Lawfare Daily: The Trials of the Trump Administration, April 10

[Intro]

Benjamin Wittes: It is Friday, April 10th, 2026. It is 4:00 pm in Washington, D.C. and you are watching Lawfare Live.

[Main Episode]

I'm Benjamin Wittes, editor-in-chief of Lawfare, and I am here with three Lawfare senior editors, Roger Parloff, Eric Columbus, and Molly Roberts. And we have got a bevy of cases to go over this week on The Tribulations and Trials of the Trump Administration.

And we're gonna start with the always affable Judge Friedman, judge—Senior Judge Paul Friedman, who can make a scathing opinion feel like a friendly lunch over drinks. Molly Roberts, he wrote a long opinion saying that the government was not complying with his order. Was he as affable in the opinion as he was at the hearing?

Molly Roberts: No, I wouldn't say so. I mean, when you read it, you know, you don't have the benefit of observing his countenance, so you only have the words. And I think anyone would read into these words less affability than affability with which he might actually deliver it if he were, you know, reading it from the bench or something.

But he didn't, he just wrote it. So not quite as cheery, which is no surprise 'cause of what happened, which was the government trying to give him the runaround.

Benjamin Wittes: Alright, so what for those who didn't hear Lawfare Live: Trials and Tribulations of the Trump Administration last week: What did he do last week?

What did he order and I guess it was two weeks ago, what did he order and what did he now find that the government did not comply with?

Molly Roberts: Yes. If I recall correctly, we discussed it two weeks ago when the motions had been filed and then the hearing was last week. And I think we didn't discuss it. We were awaiting the order and thought it would be imminent.

And now here it is. So the background here is that the New York Times sued to, again, against the Pentagon's, changes to its press policy. The Pentagon had revoked the press credentials of New York Times reporters and many other reporters because they wouldn't sign on to a policy that they found unduly restrictive.

And Judge Friedman agreed with them and ordered the Pentagon to vacate many of the provisions of the policy, all the challenge provisions of the policy, and to reinstate the press credentials for the New York Times reporters, the press credentials are called PFAC, so that's what he said to do. And then the Defense Department turned around and it issued an interim policy.

Judge Friedman uses quotes around interim, in his opinion too, that prompted the New York Times to quickly make a motion to compel compliance, arguing that the interim policy defied the court's order in both letter and spirit. So that's what the hearing was about. The judge, Judge Friedman, this week agreed with the New York Times and said, that's right. This did circumvent the order.

He said, well, he started the opinion by quoting the First Amendment in full. And then he quoted Justice Hugo Black in the Pentagon Papers case saying that the, in the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in democracy. It's supposed to serve the governor, not the governors.

And then he quoted a more recent Supreme Court decision, and he said that the First Amendment is no word game. And really what he's implying there is that the government tried to play a word game with him here and with the New York Times here, and it lost.

So what happened in the hearing and what the opinion focuses on is what was at the core of this new policy, which was a change from a prohibition on the solicitation of information unauthorized to be disclosed to a prohibition on intentional inducement of unauthorized disclosure. And then right, which also was defined very circular, circularly as something like intentionally inducing unauthorized disclosure.

And Judge Friedman sort of said, this might even be worse than solicitation. You're essentially telling journalists they can't ask for information that they're not supposed to have, even if that's unclassified information, and there was a bunch of debate about whether adding a—requirement to that made it any better.

He determined it didn't in any case. The other big change was that the Pentagon closed the correspondence corridor, which is the designated space in which reporters had been working at the Pentagon for, I don't even know how long now, and claiming that they were creating an improved workspace with better Wi-Fi in an annex that would be created at some unspecified time in the future.

And then how all this worked out in practice, the closing down of the correspondence corridor requirement that reporters be escorted was very kind of odd and sloppy and created what the judge characterized as Kafka-esque situations where the reporters had to go on a shuttle bus, but they didn't have the credential to go on the shuttle bus or they were supposed to get an escort to meet them in the visitor's center.

And then the escort showed up and said, you can only enter through the corridor, but their corridor isn't attached to the visitor's center. Just all this bizarre stuff. And then the Department of Defense would just say, oh, it's 'cause the person wasn't appropriately briefed on how the interim policy actually works.

Anyway, the upshot the government had said, well, this is a new policy. We're allowed to do that. If the New York Times has a problem with that policy, they can go ahead and they can challenge it in the same way they challenged the initial one, they can start over. And Judge Friedman said that's true, except in this case, the Defense Department didn't really take a new action.

The revised policy was just, as a spokesman for the Defense Department himself said, using more words to say the same thing. The intentional inducement standard had the same, if not worse problems than the solicitation standard, as far as discriminating against editorial viewpoint went. Viewpoint in question here being a desire to publish not only stories that are favorable to or spoon-fed by the administration.

And closing the correspondence corridor was a circumvention of the court's order because instead of restoring the New York Times' access to the Pentagon, the government cut off all credential holders’ meaningful access to the Pentagon.

And so he hadn't the opinion with a quote from one of the, he said dozens of letters and postcards that he's received from people across the country related to the case saying, “A free press is essential to the success of our democratic republic. The people are the government and they cannot make good, well-informed choices without all the facts.

A free press is an excellent place to start.”

Benjamin Wittes: Well, I will just say that I suspect not all of the postcards and notes that Judge Friedman received were as pleasant as that one, and that he may be painting with slightly rose-colored glasses, the temperamental quality of some of the mail that he's been getting.

But that's just a guess. How, what has the government had to say about this? Is it planning an appeal? And, I have, and, or is it planning any emergency action to the D.C. Circuit? What do we know about what they're up to?

Molly Roberts: To my knowledge, they've filed a notice of appeal, and that's the extent of the information I have, although I know Roger has been following it too.

So if I missed anything, Roger, you can tell me.

Roger Parloff: That's all I've seen so far.

Benjamin Wittes: One last question. As I begin to think about how we are going to expand our tracking of government violations of court orders beyond the habeas context. One question I have is how squarely does Judge Friedman hold or find that the government is in breach of his order?

Molly Roberts: That's a good question. He found that they weren't complying with the order, so would,

Benjamin Wittes: That kind of answers the question.

Molly Roberts: All ight. Well, there you go,

Benjamin Wittes: Molly. We're gonna go all the way here from the New York Times to the Washington Post. You are in my alma mater. They also had a case in, involving free press.

It's a little bit more Fourth Amendment than restriction-on-access-y, but there was a hearing in the Hannah Natanson matter. What's up with that and what's going on?

Molly Roberts: Yeah, so a hearing and a status conference back to back, which was fun for all of us. We got to go to two floors of the courtroom, so the hearing was before U.S. District Judge Anthony Trenga.

What happened in this case is that the parties battled a month or two ago over who should conduct the search of Hannah Natanson, that's the reporter's devices, the Washington Post and Hannah Natanson, or the government. Magistrate Judge William Porter ruled that neither would he, would do the search, and you might've thought that the government would be happy with that outcome.

The Post and Hannah Natanson were fine with the outcome and actually Judge Trenga suggested as much he said. I might've thought you'd have been happy with that, but instead the government is back in court arguing that it should have the authority to do the search itself to look for information relevant to its investigation of the military contractor whose prosecution for leaking classified information to Hannah Natanson created this situation to begin with the government was arguing.

Was that executing a search warrant is a core function of the executive branch, and that reporters don't have any special privilege that should override that. And the Post countered essentially by saying the search, it's unprecedented. And it's a prior restraint on Hannah Natanson’s reporting, which is basically how the paper's trying to overcome the reality that yes, special protections for the press in this regard are few and far between.

And so the Post was saying, because it's a prior restraint, the government shouldn't have permission to rummage through Hannah Natanson’s entire professional universe kind of unrestricted by anything. So a lot of the hearing focused on that question of prior restraint. Does the search prevent her from doing her job as a journalist?

Well, the government has her electronic devices because a lot of her sources are on there and notes. Or must the government be more directly preventing her from publishing for its actions to qualify as a prior restraint?

Then the other substantive issue that the hearing primarily focused on was the Privacy Protection Act, which was the subject of a little drama in the initial hearing with the magistrate judge, because it turned out the government hadn't made mention of that statute, which confers some protections from searches on reporters in its application for the warrant.

In yesterday, the parties went back and forth over what exactly the Privacy Protection Act requires. The question was, does it require that the government have probable cause that a reporter herself committed a crime to which the materials that search and relate in order to search those materials, and the government had kind of a convoluted argument about contraband and fruits of the crime and how that was in the definition the doc, the definition of documentary materials didn't include that.

And because the definition of documentary materials didn't include that if the government was looking for contraband or fruits of a crime, then it didn't need to suspect, didn't need to have probable cause that the reporter herself had committed the crime.

Judge Trenga seemed very skeptical of that. He basically said, that's not how I read the statute. And then when the lawyer for the Post said how he read the statute, Judge Trenga said, that was my reading too. So it seems like he's going to affirm the magistrate judge's order, which is already a compromise, really.

And then after that, everyone shuffled downstairs to a separate courtroom where the magistrate judge said that he was going to keep doing his search, quote unquote, until someone tells me to stop that, that's his job, rejecting the government's request, that he not begin his search until Judge Trenga rules.

And the rest of that was just about kind of the terms of that search. What would it look like? Where would he do it from? What are the filtered terms, search terms he could use, how broad should they be? Who should weigh in on those? All of that, you know, add sensitivities to classified information. How quickly should clearances start getting processed? That kind of thing.

Benjamin Wittes: Alright, so where do you think we are headed with this? I mean, leaving aside, I'm not gonna ask you to, but like what are we waiting for at this stage?

Molly Roberts: Yeah, so we are waiting, well, if you're the government, what you're waiting and hoping for is for Judge Trenga to say, oh actually the government can do this search.

But again, I don't think that's going to happen. Otherwise, what we're waiting for is for the magistrate judge to begin his search and it seems like he's trying to get that moving as quickly as possible. You know, he kept reminding everybody what this really is about is this separate investigation, separate proceedings in Maryland for this military contractor.

That's who the government is trying to bring to justice and we need to get this search done to get that moving. So that's what we're waiting for. And then we're waiting for, if they, if the magistrate judge does that, he finds the responsive materials, then he figures out, okay, can we return Hannah Natanson’s devices to her or can we not return the devices because it's impossible to do that without risking more classified information getting to her? So that's kind of the question.

And if they can't return the devices themselves, can they return some information to her? Part of the problem is if you don't return the device, you don't return the Signal account.

So that's what we're trying to learn.

Benjamin Wittes: Okay. All of which brings us to Eagle Ed Martin. I'm not sure how, but you know, all things in the second Trump administration eventually make their way to Ed Martin if only because he makes sure they do.

Eric, the last we checked in with Ed Martin, he has a disciplinary proceeding before the D.C. bar. This week, we saw a fair bit of activity on his part to try to interfere with those bar disciplinary proceedings or the past week. Now he seems to be taking a different approach.

So bring us up to speed. Remind us what he had been doing, which seemed to involve a lot of ex parte contacts with the relevant courts and what he is doing now.

Eric Columbus: Sure. So, Ed Martin was the U.S. attorney, the acting U.S. attorney briefly for the District of Columbia. And he was also the chair of the Weaponization Task Force at DOJ. And I'm, he also was and remains somehow the pardon attorney. And this bar complaint arises out of his actions as U.S. U.S.—acting U.S. attorney.

He sent a letter to the dean of Georgetown Law School inquiring as to his DEI policies and suggesting that they were unconstitutional, unlawful, generally bad, and said that he would not hire anyone from Georgetown Law School until this was addressed. And he asked various questions about it.

He was hit with a bar complaint for that, actually a complaint filed by a former local judge in California, who I believe is a member of the D.C. Bar and who was a graduate of Georgetown Law School. And he—

Benjamin Wittes: And who badly wants to work for the pardon attorney's office,

Eric Columbus: I'm sure he does.

And he sent in, response to that, instead of the bar complaint, instead of doing kind of the normal things that one would do in response to a bar complaint, I'm not quite sure they would what they, where those would be. But he basically sent a letter back to the Office of Disciplinary Counsel saying, Hey I'm not gonna play ball with you and.

Then I think copied the judges who supervised that office, the judges of the D.C. Court of Appeals, and basically kept writing them after being told to refrain. And he was then hit with an additional charge for when the eventual complaint was released when the Office of Disciplinary Counsel filed formal charges against ed.

There was the original charge that was filed in the, by the retired judge in California, or that was investigated in response to the allegations by the judge in California. And then a second charge of basically trying to tamper with the proceedings, those, that's not the exact words, by trying to harass the D.C. Court of Appeals.

And it seems they have him dead to rights on the second one. He might have an argument that making just kind of, very strange arguments in an investigatory letter does not, strictly speaking, qualify as a violation of bar rules, but he ensured that by his subsequent actions that they would come down on him.

So, last week he filed a notice of removal trying to get the case out, trying to get the disciplinary proceedings out of district, out of I guess superior court is what it's called in D.C. into federal court in in also in D.C.

Benjamin Wittes: Now, can I pause you right there and just ask, normally when a case is removed to federal court, if I understand, if I remember the procedural posture right, you move the court, you petition for removal, but that the removal is not done by you, it's done by the court or the federal court removes the case from the set from the district court.

This was sort of styled as I am removing my case.

I think that's, was I the, was I the only one who read that as somewhat odd?

Eric Columbus: I can't speak for everyone, but I do think that's kind of normal. I think one does actually file a notice of removal—

Benjamin Wittes: Really?

Eric Columbus: which then trans, may put the burden on the other party to move to remand the case.

Benjamin Wittes: I see.

Eric Columbus: It's it doesn't change the burden of proof. It just is the burden of who files what, when.

Benjamin Wittes: Okay.

Eric Columbus: And the court does not have to do anything until the a, a motion to remand is filed and briefed.

Benjamin Wittes: Okay.

Eric Columbus: So,

Benjamin Wittes: Act though I had not interjected the question that took us in the direction of merely correcting my ignorance.

Eric Columbus: So we have found something that Ed Martin did correctly however,

Benjamin Wittes: 12 o'clock twice a day.

Eric Columbus: Now one might wonder, or at least I wondered, like, is this the type of thing that you can remove to federal court? But it's not really like a case in some sense. It's a disc proceeding and it turns out that Jeffrey Clark who folks may remember from season one, tried to do the same thing in 2023 when the Office of Disciplinary Counsel in D.C. commenced the disciplinary proceeding against him, and he tried to remove it to federal court and the court said no or technically he removed it to district court.

And then the office of account, remanded, Office of Disciplinary Counsel moved to remand. And the district court, federal district court granted that motion because the federal removal statutes they're, and they're, there are actually kind of two of them that are relevant and one that applies in all cases and one that applies specifically when a federal officer is a defendant applied at most to civil cases and criminal prosecutions.

And the district court concluded that whatever this disciplinary proceeding is, it's not a civil action and it's not a, and it's obviously not a criminal prosecution and it's a gap there. But if Congress, it's for Congress to address that gap if it wants to.

So I presume that will be the same outcome will result here. But the interesting thing to me, the most interesting thing about the, what Ed Martin filed was that he includes kind of like a history, includes somewhat unnecessarily of the purposes of the filing, a history of how this case came about.

And it reveals that he was actually purporting to investigate the Office of Disciplinary Counsel before they turned around and said they were investigating him. And the timing was fairly tight. It was like a month or two between he sent them a letter saying, you know, I am, I'm concerned about your, how you are opening your investigations. It seems that you are targeting certain individuals from broad discipline and that may be ideologically motivated. Now, one might wonder what this has to do, even if true with any violations of federal law. But that's a question that one could be asked about many Ed Martin investigations, including—

Benjamin Wittes: There's a bit of a pot calling the kettle black issue here.

Eric Columbus: Yes, indeed.

Benjamin Wittes: I'm shocked. You know, I'm shocked to see that you, the D.C. Bar Disciplinary Committee may be targeting people with political motivations. Yeah, trust me. And was the guy who showed up in a trench coat at Letitia James's House,

Eric Columbus: Just saying, well, you know, you know the trench, you know the reason for that trench coat.

Benjamin Wittes: Because it was August. He was cold,

Eric Columbus: Was his father as an actor—who's who like his father? This seems like thing that you would know Roger was his father on Columbo, or is

Roger Parloff: I actually don't know. I do think it is a Columbo reference, but I don't know why.

Eric Columbus: I think it's some type of homage to his father.

I don't precisely know. But anyway, so, so that was, I think the most newsworthy element of this this notice of removal by Ed Martin, which also,

Benjamin Wittes: Well, I will also just say about Ed Martin since he's transgressing every other norm of behavior of a Justice Department official.

Mr. Martin, if you want to come on Trials and Tribulations of the Trump Administration on Lawfare Live to discuss your bar disciplinary case. You have a standing invitation. Get in touch. We will have you on to talk through removal, ex parte contacts, the propriety of the letter to Georgetown. And we are a very gentlemanly and gracious crowd here. And we will give you fair opportunities to answer all questions. So come, it's an open invitation. Anytime you wanna come join us, we would be, a pleasure to have you.

Alright, speaking of the politicization of the Justice Department, here's a name you guys haven't heard in a while: Cassidy Hutchinson, star witness of the January 6th committee. Former chief of staff aide to camp to Mark Meadows, dream job outta college. And now the subject of a criminal investigation I'm sure just on the merits of her conduct. Roger, we don't know a whole lot about this investigation, but we do—

The New York Times did report that it was taking place. Seems pretty bad to me. What do we know?

Roger Parloff: Yeah, this is one of the, one of the worst ones we've heard about. This is sort of up there with Jerome Powell.

Benjamin Wittes: Except that Cassidy Hutchinson, unlike Jerome Powell, does not have the might of the Fed behind her.

Roger Parloff: That's right. She's,

Benjamin Wittes: She's just like an individual out there like,

Roger Parloff: Yeah,

Benjamin Wittes: It’s bad.

Roger Parloff: Yeah. She was like, I think she was about 24 at the time of the incident, the events. And of course, now she's been ostracized from her world there. And yeah, the, and we know the only thing that has ever been, that she's ever been accused of is recounting, to what she remembers of a conversation between two other people who are not very credible.

And the truth of what the other people said is now in doubt. And those other people were Tony Ornato and I think Robert Engel. And, you know, and this was the conversation where that left her with the impression about what happened in the car on January 6th after the speech at the Ellipse when Trump wanted to drive, wanted the driver to drive to the Capitol, which is true.

And there was some sort of altercation or a very vehement disagreement, which is true. And what may not be true is that Trump ever touched the steering wheel.

Benjamin Wittes: Right. She reported that Tony Ornato told her that he lunged at the steering wheel, and that may not be true, either because it didn't happen or because Tony Ornato miscommunicated with her, or because she misunderstood.

There's, I've never thought there was a reason to think she was lying as opposed to—

Roger Parloff: No speck. No speck of a reason. The other thing is,

Benjamin Wittes: As opposed to, she may have been wrong on the detail.

Roger Parloff: Yeah. And she also said,

Benjamin Wittes: —retrospectively not being truthful about the detail.

Roger Parloff: Yeah. She also said he, that Trump, and then she gestured with her hands and said something like, went for somebody's clavicle, I can't remember. It wasn't the driver I think it was but Tony Ornato’s or something like this. And so, you know, it could be that one of them exaggerated. It could have be, been, she didn't understand. She was absolutely clear that all of this was second and third hand—

Benjamin Wittes: Right.

Roger Parloff: Hearsay. It's totally inconceivable there's anything criminal. It is. But she, you know, has become important in the civil case. If those cases ever go, the civil cases, January 6th cases against Trump, if those ever get to trial, and I, you know, I don't think they will.

But one of the key questions is whether the Ellipse speech could have incited violence or whether everything that happened was protected by the First Amendment and some of the things that she observed, like the bit with the magnetometers, Trump saying, ‘get rid of the effing mags.’ And, you know, the about the crowd with guns with weapons, ‘they're not trying to hurt me.’

All of that is relevant to whether the words he said in that context could have been, could have amounted to incitement overcoming first memory. So, maybe they're harassing her for that reason.

Benjamin Wittes: I will just say that everybody talks about the Comey and Letitia James cases, and the LaMonica McIver case, and the Abrego Garcia case.

You do not need to indict somebody to ruin their life and.

Roger Parloff: Oh, I'm sorry.

Benjamin Wittes: Sorry. Go ahead, Roger.

Roger Parloff: One other thing I did wanna say this this story in the Times, which is our basis for believing that she's under investigation, was by Alan Feuer and Mike Schmidt. And the other interesting thing about it is it said that Harmeet Dhillon was leading this was with the Civil Rights Division, not Jeanine Pirro.

So, and it would be extremely hard to imagine, I mean, the presumptive, if you're trying to concoct a crime, you would try to make, you know, lying to Congress or a false statement to Congress. I, how it becomes a civil rights crime, I don't know.

Benjamin Wittes: Right? Look. You do not need to indict somebody to ruin their life, particularly if it's somebody who is not of particular means.

You know, Cassidy Hutchinson, unlike Jim Comey, and unlike Letitia James, is at the start of her career, unlike—Jerome Powell does not have the might of the Federal Reserve. Remember that subpoena did not go to Jerome Powell, it went to the Fed. So he, Jerome Powell is not personally responsible for defending that case, right? That's a Fed case.

But this is Cassidy Hutchinson. I hope she has very good counsel. I hope it is pro bono counsel. But this is the kind of thing that can eat up an enormous amount of time and money. And by the way, I don't know who hires people who are known to be under federal criminal investigation in the Republican waters in which she swims.

And so this is a targeted strike at her future and an effort to make sure that this eats up the next four years of her life, as well as the last four years of her life. It's a scummy, scummy game, and it is exactly if you read Nino Scalia's dissent in Morrison, what he was invoking the famous speech by Justice Jackson, the 1940 speech to the U.S. attorneys about the abuse of the prosecutorial function.

He actually talks about how you don't even need to indict somebody to destroy them. And so I, I will not do a ceremonial reading of the relevant passages of the Morrison v. Olson dissent, but I do refer you to them. It's and just change the name “Ted Olson” to the name “Cassidy Hutchinson.”

Change the valence of that to the Ed Martins of the world, rather than the Alexia Morrisons of the world, who were at least was an honorable figure. And the Harmeet Dhillons. All right. Speaking. Sorry. Go ahead, Roger.

Roger Parloff: I think she had been being represented. I think pro bono for a long time.

I don't know if this is still true by Jody Hunt of

Benjamin Wittes: Yes.

Roger Parloff: Alston & Bird and let's give them credit for helping her out. 'cause if you remember, it was her lack of ability to hire somebody that led her to Passantino before then,

Benjamin Wittes: Right, no, she is somebody who has been mistreated by a lot of different actors at a lot of different junctures.

I don't know Cassidy Hutchinson. I'm not, I have no, you know, I'm not, this is not a plug for a friend or anything. I've never met her. She has been mistreated by a lot of different people at a, including some who frankly had fiduciary obligations to her. And I, it is just disgusting that she cannot get on with her life right now,

Roger Parloff: And let's be, I'm not accusing Passantino of anything right here because—

Benjamin Wittes: No, I'm not either. I'm just saying. I'm—

Roger Parloff: Yeah,

Benjamin Wittes: I'm saying that, well, let me be blunt about it. I am accusing Mark Meadows of not behaving appropriately. I am accusing Donald Trump of not behaving right.

I mean, this is a woman who saw shocking things and came forward with no support from anybody to talk about them. And deserves a lot of credit as a moral actor. And has been, was not—well, let me say at a minimum about Mr. Passantino did not represent her well, at least did not, she did not feel well-represented by him.

And so, I think this is, but none of that is relevant to this. The relevant question is there is no basis to be investigating her criminally, and the Justice Department has no business going after somebody because they, their testimony displeased the president. That is a, that is exactly what we are not supposed to be doing.

Speaking of Letitia James and Jim Comey, I take it that briefing is finished in their Fourth Circuit cases?

Roger Parloff: I think so, I don't believe there's a oral argument set yet, and I think it tracks the issues that we've discussed before about,

Benjamin Wittes: Yeah, I've looked at the brief only briefly, but it seems like it's very much a rehash of the discussion at the lower court about the integrity of the lawfulness of Lindsey Halligan’s appointment.

I, how do you game out? I mean, I suppose there are Fourth Circuit panels that might take a different view than the district court, but I find it hard to believe that this district court opinion is vulnerable at the Fourth Circuit. Is do you disagree?

Roger Parloff: I don't think so, but I don't think it.

I think some of these issues are not well established, you know, and some of the other cases with unlawful appointments were more bizarre, more Rube Goldberg in nature. And so, and most of the others really involve the Federal Vacancies Reform Act, primarily.

And this one primarily involves 546 and some sort of permutations that are difficult to, for me to say that with clarity how they're supposed to come out.

Benjamin Wittes: Alright. We will keep an eye on that and should be an interesting oral argument. Let's talk about Anthropic, which is at the appeals court across the river, which is to say across the river from the Fourth Circuit, in the D.C. Circuit.

D.C. Circuit issued a weird kind of document the other night, not granting Anthropic the stay, but also not, but also expediting the case and explicitly deferring any consideration of the merits. Usually when you have a stay request, the court says, what's the likelihood of success on the merits? But here they're like, the merits are complicated. We're not touching that.

Roger Parloff: Yeah.

Benjamin Wittes: Anthropic doesn't prevail on the other balancing of the equities kind of stuff. So I looked at this and I said. Gee you know, this looks like a loss for Anthropic, but the court didn't touch the merits and they did expedite it. And so, while the headline's gonna be conservative panel Katsas, Rao, Henderson declined stay, and Todd Blanche is going to crow about it.

If I'm Anthropic’s lawyer, I look at this and I say, Huh, we have a very conservative panel that didn't lay a finger on us on the merits and expedited the case. It's kind of not bad.

So, I'm curious whether you share my sense that this is a little bit of a, like a, it's more silver lining than dark cloud for Anthropic.

Roger Parloff: I think it's a bit of an ominous cloud short term. I see what I mean, everything you've said, I, I agree with it, and it was a more conservative panel than we even expected it. The previous list when it was scheduled, it was Wilkins, Katsas, and Rao, and it ended up Henderson, Katsas and Rao.

That is,

Benjamin Wittes: Although the new—Henderson's got a woke streak. I mean, she's like, I used to think of her as a dinosaur, but now she keeps issuing these, like, you know, I'm sort of joking. But no, but she said she's actually shown more,

Roger Parloff: She's thrown some curve balls. Yeah.

Benjamin Wittes: She's really thrown some curve balls, including in the Trump immunity case. She was excellent.

Roger Parloff: Yeah. And yeah much,

Benjamin Wittes: Good at did her, but—

Roger Parloff: So I think you're right that this was, and it was not as bad as it could have been. It was not as bad in part because Anthropic had already won in order out in California. And to, you know, to, to remind you there are two different supply chain risk statutes.

And so there was the suit in California was to enjoin the designation under 10 U.S.C. 3252 and the one here has to be brought initially in the D.C. Circuit by statute. It's an unusual situation. And so that's the 41 U.S.C 4713. And in addition, the California one had also, what was really damaging to Anthropic were these tweets that announced that the supply chain risk designation by Hegseth and by Trump. Trump's purported to say all federal agencies had to stop instantly, which is not what either of those designations really do.

And in, and Hegseth’s purported to impose a secondary boycott to say nobody who uses Anthropic for anything can be a DOD contractor for anything. And so that has been enjoined and also—more than enjoined at the argument that DOD lawyer said no, we don't even, he didn't have any basis for ever saying that.

So with that out of the way, with the secondary boycott out of the way, with one injunction behind them, I think the enor—you know, the, somebody had called it something like a corporate death sentence or corporate murder. It, all of that dire stuff was out of the way. And now they really can wait at certainly as for, as long as a expedited briefing.

So there will be an argument. I think it's May 19th. There were some ominous things though. I mean, there was tremendous deference as you would expect to the military, to the national security judgment—granting a stay would force the U.S. military to prolong its dealings with an unwanted vendor of critical AI services in the middle of a significant ongoing military conflict.

Well, they said that, but remember that this, the government hasn't even sought an emergency and appeal in the California case. They filed a notice of appeal after seven leisurely days, and they still haven't sought any stay. So I think, you know, they think, well, we have a conservative panel. Let's win a victory in the D.C. Circuit before we worry about the Ninth Circuit, even though the Ninth Circuit is no longer a particularly liberal place.

But anyway, I think those are the things going on. There was, they also said, they asked, they mentioned some specific questions they want the lawyers to discuss. And one of those unfortunately, it throws me for a loop. They're asking about whether we have jurisdiction because the jurisdiction, the statute provides for review of quote, covered procurement actions and they want the people to adjust whether the government has engaged in those covered procurement actions.

And I don't really know why that is puzzling them. And I don't think the government even raised that in their initial opposition. So I don't know what's up their sleeve there. Anyway, that's a, that's that I found ominous.

Benjamin Wittes: Interesting. Alright. Let's turn to elections. Eric. We have a decision in Massachusetts coming in at a whopping 13 pages, rejecting the Justice Department's attempt to obtain voter records from the state of Massachusetts.

What's going on there and why is it important?

Eric Columbus: So, this is actually an issue that I wrote about for Lawfare last week. It's about DOJ trying to obtain unredacted state voter rolls from every state in the country. It's not entirely clear why they're doing this, but at the very least, it is part of the effort of the Department of Justice and the administration to aggrandize their control over federal, over federal elections to the extent that they can, and even to the extent that they cannot. And being able to find ways to cast doubt on the accuracy of the results. This is under a variety of federal voting laws, the Help America Vote Act and the National Voter Registration Act.

States are required to have uniform voter rolls. They're required to have some personal information about people that is regarded as sensitive, such as their driver's license number, or if they don't have that, the last four digits of their social security number. Some states have turned this over. The majority have not.

DOJ is currently in litigation against a whopping 29 states, plus the District of Columbia. And this is the, trying to obtain the state voter rolls. This is the fourth district court to have ruled on the issue, and DOJ is zero for four. DOJ is using Title III of the Civil Rights Act of 1960 as the basis for their right to these records. And that is an act that requires election officers to preserve all records and papers.

They come to their possession regarding voter registration among other things. And you may recall, listeners may recall that this is the act that Fulton County allegedly violated leading to the search warrant issued in that case to the FBI.

There's, it's a separate criminal provision for violating that a separate part of Title III of the 1960 Act says that you need to turn over the records to the, those such records, to the attorney general. If the attorney general, if she makes a demand in writing for production, that quote shall contain a statement of the basis and the purpose therefore.

And courts have ruled against DOJ on a variety of reasons in these four cases, the district judge in this Massachusetts case, I believe a, an Obama appointee said that honed in on that language that the demand, DOJ’s demand needs to contain a statement of the basis for it. And he said, look, you have not come up with a basis for suspecting any violation of any law by the state of Massachusetts.

And he noted that in some of the cases that they filed, they have pointed to various statistical anomalies in how many people have been struck from the roles because they moved or because they died, or this or that. Ways showing that some states are a lot less active than others in updating their voter rolls and, he said that basically it looks like a fishing expedition when you're, when you cannot point to any basis for any violation of the law and that the law requires more than that.

And DOJ’s counterargument is basically, no, it doesn't. We can do this for any reason we want, and the act allows us to do that without pointing to specific reasons. So it's interesting.

This will eventually go up and if they if DOJ, you know, cares about it there it's, I think literally never heard of it, the Department of Justice suing a majority of the states as at the same time on a single issue, it is unprecedented. And here it seems to be borderline frivolous in terms of the reasons for it.

But we'll see where it goes.

Benjamin Wittes: Down south in the Fourth Circuit, probably, 300, 400 miles south of the District of Massachusetts, the Fourth Circuit en banc has ruled about a different fishing expedition, which is DOGE folks rummaging around in Social Security Administration’s servers. This case has gotten relatively little press attention for an en banc Fourth Circuit opinion.

What is it and what did the Fourth Circuit do?

Eric Columbus: I think one of the reasons it has not gotten that much attention is that this is part of a set of cases where a district court issued an injunction. The Supreme Court—DOJ ran up basically immediately to the Supreme Court trying to get an injunction, a stay rather of that injunction. Supreme Court said, Yes, here's your stay. And then everyone basically forgot about the case, but these cases continue and they still percolate their way very slowly up the normal appellate process. So that's what, what has happened here.

This is, involves DOGE sharing, rather the Social Security Administration sharing sensitive personal information with DOGE

Benjamin Wittes: And if memory serves, with Big Balls himself. Right?

Eric Columbus: I, you know, I've tried to block out as much as possible about that man. So I, I don't recall which part of our precious data he has his hands around.

Benjamin Wittes: Just a second. 'cause I think we should take every opportunity on Lawfare Live to remind people that Donald Trump and Elon Musk brought in a guy who named himself Big Balls to handle all your data and fire half of you.

I just think that's an important thing, not for us, not to forget in this you know, ecosystem of information. So I just thought I would we should check on it, but I do think Big Balls was involved in this.

Eric Columbus: I just finished the remaining matzah balls from my family's Passover, and they were rather large.

Benjamin Wittes: Excellent.

Eric Columbus: Just not sure why I said that, but

Benjamin Wittes: There you go. No. It was a good addition. Thank you. Keep it in, Jen.

Eric Columbus: So, he so yes, the, so again, the Supreme Court granted—the district court originally granted injunction, the Supreme Court said no. Stay the injunction, stay the preliminary injunction.

And then it percolated up back up to the Fourth Circuit, which I believe it decided to hear sua sponte en banc. And it had decided, hear sua sponte en banc before the Supreme Court kind of snatched it away and, but it's it was, it is back now. And 15 judges in the en banc, on this en banc, and they split into kind of three camps here.

The bottom line is that the Fourth Circuit vacated the preliminary injunction, as one might expect given what the Supreme Court did. But there were, there was one camp here. So let's just the few issues, a few issues in the case are whether plaintiffs have standing here, plaintiffs are a federal, a union of federal workers—sorry, the American Federation of State County Municipal Employees, something called the Alliance for Retired Americans, and the American Federation of Teachers.

One question is whether they standing, another question is the extent to which the Supreme Court’s has any, whether the Supreme Court’s stay, basically just takes care of the entire issue at all completely, regarding the preliminary injunction. And then third, whether they're entitled to preliminary injunction at all, even if they do have standing.

The first, the plurality holding in the, in, in the middle, if you will, is that there is standing because of, it's a kind of interesting issue.

The question is, did—the allegations are not that DOGE got the information, got this information, then did horrible things with it, or disclosed it or even used it to do anything. It's just that this information was supposed to be private. It's supposed to belong only to Social Security, and they gave it away to, they share it with someone else.

The majority of nine judges said that there is standing, because this is analogous to something called a common law, toward of what's called intrusion upon seclusion, which is basically when someone gets access to your private information such as if someone kind of grabs your wallet and is like looking through it or is looking through your personal papers, you don't have to prove that they are doing anything wrong with it in order for there, it to be a tort.

And so, by analogy, the majority said that there is standing. The dissenters on this issue, the judges who dissent on this issue said, you need to have a little more than that this is, that would basically give standing to anyone. In the absence of any showing that it is a targeted intrusion it's, it can't be analogized to someone looking through your wallet because here DOGE, in essence, obtain the equivalent of 300 million wallets, and it is not comparable to the harm that one, the injury that one suffers when a person has specifically—

Benjamin Wittes: Targeted your wallet.

Eric Columbus: Targeted your wallet.

Benjamin Wittes: Well, the majority, the minority here clearly does not understand what happens when you use Chat GPT to vibe, code a cyber-attack, having somebody's SSA information, and then you can do it at scale against all the people whose wallets you've stolen at once.

So I, I actually think that argument was, like, way better 20 years ago than it is today. 'cause now it's really like you walked off with a hall of wallets and you're, you can go after everybody in the wallet in a targeted fashion, everybody whose wallet you got in a targeted fashion.

Eric Columbus: Yeah. Then there's the issue of whether or not the Supreme Court's decision basically ends the case. And whether it's by the Supreme Court, staying the injunction.

And the six judges say, yes, it ends it. And nine say yeah—six say no, definitely doesn't. And three says, well, it's not entirely clear. And, but, there's some weight to that, that the Supreme Court's, that they need to give the Supreme Court's order, even though it's not dispositive.

Then there's another issue about the extent, but what the relevant record is in the case because after the district court issued its opinion, DOJ came in to say, as Supreme Court ruled, the DOJ came in to say we led you astray. We were given bad information. It turns out that, DOGE had much more access than we represented to the court, that DOGE’s work was broader. And the center said we need to be able to look at this. The, and the centers also noted, they didn't figure rely on it, but they also noted that there have been reports in the press about how one of the DOGE people has made off with the Social Security death master file.

And, but the majority of the court said, no, we can't deal with that at all. And the final issue is the extent to which a preliminary injunction is appropriate at, at all where monetary damages can suffice and where a file injunction at the end of the case would suffice. Again, that was split at nine-six.

And on that basis, the preliminary injunction was vacated.

Benjamin Wittes: Alright, thank you. Roger, let's talk about the era of building monuments to ourselves, about which we've had at least three developments this week. Can we get a Trump ballroom update?

Roger Parloff: Yeah. So when last we left you, Judge Leon had issued his exclamation mark-laden ruling stopping construction. And so ju—Trump went into court the same couple hours after that, he has moved.

Benjamin Wittes: He didn't waste any time on this one.

No. Like you can tell what he really cares about.

Roger Parloff: Yeah. This is not one of those trivial Anthropic things about—

Benjamin Wittes: A wheel.

Roger Parloff: Autonomous weapons, this is the real thing.

And so the, they asked for an emergency stay, and this is now fully briefed as of, I think yesterday. They government is saying that Leon's injunction gravely threatens national security. The upgrades are what we've been calling the ballroom are not cosmetic. They involve use of missile-resistant steel columns, beams, drone-proof roofing materials, and bullet, ballistic, and blast proof blast windows.

And they include installation of bomb shelters, hospital and medical facilities, protective partitionings, and top-secret military installations. Dot dot dot. These upgrades, dot dot dot, are essential to protecting the president, his family, and his staff, as well as the White House itself.

So, the panel is gonna be two to one Democratic appointees, and I've forgotten their names actually. Sorry, I think Garcia is one. I think Rao is one. I forget. I, and I forget who the other is. But I think we'll also get a ruling quickly. 'cause Leon's injunction, he put a 14-day stay himself on it. That will expire about April 14th, but I'm not sure if it's 14th or 15th the way these are counted.

So that's the situation there.

Benjamin Wittes: Alright, well we also, fortunately if Trump can't get the, that built, at least there's the Memorial Arch or as we call it, the Arch de Trump. Sorry. But that is also in litigation. What happened with that this week?

Roger Parloff: We got a kick the can down the road sort of consent decree.

This is in front of Judge Chutkan, the parties—and so, you know, it was at the preliminary injunction stage, but there wasn't much evidence about exactly how far along this project is. Does it—Is it that urgent? So the consent decree is that the National Park Service agrees that no construction will begin until it posts something on its website saying that they have now authorized a plan and for 14 days thereafter, no construction will begin.

So that will give the plaintiffs a chance to come back into court and try to raise these issues again and stop construction. I think the crucial issue there, and maybe in the ballroom case too, is gonna be standing, whether this purely aesthetic sort of damage is gonna be sufficient.

Benjamin Wittes: Excellent. And then of course we also have the Trump's effort to name rename the Kennedy Center, which by the way, I am also trying to rename the Kennedy Center.

I want it called the Wittes Center. And I don't understand why everyone's not calling it the Wittes Center right now, but Trump seems to be making more headway than I am with that effort. But that is also in litigation.

Roger Parloff: Yeah. And so, we're gonna, there's two things now. There's the naming and there's also the, turning it into a lifeless hulk, as the plaintiffs have put it, he, he is going to stop it altogether for at least two years, allegedly, to do reparations, remodeling. And so they're trying to stop this halt of all services for two years. And then, and there's gonna, that's a preliminary injunction motion, and we're gonna have a hearing on that April 28th.

The renaming, we're gonna, that's now at the summary judgment stage. And if there's going to be an argument on that. I don't know when that, I don't think that's been set yet. The crucial thing there is, you know, there's the statute talks about this. This is a living memorial to John Kennedy, President Kennedy, slain president.

And it says that you cannot have any other memorials in it or on it, or in public.

Benjamin Wittes: It's got like an almost First Commandment vibe. This is John Kennedy, is the Lord, your God. You shall have no other gods before him.

Roger Parloff: Yeah. And so what they're saying is, well, putting Trump's name above it is not a memorial.

I mean, he's alive. It can't be a memorial. Memorial—We think of memorials as being to dead people. He's alive. So, I don't know about that one, but I do think standing will be an, well, actually, here standing shouldn't be too bad either. It's 'cause it's a, an ex-officio trustee. So, I don't know.

I think that it may be sitting pretty on the renaming issue. I don't know about the logistics of ordering an entirely recalcitrant board to go forward with performances. I don't know how that's gonna work. So, as far as the pre, you know, preventing him from stopping all performances, I just think there's a logistical issue.

Benjamin Wittes: Alright. Let's do our immigration roundup.

So, Judge Brian Murphy in Boston has, while the Supreme Court is getting ready to rule on blocking—the lawfulness of blocking TPS for Syrians and Haitians, he has now thrown into the mix the lawfulness of blocking TPS for Ethiopians.

How is this case different, if it is different? Or is it simply additive of a different brown-skinned community to the list of additional ones that we're already working with?

Roger Parloff: It's, yeah, I think it's pretty additive. It, and it was you know, it's at the early stage, the emergency, it's not a injunction 'cause it's under the APA.

So it's a, called a postponement or a stay under Section 705. But he granted it based on arbitrary and capricious and other APA things. And like you say, we're April 29th, we're gonna have argument before the Supreme Court. That's the main event.

Benjamin Wittes: I, there's no reason to think right, that there's something about Ethiopia that's materially different.

Like, if you can do this, it seems to me the country that is really objectively and like there, there's a real question about whether TPS for Haitian, sorry for Syrians, given the change of government there, given the fact that Bashar Assad isn't, you know, murdering people en mass anymore, it seems to me the Syria question is a tricky one.

The Haiti question is much less tricky, at least morally, and it seems to me Ethiopia's somewhere in between, right. But the,

Roger Parloff: I think that's right.

Benjamin Wittes: The rubber hits, the rubber hits the road in a hard way here with respect to the Haitians, it seems to me.

Roger Parloff: Yeah, I think I, and I think Syria is the government's best case, which is why they asked to go, they asked for cert before judgment on it, right?

That was the first case. Haiti—Haiti is the hardest case. They've been dodging it. Even that, those Venezuela cases that went up twice, those have Haitians in it and they stripped them out so that, you know, of those appeals. So, so that it, because saying that Haiti is you know, it's not dangerous anymore to send people back to Haiti. It's just crazy.

And the, I think the State Department, it said Americans should not go there under any circumstance. So these are the two extremes. And to tell you how much they wanted to get the Syria case up there, for the reasons you stated, it's the only one that is remotely plausible of like the 12 they've done.

There's no written ruling in that, you know, it was so fast. They had to, the deadline was approaching. The judge in the southern district dictated the opinion into the record. There's no written ruling. There is no administrative record. And yet, and that's what they, the, they wanted to be the cert before judgment case. You know, it's, but it's for the reasons you stated it, it has a plausible sound to it.

Benjamin Wittes: Alright. Speaking of dark-skinned people that the Department of Homeland Security is targeting, Judge Nichols, Carl Nichols in the District of Columbia found that the government may well have a policy of targeting Somalis in Minnesota for expedited removal, but that there's nothing he can do about it.

You know, this seems like an odd opinion. What do you make of it?

Roger Parloff: It's a really troubling fact situation and it's a really troubling opinion, 'cause he basically, the, it's a law firm that represents, people going through asylum proceedings and they represent, this has to do with non-detained people.

And so with non-detained people, there's a big waiting list. And so their hearings are spread out through 19, I mean through 2028, you know. And so they represent 113 people, including 73 Somalis. Suddenly in January, 71 of the 73 Somalis get hearing dates advanced two years, up to like July and before.

And they're also sent to judges that have immigration judges that have a reputation as being, you know, very rarely grant asylum and very often grant removal to the government. So they alleged an unwritten fast track policy for Somalis based on being Somali and the government, oh no, there's no such thing.

But Judge Nichols does say the unrebutted record supports the go—the plaintiffs' case. Nevertheless, he says the law firm lacks standing. You know, you should, you know, the a, the people seeking asylum—

Benjamin Wittes: Have to bring the suit themselves.

Roger Parloff: Have to bring the suit, which makes sense. Then he goes on and says, two jurisdiction stripping provisions apply here, which means that they aren't gonna be able to do it either. And nd I thought that each of those was quite expansively interpreted. And so I if that's a harbinger of how the Supreme Court and Carl Nichols.

Benjamin Wittes: Yeah. Carl Nichols has his,

Roger Parloff: He’s a harbinger-type of guy.

Benjamin Wittes: Yeah. Remind people of a certain statute that Carl Nichols was the one out of 16 judges on his court to rule with defendants. And got five or six justices of the Supreme Court to agree with him and Fisher. Remind us what Carl Nichols got right that every other judge got wrong.

Roger Parloff: Yeah. That was 18 U.S.C. 1512(c)(2), which was the corrupt obstruction of an official proceeding. He's a, he is a Trump appointee. He's a smart guy.

Benjamin Wittes: He's a good judge.

Roger Parloff: He's a good judge. But he's a tough judge and not a very sentimental guy in terms of his reading, rulings and so if this is how it's gonna go, it's gonna be bad for a lot of petitioners.

Benjamin Wittes: Yeah, I mean, I gotta say, I, as somebody who covered those jurisdiction-stripping provisions when they were being passed in the, I think first in the late 990s and then in the aughts, they're really expansive.

And I, you know, I'm just not confident that, you know, he's not right.

Roger Parloff: Well, for instance, one of these is 1252(f)(1), which is the one that just says you can't have class action injunctions in a certain number of the of these immigration cases. And a lot of people thought, well, I'm not seeking a class action injunction. I'm seeking a ruling under the APA, the Administrative Procedure Act, which is illegal. It's not legal—It's not equitable, it's legal. It's, you know, it is, this is mumbo jumbo, but it's, this is it, I thought this was correct.

And here, Judge Nichols says, well, it's basically the same thing. And so he says that this (f)(1) applies, but then he goes on, and really the crusher is the other one, 1252(b)(9), I think. But anyway it's a, yeah. It's, if this, if he's right, this is a bad sign.

Benjamin Wittes: Alright. We've got updates in both Abrego Garcia cases, Abrego Garcia civil and Abrego Garcia criminal.

Let's do 'em both in one shot.

Roger Parloff: Okay. That's gonna be hard to do but there was—

Benjamin Wittes: Start in Maryland.

Roger Parloff: Okay. There was a hearing in before Judge Xinis. And basically the bottom line is we're this is about whether the government is trying to have her lift the injunction so that it can ostensibly deport him to Liberia, which it says is imminent, which is strange 'cause he has in a, some court dates in Tennessee, as you may remember. And this puzzles everybody.

But and so it wanted a ruling from her by April 17th. And if she doesn't rule by April 17th, they're gonna treat that as a denial. And she said, who are you to tell me to rule by April 17th? And she goes, and she issued a long ruling, I mean, maybe no, a six-page ruling yesterday, going through all the bad faith and delay that she sees them having committed in this case and saying, you know, you're not telling me to rule by April 17th. But anyway, there's gonna be more briefing, possibly some discovery in that.

And then in the criminal case, we got the briefings, the first briefings, post-hearing briefing in on the selective—the vindictive prosecution issue in Abrego. And remember Anna went to that hearing. And so the issue is you know, judge Crenshaw, Waverly Crenshaw had rule found a prima facie case before the hearing of sele of vindictive prosecution.

And so did they rebut that? And the key Abrego argument is that the, that all the witnesses with the most information were not called. And so that's part of the, partly the DOJ people, the high up, I mean the, you know, Todd Blanche, Akaash Singh, but also John, the first HSI agent to reopen his case, John VanWie, was on the government's witness list and they didn't call him.

He reopened the case April 17th, which was 10 days after the Supreme Court said basically you've got to fill his, facilitate his return. And McGuire who did testify, he is the U.S. attorney and the prosecutor who says, oh, it was all my decision.

He didn't get involved until 10 days later, April 28th, 10, April 27th. And he said he asked VanWie, well, he was asked on cross, why did VanWie, we tell you he opened the case and he said it came quote in response to inquiries from headquarters. And so there was never any more, well what exa—what happened there?

What, so that will be the gist of the Abrego's case. I think it's a really hard question, 'cause there's sort of these, it's not gonna be like there's a sole or even dominant improper reason to pursue him. There are two sort of competing reasons to pursue him, and it's quite possible, it seems likely that given McGuire's perspectives, he would've gone with this independently. So I don't know it doesn't seem, it's not as strong as to me as Comey or James or obviously Cassidy Hutchinson or Jerome Powell or so on and so on.

Benjamin Wittes: Or for that matter, Kseniia Petrova.

Roger Parloff: Oh,

Benjamin Wittes: Good transition to frog embryo lady.

Who there? How's that for a transition?

Molly Roberts: I thought you did that on purpose, Roger. I was like, ah,

Benjamin Wittes: —won her habeas case partly this week. Molly, that was my favorite transition we've ever done on this show. It's what I'm gonna aspire to in the future. Tell us about the Great Frog Embryo Victory over the U.S. Department of Homeland Security and its new chieftain Markwayne Mullins, who is now the name defendant in the case.

Molly Roberts: Yes, so Kseniia Petrova, who is the Russian-born scientist researching at Harvard, who was stopped at airport customs last year with frog embryos and then detained in an ICE facility for four months and charged with smuggling said frog embryos into the country—

Clawed frog embryos, by the way, I learned today, it's an ideal specimen, the African clawed frog, but that's probably not what people,

Benjamin Wittes: yeah. Just be clear. This is so that people don't confuse it with the Anthropic litigation. It's clawed, C-L-A-W-E-D, not Claude, C-L-A-U-D-E. Really important to keep our Claudes and our clawed frogs separate on the Lawfair: Trump Trials and Tribulations.

Molly Roberts: Absolutely. There was a great risk of confusion, I think. So she won her Vermont habeas case on partial summary judgment. The district judge, Christina Rice, found that her visa was improperly canceled and that was on the grounds that customs and border protection officers aren't really supposed to be canceling visas at all. They have limited authority to do so and they can't do it.

She found, for the suspected smuggling of biological samples, she was looking at the Smoot-Hawley Tariff Act to find the authority for this, but also the government had failed to cite any authority for its action. And she found also that the record showed that the cancellation only took place because of the frog embryos that were found at customs, not for any other reason. The government had pointed to Petrovas stated desire to return to France and willingly withdraw her application for admission to the United States.

But that was after she was told, oh, your visa's been canceled. You can't be here. So the judge found that it was because of the frog embryos that the cancellation had taken place and that was arbitrary and capricious. And so Petrova wasn't asking for a declaration that she was admissible to the United States.

She was asking that the revocation of her visa be set aside, which is what the judge ordered, so that she can then go to immigration court and ask them to reconsider their decision that she wasn't admissible because of the canceled visa.

And the criminal case, of course, which we discussed last week, remains ongoing. And that's where the magistrate judge granted discovery because she'd made this prima fascia showing of vindictiveness.

Benjamin Wittes: Right. So just to be clear, what she still has pending did she lose the other partial summary judgment or is so, is that still pending, the part that wasn't granted, is headed to trial or is it just over?

Molly Roberts: Roger, do you know the answer to that question? Because I know you were looking at this too.

Roger Parloff: I'm sorry. I don't.

Molly Roberts: Yeah, I thought she won the case and that it's over, but I don't wanna give the wrong answer.

Benjamin Wittes: Okay. That's no, that's fine. So, so she's, all she's got left is a criminal case that could land her in prison for 20 years.

Molly Roberts: Right. And a, a separate immigration court had found that she wasn't admissible because of the canceled visa. So now that she has, now that the revocation of the visa has been set aside, she can go back and she can try to get that immigration court to reconsider. And I believe she has to reapply for a J-1 visa.

Benjamin Wittes: Gotcha.

Molly Roberts: So that's also has to be settled. And then the criminal case in Massachusetts is ongoing.

Benjamin Wittes: Right. She's still got a bit of a problem on the criminal side. Although I can't imagine many juries in Massachusetts that would convict her on this record, but that's just a guess. I am pulling for her.

I think she has been—I think we should all import frog embryos and we should use Claude to evaluate clawed frog embryos, and thereby take defendant's side—or take opponents of the administration's side in multiple cases at the same time.

Finally, Roger, we have one more case, which is that the Fifth Circuit en banc to nobody's surprise, denies rehearing en banc in the mandatory detention matter, which is to say that the full Fifth Circuit has now sided with like 10% of the judges in the country that a whole bunch of people are subject to mandatory detention, along with the Eighth Circuit.

So where are we in this?

Roger Parloff: Yeah, that with no noted dissent, there was a, they, so it, the next stop seems to be the Supreme Court. There is something of a split circuit. There's a Seventh Circuit case that, in a little bit of a messier case seemed to come down the other way. And we will probably get some other, I think the First Circuit is, has a case, the Ninth Circuit has a case.

So we might get an a fuller split, even if we don't, I mean, when you have about 2000 cases across the country, may have more, maybe 3000. It behooves the court to, to take this case.

Benjamin Wittes: Yeah. I, they are also. We also are waiting on a Seventh Circuit ruling on this matter, right?

Roger Parloff: Yeah, yeah. We already have one Seventh Circuit ruling, and the same panel is gonna issue another ruling.

I would be surprised if they come out the other way, but yeah, that's true.

Benjamin Wittes: My, my strong suspicion is that the Supreme Court will wait until there is a square conflict in the circuits. And but that is just a guess.

Folks, we're gonna be back next week, by which time my manual controls, I think will have probably started working again. And you'll stop hearing me talk to my imaginary friends.

This has been a production of Lawfare. Thanks this week to Senior Editors Eric Columbus, Molly Roberts, and Roger Parloff. Our audio engineer, as always, is the redoubtable Anna Hickey, our editor is the estimable Jen Patja.

Folks, you should become a material supporter of Lawfare. We are getting ready to launch our May membership drive. We want to sign as many of you up to be members of, material supporters of Lawfare as we can. You can do that on Patreon, you can do that on Substack. You can do it by, you know, sending us regular checks by snail mail. There are so many ways to become a material supporter.

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[Outro]

This podcast is part of Lawfare’s livestream series, Lawfare Live: The Trials of the Trump Administration. Subscribe to Lawfare’s YouTube channel to receive an alert the next time we go live.

The Lawfare Podcast is produced by the Lawfare Institute. You can get ad-free versions of this and our other Lawfare podcasts by becoming a Lawfare material supporter at our website, lawfaremedia.org/support. You'll also get access to special events and other content available only to our supporters.

The podcast is edited by Goat Rodeo and our audio engineer this episode was Anna Hickey of Lawfare. Our theme music is from ALIBI Music.

As always, thanks for listening.