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Notes -
Courtlistener docket is here. Alien Enemies Act is codified as 50 USC Chapter 3. Trump's Executive order is here.
On the basis of the evidence so far (which I think is just what is in the EO itself) I am skeptical that the actions of Tren de Aragua satisfy the statutory requirement of being an "invasion or predatory incursion" that is "perpetrated" by a "foreign nation or government." There's a hearing scheduled for an hour or so from now and I will be pretty surprised if it does not end in the beginning of contempt proceedings for some officials. Just Security has an article with a pretty detailed timeline.
ETA:
Trying to imagine the logistics of how this plays out. Trump's DOJ presumably charges one or more pardoned individuals with a crime within the scope of the pardon. They move to dismiss (or equivalent) on the basis they were pardoned. DOJ claims the pardons are not valid. Defendants produce whatever constitute the official pardon documents, various presidential announcements of the pardons etc. DOJ's rebuttal is ???. What could possibly go in the blank such that a court would permit the prosecution to move forward? I am confident that a court is not going to permit an investigation into a President's state of mind to try and determine a pardon's validity.
Were I in the DOJ lawyer's unenviable position, I think my hail Mary throw would be to subpoena Joe Biden himself and get him to declare in court that he did, in fact, authorize the pardon. I'd also try to schedule the testimony for as late in the day as possible.
He's absolutely immune from having to testify about such topics. And rightly so.
He's immune from having to testify, maybe, but it would be so trivial for him to show up, say "yep, I authorized this" that refusing to do so would raise questions. His refusal to testify on its own would not push towards a verdict that goes Trump's way in the courtroom, but it would certainly go Trump's way in the public opinion.
The pardons, esp Hunter's, were already extremely unpopular. It's hard to see how further public opinion against them would matter if the courts rejected the DOJ's argument.
The pardons themselves are not the only thing this would affect. The narrative is that Americans in 2020 voted for Biden to "restore normality", anything that shatters this idea that the Biden administration was "normal" is good for Trump. Shows that "normality" is not a product of an administration but of its media coverage. That if the media is uninterested in presenting an administration as "chaotic", then it will seem "normal".
Agreed.
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