• Show Notes
  • Transcript

In this episode of the CAFE Insider podcast, Preet and Joyce discuss the Supreme Court orders that blocked the CDC’s federal eviction moratorium and required reinstatement of the Trump-era “remain in Mexico” immigration policy. They also break down the sanctions imposed on the so-called “Kraken” lawyer Sidney Powell, and other attorneys, for filing a conspiracy-driven lawsuit challenging the validity of the 2020 presidential election.

We hope you’re finding CAFE Insider informative. Email us at letters@cafe.com with your suggestions and questions for Preet and Joyce. 

This podcast is brought to you by CAFE Studios and Vox Media Podcast Network. 

Tamara Sepper – Executive Producer; Adam Waller – Senior Editorial Producer; Matthew Billy – Audio Producer; Jake Kaplan – Editorial Producer

REFERENCES & SUPPLEMENTAL MATERIALS:

EVICTION MORATORIUM

42 U.S. Code §264 – Regulations to control communicable diseases

42 CFR §70.2 – Measures in the event of inadequate local control

Alabama Association of Realtors v. Department of Health and Human Services, U.S. Supreme Court, on application to vacate stay, 6/29/21

Alabama Association of Realtors v. Department of Health and Human Services, U.S. Supreme Court, on application to vacate stay, 6/29/21

“Temporary Halt in Residential Evictions in Communities With Substantial or High Levels of Community Transmission of Covid-19 to Prevent the Further Spread of Covid-19,” CDC order, 8/3/21

“Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19,” CDC order, 9/4/2020

“The Supreme Court’s Shadow Docket: How It Works,” WSJ, 8/27/21

“Court lifts federal ban on evictions,” SCOTUSblog, 8/26/21

IMMIGRATION

 5 USC Subchapter II – Administrative Procedure Act

8 USC §1225 – Inspection by immigration officers; expedited removal of inadmissible arriving aliens; referral for hearing

8 USC §1182 – Inadmissible aliens

Biden v. Texas, U.S. Supreme Court, order, 8/24/21

Texas v. Biden, 5th Circuit Court of Appeals, opinion, 8/19/21

Texas v. Biden, U.S. District Court Northern District of Texas, opinion, 8/13/21

“Termination of the Migrant Protection Protocols Program,” DHS, 6/1/21

“Migrant Protection Protocols,” DHS, 1/24/19

“Court won’t block order requiring reinstatement of “remain in Mexico” policy,” SCOTUSblog, 8/24/21

KRAKEN SANCTIONS

Federal Rules of Civil Procedure Rule 11 – Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions

Model Rules of Professional Conduct Rule 3.1 – Meritorious Claims & Contentions

Model Rules of Professional Conduct Rule 3.3 – Candor Toward the Tribunal

Timothy King v. Gretchen Whitmer, U.S District Court Eastern District of Michigan, opinion, 8/25/21

“Sanction,” Cornell Legal Information Institute

“Judge Orders Sanctions Against Pro-Trump Lawyers Over Election Lawsuit,” NYT, 8/25/21

FOUR SEASONS TOTAL LANDSCAPING

“Everything that’s happened at Four Seasons Total Landscaping since the November election,” Billy Penn, 7/10/21

Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to CAFE Insider. I’m Preet Bharara.

Joyce Vance:

And I’m Joyce Vance.

Preet Bharara:

How are you, Joyce? Are you in the throes of Hurricane Ida?

Joyce Vance:

We are so lucky. Sometimes the tail end of a hurricane makes it through Birmingham and does some damage. But compared to our friends down on the Gulf Coast, in Louisiana, and especially in Mississippi, we’ve been super fortunate, the chickens and I are all dry.

Preet Bharara:

That’s good to hear. And I guess, so far, fingers crossed, a lot of people don’t have power, but we’ll see how devastating the effects are. It’s weird to me. As you know and as listeners know, I was in New Orleans for a great trip in my family just two months ago, so thinking about all the folks on the Gulf and then the path of the storm.

Joyce Vance:

A million people are out of power, a major roadway has washed out, and I heard last night that Tulane has evacuated all of its students to Houston for the next month. So it is catastrophic for the people impacted.

Preet Bharara:

Tough times. Hurricane Ida begins with an I. The next letter is J. Has there been a Hurricane Joyce?

Joyce Vance:

Thankfully, there has never been a Hurricane Joyce.

Preet Bharara:

So interesting to me. We had Henri, pronounced in the French way, but no Joyce.

Joyce Vance:

My favorite is we’ve got a kid named Teddy, and of course, there was a Hurricane Ted that was bad. And so, that became his nickname, Hurricane Ted.

Preet Bharara:

You know there will never be? You know there will never be?

Joyce Vance:

Hurricane Preet?

Preet Bharara:

Hurricane Preet. I don’t see that on the horizon.

Joyce Vance:

I’m suggesting it for next year. I think that they take suggestions from the public.

Preet Bharara:

In the same way that when I was a kid and I want to get a personalized license you can get from the store for my bike, and there was never a Preet. And that annoyed me. The flipside of that is no Hurricane Preet.

Joyce Vance:

Okay, baby, we’re getting you your own hurricane next year.

Preet Bharara:

Alright. So there’s Supreme Court news. There’s Kraken sanctions. We’ll come to that at the end. We should follow up on some of the things we talked about in the last week involving the eviction moratorium, and we saw the handwriting on the wall. Remember, the CDC under Donald Trump issued a fairly broad-based moratorium on evictions, tying the need to stop evictions to the need to stop the spread of the coronavirus. People from your state, Joyce, I believe, protested that.

Joyce Vance:

The Alabama and Georgia Realtors Association were the named plaintiffs here.

Preet Bharara:

They’re always the ones. They took it all the way up to the Supreme Court. Brett Kavanaugh wrote the opinion, basically said the CDC overstepped its authority, but it’s expiring in a few weeks anyway, in July. Let’s let it be, and then it will expire. Then the Biden administration issued what they have claimed to be a very, very different moratorium addressing some of the issues in their view that the Supreme Court raised that has now been struck down. What do you make of that?

Joyce Vance:

It’s important to think about where this case is procedurally, because this is not a merits decision. This is about whether or not the district court’s decision striking down the moratorium should be stayed pending a full appeal and a full briefing on the merits. And what the court says here is, no, there’s not really a substantial chance. In fact, the government is very likely to lose this case. The Supreme Court says because they’re likely to lose, we’re not going to permit a stay to stay in place, which would keep the moratorium in effect. That’s a little bit confusing. It’s always a weird procedural posture.

Preet Bharara:

You know what, you lawyers make everything very complicated.

Joyce Vance:

Damn lawyers. But in any event, there’s no stay. The moratorium has been lifted. As you point out, the Supreme Court says, this is really Congress’ job, and the CDC exceeded its authority here. And of course, there’s a dissent, really, the only thing that we learn about this case is from the dissent because it’s a shadow docket proceeding. And in the dissent, the three liberal justices on the court pretty vigorously combat the majority’s interpretation of the chance that the realtors will win on appeal. And they say, no, there’s a legitimate interpretation of this statute that says that the CDC was acting within its authority. There’s a split in the circuits, it’s not clear, and the state should have remained in place.

Preet Bharara:

But I will note, and let me know if you think this is true based on the tenor of the dissent, there are some times when dissenters on the Supreme Court, either the liberal side or the conservative side, go bananas. And they say …

Joyce Vance:

Is that a technical legal term, go bananas?

Preet Bharara:

Go bananas is definitely a technical legal term. And they will say, the majority opinion is a travesty and they get very upset. And sometimes in regular cases, not these kinds of cases, the opinion are read from the bench. Justice Ginsburg did that a number of times, and that’s to signal how strong the feeling is about the wrongness of the majority’s decision. And sometimes there’s pretty acerbic language. We don’t have that here. Their arguments here in favor of the CDC position, and they make some of those arguments and they make a procedural case for why the proceeding should continue. But it’s not full of bile and stridency. Fair?

Joyce Vance:

I think that is fair. It’s a hyper-technical legal distinction. The fight is about two sentences in CDC authority, 42 USC 264, which is a 1944 statute. And it talks about the power that the agency has to take steps to protect communities from spread of pandemic. And it talks about measures that are more direct than folks might think a moratorium eviction is. Stuff really designed to literally spread the person to person and more important across state lines spread of a pandemic. They criticize the moratorium as being more of a downstream measure. But you’re right, there’s no bile here. This isn’t a very dry discussion.

Preet Bharara:

Yeah. And because as we said before, even Joe Biden seemed to acknowledge that there was potentially constitutional problem here, a statutory problem here. It may be worth since you have …

Joyce Vance:

Wait, can we just flag that and say the acting solicitor general had an explanation for the president’s comments. He said that Joe Biden was just reflecting on the reality of how this Supreme Court was likely to rule without prejudicing the government’s position.

Preet Bharara:

Yeah. I mean, that’s a …

Joyce Vance:

That was good.

Preet Bharara:

… clever and wise thing to say. What are you going to say when the boss, namely the president, hurt your case by saying that the weight of constitutional experts is against you on this? This statute, Joyce, that I’m sure that you have committed to memory that it’s at the heart of this whole debate, we’re just talking about for a second. So people get the sense of what it means to say that a particular agency has exceeded its authority. Because grants of authority are sometimes general, sometimes they’re specific.

Preet Bharara:

And there’s the issue of whether or not they’ve gone beyond it, so sometimes worthwhile to look at the language. And one of the first senses in the statute says, “The Surgeon General is authorized to make and enforce such regulations as in his judgment, not gender neutral, as in his judgment are necessary to prevent the introduction transmission or spread of communicable diseases from foreign countries into the state, or possessions, or from one state or possession into any other state or possession.”

Joyce Vance:

That’s the first sentence that sounds really broad. It purports to give the surgeon general and the CDC expanse of authority, and then you read the second sentence, right?

Preet Bharara:

And the second sentence, and this is where the debate is, does the second sentence shape or help folks to interpret what the first sentence means and what the breadth of the first sentence signifies? In the second sentence, the statute says, “For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation,” that’s very particular, “fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings and other measures, as in his judgment may be necessary.” So part of the argument that the Alabama folks are making and others is that when you’re talking about pest extermination and fumigation and things of that nature, doesn’t really say eviction.

Joyce Vance:

The argument is that that second sentence acts as a limitation on the first sentence, which reads very broadly. And if that first sentence was all we were looking at, I think it would be tough to argue that you couldn’t impose a moratorium. The Supreme Court talks about how breathtakingly broad the government’s interpretation of the statute is. They have a catalogue of horribles. Well, if the CDC can implement a moratorium, they could do things like mandate free grocery delivery to the homes of sick and vulnerable people.

Joyce Vance:

Or require telecommunications companies to give high speed internet service to facilitate remote work. So the Supreme Court sees all of these horrible things that could happen if the CDC could really take steps to protect folks from the spread of a pandemic. I guess my biases are showing here.

Preet Bharara:

There is language in that second sentence that folks can hang their hat on if you’re on the other side in favor the CDC moratorium. The second sentence says, all these things, pest extermination, fumigation, very particularized things that don’t deal with the economy really, and certainly don’t mention eviction, but it does say, and other measures, as in his judgment may be necessary in that and other measures as you often have a catchall in statutes that exist, both at the state and federal level, does a lot of work if you’re trying to make this thing happen.

Preet Bharara:

Now, the principle you’ve described is something that comes up in the law a lot. By the way, not just in the law, but in people’s lives at work and in other circumstances. What’s the limiting principle? And sometimes people use that as a crutch in a good faith way, and sometimes they do it in a bad faith way. And the point is, if the argument you’re making holds water, what is the thing that the CDC would not be able to do?

Preet Bharara:

And I think there are good faith arguments on both sides of that, as to whether or not in this circumstance, an admittedly extraordinary decree, like a moratorium on evictions, is called for because of the extraordinary nature of the crisis upon us. I mean, you see in the debates about this. Well, the statute has never been interpreted to allow the CDC to do something so enormous before. But it also happens to be the case that we have a crisis that we’ve never seen before, or at least not for 100 years. Does that affect the calculus in your mind?

Joyce Vance:

That’s why it’s so important that this case comes up as part of the Supreme Court’s shadow docket. This is not a fully briefed and argued merits decision. This is a cloistered late at night decision made without the benefit of that sort of a transparent process. And here, we have the court making a really significant decision, because by lifting the stay, what that means in practice, is that cases on state court judges dockets across the country. Eviction cases that have been stayed can now become active, litigants can go to the judges and ask them to move the cases.

Joyce Vance:

Of course, that’s a matter of how quickly judges scheduled cases and whether sheriffs have the actual appetite to go out and prioritize evictions. So there could be some delay there. But by the time there’s a full … If there in fact is, merits briefing on these issues and if the case is fully heard, it’s in a sense too late because people have already been evicted in the middle of a pandemic. And I think that’s the reality of what happens here. I’m not sure if that’s directly responsive to your question about using good faith and/or bad faith limiting principles to make these arguments.

Joyce Vance:

I think here, the process really overtakes the substance of the case. And because the shadow docket, the state proceeding on an emergency basis is used to for all practical purposes decide the outcome of the case, the court here is setting policy as much as they’re doing anything else. It’s sort of like, okay, Congress, you could have acted, you didn’t. Now we’ll permit evictions to go ahead.

Preet Bharara:

I think that fairness dictates that whether or not the CDC exceeded its authority. I think it is fair to say that it was an aggressive use of that authority, and whether it was so aggressive as to go outside the bounds of the statute will be debated and will continue to be debated in the courts, because this ruling does not end the case. It just lifts the stay. This is one of those cases where you can send angry mail if you want. I think as a policy matter, you can be strictly in the camp that an eviction moratorium is a good thing.

Preet Bharara:

But in a democratic process, the question of who has that authority and how it’s done, whether it’s done by a state, whether it’s done by Congress, or whether it’s done by executive order and upheld by a court matters. And some of the arguments, again, I don’t know whether they carry the day or not, but some of the arguments that are made by the Alabama side are not insane. One of the purposes of the statute, as the majority unsigned opinion makes clear, is to do things that affect the interstate infection rate, something the federal government to take action usually involve something relating to interstate commerce or effects between states.

Preet Bharara:

As the opinion says, the CDC is moratorium relates to interstate infection pretty indirectly. There’s no reason to suppose the majority seems to think that if you don’t have an eviction moratorium and people leave their homes, maybe they’ll move across the street, maybe they’ll move in with friends or neighbors, maybe it’ll go across town, maybe they’ll even go to another town within the state. But the idea that that’s going to somehow affect an interstate issue, and people are going to move out of the state, is I think considerably more indirect.

Preet Bharara:

And the opinion says, “This downstream connection between eviction and the interstate spread of disease is markedly different from the direct targeting of disease that characterizes the measures identified in the statute.” Then I come back to this issue of the extraordinary nature of the crisis we’re facing, how, at one point, it was maybe an existential threat to the economy and to health. And then maybe an extraordinary measure that’s never been done before is authorized by the statute because of the circumstances.

Joyce Vance:

There are so many interesting threads to pull here. I actually agree with you on the general principle here that you can’t say the ends justify the means. You can’t take illegal or unconstitutional action just because you think that you need to. That’s obviously a slippery slope that goes to a place that nobody wants to go. The question here will be a very interesting, very narrow one. The reason that in so many ways, I’m sorry that this is a shadow docket, not a full conversation, is because a lot of this in my judgment has to turn on what the legislative history when this statute was enacted in 1944 was.

Joyce Vance:

Did Congress intend for the second sentence to limit the first? What were they thinking about back in 1944 about pandemics? Were they harkening back to Spanish Flu? Was that their touchstone when they enacted this? We have so many unanswered questions when a case is decided on the shadow docket. That seems to be a real problem here, aside from the practical legal issues.

Preet Bharara:

So you mentioned the shadow docket a few times. I just want to make something clear. When you describe it, and we use the word shadow and we say it happens at night, it doesn’t exhaust the whole briefing process and everything else, there’s nothing improper or against the rules with respect to how these cases are decided. It’s just a feature of how the Supreme Court deals with emergency applications. That because of the nature of those applications, and some of them relate to the kinds of things we’re talking about now, the eviction moratorium often relates to the stay of execution being sought for a particular prisoner who faces the death penalty. But you’re not saying that this is improper?

Joyce Vance:

No. In fact, the shadow docket is a long term feature of the court. This is how emergency cases are decided, as you say. It is literally often late at night, particularly in the cases of prisoner executions where a case is working its way through and on an emergency basis. Defense lawyers are trying to prevent their client from being executed. And it may reach the justice who’s assigned to that particular circuit. Late at night, that justice can refer the case to the full court that happened here in this situation.

Joyce Vance:

And then these decisions are made often with unsigned opinions, sometimes with no opinions. They don’t carry strong guidance for lower courts, but there is nothing improper about the process itself. I think that there’s a focus on it because it has been used more. It certainly was used more during the Trump administration where they were implementing policies, that district judges often would put a stop to, would enter some sort of a nationwide injunction that would prevent a Trump era policy from going into effect. And then the Trump administration would seek an emergency form of redress from the Supreme Court, which often happened via this shadow docket mechanism.

Preet Bharara:

The other relevance in the arena of legal commentary, where the shadow docket comes up, is the following. Lots of folks, you and me included, make comments about whether the Supreme Court is overly conservative or now, what it means to have a six-three court. And from time to time, when you have the fully briefed and argued and considered open and transparent decisions of the Supreme Court. From time to time, there will be a Gorsuch or there will be a Cavanaugh who sides with the liberals.

Preet Bharara:

And people will say, hey, how does that affect your view of how conservative the court is? Is it crazy right or not? And people, generally, when they’re talking about these things, will look at those fully briefed, fully considered cases. And there are experts who will say, “Well, that’s not the only basis on which to make that determination of conservatism. You have to look at the shadow docket.” And lots and lots and lots of cases get decided in connection with some urgency application process that give you a better sense of what the direction of the court is and have a very huge pragmatic and practical effect on people’s lives. And if you count the shadow docket, the court appears much more conservative than it does if you don’t. Fair?

Joyce Vance:

I think that’s right. There have been, I think this is correct, 19 cases decided on the shadow docket so far in connection with this term. And that’s a pretty significant proportion of the actions that the Supreme Court takes. There was this litany as the Supreme Court’s term ended, that the court was not as far right as liberals had feared that those claims were exaggerated. What we see on the shadow docket suggests not so fast. Let’s not judge this court until we look at all of the actions that it’s taking in context. And some of the more conservative decisions, the decisions that in my judgment look more like policy decisions than strictly legal decisions, some of those happen on the shadow docket with significant impact.

Preet Bharara:

So at the end of the day, it is up to Congress. Now Congress doesn’t seem to want to act on this, Congress as a whole. Does that mean the issue is over and everyone’s getting evicted?

Joyce Vance:

It means that this lands in the laps of state court judges across the country who will now have to decide whether they’re going to enter eviction orders in the middle of a pandemic. And this, to the point that you raise throughout the conversation, Preet, the state court judges aren’t the people who write the law, they simply carry out the dictates of the law. The Supreme Court has said that evictions should go forward, it is the judges who will have to sit with those decisions and make them.

Preet Bharara:

Right. And state legislatures as well, to deal with the eviction issue in the particular states.

Joyce Vance:

There are a lot of ways that this issue could be cleaned up, absent congressional action. And one of those ways, for instance, might be for state court judges to enter orders that require landlords and agencies like the Alabama realtors association to first explore options for accessing federal funding for rent relief before they order evictions. Whether state court judges will craft these clever solutions and whether they might be challenged in court, I guess that’s the next chapter in this litigation.

Preet Bharara:

Indeed. So that’s not the only Supreme Court case that is before us this week, Joyce.

Joyce Vance:

The shadow docket has been hard at work this week, right?

Preet Bharara:

There’s another one, and this relates to immigration. Now, people may recall that Donald Trump and his administration had a certain view of how people should be able to get asylum when they come into the United States. He adopted something called the Remain in Mexico policy, the formal name of the policy was a migrant protection protocols, which essentially meant that if you were coming to the United States from a third country, but coming through Mexico, and presented yourself at the border of Mexico in the United States, the United States could send you back to the other side of the Mexican border.

Preet Bharara:

And then the Mexican government would have to deal with you in your custody and follow humanitarian protocols that are enforced around the world. But it was Mexico’s problem in the interim. And therefore, the Trump administration argued that was better for safety, that was better for the economy, that was better for immigration policy overall. And then the Biden administration said, we’re no longer going to do it that way. And that has run into a big legal obstacle, which raises the question that you and I were talking about before we started taping, Joyce.

Preet Bharara:

If Trump adopts a policy, not gets a law passed through congress, but adopts a policy. And a subsequent administration, in this case, the Biden administration doesn’t like it, and wants to undo it. Why can’t they undo it as easily as Trump did it? Can you explain that to folks?

Joyce Vance:

So there’s a law called the Administrative Procedure Act. And the way that this action by the Biden administration gets challenged is Texas and Missouri go to court and they say that in ending, the Remain in Mexico policy, the Biden administration acted in an arbitrary and capricious fashion. That violates the law. And so, Texas and Missouri have asked the court to put an end to the policy direction the Biden administration took care. And they were successful this week. It’s a very difficult and a challenging issue.

Joyce Vance:

Clearly, the heart of the Biden administration turned on what happened to these folks when they were returned to Mexico. They were in difficult and dangerous situations. There were widespread reports of sexual violence, of drug cartel laden violence, precisely the behavior many of these people had fled their homes to try to escape from. And now because they couldn’t be paroled into the United States while they were awaiting an immigration hearing, they were facing that same sort of violence.

Joyce Vance:

So this application comes up to the Supreme Court as part of the shadow docket. It goes through Justice Alito. And the Supreme Court denies the Biden administration’s actions, as you say, giving them an inability to rescind what the Trump administration did, because they say the Biden administration failed to show a likelihood of success on the merits of the claim that the memo that Secretary Mayorkas issued rescinding the policy wasn’t arbitrary and capricious. Could it be any more confusing? I think this is our day for procedural like confusing cases.

Preet Bharara:

But one way to simplify it is to say, executive orders are not able to just be suspended on a whim, that policies that are enacted have some stickiness, not the same stickiness as the Supreme Court binding, ruling on the country, not as sticky as a congressional law dutifully enacted by both houses of Congress and signed by the president. But there’s a general legal principle that if you’re going to engage in some policy change, you have to explain it in good faith. And it can’t be for bad reasons and it can’t be for … I’m simplifying.

Preet Bharara:

And sticklers will quibble with some of the ways that I’m simplifying this. But essentially, you have to give reasons, and they have to be given in good faith. There are other examples of this analogs of this that got the Trump administration in trouble as well. For example, in something I know that near and dear to your heart, the way that the Trump administration tried to justify the inclusion of a question about citizenship on the census.

Preet Bharara:

And you would think that the presidential administration should be able to dictate that it’s a matter of policy within the bounds of what an executive can deal with. But part of the reason they lost on that and got clobbered on that was that they weren’t being honest with the reasons why they want to include the citizenship question. Do you find that to be similar to this or no?

Joyce Vance:

I think that that’s similar. And of course, DACA, where that can’t be reversed.

Preet Bharara:

Yeah. I mean, by the way, for those of you who are listening saying, well, this is BS. Biden’s my guy, and I liked the Biden policy. I don’t like this Remain in Mexico policy, he should be able to do whatever he wants. The stickiness that I’ve referred to, with respect to certain kinds of executive orders, you kind of want. Because sometimes you like the policy, because president who enacted it is someone who supports your point of view. And you want there to be some process and you want there to be some ability to fight back against a bad faith undoing of the policy.

Preet Bharara:

And that’s exactly what happened with DACA and the policy for dreamers having a path to citizenship. So depending on the issue, depending on who the president is at the time and depending on what the legal reasoning is, people find themselves on other sides of the fence of these things.

Joyce Vance:

I think you’ve just given a really good explanation of the virtue of living in a rule of law country, which is to say that you won’t always like the people who are making the rules, even in a duly elected environment. But with protections in place, in the long run, everyone wins.

Preet Bharara:

I think that’s right. Now, the other thing, keeping with the theme of good faith, the ruling here doesn’t say that no matter what under penalty of imprisonment, of Biden and his entire administration, you must restore the Remain in Mexico policy. The court understands that it might be impossible to reinstate, because the Remain in Mexico policy, as an initial matter, when the Trump administration put it into place, had to be done with a lot of negotiation with the Mexican government, of course. And there were carrots and sticks, I presume, in negotiating that.

Preet Bharara:

And now that it’s not happening, there would have to be a renegotiation with Mexico and its government to go back to that earlier status quo as is noted in the proceedings, “The injunction only requires good faith on the part of the United States. If the government’s good faith efforts to implement MPP, that’s the Remain in Mexico policy, are thwarted by Mexico, it nonetheless will be in compliance with the district court’s order, so long as it also adheres to the rest of the statutory requirements.”

Preet Bharara:

Now, that presents a bit of a moral hazard, one might argue, because the administration doesn’t want to go back to the earlier protocol. Although it’s required to do so, but only required to exert good faith in going back to the earlier protocol that it does not like and that it fought against. So how do you judge and measure good faith effort to go back to a policy that the administration admittedly doesn’t like?

Joyce Vance:

It feels like this is a real roadmap for the Biden administration to prevent a return to remain in Mexico. To your question of good faith, the Biden administration can literally comply with the court order here and still avoid reinstating the policy. They can act in good faith. I don’t know. I guess the question you’re asking is nudge, nudge, wink, wink, Mexico. You guys don’t want to continue to house these people. We’d like to parole them into the US, so do what you need to do. Is that bad faith? And if so, what would courts do about it? I think that this is wide open.

Preet Bharara:

Yeah, it’s very subjective. It’s very hard to measure. This concept of good faith exists in a lot of areas of law, including very fundamentally in contract law. People have a good faith obligation to do many things in connection with the binding contract. And sometimes it’s the case that the standard being applied to one of the parties to a contract is not just merely good faith, but best efforts. It’s been a long time since I’ve studied contract law.

Joyce Vance:

That was pretty good.

Preet Bharara:

That’s a bit of a more stringent obligation. And I wonder if there was some legal way for the court to impose a higher obligation, not just good faith, but some analog of best efforts that could then be adjudicated later when litigants said, well, the government didn’t try. The ambassador called up and said you don’t want to go back to this old protocol, do you, Mexico? Mexico says, no. I mean, well, I tried, gave it a shot in good faith. Does that count or not? I don’t know. But I don’t know that we’re going to be returning to that policy.

Joyce Vance:

The real problem here is this long term prescription against the courts wading too far into foreign policy. And they’re obviously aware of that here. So they’re doing everything that they can to get the Biden administration to temper its behavior. And there was some suggestion, you may remember this early on at least, that the Biden administration did want some of these folks to remain in Mexico, pending their immigration hearings. That seemed to evaporate rather rapidly.

Joyce Vance:

But this need for the courts to avoid interfering with foreign policy, because speaking of turnabout is fair play that could certainly rebound with a different court and a different administration down the road, and I don’t think that they wanted to upset that balance. But that really means that there are very few teeth here. And it also keeps them from imposing any kind of a higher standard here than good faith, I think. I just really liked the point that you’re making that whether or not people like nationwide injunctions depends on their politics, but it’s an essential feature of the courts, if we’re going to have good government.

Preet Bharara:

It goes to this issue that is often in dispute, our judges, and voters for that matter, taking a particular side an issue because of the result that they want, as opposed to whether or not it is constitutionally or statutorily sound. And I guess people in the country are allowed to be on both sides of the fence on these things, depending on where they stand and depending on what the issue is. But for the system of law to work properly, lawyers can’t be that way, which maybe is a very good segue to our third and final topic that relates to the proper duties and obligations of lawyers, the Kraken lawyers. Do you want to remind folks who the Kraken lawyers are? And we’ll talk about what has just happened to them.

Joyce Vance:

Right. So I don’t know about you, Preet, but in my house, we’re big fans of the movie Clash of the Titans. And literally, every time it’s on TV, people will stop what they’re doing to watch 20 minutes of it. I think we’ve seen it 12,000 times between the six of us.

Preet Bharara:

Do you know the one flaw of that movie …

Joyce Vance:

The one flaw.

Preet Bharara:

… and people who are listening … Doesn’t have Nicolas Cage. I think Clash of the Titans plus Nicolas Cage would have been one for the ages.

Joyce Vance:

Maybe there could be a remake or maybe he could do mystery science theater style commentary on the original version.

Preet Bharara:

There’s been a lot of discussion about Nicolas Cage on the Stay Tuned podcast, and we’ll come back to that in the future. But I’m sorry. So Clash of the Titans, where you going with that?

Joyce Vance:

So, Clash of the Titans. And look, here’s what happens. Trump has a group of lawyers, nine in all here who become the subject of this action in Michigan. And the release of Trump’s Kraken lawyers was probably even less impressive than the movie version in Clash of the Titans. It wasn’t …

Preet Bharara:

The Kraken is like a mythical sea monster, correct?

Joyce Vance:

With many tentacles coming off of it. I mean, in the movie version, it’s unintentionally funny, is how my friend Kim Atkins characterized it on the SistersInLaw podcast. And I think that that’s right, it is. It’s a moment where you start laughing. But for the fact that what the Kraken lawyers were trying to do for Trump after the election, was to undermine the public’s confidence in our elections. It would have been laughable.

Joyce Vance:

What they did with Sidney Powell as their front person and she was the person who coined this term, she actually promoted the lawsuits that they were bringing as she was going to release the Kraken. The case is a weird claim of fraud in tabulation machines that were made by a company called Dominion that were tampered with. She alleged to steal the election from Trump using mechanisms as crazy as George Soros was involved or a dead Venezuelan dictator was in the mix stealing the election from Trump. It was always bunk.

Joyce Vance:

And anybody who really looked at the allegations knew that they were bunk. But the problem was that they really was successful in casting doubt at a point in time where there were some folks in this country who really wanted to eek a Trump victory out of defeat. And it led to much of the confusion that resulted in January 6. The lawsuits really damaged the confidence of Americans and the outcome of elections in a way that I think we’ll hear echoes of in the future elections. So that’s my long winded explanation of what the Kraken cases were. They were these four cases, one in Michigan that sought to de legitimize the results of the election.

Preet Bharara:

So I think that’s a great explanation of what went on with these lawyers. And they did a lot of things that courts don’t like, including making completely unfounded allegations, not engaging, and even the most basic due diligence or inquiry about some of the facts that they were putting forward. And there’s a litany of things that they did. And the other side, the lawyers on the other side, in the Michigan case that you mentioned, brought an action for sanctions.

Preet Bharara:

And under federal law and under state law and all the different 50 states where there are different standards at play, lawyers have an ethical obligation to conduct themselves in a particular way. And there’s a rule called Rule 11, under which it happens rarely, but it happens under which lawyers can be sanctioned. And this judge, Linda Parker, was having none of the BS of the Kraken lawyers and issued a very, very long opinion after having a hearing about this, which was comical in its own way, with Sidney Powell and others, and basically said, “Well, I’m issuing sanctions.”

Preet Bharara:

Which means what? Number one, that they’re going to be required to pay the fees of the folks on the other side, the Michigan folks, they’re going to be required to get mandatory CLE, continuing legal education, about election law. And these are lawyers who have been around for many, many years, some have good credentials. And also, the lawyers are being referred to their relevant jurisdictions where they’re admitted to the bar for potential suspension and disbarment. And Judge Parker goes through again and again and again, talking about all the things that she found reprehensible on the part of the Kraken lawyers. I think it’s worth maybe reading a few of the things that the judge found.

Joyce Vance:

So can we underline before we read from the opinion, what the judge did here that’s so remarkable. She holds this daylong hearing, she writes an opinion that’s over 100 pages in length. And she finds that the lawyer should be sanctioned pursuant to Federal Rule of Civil Procedure 11, which exists. When lawyers talk about it, they say it’s a provision that’s meant to sanction lawyers who bring frivolous lawsuits. But it’s almost never used as a practical matter, because judges really want to give lawyers a broad ability to make arguments that are advocating for their clients.

Joyce Vance:

In good faith, there’s the notion of good faith again, and it’s very rare. I don’t know the numbers, but it’s so rare to see Rule 11 sanctions imposed. The fact that the judge not only imposed those sanctions in this case, but also then referred these lawyers to every state where they’re licensed to practice, to every state bar for Grievance Committee proceedings, with the direction that those bars need to consider whether those lawyers should face additional sanctions, including being suspended from the practice of law or even disbarred. This is a judge who was loaded for bear.

Preet Bharara:

Yeah. Look, the judge makes very clear what the standard of conduct is. Here’s one example. The judge writes, “Attorneys have an obligation to the judiciary, their profession, and the public, one, to conduct some degree of due diligence before presenting allegations as truth, two, to advance only tenable claims, and three, to proceed with a lawsuit in good faith, and based on a proper purpose.” There’s that good faith again and what that means. And my favorite example of a thing that the Kraken lawyers tried to do to get out of the Rule 11 sanction.

Preet Bharara:

Rule 11, in one of its subsection says, that all pleadings need to be signed by a lawyer. That’s for the purpose of having future accountability, so that there’s a particular officer of the court, someone who’s admitted to the bar of that court who takes responsibility for filing the complaint or the brief or whatever the case may be. And because this is the age of COVID, one or more of the Kraken lawyers said, “Well, we didn’t physically sign the document, we did a /s/, what sometimes people do when they make electronic submissions. So Rule 11 doesn’t apply to us, which itself is a frivolous claim. So that’s the kind of thing that the judge was up against.

Joyce Vance:

When you have already angered a federal judge and you engage in that level of disingenuous argumentation, you have to know that you’re about to get a real ass whooping, right? I mean, federal judges don’t deliver these frequently, but this was almost begging for it. And I don’t understand what was going through the lawyers minds. They could have made a very different sort of argument in this case talked about representing their client.

Joyce Vance:

And I think the fact that they didn’t just really highlights what went on here that they were going into court, making specious arguments that as the judge points out, they had done absolutely no due diligence on. This was just such an abject failure by lawyers. This case will be taught in ethics classes for years to come as an example of what lawyers must not do.

Preet Bharara:

We have a question from a listener, and maybe we should try to address it more directly. This is from Lyn or @lynp27, who asks, what are the chances that any of the sanction Kraken lawyers will be disbarred as a result of this referral? And just to go back to what we were saying before, the judge very clearly, in the opinion says, this warrants all the conduct that’s described, “This warrants a referral for investigation and possible suspension or disbarment to the appropriate disciplinary authority for every state bar and federal court in which each attorney is admitted.”

Preet Bharara:

In a related case, we have Rudy Giuliani, one of the lawyers for the former president of the United States, who has had his license suspended in two jurisdictions, New York and D.C. What do you make of this question, Joyce?

Joyce Vance:

I think it’s a really smart question, because it highlights this issue of how the legal profession police’s itself. We do leave these matters of bar discipline primarily to bar associations, although you can see judges step in as Judge Parker did on the Rule 11 motion. So these lawyers are barred in places like Georgia and Michigan, but also in New York and New Jersey. Each state will have a different process, all business will be local here.

Joyce Vance:

In many ways, this may come down to whether some of the bar associations put together Grievance Committee proceedings that move forward promptly and result in suspension or even disbarment, which would probably take a little bit longer because of internal due process concerns. And whether bars that may perhaps be less inclined to discipline their lawyers, not naming any names, but Georgia comes to mind, whether they might want to avoid being the outlier in a setting like this. Sidney Powell is barred in Texas. Lin Wood is barred in Georgia.

Joyce Vance:

But many of these other lawyers are barred in New York, New Jersey, Michigan, D.C. And although there’s a little bit, I guess you could say, of dysfunction involved in having the possibility of wildly inconsistent decisions here, this is the reality of licensure in a lot of professions, not just for lawyers, but many professions are licensed at the state level. And so, I guess the answer here is the very unsatisfying, we’ll have to wait and see, watch the space.

Preet Bharara:

I think that’s right. There’s one other aspect of the opinion that I find very notable, and I think it’s very important, not just in connection with this case, but with respect to the broader principle of what the rule of law is and how the rule of law can be subverted. And at multiple junctures in the opinion. Judge Parker makes the point that courtrooms are different. There’s something about the sanctity of the courtroom.

Preet Bharara:

And if you permit me to read a couple of passages that I think are just very compelling and instructive, the judge writes, “Individuals may have a right within certain bounds to disseminate allegations of fraud, unsupported by law or fact in the public sphere,” in the public sphere, she says, “but attorneys cannot exploit their privilege and access to the judicial process to do the same. And when an attorney has done so, sanctions are in order.

Preet Bharara:

And part of the point she makes is that there’s a privilege associated with being a member of the bar and an officer of the court and having access to the judicial function. And then she goes on an even more compelling way to say, “While there are many arenas, including print, television, and social media, where protestations conjecture and speculation may be advanced, such expressions are neither permitted nor welcomed in a court of law. And while we, as a country, pride ourselves on the freedoms embodied within the First Amendment, it is well established that an attorney’s freedom of speech is circumscribed upon entering the courtroom.” I found that to be bordering on inspiring.

Joyce Vance:

I agree with you. I think it is inspiring. She’s talking about the duty of candor that we, as members of the bar, have when we enter a courtroom because you cannot seek justice if you enter that courtroom with unclean hands. And Preet, what I like so much about this order, I think it’s something that I’ll be sharing with my students, not just this year, but for a long time to come, is this sense that it’s a noble profession and it’s an important profession, and that lawyers are more than just the butt of bad jokes. And in many ways, we’re the glue that holds democracy together. And courts and the public are entitled to expect better from us than what Sidney Powell and Lyn would serve up to this country in the wake of a very difficult election.

Preet Bharara:

Yeah. And the point is, in some ways, we have to put up with a certain amount of “jackassery.” I don’t know if that’s a proper noun form.

Joyce Vance:

Technical legal term.

Preet Bharara:

Yeah. And people understand that happens, and people exaggerate. And they go on television and they spend a lot of nonsense. And as you and I know, lying to the public generally is not a crime, lying to an FBI agent in connection with an investigation, maybe, or lying to Congress, maybe. But the one place where you have to enforce proper standards, not just of evidence, not just of relevance, not just those kinds of things, but also general ethics and integrity has got to be the courtroom.

Preet Bharara:

And even when good faith argument is too much to ask for on the airwaves, or in political debate, or even in the editorial pages of lots of newspapers, it has to be preserved and maintained in the courtroom. If you don’t maintain in preserving the courtroom, which includes sanctioning people who don’t observe that principle, when you don’t have it in the courtroom, that’s really when all is lost.

Joyce Vance:

Well, it’s not all doom and gloom in the Kraken saga. There was at least one beneficiary of everything that went on. And that’s Four Seasons Total Landscaping, the venue for Rudy Giuliani’s notorious appearance where he thought he was at the Four Seasons Hotel, ended up at total landscaping next door to, I think, some kind of a sex toy shop. But now Four Seasons Landscaping has a new lease on life, right, Preet?

Preet Bharara:

Apparently so, if done very, very well. They had a show there a couple of weeks ago, featuring Florida punk rocker, Laura Jane Grace, who I believe is, Joyce, your favorite musician. Am I right?

Joyce Vance:

You’re close.

Preet Bharara:

And 200 socially distanced fans sang along to every single one of Grace’s songs. They also had other fun little stations next to Four Seasons Total Landscaping, including … Actually, I’m not sure why you’d want to do this, but including a selfie station, set up with a rack of garden tools and, you guessed it, a life size cutout of Rudy Giuliani.

Joyce Vance:

I’d do that. I’d go in for that selfie. So the real question here is this, Preet, if Bruce Springsteen played at Four Seasons Landscaping, would you go?

Preet Bharara:

Yeah. Well, those tickets would be very, very expensive, because I don’t know how large the venue is.

Joyce Vance:

I think that’s something that we should push for.

Preet Bharara:

Yeah. I would see Bruce Springsteen pretty much anywhere. The possible exception of Chernobyl, but even then maybe possible.

Joyce Vance:

No. I think it would still be a close call, and I would go. The question is, could you get a selfie with Bruce Springsteen, the Rudy Giuliani cutout, and you all in the frame?

Preet Bharara:

With that weird store in the background?

Joyce Vance:

Well, big kudos.

Preet Bharara:

That would be a good NFT. That would be a great NFT. I’d become rich.

Joyce Vance:

That would be a great NFT. That would be killer.

Preet Bharara:

Whatever that is.

Joyce Vance:

But seriously, kudos to whoever came up with the idea of repurposing this venue in this way. We could all use a little bit of innovation right now. So congrats to Laura Jane Grace for her successful concert.

Preet Bharara:

We’ll be back next week. As always, send us your questions to letters@CAFE.com.

Joyce Vance:

We look forward to answering them.

Preet Bharara:

That’s it for this week. CAFE insider is presented by CAFE studios and the Vox Media Podcast Network. Your hosts are Preet Bharara and Joyce Vance. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. And the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Chris Boylan, and Sean Walsh. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.