The Comings and Goings from Stephen Miller’s Gulag

Let’s start with the good news, not least because the good news may explain some of the bad news.

Habeas Corpus still exists in the US

In the last several weeks, judges in Vermont and Alexandria, VA, have ordered the government to free Mohsen Mahdawi, Rumeysa Ozturk, and Badar Khan Suri from custody. Their release does not end their legal fight over whether Trump can deport them for their First Amendment protected speech or not. But they will be able to continue their academic work, live at home, and make public comments while those legal proceedings go forward.

Now the horrible news.

As noted above, some of the releases were ordered by Federal judges in Vermont — William Sessions in the case of Ozturk and Geoffrey Crawford in the case of Mahdawi.

Yesterday, detained Harvard genetics researcher Kseniia Petrova had a hearing before a third Vermont judge, Chief Judge Christina Reiss. Anna Bower live-skeeted it here.

Petrova’s case differs from the others in several ways. She wasn’t detained for her First Amendment protected speech. Rather, she was detained because she didn’t declare frog samples from France she was carrying back to Harvard for her research at the border.

And while the government’s public actions to date — a quick transfer for Petrova to Louisiana in a transparent attempt to make any habeas corpus challenge more difficult — look quite similar, the legal posture was different for several reasons: a Customs and Border Patrol Officer had reportedly canceled her visa themselves upon discovering the samples (an offense that is normally let off with a warning). Petrova had agreed to leave the country, so long as she wasn’t deported to her native Russia, where she credibly expects she’d be harshly persecuted for her speech there. Because of that threat, Petrova also started applying for asylum.

But as laid out in the hearing yesterday, Petrova had always said she’d be willing to leave for France, and the government still publicly maintained they wanted to deport her to Russia.

Judge Reiss noted that she had reviewed the statute laying out the grounds for customs officers to find someone inadmissible to the United States, and “I don’t see anything about customs violations.”

Jeffrey M. Hartman, an attorney representing the Department of Justice, said “it’s the secretary of state’s authority” to cancel a visa, and that the secretary has delegated that authority to customs officials.

“The C.B.P. office was our first line of defense against unknown biological materials from a foreign national out of a port of entry,” he said.

Mr. Hartman argued that the federal court in Vermont had no jurisdiction over Ms. Petrova’s detention. He said Ms. Petrova may contest her detention, but only in an immigration court in Louisiana, where ICE is holding her.

“It’s not something that a district court can entertain,” he said. “We think the proper venue for that question is Louisiana, where she is detained and where her custodian is.”

“But she is only detained there because you moved her,” said the judge.

Judge Reiss asked the government to clarify whether or not it planned to deport Ms. Petrova to Russia.

“You are asking for her removal to Russia?” she asked.

“Yes, your honor,” Mr. Hartman replied.

Shortly after telling Judge Reiss that the government wanted to deport Petrova to Russia, DOJ instead unsealed a criminal complaint against Petrova, obtained on Monday (the first business day after Ozturk’s release), saying they actually want to prosecute Petrova for crimes that can impose up to a 20-year sentence.

Two months after detaining Petrova, as judges in Vermont free targets of Stephen Miller’s witch hunt and as problems with the unilateral revocation of her visa become clear, the government suddenly decided Petrova engaged in smuggling, without taking the time to present the case to a grand jury first.

The key paragraph of this complaint claims that Petrova prevaricated when asked about carrying biological materials and whether she knew she had to declare them, first denying she had biological material, then admitting she did.

PETROVA was asked to present herself at the secondary inspection area. She was wearing a backpack and carrying a plastic bag. When questioned about her luggage, PETROVA denied carrying any biological material. When the CBP officer asked her again, PETROVA identified the plastic bag she was carrying as having biological material. An inspection of the bag revealed a foam box containing frog embryos in microcentrifuges, as well as embryo slides. A CBP officer interviewed PETROVA under oath and conducted a manual review of her cell phone. PETROVA admitted that the items in her duffle bag and in the plastic bag were biological specimens. PETROVA was asked if she knew that she was supposed to declare biological material when entering the United States. After a long pause, she answered she was not sure. The CBP officer then confronted PETROVA with a text message on her phone from an individual who she identified as her colleague at a Boston-area medical school, where she is currently a research assistant. The individual wrote, “if you bring samples or antibody back make sure you get the permission etc. Like that link I sent to leon-/group chat about frog embryos because TSA went through my bags at customs in Boston.” When asked again whether she knew she was supposed to declare the items, she responded that she “was not sure about embryos specifically”

Even though the government maintains that they have to deport Petrova to Russia, not France, they make much of her past work in a Russian research lab, as if she’s some Russian threat, even while treating her fear of deportation as feigned.

11. PETROVA told CBP agents that she was educated in Russia and worked at the Moscow Center for Genetics as a bioinformatician of genetic disorders from 2016 to 2023. When asked if this was a Russian government institution, she replied that about half of the scientists worked for the Russian government and the other half for hospitals. She also stated that she was most recently employed by the Institute of Genetic Biology in Moscow from 2023 to 2024.

Again, on its face, this looks like the government’s bid to ratchet up its attack in the face of embarrassing setbacks in Petrova’s case. I wonder if they would have unsealed this if not for what looked like a pending loss before Judge Reiss and possibly even this powerful op-ed from Petrova, published by NYT on Tuesday, implicitly likening the plight of scientists in Russia to increasing threats in the US.

The political environment in Russia made it hard to do science because everything was unpredictable. The war in Ukraine affected scientists’ ability to get funding and materials; we worried that our male colleagues might be conscripted. That type of uncertainty is incompatible with science, which requires the ability to plan what type of experiments and research you will do a year into the future. I fear that if I return to Russia I will be arrested.

I am hesitant to comment broadly on what it’s like for scientists now in America because I have only limited information about what is going on outside of this detention center. What I do know is that my colleagues, many of whom are, like me, foreign scientists, are terrified of being detained or having their visa status revoked.

One more thing may have convinced the government to charge Petrova, though.

As pattern jury instructions on the charge lay out, to prove the case against Petrova, the government must prove that Petrova had the intent of defrauding the government.

To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:

[snip]

Third: the defendant acted knowingly and willfully with intent to defraud the United States. [It is not necessary, however, to prove that any tax or duty was owed on the merchandise.]

[Fourth: the defendant did something which was a substantial step toward committing [crime charged], with all of you agreeing as to what constituted the substantial step. Mere preparation is not a substantial step toward committing [crime charged], rather the government must prove that the defendant, with the intent of committing [crime charged], did some overt act adapted to, approximating, and which in the ordinary and likely course of things would result in, the commission of [crime charged].

To act with “intent to defraud” means to act with intent to deceive or cheat someone.

To prove this, the government will have to call the people with whom Petrova discussed how to address the samples at customs.

9. Another text message on PETROVA’s phone contained the following question from her medical school colleague: “What is your plan to pass the American [referred to as US in PETROVA’s interview] Customs with samples? This is the most delicate place of the trajectory.”

10. The CBP officer confronted PETROVA with another text message between her and another individual who she identified as her principal investigator in which she was asked by this individual: “what is your plan for getting through customs with samples?” To that question, PETROVA replied, “No plan yet. I won’t be able to swallow them.

That is, this will put Petrova’s lab on trial, with her colleagues either forced to testify against her or possibly implicated with it, as if there’s some great conspiracy against the United States to … do science.

DOJ unsealed this complaint on Tuesday, after Harvard expanded its lawsuit against the US, adding the retaliation Trump has taken in response to Harvard’s initial lawsuit.

7. In response to Harvard’s defense of its own constitutional freedoms, the federal Government announced that it was freezing “$2.2 billion in multiyear grants and $60M in multiyear contract value to Harvard University” (the “April 14 Freeze Order,” attached as Exhibit C). Ex. C at 2. Within hours of the April 14 Freeze Order, Harvard began receiving stop work orders. And the situation is getting worse. On April 20, it was reported that the Government is “planning to pull an additional $1 billion of [Harvard]’s funding for health research.”6 On May 5, the Secretary of Education, purporting to speak on behalf of every agency and department, announced an “end of new grants for the University,” and directed that “Harvard should no longer seek GRANTS from the federal government, since none will be provided,” and “Harvard will cease to be a publicly funded institution” (the “May 5 Letter” or “May 5 Freeze Order,” attached as Exhibit D). Ex. D at 3-4. That announcement reiterated the Government’s earlier demands and said it was based, among other things, on the Government’s assessment of Harvard’s “academic rigor,” admissions requirements and practices, grading systems, faculty hiring, teaching, and course construction. Id. at 2. The April 14 Freeze Order and May 5 Freeze Order are collectively referred to herein as the “Freeze Orders.”

8. Following in the footsteps of the April 14 and May 5 Freeze Orders, Harvard began, starting on May 6, to receive institution-wide termination notices for various agencies, invoking the earlier April 11 and 14 communications. On May 6, for example, the National Institutes of Health sent Harvard a letter stating that it was terminating all of Harvard’s grant funding from that agency based on “the University’s unwillingness to take corrective action or implement necessary reforms” and that Harvard’s grant “awards no longer effectuate agency priorities” because of “recent events at Harvard University involving antisemitic action” and “Harvard’s ongoing inaction in the face of repeated and severe harassment and targeting of Jewish students” (the “May 6 Letter” or “May 6 NIH Termination Letter,” attached as Exhibit E). Ex. E at 2-3. The letter states that “NIH generally will suspend (rather than immediately terminate) a grant and allow the recipient an opportunity to take appropriate corrective action,” but “no corrective action is possible here.” Id. at 3.

And the escalation continues. In the last week, Trump announced more cuts on funding to Harvard as well as an EEOC investigation into a faculty that underrepresents women and people of color, claiming it discriminates against people who look like Stephen Miller.

Charging Petrova for daring to commit science in the United States is undoubtedly a way to rescue a legally problematic case against her. It’s also another way to put Harvard’s defense of scholarship on trial.

Perhaps it is an auspicious sign, then, that British professors just determined that a copy of the Magna Carta that Harvard bought for $30 in 1946, thinking it was a copy made in 1327, is in fact a seventh original of the 1300 document.

British researchers have determined that a “copy” of the Magna Carta owned by the Harvard Law School Library is a rare original issued by England’s King Edward I in 1300. The copy was previously thought to date back to 1327.

The Magna Carta, issued by King John in 1215, established that the monarch is a subject under the law, just like any other citizen. It was reissued a number of times throughout the thirteenth century, and was released for the final time with the king’s seal in 1300.

Seven original charters issued by King Edward I are known to exist. Six copies are in the United Kingdom, while Harvard Law School’s Magna Carta is now the only known copy abroad.

The discovery was made by David Carpenter, a professor at King’s College London, and Nicholas Vincent, a professor at the University of East Anglia. Carpenter, a Magna Carta expert, was researching unofficial copies of the charter and suspected the Law School’s copy was actually an original. He then worked with Vincent, another Magna Carta expert, to investigate further.

The charter, an agreement between the King of England and rebel barons, gave way to the idea of a limited government and inspired the writers of the U.S. Constitution and Bill of Rights. In a joint press release between the three universities, Vincent called it “the most famous single document in the history of the world.”

All this time, an original document enshrining habeas corpus — the legal right Petrova was asserting, the legal right that got Mahdawi, Ozturk, and Suri released, the legal right Stephen Miller wants to suspend — was sitting right there in Boston, where the fight for American freedom started.

There will be multiple other developments in Stephen Miller’s deportation regime today.

SCOTUS will review whether judges can issue nationwide injunctions on matters — birthright citizenship — that necessary apply nationwide.

Hannah Dugan

Judge Hannah Dugan will be arraigned in Milwaukee on an indictment obtained Tuesday. The indictment claims, with no context, that Dugan “falsely [told the ICE team] they needed a judicial warrant to effective the arrest of [Eduardo Flores-Ruiz].” That claim goes beyond anything mentioned in the complaint and likely misrepresents the intent of Dugan’s comment. The indictment similarly provides no context for Dugan’s order directing the ICE team to go to the Chief Judge’s office, who was still working on a policy covering such issues; nor does it mention that there was no policy that Dugan violated.

The indictment also makes clear that the grand jury obtained testimony from Flores-Ruiz’ attorney, claiming that Dugan,

advis[ed] E.F.R.’s counsel that E.F.R. could appear by “Zoom” for his next court date.

But having spoken to Flores-Ruiz’ attorney, there’s still no allegation that Dugan told her that ICE was in the courthouse. This means the government lacks that kind of evidence that might substantiate corrupt intent, making it a much weaker case than the one against Judge Shelly Joseph back in 2019.

Nothing about this case has gotten stronger at the indictment stage. It still appears to lack any evidence about Dugan’s intent.

That said, the indictment is not a ham sandwich either. The government has clearly provided probable cause that a person who knew of an administrative arrest warrant made it difficult for ICE to arrest someone.

There’s no evidence that prosecutors explained why Dugan’s question about an administrative versus judicial warrant is actually exculpatory. Likewise, there’s no evidence that prosecutors told the grand jury that two DEA agents from the ICE team had the opportunity to detain Flores-Ruiz in the hallway there were staking out. And the matter of judicial immunity, which was left for an appellate phase that never happened in Joseph’s case (the Biden DOJ dismissed the case), would not have been briefed to the grand jury.

The latter detail, judicial immunity, may be litigated more aggressively than it was for Judge Joseph because of actions Trump took.

Yesterday, Dugan filed a motion to dismiss the case based on judicial immunity. The motion cited Trump’s own successful attempt to avoid any trial based on his claim of immunity three times.

The problems with this prosecution are legion, but most immediately, the government cannot prosecute Judge Dugan because she is entitled to judicial immunity for her official acts. Immunity is not a defense to the prosecution to be determined later by a jury or court; it is an absolute bar to the prosecution at the outset. See Trump v. United States, 603 U.S. 593, 630 (2024).

[snip]

Judge Dugan’s subjective motivations are irrelevant to immunity. “Judges are entitled to absolute immunity for their judicial acts, without regard to the motive with which those acts are allegedly performed.” Id.; accord Trump v. United States, 603 U.S. at 618 (“In dividing official from unofficial conduct, courts may not inquire into the President’s motives”).

[snip]

Judge Dugan therefore has both immunity from conviction and immunity from prosecution. “The essence of immunity ‘is its possessor’s entitlement not to have to answer for [her] conduct’ in court.” Trump, 603 U.S. at 630, quoting Mitchell v. Forsyth, 472 U.S. 511, 525 (1985); Mitchell, 472 U.S. at 526 (“The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.”) (emphasis in original)

This last citation adopts John Sauer’s own reliance on civil, not criminal, liability. A citation to Mitchell itself would be inapt (a criticism some people are making); but Dugan is citing the current Solicitor General’s inapt reliance on it, not the case directly. Effectively, Dugan is saying that if Trump can avoid trial for anything covered by his official duties, than so can Dugan.

Ras Baraka

Ras Baraka will also have a hearing in his prosecution for misdemeanor trespassing today. As with Dugan’s case, there’s reason to believe Trump’s public comments about the case are overblown.

To substantiate the misdemeanor trespassing charge against him, the complaint against Newark’s Mayor does not make the claims that Alina Habba made publicly, that Baraka was repeatedly asked to leave. Rather, HSI Special Agent in Charge Ricky Patel relied only on the no trespassing signs and the presence of security guards.

3. The Delaney Hall Facility is surrounded by chain-link fences and is accessible only through granted access. In addition to maintaining security, it likewise displays No Trespassing signage.

But video shows that after security guards asked Baraka to leave (after first letting him in), he did. The arrest happened on public ground, not in the facility itself. The video undermines the complaint as attested.

In advance of today’s hearing, the AUSA who presented the case on Friday was swapped out for Alina Habba herself and another AUSA, often a sign under this Administration that an attorney wasn’t telling the lies the government wants to tell.

Having made that swap, Habba tried to get today’s hearing canceled (though she couldn’t even manage to get the date right!), so they could move right to trial.

The Government writes with respect to the upcoming preliminary hearing scheduled for Thursday, May 12, 2025. The Government does not believe that a preliminary hearing is warranted in this case. Under Fed. R. Crim. P. 5.1(a), “[i]f a defendant is charged with an offense other than a petty offense, a magistrate judge must conduct a preliminary hearing unless” certain conditions are satisfied. Fed. R. Crim. P. 5.1(a) (emphasis added). Here, the charge is a petty offense. Under state law, assimilated under 18 U.S.C. § 13, the statutory maximum sentence is 30 days. That means the offense is a class C misdemeanor under federal law. See 18 U.S.C. § 3559(a). That, in turn, means that it’s a “petty offense” under federal law. See 18 U.S.C. § 19. Defendant, therefore, is not entitled to a preliminary hearing under Rule 5.1. See United States v. Radin, No. 16 Cr. 528, 2017 U.S. Dist. LEXIS 77783, 2017 WL 2226595 (S.D.N.Y. May 22, 2017).

The Government requests that the Court cancel the preliminary hearing and schedule this matter for trial at an appropriate time. [my emphasis]

Magistrate Judge André Espinosa, to whom Patel didn’t disclose that Baraka left the facilities when asked, was having none of that. He granted Habba’s request to vacate a preliminary hearing as unnecessary, but in the same order, granted Baraka’s request for a status conference to be held at the previously scheduled time.

WHEREAS the United States of America (the “Government”), by way of a May 13, 2025 letter brief emailed to the Court and all counsel, now seeks cancellation of that hearing, arguing that it is not required under Federal Rule of Criminal Procedure Rule 5.1; and

WHEREAS the clear language of Rule 5.1(a) does not require a preliminary hearing when a defendant is charged with a petty offense; and

WHEREAS the offense charged in this action carries a maximum penalty of 30 days’ imprisonment, making it a Class C misdemeanor, see 18 U.S.C. § 3559(a), and constituting a “petty offense” under federal law. See 18 U.S.C. § 19; and

WHEREAS, nevertheless, by way of email correspondence to the Court, copying counsel for the Government, counsel for Defendant has sought a status conference on the same date and at the same time, if the preliminary hearing does not proceed; therefore

IT IS on this 13th day of May 2025,

ORDERED that the Court’s May 9, 2025 oral Order setting a preliminary hearing in this action for May 15, 2025, at 10:00 a.m., is VACATED; and it is further

ORDERED that the Court will hold a status conference in this action on May 15, 2025, at 10:00 a.m., in Courtroom 2D of the Martin Luther King Courthouse, in Newark, at which all counsel shall appear.

As Josh Gerstein observed, in last week’s hearing, in response to a request from Baraka, Espinosa issued a warning about public statements that violate local rules.

COME ON ALINA — In Baraka hearing, magistrate cautioned federal officials about public statements, by POLITICO’s Ry Rivard and Josh Gerstein: Before Newark Mayor Ras Baraka was released from custody on Friday, a federal magistrate quickly determined he was not a flight risk and cautioned federal officials against making out-of-court statements about the mayor, who is also running for New Jersey governor, according to a newly-released transcript of the extraordinary virtual hearing … During the 18-minute videoconference, Baraka’s attorney Raymond Brown asked [U.S. Magistrate André M.] Espinosa to warn Trump administration officials against making derogatory public statements about his client … Earlier in the day, interim U.S. Attorney for New Jersey Alina Habba had posted on social media that Baraka had “willingly chosen to disregard the law” before he was arrested at the immigration detention center he was protesting and seeking to inspect along with three members of New Jersey’s congressional delegation. Espinosa said to the extent anyone had made such comments, he would “caution them to heed carefully to the rules of professional conduct” and “boundaries of propriety for public comment related to an ongoing investigation and/or prosecution.”

So it may turn out that Trump’s Parking Garage Lawyer, who has a history of struggling with basic lawyering tasks, will get directly warned about her violation of due process even before Pam Bondi or Chad Mizelle or Kristi Noem or Kash Patel. Or maybe Habba will have to warn Noem to shut her yap after DHS continued to attack members of Congress for engaging in oversight of a facility they claim still lacks the proper local permits.

In short, basic due process remains a struggle. But there are some reasons to believe that authentic Magna Carta is an auspicious sign.

Share this entry
58 replies
  1. Bay State Librul says:

    “Ras Baraka will also have a hearing in his prosecution for misdemeanor trespassing today. As with Dugan’s case, there’s reason to believe Trump’s public comments about the case are overblown.”

    What the fuck, all of Trump’s statement are overblown and lies.

  2. Peterr says:

    Big Magna Carta fan here, as noted in this post of yore.

    Declaring Harvard’s copy to be an original rather than a later copy is indeed an auspicious sign, But sadly, given what Alito later did in granting Trump presidential immunity, it may turn out that Harvard’s copy of the Magna Carta appears to simply be a nice historical trinket these days, like a poster for liberty bonds. “Remember when these were needed? Boy, have times changed . . .”

    • emptywheel says:

      Aw cmon. As noted in this post, three people are free after launching habeas petitions. Many more have claims because of it.

      Thus far, it’s still working. That’s why Miller wants to suspend it, because it keeps catching him telling lies.

      • Peterr says:

        Fair point, and maybe I’m just grumpy this morning.

        Yes, it’s working *now*, but until SCOTUS backs up these judges, I’m not going to feel confident. Despite these lower court rulings, Lord High Chancellor Miller certainly feels emboldened by Alito’s immunity decision. Yes, these rulings keep catching him in his lies, but from his POV, that is simply a minor glitch that will get overturned in due course.

        And thus far, even in these rulings, Miller and the rest of the administration have paid no price for his lies. That, for them, is very much a victory.

        As I noted in that post of yore, the Magna Carta did not simply spell out what the king could and could not do, but prescribed a process for holding the king accountable and imposing penalties for any failure to comply. When a judge finds a DHS or WH official in contempt for lying to the court and imposes a significant penalty (beyond a loud “You lose your case!”), then I’ll be impressed.

        • emptywheel says:

          1) SCOTUS DID uphold habeas already in the JGG and Abrego Garcia case. And even halted renditions in process in other AEA cases. Yeah, we can’t rely on them, but Trump ALREADY got rebuked by SCOTUS several times.
          2) You know justice moves slowly.
          3) OUR JOB is to do what we can to make sure High Chancellor Miller pays a political price for this. We don’t have the luxury of declaring defeat because OUR JOB is to do what we can to impose a penalty.

        • Peterr says:

          Agreed. I’m not declaring defeat by any means, but simply recognizing just how big a lift this is.

          Thanks for giving me/us a reality check.

      • Gacyclist says:

        I still don’t understand how the one judge could say deportation under AEA is OK but lengthened the deport time window, when three other judges said deportation under AEA was a big no.

        • earlofhuntingdon says:

          Because federal district court judges are only bound to follow Sup. Ct. precedents and prior rulings from their own Circuit’s appellate court. Other district court opinions are persuasive, not controlling, authority. A district court is free to follow or ignore them.

        • Peterr says:

          replying to EoH . . .

          The quality of the lawyers in each case makes a difference, too.

          The Trump lawyers in the fourth trial might have learned something from those who lost the first three, and the other sides’ lawyers might have coasted, thinking they had it in the bag after the first three wins.

  3. harpie says:

    Birthright Citizenship at SCOTUS

    https://bsky.app/profile/anthonymkreis.bsky.social/post/3lp7rc3wvy224
    May 15, 2025 at 10:52 AM

    Kagan [to SG SAUER]: I am suggesting in a case where the government is losing constantly… if I were in your shoes, there’s no way I’d approach the Supreme Court with this case.

    oof.

    Next post in that THREAD [emphasis added]:

    Gorsuch: How do you suggest we reach this case on the merits expeditiously?

    Sauer: Percolation through the courts.

    Gorsuch: Will you seek cert when you lose in the circuit?

    Sauer: yes.

    • harpie says:

      Steve Vladeck:

      https://bsky.app/profile/stevevladeck.bsky.social/post/3lp7segdgvs2l
      May 15, 2025 at 11:11 AM

      Even though Solicitor General Sauer has been raked over the coals, it’s hard to see who the fifth vote is to deny the government’s applications here.

      I didn’t hear *any* real skepticism from the Chief Justice or Justice Kavanaugh, and we already know where Thomas, Alito, and Gorsuch stand.

      Sigh.

      To be clear, it’s not that there are five votes to *uphold* Trump’s patently unlawful and unconstitutional limits on birthright citizenship; it’s that there seem to be five votes to hold that district courts can grant relief only to plaintiffs—so the policy would go into effect against all others.

      • harpie says:

        Steve Vladeck wrote about how this connects to the Alien Enemies Act litigation:

        150. The State of Play in the Alien Enemy Act Litigation A series of outwardly inconsistent developments in different courts in the Alien Enemy Act cases underscores the difficulties that litigants challenging Trump policies face
        without nationwide relief. https://www.stevevladeck.com/p/150-the-state-of-play-in-the-alien Steve Vladeck May 14, 2025

        […] Simply put, if the Court forecloses nationwide relief across the board, then every single nationwide challenge to Trump policies will end up looking like the Alien Enemy Act cases—only, for reasons elaborated upon below, with even more chaos. That result will benefit no one other than the Trump administration—and it risks kneecapping the federal courts at a moment in which they appear to be the only institution in a position to meaningfully check, on a systematic basis, the executive branch’s alleged lawlessness. [emphasis original][…]

  4. Memory hole says:

    When we are in the midst of such a dangerous time in our republic, it is nice to see Ms. Habba bring a little comic relief to the situation. Faking smart might not be her thing.

  5. MsJennyMD says:

    Thank you Dr. Marcy for an excellent post. I was moved watching Rumeysa Ozturk speech.
    Racism and bigotry from a fascist and his followers deporting brown people and importing white people.
    The Retribution Regime for corrupted cruel criminals claiming to be Christians.

    • Gacyclist says:

      The afrikaner :refugee” thing is ludicrous. White South Africans hold over 90% of economic power in South Africa. These 59 were greeted by state dept officials on arrival. They sped up vetting and are fast tracking them for citizenship. What a difference skin color makes.This is a wholly musk operation.

        • posaune says:

          I read that one of the “refugees” had owned a granite mine and sold it days before departure. I’ll look for that cite, and try to find the sales info.

  6. Gacyclist says:

    Seems like a lot of the talking heads are saying this case is going to go in trump’s favor in that courts can’t issue nationwide bans. Hope that’s not the case. It would certainly make things easier for trump. SCOTUS today talked class action suits in lieu of nationwide orders. Seems slow and cumbersome. Why is SCOTUS trying to eliminate the judicial branch. I mean we no longer have a legislative branch (except in name only).

  7. Christopher Rocco says:

    I don’t want to make much of the meaning of Ms. Petrova’s name, Kseniia, anymore than it is a meaningful coincidence, just like the historians’ discovery of Harvard’s possession of an original Magna Carta in the midst of attempts to suspend habeas corpus. But, her name means “stranger” or “foreigner” and is derived from the ancient Greek word xenos. She is this named for the whole class of “others” this administration so despises and she takes on universal significance. Auspicious, probably not. Meaningfully poignant, yes.

    [Welcome back to emptywheel. Please use the same username AND EMAIL ADDRESS each time you comment so that community members get to know you. You attempted to publish this comment with a different email domain than used in your previous (80) comments, triggering auto-moderation. We don’t ask for a working or valid email address, only that you use the same one each time you comment. /~Rayne]

  8. thequickbrownfox says:

    I keep harkening back to Masha Gessen, “Your institutions will not save you”.

    And, I keep hoping that’s wrong…….

  9. allan_in_upstate says:

    More good news. The administration decides to welcome more than just neonazi Afrikaaners:

    The Daily [email protected]
    Kristi Noem has been working with the producer of “Duck Dynasty” to pitch a reality TV show—titled “The American”—where immigrants will compete in a string of challenges across the country “for the honor of fast-tracking their way to U.S. citizenship,” according to a new report.

    https://bsky.app/profile/thedailybeast.bsky.social/post/3lpao55dnus2b

    Maybe challenge #1 will be being forced to work without PPE in a South Dakota meat packing plant during an airborne disease pandemic, and then being blamed by the governor when you die. Oh, wait, that’s been done.

    • P J Evans says:

      I’d prefer seeing the wealthy compete by doing three months at a minimum-wage job. No bank account over $1K (better none at all). Make them try living like the people they don’t think deserve anything.

  10. P J Evans says:

    I don’t know how truthful this is, but it doesn’t sound good:

    WASHINGTON — On Wednesday morning, the House Ways and Means Committee voted along party lines to approve budget-reconciliation legislation that revives language from a shelved 2024 bill giving the White House dangerous powers to crush dissenting voices in America’s nonprofit sector.

    H.R. 9495, which failed to pass in the previous Congress, would have granted the executive branch broad and easily abused powers to revoke the tax-exempt status of a nonprofit by merely claiming that it is a “terrorist supporting organization.” Though the House passed the legislation in November 2024 with a narrow majority, mounting public opposition turned many legislators against it. As a result, the Senate didn’t bring the bill to the floor before Congress’ term expired.

    H.R. 9495’s draconian language was buried on page 380 of the pre-marked-up bill. If it passes Congress, the reconciliation measure would grant the U.S. Secretary of Treasury the ability to accuse any nonprofit of supporting terrorism — and to terminate its tax-exempt status without due process.

  11. Joe Gerstein says:

    The uncompensated seizure and transfer of farmland occupied and operated by Black people in South Africa to Afrikaners started in 2013, legally and illegally, since land ownership in Black communities was often traditional rather than by legal deed. This practice was intensified during Apartheid, when Blacks were transferred physically from White areas. Naturally, the areas to which they were transferred were generally poorly suitable for agriculture. The policy of pushing non-white South Africans off the land to the benefit of whites officially began with the 1913 Native Lands Act, though in reality the practice stretches back centuries. During the era of Apartheid, an act limited black ownership to just 7% of the land. The vast majority of viable land was allotted to whites. At that time, the Black/Colored population of South Africa was over 80%. Although a recent act empowered seizure of some land without compensation, very little seizure or transfer has occurred. Without access to capital,Black farmers newly on the land will have great difficulty producing what White farmers produce.

    A White Boer farmer told me his grandfather’s land was seized with what he considered inadequate compensation and transferred to a Black farmer who had been employed on it. The corn production fell from 13 bags per hectare to 3 bags. Of course weather could have played some role, as well as inability to afford fertilizer, seed, pesticide, tractor, etc.

  12. harpie says:

    SCOTUS: TRUMP Administration violated due process:

    https://bsky.app/profile/mjsdc.bsky.social/post/3lpcshngutk2v
    May 16, 2025 at 3:51 PM

    BREAKING: The Supreme Court holds that the Trump administration violated the due process rights of Venezuelan migrants last month in its rushed effort to expel them to El Salvador in the middle of the night (which SCOTUS blocked). Alito and Thomas dissent. [Link][THREAD]

    • harpie says:

      https://bsky.app/profile/reichlinmelnick.bsky.social/post/3lpcsrywuvc23
      May 16, 2025 at 3:57 PM [emphasis added]

      HUGE. A direct rebuke to the Trump administration’s practice of shoving people onto planes: “Under these circumstances, notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster.” [screenshot][THREAD]
      […]
      The Supreme Court also rebukes Judge Hendrix in the Western District of Texas and the Fifth Circuit for refusing to act on the ACLU’s emergency request, emphasizing that the facts on the ground showed that planes were set to take off — thus making Judge Hendrix’ failure to act an appealable order.
      […]
      The 7-justice majority emphasizes that they are not deciding if Trump’s use of the Alien Enemies Act is legal.

      But they do make clear that HOW the Trump admin was trying to USE the law WAS illegal – a very clear violation of due process.

      They remand to the 5th Circuit to develop a new test. [screenshot]

    • P J Evans says:

      Alito apparently thinks emergencies should only happen during normal business hours. And that being loaded on a plane to SOME OTHER COUNTRY in the middle of the night, with minimal notice, is never an emergency.

    • harpie says:

      RE: Presumption of Regularity:

      https://bsky.app/profile/bradheath.bsky.social/post/3lpcttoz3bk2m
      May 16, 2025 at 4:16 PM

      One thing that stands out pretty clearly in the Supreme Court’s order on Alien Enemies Act removals — which held that the administration’s limited notice to detainees ” surely does not pass muster” — is that the Court doesn’t seem to be extending it any benefit of the doubt [screenshot].

      Suffice to say this is not the usual state of things. The Court tends to give the executive branch a lot of latitude — and a lot of trust — even when it thinks the government has done something unlawful.

      • harpie says:

        Steve Mazie replies to Brad Heath, above:

        https://bsky.app/profile/stevenmazie.bsky.social/post/3lpcu63rhd22c
        May 16, 2025 at 4:21 PM

        Yes, this is huge. There seems to be a 7-2 majority on the Court now unwilling to trust that the government will consistently follow through on its word and act in good faith. [screenshots][THREAD]

        We heard flashes of this sort of skepticism from the justices in the birthright citizenship injunction argument yesterday, too. Including (or especially) from Justice Barrett.

        A concurrence from the oft-concurring Kavanaugh says he’d have preferred to keep the case at SCOTUS (rather than return it to the 5th circuit) & hold argument and decide the underlying issues to get a quicker conclusion.

    • harpie says:

      An informative THREAD from Lee Kovarsky:

      https://bsky.app/profile/kovarsky.bsky.social/post/3lpcwuym6jc2c
      May 16, 2025 at 5:10 PM

      BIG TAKEAWAYS FROM AARP (WMM)
      1. Bottom line is a GIANT WIN for detainees – Admin can’t remove Alien Enemy (AEA) detainees w/o more notice than what’s provided, now a TRO against removal from NDTX pending more proceedings, and CA5 must decide prelim injunction question and how much notice due. 1/ [THREAD]

      2. SCOTUS is not indulging ordinary presumption in Admin’s favor here. The Court went out of its way to express its displeasure with the government’s absurd reading of its order in JGG v. Trump, which had required reasonable notice sufficient to allow an opportunity to file a habeas petition. 2/ [screenshot][THREAD]

      • harpie says:

        The next post in that THREAD:

        3. SCOTUS was also irritated with the dissent (Alito) and the lower courts for suggesting that the NDTX district court only had 42 minutes to rule, because there had been an emergency TRO on the docket asking for the same relief 14 hours before that. 3/

        I was pretty IRKED about that too!
        I did a TimeLine called The Story of “42minutes”
        https://www.emptywheel.net/2025/04/19/harvie-wilkinson-tries-to-salvage-trump-v-us/#comment-1095369

        The outcome of that TL:

        *****
        So, at 5:10 PM on Friday, 4/18/25
        North Texas District Judge HENDRIX LIED re: timing of the ACLU’s TRO request.

        HENDRIX LIED by more than 15 hours.
        This LIE was used by Judge Ramirez at USCA5 to deny relief
        This LIE was picked up and used by TRUMP/DOJ and ALITO/THOMAS.
        This LIE was NOT REFUTED on the record UNTIL sometime on Monday 4/21/25,
        MORE THAN 2 DAYS LATER.
        *****

    • harpie says:

      According to Steve Vladeck, in a very clear explanation of this decision,
      the “eroding Presumption of Regularity is one “reason this ruling is a very big deal”. [my emphasis]

      151. The Supreme Court’s (Alien Enemies Act) Patience is Wearing Thin A very quick breakdown of Friday afternoon’s quietly significant ruling slapping down the lower courts in the Northern District of Texas Alien Enemies Act litigation—and what it means going forward. https://www.stevevladeck.com/p/151-the-supreme-courts-alien-enemies Steve VLADECK May 16, 2025

    • harpie says:

      Donald Trump’s Attempt to Destroy Due Process Ran Into a Wall at the Supreme Court https://slate.com/news-and-politics/2025/05/supreme-court-analysis-donald-trump-cecot-plan.html Mark Joseph Stern May 16, 2025

      […] It is increasingly unclear whether Thomas and Alito would offer any restraint whatsoever on Trump exercising absolute power. The rest of the court, by contrast, is seemingly running out of patience for its tricks, misrepresentations, and defiance of basic constitutional principles.

      The Supreme Court is going to hand Trump many victories over the course of his second term. But this issue has clearly divided the conservative supermajority and disturbed several justices who are generally inclined to rule for this president. It’s easy to see why. What the government attempted to pass off here was an alarming and foundational affront to the Constitution. If the court did not draw a line here, it is hard to imagine where it ever would.

      • Shadowalker says:

        If Trump had just “facilitated” Garcia’s return as they ordered, they might have let this slide. It does appear that they are using administrative warrants to get (at least some) people out of the country, and not even bothering to bring them before a judge. This is made worse by the fact that they are being sent to a foreign prison for a civil crime.

  13. Harry Eagar says:

    So, why didn’t the researcher follow the rules about transferring biological material?

    My wife was at one time the safety officer in a phytology labratory and she had little success in getting the researchers to comply with phytosanitary regulations. I, on the other hand, spent lots of time reporting on the devastating consequences of smuggling biomaterial. And, yes, I know the story of how Jefferson committed a capital crime by smuggling rice seeds in his coat pockets.

    • Susan D. Einbinder says:

      Good question – since, as stated above, this type of mistake is usually addressed with a warning. Frog embryos are not dangerous, are they? It was an incredibly stupid thing to do but — is she a graduate student? — students in hierarchical university settings can be so focused on getting things done that they overlook important steps (like declaring the frog embryos). Her ‘joke’ about not swallowing them was particularly damning, too – but that hardly justifies sending her to Russia.

      [Please see moderator’s note in your 5:35 pm ET comment. /~Rayne]

    • P J Evans says:

      Without knowing more about the frogs, it’s hard to say. But if they were going to the lab, as samples, I doubt they were going to be out in nature contaminating the local population. (The researcher would certainly know the rules.)

      • Harry Eagar says:

        They don’t sound dangerous but among the reasons for biosecurity regulations is the contamination danger — It is simple to stick a couple of seeds in your pocket to get a pretty flower for your garden, but who knows what microbes, aphids, viruses are hitching a ride?

        Hanging out at my wife’s lab, I concluded there are two types of biological researchers: 1) ones with broad vision and a lively sense of the unexpected; and 2) narrow-minded experts who know so much more than the peasants that they can make their own rules.

        There is a third variety, not researchers as such, but commercializers, and they scare me most of all.

  14. Shagpoke Whipple says:

    Isn’t the prosecution of Baraka this close to the NJ gubernatorial primary a violation of DOJ rules?

  15. harpie says:

    https://bsky.app/profile/chrisgeidner.bsky.social/post/3lpjz6b3xoc2n
    May 19, 2025 at 12:40 PM

    BREAKING: SCOTUS allows DHS to reinstate Sec. Kristi Noem’s order ending Temporary Protected Status for many Venezuelans, but notes the decision does not address challenges to actions “purport[ing] to invalidate” related legal status, work authorization documents, etc., previously granted under TPS. [screenshot]
    […]
    No one wrote anything, so we know nothing about the reasoning, and only Justice Jackson noted that she would deny the Trump administration’s request.

    • harpie says:

      https://bsky.app/profile/reichlinmelnick.bsky.social/post/3lpk26jbjxk2r
      May 19, 2025 at 12:58 PM [emphasis added]

      [Three Sirens] The Supreme Court has just allowed Trump to strip as many as 350,000 people of legal status, effectively IMMEDIATELY.

      Every Venezuelan granted TPS through the July 31, 2023 designation has been rendered undocumented as of now, significantly increasing the undocumented population.

      Today’s action is the single largest mass-illegalization event in US history.

      350,000 people woke up this morning with legal status,
      living and working here with official permission.

      They’ll go to bed as undocumented immigrants
      facing deportation. [THREAD continues]

    • harpie says:

      TRUMP GOONS couldn’t find enough criminal undocumented people,
      SO… SCOTUS helped them MAKE some.

    • harpie says:

      Director of Immigration Studies at CATO:

      https://bsky.app/profile/davidjbier.bsky.social/post/3lpjxbablc22f
      May 19, 2025 at 12:06 PM

      Cato has published my comprehensive review of the ~240 Venezuelans the US government renditioned 2 months ago to Salvador’s notorious prison.
      We identified [minimum] FIFTY who came legally, never violated any immigration law, but are imprisoned at the US government’s request and at US taxpayer expense.
      [THREAD]
      These legal immigrants are being treated worse than murderers are in the US. They had no right to legal representation, no trials before imprisonment, were disappeared, and are now imprisoned indefinitely in conditions that SCOTUS has said would violate the 8th amendment.

      You can read the whole thing here. In my wildest dreams, I would never have thought to accuse the Trump administration of planning something like this. This is clearly a crime, and DHS Sec. Noem and others should be impeached for it: [LINK]

      Links to:
      50+ Venezuelans Imprisoned in El Salvador Came to US Legally,
      Never Violated Immigration Law

    • harpie says:

      https://bsky.app/profile/kyledcheney.bsky.social/post/3lpdjyf5myg26
      May 16, 2025 at 10:52 PM

      NEWS: When a man sued the Trump administration for sending him to Mexico despite fear of persecution, ICE had an answer: the man told them himself he was not afraid to go there.

      Tonight, ICE filed an “errata” saying
      they have no evidence of this exchange [Politico link]

      The mistake appears to have been costly. The judge overseeing the case declined last month to order the man’s immediate return to the U.S. in part because of the “hotly contested” issue.

      • harpie says:

        1] https://bsky.app/profile/reichlinmelnick.bsky.social/post/3lpdk77c2c22c
        May 16, 2025 at 10:56 PM

        Here’s the thing: line officers*** at DHS routinely lie about stuff like this. Some studies suggest manufactured statements occur in 15-20% of cases, sometimes higher. Border Patrol is the worst offender but ICE does it too. [THREAD]

        ***Footnote: I think I’m misusing the phrase line officer. In this case, I’m referring to border patrol agents and ICE officers.

        2] https://bsky.app/profile/nationalsecuritylaw.org/post/3lpdlwtsfhc2w
        May 16, 2025 at 11:27 PM

        This is a symptom of a bigger problem that extends beyond immigration into pretty much every type of civil litigation against the feds.

        Almost every time you get a declaration in a case from a fed, it’s from someone who has NO personal knowledge of the facts they’re testifying about.

        They’re “reading the file” and then saying that’s what happened. It’s Hearsay 101. [THREAD]

        And that “if it goes to trial” is a big issue. Because government declarants are also entitled to an actual legal presumption that they’re telling the truth. [THREAD]

Comments are closed.