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And yes, my name is Jim Santel.
I am your host this hour and next hour as well as we pull up and examine and provide some analysis of those major issues in the area of government operation.
The delivery of justice in Wisconsin, throughout our nation, across the planet, and also the rule of law principles that guide all of this.
Delighted and honored that you have chosen to spend some portion of your time this weekend in conversation, in education with us on these and other important issues.
As always, we invite your questions, your inquiries into our studio
into Max, my producer and me.
We are willing to and encouraging enthusiastically your comments, your questions.
We're going to be taking those and encourage those comments and questions throughout the two hours of our broadcast this weekend.
The phone number, 855-752-4842.
One more time, that's 855-752-4842.
You can always also drop a question, drop an inquiry.
into our chat box on civic media, inviting you enthusiastically, encouraging you to do just that, being a part of our ambitious but achievable syllabus, our docket this weekend in the area of rule of law issues.
Let me tell you a bit.
about what's on our agenda for this edition of Amicus.
A lot of you necessarily begin with the continuing issue, not just here in Milwaukee, not just here in Wisconsin, and not just here in the United States of America throughout the world about the decision by the Department of Justice to arrest a Wisconsin circuit court judge from Milwaukee County.
Her name is Hannah Dugan on allegations.
And yes, their allegations set forth in a complaint.
that she engaged in conduct violative of the capacity of law enforcement to do its job, much more specific than that.
We have talked about that in our previous broadcast, identifying for you the two specific statutes under which the U.S.
Attorney's Office, the Department of Justice has charged her, two felony counts.
We're gonna spend some time next week, next week, a special program note here on the Maggie Dawn Show, next Tuesday in the second hour, five o'clock.
and are going to pull apart.
that complaint in greater detail, examine it, analyze it, identify its strengths, its weaknesses, and make comments about the extent to which probable cause is indeed established by that document.
The focus of that broadcast to get in the Maggie Dawn Show next Tuesday encouraged you to join Maggie and me for that all important discussion.
We have already undertaken some of that in our previous broadcast here on Amicus Allora View and also opened the door and begun to talk about
the much-related, no less significant collateral issue that involves the ways in which your government, your United States Attorney's Office, your Department of Justice, executed on that complaint, executed the arrest warrant.
took Judge Dugan into custody.
We'll tell you more about that.
We'll tell you more about some of the reporting on that.
And in particular, in this edition of Amicus Hallour Review, based upon my experience and my involvement for some 30 years with the policies and practices of the U.S.
Attorney's offices and also of the Department of Justice, we'll talk about the policies, the policies and practices that were in fact violated.
We're in fact violated by the U.S.
Department of Justice in running that now infamous
photograph of the judge taken into custody.
We'll talk about the legitimate purposes for using photographs and not.
We'll talk about the consequences of that, the consequences both in terms of inflaming the public, arguably tainting the jury pool, doing all sorts of other things, unintended or perhaps intended consequences coming out of that decision, presumably principally from the director of the FBI, Cash Patel, not only to gloat,
about the arrest of a sitting circuit court judge here in Wisconsin, but also to publish a photograph as if to say this is what we have done.
We'll talk about why that conduct, in addition to the underlying complaint itself, again, the subject continuing discussion here on civic media, why that conduct violates the press policy, violates fundamental notions of rule of law.
Again, always soliciting and encouraging your comments, your responses to that.
We necessarily are also going to talk about another issue in which Wisconsin is again the focus of this kind of misbehavior, misconduct, misdirection by the government in Washington, DC.
This involves our governor and a not so veiled threat made just this past week by Tom Homan.
He is the president's so-called border czar.
arguably threatening our governor with the same.
felony prosecution, arguably arrest.
If he continues, that is the governor continues to provide basic advice and direction to representatives, employees of our state government when it comes to interactions with federal authorities.
We'll tell you about what the governor said, what he didn't say in the execution of his proper responsibilities as the chief executive of the state of Wisconsin, responsible for administering the agencies and yes, providing guidance to employees.
We'll talk about what
Tom Hohman said in response, and then we'll talk about the governor further said in response to what Tom Hohman has threatened to do here in Wisconsin, all of that as Amicus, the law review begins.
Necessarily, we're going to turn back then to another one of our usual standard topics, which is the United States Supreme Court.
While all this is going on in America, including all of those injunctive relief,
actions that are being filed, issues pending in the federal courts, the federal judges themselves, the bastions, the standards against which.
the decisions and the executive orders of this president are being measured.
We'll talk about a major decision issued by a federal district court judge.
With respect to one of those law firms just this past week, a very significant decision, we'll talk about another decision, also entered, also entered by the judge for the first time in the area of immigration and these deportations, finding that the Alien Enemies Act, in fact, is unconstitutionally applied.
And then getting back once again to the Supreme Court, which we have not addressed in a while.
We're going to talk about three major oral arguments, three major oral arguments, two of them in the areas of, yes, once again, the Supreme Court taking up the issue of religion, establishment of religion prohibited again by the First Amendment to the Constitution.
two issues related to religious charter schools and the curriculums for grade school students in our schools, our public schools nationwide.
We're gonna talk about oral arguments in the late days of April of this year, both of those indicating that once again the Supreme Court likely to further erase the line that has existed at least for decades between the government and the establishment of religion, erasing that more and more, seemingly doing so.
or going to do so in the next several weeks and months in connection with these two cases coming out of states of the United States of America, asking the justices once again to give definition to what the First Amendment means, whether the establishment clause that is government prohibited from doing things, actions, undertakings, to establish a religion, whether that still is in place.
likely, likely decisions further erasing that line between the establishment of religion and government action.
And then we'll also talk about a third oral argument, predates those two having to do with yes, once again, Obamacare.
The Affordable Care Act, a decision coming out in this case, also probably, maybe later this month, more likely in June or July, this one has to do with some task forces that were put together as a part of
the Affordable Care Act many, many years ago, determining whether or not insurance companies under the Affordable Care Act are obliged legally to provide free healthcare in a number of different areas.
We'll talk about the genesis of that particular action, how it got to the Supreme Court, what the issues are, and once again,
reading some tea leaves about where the supreme court may be going on this all of that anticipating of course major time on this broadcast and others of civic media talking about the major decisions coming out of the supreme court we know that there are sixty five six five sixty five cases pending before the united states supreme court seventeen of those already
resulting in opinions of various kinds.
So lots of cases yet to be decided in the weeks ahead.
We, of course, will cover all of that as well.
And then some collateral things also related to the United States Supreme Court.
We'll talk about the fact that the Supreme Court has declined, declined to review a case involving age limits for carrying guns coming out of the state of Minnesota.
We'll talk about the fact that, yes, indeed, the Supreme Court has decided to take up this issue of birthright citizen
This ridiculous notion advanced by our president and in a case called Trump versus Washington.
Yes, that's the name of the case.
Later this month, going to have oral argument on whether or not the 14th amendment says what it means and means what it says.
That case coming up for oral argument.
And then we're also going to talk about a very recent action by this administration.
Again, petitioning the United States Supreme Court.
To overturn lower court federal judges who have found that the Elon Musk team Attempting to get information social security information through the social security administration access to private data non-public data
court previously saying you can't get it the administration now petitioning the Supreme Court to overturn that and permit Elon Musk and his staff to get that otherwise private information reviewing that decision of the lower court all of that happening before the United States Supreme Court it is a busy time on their docket as well we've got lots of other rule of law snapshots we will talk about including once again these issues related to immigration and
Law firms in America coming out of our federal district court judges will talk as well about the administration's continuing attempts to threaten individuals, including a fellow named Krebs.
We'll talk about some updates on that and the continuing efforts again with respect to law firms when it comes to the president's attempts to administer what they do in exchange for their providing pro bono legal services.
deciding not to prohibit them from the federal courts, not to prohibit them from getting security access and doing those other things that other law firms have been suffering recently, all of that in connection with the president's attempts to shut down those efforts to address.
in the courts what is going on in America.
We'll talk about the Civil Rights Division, staffing issues there, concerns about Columbia protests, that is protests on the campus of the university.
itself in New York.
And then we'll talk about Katanji Brown Jackson coming back to the Supreme Court.
Some major remarks that she made just this past week about judges and the role that they play, the important role that they play in administering justice, a lesson once again for all of us in the rule of law, but also although she never mentions his name for the president of the United States of America.
We'll talk about all of that on this edition of Amicus Allah Review.
Stay with us for all of that discussion and be a part of it.
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My name is Jim Santel Thank you once again for joining me on this weekend broadcast All about the law all about the rule of law the delivery of justice and government We begin as we have previous broadcasts talking about a case entitled United States of America versus Hannah C. Dugan.
It is case number 25 M
397 that M is a reference to the fact that it is a federal magistrate judge who found probable cause to believe based upon the presentation by the FBI and yes indeed assistant United States attorneys of the U.S.
Attorney's Office in eastern Wisconsin that there's probable cause to believe that Hannah Dugan has committed crimes.
under statues section 1505 and 1071 of title 18, that's the general criminal code, obstructing or impeding a proceeding before a department or agency of the United States and concealing an individual to prevent the discovery and arrest of that person.
We have talked about the content of that multi-page affidavit in support of that.
We are going to talk about that more next week on the Maggie Dawn Show Tuesday, late afternoon.
And so we're going to move on in this broadcast to talk about
about a seemingly collateral but in fact just as important issue and that is the manner in which this particular criminal complaint and the arrest warrant also authorized by the magistrate judge was executed by federal agents in particular.
We know well based upon the very credible and reliable reporting that Judge Dugan was arrested at the Milwaukee County Courthouse in the parking lot.
in the morning before she was going to work that day and escorted in the custody in the detention in the handcuffed custody of those agents brought to the federal courthouse
process there, as is every other defendant, on these felony counts, detained for a while in lockup in the United States Marshals Service Lockup Facility, brought to the magistrate judge's courtroom, proceeding was had where he found, of course, consistent with the law, consistent with the norms and the practices
of the rule of law generally, but the Department of Justice and the statutes passed by our Congress that Hannah Dugan posed no threat, no threat whatsoever of a risk of flight or a danger to the community and of course has released her.
She has since been placed administratively by the Wisconsin Supreme Court.
And so we are for this time deprived of the services of a good and decent judge.
And that connection I need to state as I always have, that I know Judge Dugan well.
We have known each other for years and years in the
practice of law in the Milwaukee area.
We have continued to maintain that professional relationship.
As you know, well, Judge Duggan is not just on the bench.
She's also a part of our community and is appearing routinely at various programs and projects, initiatives, meetings, visits, gatherings that promote the rule of law.
and advance the interests of justice in our community.
She is a constant figure, as are other judges, other elected officials, other appointed officials, and I've been privileged as well, not only as the United States Attorney many years ago, but since that time to participate in those as well, there have been frequent times, including about a month or so ago, when I was with Judge Dugan in one of those programs, one of those presentations,
talking about the same kinds of things that have animated her other activities in promoting the Constitution.
And so I need to tell you at the outset about the relationship that I have with her, I would like to think as well that because of my knowing her and working with her, yes, on bar activities and other things in the community for many years that I am also a friend of hers, need to know that as I go forward and describe now my continuing profound concern and objection to the way in which
The Department of Justice, including the U.S.
Attorney's Office, for which I worked for 30 years, conducted the execution of this arrest warrant.
We've talked about some of this before, and we now go back again to the issues that relate, yes indeed, to that question about the rule of law, and whether or not she was in fact a risk of flight, she was not, and does not remain that, whether she was a danger to the community, obviously not.
and those findings affirmed by the magistrate judge, but there is more beyond that.
And it has to do principally with, again, the conduct of Cash Patel.
He is my director.
He is your director of the Federal Bureau of Investigation.
He is the one in a gloating...
Tweet in a gloating statement on social media announced again, even as matters were underway, that the government had arrested this Wisconsin circuit court judge.
And along the way also sent along this photograph, now infamous, that has made its way not just in circles in Milwaukee, not just in Wisconsin, not just around our nation, but around the world.
And that's an important point.
A photograph around the world that has been seen by people far and wide showing the Wisconsin Circuit Court judge being escorted out of the building into the car where she was taken to the federal courthouse in handcuffs.
We know as well from some other reporting that that custodial situation continued, continued as she arrived at the federal courthouse.
In addition to the shackles that she was placed in, the handcuffs she was placed in,
She was also shackled.
Her ankles were shackled as she moved into the Marshall service was detained in their lockup in ankle shackles before she was brought once again down the hallway up the floors down the hallway to the magistrates courtroom again in ankle shackles and on the elevators getting there.
We know all of that also from a liable reporting about what happened that day.
Now all of that all of that
within the discretion certainly of law enforcement, responsible for ensuring the safety and security of everyone involved, including the defendant, here an exercise of and a show of power far beyond what needed to be done in this instance, far beyond what the government should have done.
And we know beyond that heavy-handed power move by the government to do it in that fashion, probably directed by Kashpatel.
in an over exercise of the authority that he has exercised here in this chest pounding bravado type of way.
We also know once again that he distributed this photograph and here is the rub on that.
The Department of Justice for many, many years, decades has had what's called a public media policy.
What can you say what you cannot say when it comes to the charging of a defendant?
an individual, an entity.
What is it that prosecutors are permitted to say in the public domain about what has just happened?
And yes, indeed, as U.S.
Attorney, both as an interim U.S.
Attorney and a presidential appointed U.S.
Attorney, many instances in which I appeared before the media.
and described the return of charges in federal cases.
Also talked about civil actions as well.
And the guiding principle in all of that, because you are initiating the case, because you are the United States Department of Justice and you do not play badly.
You play according to the rules of law that promote the interests of justice.
The guiding principle is always that you describe within the four corners of the document what the charges are all about.
You describe the statutes under which the charges are made.
Arguably, Cash Patel did that.
Other releases from the Department of Justice summarized the 12-page affidavit supporting that complaint.
That is what you cannot do.
It can do.
What you cannot do, what you're forbidden to do, not just because of policy, but because you are concerned about the execution of justice, the proper management of this prosecution to ensure that it can get to trial without infringing upon the rights of the defendant to a fair and proper trial.
The rights of the
public to ensure that the trial is conducted appropriately.
What you don't do is you don't add gloss to it.
You don't describe the character, for example, of the defendant.
You don't describe her, him, or it in ways that, through adjectives, inflame the passions of the community.
And you don't provide this photograph.
When we come back, I'll tell you specifically why that photograph is so violative of policy and so violative of those fundamental understandings about how these
things are done, misconduct by the United States Department of Justice in this matter as Amicus, a law review, continues.
This is Amicus, a law review.
My name's Jim Santel, your host this hour and next hour as well as we have been doing in this broadcast, our previous broadcast as well, providing some specific information about the way the Department of Justice, U.S.
Attorney's Office in eastern Wisconsin, the other 92 U.S.
Attorney's offices nationwide.
are required to act and behave when it comes to the arrest, the charging certainly, but also the arrest of defendants, an awful lot of discretion placed in local law enforcement, federal law enforcement, and yes, by the Department of Justice in Washington, D.C., to decide on and execute on the ways in which one is arrested.
All of that should always be measured by and directed by the threat of flight.
the danger to the community.
Here, here, a situation where neither one of those is in existence, and yet we have a defendant who happens to be a Wisconsin Circuit Court judge from Milwaukee County in ankle shackles through much of her time in the federal courthouse, going to court, coming back from court before she is released late in the morning.
We also, again, have this photograph released by Kashpatel of at least her exiting from the Wisconsin Circuit Court from Milwaukee County, the courthouse there on 9th Street in downtown Milwaukee.
Why is that so highly problematic?
Why is it actually contrary to the interests of the rule of law?
Again, whenever one makes statements from the government as a prosecutor, as an agent, as a leader in the area of prosecution, you always ask, what is legitimate purpose
of my making this comment.
And there are many.
It is to advise the public plainly that the government is at work, it is doing its job and keeping the community safe and secure.
That is a very legitimate reason for commenting about what has happened.
Describing, again, within the four corners of the charging document, an indictment or a criminal complaint, exactly what it says, exactly what it doesn't say by virtue of omission, and describing exactly why it is.
that the government has done this.
That is to enforce the law, to ensure, for example, again, that the safety and security of the community is protected.
That is a legitimate press reason, a media release reason in particular.
That is a very rational reason for talking to the public about what has been done.
But it does not justify invective.
It does not justify exaggeration.
It does not justify intimidation, humiliation, attacks upon the defendants, who they are, whoever they are, whatever they have done.
That is where the press policy, again, premised upon an interest in the delivery of justice is premised.
And it's not just because it is incendiary.
Just because it is an example of bravado that should have no place at all.
at all in a U.S.
Attorney's Office in the halls of the Department of Justice.
But it is because you are concerned about the legitimacy of the process itself.
At some point, presumably, maybe, when this case goes to trial, it is going to be necessary to impanel, yes, that's right, a jury.
And where do they come from?
They come from the relevant community here in the Eastern District of Wisconsin, actually the southernmost counties in the Eastern District of Wisconsin, the easternmost portion of the state of Wisconsin.
It is likely that many, if not all of the prospective jurors, have now seen this photograph.
Seen this photograph of a defendant whose liability, whose culpability, innocent or guilty, will they will now be called upon to decide they have seen her in handcuffs.
They have seen her in a situation where the message is the government has determined that she needs to be detained because she does in fact pose
perhaps a risk of flight, but more importantly, a threat to the community.
And that's exactly the reason why, in every case, state cases, federal cases, when you see defendants appear in a jury proceeding, unless there is some wild and pretty much atypical, almost unprecedented concern about the in-moment safety of the people in the courtroom, that defendant is not.
is not in the government garb, the jumpsuit of various colors, not shackled, not handcuffed as they sit at council table.
Often they appear as I'm appearing right now, long sleeve shirt, a tie if you're a man, and a very appropriate professional garb if you're a woman as well.
And that is because you do not want to suggest to the jury that's not deciding.
on who you are, the kind of person you are, what you've done in the past, or what the government has done to you previously to deny you your liberty, maybe appropriately, they're there to decide on what you did in support or not in support of the allegations in the indictment.
That's their focus.
And they should not be in any way tainted to believe that because this person sitting at council table was previously detained, previously in custody, therefore we should send that.
person back to custody.
That's the reason why these images are also very important.
That's the reason why if it does in fact happen and jurors see those kinds of things, it is a basis for an appeal of a conviction and sometimes even reversal on those grounds of improper impact and effect upon a jury.
And that's the great concern beyond the bravado and the chest pounding that this photograph and the shackling and the handcuffs and the manner in which Judge Dugan was treated.
is offensive and inappropriate, inconsistent with who she is and what she has done.
It also is arguably contrary to the very interests of the government in prosecuting this case.
Anticipate, anticipate that Judge Dugan's defense attorneys will raise this issue.
Why?
Because it relates to prosecutorial misconduct, the possibility that the case should be dismissed or at least sanctions imposed because of the very ways in which this case was initiated.
The incapacity to impanel a jury would be the argument as well.
Judge, we cannot go to trial because the jury pool has been so tainted by this hugely public thing that has happened from the desk.
from the laptop, from the desktop computer of the director of the FBI who sent this worldwide.
How can we possibly get a fair and decent jury now?
That, that is also the profound concern with what has happened here.
And everyone in America, everyone in the state of Wisconsin, everyone in the eastern district of Wisconsin in Milwaukee County should be focused upon that.
Judge Dugan has excellent lawyers, including now Paul Clement, former Solicitor General of the United States of America.
He was born and raised right here in Wisconsin, an outstanding trial team, and they are certainly looking at all of these kinds of things, including the manner in which this arrest was conducted.
And that is the reason why here on Amicus, a law review is a part of our civics instruction.
It's also important to understand why this is not just a show of power and force.
It also has a rule of law impact and even an impact upon the future capacity to prosecute and defend this case according to the ways in which we expected to be prosecuted and defended in a federal court in the United States of America.
We also have expectations, of course, about what our other officials in Washington do and say.
We have expectations about what a governor does and says, and we know that our governor, his name is Tony Ebers, you know that well, recently issued an
a set of advisory directions to those folks who are inside government offices of the state government, telling them what to do if in fact representatives of the federal government from the Immigrations and Customs Enforcement Service and Agency should appear in their offices asking for information, asking for documents.
As a part of his legitimate role as our chief executive, what did our governor do?
He provided
the simple, straightforward, non-controversial, accurate, and comprehensive direction to employees in our state.
And what he said was, again, focusing on encounters with U.S.
immigration and custom enforcement authorities requires staff to contact the agency's legal counsel.
Call the lawyers.
Call the lawyers if ICE officers visit a state building and ask the officers to return at another time if a staff attorney is unavailable.
It is invoking the fundamental right protected by the constitutions of the state of Wisconsin and the United States legal counsel.
Not for them personally, individually, but on behalf of you, on behalf of the people of the state of Wisconsin, in particular the memo style staff, to refuse to hand over paper files or give ICE officers access to computer systems, not carte blanche, not blanketly, but without consulting the agency's legal counsel.
Get the lawyers involved so that they can engage with the ICE officers Determine the circumstances under which their requests will be honored Importantly importantly the
governor has also said that there's nothing about what he wants to do as our chief executive that would stop U.S.
Immigration and Customs Enforcement officers from doing their jobs, from carrying out their deportation orders.
What he is attempting to do is to ensure that these things are executed in a way that is safe and secure, that people know what they're supposed to do and not supposed to do.
This is not a roadblock to federal government.
This is actually facilitating the ways in which the federal government
and indeed interact with state employees and getting the information they need to do their jobs.
That's what prompted the governor to issue, issue the orders, the directives, the, the instruction that he has done.
What has happened?
Well, we know that this fellow named Tom Holman, he is the president's
Southwest border czar.
He is the fellow who also has spoken not too long ago about the fact that we don't need to take seriously what federal judges do.
He walked some of that back a bit, but he basically said, we're coming.
We don't care what federal judges do.
Well, he's added again.
And once again, providing focus to the state of Wisconsin, he has told the governor.
He has told the governor that in fact his conduct, that is the governor's conduct in issuing this very benign and appropriate instruction may expose him, may expose him to the possibility of felony charges if the Trump administration believes that the immigration efforts are being impeded by the execution of that policy.
What specifically did he say?
He said, I meant what I said.
You cannot support what we're doing and you cannot support sanctuary cities.
He said, if that's what you want to do, but if you cross that line to impediment or knowingly harboring and concealing an illegal alien, that's a felony and we're treating it as such.
That is a not so veiled threat.
Again, coming from Tom Holman who also said, wait to see what's coming.
Wait to see what's coming when he was asked about the governor's memorandum to those state workers directing them to seek legal counsel.
in cooperating, in cooperating with federal authorities in providing all of this.
The governor has responded and said, of course, I've done nothing wrong.
There's no felony that I've committed here.
I've done what the governor is supposed to do in the state of Wisconsin.
He has said very clearly in a several minutes long speech that the guidance didn't direct anyone to break the law, mischaracterized by Mr. Homan, and describe Homan's threats.
Felony prosecution, arguably, arrest as chilling.
and the governor went on to say this he said we now have a federal government that will threaten or arrest an elected official or even everyday american citizens who have broken no laws committed no crimes and done nothing wrong and as disgusted as i am this is the governor speaking as i am about the continued actions of the trump administration
I'm not afraid and more, more from the governor about all of that.
A significant rule of law issue once again, because it does two things.
Once again, it illustrates the ways in which things should happen.
There is no reason why federal authorities and state authorities, local authorities cannot and should not cooperate in ensuring law enforcement.
As we've talked about before, we know that the chief judge in Milwaukee County, his name is Carl Ashley.
He's an outstanding judge.
He's an outstanding administrator.
along with his deputies and other judges and staff are putting together this memorandum referenced in
the very criminal complaint against Judge Dugan.
He said he's putting together this memorandum, this policy guidance, the same kind of thing that the governor has done, so that people in the courthouse know what the expectations are, so that you're balancing appropriately legitimate interests of law enforcement, federal and state and local, and the legitimate interests of, with respect to the governor, the operation of executive branches.
executive offices of the executive branch of other agencies internal to the Wisconsin government, likewise in the Milwaukee County Circuit Court, balancing the interests of law enforcement and executing warrants, approaching witnesses to interview them, doing other things that are related to legitimate law enforcement purposes, balancing that with, not against, but with the interests of what goes on in a courthouse.
and that is the litigation of civil and criminal cases how is that done where can these law enforcement activities properly take place without compromising any of that that's what the governor did with respect to the operation of and the conduct of state employees that's what judge ashley chief judge ashley is now doing to ensure that in the future we've got exactly the cooperation
that apparently my federal government and the White House and the Attorney General and the Director of the FBI do not understand.
That is that this does not need to be adversarial.
This can and should in fact be cooperative.
It can work.
It has worked.
It needs to work in the future.
Let's all commit to that all-important goal that promotes justice.
and safety and security for all of us.
We'll continue with more of this and turn to the United States Supreme Court as Amica Solaraview
continues.
My name is Jim Santel.
In just a moment, taking callers, calling in presumably about our renewed appropriate attention to the situation involving not only our governor, the threats being made to him, but also the arrest recently of circuit court judge Hannah Dugan and brought into the custody.
of the federal government based upon allegations of felony violations of the federal criminal code, an important footnote before we get to those callers, and that is that I am not alone in expressing great concern and yes, objection and outrage to the way in which this particular aspect of this case has been pursued.
Two public ethics groups called State Democracy Defenders and Public Citizens have also asked the Department of Justice's Inspector General, his name is Michael Horowitz, to investigate the mechanisms of Judge Dugan's arrest, exactly the things we've been talking about last broadcast and this broadcast as well, pointing in particular to the public comments that Cash Patela's made, Attorney General Pam Bondi's made in the public arena, and specifically saying that Judge Dugan in handcuffs
led away by law enforcement in a perp walk towards a waiting motor vehicle not only appears to violate the DOJ media policy on use of photographs but seems designed to inflame rather than convey an impartial and accurate accounting of the facts and the charges.
I would add to that also potentially undermining the very rule of law that this is all about and the process for criminal prosecution in our federal courts.
Let's go now to some callers in this the last segment of our hour before we return to the Supreme Court, probably at the start of our second hour.
Let's begin coming from Merrimack.
Jack, appreciate your contributions to our discussion this morning on Amicus Hall Law Review.
Good morning and thanks for taking my call.
I got about three things to cover here.
I'll try to be quick.
First of all, there is a reason for the actions of Helen Judge Dugan.
And in my opinion, it's not to
inform the community
that we're keeping you safe.
It is to show the community and America because of the way the publicity was handled in this case.
Look what we can do.
Doesn't make any difference who you are.
Doesn't matter if you're guilty or innocent.
We can weaponize the legal system right at the top.
We can harass you, we can shackle you, and we can take you away.
That's their message.
Secondly, I'd say this is much like the case with Mr. Abrego Garcia.
As far as I know, he continues to be locked up in a foreign country.
And that says it doesn't matter whether you're legal or not, we can disappear you.
We can throw you out of the country.
You can't do a thing about it, even if you admit it is a mistake.
even if we admit it's a mistake.
In fact, if one of our servants admits it's a mistake, we'll fire him.
And we can ignore orders even of the Supreme Court of the United States.
And Jack, to that very good point, that second point, the president of the United States of America in that infamous interview just this past week, looked at the ABC News report and says, yes, I could pick up the phone and call.
President Al Salvador, I'm not going to do it.
I don't want to do it because he says Mr. Rodrigo Garcia is not the gentleman you think he is.
That is an overt violation of the rule of law.
That's an abrogation of his responsibilities to take care that the laws be executed.
So concur in both of those points, including the second one as well.
And you've got a third point as well.
Yeah, regarding the Evers administration memo, I've read the whole thing.
It's short.
I recommend everyone regardless of political leaning and read it.
I'm not a lawyer, but it seems essentially all this short memo says is if ICE or another federal agency confronts you before you do anything that they demand.
Ask a lawyer.
Call the lawyers and probably comply.
But when it makes certain it's done in a way that's legal and authorized, absolutely.
It is a simple, and again, I often make assignments here on this broadcast for reading.
I agree, Jack, this is one from you making the assignment to read this.
It's short, it's simple.
No one comes away reading that and thinking, I think the other thing is the governor is doing what he needs to do.
And Jack, thank you so much for those good observations here on our broadcast.
I appreciate tremendously your contributions there as well.
Matt from Middleton, Matt, thank you for being a part of our discussion this weekend.
Hello, Jim.
Thanks for what you do.
My big question is this.
If the people at the top are breaking laws left and right and are criminals or acting as such, what is the stop local law enforcement in any other branch?
that wants to file the constitution to surround themselves around these governors and others and fight back and protect them from apprehension.
Because if they're breaking the laws, then everyone else should be able to break the law or defend the law as they fit in my opinion.
Thank you, Jim.
Of course, Matt, you aren't, and we don't advocate any violence, certainly not law enforcement on law enforcement violence.
And I will interpret your outrage to be legitimate.
We don't want to get into a situation where federal and state law enforcement or even people internal to a particular law enforcement agency are fighting each other.
That's not contrary as Judge Wilkinson said in his order that we read on the air a couple of weeks ago.
That's a proposition where no one benefits.
No one gets out of that in a good situation.
But it underscores the problem here, right?
That you do have
have at least directives from the highest levels of law enforcement.
The FBI director, the attorney general saying, we don't care what judges think.
We don't have to abide by what they're doing.
And oh, by the way, we are going to direct law enforcement to behave in ways that are contrary to our own policies.
And I'm speaking once again about the specific ways in which Judge Dugan was arrested.
taken to the courthouse in handcuffs moved around in ankle shackles for much of her time there as well all of that all of that again chest pounding bravado and
and abuse of the authority that you have, and abuse of the discretion that should be vested in all law enforcement, even at the highest levels, to do this in a way.
The other important response to what you have identified, Matt, of course, is that executives in our state system, in local county government, do they have a right to fight back, not violently, but certainly if they
They feel that they are on the receiving end of inappropriate and unlawful, unconstitutional conduct by other officers.
Are there mechanisms, again, most often involving calling the lawyers in to petition in court to stop things from happening?
Absolutely.
That is the rule of law in our system.
And the officials who may find themselves on the receiving end of those kinds of oppressive behaviors are not without recourse.
There are systems in place to do just that.
So, Matt, we appreciate again that comment.
and your observations about the frustrations that come when the rule of law is not being observed.
Let's also hear this morning from Perry Dussack and Mark.
Mark, glad to have you on our broadcast as well.
Yeah, thanks so much, gentlemen, that what frustrates me is that in Judge Dugan's case is that that easily could have been handled if they would have said, Judge Dugan, we're gonna do the, we're gonna apprehend this man.
conclude your proceedings with this man, then we'll take him into custody.
I'm going to have you stay on the line, but we've just got to take a break here at the top of the hour.
We'll talk more about that important comment, that observation as well when our broadcast continues.
And then getting into the United States Supreme Court as well here on Amicus, a lot of you.
This is the second hour of our tour broadcast this weekend.
Delighted and honored once again that you have decided to spend some time in discussion of these all important justice, government and rule of law related issues.
Necessarily this weekend spending a lot of time analyzing, pulling apart for your understanding the reasons why the ways in which our government, your department of justice has executed the arrest of
Sitting judge Hannah Dugan bringing her into federal custody.
Why does not just problematic contrary to the policies of the Department of Justice Supposedly administered by our Attorney General and presumably supposed to be followed by the director of the FBI apparently presumably obviously
not in this case, discussing why it is that is important, not just as a policy matter, but also when it comes to adjudicating the basic claims in what is right now the criminal complaint, presumably at some point a grand jury indictment when that is issued, if ever.
by the grand jury in eastern Wisconsin.
As a part of that, of course, is always taking your phone calls.
I appreciate very much the comments and questions to this point at 855-752-4842 at the end of our last segment discussing with Mark what should have happened here, and we've talked about this before, Mark, and appreciate you are bringing this up once again, the notion that on a regular basis prosecutors will literally pick up the phone, send a letter, issue what's called a summons, and direct that person to come in.
on an agreed upon or even not agreed upon date when we do not have to have the actual physical arrest of individuals because they don't pose a risk of flight, they don't pose a danger to the community, and it is done if it's not in a non-adversarial situation.
Plainly it is.
This is a government making serious significant allegations against another person.
And that is a very serious matter.
All the more reason why it should be done in a way that protects and preserves safety and security for everybody.
And Mark, you are commenting about that very issue just before we broke the top of the hour.
Yeah, it seems to me that I should have been in contact with Judge Dugan's court and saying that we're going to take this guy into custody.
You know, we understand you have proceedings before the court.
We'll let you conclude those proceedings, then take him to custody after that procedure is done.
concerns me greatly is the complete lack of understanding of any kind of constitutional principle it seems this government is operating under particularly i saw again this morning ron de santa said we don't need any stinking rule of note uh... procedure traditional procedures for uh... you know for taking people into custody of that uh... for illegal immigration and correct me if i'm wrong but i believe section article three section two of the u.s constitution itself guarantees
trial by jury for all crimes
committed
within this country.
It doesn't, it doesn't say that about illegal, you know, if people hear illegal or anything of this, just all crimes, even the bill of rights are constitution established, trial by jury for all crimes.
And it just, um, is disturbing to me that we have a government now that insists on, you know, not following, I mean, as far as I'm concerned, Pam Bondi and a whole cast of characters in this administration,
if they've got a law degree should get yanked because they apparently do not understand even basic principles of constitutional law let alone.
The expertise they should actually have
and the ways in which those policies and the constitutional principles the statutes of our of our nation should be exercised properly.
Yes with discretion.
Yes necessarily You've got human beings making judgment calls about how this is best to be done underscores the reason why when you elect a president you're also bringing with that person
presumably one day an attorney general, a director of the FBI, and significantly United States attorneys.
Where do U.S.
attorneys come from?
Right now we have interamuous attorneys in many districts around the country, right here in Eastern Wisconsin.
But U.S.
attorneys also come from presidents, right?
They're nominated through the United States senators of the state, ultimately confirmed by the United States Senate itself in whole
all of this, all of this underscoring the human involvement and the reason why you need to have people in those positions who can follow the law and understand what it means and exercise discretion in a decent and reasonable and balanced way.
Mark, thanks so much for the observations here this weekend.
Appreciate that as always.
Let's go to some other callers from O'Connell Walk.
Bill, you're a part of our broadcast this weekend as well.
Thank you.
Thanks so much for having me.
Can you hear me
Okay We are a millisecond away from Kent State We are on the Constitution's last stand.
I do not believe in violence, but I do believe in the law as opposed to violence because if we don't uphold the law who will my point is I believe thanks to Governor Evers We have the power in our state
to force this concentration camp collection of people to stop in their tracks, because according to our Constitution, our all laws, they have ignored them.
We don't.
So Jim, just expound on what I said, because I can't wait to hear your thoughts.
Appreciate it again.
The sense of outrage again by the
Plate violation of the rule of law.
We are in previous discussions and broadcasts.
We've talked about the fact.
Are we in a constitutional crisis?
Absolutely.
We've been there for weeks, arguably months when we've got the president and you've got an attorney general and others who are simply saying we're not going to abide by what the law requires and we're not going to abide by what federal judges at the district court level and at an appellate level.
And even at the Supreme Court level have told us what to do.
We don't care.
That is a crisis.
that's the millisecond away that you've just described, Bill.
And that is why we should all be thinking about what the answer to the question is, what do we do now?
What are you prepared to do to preserve your republic?
And that's where your question and your sense of legitimate sense of outrage, Bill, comes from.
Again, are there avenues to pursue this?
Absolutely.
Many of them are being done right now by lawyers out there and other litigants who are going into court and saying, no, we're not going to permit this to happen.
We've got federal judges who are
agreeing with that across the board almost not not completely but almost almost across the board saying Mr. President and others you cannot do this.
This is violative of our Constitution.
That needs to continue.
Here's the other part of it Bill that I think is implicit in your comment which is we are looking now more and more to the Chief Justice and asking him if he's serious when he says things like we number one we should not be impeaching judges or proposing that because we
don't like what they do.
And secondarily, as he has said in previous times, the rule of law is important.
The attacks on the judiciary are not only counterproductive, but they're wrong under our system of justice.
And Mr. Chief Justice, are you going to finally enforce the orders that you and the lower courts have?
issued saying that the president is not a king and the things he is doing are not legal and not constitutional.
That's your principal remedy.
There should also be legislative remedies here as well.
There should be oversight inside the United States Congress.
How infrequently these days we talk about the work of the House of Representatives, the United States Senate, at least the majority in those bodies in addressing these kinds of things that go to the very nature of our republic.
Republicans, Democrats, the people of all parties should be profoundly concerned about this because of the longevity of our nation in the past, the prospect that is beginning to fray.
And Bill, again, I agree with you in terms of the powers that need to be invoked and are being invoked.
Again, the final chapters are not written on all of this, but need to be invoked.
to not just push back, but to establish and reestablish the rights that all of us have and to make clear that these kinds of things, including yes indeed, yes indeed in the criminal courts, the civil courts,
exercises of power that are beyond what we expect of our law enforcement and our people in positions of responsibility.
Last to unpack their bill and we'll continue to work with you and others on hopefully pursuing all of that.
I appreciate and value your observation.
Appreciate also Dale calling in from Wausau.
Dale, what's on your mind this weekend?
Yeah, thanks Jim.
Love your show.
and the FBI using photos to imply visually that Judge Dugan is a danger to the general public at a flight risk and in handcuffs and shackles to taint the public's view towards Judge Dugan that she must be guilty of the charges level because her federal government has her in handcuffs and shackles.
It of course is to intimidate and instill fear in judges at all levels across the country.
just in carrying out the duties of their office.
Your thoughts, Jim.
And again, it's the kind of thing, speaking about as we were just talking, the kinds of things that legislatures can also respond to.
Congress plainly has oversight responsibility.
Call in the attorney general, call in the director of the FBI and ask them to explain the reasons why you did this.
Contrary to policy established, what is legitimate purpose as you're just indicating Dale in doing this other than to intimidate and
Again, the point I'm making, and you and others have made, actually contrary to the interests of the prosecution, because you're compromising the very possibility of creating the environment, the atmosphere for a fair and just trial, which everybody wants, including the prosecution, including the defense, including the public at large, really contrary to the basic principles that animate the Department of Justice.
Call them in and ask them to answer those questions.
Media can also do some of that.
them those questions as well.
Ask the press secretary in the well of the White House there the same kinds of things you may not get a satisfactory answer, but continuing to ask those questions and really make the point, make the point that the action here is defenseless, not just as a policy matter, but actually contrary to the oath of office they took and the great authority vested in them to serve the public.
could not agree more, Dale, and I thank you so much for that observation here as well.
We have got federal judges around the country who are acting as the bastions, as the standards to push back on this.
We also know, also know, although we don't see their activity, we shouldn't see their activity, we've got grand juries out there.
And notice a footnote to all of this, that at some point, yes, 23 people impaneled in the Eastern District of Wisconsin have to likewise take a look at the evidence presented by the US Attorney's Office,
by the Department of Justice and make a determination again whether there is probable cause to indict Judge Dugan on the charges and the complaint or other charges that may be presented.
That is still to come.
That's also a safeguard against government.
when it overreaches and acts in a way that's contrary to the interests of all of us.
Let's talk about the Supreme Court.
Let's talk about the activity there on Capitol Hill just beyond the parking lot coming off of the Capitol building itself.
Lots of activities in recent times, including cases involving religion, two of those, including cases involving healthcare, one of those as well.
When we come back, I'll tell you in greater detail what the oral arguments about those cases are about and make some predictions.
about whether Supreme Court is going to come down on all of them here on Amicus, a law review.
This is Amicus, a lot of you, and we are turning now much related to our discussion about the rule of law in the federal courts and the state courts here in the state of Wisconsin, much related.
What is our Supreme Court doing these days?
Well, again, lots and lots of oral argument.
These are these opportunities for the litigants to present their cases.
in-person oral argument before the Supreme Court justices, as I've often said in the past, if you find yourself in Washington, DC, go there.
You can stand in line and you can watch these in person.
You can also hear them live streaming by virtue of the largesse of our Chief Justice who said, yes, I'd like the public to hear them, hear these oral arguments.
You can also go online and pull up.
past oral arguments as well.
You can actually hear the justices talking with, sparring with, arguing with the attorneys, sometimes supporting them as well when they present their cases.
Three cases in just the past couple of weeks, one of them from Justice Past Week is going to affect our understanding once again, once again of what the First Amendment means when it says that government will make no laws, no principles, no guidelines affecting the establishment of religion.
Government doesn't establish religion.
doesn't do anything else again, of course, to affect the free exercise of religion.
That's the other portion of it.
We've got this series of cases in recent times.
This Supreme Court and this Chief Justice especially interested
in religion cases this past week, no exception to that.
Oklahoma Statewide Charter School Board versus Drummond in the case, it's got a couple of issues here, but among them, among them, whether or not the state violates the free exercise clause by excluding privately run religious schools from the state's charter school program, doing that.
only because the schools are religious, or alternatively, whether a state can justify that exclusion by invoking the anti-establishment interests that go further than the establishment clause requires.
That's the way that the issue has been framed by the Supreme Court.
The question is this, Supreme Court appearing on Wednesday
appearing on Wednesday to answer the question in favor of the religious charter school, in favor of a very, very expansive view of the First Amendment that permits the government to engage in these kinds of activities.
What am I talking about in particular?
The Supreme Court appeared just this past week to be headed toward allowing Oklahoma
the state of Oklahoma to use government money to run the nation's first religious charter school.
That's a big deal, right?
And that charter school is going to teach curriculum infused with Catholic doctrine.
Judge Brett Kavanaugh, Justice Brett Kavanaugh on the bench says, excluding the schools from the state charter school system would amount to rank discrimination against religion.
Why don't we start there?
I start there because that's the new standard that has been articulated by the Supreme Court, especially by the Chief Justice in examining whether or not, whether or not the establishment clause has been violated, whether indeed, indeed, for example, state monies, federal monies,
Public dollars are being used to support religion in a way that does establish religion.
contrary to the First Amendment.
The main question, once again, First Amendment, does it permit, maybe it even requires states to sponsor and finance to support financially religious charter schools, which are public schools with substantial autonomy.
A decision endorsing those schools would plainly have a dramatic impact on states and schools around the country.
What do we know about this particular case?
Well, what happened here is the Oklahoma Charter
School, which is called the Saint Isidore of Seville Catholic Virtual School.
Operated by the Archdiocese of Oklahoma City and the Diocese of Tulsa, Oklahoma, it aims to incorporate Catholic teachings into every aspect of its activities.
That's how it self describes as this litigation goes forward.
Now, the Oklahoma Charter School Board and Administrative Agency looked at the application and said, yes, we will approve the proposal to open Saint
Isidore and when that happened.
The state attorney general in Oklahoma said, no, no, you can't do that.
That we can't be using federal, we can't be using state dollars, rather public dollars to support a private institution that advances religious interests and activities.
And his name, Genter Drummond, he comes forward and says a religious public school would violate the First Amendment's prohibition on the government establishment of religion.
And there's also a state constitutional ban.
Oklahoma, spending money, public monies, tax dollars to support religious institutions.
So what happened?
What happened just this past week?
Well, the justices, again, reading the tea leaves, somewhat appear to be divided.
pretty much along ideological lines with the some of the more conservative appointees there, largely sympathetic, listening to the school and it's the others, the so-called liberals on the other side of the bench, quite wary of what is going on here.
Interestingly, this is important for the disposition of the case, just as Amy Coney Barrett has recused herself, she said, no, I should not participate in this.
She hasn't given a specific reason, but the rational speculation is that she is a former law professor, Notre Dame, and the religious liberty clinic there at that law school represents the charter school.
And so she said, you know what, I shouldn't have any involvement in this.
She also also closed
friends with a professor there who assisted the school in its petition so appropriately.
Amy Coney Barrett says, you know what, I'm not going to participate in this.
I do not want the appearance of impropriety to attend to any decision that the Supreme Court makes.
And so we now have eight justices.
And that raises the possibility, the possibility that you could get a four to four split.
Probably the only justice might be the Chief Justice who might join the others, the so-called liberals on the bench, again, a phrase that I typically tend to disagree with because it does not always describe their views, nor does conservative justices always describe their views.
Here, here, you've got the Chief Justice who is asking questions on both sides that seem variously supportive and critical of both sides, and he seems to be the member
who's most likely to create sort of a political or rather a potential alliance with the other three, Sonia Sotomayor, Katanji Jackson, and Elena Kagan.
You could end up with a four to four split, given the fact that Amy Coney Barrett is no longer here.
And if that's the case, the lower court decision, the lower court decision that said, yes, indeed, this is a violation of the establishment clause.
The monies cannot be used.
And the particular saying Isidore,
of Seville Catholic Virtual School cannot be approved, cannot be endorsed by this charter school board, that would stand.
But we've got a lot of argument along the way about all of this.
And along the way, along the way, again, we know that the justices spar with the lawyers.
The lawyers for the school and the state agency that approved it said the school was privately created and would be independently operated.
But Elena Kagan said school and the charter school like it have
many hallmarks of regular public schools.
She said, they accept everybody.
They're free.
They can be closed down by the state.
There's a good deal of curricular involvement by the state, approvals by the state.
They have to comply with all the state standards.
In other words, they've got to comply with the Constitution.
Neil Gorsuch suggested the school was sufficiently independent of Oklahoma, but said that other states could exert more control.
by, for example, requiring public officials to serve on the Charter School's board.
Lots of back and forth on all of this.
John Sauer, you may have heard that name before on this broadcast.
He is now the Solicitor General.
He is arguing, again, in favor of the school on your behalf, on behalf of the Trump administration.
This is his first argument.
He is also there saying the school charter should, in fact, be approved.
When we come back, we'll talk about two other cases.
also pending before the United States Supreme Court, one on religion, one on health insurance.
As we come back here on Amicus, a lot of you.
This is Amicus, a law review.
My name, Jim Santel.
We have turned to the United States Supreme Court and some of these recent oral arguments, not decisions.
Those are coming up.
Perhaps beginning later this month into June, especially maybe, maybe even into early July, lots and lots and things on their docket.
They've decided about 17 cases.
They've got 65 altogether to decide before they're done, presumably by or about the 4th of July.
But that includes this case coming out of Oklahoma and Supreme Court, again, seeming, depending upon how you count the votes here, seeming likely to allow Oklahoma to use, for the first time in our nation's history,
government money to run the nation's first religious charter school, teaching a Catholic doctrine as part of its curriculum.
Interestingly, just a side note to indicate to you that this is not all extremely serious.
Neil Gorsuch provided a fairly brief moment of some levity in them as to an otherwise very serious issue after the lawyer for the Oklahoma Attorney General.
Again, important to understand here, the attorney general, the attorney general in Oklahoma is opposed to the recognition of this school because, as he has said, it would violate the First Amendment's separation of church and state and would
basically by virtue of giving that school public tax dollars would be going forward to establish a religion.
So what happens is that the attorney general is describing the intensive state oversight of public schools saying this is not consistent with that.
He says it includes requiring students to learn about President Ronald Reagan's, the 1987 speech, many of you will recall this, calling on Soviet leader at that time, Mikhail Gorbachev, to tear down the Berlin Wall and also the rules of grammar.
All those things is what the attorney general describes.
Justice Gorsuch interrupts a little bit and he says, I'm delighted to hear you're still teaching the problems of dangling modifiers in Oklahoma.
public schools again a bit of levity in the midst of an otherwise very serious issue coming up for decision again depending upon how the chief justice decides on this one could be basically an affirmation a divided supreme court effective of the effect of that would be to continue in place the rule of law coming from the lower court which is to not permit this to go ahead chief justice throws its slot in with the others and you get a six to three decision again permitting for the
The first time in our history, the use of state tax dollars to support and to continue to establish a religious charter school.
Fascinating issue under the First Amendment.
We've got more of that.
And again, under the Constitution itself as well, or a previous oral argument, this one having to do with opt-outs, parental opt-outs of their children in public schools.
in connection with curriculums for which they've got religious objections.
How does this play about?
Well, we know, we know that in Montgomery County public schools, that's in Maryland, it's the largest public school system there.
They adopted a new curriculum in 2022.
And the books and the storybooks, they're all there on the record.
Storybooks included things like Pride Puppy.
It's an alphabet primer about a family whose puppy gets lost at a Pride Parade.
There's a book called Love Violet about a girl who develops a crush on her female classmate.
There are others.
born ready about a transgender boy, and parents of several faiths sued.
parents of students in the classrooms where these books are being presented, along with many other books, of course, saying the books violated the First Amendment's protection of the free exercise of religion, again, under the First Amendment.
The books, their complaint said, promote one-sided transgender ideology, encourage gender transitioning, and focus excessively on romantic infatuation.
That's what the complaint says in their challenge to what the school district has done.
And the school district goes back and forth.
They establish an opt-out procedure for parents to sign off on forms to say, I don't want my son or daughter, my student, my child to be exposed to this.
The problems became overwhelming as many people opted in, they opted out.
And finally, finally the school said, no, no one is going to be using the opt-out procedure.
This is what we were teaching.
And in the end, again, Justice Brett Kavanaugh, again, opening this up, said,
that the school board had initially allowed parents to withdraw their children from the books to be discussed, but reversed course on that.
So he's raising the issue, can't you go back to that?
And let this be a situation where parents decide along the way.
He said, I'm not understanding why it's not feasible.
They're not asking you to change what's taught in the classroom, just give them this opt out.
Now, we know that the court has ruled in the past in favor of a web designer, recall that case well, said she didn't want to create sites for same-sex marriage, ruled in favor of that high school football coach who said he had a constitutional right to do what?
To pray at the 50-yard line after the game's football team had completed the game there.
A Catholic service agency in Philadelphia that said it could defy city rules and refuse to work with same-sex couples in all of those cases.
The standard has no longer been two great entanglements between government.
and religion, but rather it's been if the action would somehow discriminate, discriminate against religion.
And again, we saw some of that in this as well.
Justice Kavanaugh thanked the school board's lawyer, suggesting he had done what he could with what he called a hopeless material.
It's a tough case to argue, Justice Kavanaugh said.
The exchanges go back and forth.
One of the exchanges is between Justice Kagan and a lawyer for something called the Beckett
fun for religious liberty, representing the parents, asking them to find a line, giving the example of teaching evolution, a biology class, and asking the attorney to explain that.
The attorney said the parents should be able to withdraw their children whenever instruction conflicted with their sincerely held religious views.
And the upshot of that approach, Justice Kagan responded, was opt-outs for everyone.
Once again, exploring the great difficulty with all of this.
You've got Justice Sonia Sotomayor.
or saying whether simply exposing children to the books put a burden, a real burden on the parent's faith.
She says the mere exposure to things you object to is not coercion.
And here again, again, we've got a difference of opinion across the board.
Justice Kananji Brown Jackson questioned whether judges as opposed to local school board officials were best suited, better suited.
to determine what should be a part of a school's curriculum, she said, these questions don't always have one answer.
There's reason, right?
There's balance.
She said, maybe in one community, one set of values, these books are fine, but in another community with a different set of values, they're not.
And it's sort of the local process that allows that to cash out where people live, that allow their values to get expressed.
So once again, we have an interesting split, if you will, among the Supreme Court justices, perhaps likely, likely, again, reading the tea leaves, likely the parents are going to prevail in this case.
We'll see what happens in May or June.
Appears that the parents have the upper hand when it comes to the views of the Supreme Court justices who will probably say that, yes, indeed, there needs to be either some clear opt out option or this kind of practice by
Maryland school district cannot continue where simply the curriculum is decided and that is what is taught to students, public school students at these grade levels.
Why is that important?
Because plainly it has an impact not only for First Amendment litigation and jurisprudence but school districts around the country right?
Anytime there is a claim that a particular kind of curriculum including books
is contrary to religious beliefs here.
And again, you've got, certainly got justices on the bench.
We're going to vote in opposition to the parents, but probably a majority, a majority probably finding in the end based upon this discriminatory standard and the First Amendment principles as they apply it.
that the parents will likely prevail in this case.
We'll see.
We'll see.
That case called Mahmood versus Taylor.
Mahmood versus Taylor, again, coming up for decision fairly soon.
Yet another, another case.
This one involves the free preventive care healthcare that is not only provided but also directed by what are called these task forces inside the Affordable Care Act.
Again, the Supreme Court appears divided.
during recent arguments over whether this particular provision of the Affordable Care Act can require insurance companies to offer some types of preventive care for free, whether that's constitutional.
Again, looking at the arguments here, it seems to be so much divided.
At issue here is the 2010 health care law.
We know it well.
Establish it, among other things, a task force that determines routinely certain kinds of preventive
prophylactive health measures that insurance companies under the law are mandated.
They're required to cover.
And what happens here is you've got two small Christian businesses that provide health insurance to their employees, along with some Texas residents, and they sue the federal government.
And they challenge the constitutionality of the task force.
And a lot of it has to do with whether or not the task force is truly independent or not.
Huge amount of back and forth, back and forth.
argument about that very issue.
The justices hearing arguments from the government and the challengers on whether that independence created constitutional issues sort of by limiting the oversight and the authority of the secretary of health and human services.
So it's one of those wonky legal issues that lawyers like to talk about, but fundamentally it has to do with whether or not these task forces, the task force members, have the authority to do what they're doing under the Constitution.
How are they appointed?
how to the exercise authority and whether or not in the end these religious objections to the task forces approval of again according to the initial complaint no cost hiv medications again according to the complaint claiming those drugs quote encourage and facilitate homosexual behavior that's how this lawsuit begins the case is kennedy versus braidwood
And although that's the focus of the complaint, plainly as it was part of the argument recently in front of the Supreme Court, while that focus is about these religious objections to what the task force is requiring that health insurance companies provide, that is HIV medications, it's got implications way beyond just that.
And as a part of the discussion, there are tens of millions of Americans, presumably affected by what the Supreme Court decides here and the capacity, again, of these task forces to make these decisions about what health insurance companies are mandated to provide free of service.
What are those kinds of health care provisions, services out there?
Cancer.
diabetes, medications to reduce heart disease, strokes, eye ointments for newborns, prevent infections, all sorts of things that are out there, the list goes on and on.
It's not just HIV medications.
And so that's why this issue is so very important.
A ruling in favor of the challengers could mean that the insurers, the insurance companies, would no longer be required to offer any of those health services
for free.
Now, again, they'd still be available.
They would simply not be mandated by the task forces to provide them.
Two of the justices, Sonia Sotomayor and Amy Coney Barrett, interestingly, seem to agree with, yes, indeed, the government's argument.
And here, indeed, the Trump administration, like the Biden administration, arguing in favor of the task forces here, Amy Coney Barrett and Sonia Sotomayor
seeming to side with the government's argument that independence, these task forces, independence does not mean that the task forces operated without guidance or supervision from the secretary.
And they talked at great length about the analogy to task force members and that of law clerks.
And Justice Sotomayor suggested that independence method, the members would act according to their best scientific and expert judgment.
You know where she's going to come down on this, right?
advancing the interests of science and people who know what they're talking about.
Amy Coney Barrett seems to join in that view as well.
Justice Sotomayor goes on to say, my law clerks, I asked them to give me their independent judgment of what an answer should be.
And they'll tell you, there are some times, she says a lot of times, I don't accept it.
And I certainly have the power to fire them and still they do it, she said.
And again, another moment of levity inside these otherwise very serious arguments.
Fifth Circuit had previously found that task forces were not constitutional.
They did not have the authority to determine whether a health insurance company must cover these health provisions.
And so the Fifth Circuit, we know that Fifth Circuit well.
That's the case from which the petition is presented to the Supreme Court.
It appeared that the Supreme Court was fairly divided on this, and especially with Amy Coney Barrett once again, seeming to side with the so-called liberals on the bench.
Maybe establishing four votes in favor of the task force, their constitutionality.
Maybe there's another justice also there.
Another case to watch as this goes forward.
Again, Kennedy versus Bradwood management.
All of that happening in front of the Supreme Court recently.
Other quick things in front of the Supreme Court.
We've got this oral argument in a case called Trump versus Washington.
What is that?
Yes, indeed.
The Supreme Court has decided to determine whether or not the president is right in
interpreting the 14th Amendment.
This is birthright citizenship.
They're gonna have oral argument on that issue.
Should be clear.
They're gonna take argument on it later this month as they've recently scheduled that.
Couple more things on the docket of the Supreme Court when we come back here on Amicus, a law review.
This is Amicus, a law review.
My name's Jim Santel, doing some things, doing some reporting on the docket of the Supreme Court, what it's accepting, what it's not.
And in that connection, the Supreme Court recently turned down.
They said, no, we're not going to review this case coming out of Minnesota.
It was an opportunity to weigh in on an issue that is percolating up there, out there in the States, where the government can restrict 18 to 20-year-olds from buying or carrying guns.
And this question is divided, many of the lower courts, prompting a lot of people to think the Supreme Court will take this on.
But in fact, in fact, they said, no, we're not granting certiorari on this.
Case comes out of Minnesota, and in Minnesota, it makes it a crime for people under 21 to carry guns in public.
Last year, last year, the Eighth Circuit Court of Appeals struck down that law, struck down that law under the Bruins standard that we've talked about, and they ruled that the Second Amendment required letting those as young as 18, as long as 18 be armed in this country,
The judge who was writing for the Ace Circuit that time, the Second Amendment's plain text, does not have an age limit, he wrote.
That's Judge Dwayne Benton.
And that is the way the law will stand, striking down that Minnesota law attempting to limit, based upon age, capacity to...
carry and use firearms.
Supreme Court, by virtue of it's not deciding to take the case on the lower court, the appeals court position remains in place.
That remains the law of the case.
That remains the decision at least for the 8th Circuit.
Maybe there'll be another petition down the road with respect to this and indeed there may be other cases perclating up.
One out of the 11th Circuit.
And that involves a Florida law that also prohibits the sale of firearms to people under 21.
That case coming up from the 11th Circuit, again, arguably, maybe, the subject for oral argument as well.
And finally, when it comes to the Supreme Court, something else happened just recently.
And that is that the president, the White House, through the Department of Justice is now seeking Supreme Court review of a lower court decision that prohibited
Elon Musk and his team to get access to social security information from the Social Security Administration.
Again, the Solicitor General, his name is John Sauer in one of his first actions here.
He says, this emergency petition presents a now familiar theme.
He said, a district court has issued a sweeping injunctive relief, basically preventing, preventing Elon Musk from getting access to this private information.
He says, without legal authority to do so and in ways that inflict an ongoing irreparable harm on urgent federal priorities and the stymie, the executive branch's function, Sauer urged the court
to lift a lower court injunction by a judge.
Her name is Ellen Hollander.
She's in the district court.
And that blocked, that blocked Elon Musk from accessing this data, which includes, yes, indeed, social security numbers and medical records and tax and banking information.
Your administration, your department of justice, the White House seeking review by the Supreme Court on that decision by a lower judge.
We'll see if the Supreme Court grants that petition or not.
A couple of other things happening out there equally, if not more important, coming out again out of federal district courts just on Thursday.
A judge named Fernando Rodriguez, a major case, barred the Trump administration for the first time in connection with all of this immigration activity from invoking the Alien Enemies Act.
That's that 18th century wartime law.
And basically saying you can't constitutionally apply that to deport
those folks under the authority that you're claiming under the law.
He said that because that law is premised upon a finding that we are at war and there's no such thing going on right now, the plain ordinary meaning, the judge said, like words like invasion and predatory incursion and military forces simply do not apply, nothing about the law permits the administration
under the law to pursue these members of the supposedly the members of the trendy or Agua Venezuelan street gang and shutting shutting the administration down at least as to that district significantly.
Judge Rodriguez says I'm only going to apply this to those in my district.
And that's the Southern District of Texas, no small thing, just because it includes cities like Houston and Brownsville and the Radome.
That's going to have a significant effect on that, but not binding on other districts outside of the Southern District.
But the first time, once again, it is significant.
It is a blow.
It is a blow to the Department of Justice, to this White House, attempting once again to use the Alien Enemies Act.
The judge says, no, we're not at war.
There's no invasion.
There is no military force.
There's no action here.
And therefore, the law does not apply the first time, including review by the Supreme Court that any court has found that the law is improperly unconstitutionally applied here.
Another judge we've heard from her before, she's Beryl Howell.
She has now entered
a final injunction at the district court level preventing the president from going ahead and targeting this firm called Perkins Coey.
She's saying it's unconstitutional and the president's
prohibitions on the firm's access to courts, security authorization, and other things cannot be supported.
The judge, she skips a trial, she moves directly to a final ruling, Judge Beryl Howell, and she says that no American president has ever before issued executive orders like the one at issue.
In purpose and effect, she says, in language that we've talked about right here on this broadcast, Judge Beryl Howell says, Mr. President, your order to restrict this law firm in doing what it supports.
to do and keeping them from entering federal courthouses, keeping them from having other access to security, clearances to permit them to repress and clients.
It is unconstitutional, cannot do it, amounts to unlawful coercion to try to get them to do this in other ways, imperiling the lawyer's ability to freely practice the law, she says.
And she says, the action draws from a playbook as old as Shakespeare, and we've talked about that right in this broadcast, who penned the phrase, we can all say it together.
The first thing we do, let's kill all the lawyers.
That, of course, from Henry VI, part two, that's Jack.
That's a dirk, the butcher, from that particular play.
The order targeting Perkins-Coey, again premised upon the notion that the law firm had previously represented Hillary Clinton and George Soros and advanced other petitions in the courts of America, with which the president did not like.
Judge Howell agreed that the order violated the First Amendment and the Fifth Amendment also, and it denied Perkins-Coey
and other similarly situated firms, the freedom to think and to speak as they wish, as she said, and also equal protection under the law.
All that coming out.
Again, Judge Beryl Howell making this a final, a final order.
We talked before about a TRO, a preliminary injunction.
This is now her final injunction.
It, again, is subject to appeal, obviously, to the court of appeals.
for the DC Circuit, but significant because it is among the cases.
Once again, federal judges pushing back on these unconstitutional orders by the president of the United States of America.
And finally, Katangi Brown Jackson.
Here's a teaser for next week's show.
She's talking about the independence of the judiciary and talking about the importance of a court system that is indeed independent of executive branch and legislative authority
and pushing back on threats to it.
We'll get to what Katanji Brown Jackson said next week and invite you to be a part of our discussion here on Amicus, a law review.
Have a good weekend,
everybody.
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