Actually, I Would Like to File The Opposite Thing, Please

0:00Hey, this is Josh Barrow back with another episode of Sirius Trouble. For all listeners this week, we have some updates on the Department of Justice, on their effort to drop and then reinstate their appeals of those cases where their orders against troublesome law firms got thrown out. We look at an apparently aborted investigation into Joe Biden's auto pen, which Jean Piro's office looked at charging and then didn't. And we look at a threat from the Department of Justice saying that if state bars investigate DOJ employees, then they will take, quote, appropriate action, unquote, against those state bars. However, if you're a paying subscriber, there are many more topics we cover this week. We look at a ruling that protected congestion pricing in New York and that ruling turned as these things so often do on the president's social media posts. We look at a ruling from the Court of International Trade, or an order telling the government to stop dicking around and start sending out those IEPA tariff refunds. More resistance from the bench in West Virginia and some updates on interesting criminal cases. Some Goldstein's conviction in that case where he gave that interview to Jeffrey Tuban right before going to trial and then took the stand.

1:02Goldstein did not seem to work any magic for himself there. We look at a superseding indictment in that St. Paul church protest case. And then we look at a case from Alabama about when a giant penis protest costume becomes an illegal traffic hazard. Seems that's something that we will get a court ruling, a jury trial verdict on sooner or later. If you want to hear all of that, go to SiriusTrouble.show. Become a paying subscriber for $6 a month or $60 a year and you get all the giant protest penis case coverage that your heart could possibly desire. We'd love to have you as a member. Go there and upgrade. See you soon. Hi, it's Ken White and it's Josh Barrow and this is SiriusTrouble. So Ken, those Trump administration actions against law firms, which we haven't really talked about in some months, I think, at this point, there were, I believe, nine firms that settled with the Trump administration and four that sued all four of those one in the trial courts.

2:03And there'd been this question of how the Trump administration was going to proceed with those cases. And they filed a somewhat surprising notice a few days ago saying that they were not going to appeal those cases and the four firms that won they would let those stand. This was covered in the news and then a day later, they was like, oh, no, oops, we changed our mind. We do wish to appeal these after all. And so I guess, first of all, can you do that? Are you allowed to say, you know, I don't appeal and then come back and change your mind? I guess technically you can, but it's deeply embarrassing and discrediting because I mean, here you've got these, these four very strong lower court decisions against Trump, really excoriating his legal position on this. They appeal. They have this consolidated appeal and then they just filed a saying apparently the last minute just before their brief is due, their appellate brief, asking to dismiss it voluntarily.

3:04And then the next day they turn around now, sure, if the court hasn't yet dismissed it, you can say, okay, I didn't mean it, sorry, but I wouldn't. And I've never seen Department of Justice do something like that before. It is just, I mean, it's a huge blow to their credibility of the appeal and that the court of appeal should believe that they actually have a good position. It also seems as if it was kind of done in a way where perhaps the administration just didn't like the publicity and the news coverage that came out of them deciding to drop it, that someone got irritated that they were doing that. And the part I like the best of all this, Josh, is that so when they, when they filed their request to take back their request to dismiss, they had to notify the court that they'd let the other side know and what the other side's position was and the other side's position was, we oppose you doing this and also we don't think it's a valid reason to get an extension on your brief, right, which kind of, which kind of signals that the Department of Justice is now kind of up the creek in an addition to having this issue

4:06wants like an extension of the time to file its opening brief because instead of writing it was engaged in this shenanigan. Well, that, that strikes me as perhaps the more important thing than it being embarrassing because the whole thing is embarrassing and the whole case is weak to begin with. But if you know, if, if you go back to the court and say, actually, I've changed my mind, I would tend to assume the court would not be very sympathetic to that as a reason to give an extension of time. And so if they, if they appeal, does that mean that they get to appeal, but they don't get to submit a brief explaining why they appeal? Well, the truth is that in general, courts of appeal have a very strong bias in favor of resolving things on the merits instead of based on a default like missing a deadline. And so generally, if you need more time, even if it's for a fairly weak or embarrassing reason, you'll get it with some sort of admonition that you're not going to get more than this or this will be the last extension or, you know, we expect better of you or something like that.

5:07So I doubt it's going to wind up in a default, but hypothetically, if they kept doing this, yeah, if, because you, as the appellant, you have the obligation to file a brief that identifies all the things a lower court did wrong and all of your factual and legal arguments for why it did. And if you don't have a brief, then you lose. And that's it. One suggestion I've seen from a number of people about why the administration would have felt compelled to do this about face has to do with the nine firms that settled. That one question was, you know, if these court rulings throwing out the administration actions against the four firms that didn't settle are upheld, the, there's some question about, you know, or the contracts with the other nine firms, the settlements are those valid, are they enforceable? Now I don't know about the extent to which those settlements are being formally enforced to begin with. Right. You know, the, the firms, among other things, agreed not to do things that are already illegal. They agreed to do some amount of mutually interesting pro bono work and it's not clear about the way that's being measured or enforced.

6:09So again, and I think, you know, to step back, the broad rule of law thing people are concerned about are not so much that the administration was going to go into court and enforce a contract against Paul Weiss. And Kirkland and Ellis, we're going to feel compelled informally to, you know, take certain actions or not take other actions. So I guess, you know, is there a thing where, you know, if the administration gives up on its appeal here that they lose some sort of formal leverage over these other firms? No, I don't know. To the extent they had any formal leverage, they still have it. There's no doctrine where, you know, just because someone else challenged it that your case is like automatically disposed of because these were settlements, these were agreements. So to the extent they're enforceable by some sort of action, they're still enforceable. Now, if Paul Weiss or one of these other nine firms finally grew a spine and decided to defy the administration, there might be questions about whether or not the administration could enforce those agreements or whether it could impose consequences on those firms.

7:11But I think those firms probably want to keep their head down because it's embarrassing to be one of the nine firms that caved to Trump here where the four that stood up one disarray on the table. And I don't think they necessarily want to call attention to that. Meanwhile, another, you turn from the administration that we learned about from news reports based on leaks is that there was an investigation into the auto pen. This is the, you know, what the president has to sign lots of documents, but sometimes they use this machine to sign the documents. And this question about, you know, when this was done at scale in the Biden administration, including when they, they issued a substantial number of pardons toward the end of the administration, the question of was this process legal by which they had done this? And so, you know, if there's been news coverage about this, first of all, I just tend to assume that this is exactly the sort of internal other branch activity that the courts are very unlikely to get into, just like the courts don't try to interpret the rules of the U.S. Senate. They are unlikely to try to, you know, interpret, you know, the internal rules of the executive

8:13branch about how they, how exactly they convey that executive branch actions have been taken. But apparently there was some sort of criminal investigation into this that they didn't pursue. And absent from this news coverage is any idea of exactly what federal criminal statutes they suppose that somebody would have violated. I guess maybe that's why they didn't proceed because it's not even, the news reporting isn't even like they took it to a grand jury and they got it no build. It's not even clear what, you know, how far along they got in terms of coming up with some theory of criminal liability. Well, this was one of the projects of Ed Martin, who had been the so-called weaponization czar. Remember, Martin is our friend who shows up in a trench coat outside a target's house. In the dead of the summer. Right. Well, you know, it could be chilly. So, you know, I don't think there was ever any really here here. I think it was always mostly a political thing with where the important so it was the message that, you know, Joe Biden is old and adult and that type of thing.

9:15There was some talk about the theory might be that Biden administration officials had auto pen signed things that the president had never approved. And that could conceivably be some sort of crime like fraud on the United States or false statements or something like that, depending on the nature of whatever it is that you auto pen. But it was always a big left and I mean, it doesn't surprise me at all that they're just letting it quietly die because I think it was always there for public consumption of propaganda more than anything else. And the House Republicans have now released some sort of report that they're, you know, saying as a blockbuster shows how the auto pen was overused and, you know, it's all nothing. Okay. Some other DOJ news this week. There's this memo that came down from the DOJ complaining about state bar associations basically. I guess they're concerned as if state bars are investigating government lawyers. They want to they want to be able to stop them from doing this. And so I guess, first of all, how does this ordinarily work?

10:17If you're a practicing lawyer, you have to be a member of the state bar in the state where you operate, even if you're in federal court. Yes. So all lawyers have to be admitted to some bar and generally you have to be admitted to the bar of the state where you are practicing, unless you have special permission. And so it's always been the case that Department of Justice lawyers are bound by state bar ethical rules. And historically, this is sometimes caused tension between justice department and state bars. There's some rules that do not mesh exactly with with federal criminal practices. This is an example. You know, there's a very common state bar ethical rule that you as an attorney are not allowed to contact directly and directly somebody else's client. So if I'm in a litigation, if I'm the lawyer in a litigation suing you and you're represented by counsel, I can't call you and say, hey, you're lawyers and idiot.

11:18You should settle. Right. I can't do that. Now, the Department of Justice has always said, okay, that's fine. That doesn't apply when federal prosecutors are directing investigations in which undercover agents and cooperators and people like that interact with people who happen to be represented. So that was an example of like this tension between state bar rules and Department of Justice. But this now that they're talking about is kind of something of an escalation. And it remains to be seen how much of it is just noise. It's spun as an expansion of this fight against weaponization. You know, this concept that Trump administration is going to fight back against the government being used against political enemies, which is kind of comical. And so what this proposed new regulation says is that when there's a state bar investigation of a current or former Department of Justice attorney, the attorney general can ask the state bar to put it on hold, to stay it while the Department of Justice does its own

12:19investigation and then tells the state bar what its results are, which the state bar can respect or not. And so if it's just a request, then that's not a big deal, but there are two elements in here that are a little weird that are raising some eyebrows. One is that they say, basically, well, that the state bar doesn't agree to stay the investigation while we investigate, then we may direct our attorneys not to cooperate with the investigation. And that could mean the state bar couldn't get information from the Department of Justice and needed to evaluate the ethical claim. And the other part is that it says that if the state bar does not agree to stay, the attorney general can take what's just vaguely termed appropriate action. So there's a real question. What does that mean? Does it mean anything? What does that mean? I think it means whatever the attorney general decides it means. So there's no like inherent authority of the federal government and the Department

13:20of Justice to give orders to state bars. So I think we'd have to find out what an aggressive attorney general like Pam Bondi would take that to mean and what she would do. So certainly, at least you're talking about saying no one can respond to any questions from the state bar. And are we talking about some sort of attempt to get an injunction? I don't know. I don't know how they could do that. I don't know what the law would be. But it seems to be more like a veiled threat that may or may not have any substance to it. Is the subtext here? I mean, we've been talking a lot about federal courts where you have Justice Department attorneys who are not causing their clients to comply with orders who are not filing briefs on schedules that the judges impose. There's this sort of widespread noncompliance often arising out of learned helplessness where it's like you have a lawyer who has 200 cases and is genuinely overworked and cannot,

14:21in fact, you know, can't comply with all of the court's orders because the Justice Department has chosen to understaff itself. Is the idea here that there are that some state bars might take action related to that in addition to the courts themselves trying to figure out what kind of action to take in those cases? No. I think it's more, it's kind of a hangover from, you know, during the Biden era and into the Trump era, all those state bar investigations of the various trucks and air duels of the first Trump term and of the 2020 election dispute. But most of those people didn't work for the Justice Department. Some of them did. Jeffrey Clark did. Right. But, I mean, the Justice Department can only, you know, reach out on this as to its own employees. I see. I think they're thinking about like the proceedings against John Eastman and Regina Annie and all these other people. And they're, they're either they're wanting to make sure that doesn't happen again as to any Justice Department lawyers or they're anticipating that this might start happening if they're aggressive conduct and court starts generating complaints.

15:24I don't think it's about just the incompetence. But, John Eastman wasn't an employee of the Department of Justice. I guess technically Rudy Giuliani is a former Justice Department attorney because he was as a US attorney in the 1980s. Right, but this is about people based on their Department of Justice behavior. So yeah, but I think it's mostly just part of this general narrative that all these people came after us and now we're gonna stop that. It's easy to send letters. I guess it remains to be seen whether this letter, whether it's something that a state bar needs to take seriously if it receives it. I think any state bar that is concerned enough about a Department of Justice attorney's conduct to be investigating it, which is historically very unusual, because prosecutors generally don't get investigated, it's probably gonna be concerned enough not to yield when the attorney general comes and says, I want you to slow down. Right, so it may be just setting up an narrative for whatever the AG decides to do to try to thwart them.

16:25There's a lot of administrative procedure act cases that come across our desks and for Ken's benefit and listeners benefit, we don't cover most of them because they are a little bit headache inducing a lot of the time. But we are doing one this week and I wanna thank Ken for slogging through this 149 page opinion from Judge Lewis Lyman in the Southern District of New York. This is the case over congestion pricing in New York City. There's a pilot program that was approved by the under the Biden administration, by the Transportation Department. There's a federal law basically, like if the federal government paid for a road in general states are not allowed to put tolls on it, but then there was a law creating certain exceptions to this that the Department of Transportation can create programs. They did that for congestion pricing in New York. But then Trump came in and congestion pricing has been a hobby horse with the New York Post and Trump obviously himself has, is a sometime New Yorker even though he's technically a resident of Florida now. And he's set about seeking to kill the congestion pricing program and Sean Duffy the Transportation Secretary announced

17:28in a letter just a few weeks after getting into office that the program was revoked, that in fact the Transportation Department had never had legal authority to approve this program and that the state had to stop collecting the tolls by March of last year. New York has sued, they got a TRO and then a preliminary injunction and now this final order from Judge Lewis Lyman saying that the congestion pricing program can stay and that the Trump administration violated the administrative procedure act in various ways when it tried to issue this revocation letter about the program. That a fair summary? It is, although I think you left out a significant amount of pain, yeah, you know what I'm talking about. That's it for this week's free episode. If you want to hear about congestion pricing and how it was saved because Donald Trump tweeted congestion pricing is dead with a picture of himself as a king which Judge Lewis Lyman found did indicate that was in fact final agency action and therefore subject to administrative procedure act review. We promised the most fun APA case you've ever heard. We look at a ruling from the Court of International Trade

18:29telling the government it has to actually start issuing those IEPA refunds at least to people whose tariff payments are unliquidated which means they hadn't been finally calculated yet. We look at the ongoing resistance from the Bench and West Virginia to ICE actions, Tom Goldstein's conviction and that giant protest penis case. You know, how many giant protest penis cases can you possibly hear about? We have one for you that we think you'll be very interested in. So again, SiriusTrouble.Show Upgrade become a full-on listener who gets all of our full episodes we'd love to have.