Technology
Ep 171 — Can Trump Put Troops In Every City Simply By Shouting EMERGENCY?
In Episode 171 of Law and Chaos, hosts Liz Dye and Andrew Taurus discuss the implications of a government shutdown, the legality of deploying troops in American cities, and the ongoing FOIA lawsuit ag...
Ep 171 — Can Trump Put Troops In Every City Simply By Shouting EMERGENCY?
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Interactive Transcript
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But everyone around him is happy for any pretext to unleash violence on American cities where a lot of
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Democrats live. So the next day, Hague Seth puts out this memo that says 200 members of the
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Oregon National Guard will be called to federal service effective immediately for a period of 60 days.
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Yeah, and the asserted legal justification here was that same generic June 7th memo. But even more so
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than in Los Angeles, it is clear that none of the preconditions for Section 12406 were met in Portland.
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Welcome to Law and Chaos, where the government is shut down,
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ISIS laying siege to cities and Scotis is borked. But on the plus side, Alex Jones is about to get
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what's coming to him and Law and Chaos is breaking news about our foyer suit against the DOJ.
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We've got a lot to cover, so let's get after it.
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Hey guys, I'm Liz Dye and with me as always is Andrew Taurus. Andrew, how are you?
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I'm great Liz. How are you? I mean, it's wild. It's wild. Did you at least have a good weekend?
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I did have a really lovely, lovely weekend. So thank you for asking. And you?
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I also had a very nice weekend, but I know I'm with you. I am super excited to break some news here.
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Why don't you start us off? All right, so let's start with our exciting update on our foyer lawsuit.
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As we've said before, we have sued the Department of Justice and asked them to produce one single
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document. Yeah, cough it up, Pam. Indeed. And also as we said in our post yesterday, we know you're
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lying, Pam. True, but I think you're going to have to narrow that one down just a little bit, Liz.
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Okay, so for background, the DOJ filed judicial ethics complaint in July against Chief Judge James
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Boasberg of the US District Court for the District of Columbia. That complaint which was
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hand delivered to Chief Judge Sri Sri Navasan of the DC Circuit alleged that Judge Boasberg
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attempted to intimidate Chief Justice John Roberts at the March meeting of the judicial
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conference. That there was that's where judges from each district convene twice a year to
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hash out rules for administering the federal judiciary. There was not Fistikovs. I know what you're
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thinking, like old man fight, but no, the story the DOJ tells is that Boasberg, quote, attempted to
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improperly influence Chief Justice Roberts and roughly two dozen other federal judges by
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straining from the traditional topics to express his belief that the Trump administration would quote
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disregard the rulings of federal courts and trigger a constitutional crisis.
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And if Judge Boasberg said that, that is exactly what the Trump administration absolutely 100%
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did. And in fact, did in front of Judge Boasberg, just a couple of days after the conference on March
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15 in the JGG immigration case. That was when Drew Ensign got up and said, I don't know if any
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planes are taking off your honor when he absolutely did know. And then two more planes took off
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after Judge Boasberg said, turn those planes around. Yeah. And look, I don't think it's possible
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to talk about this story without situating it in the right wing news cycle. Because this
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this story was first reported by Margot Cleveland, this weirdo at the Federalist who hyperventilated
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about it on July 16th. Yeah. No. Okay. She's she's a very specific kind of weirdo. But I'm not going
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to get into that. She hyperventilated about this story on July 16th. She said that she had a memo
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with minutes from that judicial conference meeting that proved that Judge Boasberg and his
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colleagues on the trial court in DC are biased against a litigant before them. IE Donald Trump,
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the perpetual defendant in all of these, you know, immigration cases and such. She claimed to be
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shocked and outraged at the suggestion that judges would worry about defiance by the Trump
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administration because as everyone knows, the Trump DOJ would never, not ever defy a court order.
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Indeed. How dare you even suggest such a thing. Right. So notably, Cleveland did not publish that
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memo or even an excerpt. So the story after she publishes makes the rounds in conservative media.
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John, you try to like waterboard it into existence on Fox. And then a week later, the DOJ filed
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this supposed judicial ethics complaint against Judge Boasberg with the exact same quotes and
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allegations as Cleveland had had written in her post and is proof that the DOJ dropped to a
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footnote that said, see attachment A at 16. And then Pam Bondi and the rest of the Hauer monkeys
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tweeted about it and said, they're not going to stand for this assault on the integrity of the
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judiciary. Yeah. Assault on the integrity of the judiciary is the job of the president who,
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you know, shit posts about the judiciary every single day. Or maybe it's the job of Stephen Miller,
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who just called for violence against what he termed insurrectionist judges or
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yeah, so many, right. But notably, the DOJ did not attach this memo to the copy of the complaint
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that they distributed to reporters. There was no attachment A on the copies of this letter to
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Judge Srinivasan, which circulated in DC. Right. And I think we should acknowledge that we do not
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know for certain who distributed this complaint to reporters. I guess as possible, it was not
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the Department of Justice. Well, fair, although the complaint published by Politico and Quarthouse
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News was unsigned. So this letter said had shot myself signature line but no signature.
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Presumably, if it came out the other end, it would have had Chad Miselle's John Hancock on it.
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But whatever, Bondi was the one putting all this shit on main and trying to make political hay
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out of it. She's the one who made this complaint a public issue. If she'd kept her mouth shut,
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as she absolutely should have, no one would have known about it. Not us. Now,
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now we're here to break some news on our show because we have learned from a source for
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Billio with the matter that the Justice Department did not give a copy of this memo to Judge
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Srinivasan either. Attachment A does not exist. And in fact, Judge Srinivasan tried to get a copy
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of Attachment A from DOJ and he got nothing. So in support of their claims that Judge Boisberg
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violated the cannons of judicial ethics by talking smack about Trump, the Department of Justice
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has supplied exactly zero evidence to the US Circuit Court of Appeals for the DC Circuit to
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Judge Srinivasan. They've got that evidence. It's Attachment A. May the court see it? No.
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Okay. So as we said, we filed this FOIA request back in July to get the Attachment.
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Right. It is clearly an agency record subject to the Freedom of Information Act. It was generated
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outside of the Department of Justice. It was then sent or apparently not sent to the judiciary.
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But irrespective of whether that copy ever arrived at the Circuit Court for DC, it has to be
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closed. So we filed our request and we asked for it to be expedited. And the Justice Department's
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Office of Information Policy said no to expediting. And not only no, they said they had to put us
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on the complex track. Right. So they'll get to that never. Yeah. This is so ridiculous on a bunch
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of levels. First, they said it didn't require expediting because this isn't a matter of pressing
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public concern. Pam Bondi herself tweeted it out. I mean, come on. Yeah. And
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the justification for putting something that complex track is that the search apparently involves
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quote, a search for and collection of records from field offices or other separate offices. And
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thus your client's request, that's us, Lawncast Pod, your client's request falls within unusual
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circumstances, which no, it does not. This document was on Pam Bondi's desk 10 minutes ago. It is
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one record. We did not ask for every time the Department of Justice used the word Portland in an
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email. We said, give us this one document that you received from an outside source and forwarded,
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or at least referenced in communications with another branch of government. This is the definition
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of the least complex request. You can ask the government to do only one one thing. Right. So we
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filed our motion for summary judgment, which the government will respond to once the shutdown is
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over. I assume that's why the government closed. They're just that scared to give this thing to us.
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Oh, oh, is that is that why? I mean, maybe not, but I do think the government's reluctance to
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give this to us and also to judge Shrinivasan indicates that either they don't have it and they just
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copied Margot Cleveland's work or they it doesn't back up their case at all. Whatever it says,
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if we could see it in context would make it look like they were full of shit. At a minimum,
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they're refusal to disclose its suggests that they are filing judicial complaints purely as a
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publicity mechanism. Yeah, this judicial complaint could have been a press release. And
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functionally, it was since they failed to disclose the evidence. Yeah, undermining public
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confidence in the integrity of the judiciary by accusing Judge Boisberg of undermining the
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integrity of the judiciary is that's some bullshit right there. I am very anxious to see this document
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because one of the things that Margot Cleveland said in her piece, I'm going to quote this was
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that Chief Justice Roberts expressed hope that meaning disregarding judicial orders would not happen.
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And in turn, no constitutional crisis would materialize according to the memorandum. The summary
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of the working breakfast added that Chief Justice Roberts noted that quote, his interactions with
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the president had been civil and respectful such as the president thanking him at the state of
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the union address for administering the oath. And oh, please, yeah, my confidence in Chief Justice
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Roberts's integrity is pretty low. But that moment at the state of the union where Trump said,
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thanks for what you've done for us. We won't forget. And Justice Barrett visibly rolled her eyes so
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hard she almost passed out. That was not a good look for the Supreme Court. Literally, no one believes
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that interaction was an expression of gratitude for administering the oath of office. Come on,
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be for real. So either there's some missing context here or Roberts is even more out of touch than
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we thought. I mean, probably both to be honest, but I mean, that that struck me as ridiculous. That
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was a moment of igniminy for the court. And it seems almost impossible to me that Roberts could have
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been like, well, obviously Trump won't defy court orders because he was so nice to me at the
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state of the union. Like, I mean, oh, yeah, but okay, we will keep you posted on that. We are
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super excited to get a response. Should the courts ever open back up? And we're going to actually
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talk about that. We'll talk a little bit about the shutdown and the effect on all of the cases
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that we follow when we come back from this brief ad break. Unless, of course, you are a subscriber
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at patreon.com slash law and chaos pod or law and chaos pod.com in which case no ad breaks for
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you, not today and not ever.
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And we're back. Okay, Liz, the government has shut down except that ICE is still conducting
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raids and provoking street brawls and Donald Trump is trying to invade Portland, Oregon and
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Chicago, Illinois, the way he did Los Angeles. So let's talk about the government shutdown.
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The proximate cause of the shutdown is because Congress failed to pass a budget bill for the 2025,
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2026 fiscal year. And in a deeper sense, this battle really reflects the breakdown when
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Democrats know that Donald Trump is trying to steal Congress's power of the purse and Republicans
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are trying to let him. We have talked about all these impoundment cases where Trump just says,
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eh, I'm not going to spend money in the budget bill. And then the Supreme Court lets him do it
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again on the shadowdocket. So in a very real sense, why should Democrats negotiate a deal if
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Republicans are just going to let Trump take a sharpie to whatever they agree to? And Republicans
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are just going to blame Democrats anyway. Like we might as well stand up and stand for something
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because we're still going to get the rough end of this news cycle. So on our way to talking
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about how this impacts the 11 million federal cases we follow on this show, here's the TL to
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Garb because obviously we are not a policy shop. We are a law shop. But we do want to talk a little
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bit about this. The fiscal year ends on September 30th. As of that date, Congress was unable to pass
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an appropriations act, which is the budget for fiscal year 2025, 2026, which we are now in. And
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that means that as of October 1, there were no funds allocated for annual federal government
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programs. That does not mean that the entire federal government disappears, right? Programs that
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are not funded by annual appropriations can still operate. And there are emergency funds previously
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allocated by Congress to keep the lights on at least for a little while. But for the vast majority
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of federal government programs, the operative law is the anti-deficiency act of 1884 codified at
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31 USC 1341 and 42. Right. Section 1341 says that no officer or employee of the US government or
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the District of Columbia may make or authorize an expenditure or obligation or involve the
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government in a contract or obligation for the payment of money before an appropriation is made
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unless otherwise authorized by law. So in English, that means the government cannot spend money,
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pay employees or even issue IOUs while the government is shut down. And Section 1342 says
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it can't let employees work for free either. So an officer or employee of the US government or
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of the District of Columbia government may not accept voluntary services for either government
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or employee personnel services exceeding that authorized by law, except for emergencies involving
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the safety of human life or the protection of property. And then there's this clarifying provision
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that says emergencies do not include ongoing regular functions of government, the suspension of
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which would not imminently threaten the safety of human life or the protection of property.
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Right. So to put those two provisions of the anti-deficiency act together, without a budget or
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other congressional allocation, the federal government can't pay anyone to work for it,
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can't promise to pay anyone in the future when a budget does get passed and can't let anyone
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work for it for free unless it falls into one of those exemptions, which is why the vast majority
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of federal government employees were furloughed starting October 1. And I should add parenthetically
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that the Anti-Defiency Act also protects those employees. Section 1342 also says that when the
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government is funded, each employee furloughed as a result of a covered lapse in appropriations
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shall be paid for the period of the lapse in appropriations at the earliest date possible
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after the lapse in appropriations ends, relevant to our beat. One of the government agencies
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that is paid out of the annual budget is the Department of Justice. So there's a question about
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whether the DOJ falls into those authorized by law or necessary to protect human life and property
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exceptions. And the answer is sort of. Yeah. So prior to the shutdown, the Justice Department formulated
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a contingency plan. We can link to it in the show notes. It says, with respect to litigation,
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the Department's plan assumes that the judicial branch will continue to operate, though possibly
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at a reduced level through the lapse. Therefore, criminal litigation will continue without interruption
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as an activity essential to the safety of human life and the protection of property. And just to
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just to kind of flesh that out, the judiciary has said that it can operate basically through the
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middle of October, maybe October 13th, or a little bit after that. So this is a short shutdown.
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Right. This says, we'll be fine if the shutdown is basically less than two weeks. If it's more than
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two weeks, we're screwed. And in addition to the judiciary itself, there's also an un-stated reason
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underlying this memorandum is to why the government's ability to prosecute criminal cases
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has to continue uninterrupted through any budget showdown. And that is the sixth amendment.
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The sixth amendment says in relevant part that if you are charged with a federal crime,
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you have the right to a speedy trial. And what's a speedy trial that is implemented by the speedy
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trial act of 1974, which is codified at 18 USC Section 3161, that says that the government
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must bring you to trial within 70 days after the issuance of an indictment or criminal complaint,
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unless there are agreed upon pauses in that 70 day clock. And there are no sixth amendment
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exceptions for, oh, our government is broken and prosecutors aren't getting paid.
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Right. But a lot of what we follow here are lawsuits against the government. And that is civil
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litigation. So here's what the plan says about that. Civil litigation will be curtailed or post-pone
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extent that this can be done without compromising to a significant degree the safety of human life
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over the protection of property. Litigators will approach the courts and request that active cases
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be post-poned until funding is available. If a court denies such a request and orders a case to
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continue, the government will comply with the court's order, which would constitute express legal
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authorization for the activity to continue. And so on October 1, when the government shut down,
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the justice department moved to stay more or less every civil case at once. And most courts
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granted those motions. A lot of them said, okay, as soon as the government comes back,
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you know, your response will be due in 10 days, whatever pending motions you have. But some judges
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did not agree, including Judge Geokab, who's presiding over a challenge to the deployment of state
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national guard units in DC. She cited the second part of that contingency plan and said, okay,
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here's that court order that operates as an authorization. So no stay for you.
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Right. The DOJ's own contingency plan says, if a court tells us we have to keep going,
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that is express legal authorization. Second, that plan also explicitly exempts litigation over
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temporary restraining orders and preliminary injunctions. And third, we're talking about cases
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where the plaintiffs alleged that the government is doing patently illegal, unconstitutional stuff.
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It would be ridiculous to say that the absence of a budget provides carte blanche for the Trump
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administration to break the law and were powerless to even challenge it. So for example, in Doe versus
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Noam, which is one of the immigration cases, the plaintiffs oppose the stay. They cited both that
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contingency plan relied upon by Judge Geokab. And also the fundamental unfairness of letting
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immigration enforcement proceed unaffected by the lapse in appropriations, which is happening,
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right, on October 1st, the US Immigrations and Customs Enforcement Ice, right, made clear on
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social media that its operations would quote, remain unchanged. So if ISIS continuing to round people
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up, then plaintiffs still have the right to go into court and challenge what ISIS is doing.
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Okay. So TLDR, we're not shutting down because our cases are not shutting down.
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There will still be litigation ongoing. But we do appreciate that a lot of people who
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listen to us work for the federal government are in and are in a rotten situation right now because
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they're not getting paid. And so all love, we hope that this ends. We obviously support Democrats
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standing up and not getting rolled. But we appreciate that there is a human cost. So yeah. Okay,
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a couple of other important news stories we're following today. The first is that the Supreme
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Court has found the one person in federal government, they will not let Donald Trump's
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in merely fire. And it just so happens to be the person whose termination could affect their
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retirement accounts. That's probably a coincidence. No, for sure. So a week before SCOTUS functionally
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overruled Humphreys executor on the shadow talk. That was the 1935 case where the court said
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that Roosevelt could not fire the chair of the FTC, the Federal Trade Commission,
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in defiance of the law that said the FTC chair could only be fired for cause. Donald Trump
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came into office immediately fired his FTC chair Rebecca Slaughter and the conservative justices
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said, go for it. Right. But they've been making weird noises about the Federal Reserve being a
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different class of animals somehow. They're still workshopping that fed exception. Anyway,
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the Trump administration filed for emergency relief asking the Supreme Court to stay the district
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court's order keeping Lisa Cook on the job, which would have run contrary to both the trial judge
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and the DC circuit and would have effectively allowed the administration to fire Lisa Cook,
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a member of the Federal Reserve Board of Governors. And like 10 minutes after the slaughter order
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came down saying, oh yeah, fire federal trade commissioner Rebecca Slaughter, that's just fine.
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The Supreme Court rejected the request to stay the lower courts order keeping Lisa Cook on the job
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and instead set the case for oral argument in January. So Lisa Cook gets to stay on the job on
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the Federal Reserve Board of Governors at least for another couple of months.
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Well, I suspect if they are going to hear it in January, they intend to leave her there.
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Probably in, you know, look, the Supreme Court doesn't issue orders the next day. Generally,
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it would be if January then, you know, until they disposed of the case maybe within three months.
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But I appreciate that they don't want to break any every single goddamn thing all at once.
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And speaking of not breaking shit, the first circuit joins the ninth in blocking Trump's
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effort to do away with birthright citizenship. Remember the Supreme Court used the issue of
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birthright citizenship to discover the here two four unobserved illegality of nation-wide
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junctions because they were all of these courts that issued nation-wide injunctions and said,
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that's completely unconstitutional. So it's unconstitutional nationwide. To be clear, the Supreme
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Court said nation-wide injunctions were highly disfavored and only allowed if nothing else could
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provide the plaintiffs with full relief. They didn't know this during all of those nation-wide
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injunctions against Biden trying to, you know, deliver on his campaign promises. But here we are.
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So previously, if something was unconstitutional in Maine, it was presumed to be unconstitutional
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in Montana and a judge in either state could issue that nation-wide injunction. No more.
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So that meant that all of those rulings were courts had said, no, you can't, you know,
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undo birthright citizenship by presidential fiat, you racist, goon, and issued nation-wide
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injunctions had to be reconsidered. And every one of those reconsiderations has come to the same
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conclusion that nation-wide injunctions are really the only remedy that will give adequate
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relief to the plaintiffs. And you really don't have to think about that one very hard, right?
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You are born in Maine. Two parents who are undocumented and you get a birth certificate. How do you
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know you're going to be able to travel to Texas and be treated like a citizen? You just, you just
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don't. And look, is Maine supposed to treat a child who was born in Texas but doesn't have a
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social security number like a citizen when she moves to East and like enrolls in public. So it's
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unworkable to have this patchwork. Yeah. And Liz, I'd like to read just the conclusion of this
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opinion to you because the judge is squarely situate this latest attempt to ban birthright
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citizenship in the context of so many of the most shameful, most racist chapters in our nation's
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history. The first circuit says, our nation's history of efforts to restrict birthright citizenship
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from Dred Scott in the decade before the Civil War to the attempted justification for the
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enforcement of the Chinese Exclusion Act in Wong Kim Ark has not been a proud one indeed.
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Those efforts each have been rejected once by the people through constitutional amendment
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and once by the court relying on that same amendment three decades later and at a time when
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tensions over immigration were also high. Even the denial of citizenship to Native American tribal
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members no longer persists thanks to a statute passed more than a century ago and then as a reference
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to the Indian Citizenship Act of 1924. The court concludes, the lessons of history thus give us every
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reason to be wary of now blessing this most recent effort to break with our established tradition
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of recognizing birthright citizenship and to make citizenship depend on the actions of one's
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parents rather than in all but the rarest of circumstances the simple fact of being born in the
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United States. Nor does the text of the 14th Amendment which countermanded our most infamous
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effort to break with that tradition permit us to plus this effort any more than does the Supreme
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Court's interpretation of that amendment in Wong Kim Ark the many related precedents that have
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followed it or Congress's 1952 statute writing that amendments words into the US code.
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Yeah, I don't think that there's any way to say it more plainly. There is no basis for getting
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rid of birthright citizenship other than racism. Racism is the main product of the Trump
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administration. We've seen that in every single thing that they've done the the impoundment issues
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where they refuse to spend money. Most of that is because they want to deprive minorities and
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disfavored populations of federal funds. We've seen that with these immigration actions which are
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so clearly racist. We're going to talk about those in a minute when we come back and birthright
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citizenship. There's no reason to do this other than gross racism. Agreed. Okay, we will be
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right back to talk about those immigration decisions in just a moment.
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And we're back. Okay, we are recording this show a day early and so we don't know exactly how
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things will have been folded in Oregon and Illinois as you are listening to this. This is a
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really kinetic situation. But we can make some general comparisons about the military deployments
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in these four US cities, Los Angeles, Washington DC, Chicago and Portland, Oregon.
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Each of these military deployments or attempted military deployments is proceeding in a sort of
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unique posture based on the different facts and law. But they are all playing into each other both
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in the ways that the government tries to position itself and in the court's responses. Although
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we're going to say DC has a big asterisk next to it because it's not a state obviously.
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It does, but DC should be a state and that should be a primary plank of the democratic party going
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forward. No exceptions. But as you said, Liz, the federal government has control over the
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district of Columbia in a way that it does not over the other three cities which are situated in
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states. So I agree with you, we should cabin what happened there in the main other than
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to point out that because the district of Columbia is not actually the Mad Max Hellscape that Donald
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Trump claims. Listen, all that much for the troops that he deployed there to do, right? We were
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left with those vivid images of troops wearing bright orange vests over their camo uniforms while
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wandering around picking up trash, which is a public service to be sure, but also a gross waste
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of resources. Totally. But then of course, Trump took credit for cleaning up DC. He was like,
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there's no more murders. We solved it all. Obviously. There's so ornamental kale. Uh-huh. But turning
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to Los Angeles on June 6 and 7 after ice swept in and started grabbing every brown person they could
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get their hands on, there were isolated protests and a couple of hours of low-level violence. That
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violence was immediately put down by the LAPD, which has some experience with riots. It did not rise
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to the level of an emergency, but it generated a ton of footage, which President Trump was able to
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cite in a memorandum calling up at least 2000 National Guard personnel into federal service for 60
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days or longer, supposedly to protect ice from protesters. Uh-huh. The asserted legal basis was 10 USC
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Section 1, 2, 4, 0, 6, which allows the President to federalize a state's National Guard if one of
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three preconditions are met. Those are one, an invasion or danger of invasion by a foreign nation,
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two, rebellion or danger of rebellion against the authority of the government of the United States,
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or three, the President is unable with regular forces to execute the laws of the United States.
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And clearly none of those three preconditions were met in Los Angeles, so the state of California
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sued, seeking an emergency injunction. Judge Charles Breyer agreed that there was no emergency and
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immediately enjoined that federalization order, but he was blocked by a very conservative panel
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of the Ninth Circuit Court of Appeals. So the National Guard stayed under federal control under the
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control of Secretary of Defense Pete Heggseth. The judges on the Ninth Circuit said that the President's
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determination that there is an emergency sufficient to satisfy one of those preconditions of Section
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1, 2, 4, 0, 6 is due a high level of deference, but critically not complete deference, right? It
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wasn't absolutely non-justiciable. The Court can review it, and importantly, a court does not have
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to defer to a determination that is made in obvious bad faith. Right, so the Trump administration
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argues here as it always does that the President has absolute, unreviewable power to declare
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emergencies. No court can counter him. Even if those declarations of emergency are based on false
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statements of fact, nothing a court can do about it, that's his position. He says we've seen this
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over and over. He says we're being invaded by the Venezuelan government, you know, using trend
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air, rock whiz, shock, shock troops. That's objectively not true, but he insists that courts have
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zero authority to review it. He wants the ability to declare alternative facts true simply by
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presidential fiat. As long as we're designing the Democratic Party platform after making DC a state,
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we need to get rid of these emergency power. That's clank too. But okay, we're stuck with this
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legal framework. The Ninth Circuit said that courts have to be highly deferential, but not entirely
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deferential. And so the Ninth Circuit pointed to the sporadic pockets of violence in Los Angeles
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that were cited by the government as justification, and they concluded, well, you know, it's not crazy
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to call this pitifully shit an emergency that prevented the president from executing laws. And
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because we owe his claims so much deference, we guess this is enough to satisfy 12406. In the meantime,
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that original order federalizing the California National Guard expired on August 6th. So the day
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before August 5th, Secretary Hegseth issued a new order federalizing 300 California National Guard
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troops for an additional 90 days. So they're going to stay on through November. The claimed
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justification for those extra 90 days was that original June 7th generic memo that you referenced
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list. This federalization was not tied to any specific emergency under 12406. The administration's
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view was, oh, we declared an emergency once it passed muster. We don't have to declare it ever
spk_0
again. That can justify sending any troops anywhere for any amount of time. And they did, in fact,
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talk about well, though, maybe protest in other states. So maybe we'll use these these national
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guard troops will keep up reserve of national guard troops deployed so that we can kind of dispatch
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them to go around the country. And I'm not sure that that's legal. But okay, put a pin in that
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because we're coming back to those troops. But that is California. Trump and his goons have had a
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hard on not to put to find a point on it to sick the military on blue cities forever. Wow, I'm
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betting a thousand here. Anyway, they seized on a couple of hours of kids throwing rocks as
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justification to do it in LA. But that is not what happened in Portland. They're President
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Couch Potato, saw some b-roll footage of the uprising in Portland five years ago. He thought
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it was real and current. And he announced on September 27th, he was directing Secretary of War,
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Pete Higgseth to provide all necessary troops to protect war ravaged Portland and any of our
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ice facilities under siege from attack by Antifa and other domestic terrorists. Thank you for
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your attention to this matter. This this pronouncement was made on true social. Obviously. And obviously
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Portland is not war ravaged and maybe Trump is too stupid to know that one never knows. But everyone
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around him is happy for any pretext to unleash violence on American cities where a lot of
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Democrats live. So the next day, Higgseth puts out this memo that says 200 members of the
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Oregon National Guard will be called to federal service effective immediately for a period of 60
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days. Yeah. And the asserted legal justification here was that same generic June 7th memo. But
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even more so than in Los Angeles, it is clear that none of the preconditions for section 12406 were
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met in Portland. So Oregon went to federal court seeking an injunction to block the federalization
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of its National Guard troops. That case was first assigned to Judge Michael Simon, who is a
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Biden appointee. He recused himself at the government's request because his wife is a member
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of Congress. She publicly opposed the troop deployment. So then the case was assigned to Judge
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Karen Immergut, who is a very conservative Trump appointee. She worked for independent council
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Ken Starr back during the Clinton impeachment. She was the lawyer who personally deposed Monica
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Lewinsky. But as conservative as she is, she is not mega red-pilled. She served as US attorney for
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Oregon. She was a state court judge. She actually, as far as we can tell, believes in the rule of
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law. And she bench slapped the shit out of Donald Trump's plan to federalize his Oregon's National Guard.
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Yeah. So remember, we just talked about this. The ninth circuit said, judges have to be
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deferential to the president's claim that the 12406 preconditions were met. But they can still
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evaluate the evidence. And so Judge Immergut went through everything happening outside the federal
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immigration facility in Portland in the past six months, particularly the month leading up to
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Trump's proclamation. And she said that the government's version of events was simply untethered
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to the facts. That's a quote. I actually think this passage sums it up. She said, defendants
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describe only four incidents of protesters clashing with federal officers in the month of September
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preceding the federalization order. The first involved protesters setting up a makeshift gillotine
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to intimidate federal officials. The second involved four people shining overpowered
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flashlights in the eyes of drivers. The third involved someone posting a photograph of an
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unmarked ice vehicle online. And the last involved additional drivers having flashlights shown
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in their eyes. These incidents are inexcusable. Well, maybe, but they are nowhere near the type of
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incidents that cannot be handled by regular law enforcement forces. They also occurred at least
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two weeks before President Trump issued his directive. More broadly, these incidents are
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categorically different from the violent incidents as described in Newsom 2. That's the
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the case at the Ninth Circuit that took place in Los Angeles when the president federalized the
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California National Guard on June 7, 2025. So that then record brought Judge Immergut to the
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conclusion that Trump's decision was not conceived in good faith, which the Ninth Circuit was said
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pre-wreck was it for reporting at any difference at all. She quoted Trump's own words about
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war-ravaged Portland and professional agitators who were paid a lot of money by rich people and
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anarchists and crazy people burning down buildings, including federal buildings. And she concluded
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that whatever the factual basis the president may have had for these allegations, nothing. Nothing
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in the record suggests that anything like that was occurring every night or even any night
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outside the Portland ice building where in the city of Portland in the days or weeks leading up to
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his September 27th directive. She said, in some, the president is certainly entitled to a great
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level of deference in his determination that he is unable with regular forces to execute the
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laws of the United States, but a great level of deference is not equivalent to ignoring the facts
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on the ground. Here, here. Okay, we're going to take another ad-break, we will be right back.
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Now, as you can imagine, the Trump administration has already appealed Judge Immergut's order
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to the ninth circuit. It is not clear to us if this case will be assigned to that same bad panel
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as related case, right? It's a different deployment. It's a different plaintiff. I could see it going
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either way. But whether it goes to that same panel or not, I think Judge Immergut has done as
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good a job as any trial court can do of persuading that panel. Hey, look, you said we owe this determination
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deference, but it is not unreviewable if there's any daylight, right? If deference means
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actually evaluating the facts, this is entirely made up. And I'm cautiously optimistic. What do you
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think, Liz? Well, I think, look, I think I'm optimistic, although I think it depends on the panel,
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but I just, I want to highlight the ways that these two situations were different, right? Because
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in Los Angeles, Trump sent in ICE to be really confrontational and effectively provoked a response,
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right? And then the response, which was entirely predictable, was cited as justification to deploy
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the National Guard. Here, he didn't do that, right? Like, I mean, I think ICE was in Portland,
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but it wasn't, it wasn't the same level of conflict, but Trump convinced himself that there was
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this conflict and then cited his own delusion as justification under 12406 to invoke the National
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Guard. And that's why you got a different response. I mean, I sort of different. Yes, Judge
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Breyer in California initially, you know, enjoined the deployment of the National Guard. That was
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overruled, but taking into account the ninth circuit's decision, overturning Judge Breyer,
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Judge Immorgate was able to reach the opposite conclusion. And I think there's a strong case that
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the government's appeal of Judge Immorgate's decision in Oregon should not go to the same panel
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because the facts are so very different on the ground. And this whole situation is evolving.
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Remember, we said that hegezeth had retained some of California's National Guard troops as this
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kind of deploy at will around the country force. After Judge Immorgate said that
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Oregon's National Guard troops could not be deployed. Hegezeth has now said he's going to send
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California's troops into neighboring Oregon. Governor Tina Koteck in Oregon says she's going to
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challenge this. And indeed, I think I see right now, although I haven't looked at it, there's an
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amended complaint on the docket and another request for an emergency temporary restraining order.
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And Governor Gavin Newsom in California says that he also will challenge the deployment of
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California's National Guard troops to Oregon. Yeah, a couple of things here. Number one,
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Governor Newsom also filed an amicus brief in that first challenge and basically said, hey,
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California went through this already and it is clear that this is pretextual. So Governor Newsom
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is active in the Oregon case and has been involved as an amicus. Point number two, the legal basis
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here. I expect Oregon to prevail almost immediately. It is just crystal clear. National Guard
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troops can be deployed broadly speaking in one of two ways. They can be federalized under 10 USC
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Section 1, 2, 4, 0, 6 put under the control of the federal government in those emergency
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situations. And then they are deployed within the state in which they have been federalized.
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That is title 10 status ordinarily National Guard units remain in what is called title 32 status.
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That is 32 USC Section 502F. That means they can be paid and supported by the federal government.
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But the chain of command they remain under the command of the state National Guard commanders.
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And ultimately subject to the governor of the respective state as commander in chief. And the
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critical thing is there is both text of the statute and controlling case law that says
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National Guard units must be in title 32 status to be deployed to a different state. And they
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must be deployed. They can only be deployed with the consent of the governor of that foreign state.
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And you can imagine why that would happen. Like during Hurricane Katrina for example, you would
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say National Guard units from neighboring states into Louisiana to aid in the cleanup efforts.
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If the governor of Louisiana says yes, we welcome the help. There is no precedent for
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and no legal allowance to deploy National Guard units from one state into another state without
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the second state's consent. The reason is because of their experience with the district of
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Columbia because Washington DC is not a state. The law was unclear and the Trump administration
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sent National Guard units from other states from red states into DC. The law is very, very
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clear with respect to sending those units into a different state. And so I expect that Oregon will
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prevail. We'll get a TRO before this show goes to air. Okay. So now let's talk about Chicago.
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Which is also very much influx. We're recording a day earlier than we usually do and that day is
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Monday. So God knows what's going to happen. As of now, there are these horrible ice raids going
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on in Chicago. I'm sure you've seen all of this coverage, including that astonishingly illegal
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raid on an apartment building where ice pulled out all of these people, including some of them
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were clearly citizens in the middle of the night. Babies pulled out in their pajamas and zip tied
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together and put in trucks for hours and hours. The reporting there is that ice agents divided the
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residents that the black residents. It's a mainly black and Hispanic building. The black residents
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were put in vans and locked up for hours and the Hispanic residents were separated out and
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screened for their citizenship and for potential deportation. There was massive destruction.
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The building was basically trashed. Every unit had its doors broken down. There does not appear to have
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been a warrant for this kind of search. There may have been some kind of some kind of warrant to
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pick up non-citizens. But I think it's important to realize, I mean, we've talked about
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Kavanaugh stops, which a law professor named Amiyalka Khan coined the term because of
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Justice Kavanaugh on the shadow duck. It explaining why they allowed certain,
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well, this is within California. This is other litigation coming out of ISIS,
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raising California. A judge there named Mommy Frimpong issued an order that said,
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ice could not use race along with occupation, language people are speaking, speaking English
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with an accent, or where they were standing. Could not use those four factors alone or in combination
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to justify a search or a detention stop that couldn't be probable cause. And the Supreme Court's
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conservatives said, yes, you could, although they said it quietly. They said it on the shadow
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duck, but Justice Kavanaugh, Leroy Jenkins to his friends, said, oh no, it's fine, race is fine,
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race is a perfectly good. Let's do some racial profiling. And he talked about this as such a
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hell fellow well met. He characterized it basically as like the ICE agents say, hey, are you a citizen
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and you say yes, sir, I am. And then everybody goes on their way. And greenlighting that, there is a
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straight line between Kavanaugh, greenlighting those detentive stops that he imagined in his mind,
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even though we've all seen ICE agents tackling people with no probable cause other than you are
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brown and in public. There is a straight line between that. And this thing that happened, the whole
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sale arrest and zip tying babies in the night, that's on Kavanaugh, that's on the court's six
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conservatives. Indeed, I want to talk about three things with respect to Chicago. The first is
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the administration clearly trying to replay the Los Angeles playbook in terms of sending in ICE
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and having them be as disruptive as possible to provoke protests, hoping that those protests will
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turn violent and then hoping that they can use that violent protest as the basis for asserting that
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they can't enforce the law under 12406. And I would add that that puts the mayor of Chicago and
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governor JB Pritzker of Illinois in a difficult spot, right? Like I see folks on our side asking
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why is the Chicago police department, right? Why are you helping ICE do these horrible things?
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And the answer is because you're in this impossible spot, right? Like if the local police
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obstruct ICE and prevent them from doing their job, that too can become evidence that says,
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see, ICE can't get the job done. That's why there must be federal troops sent in to protect them.
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So it's this really difficult tightrope to walk to say, no, you don't need to invoke 12406.
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We are perfectly capable of enforcing our own laws. And I have to say with respect to that,
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the way that governor Pritzker has handled this publicly is I think a model for other governors that
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make it may have cities targeted by the Trump administration. He took to social media and said,
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this morning, the Trump administration's Department of War gave me an ultimatum. Call up your
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troops or we will. It is absolutely outrageous and un-American to demand that a governor send
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military troops within our own borders and against our will. Yesterday, Christine Noems masked
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agents through chemical agents near an elementary school arrested elected officials exercising
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their first amendment rights and rated a Walmart state, county and local law enforcement have
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been working together and coordinating to ensure public safety around the broad view ICE facility
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and to protect people's ability to peacefully exercise their constitutional rights. And then he went on
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to have a call for no violence. And I just can't echo that strongly enough. If people protesting
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are violent, that will be cited by the administration as a justification to escalate the violence.
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So I know it's provocative. I know it's not fair. I know it's hard to have to play by the Marquis of
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Winsbury rules when the administration is being illegal. But that is the strategy for prevailing
spk_0
in court and keeping the troops out. What do you think, Liz? Yeah, I'm not totally sure that I agree
spk_0
with all of that. I think it's really hard to ask people who are under attack, who are literally
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under attack. I do not think that if someone came for my child or my mother, I would be able to
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obey the law. And so it's a difficult situation. I agree with you that that's what's happening here.
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That the Trump administration is trying very hard to provoke something that they can point to
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as violence and as justification to deploy the National Guard. I'm not really sure
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what they think they're going to get out of it. Some people have suggested that deploying the guard
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is itself a step, an intermediate step, to get people used to soldiers in the streets so that we can
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be close, one step closer to military rule. I mean, I can't read the mind of these horrible thugs.
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Like, why do they do the cruel, horrible things that they do? I mean, yes, racism, but I'm not really
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sure. Yeah, you were reminding me of the order from Judge Young in Massachusetts that we talked
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about on our last episode, right? And one of the things he said that struck me was he said the Trump
spk_0
administration has successfully convinced a large segment of the population that ICE is responsible
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for law enforcement when it is not responsible for law enforcement. So I think I think you're on
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to something with respect to changing public perception and making it seem normal that, yeah, no,
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this is just what presidents do. They send masked armed troops into cities on a whim. And I wouldn't
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think it could happen here, but I wouldn't have thought, yeah, most of, most of 2025 could happen here.
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All right, that is gloomy as hell, but we do have a little fun and frivolity for you to, as a
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reward for sticking around, if you wait for us after the ad break, we got Alex Jones getting what's
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coming. We'll talk to you in a sec.
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Okay, on last Tuesday's episode, we told you there was drama in the Alex Jones bankruptcy
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and an emergency hearing scheduled for Wednesday. We listened in on that hearing and it did not
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disappoint. I know we've said this before, but it looks like Alex Jones is finally, finally,
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running out of road in his effort to use bankruptcy to fend off the Sandy Hook parents. He and his
spk_0
company free speech systems owe them over a billion dollars. And that debt is non-distartable in
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bankruptcy because it is the result of a willful tort that that that torts defamation. So far,
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the Sandy Hook families have not seen dollar one from Jones, but I think, I think that is finally
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about change. So, okay, remember Alex Jones runs the show Info Wars through FS free speech systems
spk_0
of which he is the sole owner. There have been several bankruptcy filings. The only one that's still
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alive concern is Jones's personal bankruptcy under chapter seven, which is liquidation. That's where
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the court sells off all your assets and splits up the proceeds among your creditors. FS says,
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was in bankruptcy, but that case got dismissed last fall. When the case got dismissed, the Texas plaintiffs,
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because remember, there's two sets, Texas and Connecticut in the Sandy Hook plaintiffs. The Texas
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plaintiffs went to a state court and tried to seize FS S's assets. That's the IP customer lists,
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courting studio, the buildings, whatever. At that point, bankruptcy judge Christopher Lopez
spk_0
said, no, we're going to deem that stuff and asset of Alex Jones's bankruptcy estate and auction
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it off. So he issued a supplemental order blocking the seizure of those assets in state court to the
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Texas plaintiffs who had gone to court and said, give us FS S, we're not allowed to seize it.
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Right. That auction, as we covered at some length, did not go well. And when it fell through,
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Judge Lopez essentially threw up his hands and said, fine, we're done here. I tried to get
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these assets handled in bankruptcy where similarly situated creditors would be treated similarly.
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But no, I was trying to head off a race into state court where whoever gets their first gets it
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but you guys wouldn't cooperate. So fine. Have at it. Have a race to the court house, which the Sandy Hook
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families then went out and did as far as we can tell, they got on the same page, cooperated,
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went into the Texas courts and said, okay, these assets are no longer being auctioned off. Give it to
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us. We're going to attach them to satisfy our judgments. But Alex Jones's lawyers have been
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opposing those attachment orders by waving around that supplemental order from Judge Lopez
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from before the auction and telling state courts, no, see, free speech systems is a part of the
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bankruptcy. And therefore, if it if it were, it would be subject to what we've talked about before
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the automatic stay. So the argument was you cannot execute that seizure of those assets.
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That would seem to me to be a lie. Judge Lopez did not call it a lie, although he did say to
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Jones's lawyers, you just don't understand bankruptcy law. There's a fine line between making a
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clever argument and being stupid, right? But here's the thing. That old supplemental order was a
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written document issued in a bankruptcy court signed by the judge stamped and everything. So you
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can hand it to a bank and it looks official. Now that order got rescinded, but Judge Lopez
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rescinded it early in several different hearings. But the Sandy Hook families had to rebut that
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introduction by offering up transcripts of those oral readings and look from a practitioner
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standpoint, I get why local courts and why banks and other places of like they don't want to touch
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this. They're not going to second guess the easiest thing to do is to say, look, I don't know who's
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right here. I'm just going to err on the side of caution and not turn over something where a bankruptcy
spk_0
court could could later command could give me a drop. Right. So the Sandy Hook families filed an
spk_0
emergency motion to confirm that the assets of FSS are not property of the Alex Jones bankruptcy
spk_0
and can be seized in state court. And if they got such an order that would give them their own
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written signed document that was stamped today, which they could hand to the state judge and say,
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give us FSS. And that's what they got. Judge Lopez gave them an order which they can now take
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back to court and get the FSS assets. And to avoid future confusion if there was confusion. And
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frankly, I do not think that it was. I don't think Judge Lopez thinks that it was. But he also
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ordered the trustee Christopher Murray to dispose of the equity of free speech systems. Right.
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That is Alex Jones is 100% ownership of that LLC. The equivalent of having a stock certificate. It's
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called a membership interest because the slippage here seems to be the difference between FSS,
spk_0
the LLC and the assets that the business owns. Because remember, free speech systems itself was
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also a defendant in those Sandy Hook defamation lawsuits. It is therefore jointly and severally liable
spk_0
for that billion plus dollars of judgments. Right. And jointly and severally means that the plaintiffs
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can choose who to go after. They can go after the FSS assets to satisfy that judgment. And because,
spk_0
as you said, Liz, that that debt was non-destartable, it survived the FSS bankruptcy that got dismissed.
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So what that means is that no one in their right mind would buy FSS the company. Right. They'd
spk_0
be buying assets, encumbered by a billion dollars worth of liabilities. And so look, I don't know what
spk_0
the info was IP is worth, but it is a whole lot less than a billion dollars. Right. So what the trustee
spk_0
Chris Murray did was file a notice of proposed abandonment, that is, pursuant to 11 USC section 554.
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Now, that provision of the bankruptcy code is typically used for things like when an estate contains
spk_0
swamp land property that's been condemned. And what the debtor does in declaring bankruptcy is
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give all of the assets over to the estate and let the trustee manage it. But the trustee looks at it
spk_0
and says, oh, this is worthless. I don't want to administer it. Get it out of here. Right. So the
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language of the statute says that after notice and a hearing, the trustee may abandon any property
spk_0
that is burdensome to the estate or that is of inconsequential value and benefit to the estate.
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So by abandoning it, now nobody owns free speech systems. FSS owns a bunch of assets, though. And all
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of those can be seized by its creditors, including using the ordinary attachment process in state court.
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So long story short, I think this week, the Sandy Hook parents will be able to go into Texas
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State Court and take FSS, take Infowars, take all of the all of those assets and deprive Alex Jones
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of the benefit of his hate megaphone, which is used to harm them to harm society, to harm all of us
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for so many years. Yeah. And one more wrinkle. I have no knowledge if this will happen. But if
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the Infowars intellectual property winds up in the hands of the Sandy Hook plaintiffs,
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that might revive that deal that got rejected during the auction, right? Where the
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satirical website, the onion, would run the Infowars website, which look is we need some good news
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in 2025. Oh, we absolutely do. But look, irrespective of whether the onion comes back in,
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because that was absolutely perfect. And I also would love for that to happen. But shutting this
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thing down, that's important, right? Look, obviously Alex Jones is going to go somewhere else. He's
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going to go do some other thing that will be destructive to society. But ending Infowars, that
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matters here here. Okay, that is going to do it for us today, unless you are a subscriber at patreon.com
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slash long casepod or law and ks pod dot com. In which case, we have a fun little segment on the
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national review and US attorney for the Eastern District of Virginia Lindsey Halligan, although
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maybe not question mark and Sam Alito, but in a good way. Also question mark. All right, if not,
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we will talk to you guys on Friday. We have a fun interview and we will be back as usual on Thursday
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with written content. Thanks guys. Law and chaos podcast is production of Razips Media LLC is
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intended solely as entertainment does not constantly go by. It does not form an attorney client
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relationship. This shows research in written by Liz Dye and produced by Bryce Blankenegel.
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Long casepod operate Razips Media LLC all rights reserved.
Topics Covered
government shutdown
Department of Justice lawsuit
FOIA request
judicial ethics complaint
Trump administration
federal judiciary integrity
Portland National Guard
Section 12406
Alex Jones news
Chief Judge James Boasberg
judicial complaints
fiscal year budget
Congress appropriations act
emergency funds
anti-deficiency act