Lawfare Daily: The Trials of the Trump Administration, April 17

[Intro]

Benjamin Wittes: It is Friday, April 17th, 2026. It is 4:00 PM Washington, D.C. time, and you are watching Lawfare Live. I'm Benjamin Wittes, editor-in-chief of Lawfare, and I am here with a trio of Lawfare Senior Editors, Eric Columbus, Anna Bower, and Roger Parloff. And we've got a busy agenda this week. So, let's get into it.

Some of you may remember the name John Eastman, conservative law professor from Chapman University, I believe. Wrote some wacky legal opinions, made a speech on January 6th, and now he has been disbarred. Next stop is Dancing with the Stars. Eric Columbus, give us the John Eastman update.

What is—and can the president pardon him and get rid of his disbarment?

Eric Columbus: The president cannot for multiple reasons. The president cannot get rid of the disbarment. Pardon powers limited to offenses against the United States, which has been interpreted to mean crimes against the United States crimes, federal crimes, and Eastman has not been convicted of a crime and, a fortiori, he has not been convicted of a federal crime, so there's nothing the president can do.

It would be like when Tiger Woods called—reportedly called the president after he flipped his SUV on a California road. It would be the same effect.

So, Eastman was, has been actually suspended since April 2024. And this just kind of, makes it final. And,

Benjamin Wittes: And this is California Bar, right?

Eric Columbus: This is the California Bar. He, there was a trial, like a, an interminable trial, I believe in 2024. It was then upheld on appeal. There's something called the State Bar Court of California, which has its own court, a trial court, and then court of appeal.

And then Eastman sought review by the California Supreme Court which this week denied his petition for review. So, to summarize the lower court the state bar court opinions basically the conclusion is that Eastman lied in many ways. It's kind of the major conclusion and the ma—

Benjamin Wittes: Lied to whom?

Eric Columbus: To basically everyone. To courts, to his own client, president—the Trump campaign and including Trump himself, lied to the American public in his speech on January 6th, lied to Pence's top aide Greg Jacob. Used kind of misinformation and theories. He didn't really believe in trying to persuade Pence that he had the power to overturn the results. Lied to the media and the podcast with Steve Bannon and in an article called—in the Claremont Institute's online publication—I should say, lied to the public in that.

And these lies were basically about the existence of fraud in the 2020 election. Both wildly, broadly stating that there was outcome, determinant of fraud in the election. And also looking at specific, making specific claims about things in specific states, which he did not have evidence of support and that he knew he did not have evidence to support, 'cause there's, there are emails and communications with other lawyers where he's basically asking for evidence at various points and no one's able to give it to him.

There's also a charge that he failed to support the laws of the United States, meaning that he violated 18 U.S.C. 371 which I don't believe he was ever indicted for violating.

And, but—That, that the bar alleges that he did in fact violate that. And Eastman, in addition to deny denying the charges, kind of mounted a half-hearted First Amendment defense saying in some of these instances that he was acting as a private citizen. And that did not persuade the Bar Court at all.

You may have a First Amendment right to spread misinformation as a private citizen, but that it's much more limited when you're doing so as a lawyer, as a member of the bar and officer of the court. And so—Go ahead.

Benjamin Wittes: Is Eastman barred anywhere other than California? So it's like, is he still entitled to practice law, but as a, you know, Wyoming lawyer or is he just like not a lawyer anymore?

Eric Columbus: Well, typically courts impose reciprocal discipline. If you're disbarred in one state, you will eventually—I, there may be exceptions, but typically you'll wind up being disbarred from everywhere else that you were a member of the bar. I think he was a member of the bar in D.C. as well, and I think he has been suspended there as well.

And that would probably, he'll probably be disbarred from D.C. as, as well. And so the, and the court eventually decided to dis—their, they can impose a variety of remedies. They eventually land on disbarment relying part on the fact that Eastman is completely unrepentant about any of this.

Now, obviously you would expect someone who thinks he did nothing wrong to be unrepentant, but the fact that they felt that he was, he had done wrong in so many ways in, in between that post electoral period in just a variety of aspects in court and out of court, made them conclude that what Eastman preferred to was the death penalty.

Death penalty was the appropriate sanction.

Benjamin Wittes: Alright, well I think John, who is welcome to come on Lawfare Live anytime to discuss his matter will have to find a new line of work. Speaking of situations, Roger, that the president does have the power to address, unlike John Eastman's, the Justice Department, which we understand to be Trump's Justice Department, moved to vacate convictions and dismiss seditious conspiracy charges against the people who were not pardoned on the first day in office.

We had a Lawfare podcast entirely devoted to this subject. But give us the overview for those who may have missed this.

Roger Parloff: For—Remember, on inauguration day there were clemencies given to—Clemency in some form to all 1,583 people charged as of that point in the connection with January 6th. But, and those fell into three buckets. There was a group that were only commuted. They had their sentences commuted, that was 14 named individuals. And that was, they were charged with seditious conspiracy. They weren't all, they hadn't all been convicted of it.

And then the rest of the people approximately, somewhere between 1,100 and 1,270 were actually pardoned. And these lines, this being the Trump administration, the lines are fuzzy. But anyway, and then the rest, which is about 470—no maybe well, 200 more, 300 more had their cases dismissed because they hadn't yet been had judgments of conviction.

So the 14, two of those dropped out and there were one was pardoned later, one had his case dismissed and there were 12 that were appealing. And you can appeal even if your commute means the sentence is gone. But you still have the stain of the conviction and so you can appeal and all had. And so it was gonna be a significant appeal about Seditious conspiracy. The eight Oath Keepers and four Proud Boys, the first of those briefs, appellate briefs was finally gonna be due today, actually.

And so—April 17th and, then on Tuesday, the government moved to ask the D.C. Circuit to, to vacate the convictions and remand saying that the government will move to dismiss at the district court level under Rule 48(a). And there might be some symbolic opposition to that.

But I, I think that the law is pretty clear that they're gonna have the power to do that.

Benjamin Wittes: Alright. Yeah I don't think there's going to be, there may be, judges may make some noise about it, but I just don't think there's much, they have much latitude to prevent it.

Anna Bower, one thing judges also don't have the power to prevent is the Justice Department from firing prosecutors.

And there do seem to be some new firings at the Justice Department. What do these ones involve?

Anna Bower: Yeah, so we have a few news items this week regarding Justice Department, firings, or removals from certain prosecutions. The first relates to a, the reported firings of a group of career prosecutors who were involved in FACE Act prosecutions during the Biden administration.

This came—

Benjamin Wittes: And remind us what the FACE Act is, how it was used during the Biden administration, and how it is being used now.

Anna Bower: Yeah, so that's what I was about to get to, is that these firings came on the eve of the release of a report by the Weaponization Working Group, as it is called in the Department of Justice, regarding the weaponization of FACE Act enforcement by the Biden administration.

Now, the FACE Act we've talked about a little bit before in the context of the prosecution of Don Lemon, the former CNN journalist, who's being prosecuted in relation to his coverage of the Minnesota church protest, the Cities Church protest case. That prosecution relates to the prong of the statute that prohibits impeding or obstructing access to church services or house houses of worship.

But the main provision of the statute that people are probably familiar with under the FACE Act and the reason that it was enacted in the first place relates to basically, you know, people who were blockading or obstructing reproductive health facilities. So namely abortion clinics, or what is known as crisis pregnancy centers that often that offer alternatives to abortion services.

Benjamin Wittes: What does FACE stand for?

Anna Bower: Oh gosh, Ben, what does—federal

Benjamin Wittes: Freedom of Access to Clinic Entrances.

Anna Bower: Thank you. That's—I was blanking there for a minute, so I'm glad that you swooped in with the answer to the acronym. Yeah.

Benjamin Wittes: It's really what the statute is about.

Anna Bower: Yeah, it's, it that's what the statute is about.

We talked before, or maybe it's just that I've written about it in the FACE Act piece that I wrote with Eric and LT, that the reason the church services provision was put in was kind of as an afterthought. It really, in the 1990s, when this was passed, was all about incidents that had happened at abortion clinics and reproductive health service clinics.

So, but during the Biden administration, you know, there, there was a lot of enforcement particularly around blockading of abortion clinics. That was an enforcement priority during the Biden administration. Of course, it's very common for different Department of Justices to have different enforcement priorities.

But this Weaponization Working Group FACE Act report focused on this alleged weaponization of the FACE Act against anti-abortion protestors, many of whom I will mention were convicted, but then pardoned later by Trump during the start of his term. And the allegations here are basically that the DOJ was working hand in hand with pro-abortion non-NGO groups. You know, they cite numerous emails that were exchanged between DOJ officials and people who were in these groups. Again, it is not unusual for DOJ to meet with people who work with community organizations.

It, it is, that is not at all unusual and in fact, like the week that this report comes out, there's reporting by Ryan Reilly at CNN that DOJ itself under Trump met with pro-life groups at DOJ this week. But that seems to be the kind of gist of this complaint is that there was this uneven enforcement.

The report, I a few things that I will just quickly mention 'cause we have so much to get through. One thing that's really notable is that it often cites conduct that occurred during the first Trump administration, even though it's claiming that it's all about the Biden administration's enforcement and contacts with pro-abortion groups. It also you know, just in terms of addressing counter arguments, does not address, it mentions the fact that there's, there are never before the Cities Church case been a prosecution under the House of worship provisions that we've talked about. But it doesn't mention that the reason why that is, is because it's long been seen as very risky for the integrity of such a prosecution to pursue that a prosecution under the house of worship provisions because it's kind of constitutionally on shaky ground, given that there's this Commerce Clause argument that we flagged in some of our writing at Lawfare.

So, there's just it seems to not really be a report that has a whole lot of of firm ground to stand on. But nonetheless, a number of prosecutors were fired as a result. So that is the FACE Act firings. And then today, all right, so let—

Benjamin Wittes: So wait. Let's talk about the conspiracy to frustrate the grand conspiracy investigation.

Anna Bower: Yeah. So then that's the second news item this week. Is that, and it's not clear to me from the reporting that this person was actually fired, it sounds like, she's just no longer working on the grand conspiracy case that's happening down in Florida. It, that's the one that Molly has written about that relates to the case that they're trying to create against John Brennan, related to his congressional testimony, but then also potentially related to a broader kind of conspiracy about efforts to, you know, ‘get Trump,’ basically is the kind of gist of it.

And in that case, there's reporting that one of the career prosecutors who's helping lead that investigation has now been taken off of the case following you know, the fact that she's voiced some skepticism apparently about the ability to actually create a criminal case against Brennan.

And then there's additional reporting that just came out as we were starting this live that a former Judge Cannon clerk who's also a Todd Blanche aid, has now been moved to work on this prosecution as well as other prosecutions down in the Miami office. So, we're keeping our eyes on that case because it seems like there's some potential developments happening there.

Benjamin Wittes: Interesting. Alright. Meanwhile, prosecutors in Washington did something that prosecutors often do, Roger, which is to show up at a construction site and ask for a tour. So tell us what Jeanine Pirro people are up to at the Fed. And what do you do when a bunch of prosecutors show up and demand a tour of your construction site?

Roger Parloff: Yeah. And I'm getting this from a New York Times article. I'm not sure if who broke it, but they might have Colby Smith and Glenn Thrush. But we've been following this case, of course, this non-case really. Yeah, it was Carlton Davis and Steven Vandervelden, plus a chief invest—an investigator from DOJ.

Those attorneys are political appointees. Vandervelden is the one that was is a dance photographer I guess as well. These were the ones who presented the case against Senator Kelly and five other people that participated in that video that the grand jury apparently rejected, reportedly rejected unanimously.

And they showed up and they were told you know, you don't have, an appointment, so we can't let you in. It's there safety restrictions. And so they left. The, this is the case of course, that Pirro tried to get two grand jury subpoenas and Boasberg quashed those. The, although there were a ton of evidence that these were being served for improper purposes, there was no apparent evidence of that they were being served for understandable purposes.

And the government had refused to an offer of proof, Boasberg said, if you wanna show me some criminal activity or signs of suspicions basis for suspicion we can go ex parte. And they refused. So anyway, this whole thing seems to be holding up the confirmation of Kevin Warsh. His—Powell's term as chairman ends May 15th.

He would continue on the board for a couple years if he wants to stay. But judge, I mean, Senator Tillis is said he'll block the nomination if they're still jerking around with Powell. So, and her—Pirro in the article commented that any construction project that has cost overrun runs of almost 80% over the original construction budget deserves some serious review.

That's all they've got apparently. And of course the other reason for cost increases from 2019 is that building materials costs have gone up since 2019. So, the anyway, that's where that stands.

Benjamin Wittes: Yeah. Not to mention that the cost overrun in government building material, building projects is much more norm than exception and is never been generally understood previously to imply criminal wrongdoing.

Alright. Well, one person who likes to infer criminal wrongdoing from non-facts is Tulsi Gabbard, who this week made a criminal referral to the Justice Department of a former intelligence community inspector general. People will remember the name, Michael Atkinson, and the whistleblower who started Atkinson's investigation in July, 2019 of the famous perfect phone call between Trump and a little known at the time, a new president of Ukraine named Volodymyr Zelenskyy.

Roger, why are we still talking about this issue?

Roger Parloff: Well, this and here I'm getting my information from a bunch of Fox News, CBS, CNN. And again, I don't know who was first. Yeah, so she made this referral. Atkinson is a well-regarded guy. He had spent 15 years in DOJ becoming, before becoming inspector general. He was fired by Trump in 2020.

And there's no discussion in the articles I've seen of what statute this would be. We have a 29, you know, 2019 is at least six years ago, so maybe and so, there's a maybe a statute of limitations problem, depending. So we don't know. And we also don't know whether DOJ is taking this at all seriously.

We just know that she made what she called, Tulsi Gabbard, a criminal referral.

Benjamin Wittes: But we have no idea what conduct either Atkinson or the whistleblower is alleged to have engaged in that violated what law that a statute of limitations would not yet have run on.

Roger Parloff: No reference to anything criminal. The Fox News story seemed to think that Tulsi was taking issue with whether this was a quote unquote urgent concern.

I think that's the magic language, and you would know more about this than me, but when you're a whistleblower and or maybe Eric would but it's the point at which the IG can show needs to show something to the intelligence committees of Congress if the IG thinks this raises an urgent concern.

And so there's an issue about that judgment call, how that would be a criminal matter. I,

Benjamin Wittes: Yeah. What—as I recall, the relevant provision on urgent concern is not a criminal statute. And I believe it is if the IG believes it is an urgent matter of urgent concern, it's kind of, you know, not like that has an objective definition.

Roger Parloff: Right. And the only other thing about it is sort of the timing. I, obviously when you are making a criminal referral of an IG and of a whistleblower, you are chilling future whistleblowers from coming forward. And we do have some things going on now that might be who that may, perhaps there are whistleblower would be whistleblowers looking at this and thinking maybe now is not the time.

I mean, we do know that there was a whistleblower with respect to Tulsi herself. I don't know that there's anything to that, but of course there ran is going on and who knows what’s out there?

Benjamin Wittes: No, I think that's the critical point, that this is a way of saying to whistleblowers in the intelligence community, we do not forgive, we do not forget, if you mess with us it doesn't matter if the statute of limitations has passed, we will come after you. And we have a very long memory.

And, you know, the world has very much moved on from the whistleblower, but Tulsi Gabbard has not. And and the it's, it's important that other people I guess not move on as well, given that she has the ability to refer things to the Justice Department.

One point that you made that I wanna drill down on a little bit, we don't have any indication at this point, do we, that the Justice Department is doing anything with this. Right? It's—

Roger Parloff: No, no.

Benjamin Wittes: Tulsi released some kind of press release. Right. But that's sort of all it is right now. Right?

Roger Parloff: Right. Yeah.

Benjamin Wittes: All right.

Anna Bower, some litigation that Lawfare filed or that you and I filed bore some fruit today. Tell us about the Michael Flynn settlement.

Anna Bower: Yeah, I don't know that we've even talked about it on Lawfare Live, but there is a case that exists in this world that is called Bower versus the Department of Justice.

And it is

Benjamin Wittes: Which Bower does that refer to?

Anna Bower: What do you mean me? What do you mean?

Benjamin Wittes: I, that's what I was just getting it to, you know,

Anna Bower: it's

Benjamin Wittes: not like, oh,

Anna Bower: Anna Bower.

Benjamin Wittes: Yeah, it's Anna Bower v U.S. Department of Justice. Right. Who's

Anna Bower: I was confused.

Benjamin Wittes: Who's your co-plaintiff?

Anna Bower: Because I was thinking who else works at Lawfare, whose last name is Bower?

We have multiple Annas but not multiple Bowers.

Benjamin Wittes: So who's your co-plaintiff on that case?

Anna Bower: So my co-plaintiff is you we are represented by the Civil Service Law Center and we are seeking records related to settlement agreements executed by the Trump Justice Department and as a part of that suit, which remains ongoing.

But the first record that we were able to obtain to last night actually is the settlement agreement between Michael Flynn and the federal government in relation to a suit that he brought in, which he alleged that he was maliciously prosecuted for lying to FBI agents, although we should certainly mention that he pleaded guilty twice to those allegations.

And ultimately of course was pardoned in November of 2020 by Trump. And in relation to this civil suit that he brought after all of that in which he saw it, I think it was $50 million dollars. The federal government settled that suit. It was reported last month that settlement was for $1.25 million dollars.

The documents that we have confirmed and then now published on the site confirmed that it was $1.25 million dollars. One of the more interesting parts of the document that we received is that it carves out a separate suit that Flynn has pending in the United States Court of Federal Claims that relates to his retirement pay from the Army.

So that settlement does not resolve that suit and explicitly carves it out. And then if you look at the docket for that suit, there is a reference in a joint filing, last month to ongoing settlement discussions. So it may well be that the federal government's going to pay Michael Flynn potentially more than $1.25 million if there's a separate settlement agreement that's reached in relation to his court of federal claims case.

So yeah, people can check out the document that we published on the site and hopefully we will get more documents at some point as a result of our case.

Benjamin Wittes: Including, I suspect, the settlement documents in the case that is settlement negotiations for which are now underway between Donald Trump and the IRS in Trump's $10 billion dollar lawsuit against the government.

What does it mean that there are negotiations underway, given that Trump is both the plaintiff and the defendant?

Anna Bower: Yeah, so it's not entirely clear if this is, if this means that a settlement is imminent or if it, if there could be something else, some other kind of agreement in the works. The reason I say that is that if you read the New York Times reporting on—so there's a, and just to give people, you've kind of explained it, Ben, but just to give people the background. This is Trump's suit that he brought for $10 billion in relation to claims that the federal government didn't do enough to safeguard his tax returns, which were at one point several years ago, leaked and the New York Times reported on it.

And in relation to that suit, the federal government has not responded. It's been in limbo for a while. And today, there was a filing in which the parties asked for, you know, I think it was 90 days extension, so that they could have ongoing discussions about ways to resolve the case.

If you read the New York Times reporting on this development, you know, even though it sounds like this certainly means settlement talks, and that's how I took it, the Times is reporting that, you know, although settlement is certainly a possibility, it sounds like DOJ is discussing other ways to potentially deal with the case, which might include asking the judge to just put everything on pause until Trump is out of office.

Something to that effect that would tie, like, kind of put things on hold until these conflict-ish, potential conflict issues could be resolved. Of course, settlement still is a possibility. So we will see, but it's not entirely clear what exactly this means. So, you know, stay tuned, I guess, on that one.

But I wouldn't be surprised if it does lead to a settlement. So yeah.

Benjamin Wittes: Yeah, I just wanna say if Trump achieves for himself the same rate that he achieved for Michael Flynn I forget what Michael Flynn asked for, but he got asked for $50 million dollars, and he got $1.25. So that's, you know, like one in 15. So Trump could get, you know, not $10 billion, but, you know, $750 million at that rate. So it's, you know, it's a good, it's a good game they've got going on here.

Eric Columbus, the state of Minnesota has indicted its first ICE agent and issued a warrant for him. What do we know?

Eric Columbus: So, this is obviously been a topic that has been a much, dispute and discussion the extent to which federal officers can be indicted under state law. This presents, I think, a somewhat easier case. Easiest one of the easiest cases in that realm. I don't know if it was deliberately the first one brought for that reason.

But the facts here are that people are driving on state highways in Minnesota, and it's an area where there's a lot of, like, traffic is kind of lanes merge, and it's a, it becomes one lane at that point, and the guy sees someone driving in the breakdown lane on the right, which can be somewhat annoying to see, 'cause it's against the law, but it's a way to, to literally to get ahead. And so he kind of like pulls over to try to block that other car a little bit, just kind of playing with him a little bit.

And then he eventually gets back into his lane only to see that the other car, instead of like zooming ahead is driving next to him and the driver is pointing a gun at his at the first guy's head and basically is like, what the fuck you doing? How, you know, how dare you try to cut me off? And the driver's like, you know what the hell's going on and calls 9-1-1. So this guy just, you know, pointed a gun at my head.

And it turns out that the guy in the breakdown lane pointing the gun was an ICE officer who was driving back to the federal building, the Whipple building in Minneapolis, to kind of conclude his shift, was not involved in any, by his own statement, was not involved in any, enforcement action while he was driving.

So then the question becomes, will become whether or not this prosecution can continue. And the test that the courts use is that federal officers are insulated from state prosecutions if the federal officer was doing something that was authorized by federal law, and if the actions in question regarding the indictment were, quote, necessary and proper in fulfilling their federal duties. And so in the first part of that, it seems like it depends upon how narrowly you define what the federal official is doing.

If you're referring to just like driving on the highway back to the Whipple building then yes, that was authorized by federal law. If you're referring to the more specific—

Benjamin Wittes: Usually road rage bearing of arms is not encompassed in, you know, transportation, right?

Eric Columbus: Yes. And that is, is the, where it would probably fail in the second, the pro the defense would probably fail in the second prong, whether the actions were quote, necessary and proper and fulfilling their duties.

And there's no argument that he needed to, you know, point a gun at another driver's head in order to fulfill his federal duty. So I would suspect that a federal defense would fail. Of course, this doesn't mean that he is guilty of the underlying crime of assault. We just have allegations at this point, but.

Benjamin Wittes: So do you interpret this as the state of Minnesota saying, let's litigate this where the facts are really good for us, right? You know, like driving back to headquarters does not include pointing a gun at the head of a stranger who's not suspected of doing anything. Right. And let's get this established and then we can talk about Alex Pretti and Renee Good. Or do you think this case, just these cases just ripened in that direction?

Eric Columbus: It's really hard to know. I mean, you can make, and just factually, it's hard to know. And also it's hard to know whether or not that makes sense strategically. 'cause on the one hand, yes, as you said, you can kind of get this precedent on the books the in a road rage case.

On the other hand, that case then becomes rather easy to distinguish if you are involved in if the next case becomes a case where the ICE officer is clearly you know, out on a patrol trying to enforce, involved in an enforcement action and not just merely driving on a highway it becomes like it easier to point to that person and say, Hey, this is very much not that

Benjamin Wittes: It's true. Although I do think it is fair to say that if you can establish that driving back to headquarters does not include pointing your service revolver at a random driver, it becomes easier to say that detaining a protestor doesn't involve shooting him when he's down on the ground and not threatening anybody.

Eric Columbus: No, that's, I think that's a good point. Yeah.

Benjamin Wittes: Alright. Anna, we have the latest TPS case that has arisen. First they came for the Syrians, and I said nothing 'cause I was not a Syrian. And then they came for the Ethiopians and I said nothing for, 'cause I was not an Ethiopian. And then they came for the Yemenis—the Haitians, and I said nothing 'cause I wasn't a Haitian. Then they came for the Yemenis and we had an oral argument in a case called Abdo Doe versus Noem. First of all, why haven't they changed the caption? No, she's so last week.

Anna Bower: Yeah, I actually was wondering that myself. I do not know.

Benjamin Wittes: Then they came for the Venezuelans.

Anna Bower: And I think that we're actually missing even a few other countries on this list as well. But yeah, so, so Roger has mainly been covering the TPS stuff for us. So I defer to him on kind of some of the broader issues. But in SDNY before Judge Dale Ho, who people might remember from the Eric Adams litigation, he is now has heard argument on a motion from the groups that are representing Yemenis with TPS status in which they're trying to postpone agency.

It's kind of like a preliminary injunction, but it's not technically styled as that. It's an effort to postpone agency action on that would terminate TPS status. And it was an interesting argument. It was also a very lengthy argument. It was over two hours and then also a press conference as well.

And it was attended by many people from the Yemeni community. It, and it was very interesting, but it didn't leave me a lot of a good sense about what Judge Dale Ho is going to actually do you know, I would suspect that he's going to agree with the, like, I, I wanna say at this point, it's over a dozen other district court judges who have found in various other cases that.

The termination of the TPS program it was unlawful because the statute, as we've discussed before, sets out, you know, you have to consult with the appropriate agencies. Although there is a jurisdiction s dripping provision in which, you know, a court can't just sweep in and review the substance of the determination that the Secretary of Homeland Security makes.

There's been these rulings on jurisdiction that basically what a court can do is look at the procedure. And so here there was a lot of discussion about, you know, what that procedure was. Was there a consultation with the relevant agencies, which the plaintiffs here are arguing that at a minimum means with the Secretary of State, potentially with Treasury, potentially with the Department of Defense and like in these other cases, all that there is in the administrative record about a potential consultation is just like two or three emails back and forth in which there's not really any substance about the conditions on the ground in the country itself. Which would be the thing that you would have to consult about to actually, you know, make a substantive determination about whether to change the TPS status for the country.

But Judge Ho had a lot of good hypotheticals that he was asking, you know, he was really trying to judge a sense­—Yeah, he was getting a sense of what the scope of the government's argument would be. So for example, would it be sufficient for the Secretary of Homeland Security to call up the head of the FDA and say, how's the cuisine in Yemen?

And then based on, you know, if the FDA says, oh, the cuisine's great in Yemen, then based on that, would that be a sufficient consultation to then, you know, change TPS status? So questions like that, that were very insightful, but he didn't, you know, show a lot of his cards 'cause he had tough questions on the other side for the plaintiffs as well.

Benjamin Wittes: I like Yemeni food, by the way.

Anna Bower: Yeah, I should mention that there is a TPS case that's gonna be argued before the Supreme Court, I believe, this is where I need Roger to help me. I believe it's next month.

Roger Parloff: This is Miot. It's April 29th.

Anna Bower: Oh, it's this month. Thank you, Roger. It's later this month. And I think that everyone is kind of wondering, you know, what that argument will tell us about the fate of these TPS cases.

Keep in mind, the court already last year lifted a stay on Judge Chin, I believe it was his TPS ruling related to Venezuelans, the termination of that status. And so, there's already potentially an indication about how the court thing is thinking about this. But there was no explanation for the ruling.

So it's not really clear. And that was a big theme of course in this argument, which is that, you know, to what extent should Judge Ho be thinking about what the Supreme Court did in that emergency docket decision. So,

Benjamin Wittes: And I will just remind people that the numbers when you're talking about TPS, is are huge.

I know there's about a 100,000 Ukrainians in the United States alone on TPS. I think the number of Haitians is like 400,000?

Roger Parloff: It's 350,000 Haitians. It's about 600,000 Venezuelans.

Benjamin Wittes: Yeah, I mean, you're talking about very large numbers of people. They are not illegal immigrants.

They are not, you know, they're here lawfully, but you can change their status to that of undocumented or illegal migrants with the snap of a finger if you revoke their TPS status. And so, the consequences for human liberty and is, are very substantial across very large numbers of people of quite diverse nationality.

Anna Bower: Yeah. Yeah. I should mention, too, that the government has not moved to terminate TPS status for Ukrainians. That actually came up—

Benjamin Wittes: Correct.

Anna Bower: That actually came up at the hearing because one of the arguments that's being made by the plaintiffs in this case and also in some of the other TPS cases, is that there's a racial animus, or an element of that's here, that is, and that the TPS termination is pretextual.

And, you know, go ahead.

Benjamin Wittes: It's a bit of an overdetermined variable, because on the one hand Ukrainians are white and there is a non-trivial argument that, Hey, look you've revoked the TPS for all the people from countries that are, or you've tried to, that are Arab or Central American or South American or Caribbean and the, and not for Ukrainians who just happen to be white, European people.

You could also say on the other side of that, that the government is asking all kinds of things of the Ukrainian government. Right now we are involved in a process with them, a negotiation process where we're trying to get them to do things—mind you, things that we shouldn't be asking them to do, like capitulate to the Russians.

But that there are, you know, other reasons why you might not wanna stick this particular thumb in President Zelenskyy’s eye. Most of the countries that we have revoked DPS for are countries that don't have functional governments that were seeking things from. Venezuela is a bit of an exception there, but, so it's a complicated question and I don't purport to know to what extent race is a factor in the exemption of Ukrainians from this wave of TPS revocations.

I will say that the idea that you're gonna send people back to Yemen right now is abominable and, you know, like that's true irrespective of their race or ethnicity or anything else. I mean, it's a, it's as crazy as the idea of sending people back to Haiti or Venezuela right now. And you know, I don't really know what else to say about it.

Anna Bower: Yeah. And one, one other thing I'll just mention is like in Congress in relation to the Haiti TPS termination. There was a legislation I believe that passed in the House this week that, of course, I think is not, is potentially likely not to go forward in the Senate. I, but I defer to Eric, who is more of a congressional watcher on that.

But there were a few people on the Republican side who were willing to support that legislation. So it's one of the rare instances that we've seen where there's, you know, some pushback on Trump's immigration agenda from Republicans, at least in the House. So yeah.

Eric, anything to add on that? Did I get that right?

Eric Columbus: Yeah, I don't actually know about all that. I'll just say that in there are some Republicans, most specifically Rick Scott of Florida, who have been sympathetic to the concerns of the Haitian community. There's a big Haitian population in Florida, and I could imagine him supporting that.

I'm not sure if they would get like enough votes to hit 60 there. And then of course, Trump could over, could veto unless there is a 67 vote majority, veto proof majority. But there, of course, there is no veto proof majority in the House. So, veto would probably hold.

Benjamin Wittes: Alright, speaking of things that have not held Roger the efforts by long suffering Federal Judge Jim Boasberg, former I believe law school roommate of Brett Kavanaugh, to hold the government accountable for deporting people in violation of court orders, has run into the buzz saw of a D.C. Circuit panel yet again and produced like 130 pages of text.

So what the heck is going on and why is it that the D.C. Circuit panel is so excited to protect the administration from scrutiny from Judge Boasberg?

Roger Parloff: Yeah, well, it's now just a little over a year since it was April 16th of last year that Boasberg issued his, first attempt to investigate criminal contempt stemming from what happened last March 15th, a year ago, March 15th when he thought that he ordered the government not to send Venezuelan class members to, to l to out to another country.

And they sent 137 of them to CECOT under the Alien Enemies Act. And we've now had we had a split panel. The first panel was two Trump appointees Rao and Katsas. And there was a dissenter, and I actually forget who the dissenter was the first time around. I think Pillard, I'm not sure.

And then that there was a motion for rehearing. And the rehearing ended. It, it was denied, but it was a split. And six of the 11 judges said, well, it can now go forward. Because the reason for Rao's dissent no longer held. And so the case came back and, and Rao was on the next panel too.

And so was Walker, another Trump appointee, and the other was Michelle Childs, who I think is Obama. And it was another two in one split. That's what just happened. And they had issued another administrative stay. That's another odd thing about both these cases. They were both stayed with what's called an administrative stay, which is usually supposed to last about a week.

Each one lasted about four months.

Benjamin Wittes: Yeah. It's—That's a real departure.

Roger Parloff: Yeah.

Benjamin Wittes: From practice.

Roger Parloff: Yeah. I mean, you, and the reason for that is you issue an administrative stay without giving any reasons. And it's not appealable because it's supposed to be so temporary. So, so that's an odd thing too. And we're sort of in the same, exactly same place we were before.

This time around, Rao mainly spoke about separation of powers, concerns that would be involved in going forward. She had some, you know, speculations of how might this go forward. She, if Boasberg started trying to get discovery about the thinking inside the upper levels of DOJ and DHS, you know, DHS had said this time around, what they did was they said, Noem made the decision. That's all we're gonna tell you.

And so her position is, yeah, that's all they have to tell you. And now you refer it to the DOJ and for criminal investigation and well, maybe they will. And then Judge Walker sort of endorsed that and but he also came up with sort of a gotcha reason of his own. He did endorse what Rao said. Then he came up with a gotcha, one of his own, which was a, you know, Boasberg gave this oral ruling. And then he had a little minute order, written order that said, as discussed, the government shall not, is barred from removing the class members.

And he says, well barred from removing. And since the class members had already taken off and they were out of us airspace. They weren't, you know, they'd been removed as far as I'm concerned. And so this order only applies to the people still in the U.S., which would be the five name plaintiffs who already had their own TRO. So he ex, you know, he interprets the TRO out of existence.

And then I should say that Rao also, I'm sorry, but Rao also mentioned that she felt the orders were too ambiguous to be susceptible to and she used what's called an objective standard. So she's saying, yeah, they may have in fact understood what Boasberg meant, but if you look at the order, the order itself there's ambiguity.

It's sort of like a, a plain meaning sort of, or textualism where you, that you might apply to statutes rather than to court orders. Childs has an 80-page dissent, and she says, I think accurately, at its core, the majority's analysis declares today that there can be no crime if an order violated was not one perfectly written, rather than determine if the order was perfectly understood. Such an approach is unsound.

Benjamin Wittes: Yeah, I just wanna say 80 pages dissenting from the resolution of an administrative stay has to be a record.

Roger Parloff: Yeah. So, anyway, I think, you know, we're in another end bank situation and I think the, this time around they cannot do anything less than take it, because the last time around it seemed like relatively clear.

You had six out of 11 saying Let him do it. And but Judge Rao felt nevertheless felt that implied that Boasberg had defied him because, defied her and be, and she left out the six out of 11. Anyway, we should move on.

Benjamin Wittes: All right. Well, let's talk about a damages action in Maine against over the detention of a gentleman with an H-1B visa.

What's the Maine Civil Rights Act and what is its application to federal immigration enforcement?

Roger Parloff: Well, that's the key question and unfortunately, I didn't you know, look it up. But the plaintiff's lawyer believes that the Maine Civil Rights Act will encompass a federal agent as a defendant.

I'm including it because it was just filed, but we've looked there, these are rare, these attempts to bring damages suits against federal officers. And this is the third one we've seen that, that I'm aware of. We had the Idaho case where there was a joint task force, and so the theory became—

There's a federal conspiracy statute. They, 42 U.S.C. 1985, and we also had one in Alabama where it was just Alabama tort law for what happened to the fellow plus, a Federal Tort Claims Act, which doesn't go after the officer, it goes after the United States. But this is just a new a new approach and we'll take a look and see what happens.

Benjamin Wittes: Alright, speaking of people the Justice Department is firing, we have six more immigration judges who have joined the FACE Act prosecutors as being unemployed. Remind us, Roger, why the Justice Department gets to fire immigration judges.

Roger Parloff: Yeah they really are just employees of DOJ. Now, and four of these six were probationary, meaning they were there less than two years.

So they really are at will. And so, I think they don't have a legal action to bring.

Benjamin Wittes: And what was the great offense of these six immigration judges?

Roger Parloff: Well, we know that two of them actually had ruled against the government in very high-profile cases. The Rümeysa Öztürk case, and the Mohsen Mahdawi case.

In fact, we mentioned that a couple, when it happened a couple months ago and we sort of joke that they were about to be fired, and here two months later they are fired.

Benjamin Wittes: Yeah. So if you are watching and you're an immigration judge, there's a real lesson in here for you: don't rule for a Palestinian, just don't do it.

Roger Parloff: Yeah.

Benjamin Wittes: Or or a Palestinian sympathizer. 'cause as her name implies Rümeysa Öztürk is from Turkey, not Palestinian, but she, you know, she did co-write an op-ed in that was sympathetic to Palestinian. Right.

So, just, you know, if you're an immigration judge and you wanna keep your job, just make sure the Palestinians and their sympathizers in your court get deported.

Roger Parloff: Yeah. I, and I'll just and she has or Bondi had, already fired about a hundred. And it's mainly, the things there are computations that if you were appointed by Biden and if you have experience as a, defending immigrants before you became a judge, those count against you.

Also, there are statistics, you know, about your do you, how often do you grant asylum and how often do you grant removal? But I'll just tuck in here that Öztürk herself just announced today, her team announced that she is, has settled, she's going back to Turkey. She says this was her original plan.

She got her, she finished her PhD. There is a settlement. And so, they've moved to dismiss her case, couple of cases that are still pending, but they want the judge in Vermont to keep jurisdiction to make sure the terms of the settlement are followed.

And the ACLU announcement says something, I can't vouch for this being true 'cause I haven't seen the DHS—I haven't seen the actual agreement, which was apparently signed April 8th. But it says the government also expressly acknowledged that her SEVIS information status, that's these Student and Exchange Visitor Information Service that keeps track of your, whether you're properly here, has been reinstated and that she was in lawful status at all times that she was in the United States.

So I don't know if that's really part of it or not. I

Benjamin Wittes: Well, that's a pretty big win for her. Yeah,

Roger Parloff: It sounds like a pretty big win.

Benjamin Wittes: If it's for real. Yeah. For those who don't remember the Rümeysa Öztürk case, this is the woman who was literally snatched off the street by masked men on camera. And stuffed into a car like this was Chile in 1973 or something.

Roger Parloff: And there were five crucial cases that were used as as the symbol of this is what will happen to you if you protest, do engage in pro-Palestinian protest. It was her, Khalil, Mahdawi, Suri, I can't—I forget.

Benjamin Wittes: All right. Don't worry about it.

Roger Parloff: Suri and Yunseo Chung.

Benjamin Wittes: So, let's, yeah, let's talk about Mahmoud Khalil, 'cause things are going a little bit less well for him.

Roger Parloff: That's right. His immigration judges are safe. They are reliably ruling against him. And the on appeal, the Bureau of Immigration Appeals also ruled in against him. So, and sort of, accepted all of the government's arguments.

This is before the Third Circuit, he had lost at the Third Circuit panel. He still, at Liberty thanks, but, and is petitioning for rehearing. But if the rehearing is denied, he would I guess, he would lose he would go back into detention.

And the important thing about these immigration judge rulings is that the theory of the Third Circuit ruling which rejected him, was that, that they the, all of his litigation, all of his habeas were barred by jurisdiction stripping provisions. And if that's correct, then he would have to take the, you know, it, he would've been in custody for about a year now while the immigration courts, which can't, which aren't even allowed really to hear his constitutional claims go through his other claims, and only now would it be reaching the appellate court.

And the appellate court is gonna be the Fifth Circuit because he was rushed off to Louisiana, remember? And his immigration court is gonna be the Fifth Circuit. So, yeah, it's not growing that great.

Benjamin Wittes: It is, however, going better for Mahmoud Khalil who is not the subject of judicial sanctions than it is for the DOJ lawyer in the Eastern District of California, who is now the subject of court sanctions what happened in California?

But now you're muted.

Roger Parloff: I would say it's still a lot worse for Khalil. This is more of a cri de coeur than an important sanction. But I just we haven't talked much about this Central District of California. There's a big detention center there that's the the district that includes Sacramento. And this is a fellow who brought a habeas and it just, you know, it's very like Minnesota.

The judge ordered him released and then wanted the a compliance, a certification of compliance. No certification of compliance is filed. And then, so he issues an order to show cause and then issues another order saying return his documents so that his passport and his ID, so that he can get, he won't be rearrested again between here and Utah where he was arrested.

When he tries to go back and he says, confirm you know, confirm that you've complied with this. And even though there's an an order to show cause pending. He doesn't comply with that. And finally the, you know, the explanation that he gives is a good one, the attorney there's, he has 300 immigration cases over the last three months.

He has dozens of responses due daily. He described it as a triage situation. But the fact was you know, this, he had done, he had failed to comply before in other, in two other cases. And he failed to comply twice and here and once while the thing, while the order to show cause was pending.

So he's fined $250 and actually the judge doesn't say what his authority is exactly, he doesn't say what sort of sanction that is. He, his, the ci—cases he cited were civil contempt cases. He doesn't say this is civil contempt. And I know the eighth circuit has some issues about whether civil contempt is, would violate the sovereign immunity.

So, anyway, it's a, but it's a cri de coeur.

Benjamin Wittes: Well, I will just say that this is the 415th case that has made it to our government contempt and non-compliance tracker. And you can find it under the heading Tovar v. Warden, although the name on the case caption on the document is Eblis Alexander YT versus Warden.

Alright, let's talk about elections. Eric. We have a ruling out of Rhode Island against the Justice Department, the latest effort to get voter rolls from blue states. This is, I believe, the fifth such case. Tell us about it.

Eric Columbus: This is the fifth such decision. We talked last week about the decision in Massachusetts.

Just to briefly recap, the Department of Justice is trying to obtain unredacted voter rolls from all, basically all 50 states. Some states have complied, some states have not. It's not entirely clear why the Department of Justice wants this information. They are currently suing a whopping 29 states, plus a District of Columbia.

It's the only time I can think of where the federal government is in litigation against the majority of the states. And their argument is that Title III of the Civil Rights Act of 1960 entitles them to all voter registration-related materials. And this court, the judge is Mary McElroy, who was appointed as the very unusual position of being appointed both by Obama and by Trump.

Her nomination expired under Obama before the Senate could vote on it. And then Trump eventually renominated her. It's a district court nomination, requires the approval of both senators, what's known as the blue slip. And therefore it's fair to say that she's not the type of judge who a Republican president would've nominated if he did not have that hurdle to surmount in terms of approval by Democratic senators.

So anyway, she, like the Massachusetts Court before her last week, she rules against, she looks at Title III of the Civil Rights Act of 1960 and says that it needs to and finds that the court, DOJ has not provided a basis for its request as Title III requires.

She notes also that after—Because they've not, sorry, they've not provided a basis for the request, 'cause they've not provided any reason to suspect that any, there are any problems with voter registration in Rhode Island and that, that federal statutes are not any basis to assume that federal statutes that're relevant, such as the Help of America Vote Act or the National Voter Registration Act are not being complied with.

Now, and she notes then that after the Massachusetts decision, DOJ sent a letter to the courts in every pending case saying, look, if you find that there's no, no basis there, we can file a what DOJ called a curing elaboration letter. That would presumably contain some factual basis for their request.

But the judge said, no, you know, it's not good enough. It's, even if you did that, it wouldn't help you because you also have not demonstrated a purpose for the request, which is also something required by Title III of the Civil Rights Act of 1960. And it's not entirely clear what type of purpose would satisfy the act.

And she said, well, it can't really be any purpose. It can't be any lawful purpose because, and that's unrelated to the purposes of the statute itself. Because then there would be no point in, in, in stating, in the text that there you need to provide a purpose. So she, like some of the other courts before her, said that the purpose needs to be related to investigating violations of individuals’ voting rights.

And that is not at issue here where the kind of purported theory, reason why DOJ wants these is that they're trying to assess whether or not the states are pruning their voter rolls appropriately to take care of people who are not still valid voters.

Benjamin Wittes: Alright. Anna, Judge J.P. Boulee known to his friends as Crème, has denied Fulton County's, sorry I just couldn't resist has denied Fulton County's motion to force the government to turn over that evidence that it seized under the watchful eye of Tulsi Gabbard herself.

What did he say?

Anna Bower: Yeah, the Crème joke kind of, took me a second, Ben, but that's a good one.

Benjamin Wittes: Yeah, you know, I, you get so few opportunities to pun on judges' names that we just gotta take them when they come.

Anna Bower: Yeah, I mean, judge, so Judge Boulee this order that he entered in, which he denied this request from the county to compel additional evidence from the government.

Remember, they wanted the government at a minimum to have to file some sort of declaration or proffer regarding the timeline of its investigation. You know, when did this criminal referral happen? When did the investigation actually start? Because it all goes to their pretext argument that really this search warrant was executed because Harmeet Dhillon had been unsuccessful thus far in getting through civil process the same records.

And in this order, Judge Boulee says basically like, I don't know why you're asking me to get involved in this. Like, it's up to you to make requests for this information. You know, it's I don't need to get involved basically, like, but what I will do is allow you to submit further evidence until April 27th.

So if you can get it through you know, a Tuohy request. If you can get it through some other means rather than having to get me involved, you know, I'll consider it, but I just don't wanna get involved. That's kind of the gist of what he said in this opinion.

So, Ben, it looks like we won't get an order from Judge Boulee until least after April 27th which is when the deadline that he set for Fulton County supplementing its evidence.

So we will see if they are able to get anything. I suspect not since the government has invoked privilege claims with respect to all of this information that they're seeking. But there may be things in the public record that they can supplement in terms of, you know, asking Judge Boulee to take judicial notice of it.

Benjamin Wittes: Alright, so, Roger, speaking of D.C. Circuit two to one opinions involving Judge Rao, the D.C. Circuit has remanded the monument case. The—or I guess one of the monuments cases, the can Donald Trump bulldoze the Justice Department and build a giant ballroom—not the Justice Department, the East Wing and build a giant ballroom on top of it, citing national security.

And this has also produced a lengthy dissent this time by Judge Rao, but Judge Leon seems to have used enough exclamation marks to have persuaded a majority that he should at least not get reversed.

What's going on the ballroom case?

Roger Parloff: Yeah. So he had issued an injunction, which he himself stayed while for until I guess today originally.

And the stopping construction on the ballroom because he said Congress has to approve this sort of thing. But the Trump administration had made, started making even before him the first time, claiming that there's all sorts of national security reasons that construction has to continue, because there's gonna be a bunker underneath.

There's gonna be—and it's vital to the president's security to have the ballroom and, and so he put an exception in the injunction for safety and security reasons. And immediately Trump went out and said, well, the whole thing is, the whole thing falls into the Safety and Security Exception.

Benjamin Wittes: I mean, a ballroom, a giant ballroom on the surface because there's a bunker underneath.

Roger Parloff: Well, the, yeah, the ballroom will protect the bunker and you know, the ballroom will have all sorts of anti-missile glass and anti-drone stuff. And so it's all an integrated whole, you can't do without any of the gilding even. It's all national security.

And that went to the D.C. Circuit and they and then before it went to the D.C. Circuit, the even the plaintiffs had asked for clarification of this Safety and Security Clause because Trump was saying, I can do anything still. And so two of them, two of the judges agreed I don't have it in front of me, but they're democratic appointees, that—to send it down for a short remand, clarify what you mean by where are the lines on the security and safety carve out.

Then Rao dissented about 10 or 12 page, 12 pages and basically accepted all of Trump's arguments. There's no standing, the balance of the equities is clear 'cause, you know, it's vital to the president's safety and security, and there was sufficient statutory approval citing statute that under which Congress had a appropriated $2 million, $500,000 to, you know, for care and upkeep of the White House, which doesn't really talk about a $400 million ballroom. But anyway, we know where Rao is gonna be.

So it went back to Leon and he issued a 10-page ruling. He tried to clarify I have to say it's not 100 percent. It's still clear. Basically anything below ground you can do, and then those things that are vital to protecting the things below ground you can do. So it, I don't know if that's gonna satisfy people.

Benjamin Wittes: And just to be clear, how many exclamation points were used in the clarification?

Roger Parloff: There were three. Which, three out of 10 pages, it's a fairly low exclamation mark, density 0.3. I think that's the lowest we've seen.

Benjamin Wittes: Okay. It's important to keep track of these things and you get,

Roger Parloff: A low energy decision.

Benjamin Wittes: Yeah I, you look, you get, you can get the number of exclamation points in a lot of media organizations, but the exclamation point density is really, that's the value add that Lawfare brings.

Alright, last case this week before we go to audience questions. Eric, the president did not prevail in his libel suit against the Wall Street Journal regarding that Epstein birthday book. I'm stunned.

Eric Columbus: Well, he has not prevailed so far. I would, I do not think he's going ultimately to go to going to prevail, but is not over yet.

So this, as viewers may, listeners and viewers may recall relates to an article that the Wall Street Journal published alleging that there was a birthday book that was given to Jeffrey Epstein, I believe, for his 50th birthday, letters from friends, including a letter from Trump that contained several lines of text framed by the outline of a naked woman, which appears to be hand drawn with a heavy marker. A pair of small arcs denotes the women's breasts and the future president's signature is a squiggly Donald, just below her waist.

That is from the Wall Street Journal article about this. Trump sued the Wall Street Journal for defamation for $10 billion dollars for the suggestion that the letter might have come from him.

Benjamin Wittes: The same $10 billion dollars that he sued the IRS for the leak of his tax returns or a different $10 billion dollars?

Eric Columbus: Well, he's, he is very consistent and, you know, 10 billion is one, one unit for him. And he will accumulate as many as the, as defendants will give him. And so he sued. After that, the Epstein Estate gave Congress the actual or an actual birthday book, and it contains a letter that very much matches the Wall Street Journal's description. That of course, does not prove that Donald Trump authored it, but it does have his name on a page and in a manner that very much matches what the Wall Street Journal said.

Wall Street Journal moves to dismiss the complaint. And it's, it’s main points are one, this is true, what we said is true. Look at this birthday book that the Epstein State gave to the Congress. And secondly, he has not said that the, Trump has not pled in his complaint that defendants, Wall Street Journal published the article with quote, actual malice, which we'll get to in a minute.

The first point, whether the article's true, you would think that would resolve the case. But the judge noted correctly that this is a motion to dismiss and you can't really resolve disputed facts on a motion to dismiss. And here, President Trump disputes that the art, that the thing is real. And so, we'll, we can deal with that later. However, the actual malice issue the judge did accept that and kicked the case on those grounds.

Now, actual malice is a term that the Supreme Court used in New York Times versus Sullivan to mean like the standard that needs to be shown in order to, to plead a defamation case against a public figure. Actual malice is somewhat of a strange term, does not mean what a normal person would think it means.

It does not mean you are acting maliciously. It means basically that false—

Benjamin Wittes: The reckless disregard, knowing or reckless disregard for the truth.

Eric Columbus: Exactly. And Trump's complaint, the judge noted, does not allege that it, it alleges in fact, kind of the opposite. It alleges that the Wall Street Journal spoke with Trump about the alleged letter.

And Trump said that he didn't do it. And the Wall Street Journal published Trump's denial. So the complaint confirms that, and the article confirms that the defendants in fact, attempted to investigate. So, but the court said, look, you wanna take another shot at this? You can we'll let, I'll let you amend your complaint.

You've got two weeks to do so, April 27th. Trump has already said he would do that. It's not entirely clear how he will amend the complaint because the very facts in it undermine his case. But I'm sure he will come up with something.

Benjamin Wittes: Alright. We've got two audience questions. First one I think is for Anna from the anonymous attendee:

Are there any avenues for challenging DOJ settlements with Michael Flynn and potentially with Trump in the IRS matter? If so, who can undertake such challenges?

Anna Bower: It's a good question, and I'm not sure I know the answer. I mean, there so there often are situations in which a court has to approve a settlement. So that's in cases like you know, the Live Nation case, we've seen some discussion about discussion—

Benjamin Wittes: —Class actions

Anna Bower: Yeah. Class, like that kind of thing. Here I really don't think that there's—I mean, Roger, Ben, Eric chime in. I can't think of how a private actor or an intervener would be able to challenge this. Can you?

Benjamin Wittes: It's all but impossible to imagine for me in the Flynn case where you, where it's really a private money damages question between the government and an individual. Usually, the courts would take the position if there's no dispute between the parties.

There's nothing for anybody else to, it's nobody else's business.

Anna Bower: Right.

Benjamin Wittes: It may be a little different with respect to the IRS and a very large payout where there's an allegation. I mean, not an allegation clearly where there's a self-dealing component. You could kind of imagine a situation there in which somebody would come in as an intervener and say, wait a minute.

We want—but it's not clear to me who would have standing to do that.

Anna Bower: Yeah.

Benjamin Wittes: I do think like many courts might be a little bit might take a look if a party who purported to have standing, sought to intervene on that basis because the situation is so peculiar. But I can't think of who would have standing.

Roger, you were about to jump in.

Roger Parloff: No, that's about where I was coming down. Yeah.

Benjamin Wittes: Alright. Carol asks: If the DOJ claims to find improper or illegal voter registration, do they have a legal mechanism to make a state remove those voters or make it cumbersome for those people to vote?

Eric, Roger, Anna, do you, any of you have thoughts on that, Anna?

Eric Columbus: Yeah,

Benjamin Wittes: Go ahead, Eric.

Eric Columbus: Yeah, sure. So, yeah and this I went into some of this in the article that I wrote a few weeks ago for Lawfare. Basically the, it would be hard for the Department of Justice to do that. There are, the states are required to make a, quote, reasonable effort to remove ineligible voters.

And that just kind of means that you're kind of trying, in some decent way. If the state believes that the person is a valid registrant and they don't need to accept the Department of Justice's word for it the Department of Justice can sue and it, but they don't, the suit cannot I don't believe it can result in removing the actual person from the list.

That said, of course, voting for—an ineligible person to vote is a federal crime. And if DOJ believes that a specific person is not just improperly on the list, but improperly voted, they can prosecute that person.

Benjamin Wittes: Alright, we're gonna wrap—

Anna Bower: Wait, I would, I would just add that one way they're trying to do it is through the weird post office executive order, elections executive order that that we've written. I believe that it's Molly. It was a co-bylined article. I think it was Loren Voss, maybe, and Molly who wrote about this.

And so you can check that out if you're interested in further explanation of why it would be impractical for them to do the things that they're wanting to do through this executive order regarding people on the voter rolls.

Benjamin Wittes: Alright, we are gonna leave it there, folks. Thanks this week to Eric Columbus, Roger Parloff, Anna Bower, and guest appearance from Lucy the Dog.

[Outro]

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