Trump vs. the Injunction Judges: Will Chamberlain Explains the Court War | The Brief

We're going after President Biden for weaponizing the DOJ because there is this norm, the idea that the DOJ shouldn't be used for political purposes. You said that this case could change immigration entirely. Now it makes self-deportation a lot more appealing. If you don't do that, and ICE picks you up, you're just done, you don't get to settle your affairs. Why is this an example, number one, of judicial overreach? Is the Trump administration right to be invoking the Alien Enemies Act in this particular set of circumstances? And welcome back to The Brief. We are joined today by Will Chamberlain. Will is the Senior Counsel for the Article 3 Project and Vice President for External Affairs at the Edmund Burke Foundation. Will, thank you so much for joining us. Great to be with you, Shabbos. So, Will, I have a bunch of questions. I want to start, though, with the bombshell breaking news. In 2022 and 2023, Reuters broke the story that the FBI subpoenaed records of phone calls made by Kash Patel and Susie Wiles, now, of course, the FBI Director and White House Chief of Staff. But they did this, of course, when they were private citizens as part of special counsel Jack Smith's investigation as to whether Trump had interfered with the 2020 election and had hidden classified documents at Mar-a-Lago. So you testified in front of the Senate Judiciary Subcommittee this week, and you said that this was unprecedented. I just want to quote what James Raskin said, the ranking Democrat on the House Judiciary Committee. He said, quote, So my first question to you is, why is Congressman Raskin wrong to suggest that this is actually a normal routine? And why are you right to say that this was somehow unprecedented? It doesn't the FBI issue subpoenas and phone calls pretty often? Not for senators. And there's a specific statute to USC 6628 that requires any subpoenas, or rather, if the targets of subpoenas are senators, then the senators must be made aware of those subpoenas. It basically makes those nondisclosures illegal. So when Raskin is saying that nondisclosure orders are routine, he's hiding the ball. It's not routine in the case of senators, which makes sense because they write the laws. So you think that they would probably want to be not want to write a law that allows the executive branch to subpoena their records without them knowing about it. So at that same hearing, you have Senator Grassley accusing special counsel Jack Smith of improperly colluding with two federal judges, Judge Beryl Howell and James Bozberg of D.C. Both, of course, were Obama appointees, definitely nemesis of the Trump administration. They had high profile adverse ruling against the president. But he did this in order to bring charges against Trump. I want to quote what Abigail Jackson, the White House spokeswoman, said, quote, We have long known that Judge Bozberg is a far left judicial activist trying to undermine the president's lawful authority. This is just further proof President Trump has restored integrity to the DOJ that Joe Biden and his administration weaponized to target their political opponents, including President Trump himself. Well, I just want to play devil's advocate just for a second. Yes, the special counsel unprecedented. I agree with your answer. I agree with what the White House is saying. But you can make an argument that Trump's fake electoral plot was also unprecedented. Maggie Haberman, further corroborated by Jenna Ellis, who she herself was indicted in the Georgia racketeering case. She attests to the fact that Trump insisted, I'm not going to leave. We're never leaving. How can you leave when you won an election? Why should I leave when they stole it from me? We don't care. We're not going to leave. The boss is not going anywhere under any circumstances. We're not we're not just going to leave. So again, to play devil's advocate, if you're the DOJ, if you're the Biden admin, if you're the Senate Democrats, how are you expected to respond instead of having a special counsel? Like what were the alternatives both politically and legally? Well, the simple alternative is just not to even try and prosecute it. And it is I that's flippant. But it's just true. Right. The alternative is non-prosecution. And there's a good reason for that, because contrary to what you're saying, it's not unprecedented. Back in 2016, we had a concerted effort by Democrats after President Trump had won his victory in the Electoral College to try and get electors to be disloyal and to create you know, there was a whole rigmarole about that. And I mean, if you actually look at the efforts of people like Larry Lessig, and you look detail, look in detail what they did, and then you look at the indictments that were written, after the 2020 election, you won't find much of a distinction between the conduct in the sense of these people knew that they had lost the election, but they were trying to desperately push for a different result, you know, based on it, because they're just trying to persuade electors that so there was something unjust about it. So I think that it should be allowed to do that. Honestly, it's never worked. So it doesn't strike me as like the biggest deal in the world. People have free speech, and our Constitution is structured to separate the election itself, where everybody votes from the Electoral College vote where you have these individual electors that so I don't think there's anything unlawful about job owning electors. So I just want to dig deeper for a moment. When it comes to the special counsel in your hearing, Jack Smith's collusion, according to Chuck Grassley, was manifested in an email where he writes to Judge Howell, and he says that the judge likes our approach of pursuing the executive privilege litigation in an omnibus fashion. Omnibus motion essentially allows for consolidated litigation, which really streamline the court proceedings. Correct me if I'm wrong. You have the Take Care Clause, Article 2, Section 3 of the Constitution, which mandates, of course, that the president shall take care that the laws be faithfully executed, which kind of acts as the constitutional basis for unitary executive theory, which essentially gives the executive broad control over the executive branch. Senate Democrats and really just liberals will counteract by saying, no, you need an independent judiciary. You need prosecutorial judgment, which is a framework sort of against this executive theory. Is the fundamental constitutional tension, let's say, between the White House and what he calls these judicial activists, is that tension over the role essentially of the executive and over the judiciary? Am I missing something, or is that more or less what these fights are about? So there's two angles to it, I think. Well, first off, to understand unitary executive theory, take care is part of it, but the core reason the unitary executive theory exists is because of the very first sentence of Article 2, the executive power shall be vested in a president of the United States, right? There's not the executive power. All of it. Shall. That's mandatory language. So take care is just a part of that. But the idea of unitary executive theory is that there isn't hidden executive power somewhere else in the government, in the congressional branch, in the judicial branch, in some unaccountable fourth branch of government. It's all belonging to the president. So I wouldn't say unitary executive is really relevant to the question of the independence Too relevant to the question of the independence of the FBI, DOJ, because it's just not there. It has more to do with when Congress tries to create these independent agencies and insulate the people who run those agencies from executive branch removal. So that's sort of a side. There's two big problems, and there's two big tensions, really. So the first is, what does it mean to have an independent FBI, and is that actually desirable? And our constitution, unlike, say, Israel's, for example, is structured in such a way that we don't actually have an independent FBI and DOJ. They are politically accountable to the president of the United States. In Israel, that's not true, for example. That's why you have this whole debate about the attorney general not deciding on their own to prosecute the sitting prime minister. Something that simply couldn't happen in the United States. And so that's part one of it. And then so the tension now is twofold. One, we're going after President Biden for weaponizing the DOJ, because there is this norm, the idea that the DOJ shouldn't be used for political purposes. So that's one debate. And then the second norm that's going on is, well, okay, it shouldn't be used for political purposes, but should it be used, should it have supervision from the political branches at all? And I think the Democratic position is sort of this interesting tension, where on the one hand, they want to say, President Trump shouldn't be meddling in the affairs of the FBI and DOJ at all. And two, how dare you suggest that under the Biden DOJ, the DOJ was weaponized against conservatives. And I think the point, the reason Democrats do that is they think if the DOJ is independent and insulated from Republican review, well, the average FBI official is going to lean Democrat. So we're going to get more Democrat results out of an independent DOJ, whereas Republicans say, whether or not it's independent, the question is, is it being weaponized? That's the first and foremost thing that should not be happening, one. And then two, if it has a history of being weaponized by so-called independent people, then that's when you need Democratic accountability. So just before I get to my next question, then, based on what you were saying, especially the weaponization of the DOJ, we have seen that hallmarks of our democracy and our key institutions like the DOJ have just historic levels of distrust amongst the American people. So I guess I have two questions. Number one, is this warranted? And then number two, you know, historically, how did we get to this point where there are just such low levels of trust, essentially, in the core functions and pillars of our government? So is this normal? I think in some sense it is. We've had big problems with FBI in the past in terms of their trustworthiness. Maybe the, you know, I think maybe this is more so now because communication is so diversified and there is a lack of an overarching institutional narrative coming from, you know, dominant control of major networks, for example. But, you know, the FBI has historically been very, very aggressive and willing to break the law in pursuit of its objectives. I mean, you just read a book about J. Edgar Hoover and what Hoover's FBI was like, you know, this is nothing new. And the reason we have all these laws protecting against wiretapping, it's not just because of Watergate, you know, it's because Watergate was just a function of, you know, the White House's own staff. It's because the FBI and CIA and all our, you know, intelligence agencies and law enforcement agencies were playing fast and loose with things like wiretapping and privacy. So, yeah, we are justified, actually, and particularly things got very haywire, you know, again, because the FBI is supposed to report to the President of the United States. But if you remember in 2016, the very first thing that James Comey's FBI did, along with Andy McCabe, was try and get Michael Flynn on a perjury charge. And there's this incredible interview that James Comey did at some conference where he's sitting there talking with some liberal journalist about, like, you know, if the White House was more sophisticated, I probably couldn't have gotten away with sending Andy McCabe to just interview Mike Flynn at the White House. The White House counsel probably would have had something to say about that. And it's like, wait a second, shouldn't you be anticipating what the White House counsel wants you to do and doing it rather than going to war with the administration you nominally serve? Like, the arrogance of that, like, everybody in the room like, ha ha ha, of course we undermine the democratically elected President of the United States, like, get out of here. I would just have to add, as someone who, you know, was on the on the political left for most of my young adult, that James Comey was like the Messiah. I mean, he was Jesus Christ on the white horse who was going to go bad against the Trump administration. So I totally get and agree with your point. Let me just go back very quickly to the judicial activism. Over half, and I want to repeat that, because when I first learned of this, I actually did not believe it. Over half of all the injunctions issued since 1963 were issued against Donald Trump. They were issued against the Trump administration policies. My question to you is both legal and political. The legal, obviously, is what do you do about these judicial activists? And then the political, how does the Trump administration plan on fulfilling key campaign promises, I would say immigration chief among them, when it just seems like it's one step forward and two steps back with lower level courts just trying to disenfranchise tens of millions of Americans from fulfilling the campaign promises that they voted for? I mean, the answer is you've got to grind it out. There's not really a better answer than grinding it out. And I think the administration's actually doing a great job of that. We're starting to see a lot more appellate victories come in, and the Supreme Court get more and more involved. I think the latest example of this is they're getting involved before the appellate court has even heard it in the cases about temporary protected status. There's this judge out in Massachusetts that keeps granting injunctions saying that the DHS secretary can't end temporary protected status for groups of migrants, even though the relevant statute says not only that the DHS secretary has the discretion to do that, but also that district courts don't have any jurisdiction to review it. So we have these big problems with essentially progressive district court judges completely ignoring jurisdiction stripping provisions, provisions that say, you don't have any authority to review this at all. We don't care what you think. Don't care what device you want to use. You don't have any authority to review these determinations. And they just blow past that. And, I mean, they're also just getting involved in cases where they obviously shouldn't be involved. I mean, a good example of this would be all the funding cases where you had district judges ordering the Treasury to disperse funds, where the executive branch had paused it. And the most basic thing to understand about that is that's a sovereign immunity issue because these people are suing the government for money that's supposed to be paid to them by contract. You have to get permission to do that. The way the statute's set up, all those claims go to the Court of Federal Claims, which is where you handle these contract disputes with the government. And these district judges are like, YOLO, don't care, give the money to LGBTQ++, AI, money, money, money NGO that's just going to hand it, or like illegal immigrant NGO, you name it, right? And they're just saying that it's like, basically, it doesn't really matter that the White House changed. All the liberals are still entitled to all the money. And, of course, the president isn't actually entitled to do anything. That's basically the model these people are using. Well, I hope you know that the LGBTQIA NGOs are the backbone of our democracy. I do want to get to immigration. But just before I do, because you brought up a good point, Trump has signed more executive orders in 2025 than his entire first term. He has signed more executive orders than almost any other president. This threshold obviously reflects Trump's efforts to dramatically expand presidential authority. You know, these moves have obviously tested the bounds of the Constitution. But I just want to ask on a pragmatic political lens, one of the dangers of signing so many executive orders is because the ease at which they're signed, they can also be unsigned, you know, depending on who the next president is. So can you just talk about whether this is politically smart for Trump to be investing more time, resources and effort in executive orders as opposed to, let's say, comprehensive legislation, which admittedly is harder to do? Yeah, I absolutely think it's smart. I mean, DHS is unfunded. I mean, look at what the Democrats are actually demanding. The Democrats are demanding that in order to fund the Department of Homeland Security, which is responsible for any number of different, extremely important law enforcement functions and protection of the country. They want to complete force, force the Trump administration to basically give up on its deportation program by, for example, a requirement for judicial warrants to make a removal arrest, which is absurd. People need to understand. That sounds nice, but judicial warrants are for Americans who are, and the idea is you need to get a warrant to get probable for an arrest for probable cause that you've committed a crime. If you're in removal proceedings, you've already had due process. You've already been found removable. You're a fugitive. We don't need to waste a judge's time to go find you and arrest you. Like that's, that's the concept there. So no governance by executive order is important, right? Executive orders are the way that the, you know, the executive branch is interpreting the statute set up by Congress and saying, this is the new set of policies. And I'm a big believer that as an executive, sort of like DeSantis did in Florida, right? You need to use the power you have available for people to give you more power rather than hope vainly that there will be some bipartisan compromise on these essential issues where you've made campaign promises. So I believe very strongly that the president, the president has done the right thing. Even if these things get undone, you still have to do things while you have power. So let me ask them somewhat relatedly, because I think Trump is obviously sympathetic to that argument. He's urged Senate Republicans really for years, but especially in the last few weeks, he just nuked the filibuster because there's no way you're going to pass the SAVE Act. There's no way you're going to get DH funding with 60 votes. Obviously again, the concern is when you nuke the filibuster is, well, the shoe will be on the other foot in just a couple more years. So do you think this is politically smart for not just Trump to be suggesting that they nuke the filibuster, but for Republicans to actually be doing it? I mean, I don't know that Democrats can be trusted not to nuke the filibuster. I think the big question, and this is something that the, you know, the insiders in the Senate will have better insight into is what can we actually do if we do nuke the filibuster? Because the problem is we have a lot of squishy Republican senators. So even though we have this 53 seat majority, it's not clear that if you nuke the filibuster, you get John Curtis and Mitch McConnell and Tom Tillis to go on along with a majorly aggressive Republican platform. And really you only get one shot at nuking the filibuster. And so I'm a, I'm a very aggressive person. I'd like to see the Republicans eventually take that shot and do something really dramatic with it to change, you know, to essentially force a proper, you know, change our electoral system to make sure that people can't, you know, voter ID is actually a good thing to use for it. But I think we should be ready with an unbelievably aggressive immigration program. For example, if we, if we're going to nuke the filibuster, that completely eliminates much of the judicial review used to drag out deportations and removals for such a long period of time. It makes it so hard to actually get illegal immigrants out of the country. If you're not ready to do that once with the moment you nuke the filibuster, then you're wasting your time because you have to recognize that what Democrats are going to do some dramatic stuff if they get a chance once that filibuster is gone. So let's get to immigration and with this, I'll, I'll let you go 1798 alien enemies act. It was enacted to prevent essentially foreign espionage, but it's only been used three times, right? It's been used in the war of 1812, world war one, world war two, but the Trump administration has invoked it as the legal basis for invoking, excuse me, for deporting a hundreds of illegal immigrants in particular alleged gang members. But to me, what was so remarkable is in March of 2025, you have the U S district judge, James Post Burke, we mentioned earlier, he ordered the Trump administration to turn around mid air as they're like 30,000 feet that we're carrying these deportees to El Salvador and the administration, they initially ignored the order, which led to a finding of probable cause for a contempt of court that the dispute centered on the expulsion, obviously of these alleged gang members are under the alien enemies act. So can you just explain to me and explain to our viewers, why is this an example? Number one of judicial overreach. And then number two, is the Trump administration right to be invoking the alien enemies act in this particular set of circumstances? So yeah, I saw first off, it's obviously an overreach because it's reaching extraterritorial extraterritorially to people who are no longer in the jurisdiction of the United States. That said the, you know, much of the dispute, especially about the contempt is because James Bose Berg was not very clear about what he actually wanted. And so the administration complied in their view with the order as written. And if you actually read the DC circuit opinion dealing with this contempt issue, there's a one judge who's like, there is no contempt because there was no violation of your order as written. Um, so that's a point to, was it worth, was the alien enemies act justified? Actually yes. And, and people need to understand like, why were these specific individuals, Venezuelans, members of Trinidad and Tobago sent to El Salvador? It's because at the time, again, under Maduro, Venezuela was refusing to take back its illegal migrants and especially its illegal criminal migrants. And the, in a world where that's the case, it creates a problem. It's the same problem that the Kilmar-Abrego-Garcia case is bringing up, which is under our current law, a very bad Supreme court case called Zidvaitis v. Davis. If somebody needs to be deported, but their, their country of origin won't take them, you're not allowed to hold onto them indefinitely, even if you think they're very, very serious criminals. And so they could have been forced to release Trande Aragua terrorists into the United States because Venezuela was refusing to take them. And so the, the solution to that was El Salvador, right? Essentially remove them to a third country and get the permission of El Salvador to do it. And the Alien Enemies Act was one of a number of tools used to do that quickly and efficiently rather than going through the full process with these people. But I think, you know it's a, I thought it was a reasonable thing to do at the time. I'm not sure how much it's, I don't think it's really been invoked since then. And obviously this dispute is now moot in the sense that these people, even prior to the Maduro intervention, even before the intervention that removed Maduro, these people were already backing them as well. On that note though, the Eighth Circuit Court of Appeals, following a similar ruling by the Fifth Circuit, they ruled that the admin can continue to detain illegal immigrants without bond. This is obviously a major victory in the Trump administration and their crackdown on illegal immigration. I think this is probably going to head to the Supreme Court, correct me if I'm wrong, but you were on, I think it was Tim Pool a few days ago, and you said that this case could change immigration entirely. So why is this case so fundamental to the success of the crackdown on illegal immigration? So it doesn't apply to all illegal immigrants detained by ICE, just those that never presented themselves at a port of entry. So that's not, you know, if you're a visa overstay, this doesn't apply to you. But if you're someone who just crossed the border illegally at, you know, randomly ran across the Rio Grande or something, this applies to you. And what it means is, if you were detained in the United States as an illegal alien who never crossed at a port of entry, then you can be detained without bond. That means you don't get to go home and pack your things. You just get to be detained until your removal proceedings are heard. And given that you have no right to be in the country, you're going to get deported. And the difference is that in the status quo, you would get bond. So if you got picked up by ICE, even if you, you know, totally, you know, completely crossed illegally and never settled your status, you just go back home, pack your things, tell your lawyers to kind of string it out as long as they can. And eventually, maybe you have to go home, maybe you don't. But you're no worse off than if you had just voluntarily self-deported. Now it makes self-deportation a lot more appealing. Because if you self-deport, you can take control of your arrangements, you can handle your affairs while you're here, you know, sell your stuff, close out your lease, you name it, and go home with, and additionally, you get the money from DHS, that's the bonus. But if you don't do that and ICE picks you up, you're just done. You get to sit in detention until you go home. You don't get to settle your affairs. And a big part of, you know, proper immigration policies, you can't deport every single illegal immigrant using DHS. You need people to go home on their own. And so this creating a really bad scenario for people who are picked up if they crossed illegally is a way to actually achieve the deportation goals we're talking about. Like it shouldn't, it shouldn't be a good thing to get picked up by ICE or it should be a negative thing. You shouldn't want to get picked up by ICE. You should be trying actively to avoid it. And that's what this allows. Yeah. I mean, you're having me think sort of just the ridiculousness of the left's argument that the DHS or ICE, you know, they're kidnapping people because usually when you kidnap someone, you don't return them to their home. But that's, of course, exactly what these deportation or self-deportation is doing. I want to ask you one last question because you've been making, you know, really sound legal arguments, but you were on Al Arabia a few days ago and you were debating an individual who I won't name, number one, because he's an idiot, and number two, I can't pronounce his name. And number three, I was actually meant to debate him, but I couldn't. And the question was, you know, the legalities and the justification for the war in Iran. And he was talking about the non-proliferation treaty. And you literally said, and I want to quote you exactly, you said, we don't care. Call the international law police and send them to the White House. And then you were asked by the host, so, you know, what makes the U.S. mediate, what makes the U.S. the mediator? And you responded, quote, the B-2 bomber. Yes. I'm just wondering, can you explain the legal theory and or justification for the war in Iran? I guess it really just is might is right. I mean, there is an actual legal theory in the sense that, you know, this does comply with the law of armed conflict. You know, Iran posed a threat, a serious and undeterrable threat to the United States in terms of its attempt to provide a nuclear program. It provided casus belli to the United States in any number of ways, funding the proxies in the Houthis, funding Hamas that attacked American citizens on 10-7. I mean, you can go down the list and find any number of casus belli that would be legitimate in international law. But I think the broader point is that there is no international law police. Right. And we're we are you can't call anybody on us to, you know, to arrest Donald Trump for violating international law. And, you know, when when he's talking about, you know, this is it's actually echoes what the Iranians were talking about when they when they were negotiating with Whitkoff, where they're like, we have the inalienable right to enrich. And it's like, well, we have the inalienable right to stop you. So where where do we even go from here? Like, clearly, this is, you know, you can assert it or right, but we don't recognize that right. And we're stronger than you. And, you know, the international affairs is not domestic politics. And one of the interesting things everybody always is talking about, well, was Iran an imminent threat? And it's a category error because you're taking a circumstance in civilian self-defense where you're not allowed to shoot people in self-defense if the threat isn't immediate or imminent. Because you can call the police and we want you to call the police if the threat's not imminent. Right. If somebody if your next door neighbor put out a contract or hire on you, you don't just get to walk over and shoot him in the head because you need to call the police. But like if your next door neighbor country decides to put out a contract on your on your like, for example, on your president, you know, there's no police to call. You actually have to use your military to deal with that problem. So that's, I think, a category or people are making just because the timing of the threat from Iran might not have happened in the next month, six months, whatever, doesn't mean that the threat wasn't extremely important, credible, inevitable and required military force to be dealt with. Last question that I promise I will shut up. This is a trite point and a rudimentary question, but nevertheless important. You were on Tim Pool's podcast and it was really an interesting conversation. I encourage all the listeners to listen to it. And you had made the point that after the death of George Floyd, there was an incredible consolidation of political and cultural power amongst the left. They achieved enormous wins, both within a societal setting and then, you know, practical legislation. Yet, after the murder of Charlie Kirk, not only did we not see that political and cultural consolidation, we saw the opposite. We saw fissures and fractures within the conservative movement that I would argue are actually only getting bigger by the day. So as someone who is involved and a leader within the conservative space, how do we even begin to mend these enormous divides within the movement? I think we have to remember that I think most conservatives are more unified than we realize. You know, there's the sort of podcaster world and then there's what actual conservatives think and nothing. No, there's no greater indicator of that than when they pull the Iran war among Republicans. It's not the support for that is eighty five to ninety percent, which if you looked at online discourse, you'd be like, huh, what? That doesn't make any sense. Look at every you know, you have all these big name conservative influencers coming out against the war. It's like, well, actually, you know, conservative voters support Trump and they're a lot more traditional than perhaps people think. I mean, you know, just because they came ultimately came around to the conclusion that the Iraq and Afghanistan wars were a bad idea does not make them pacifists by any means. And so so that's just one example. But I think the broader idea is, you know, I think the American people were behind Charlie Kirk. I think, you know, as leaders in the conservative movement, you need to just not be afraid to make to say the truth and to occasionally make a like a deserved adversary out of someone who deserves it. And I try not to do that because I think, you know, as somebody who runs conferences, for example, I need you know, I don't want to do that trivially. We want to be diplomatic and make sure that we're bringing in everybody in the tent to show up at these conferences. But that shouldn't stop us from saying, you know, really important things like and to be very and very, very critical of people who would go after widows, you know, seems pretty straightforward. Yeah. Well said. And I believe the Natcon conferences in Israel. That's right. On Jerusalem. Oh, wow. Cool. I eagerly await my invitation. Will Chamberlain, senior fellow, senior counsel for the Article 3 Project, vice president for external affairs at the Edmund Burke Foundation. We really appreciate your time and for being a voice of moral and legal sanity. Thanks again. Thanks Shabbos. Well, thank you so much for watching. Make sure to like and subscribe if you have any questions, comments, or if you want to see a particular topic addressed, make sure to put it down in the comments and feel free to keep the conversation going through all of your questions or yellings or rants. Find me on social media. Just type in Shabbos Kestenbaum. You're not going to find many other Shabbos Kestenbaums. And I'm looking forward to speaking with you all very soon.