges out of ten that heard the case, are going to allow Chief Judge Jeb Boesberg of the D.C.

0:45Michael Popok:Federal District Court to continue with his criminal investigation and referral to a Department of Justice or to an independent special prosecutor about the violation of his orders, grounding planes that were sent to El Salvador in violation of his orders. At the beginning of this administration back in March of last year, 200 men sent without due process to certain torture in the CICOP prison in El Salvador. They are represented by the American Civil Liberties Union, and their advocate for the oral argument was Lee Gellernt. Programming note, I'm going to have Lee on with me this week to talk about what happened.

1:25Michael Popok:On the other side, for the Department of Justice, Brett Schumate, who joined this administration in its beginning days and has been arguing losing cases ever since. He's argued the birthright citizenship case and lost. He argued the tariffs cases and lost. And he's going to lose again, based on my assessment of that three-hour oral argument that we have up live under the live tab in all its entirety, all of its glory here in Legal AF. You're on YouTube for Legal AF. You're here already. You like our content. You follow us. Join us. Hit that free subscribe button. Okay. Let me get to what was at stake yesterday.

2:09Michael Popok:Back in March of last year, the ACLU ran into court and said that their clients were being shaved, shackled, and thrown on transport planes and sent to El Salvador, where they are not from, to go to a torture prison known as Seacott. One of the people in that plane happened to be Kilmer Abrego Garcia, but that's a separate case and a separate matter. But the other 199 plus people were sent there over the cackles of Christy Noem and without due process. Well, that's a problem. So the ACLU ran into court when they heard the planes were fueling to get those planes grounded. And they accomplished that feat in an emergency hearing.

2:51Michael Popok:And the judge ordered orally, Chief Judge Boesberg, to ground those planes. And the planes flew anyway. Well, now we know why. And it came up in the oral argument. A whistleblower, Erez Ruveni, who worked for more than 15 years in the Department of Justice as a the head of the or one of the lead lawyers for the Immigration Litigation Unit said that with the day he was promoted to be the chief of that division, Emil Bovee, acting number two in the Department of Justice at the time, Donald Trump's former criminal defense lawyer, told the assembled group that if a federal judge asks you questions about planes or removal or where people are, you're to tell them to go fuck off.

3:34Michael Popok:And if you think I'm making it up or Eros Reveni is, let me show you a clip of Eros Reveni giving an interview on 60 Minutes. At the beginning of the second Trump administration, you were promoted again. That's right. Very soon into the administration, I was selected to be the acting deputy director of the immigration section, overseeing about 100 attorneys and every case that arose in the federal district courts. But it was the very day of that promotion, Friday, March 14th, that he and others were called to a fateful meeting with Emil Bovey, President Trump's newly appointed number three at the Justice Department, who was once Trump's criminal defense attorney.

4:16And we were told at this meeting that over the weekend, the president of the United States would be signing a proclamation invoking something called the Alien Enemies Act. This is a wartime law from 1798 invoked three times in the nation's history during the War of 1812, World War I, and World War II. The Alien Enemies Act allows rapid expulsion from the U.S. of the citizens of enemy nations during a war. But without a declared war, Trump used it against more than 100 Venezuelans that the government said were terrorists. They were to be denied their right to be heard by a judge. Ruvani says Bovee expected a challenge.

5:02Bovee emphasized those planes need to take off no matter what. and then after a pause, he also told all in attendance, and if some court should issue an order preventing that, we may have to consider telling that court, f*** you. And when you heard that, you thought what? Felt like a bomb had gone off. Here is the number three official using expletives to tell career attorneys that we may just have to consider disregarding federal court orders.

5:36Michael Popok:That issue came up in the hearing yesterday. I'll play it for you in a minute. But here is here is Emil Bovee, now a Third Circuit Court of Appeals judge, during his confirmation hearing with Senator Schiff on the other side being questioned closely about that comment. it play the clip since you are under oath in the complaint it says bouvet stated that doj would need to consider telling the courts you and ignoring any such court order did you say anything of that kind in the meeting senator i have no recollection of saying anything of that kind to the extent i usually recall mr bouvet if you said or suggested during a meeting with Justice Department lawyers, maybe they should consider telling the court, f*** you, it seems to me.

6:23That would be something you'd remember unless that's the kind of thing you say frequently. Well, I've certainly said things encouraging litigators at the department to fight hard for valid positions that we have to take in defense of our clients. And have you frequently suggested that they say f*** you and ignore court orders? Is that also something you frequently do such you might not remember doing it on this occasion? No. And as I explained, I have never directed. So did you or did you not make those comments during that meeting? Which comments, Senator? You really need me to repeat it. Did you suggest, as Mr.

6:59Ruvani wrote, that DOJ would need to consider telling the courts, f*** you and ignore any such court order? I did not suggest that there would be any need to consider ignoring court orders. At the point of that meeting, there were no court orders to discuss. Well, did you suggest telling the courts, f*** you in any manner? I don't recall. You just don't remember that.

7:23Michael Popok:So the planes went, and the argument that the government made at the time to Judge Bozberg to his face was, oh, like, it was only an oral temporary restraining order. We didn't get the written opinion until a couple hours later, so we kept flying the planes or something like that. The lawyer at the time was a guy named Drew Ensign, who on a number of occasions, the judge, Judge Bozberg told him, you know, all you have is your professional reputation. That order was eventually vacated by the Supreme Court only on jurisdictional grounds that the cases needed to be filed where these guys last were, which was in Texas.

8:03Michael Popok:ACLU went and fixed that problem. And they said, therefore, Judge Bozberg didn't have the ability in D.C. to issue that order. But that doesn't mean you have the right to violate the order in real time at the time. In fact, the whole argument that came up during the oral argument yesterday with curiously, even the Republican nominees who voted for against Jeb Bosberg in an earlier ruling, they were sort of quiet. And that came up. Well, the order was eventually vacated by the Supreme Court. So what? At the time, you need to comply unless and until you get a stay order from a higher court. You got to comply.

8:49Michael Popok:It's all about Article three judge powers.

8:55Michael Popok:When the Jeb Boesberg found in April as the chief judge probable cause for criminal contempt against the Trump administration, He asked, who is the person responsible for sending people over my order? They said, Christine Noem, sacrificial lamb under the bus. This is when she was still the director of Homeland Security. And he was about to make the referral to the Department of Justice. The Trump administration ran to the appellate court, which is dominated by Democrats, but they happened to get two Trumpers, Walker and Rayo. And in a two-to-one decision with Judge Childs and dissent, they said, no, Bozberg, you went too far.

9:37Michael Popok:You're interfering with the executive branch. The order was unclear, et cetera, et cetera. ACLU petitions to have the entire court hear the case and throw out that decision of the three-judge panel. They grant it. You need a majority of the 11 or 10 to do it. And there was a majority. So they held the oral argument. The two-to-one decision gets tossed, and this will decide a new decision, unless there's a tie. So who took over the hearing? It's easy. Judge Pillard, Judge Millett, and Judge Childs. All Democrats took over the hearing. And particularly Judge Pillard went after, on a regular basis, and along with Judge Millett, the lawyer for the Department of Justice, saying that, you know, we're talking about Article 3 Judge Power here and not giving it up to the presidency and not rolling over.

10:36Michael Popok:It's not a one-way street. And there's a separation of powers issues that are very present here. It was an ugly set of moments for the lawyers for the Department of Justice. That's why I think it's going to end up being a 7-3 decision, maybe 6-4, which is more than enough with the Trumpers voting against to send this back to Chief Judge Bozberg to continue the criminal prosecution and investigation. Let me play you some clips from the hearing that we have live up on Legal AF YouTube channel right here. Play the clips. Thanks for the question, Your Honor. What's different is that the government identified the decision maker.

11:15That was what was at issue in the prior mandamus proceeding. A number of judges on this court said it was acceptable for the district court to ask for that information. The government then provided that information, identified Secretary Noem as the decision maker. But do we have to just accept what you say, that you just say that there's a particular decision maker who put forward that they were responsible for an activity and the district court judge is supposed to just accept that at face value? The only information that he's identified is the additional whistleblower report, which the district court has described as cementing his belief that there was a willful violation of the TRO.

11:49If that's the case, district court then gets to say that the government doesn't get to come back and say, here's the person we think is the only one you could possibly consider to be in contempt of the court. And of course, we don't believe she was in contempt of the court for the reasons you've explained. But the district court, inherent authority to determine whether a contempt of its orders has occurred doesn't have to take, as Judge Child said, you pushing one person forward at face value. The district court gets to say who else was involved since you all have said this was a chain of information passed up.

12:33I think the standard is the same. So the Constitution doesn't change the standard? The Constitution does not change the standard for a referral under Rule 42. However, given the fact that the district court is going beyond its proper role in investigating a crime that did not occur... is there a separation of powers problem if the executive branch has a unique authority to undertake actions that either are contumacious or potentially confirmations of court orders that no one else in the country is allowed to do is that a separation of powers question too prevents courts from performing their functions i don't think they're if i'm understanding the question.

13:15The government can't violate court orders and neither can any other party. I think there's no difference here. If there's no difference, then there's not a separation of powers because the separation of powers is going to run two ways here. It's not a one-way street in favor of the executive branch. The Supreme Court's been crystal clear that the contempt power is an inherent power of the courts necessary for them to function. And so that's why I keep getting confused about your positions.

13:42Michael Popok:Yeah, that went bad. That went bad. And I play you a clip of a helpful, you know, sort of softball from one of the Trumpers, but there aren't any. So even they were like taken aback, I think, by the how hot the bench got. Now, let's talk about next steps. It goes back to Chief Judge Bozberg. He's already made probable cause finding for criminal contempt. I think there's one more hearing left in him on this issue. And then he's going to make a referral first to the Department of Justice. And if the Department of Justice doesn't lift a finger, which they're not going to lift a finger, to prosecute Kristi Noem or Todd Blanche or Emil Bovi, they're not even going to appoint an independent prosecutor.

14:25See, what Todd Blanche should do is he should appoint an independent

14:30Michael Popok:counsel like Jack Smith pursuant to the independent counsel law and let that person investigate separate and apart from the fact that Emil Bovey's on the Third Circuit, right? And Todd Blanche is still the Department of Justice and all the rest of it. But they're not going to do that because they've already attacked the independent counsel law when they were criminal defense lawyers for Donald Trump and they said that law was invalid. So they're not going to do it, which leaves Bozberg in a little bit of a pickle. He's going to have to, I think, under his powers, appoint his own independent counsel.

15:07Michael Popok:Jack Smith, anybody? To prosecute this case. Otherwise, again, he'll be left with the inability to enforce his orders under his inherent authority, and that cannot exist. So we're going to continue to follow it all right here on Legal AF YouTube channel. Take a minute, hit the free subscribe button as we continue to grow our pro-democracy channel. Can't get your fill of Legal AF? Me neither. That's why we formed the Legal AF Substack. Every time we mention something in a hot take, whether it's a court filing or a oral argument, come over to the Substack. You'll find the court filing and the oral argument there, including a daily roundup that I do call, wait for it, Morning AF.

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