Seven Legal Matters and a Possible Ceasefire

Tonight, we turn to the legal matters we will follow this week. But everything continues to happen with the omnipresent concern about what Trump has unleashed by bombing Iran. Those of us who were around when the Bush administration attacked Iraq understand the reality that some of the things reported as facts during the first hours and days after a strike like this turn out not to be true. Already, there are concerns that Iran’s nuclear capability has not been destroyed. And The New York Times reported that Trump’s decision to engage was at least partially motivated by the desire to get credit for Israeli strikes, which were “playing” well on Fox News.

We are stuck in a place that doesn’t make sense.

Monday, as Trump announced a ceasefire, Iran continued to aim at civilian targets in Israel, striking a building in Beersheba. Early reports indicated three people were dead and three more critically injured.

Alabama Senator Katie Britt said on Fox that Trump would, “no doubt,” win the Nobel Peace Prize.

But while Trump is ready to claim victory, saying Saturday night that U.S. military forces “obliterated” the targets, making those site assessments takes time.

Whether intentional or not, the attack on Iran provides a diversion from events at home, including Trump’s supposedly big, beautiful budget bill, and other domestic disturbances that have awoken the public. The fog of war can be used to extend a smoke screen over events close to home, which makes it more important than ever for us to stay focused. There is a to pay attention to this week.

Trump’s Call for a Special Prosecutor

Last Friday on Truth Social, Trump called for the appointment of a special prosecutor to investigate the 2020 election. It was hidden in between a rant about Joe Biden and a “MAKE AMERICA GREAT AGAIN” battle cry. Trump, who can’t let go, yet again falsely claimed victory in the 2020 election and pointed to fraud as the reason for his loss, writing “this cannot be allowed to happen again.”

Last December Trump told “Meet The Press” host Kristen Welker he had no interest in pursuing revenge prosecutions. But the post seems pretty clear. Does Pam Bondi have the fortitude to refuse a command like this?

George Orwell, 1984: “Every record has been destroyed or falsified, every book has been rewritten, every picture has been repainted, every statue and street and building has been renamed, every date has been altered. And that process is continuing day by day and minute by minute. History has stopped.”

Gutting DOJ

Increasingly, one wonders whether the DOJ will have the manpower to do much more than immigration cases and defending the government in all of the cases where it is being sued. If you recall the buyout offer the administration made to federal employees in its first weeks, known as “Operation Fork in the Road,” 4,500 DOJ employees who accepted it will be off the books in September. That includes more than two-thirds of the 380 career lawyers in the Civil Rights Division, which will shrink to a remnant of its former self. With new priorities that focus on issues like protecting Christians and white folks from discrimination, will DOJ, which has virtually sole authority to prosecute federal law enforcement officers who use excessive force, step in to investigate a situation in Los Angeles where officers are captured on video in what appears to be the use of excessive force on an immigrant who has already been detained and is on the ground?

The detainee is reportedly the father of three Marines. The video depicts an officer repeatedly punching him after he has been secured. In normal times, the Civil Rights Division would already be investigating to see if there should be a prosecution for excessive use of force by law enforcement. Although the state can also investigate, if these are federal law enforcement officers or those working on their orders, immunity issues make successful prosecution unlikely. This is the Justice Department’s job.

Mahmoud Khalil

On Friday, Mahmoud Khalil, the Columbia University student who has been detained since March in connection with his pro-Palestinian advocacy during student marches, finally won his release on bond while the case against him proceeds. The Judge was critical of the government’s efforts to keep him in custody, finding he was not a flight risk or a danger to the community and rejecting the government’s efforts to stay the order of release.

Friday evening, the government appealed the decision to the Third Circuit Court of Appeals. We can expect additional proceedings this week.

Kilmar Abrego Garcia

On Sunday, a federal Judge in his criminal case for smuggling ordered Kilmar Abrego Garcia released from custody. The standard is the same as in Khalil’s case—the Judge found he is neither a flight risk nor a danger to the community. The Judge was sharply critical of the allegations made by the government in that case, which include claims he was “sexually inappropriate” with women, whom they say he was smuggling. She seemed to suggest that the available evidence did not support those claims. However, it’s likely he will remain in immigration custody, which is separate and independent of the order to release him in the criminal case, while that prosecution moves forward.

And the Trump administration has already asked the court to stay Abrego Garcia's release order in the criminal case. There is a hearing set for Wednesday.

Senate Judiciary Confirmation Proceedings

The Senate Judiciary Committee is holding a confirmation hearing on Wednesday for Trump’s former personal lawyer, now DOJ official, Emil Bove, whom he has nominated to a seat on the Third Circuit Court of Appeals.

Bove, who has recently been mentioned as a short-lister for the Supreme Court if one of the Justices announces their retirement—we're close to the end of term moment where such announcements usually happen—is already drawing strong opposition. A video was released today featuring two of his former DOJ colleagues explaining why they did not believe he would operate impartially if confirmed to the bench. Bove, who worked on the January 6 cases at DOJ, fired his former colleagues despite being aware that they simply worked on valid cases assigned to them. He was also involved in the sordid matter of dismissing the charges against New York City Mayor Eric Adams after Adams promised to assist the administration with its mass deportations. There are also allegations that he behaved improperly as an assistant United States attorney in Brooklyn. Senator Cory Booker has called for the release of information in that regard.

Masked Agents

The matter of federal agents, especially those working for ICE, covering their faces in public has come to the attention of the New York City Bar Association. After reviewing the law and discussing the potential problems that could develop when agents are masked, the Bar has concluded, “the administration cannot justify concealing its officers’ identity while they are rightfully subject to legal and public scrutiny. The New York City Bar Association urges ICE to terminate this practice immediately and ensure the transparency and accountability for its agents’ actions that our laws and our democracy require.” This is just one bar association. If you’re a lawyer, make sure you share this with others in your state; this should become a trend. The NYC Bar absolutely nailed this situation: “ICE agents’ use of masks not only screens potential abuses of power and shields officers from accountability, it is part of a pattern of government actions enabling the rise of repressive and authoritarian tactics. The images of people being grabbed off the street by masked, armed men, shoved into unmarked vehicles, and taken away to unknown locations bears a fearsome resemblance to the oppressive tactics of authoritarian regimes, methods of repression meant to eliminate opposition and instill terror. We must not tread this path.”

The Supreme Court Decides One of the Deportation Cases on its Shadow Docket

Finally, Monday afternoon, the Supreme Court decided one of the matters on its “shadow docket” in a way that supports all the concerns about the use of that docket. The case is D.V.D., the deportation case about the government’s practice of deporting undocumented people not to their country of origin but to a third country, often one where they have no contacts and don’t speak the language. In this case, it involved deportations to dangerous and war-torn South Sudan, with no opportunity to present claims to an immigration judge that they shouldn’t be deported because they would be at risk of serious harm or death.

This case came to the Supreme Court because the government was appealing a stay, issued by the lower court. The Supreme Court removed the lower court’s stay, which required the government to provide this minimal due process before placing people in the custody of a third-party country. You will recall this is the case where the government played loose and fast with compliance with the Judge’s order, and there is a government plane in Djibouti with detainees and customs officers awaiting further court proceedings in a U.S. military facility there. Now, the government can proceed with deportations to a country other than the person’s country of origin while the case is underway. Apparently, all is forgiven for the government’s “clear violation” (per Justice Sotomayor) of the lower court’s orders.

Here’s where the criticism of the shadow docket comes in. The majority (the case seems to have split on ideological lines, although it’s unclear whether it is a six or a five-vote majority because of how this docket works) did not write an opinion or explain its reasoning. There is no explanation and no guidance for other courts.

Justice Sotomayor, joined by Justices Kagan and Jackson, wrote in dissent. She could not have been more clear: “this Court now intervenes to grant the Government emergency relief from an order it has repeatedly defied. I cannot join so gross an abuse of the Court’s equitable discretion.”

If you want more detail, Georgetown Law Professor Steve Vladeck, an expert on the workings of the shadow docket, has written a preliminary assessment of the Court’s order, calling it “disastrous.”

161. The Court's Disastrous Ruling in the Third-Country Removal Case

It’s going to be a packed week. Even though the headlines are dominated by Iran, it’s just as important—maybe more so—to stay grounded in the legal and political developments shaping our own democracy this week. Civil Discourse is here to cut through the noise, offering independent analysis of what matters most at home. If you value that clarity and want to help keep this work going, please consider becoming a paid subscriber today.

We’re in this together,

Joyce