In an April 7 per curiam decision, the U.S. Supreme Court said detainees seeking to challenge their detention under the 1798 Alien Enemies Act must submit a petition for habeas corpus in the jurisdiction in which they are being held. That decision essentially overturns Judge Boasberg’s ruling that the proper venue was Washington, D.C, where the agencies are headquartered. Per curiam opinions are generally opinions which the court considers to be simple, obvious, and which do not need lengthy, complicated explanations. They are so simple that no single judge needs to sign the opinion.

All nine justices agreed on that discrete point regarding the need for due process. But, they disagreed on other issues. All nine justices agreed that the detainees are entitled to notice and due process before being deported. That was a clear rebuke to the Department of Justice.

“To the extent the government removes even one individual without affording him notice and a meaningful opportunity to file and pursue habeas relief, it does so in direct contravention of an edict by the United States Supreme Court,” Sotomayor said in her opinion.

The court did not address the underlying issue, whether the Federal government can use the nineteenth century Alien Enemies Act to deport the suspected gang members.

Habeas Corpus

Barrett, Kagan and Jackson also joined another portion of Sotomayor’s opinion which questioned the majority opinion which said the detainees needed to file a petition for habeas corpus. That is a “thorny” question, said the dissent. That is, these four justices would argue something more robust than a simple habeas corps petition would be needed. That thorny question will certainly be re-visited in full when the case is appealed on the full merits. A habeas corpus petition is a very brief motion which calls on the court to explain why a person is being held. A habeas corpus petition does not address the correctness of holding someone – it simply asks for the basis.

The Emergency Docket

In a separate dissent, Justice Jackson decried the “fly-by-night” approach to the work of the highest court in the land. She meant that resolving difficult issues this early in the process is problematic. The issues have not yet had time to develop. Justice Jackson is objecting to the majority which even accepted the government’s request for an emergency appeal. See ABA Bar Journal report here. See the court’s per curiam opinion here.

Lawyers owe a duty of candor to the court. That means they cannot lie. Lawyers may not always tell the whole truth, but they cannot lie to a Judge. Even if that was not an ethical requirement, it is a practical requirement. Lawyering is one of the places where its participants must rely on the word of another. That is why most prosecutors allow their assistants a good deal of discretion. Most district attorney offices across the country allow their assistant district attorneys to reject a case. That makes sense. Because that assistant must appear in court and tell the judge what s/he believes regarding the facts or the law.

But, AG Pam Bondi does not see it that way. A couple of weeks ago, one assistant DOJ prosecutor admitted in court the obvious, that Kilmar Abrgeo Garcia was deported to El Salvador in direct violation of a prior court order. That DOJ lawyer, Erez Reuveni, also said he did not know why or how Garcia was selected for deportation. That alone is something lawyers admit only reluctantly in court. Simply admitting you do not know why your client did something exposes that client to liability. That admission means the attorney, is not informed of the facts from his/her client’s perspective.

In court, Mr. Reuveni also said he would ask his client to retrieve Mr. Garcia. He asked the Judge for 24 hours to speak with his client.

Suspension

A day later, AG Bondi placed Mr. Reuveni on indefinite suspension. A second lawyer who supervised Mr. Reuveni was also placed on administrative leave for failing to supervise Mr. Reuveni. AG Bondi is sending a message to the lawyers in the civil division at DOJ: lie in court if necessary. Todd Blanche, a deputy AG said Mr. Reuveni engaged in conduct “prejudicial” to his client.

As lawyers, we are sometimes called on the say untrue tings to support our client in court. Most of us refuse to do so – or at least then quit that client soon afterward. It is surely a career-ending exercise to lie in court. Being called on to lie in court is an also a glaring blinking red light that this case is totally lost. Few lawyers will risk their licenses for any employer.

Alone and Overwhelmed

Yet, that is not the only instance in which DOJ lawyers have been forced to admit things that essentially harm their clients. In a matter regarding the law firm, Jenner & Block, DOJ argued that the entire law firm was a danger to national security because it formerly employed Andrew Weissmann. Weissmann was a deputy to Robert Mueller in the first Trump investigation. But, Weissmann has not worked for Jenner & Block for years. The Federal judge conducting the hearing asked a DOJ lawyer, Richard Lawson to explain how a former employee- Weissmann – at Jenner & Block was a risk to national security.

“You’re not going to tell me that having someone employed four years ago poses some kind of national security threat?” After a long pause, Lawson replied, “not per se, no.”

A remark which prompted some laughter in the court room. Mr. Lawson then had to rush from that court room to another court for yet another hearing. The civil division at DOJ has lost about half of its normal 100 lawyers. It is way under-staffed for the current workload. The office is strained by so many lawsuits against so many baseless Executive Orders. At the other court room, Judge Bates noticed that Lawson appeared by himself, with no career prosecutor with him. Lawson is a political appointee. Judge Bates, an alumnus of the same civil division at DOJ, asked why he was by himself. Mr. Lawson replied:

“I, frankly, was supposed to be in Florida, but here I am.” Judge Bates replied, “I don’t find that much of an answer.”

In other words, Judge Bates was hoping for a more forthright answer. Soon afterward, Judge Bates ruled against Mr. Lawson and his ultimate client, Pres. Trump. A large part of what we lawyers do in court is presentation. I tell folks we do marketing in the court room. If you look unprepared, or of your client looks chaotic, you chances of winning go way down. If we appear to lack candor on some issue about which the Judge is concerned, we start with a large deficit. See New York Times report here for more information.

A Travis County district judge awarded the four whistleblowers $6.6 million in damages. The four former Attorney General employees blew the whistle on AG Ken Paxton. I previously wrote abut this whistleblower complains here and here. AG Paxton did not contest liability. So, the main issue at trial was damages. Each of the four whistleblowers received $1 or $2 million. The four plaintiffs included Blake Brickman, Mark Penley, David Maxwell and Ryan Vassar. The judge found they had shown by a preponderance of the evidence that Paxton had violated the Texas Whistleblower Act.

AG Paxton admitted to liability, so as to avoid being deposed. Even though Paxton admitted to being liable for the claims, he said he would appeal the finding. See Texas Tribune report for more information.

Among the many strange practices of the Trump administration, perhaps the strangest is publishing Executive Orders that target specific law firms. The latest such EO targets the Big law firm of Jenner & Block. Among the firm’s many supposed sins: 1) re-hiring the former lead prosecutor, Andrew Weissmann, who served in the Mueller investigation of Pres. Trump, 2) engaging in diversity practices (Oh no!), 3) “abusing” its pro bono practice by engaging in cases that “undermine” justice and U.S. interests, and 4) engaging in cases that involve immigration and transgender issues. I think no. 3 and 4 are related, but who can be sure?

In a statement, the firm noted they have been named in an EO similar to one which has already been found unconstitutional. Mr. Weissmann was re-hired in 2020. He then left in 2021. There was, of course, nothing wrong or improper with the Mueller investigation. That investigation led to a conviction by a jury and eight guilty pleas. Even so, does it make sense to punish some 2500 lawyers and perhaps 3,000 support personnel because the firm re-hired one lawyer for about a year?

Security Clearances

The EO refers to the firm’s supposed politics in representing persons seeking transgender care and representing immigrants. The order clearly violates Jenner & Block’s First Amendment rights. See ABA Bar Journal news report here. This order removes security clearances for all of Jenner & Block’s attorneys and prohibits their access to government buildings. Losing those clearances makes it very difficult, perhaps impossible to represent their clients in many government actions.

Jenner & Block has filed suit over this unconstitutional order. Unfortunately, some law firms may now seek to steal Jenner & Block’s clients and lawyers. No President should be allowed this sort of power. The harm to our adversary system is obvious. These actions, as Judge Michael Luttig notes, amount to an attack on the rule of law. The American Bar Association and more than 50 other bar associations have condemned the administration’s efforts to undermine the courts and the legal profession. See ABA Bar Journal report here.

The Trump legal world is simply bizarro. Judge Boasberg has asked for more definitive information regarding when immigration flights took off from Harlingen, Texas airport on March 15. The question is critical to whether the Trump administration deliberately violated Judge Boasberg’s orders. Judge Boasberg’s request came after a hearing on March 17 in which DOJ obfuscated that very question.

Now, Attorney General Pam Bondi has publicly stated that the Judge is seeking “immaterial” facts. See CBS news report here. “Immaterial” refers to factual matters which do not make a difference. AG Bondi is lecturing the Judge on what he thinks is important. This is the bizarro Trump legal world in which we find ourselves. The perceived needs of the Judge no longer carry any weight. It is simply bizarre that the concerns of the Judge who must decide the matter do not count. After 30 years of litigation, I have just never heard a responsible lawyer lecture a Judge on what he ought to consider important.

The Department of Justice essentially refused to provide the Judge’s requested information by the deadline on March 19. So, Judge Boasberg has given DOJ an additional day to provide that information in a sealed pleading. There is no apparent reason why the administration would refuse to provide that information. A sealed pleading is just that – sealed. No one would see it other than the Judge.

The Attorney General sounds more like a campaign spokesman than an AG. The proper recourse for disagreement with a judge is appeal. Campaign propaganda does not serve her purpose.

There are few things a lawyer can say in court more offensive than “your verbal orders” do not matter. Yet, that is essentially what a DOJ lawyer, Abhishek Kambli, told Judge Boasberg in court. On Saturday, two or more planes left the U.S. with alleged Venezuelan refugees. The planes left about 5:30 p.m. just as the hearing with Judge Boasberg was starting. (It is exceedingly rare for a Judge to hold a hearing on a Saturday). In his ruling from the bench on Saturday, March 15, the Judge specifically told DOJ that any planes in the air should turn around and come back. But, the planes that were in the air did not turn around and come back. They landed in El Salvador well after the Judge ruled from the bench. See CBS news report here for more information.

Minute Entry

So, the Judge scheduled a hearing for Monday, March 17. At that hearing, Judge Boasberg asked Mr. Kambli what happened. Apparently with a straight face, Deputy AG Kambli said the Judge’s verbal order to turn around any planes did not appear in the Judge’s written order. Incredulous, the Judge asked:

“You’re telling me your first argument is when I said those things, because I didn’t say it in a minute order that the plaintiffs didn’t have to turn around, you didn’t have to comply?” Boasberg said. “You’re saying that you felt you could disregard it because it wasn’t in a written order?”

The Judge was referring to the minute entry entered by the District Clerk. The minute entry is prepared by the Judge’s clerk. It is never anything more than the clerk’s summary of what occurred during a particular hearing. Any first year lawyer would know the minute entry is a summary and not intended to be a verbatim citation of what the judge said. Even so, if a lawyer does not understand a verbal order and how it comports with the minute entry, ignoring them is not the preferred response.

The Judge asked a good question, by about 8:00 a.m., the lawyers for both sides knew a hearing had been scheduled for later that day on March 15. Yet, DOJ scheduled these two flights for later that day at about the time of the hearing. Why?

Tense Hearing

Not surprisingly, the March 17 hearing was tense. The DOJ lawyer was clearly obfuscating. He said he could not discuss operational details about the flights. But, the Judge holds CISA hearings. He has access to a secure facility to hear classified information. Still, Mr. Kambli demurred and declined the offer. The Judge also asked whether information about the flights were classified. It does not strike me that such information ought to be classified. But, even so, the Judge has access to a secure facility.

Judge Boasberg noted, of course, that the appropriate response to a judge over-stepping his authority is an appeal. He concluded the hearing with a request for a sworn statement from a witness by noon, the next day explaining when the flights left and what happened.

Karoline Leavitt, the Press Secretary, posted on X/Twitter that there was some question whether a verbal order carried the same weight as a written order. No,. there is not. And, everyone in that courtroom on March 15 knew that a Judge’s verbal order must be obeyed.

There are few things I can think of that compare to a lawyer in court telling a Judge to his face that his verbal orders did not matter. Mr. Kambli could not have offended the Judge more if he had told Judge Boasberg to go jump in the lake. It is an unbelievable thing to say in court. That Mr. Kambli is also a Deputy Attorney General makes this series of events all the more incredible. It is fair to ask if the current Department of Justice supports the rule of law.

The Judge hearing a lawsuit filed against six Federal agencies asked specifically to hear from the head of Office of Personnel Management (OPM). Charles Ezell had submitted an affidavit and the Judge wanted to see him questioned. This all started a few weeks ago when OPM issued an email firing hundreds of probationary employees. So, on March 13, when DOJ did not produce that head of OPM for a court hearing, the Judge remarked, as he should:

“You will not bring the people in here to be cross examined. You’re afraid to do so because you know cross examination would reveal the truth.”

It is a fair conclusion that when a party to a lawsuit does not bring to court a witness previously requested, that that party is hiding something. DOJ did not bring to court a witness previously requested. Any judge in the country would be suspicious of such a failure.

So, it is not surprising that Judge Alsup then ordered that all the probationary employees – teens of thousands – be reinstated by those six agencies. See CBS news report for more information.

OPM Not in the Supervisory Chain-of-Command

The problem DOJ ran into was that OPM terminated these probationary employees. But, these probationary employees did not work for OPM. They worked for six other agencies. Pres. Elon tried to fix that issue last week by sending out another OPM email saying OPM’s original email was simply a “guideline” to those six agencies. OPM did not actually fire anyone. But, of course, the language in OPM’s original email was clear. It was firing employees at six agencies, Veterans Affairs, Department of Defense, Agriculture, Energy, Interior and Treasury. OPM almost certainly has no authority to fire non-OPM employees.

Judge Alsop was also offended by the manner in which these workers were fired. The OPM email said they all suffered from poor performance. But, in most cases, these workers all had positive reviews or no reviews. OPM used that language to avoid the requirement of a Reduction in Force (RIF). Firing these probationary employees was a clumsy effort to fire Federal workers quickly and thereby avoid the 60 day requirement for an actual RIF.

The National Labor Relations Board hears complaints regarding union members. But, it also has jurisdiction over complaints by non-union member who discuss conditions and terms of employment. Early in February, Pres. Trump fired the Chairman of the NLRB, Gwynne Wilcox. I wrote about that odd termination here. It was clearly an unlawful termination. The pertinent statute requires that board members be terminated for good cause. Well, a Judge decided that her termination violated the National Labor Relations Act. The Judge specifically pointed to Trump’s post a few weeks ago depicting himself as a king. Judge Howell said a President is not a king. See CBS news report here for more information.

In her order, Judge Howell pointed to the government’s “hyperbolic” argument that allowing checks on executive power amounted to “extraordinary intrusion” on executive power. The government’s remark is both troubling and incorrect, said the court. As the Judge rightly pointed out, the U.S. Constitution is replete with checks on executive authority. See her order here.

Prior to this termination, no president had ever terminated a member of the NLRB board. The President may be seeking to appeal this issue to the U.S. Supreme Court, so he can challenge long-time precedent regarding these semi-independent agencies.

Among co-Pres. Trump’s many firings, he also fired the Chairperson of the Merit Systems Protection Board, Cathy Harris. Ms. Harris sued and was granted a permanent injunction. The Judge wrote a lengthy opinion, finding that The President cannot fire members of the MSPB board without cause. The members of the board enjoy a prescribed term – set by statute. The President cannot change an act of Congress.

It is fortunate that Ms. Harris will return to the Board soon, because Pres. Elon has fired so many federal workers without cause that they all also enjoy appeal rights to the MSPB. See The Hill news report here. The Trump administration has lost most of the lawsuits brought against it for these unlawful firings. It makes one wonder what their plan is. The administration had to know these firings are on shaky ground. One theory is that the administration is pursuing a fringe theory known as the “Unitary Executive.” Under this view of the chief executive, the President should enjoy unfettered right to run the entire executive department as he sees fit. Congress, however, has created a great many semi-independent agencies. The MSPB is one of those semi-independent agencies. The theory is that the Trumpistas believe they can appeal these firings to the U.S. Supreme Court and prevail. We will see.

On Saturday afternoon, Pres. Musk sent an email to all or many Federal workers. His first email said all employees will receive an email soon. Failure to respond to that email will be seen as a resignation. Then came a second email asking all Federal employees to reply with a description of what they accomplished at work last week. The reply is due Monday at 11:59 p.m. Pres. Elon sent both emails Saturday afternoon. Both emails were sent short;y after co-Pres. Trump posted that Elon should become more “aggressive” with the Federal workforce.

It is exceedingly strange to send an email to all your employees on a Saturday afternoon. Too, what could Pres. Elon possibly do with that information. He will have no understanding if their stated accomplishments amount to anything or not.

Salary Employees

Most Federal workers are paid salary. So, demanding that they work on the weekend is not onerous and not necessarily violative of any laws. If your boss calls you or texts you on the weekend, he is in effect asking you to work. For hourly employees, that employee would need to be paid for that time. But, for salaried employees, this is why they are paid salary – so they can work a little extra on the weekend.

But, to email something so trivial, so amorphous to hundreds or thousands of employees on the weekend is just strange.. This sort of act suggests Pres. Elon – and by extension Co-Pres. Trump – seek to inflict some cruelty on Federal employees. Placing hundreds or thousands of employees in fear for their jobs for no apparent job need is cruel. Pres. Elon and – by extension co-Pres. Trump – really do appear to be trying to force Federal workers to quit. The is the strangest conduct. See The Hill news report here for more information.

Implied Consent

And, could an employer infer resignation from a lack of response to an email? I have been practicing some years. I have never heard of a scenario in which any agreement could ever be inferred from lack of a response. It is a truism in contract law that silence does not equal consent. It would be a strange world indeed in which we could make contracts based on silence. Could Jerry Jones tell Dak Prescott that this year, he will pay Dak only $10 for the entire year – unless he replies by 11:59 p.m.?

Indeed, can we even make agreements based on one email? What if a Federal employee emails a response to Pres. Elon, but it is not received? Not every email reaches its destination. Many workers do not check their emails over the weekend. How can Pres. Elon be sure every Federal worker will see the email in time? In the end, cruelty seems to be the point. We have never had a co-President before. And, we have never had a President or co-President who seek to deliberately cause fear and panic among his employees.

Affirmative Act

The good folks at Gilbert Employment Law say that under current MSPB precedent, an Agency cannot impose a resignation on an employee. There must be some affirmative act the employee that indicates an intent to resign. “Under precedent, a resignation requires an affirmative act by the employee expressing their desire to resign, communicated to a responsible official (that is, the employee’s supervisor).” See The Gilbert Employment blog on this same subject here.