Lawfare Live: Debriefing the D.C. Circuit's Argument Over Contempt Inquiry

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1:03You're either speed or is it security? You're either custom or are you ready to use? Or you're AWS AI with hundreds of models ready to use agents, speed and security built-in. You don't have to pick a side. You can have them all. How will AI revolutionize your business? AWS AI is how? It's Laugh Fair Live. I'm Benjamin Wittis, Editor in Chief of Laugh Fair. It is 2 o'clock PM Eastern time in Washington, DC on September 29th. I am here with Laugh Fair Senior Editors Roger Parloff, Anna Bauer, and Molly Roberts. We are talking JGG, which is on its second trip or maybe its fourth trip, depending on how you count to the DC circuit.

2:04The DC circuit heard hundreds of hours of oral argument in the case this morning. If you count by judge hour, we had the full on-bunk court there for a long, long time. I only got to watch about an hour and a half of it. But we had Molly Roberts in the courtroom. We had Roger and Anna listening to the whole thing remotely. And we are going to go over it all. So Roger, get us started. How do you count? How many times this has been to the DC circuit? And what was the issue before the court today and how did we get here? I would say that this piece of it has been to the court, I guess, sort of four times. And there's another piece that we forget about that.

3:05So basically this goes back to March 2025, so two months after Trump took office. And so in mid-March, the ACLU begins to learn from immigration lawyers that their clients, Venezuelaans are being shipped to suddenly from all over the country to the border, the Texas border. And ACLU knew that during the campaign, and even as early as 2023, Trump and Steven Miller, were speaking about possibly invoking the Alien Enemies Act. And they were under the view that you could remove a whole group instantaneously with no due process, with this act. This is the 1798 act that's only been used previously during declared wars. And then on March 14th, they got some information that Trump may have signed the AEPR

4:10acclimation, but secretly. And by law, it can't take effect till it's public, but apparently it was, I think they got word. We also now know that there was a meeting at DOJ that day that's gotten a lot of attention where Emil Bovi allegedly told the immigration litigation department, Emil Bovi, who was then principal associate deputy attorney general, and is now a third circuit court of appeals judge, allegedly told them that over the weekend, that was a Friday of the 14th, that over the weekend was imperative. I'm not using the exact words that the planes take off. And it might be necessary to consider saying, fuck you to a judge who ordered that not to occur. And then so by 3.5 March 15th.

5:14Was that a, that was a crude summary of Bovi's more refined remarks on your part, right? No, no, that was those were the words. Okay, for sure. But of course, now, now make sure everyone knows, no, Bozberg didn't know that the plaintiffs didn't know that that doesn't become known until maybe months later. So all of the rest occurs without us knowing that. So ACLU rushes to court at 1 a.m. on, it's a Saturday, the March 15th, because they're afraid these planes are going to take off. That's what their clients are telling them. In fact, planes were loaded on March 14th. I mean, but apparently there was a mechanical problem and people had to get off. So at 9.40 in the morning or sometime around, sometime after 9 a.m. Bozberg enters a TRO as a temporary restraining order as to the five

6:21named plaintiffs. But of course, it's a class. There's hundreds that are going to try to, as we learn later, 137 that they're going to try to get out under the Alien Enemies Act. The government argues, tells Bozberg, there's no need for a hearing on these cases on the class until Monday or later. So they try to stall until it's too late. But he sets a hearing eventually because the ACLU is insisting at 5 p.m. The government at the hearing still won't say when the planes are leaving. They won't say if they have any information. They imply they don't. Anyway, the ACLU is hearing that they're about to leave or have. So he calls a recess. Bozberg asks Drew Ensign the attorney to see if he can find out what the status of the planes are. Around 5.20, they resume around 6. We know that two planes left off, we now know, during the recess.

7:29They resume at 6. And Ensign still says he has no operational details. Won't say if the planes have left or not. At 6.53, Bozberg enters an oral order. And most people think that that, I think everyone thinks, except possibly Justin Walker, Judge Walker, thinks that that was crystal clear. It says, he doesn't want anyone disembarked or deplained outside the country because he doesn't want to outside of ICE's custody. He doesn't want to loot. He loses jurisdiction if they're no longer in ICE's custody. He knows they're supposed to be going to El Salvador. He doesn't want them deplained in El Salvador. He says, turn the planes around. He says, or just don't deplane them in El Salvador. And then he says, I'll write a written order. So you don't have to write all this

8:31down. That's fateful. Then at 7.25, so that's 32 minutes later, I'm sorry, during the hearing, he, that was a class order. That was as to the class. 7.25, he writes, it's a written memo order. It's, I mean, it's a, it's a squib type order. And it begins as we discussed, I don't have it in front of me, but as we discussed earlier today, and then there's memorializes the written, the oral order, exactly. And, and, but, or, and it uses the word, you know, the class, which is defined as non-citizens in the custody of DHS or ICE, shall not be removed. And so, okay. So then one of the

9:32D, a, a, DOJ lawyers who is listening in, this is on a telephone line. I think both, I think both Anna and I were listening in. And we don't know to this day how many at DHS or DOJ were also listening in. We know Drew was there, Drew Ensign was there. And we know that this guy, Ruvani, Eras Ruvani, a DOJ lawyer, I think, Deputy Director of the Immigration Litigation at the time, was listening in and writing emails to 23 government officials, nine in DOJ, some in DHS, some in state, telling him what was going on. And so he begins telling them, you can't disembark anyone, right? You won't disen, because that'll be contempt. Don't disembark. Don't deplane them. It'll be contempt. I think he writes three. Nobody writes him back. He's sort of freezes him out. So apparently,

10:36what develops at DOJ and DHS, somebody, some lawyers decide. And we know that the people who worked on this include Blanche, we know Bovy, the current Attorney General Blanche. And we know the, then General Counsel of DHS, Joseph Masara. And they develop a theory that there was ambiguity in the written order. And nobody is arguing that there was subjective ambiguity. Like somebody said, Oh, I didn't know to pose for what he meant. They're saying that look at the written order, and it says removal. So does removal mean surrendering custody to El Salvador, where Bozberg loses jurisdiction, or does it simply mean removal across the border, which has no impact

11:38whatsoever on jurisdiction? And so the theory develops that in the 32 minutes between his oral order and the written order, who knows, maybe he completely reverse directions and decided to issue an order about territorial removing it outside the territory, even though that's irrelevant to everything. So Judge Bozberg tries to start criminal contempt proceedings and begins and that's where a couple different man-day misses are taken by the government to stop him. And three, for 16 months, and a man-day-mess, just for those who don't know, is a special emergency appeal. It's a very disfavored form of appeal in which you ask a higher court, or sometimes

12:44a lower court, to order an official to do their job. So in this case, you do it because the district court order is so outrageous that he's not even doing his job, his job is obvious, and you're asking the higher court to step in and order Judge Bozberg to do his job, which would be to rule for you. So on each, there's two of these. On the first one, on each of them, the government draws, well, both sides draw, a panel of three that includes two Trump appointees. The first time, it's Rao and Catsis, and Rao and Catsis both vote for man-day-mess, but for different reasons. And they don't join each other's opinion. It goes up, and by the time it gets up there, it goes up for possible end-bank review, meaning the full court. And by the time it gets up there,

13:47there's something, you know, the Bukayli in, well, there's been a prison swap, and the people in Sakat, who are the plaintiffs here, are moved to Venezuela, and that changes the situation, and it actually makes for a complicated reason. It makes Rao's theory go away. And so they decide not to do a rehearing in bank, but six of the 11 judges make clear that Bozberg can go forward and make fact findings. It goes down for three weeks, and then there's a new man-day-mess. And this time, it's another panel that has two Trump appointees on it. It's Rao again and Justin Walker. And and they this time, they develop, they take the theory, which was Catsis's original theory, about the written order being ambiguous. And it's it's objective ambiguity, and so it doesn't matter

14:49the fact that nobody's really confused by it. And then that just went up, and that's what this argument is about. And so that's basically where we are. We sort of knew from the other hearings how we knew there were six judges who thought Bozberg should go forward. We knew there were three judges that were the Trump appointees I mentioned who were opposed. We didn't know where Serena Vassen stood, who's the chief judge, and we didn't know where Judge Henderson stood, Karen LeCraft Henderson, who we still don't, and we still don't because she wasn't there today, but she's going to participate in the outcome. So anyway, I think that's where it stands. All right. And and very quickly, before we get to today's argument, what was the question before the court today? Well, first, Mandamus, as you said, has a very high standard. And what the government,

15:53so one question is whether there is Mandamus, you have to show, government has to show a clear and undisputed right of it has been violated. And they're also supposed to be able to point the president, DC Circuit, you're supposed to be able to point to a like case. There obviously there's no like case. But actually, and I don't, well, anyway, so that's one issue. And the key questions being argued are, the does the, they feel the government feels that Bozberg knows enough now. He already did issue a probable cause order at one point, even before Ruvane, he's letter, the whistleblower letter, saying there was probable cause to believe there was criminal contempt. And they say at that point,

16:53his role ends, he can refer, but he has to refer it to DOJ. So he revers this investigation of blanch in essence to blanch. And you know, tough, yeah, that might not, they might not pursue it, but that's the way this works. You know, the executive branch, it gets these decisions. That's what prosecutorial discretion is about. So the other argument is that they can't even make a referral. They're saying that now that three district, three circuit judges, all Trump appointees, yes, but three circuit judges have said that the interpretation that the government gave was plausible, how could you possibly bring criminal contempt against an attorney? I mean, it's clear as day that it had to be ambiguous. Three people thought it was. Oh, I said they wrote they thought it was, at least on an objective standard. So I think those were the key ones. There's also a slight

17:58argument about, there's that, the argument that's popular on the internet, but I think it's a back, it sort of takes back seat here, which is, you know, the Supreme Court overturned. Originally, this case was tried. It was brought as both the habeas and an APA claim administrative procedure act. Bozberg during the opening hearing said, can we get rid of the habeas? Because I think it's easier to do, APA and legal, the ACLU lawyer said, yeah, it's okay, I think. And went up to the Supreme Court and they said, by the way, you know, all of these people, I know they ruled that all of these people sent to Sacate, they're due process with violent, but this has to be brought as a habeas. And so judge Bozberg, Bozberg, because he didn't have habeas jurisdiction, because habeas you bring in the district of confinement and these people

19:03were confined in Texas, he sits in DC. So it shouldn't have been him. And so there's an argument that, oh, well, the argument, the order is now void. You can't bring a criminal contempt case based on a void order. And there's a lot of law saying you can. I think the DOJ, they present that, I don't think that's their main point. Their main point is separation of powers that we are the article two, we are executive branch and you can't have a judge looking into investigating a criminal contempt. Once it reaches the investigation stage, that has to go to a prosecutor. Now, the question then, two questions, does it have to go to DJ or a DOJ, or can he can he appoint a private prosecutor? And that's another issue, which we can talk about later, but I think those are the main issues floating around. All right. So Molly, you were in the room

20:08today. And for those who have never been, I assume this was in the ceremonial courtroom of the DC Circuit at the Barrett Prettyman courthouse. It was indeed. I had never been so very excited for me. It's a cool room, right? It is a cool room. Yeah, it's a very big and high ceiling, and the ceiling is very white, and the marble behind them is kind of light, and then there are these plaster busts of figures representing justice in some form. I think. But yeah, no, it was a grander than I'd realized they had in there. Yeah, it's a cool room. And so how many judges were there in addition to the non-protein, the brooding omnipresence of Karen LeCraft Henderson? Okay, okay. Yeah, I should know the number off the top of my head, but I can do it for you. Okay, five, ten, ten judges. Yes, ten judges. Plus one who was notable for, and by the way, I just want to say about Karen LeCraft Henderson here who was not there. She is one of the least

21:12predictable justice judges on this court. So she is very conservative and sort of was used to be thought of as a reliable conservative vote, but she was the dissent. She was part of a strong, the majority that the Supreme Court overturned in the immunity case. She wrote a very strong opinion in that. And then she was the dissenter in the anthropic case the other day. And so usually it's not like when Clarence Thomas doesn't say anything. And she's like, well, you know what he's going to do anyway. I would say I don't know how to think about what she is likely to do in this case. I know she'll have strong feelings about it because she tends to have like feel very strongly about things, but I honestly don't know. So we have ten judges there and one about whom we know nothing.

22:13Molly, like, you know, they say you can't predict something from an oral argument. Predict something from an oral argument. Who's going to win this case? Do they say that? You could maybe, you know, predict something. Perhaps not everything. Yeah, I mean, I think that, sure, I will make the prediction that I'm not supposed to predict that in some form or another, the plaintiffs or the, you know, it's being represented. I've probably one of the things that that Judge Rao had an issue with was the fact that effectively Judge Roseburg is being represented by the plaintiffs here. But anyway, that that that side will win here based on what happened in the oral argument. I mean, I think I'm fairly positive that every judge who was present except Garcia spoke, although some spoke at much greater length than others. So I judge Millette was very vocal on kind of the going hard on the government and questioning them,

23:23both when it comes to how should this investigation, in fact, she said, everything you're doing is word play on what you mean by investigate. We could call it an inquiry instead, but in how this fact finding should go and whether it's reasonable to suggest as the Department of Justice was that it has to proceed in this really specific way. So she was quite vocal. I think that Judge Pan, particularly toward the beginning, again, about the investigation made it fairly clear, well, as Roger mentioned, a majority of the judges on this panel already said that Judge Roseburg could proceed. So you need to show us something different and unusual that has happened that for there to be any reason that that wouldn't hold. So she made that fairly clear. And Judge Childs, I think also made pretty clear, well, she was sort of saying, you know, if we even speak to

24:25the clarity of the order question here, which both sides actually wanted them to do just in favor of their side versus just say the investigation can proceed. Does that incentivize the government to kind of try to bypass the process and go and get them in Davis relief when they get the legal question answered when they shouldn't be able to get legal question answered. Yet when that should just, you know, go all the way through the whole process of eventually, you know, contempt proceeding. So, you know, I don't know that she's interested in ruling on the clarity of the order, but she seemed to have kind of a strong view on how the other question should come out of whether you can continue to investigate. Think of a toilet as just an everyday object. Your entire perspective shifts the moment you experience a collar smart toilet. Design changes everything, transforming a basic routine into something extraordinary, with standout aesthetics and intuitive controls. These are functional works of art, stunning design that never sacrifices performance.

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26:32With ready to use agents and the broadest set of AI tools and services, you can build, buy, or partner your way. Stop overthinking. Start building. AWS AI is how. And were there any surprises in terms of the party composition of the court? I listened to part of it, but honestly, my ability to distinguish male DC circuit voices from one another and female DC circuit voices from one another is not that great. And so, were there any Republican appointees who seemed to be giving the government a hard time or Democratic appointees who seemed to be giving the ACLU a hard time? I think that it was for the most part predictable. I mean, I think that judge Rao was really

27:33uniformly in a very predictable way being hard on the plaintiffs and the JGG plaintiffs and being kind of easy on the government and even arguably sort of bailing the government out in a few places. And she was the only one where it really felt that way, where it felt like throughout the argument, kind of nearly everything she's doing is going in that direction. And then as far as Katzis and Walker, we know how Katzis feels. We know how Katzis feels. On the other hand, there was this sort of dispute about the chief judge offered this sort of semi-hypothetical of if all we knew was what happened in the hearing. If we only had the oral order and the surrounding context of the hearing, but we didn't have a written order at all, is there any case to be made that going ahead and disembarking these people anyway would be compliant with that order. If we didn't have the written order, which judge

28:36Walker believes supersedes the oral order, we know that, and which Katzis believes isn't clear about the meaning of removal and Rao believes that too. So if it were just the hearing and the oral order, would it be contemptuous? And then of course, the government was sort of evasive on answering that, but was trying to answer, oh no, it was ambiguous even in the oral proceeding. And Judge Katzis basically said it was the oral order was crystal clear. So that was somewhere where he butted in and essentially said no, it was clear in the hearing and then he later said, I think you're actually very strong on the oral order. And so for him, it really just is about the written order being different. And I would suspect that, I mean, I think we know that Judge Walker feels similarly from his concurrence in the second panel where the majority opinion was was Rao and Walker, but then he added on this concurrence where he said that the written order

29:37superseded the oral one and that, you know, the government had complied with the oral order when it was enforced, but then it was not enforced very long. And then Judge Walker didn't say very much. And he mostly just had this one colloquy with the plaintiffs where he was saying, well, it was all very heat of the moment by the seat of the pants. It was this kind of new law that you probably haven't litigated before, have you. And so he seemed to be gesturing there at the idea of like, well, you know, it's not, and as you can't know for sure that they would interpret it to whether in the, in the, whether in the oral case or in the written case, it may not have been totally clear to the government how to interpret what was going on. So at the end of the day, how many votes on each side can you count with confidence not about how they'll reason it, but, you know,

30:38you feel like you know pretty well what side it seemed like we know what side patty Millet is on. We know what side Judge Pan is on. Judge Child is on. Yeah, and I was taking a long time. I could have kept going. We know what side Judge Wilkins is on. We know what side Judge Pillar is on. Judge Garcia didn't say anything. So I'm not going to make any prediction about that. So yeah, and then, and then I think Rao is extremely clear. And again, I mean, we've seen what the other, and we seen what all the, what all the people, all the conservative justice on the panel said, and I don't really, you know, see why they would go against what they did. It's now being. We got five to three with a, um, with two silent rooting omnipresences. Is that? I think that's fair. Yeah. I mean, I, you know, I know that it was hard for Roger and Anna to kind of assess who was saying what, but if that seems that's why we put people in the courtroom at law fair, if that seems glaringly

31:43wrong to them, they, they can say, but yeah, it seemed to me that that was a, that's a fair tally. But, but I didn't get the sense, I didn't get a good sense from listening and, and part of this is because it's, it is hard to tell who is saying what, but I did not get a good sense among the three, like the three who, uh, it seems like would rule in, in the government's favor. Um, I, I kind of got the feeling they are not going whatever it is that they do, uh, to get there. It's not going to be the extreme that the government wants, which is this idea that, you know, a court, all court can do is kind of ask the parties for a briefing. And then if the government gives the name, then, you know, that's kind of where the court's inquiry ends. Right. I mean, the, the, the, the government's position here seems on its face pretty unreasonable. Yeah. And, and I have to say judge Millette.

32:52I think it was judge Millette, but Molly, you were there. Correct me if I've got the wrong email voice here. Um, I, I think she was, you know, she really cornered Brett Chumate, uh, the, the council for the government into saying, okay, wait, you turn over a single name as the decision maker, which in this case is Christine Noem, who's conveniently not in office, any, right? And, um, and, and then all of a sudden the judge has to stop inquiring about who else contributed to the, uh, to, to the contempt. And by the way, I mean, she all but said, but didn't quite say, I don't believe Christine Noem made this decision by herself. I think she had a bunch of lawyers and she had Stephen Miller whispering in her ear and telling her what to do. And I don't want to adopt a rule that says judge Bozberg can't look behind the government's representation about who the

33:57male effector was. I think he needs to be able to ask though was Steve Miller giving the orders behind the scenes question. Um, what, first of all, am I wrong that that was patty Millette, who really, I mean, that was a, that was a bruising exchange with, with, with, uh, Schumade. And, uh, secondly, um, you know, I don't think he quite ever recovered from that, you know, in terms of, like he, he never answered the question, why, why is that good enough for the inherent authority of the district court? Yeah, it was judge Millette. I think the exchange that you're talking about, she wasn't the only judge who said similar things. Judge Pan said something quite similar to, you know, why do we have to accept these declarations? And, and Judge Millette came back to the declarations too. And, and I think maybe Judge Pillard did too. I should figure out exactly,

35:00I don't want to get it wrong, but there was one judge who described in this probably was Millette who described those declarations as skimpy. So, you know, basically saying, right, why do they have to take this at face value, not just that they gave a name, but also that they gave a name and they gave a declaration, but it was two sentences long. It was cursory. So, so yes, yeah. Well, and also, I think it was around this time, and I'm not sure who exactly said it, that the FU to the courts thing came up and without saying. We can say fuck you on. Both Millette and Pan did, but Millette called it X-plit of you to the courts and Pan called it FU to the court. Yeah, we don't need to be so coy on on law fair live. Yeah, well, okay. So, the the fuck you to the courts comment came up and without mentioning now third-circuit judge Emil Bovi, this, you know, was raised as a kind of, and what if a name is given and it and then new evidence comes to light that the government

36:02attorney was saying, let's say FU to the courts. Corinthians is Bovi J. Right. And and so that itself I thought was a really remarkable moment, but then that's when, you know, judge Rao in one of many moments of kind of stepping in to seemingly defend the government makes this argument of like, oh, well, you know, what else is there through questions seems to make this argument of, oh, well, the judge, I didn't get the sense the judge is contemplating looking for other contaminors. You know, it's just at this point the question of whether the contempt was willful on the part of a Christy, not Christy gnome, but then that set off, you know, more a further kind of debate amongst the judges about, well, is the judge looking for to identify more contaminors? And

37:04it seems like the majority of the judges felt that Judge Bozberg had been clear that potentially other contaminors could be identified through this process of ending quarry. Did you guys get that sense as well? Oh, I, I had the sense that that's, I think they were going back through the record and Judge, Judge Pellard was going back through the record and pulling up precisely where he had said, you know, officials plural and and and other kind of yeah, facts like statements of his on the record that made it clear that he was interested in other people. Roger, you were going to say something. Exactly what Molly said. I thought Judge Pellard put that to rest. She had the, she had the goods really. Yeah, so the center of gravity of the DC circuit is really for the first time in my life, notably or my, my adult life anyway, notably to the left of the center of gravity of the supreme court. And I tend to think Judge Katzus kind of represents a fairly good sense of where the center

38:11of gravity of the supreme court is somewhere between John Roberts and Amy Coney Barrett. And so I look at this and I say if you don't yet, one of the conservatives on the DC circuit in a on-bong majority, that on-bong majority looks very vulnerable to me if the government goes for cert on it. Roger, do you agree with that? Well, your reasoning is sound. The thing is if you accept the government's reasoning, then I think you really diminish the court's powers tremendously. And I don't know what Chief Justice Roberts is going to think about that. Pellard said, you know, she really went to the crux of it, which was this separation of powers.

39:17You know, the government is saying it's a separation of powers issue. The courts are encroaching on our prosecution powers. And the courts and she's saying, look, separation of powers cuts both ways. This, you know, for several hundred years that we've thought that it was an inherent power for courts to enforce their judgments. And she says something to the effect, if judges' orders are optional, if the government can disregard with impunity, that is a diminution of the Article 3 courts. At bottom, that's what this case is about. Our Article 3 courts at the mercy of the executive. And if the executive branch can determine we don't want to be stopped by a court, and if we are, we will ignore it. And we'll do our best to keep our noses clean. But if the court thinks there's a problem, we in the end will be in charge of whether that will be tracked down. That's this case. And so I do think Katzus does represent, in fact,

40:29sort of the center of, he is a good barometer of where the Supreme Court will come down. But those are the stakes. But let me make a further Katzus argument here that that this is why his argument about the ambiguity of, or the conflict between the two, the ambiguity of the written order relative to the spoken order is potentially such a lifeline to the conservative justices. Because it allows you to say, yeah, yeah, I agree with, you know, if it hadn't been for that written order, of course, Judge Bozberg has the authority to the the spoken order is crystal clear. And if he hadn't just screwed things up by issuing that written order that muddied the waters, of course, he has the authority to investigate and to

41:33find out what happened in his court inherent authority and all that. But he spoke out of both sides of his mouth, even though he didn't really. But we create this idea he spoke out of both sides of his mouth and the order wasn't clear. So you're never going to prosecute anybody. And because you're not ever going to prosecute anybody, you can't investigate something that could never result in a plausible prosecution. It seems to let the air out of the balloon granted based on a bit of a factual fiction. But if I were a centrist, you know, one of the more centrist conservatives on the Supreme Court, this is a this is the lifeline you want to grab onto. What do you think Anna? Am I am I creating? Am I creating a Greg Katz's cult of personality here? I mean, look, maybe that is the lifeline that you want to grab onto you, but it certainly doesn't like

42:35I think that if you are someone who is known as kind of more of, you know, judge Katz's I'm not so sure that he has the same institutionalist kind of concerns that to the same level that Chief Justice Roberts does, right? Because Chief Justice Roberts is like kind of thinking more broadly than just like a DC circuit judges. So maybe that's kind of also a background consideration that someone like Chief Justice Roberts would have. But I do think you're right, Ben, that that is kind of a lifeline here, but it still doesn't change the fact that that's a I mean, anyone who listen, like I listened to that hearing live, I think any attorney who was listening to that hearing live, any judge, everyone knew what Judge Bozberg meant and what he intended by that order. And it's

43:39just such a fiction to be sitting here talking about, you know, oh, the written order superseded the oral order and it was absolutely a fiction. It's just a complete fiction and it just it really to me is quite to suggest otherwise is just kind of a wild. Oh, I will say further on this is that I think it matters a lot for the future prospects of this case, whether they get one conservative. And Karen LaCraft Henderson, if you're listening, bring your game to that. So, okay. Can I ask Roger, though, a question about what he made of the rule 42 kind of questions and arguments you mentioned that Roger, if you could explain

44:40that a little bit more to us and if there were any important concessions by the government here in the questions about rule 42 and private prosecution and all that kind of thing because I found that stuff to be interesting even if it's not at the moment maybe the most important issue at the forefront of this particular at this juncture. Yeah, rule 42 of the federal rules of criminal procedure discusses criminal contempts and the note how especially what's relevant here is indirect what's called indirect contempt. So, you know, if if somebody is nasty to you to your face, you know, the judge can strike him down right there. But this is not that situation. The the contempt, alleged contempt occurred outside and it has some, it's states that you need to give,

45:52the judge needs to give notice and included in that notice has to be and actually you give the state, you state the time and place of trial and you allow obviously, and you state the essential facts of constituting the contempt and then it also says you appoint a prosecutor and normally you appoint an attorney for the government. You don't prosecute it yourself as the judge, but it also says if the government declines the request, the court must appoint another attorney to prosecute the contempt. Nobody sure if that last sentence is constitutional. And so, what some of the judges were saying was that, you know, it says you're supposed to, the judge has to get to this point where he can give notice and that's a big deal. And so he needs

46:53to do some fact finding in advance and you don't want him to just say, okay, I'm referring Christie Nome, although I don't really think she was the decision maker. I think that's a crock, you know, I think she's a scapegoat. You don't, and also it says you need to state the essential facts constituting the criminal contempt. So he has to do some sort of fact finding before this. There was a nuanced point which I did not get, which had to do with a change in the rule at some point after the young ruling. And I can't speak to that. The young ruling, which is lurking in the background here, is very important. It's a 1987 ruling by Justice Brennan. It's a 7-to-2 ruling. But conservatives did join it, including Chief Justice Renquist, who at the time was

47:55considered very conservative and Justice O'Connor and Powell. But the person who didn't join it was Scalia. And it's the same year as his Morrison-Villes in the Senate. Yeah, and it's along the similar and related issue. So it was a trademark case originally. In fact, it involved Louis Vuitton. And they were, you know, a counter-fitter. And so I think it began as a civil case and the judge issued in order to whoever it was not to counterfeit Louis Vuitton's product. And they violated that order. And so he wanted to prosecute a criminal contempt, the judge. And they did. And he appointed a private, the government wouldn't do it or didn't do it. And he appointed a private prosecutor. But he

48:57appointed opposing counsel Louis Vuitton's lawyers to prosecute it. So there were two questions. Can you ever appoint a private prosecutor, not the US government? And second, if you can, can you appoint the private, can you appoint the opposing counsel? So the majority opinion was, yes, you can appoint a private counsel. No, you can't do the opposing counsel. That guy is conflicted. He has too much allegiance. He's not like a public prosecutor. He's too much allegiance to Louis Vuitton, which wants to get blood. But Scalia, and he was the only one. But in a sense, today, he seems to be the only one who counts. He said, no, you can't appoint a private counsel at all. So that's lurking in the background here.

50:01And there was, there's some important verbiage in, young in which the majority talks about the nature of the role of the prosecutor. And, um, and that influenced a change in rule 42 over the next several years, although the details of that change, I'm not certain of it. I believe to my memory based on the discussion of the hearing, there was something to the effect of it used to be that the prosecutor under the rule would go to the judge and ask for an order to show cause, identify, you know, something to that effect. And then if there was a change to do away with that, and so the idea was that, that actually, at least some of the judges seemed to suggest that whatever the change specific change was in rule 42, um, was, uh, supported the arguments being made by the

51:06plaintiff. So against the government. Um, but okay, that, that clarifies some things. Thank you, thank you, Roger. I appreciate it. Yeah. That last thing that you said, Anna, that was Wilkins was very interested, Judge Wilkins was very interested in that particular question of, do these changes to rule 42 actually make it so it kind of has to work the way the JGG plaintiffs are saying. And yeah, he was generally interested in kind of the, how does this technically work? He was also interested in the question of basically like, can the prosecutor, this is referred to use a grand jury because they're not really using, they don't need it for the indictment. So can they use it for other stuff? And if they can't use it for anything, really, then you need the judge to do more facts finding. So basically the idea that like, they're just kind of practical ways that it's necessary for the district court judge to be able to do more facts finding than the government was suggesting that he could do. Just so, one important point here is that this sort of case comes up

52:11extremely infrequently. And the normally when you hold people in contempt, it is in civil contempt, which is to say in a coercive effort to make them do something comply with the order that they're not complying with. Criminal contempts fall into kind of two categories. One, if you, you know, if you go into court and curse out the judge, the judge will point at you and say, you're in contempt, you know, which that's sort of the inherent contempt power, right? It's sometimes thought of as contempt within the sight of the judge. You, you know, you did something bad, the judge saw it and ordered you locked up for a day, right? But this is different. This is you violated a court order. It's past the point where you can be forced to comply. And so the judge is punishing you for not

53:15complying. And that does require a criminal trial. And the circumstance that makes these unusual is that the actor in question is the government itself. And therefore, the government can't be expected to prosecute it. That situation comes up very, very rarely. And it does happen every now and then. The government doesn't want a prosecutor case for some reason. And so the judge has to decide how to handle it apart from that. I've only seen one of those cases. And it was when Ken Starr's spokesman Charles Bakaly was accused by Judge Norma Holloway Johnson of leaking grand jury information. And, you know, they come along. They do happen. They happen very infrequently. And that he was prosecuted as a matter of criminal contempt and was acquitted. All right. Do we have anything

54:21else before we break? Yeah. So really quickly, one final question that I wanted to ask Molly and Roger is that we haven't really talked about is how do you think council on either the government or legal area? I learned for the ACLU handled this question of the jurisdictional question of whether you know, there's in some way, it's not possible that contempt could have, that there could have been a basis for contempt because of JGG went up to the Supreme Court and the Supreme Court made a ruling about, oh, you brought the case in the wrong venue. We should have brought it in Texas. That did come up, especially when the ACLU was up for questioning. I was just curious if either of you had thoughts about how that might play into all of this. I don't think that that'll be the a tough point. I thought you learned, handled it. And I don't think there's that many

55:29even among the three that want to go that route. That was Molly. Did you? No, I think that's right. It seemed like even Judge Rao was skeptical of going that route. That was the one point on which it seemed even she was skeptical. I think that's a point that's very popular on Twitter and the sort of thing, Pam Bondi used to have a size. But I don't think that's a point they're going to see. Now that we have responsible leadership at the justice department, we have they would never rely on such an argument. Now, Roger, you get the last word today. I only heard three voices, the same three voices that we already knew trying to defend this man, Damace, out of 11. So I think the math is in the petitioner's favor. But

56:32the question then is what sort of order comes down? And what the easiest thing to do would be the least informative, which would be to say, you haven't made the stiff showing you need for man, Damace. So denied. That doesn't help anyone. That would we've been there before. And three weeks later, we were back in the same place. And so you want them to give some guidance about what can he do and what can he do? And the tricky thing is to deny man, Damace, and yet give that advice. Because what is your, but I think they will do that. I think they sort of have to. And you know, I, maybe, you know, how far can you go before you need to appoint a private prosecutor? It's a tough, it's a tough call because it's so likely that appointing a private prosecutor

57:37is no longer constitutional with, with the Supreme Court. And if you can't, then it's dead on arrival. So it's really this find these findings are going to be the only findings anyone ever makes. And how much leeway do you get him, let him go. And of course, the attorney client privilege questions will follow. We are going to leave it there. This podcast is a part of Lafayr's live stream series. You can subscribe to Lafayr's YouTube or substack to receive an alert the next time we go live. Thanks today to Anna Bauer, to Molly Roberts, and to Roger Parloff. Lafayr podcast is produced by the Lafayr Institute. You can get an ad free version of this and other Lafayr podcasts by becoming a Lafayr material supporter at our website, lawfayrmedia.org slash support,

58:38where you will also get access to special events, like this one, and other content available only to our supporters. Our audio engineer, this episode was the incomparable Anna Hickey of Lafayr. And as always, thanks for listening. Tom or just stop by. Granger for the ones who get it done.