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With Jared Yates Sexton out, Coach Nick hosts a two-guest Weekender unpacking how “absolute immunity” is morphing into absolute impunity. Criminal defense attorney Greg Rosenfeld joins from Palm Beach County to break down Ninth Circuit skirmishes, shadow-docket shenanigans, and why judicial deference is gutting real checks on an increasingly imperial presidency. Then Professor Jason Niedleman (University of La Verne) digs into the political strategy behind National Guard deployments, the shutdown blame game, and the long war over rules, filibusters, and gerrymanders. Along the way: DC crime stats spin, immigration theatrics, a Santos commutation sidebar, and why expanding the electorate is the actual endgame.
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This is our weekender episode, as you know, on Fridays.
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Coming up in a little bit, we'll have Jason Needleman, who will join me.
He's a political science professor from the University of Laverne.
And the reason why I'm doing some guests instead of having my normal co-host, Jared Hates sexton, with me is because he's unavailable today.
So we are going to have some people coming in and giving us some different perspectives.
And I'm pleased to bring in our first guest, Greg Rosenfeld, and he is a criminal defense attorney from Palm Beach County.
And I thought Greg could come in here and discuss a few of the things from a law background in terms of what's going on with the Trump administration and why we should be concerned or maybe not so concerned.
So Greg, thanks for coming on the show today.
It is a pleasure.
Thanks for having me.
Full disclosure, Greg and I are distantly related, and we have had this discussion quite a bit over text for quite a long time.
But, you know, Greg, it seems to me that if you're a criminal defense attorney, you sort of have particular insights into the criminal mind, I suppose we'll call it.
And since we have, I think we have one to discuss in the White House, what do you make sort of generally about the, I mean, would you consider this sort of an assault on the Constitution consistently across the board since Trump was elected?
I mean, I think the rule of law is crumbling in our country right now.
I think it's, you know, a very dangerous time.
I think more so now than ever, our courts are failing us.
And, you know, that really stems from, you know, the judicial deference the appellate courts are giving, you know, Trump at this point.
You know, it's, it's terrifying.
One thing I thought was interesting was that even when we get to the Supreme Court, it seems like they're also willing to abdicate their power in the service of some sort of imperial presidency.
Does it feel that way?
Is that shocking to you as well that they wouldn't want to sort of maintain their equal part of the Constitution?
It's funny you bring that up.
And it's, you know, it's good timing because I know, you know, Justice Barrett had that interview recently.
And, you know, she made comments about the Supreme Court needing to think long term, right?
And their actions having to be long-term right now and not short-term.
And, you know, that really makes no sense in terms of how the Supreme Court's been acting, right?
Like, and let's go back to, you know, let's start with absolute immunity, which, you know, the president essentially has.
And, you know, extend to what's going on now.
And that, you know, mainly the power to deploy troops to cities.
I mean, this isn't, I guess I don't see how this is thinking long term.
You know, this is, you know, this is very dangerous.
And a lot of this is happening in these shadow dockets with, you know, where there's not full briefing.
And, you know, it's troubling.
And I know you're seeing it out in California.
You know, I'm in, as you said, Palm Beach County.
I'm a stone throw away from Mar-a-Lago.
And, you know, we both know Trump's not sending the National Guard to Palm Beach County.
You know, but, you know, what's happening is problematic and the courts are really doing nothing.
And there's just way too much deference to the, you know, to the president.
And that's not, you know, that's not how things should be.
Well, let me ask this because in terms of the absolute immunity that he was granted by the Roberts Court, can you envision some sort of a case that will come before them that will test that in the sense that he will commit a crime and then claim immunity, even if it's under the guise of official act of the president, but it's a crime.
Do you anticipate that happening?
And is there a world in which SCOTUS would then still say he's immune from that?
I mean, should or would.
I mean, I think it would be should, right?
I mean, should, you know, let's start with the crypto.
Yeah.
I mean, you know, that has nothing to do with his, you know, his position as president, right?
Like, how is that him acting in his presidential duties?
You know, some of the other business dealings that are happening through the Trump family.
But, you know, as it pertains to, you know, things like his use of the National Guard, you know, what's going on with ICE, things that are really terrifying right now.
You know, I think, you know, the Supreme Court would probably rule, if it ever got there, that that, you know, falls under his duty as president.
He does have absolute immunity.
Let me ask you this.
Can you envision a scenario having known who these justices are where they would rule in Trump's favor and in the future, because you're talking about, you know, looking into the future, a Democratic president would not be granted that immunity.
Sure.
Would they do that?
With the, you know, with the Supreme Court we have now, yes.
You know, they, you know, and I could say it over and over again, and I hate to repeat the word, you know, deference, but, you know, they defer to Trump and he's getting a level of judicial deference that we have not seen.
And it's, um, I don't know if anybody else would necessarily get that.
Well, let's turn to the decision the appellate court made in order to allow the Oregon National Guard to be deployed in Portland.
Now, the key words that I would see that allow him to call up the National Guard are things like rebellion, you know, an imminent rebellion and threat to democracy, all sorts of things like that.
You know, how was it that you had a couple of Trump-appointed lawyers agreed to allow him to do this?
The one that said no, who was a, I believe, a Obama-appointed lawyer.
How can this possibly fall under a partisan decision based on what the law is?
Well, you have a number of cases going on right now, and this is where it's, you know, this is where it's getting messy, right?
You have a number of cases that are going in front of the Ninth Circuit.
You know, you have Newsom v.
Trump, right?
You have, you know, the other case in front of the Ninth and Oregon, you know, and they're all litigating the same issues, but, you know, there's more than one, more than one case going on right now.
And, you know, what's happening, and this is, you know, where I think a lot of people are, let's just say, somewhat confused procedurally as to what's happening, is these are temporary injunctions, right?
This is, you know, there's not full briefing at this point.
And, you know, I, you know, I was reviewing the, you know, Ninth Circuit's, well, just, you know, taking a step back, I'm sure, you know, all your listeners know about,
you know, the Ninth Circuit's recent ruling and, you know, lifting the stay and, you know, one judge, you know, requesting, you know, that from the panel of three judges requesting that, you know, there be an Anbank hearing on, you know, on what happened.
And that was denied.
And that, am I surprised that was denied?
No.
I mean, for, you know, Anbong, it's incredibly rare.
I mean, this is probably a situation where there should have been Anban.
And if you want me to get a quick anybody who might not know, yeah.
So, and it's a little different in, you know, the Ninth Circuit.
The Ninth Circuit has, I believe, 26 justices, if I'm correct.
And that's determined by a number of things, but how busy the circuit is, the amount of litigation going on there, the size.
So there's a couple different ways you can move for rehearing on Bonk, right?
So generally, you have a panel of three judges.
And what happens is if you lose, a litigant can move for rehearing on Bonk and they can say, all right, this is an issue of exceptional importance.
You know, there's, you know, a conflict.
There's a number of bases for doing it, but it's, you know, it's incredibly rare that they actually grant it.
The other way, and this is more rare, this is very, very rare, is a judge can sue Espante, you know, request, you know, on their own, you know, that the a larger panel revisit the issue.
And again, it's different in California because they have 20 because of the number of judges they have.
Generally, in most circuits, it's the entire, you know, it's every judge in the circuit.
In California, I believe it's 10.
You know, some recuse themselves from this, but, you know, from Newsom, but it's 10 that are randomly selected.
And in this case, you know, there were, let's see, there were, I think which judge it was.
I believe it was, it might have been, I mean, Gould wrote, Judge Gould wrote the dissent.
And it might have been Gould who moved for rehearing on Bonk, but because it was of exceptional importance, that was denied.
You have a, what we'll refer to as a statement, right, which is kind of unusual to be coupled with a denial of a motion for rehearing on bunk.
And that was by, you know, the senior circuit judge, you know, that's Berzin.
And it was beautifully written.
I mean, that's a really, really well-written statement about, not an opinion, a statement about, you know, the importance of, you know, really addressing this and, you know, this not being a quick panel decision.
And yeah, I mean, that's kind of where things are at now.
So there's nothing stopping Trump at this point from, you know, sending the National Guard in.
What, you know, next step, you know, they could file a cert petition to the United States Supreme Court to get this temporary injunction to stay in place.
You know, otherwise they go to, you know, it's called full briefing, you know, briefing on the merits.
So you're back at, you know, step one, but, you know, it's not this rush docket.
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