Morning Report

October 29, 2025 — Morning Report

Oct 29, 2025

1029 AM TT

The Ninth Circuit granted en banc rehearing of Oregon v. Trump and vacated the three-judge panel's decision. All 29 judges voted; about 11 will now rehear it. The panel's key factual finding — that 115 FPS officers (25% of all FPS nationwide) had been redeployed to Portland — may have been undercut by discovery: the actual highest count in Portland was 31, and that was only briefly. And as of today, the original district court trial on the merits begins. Three-day trial that could moot a lot of the en banc questions.

The Ninth Circuit granted en banc rehearing of Oregon v. Trump and simultaneously vacated the three-judge panel's earlier decision. The announcement was brief — four lines — but the significance was large. Bryan explained: the en banc process requires all active Ninth Circuit judges (29) to vote on whether to rehear; if a majority votes yes, the panel decision is vacated and an en banc panel (approximately 11 judges, given the circuit's size) rehears from scratch. En banc hearings are rare — the 9th Circuit gets about 1,500 requests per year and hears 15 to 25. One possible factor: the three-judge panel's majority had relied heavily on a factual claim that 115 Federal Protective Service officers — nearly 25% of all FPS officers nationwide — had been redeployed to Portland due to protest activity. The dissent had flagged this language as "squirrely." Discovery produced to the plaintiffs showed the actual highest FPS presence in Portland was 31 officers, and only briefly in July. The plaintiffs provided this information to the Ninth Circuit as it deliberated over the en banc petition. Bryan: "Did this factor in? Who knows, but it may have." Meanwhile, the district court trial opened on October 29 — a three-day proceeding combining the preliminary injunction and merits phases under Rule 65(a)(2). Result: multiple simultaneous tracks — en banc at the 9th Circuit, district court trial, and a pending SCOTUS stay application from the parallel Illinois case.

Ninth Circuit en banc procedureen banc grant and automatic panel decision vacaturFPS officer count as factual predicateRule 65(a)(2) combining PI and trial on meritsSCOTUS stay pending Seventh Circuit decision

Constitutional question: The en banc grant signals that the full Ninth Circuit bench viewed the panel's constitutional and statutory analysis as erroneous or at least insufficiently rigorous. The vacatur of the panel decision means the president's federalization/deployment authority is again legally contested, with no circuit-level precedent supporting it. The district court trial adds a full evidentiary record on both questions the TRO only addressed preliminarily: the constitutional authority and the factual predicate. If the factual predicate is found false on a full trial record, the constitutional question (who has authority to deploy) may not need to be reached.

CHC v. Noem 25-cv-12173 · 1:25-cv-12173

Gregory Bovino appeared before Judge Ellis Tuesday. By all accounts he was direct and not combative. The judge was not gentle. She tore into him about children on their way to a Halloween parade being tear-gassed on Saturday. She reminded him he swore an oath to the Constitution, not just the executive branch. And starting now: every weekday at 6 PM, Bovino appears in her chambers to report on the day. Bryan: "Judge Ellis does not play. I've been pretty impressed with her."

CBP Commander Gregory Bovino appeared before Judge Sarah Ellis in CHC v. Noem on October 28. Bryan had wanted to be in the courtroom but reported from secondhand accounts. The tone from observers: Bovino was direct, answered questions, and was not combative or rude. Judge Ellis was not similarly gentle. She focused heavily on the Saturday incident — children on their way to a Halloween parade in Old Irving Park were tear-gassed. She reminded Bovino of his comment that he "takes orders from the executive branch" and told him he had also sworn an oath to support and defend and uphold the Constitution, and that she was there to make sure he and his agents acted consistently with that obligation. She walked through the TRO line by line with him. Practical outcomes from the hearing: (1) They worked out identification placement that would be visible on camera regardless of different uniform configurations; (2) Body cameras — Bovino confirmed all approximately 200 CBP officers in Chicago are capable of wearing body cameras but not all were wearing them, including Bovino himself. Ellis ordered that by Friday, everyone under his command, including Bovino, would be wearing and activating body cameras; (3) New accountability mechanism: every weekday at 6 PM from now on, Commander Bovino must appear in Judge Ellis's chambers to report on the day's activities; (4) By Friday, Bovino must produce a list of every person arrested for non-immigration reasons since the Chicago deployment began on September 2nd.

TRO compliance enforcementbody camera orderdaily reporting requirement as structural remedycontempt exposure for future violations

Constitutional question: The hearing operationalized the constitutional accountability principle the TRO was designed to enforce: First Amendment rights require not just prohibition of violations but a mechanism to prevent and document future ones. Judge Ellis's "oath to the Constitution, not just the executive branch" framing directly addresses the constitutional structure Bovino's earlier statement had implicitly contested. The body camera and daily reporting requirements are not punitive — they are structural remedies ensuring ongoing compliance. The arrest list requirement addresses the transparency dimension: the public and the court have a constitutional interest in knowing who was detained under federal authority and on what grounds.

US v. Stewart 25-mj-00225 · 25-mj-00225

Kevante Stewart was sitting in his car in DC, legally smoking marijuana. ATF agents harassed and arrested him, charged him with fleeing and throwing away a weapon. The federal grand jury said no. Jeanine Pirro shopped the case to a DC Superior Court grand jury — different pool, different rules — and got her indictment. The magistrate judge dismissed it: Pirro's office has "no credibility left." Bryan attended the argument before Chief Judge Boasberg on whether federal courts can accept DC Superior Court grand jury indictments at all. A 1970 law, a 1986 jury pool split, and the limits of creative grand jury shopping.

US v. Stewart (25-mj-00225) involves Kevante Stewart, who was sitting in his car in Washington DC smoking marijuana — legal in DC — when ATF agents, part of the expanded federal presence in the city, approached, harassed, and arrested him. He was charged with fleeing and throwing away a weapon. The federal grand jury declined to indict. Rather than accept the refusal, Jeanine Pirro's US Attorney's office shopped the case to a DC Superior Court grand jury (DC Superior Court being DC's local court system, analogous to but not exactly a state court) and obtained an indictment. Pirro's office then brought that DC Superior Court grand jury indictment to a federal magistrate judge. Magistrate Judge Faruqui — himself a former federal prosecutor of 12 years and big law litigator — dismissed the case. His language: leaders of Pirro's office "have tarnished its reputation and are routinely bringing cases that don't belong in federal court." Quote: "It's not fair to say they're losing credibility. They're way past that now. There's no credibility left." Bryan attended arguments before Chief Judge Boasberg on the core legal question: does DC law allow a DC Superior Court grand jury to return indictments that would otherwise be federal cases? The statute at issue: DC Code 11-1916 (written in 1970), which states a DC grand jury "may take cognizance of all matters brought before it, regardless of whether an indictment is returnable in federal or DC court." Problem: in 1970, DC federal and DC local courts shared a single jury pool. In 1986, they split. The question: does the 1970 statute still authorize DC Superior Court grand juries to indict on federal matters? Or was it only meant to allow the shared 1970 pool to handle either court's matters? Both sides agreed that shopping a case to multiple grand juries in the same court is technically legal; they disagreed on whether this cross-court shopping is different. A secondary issue: can a magistrate judge (a lower-tier judicial officer) even refuse to hear a case at all? Government didn't concede the point, preserving it for appeal.

Grand jury independencegrand jury shoppingDC Code 11-1916 (1970 statute, 1986 split)federal vs. DC Superior Court jurisdictionmagistrate judge authority to dismiss

Constitutional question: The grand jury's independence function — the constitutional purpose Bryan repeatedly invoked in Bigelow and Reid — is directly at stake. The Fifth Amendment envisions the grand jury as a check on prosecutorial overreach; if prosecutors can simply shop for a willing grand jury pool when one refuses, the check is illusory. Bryan: interpreting DC grand jury statutes "in favor of government overreach they're designed to prevent does seem to press up against some constitutional issues." Judge Faruqui's credibility finding adds a practical constitutional dimension: when a court on the record states an office has no remaining credibility, future prosecutions from that office face heightened skepticism at every stage of the process — which is precisely the accountability signal the constitutional system relies on judges to send.

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