Surprise, surprise: The Trump administration is being held in contempt after allegedly misleading the court and defying orders via secret deportations. Sen. Sheldon Whitehouse of Rhode Island joins Jen to break down the court circus that follows Trump’s Justice Department.
The senator also outlines his legislation to restore civil remedies for those harmed by federal officers, which opens a discussion with Jen on the Supreme Court’s recent politicized behavior.
Sen. Sheldon Whitehouse represents Rhode Island in the U.S. Senate, where he champions policies to uphold American leadership in the world, protect our planet in a changing climate, and hold the powerful accountable.
Jen Rubin
Hi, this is Jen Rubin, Editor-in-Chief for the Contrarian. We’re delighted to have back with us Senator Sheldon Whitehouse from the great state of Rhode Island. Welcome, Senator.
Sheldon Whitehouse
Thank you. Great to be with you again. Thank you for having me on.
Jen Rubin
Absolutely. Judge Bozberg, who was the presiding judge, and, has taken issue with the administration in the, really, deceitful, deportation of individuals to El Salvador, seems to have revived the contempt proceedings. Tell us what you know. And, what you’re looking at, given the fact that, the administration now has developed quite a reputation in the federal courts for not playing it, shall we say, straight with judges.
Sheldon Whitehouse
Yeah. Well, let’s start with just a quick review of who Judge Bozberg is. He’s the Chief Judge… of the federal court in the District of Columbia, which is one of the bigger and busier federal courts because of its location. He’s been the Chief Judge for a long time. He’s very respected. He sits on the Judicial Conference, which is the administrative body that runs the judiciary, chaired by the Chief Justice of the Supreme Court. And he came onto the bench as a Republican presidential appointee. And one night, An emergency petition came in saying, we think People are being… Deported out of the country secretly and without proper procedure to a foreign prison. And we need an emergency hearing. So as the chief judge, he took it. And… He ended up getting into quite a mess, because what became very quickly apparent is that the Trump administration was not… Obeying his orders, and might have been misleading him with things that they said. And they went back and forth through that night as the planes flew. It was during that night that the famous comment by the senior MAGA Attorney General appointee, Emil Bovee, said to senior Department of Justice prosecutors, if this keeps up, we’re gonna have to tell federal courts, F you. He didn’t just use the F. And we had a whistleblower who was passing along real-time texts from people who heard that. So it’s excellent corroboration. So between the failure to turn the planes around, as Bozberg had ordered. And potentially false statements that were made to him in the courtroom by lawyers, and this backdrop of the Department of Justice preparing to tell federal judges, F you. He said, okay, there’s probable cause here to have a contempt hearing. which would bring out the facts of what had taken place at the Department of Justice and the Department of Homeland Security. In that proceeding. And that… is what really lit things up, because the last thing the mega Department of Justice wants is a real, factual inquiry into what is going on over there. So, now he’s in the crucible, and we can go through some of the stuff that followed that, but that’s the… that’s how this began. A proceeding that he got sort of roped into, in which it appears he got lied to and had his orders ignored, so he set up a contempt proceeding, and that’s where the story actually begins.
Jen Rubin
Now, for a while there, the, administration, the regime, was taking the position, oh, judges don’t have the right to do this sort of thing. You can’t, hold us in contempt. Judge Roseburg doesn’t agree with them, and it’s an unusual procedure because, normally you would have a prosecutor on one side, but there is no prosecutor here because the government is the one who is under scrutiny. What kind of process do you see playing out? And do you think Judge Boisberg is gonna push forward and… Appoint a special master, a special prosecutor, and have a mini-trial in his courtroom.
Sheldon Whitehouse
I’m not sure what he’s gonna do. What I… Have heard. Is that in the first instance, he’s just gonna call witnesses in to lay out under oath what happened, and answer his questions, and answer the questions of the plaintiff’s lawyers. and presumably answer the questions of the Department of Justice as well. Depending on where that goes, he always has the right to say, okay, this is really getting serious, I need to just be a better, like, contested proceeding, and therefore I’m going to appoint a lawyer to represent the interests of the court so that I can stay on, as… the judge. But the backdrop to this is intense pressure being put on Bozberg to not do this contempt hearing. That includes the president. who has called for his impeachment. That includes House MAGA folks who have actually introduced articles of impeachment. It includes this weird administrative stay that you referred to, where two Trump judges on the Circuit Court of Appeals dropped an order stopping the contempt proceeding Under what’s called an administrative stay, which is supposed to be just days. It lasted 4 months, and perhaps not coincidentally, in those 4 months, Amiel Bovee, the FU guy. was moved by the Department of Justice through the Senate Judiciary Committee and onto the Circuit Court of Appeals while the proceeding that would have brought to light his potential prosecutorial misconduct was papered over by these two Trump judges by ordering that it be stopped. Pam Bondi, the MAGA Attorney General, also filed a complaint against Bozberg. Very weird complaint alleging that he had violated judicial ethics in the judicial conference, with a statement that she claimed he had made. To believe her, you have to believe that this experienced and respected judge… made a statement in the Judicial Conference that was itself an ethics violation, surrounded by all of these other senior judges and the Chief Justice of the United States. And none of them noticed? So it’s almost certainly a sham, but it allows them to say, oh, but there’s a… disciplinary issue pending against Judge Bozberg. Therefore, he shouldn’t be allowed to go ahead with his hearing against us. So I expect we’ll see that play out in the next few days. And then, there have been two sets of Republican senators sending in letters, the first demanding that Bozberg be impeached, and the other to put timing on it, on Friday. last week, the DC Circuit cleared Judge Bozberg of all those stays and said, you’re authorized to go ahead and do your contempt hearing. That was Friday. On Monday, eight senators sent a letter in to the Chief Judge of the D.C. Circuit, the appellate court above him, saying. This guy needs to be suspended. He shouldn’t be allowed to be a judge. Suspend him. So it’s really, like, full court press, anything they can to stop this judge from having this contempt hearing. And he’s going ahead now, so look out for more fireworks.
Jen Rubin
And presumably we’re gonna get a lot more detail. Let me ask a very basic question. Shouldn’t Emil Move be a witness?
Sheldon Whitehouse
it would make a lot of sense to have him be a witness. He was there, he was part of what went on, and he was able to evade questions in his hearing from senators, because, he could refuse to give answers, and he could run out the clock. In fact, his hearing, quite unusually in the Senate Judiciary Committee, opened with an injunction from the chairman that, the witness should feel free to claim privilege. In his answers, and not answer our, Questions? And so there was a lot of privilege asserting by the witness, and your 5 minutes gets burned, and pretty soon you’re all done. It’s very different in a courtroom when you’ve got a judge watching and even asking the questions, and if you start to give evasive answers, you don’t get to have a 5-minute clock run out. He can keep drilling until he gets the truth out of you, until he gets your dodging done, and that’s the value of a proper trial with proper cross-examination. So yeah, he should be a part of it. Maybe not in the first round, but sooner rather than later. And frankly, it should go back to his… qualifications as a judge, because if he’s found to have committed prosecutorial misconduct, then…
Jen Rubin
TikTok.
Sheldon Whitehouse
You know, judges have responsibilities, too.
Jen Rubin
Well, it seems like, many bad ideas originated with him, or he was present during many bad ideas, that came up during the Justice Department. time that he was there. Let me switch gears, to an issue called the Bevins, issue. And that’s the name of a Supreme Court case in which made the way for individuals whose constitutional rights have been violated to actually sue. The Supreme Court, in its infinite wisdom over the years, essentially eviscerated that, making it impossible to sue. You’ve introduced legislation, with a member of the House of Representatives. Tell us about that, and why, of all things now, of all times now, it is important to reestablish some remedy for people.
Sheldon Whitehouse
Sure. First of all, the law… Around police officers’ liability. For injuries and harms that they… Commit is a mess. If you’re a state, Or county or municipal official. you can be held liable under what’s called Section 1983, which has its own mess of judicial complexity and weirdness. It’s just not good, clear law. But if you’re a federal official, you’re not subject to 1983, you’re only subject to liability in extremely narrow circumstances that derived from this case. the Bivens case against six agents who had violated his constitutional rights. That case has been narrowed down by the Supreme Court to basically, it’s facts. Unless you’re doing that exact same thing again, you basically walk clear. So, the legislation that I’m proposing does two things. It lets people who’ve been injured by federal agents sue. As if they were state police, or municipal police, which makes perfect sense, because a harm that’s been, administered to someone should be redressed. That’s what the justice system is all about. The second thing is the related bill that moved the liability to the employer. Because what happens now in the state, municipal, and county system is that you have to sue the individual police officer. And then there’s some back agreement between the police officer and the police department or the town for reimbursement, and it’s part of the union negotiations. The whole thing is a mess. In real life, if you slip and fall in a Walmart, you don’t have to sue the guy with the mop. You sue Walmart, and that puts the accountability where it belongs, which is at the corporate level, to make sure that their employees aren’t leaving slippery puddles on the floor. Or if you’re a police department, to make sure that you’re bad police officers, or your bad training, or you’re bad whatever it is that’s causing these problems. gets addressed at your level. So between opening up the prospect for people injured by federal law enforcement to get some redress, basic American principle, and moving the liability to where it belongs, which is at the employer level, because that’s where policies are set, procedures are set, training is set, discipline is set, hiring is done, all of that. We can put some, finally, some order into a chaotic and very uncertain area of the law.
Jen Rubin
Now, how much of your decision to reintroduce this legislation, and you’ve done it before, this has been an issue that you’ve been concerned with, has been sparked by the abusive conduct of various federal immigration officials, most recently in Charlotte and other cities in North Carolina, where they seem to be, treating people, without, sort of due process, and more importantly, violently.
Sheldon Whitehouse
Yeah. Well, when you’re firing tear gas at children out collecting Halloween candy, Or… firing stun guns, at priests. Or… Fast roping at night out of helicopters into an apartment building, and kicking down doors and dragging children out of their beds into the streets at night, zip-tied to each other. I think there’s a case to be made that if the victims of those, incidents brought a case before a jury, the jury might think pretty skeptically about that. And it’s also important that before you actually get to the jury, you have some process where you can get some discovery. Into who ordered that, who set that up, what were their motives, what were they saying to each other in their emails behind the scenes. You can kind of set the stage for what was really going on. And in many cases, getting that discovery is just as important as getting to the jury. In fact, very often, once you’ve got a good look at the discovery, they say, okay, we’ll write the check, get away, we know, you got it, you got me.
Jen Rubin
Absolutely. And I must say, with this president having been given, really criminal immunity as far as the eye can see, and a president willing to pardon anybody for anything, it’s important to have civil remedies, because there’s no part.
Sheldon Whitehouse
Absolutely.
Jen Rubin
Civil liability. So this.
Sheldon Whitehouse
Very important. Focus on the difference between civil and criminal liability.
Jen Rubin
So, good luck with this. Hopefully, it will, find some, resonance with your colleagues. Just one final point, I want to ask you, I must say, I did think of you when I was listening to the Supreme Court argument on tariffs. And this justice is thinking, hmm, which master should we follow? Should we follow Leonard Leo, who doesn’t like tariffs, or should we follow the president, who does? Any.
Sheldon Whitehouse
Yup.
Jen Rubin
predictions as to how they’re going to get themselves out of this pickle, since they have two masters.
Sheldon Whitehouse
I gave up on predicting After the presidential immunity decision.
Jen Rubin
My prediction was that that would be a 9-0 decision.
Sheldon Whitehouse
Because it would show the court unified. It would be originalist and textualist, the thing that the conservatives supposedly like. And it would follow the law that has long been the case, all the way back through the Nixon cases and all of that. So it was an easy layup for the court to show, we’re together, we’re solid, these basic rules still apply, no new crazy weird things out of us. And when they didn’t, and they said they went off on this weird gallivant, To create a presidential immunity When the Constitution actually addresses immunity. And it gives it to us. gives it to Congress to protect us from the executive branch, so we can’t be arrested on the way to the vote. We can’t be hauled off into a prison because of something we said or how we voted on the Senate floor. So the Founding Fathers actually thought about immunity. And they gave it to legislators, and they didn’t give it to the president, and now comes this gang of right-wing judges, and they decide, oh, no, we’re gonna do this for this guy. So, I’m all done with trying to predict But if there’s one prediction you can say, it’s that they are not bound by the law in their own estimation. They will do whatever they think is best politically for the circle out of which they emerge, and as you point out, it’s weird for them now, because that circle isn’t just the Koch brothers and Leonard Leo and the unified field of court manipulation. Now it’s got MAGA coming in, and tariff stuff, and there’s an internal war in the, crowd of court fixers.
Jen Rubin
Exactly. I think it’s going to be fascinating to see how they get themselves out of this. I suspect whatever they do, somehow it’s going to be narrow and sui generis, so they don’t have to ever, go back to saying mean things about the president again. But thank you as always, Senator, and thank you for your good cheer. Happy Thanksgiving, and let’s be grateful for Lower court judges who have been.
Sheldon Whitehouse
Yes.
Jen Rubin
Really punching above their weight.
Sheldon Whitehouse
They have been punching above their weight and behaving very honorably. So, Happy Thanksgiving to you, and Happy Thanksgiving to them.
Jen Rubin
Wonderful. Thanks so much, Senator. We look forward to seeing you soon.
Sheldon Whitehouse
Thanks, Jen.
