Lawfare Daily: The Trials of the Trump Administration, April 18

[Intro]

James Pearce: I think that there are some folks who watch, read Judge Wilkinson, see that he's a pretty good weathervane for the Supreme Court, and may not want to get an opinion like Judge Wilkinson's.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittes, editor in chief of Lawfare with Lawfare Senior Editors Anna Bower, Quinta Jurecic, and Roger Parloff, and Legal Fellow James Pearce.

In a live recording on April 18, we discussed the status of the civil litigation against President Trump's executive actions, including Judge Boasberg's finding of probable cause of contempt by the government in the Alien Enemies Act case, the wrongful removal of Kilmar Abrego Garcia, the funding freeze cases, and so much more.

Roger Parloff: If the allegations in that case are accurate, that they are still trying to bundle them out of the country, that apparently nine justices of the Supreme Court all agree is illegal.

[Main podcast]

Benjamin Wittes: Hey folks, welcome to this week's Lawfare Live. It has been a wild and wooly week, and we are, we had to do one emergency live stream about it, and this is our non-emergency live stream, but it's the second of the week. We got a lot of ground to cover. We've got El Salvador cases, we've got grant terminations. We've got another TRO hearing in a law firm case. We've got universities. You know, it's just been one of those weeks.

I am here in the hammock studio with James Pearce Lawfare fellow extraordinaire in residence; Roger Parloff joining from the Sconce Studio; we've got Anna Bower joining from the brick dungeon of her palatial mansion. Anna, I have not seen this room before. Do you hide bodies in it?

Anna Bower: This is where I hide the administrator of DOGE, Ben.

Benjamin Wittes: Okay, well, we're gonna get to the administrator of DOGE. So, you know, you better be prepared to produce him when, when I ask, you know.

Anna Bower: Or her.

Benjamin Wittes: That's true, since formally it is a her. And from the Ansel Adams studio it is Quinta Jurecic. Hello Quinta. If you don't say anything, they don't see you, 'cause you know.

Quinta Jurecic: Oh, hi.

Benjamin Wittes: There you go. Alright, let's get started. We're gonna start with the, what, you know, we call the Salvadoran dungeon cases. We had two major developments this week.

First Judge Boasberg issued his ruling on the, not on the contempt matter, but on the probable cause of contempt matter, and then we had in the Abrego, in J.G.G.; and then we had in Abrego Garcia the Fourth Circuit's very dramatic ruling by Judge Wilkinson yesterday. So, James, get us started with the contempt ruling. Give us an overview and of where we are with that.

James Pearce: Yeah, certainly. Thanks Ben. So, so as you mentioned, it was ultimately a probable cause of contempt hearing. And to jump to the end for a moment, interestingly the government has actually already appealed that, and it's not clear that it is an appealable order, but the government certainly didn't like what Judge Boasberg had to say.

To, to make sure everyone's on the same page, this stemmed from the temporary restraining order that Judge Boberg put in place when he learned after the five named plaintiffs in the J.G.G. case moved for judicial intervention and an effort to stop their removal to El Salvador as part of the, the mass removal that took place under the Alien Enemies Act.

There was an emergency weekend hearing in which at one point, Judge Boasberg—upon learning all of the, the relevant facts—directed the government to stop the removal, saying things like if you need to turn planes around or not discharge the individuals in El Salvador; I leave those operational and logistical details up to you, but you do need to cease that removal.

That, that language will, will become relevant for, for in a moment. As, as I'll explain as I, I think most, most people who have followed this closely know that that in fact did not happen. And then a whole bunch of litigation followed from there.

This particular order focused on whether the government's conduct in response to the, the TRO, and there was both an oral order that Judge Boasberg gave during the hearing and a follow up written order that came about 45 minutes later. There was a plane in the air at the time and nonetheless, all the individuals ended up in El Salvador, at least as, as far as we are aware—except I, I should mention the five named plaintiffs.

Also one other relevant fact that, that folks who follow this closely probably are aware, some individuals, I believe it was all women, although perhaps Roger Anna or others could, could correct me, were returned when it turned out that CECOT the prison in, in El Salvador was not prepared to accept female detainees which at least evinced or, or, or demonstrated that it would, it is possible for the, for the return to happen.

So this was an order on whether there was probable cause that the government had not complied with the, the TRO that Judge Boasberg put in place. The first question that he dealt with here is whether he actually had the basis, sort of the jurisdiction to go to move forward and decide it. So the government had said, well look in subsequent litigation, when it made its way up to the Supreme Court, the court said these are all habeas cases, they have to be filed in the district where the individuals were detained; that was not the District of Columbia, and so therefore, court, you do not actually have the authority to, to move forward with anything, including determining whether there has been non-compliance with your TRO.

Judge Boasberg disposed of that; he relied on a, a Supreme Court case, unanimous Supreme Court case from the early nineties case called Willy that involved the imposition of Rule 11 sanctions in a civil case where after the the sanctions were imposed, it was determined that there was not actually a basis for that case to be in federal court. Chief Justice Rehnquist writing and Judge Boasberg analogizing to that case says, look, the government has to comply with these orders even if on appeal a the order is, is ultimately reversed.

When he moves through that, then he gets to this question of whether or not there was contempt, although, again, ultimately he is not going to land with a, with an order, a finding, but a, but instead of probable cause determination. I should pause for a moment on the probable cause piece—he, Judge Boasberg notes, it is not required for court to do what he's doing, which is taking kind of a first step of making a probable cause determination, but he believes that it is, it's sort of a best practice to assure the kind of procedural safeguards.

And for those of you familiar with the criminal justice system, it is not unlike one might say a grand jury reaching a probable cause determination of a criminal violation and then there being kind of moving forward to a, a potential adjudication with beyond a reasonable doubt standard, so.

Benjamin Wittes: James, can I, can I pause you there and just ask you—usually when I've seen this done, it's done in the kind of the, in the negative, the judge issues a show cause order, why you shouldn't be held in contempt rather than issuing a a probable cause order that you should.

James Pearce: That's been my experience as well. I'm not entirely sure why Judge Boasberg not only adopted a different path here, but then actually went and gave in his probable cause analysis, a pretty comprehensive factual and legal recitation as to why he thought each of the elements were satisfied. But yes, it, it has been my experience both in, in criminal contempt and, and somewhat less so some experience in the, in the civil contempt world, where you get that, that sort of probable cause finding in the negative and then you kind of go and do the, the, the legal and, and factual work to, to prove it up. But that's not, that's not the path he, he adopted here.

Anna Bower: Can I just say though, I wonder if it's because there was already a hearing about whether or not the, the government violated his order, right. Because there was that hearing a few weeks ago. And so instead of having a, you know, a hearing after—does that make sense? Like we already kind of had the hearing on, you know, show up and tell me why I shouldn't hold you in contempt.

Roger Parloff: It was an order to show cause why there wasn't a violation of my order. They didn't use the word contempt, but–

Anna Bower: Yeah.

James Pearce: Yeah. And ultimately I, I don't think I mean, one, one could, could worry that there's a notice type problem here, but I, I just don't, I don't see that as a, as a, as a concern. I think there's been—Judge Boasberg has been generally pretty careful about signaling what he is trying to do and giving the government ample opportunity, including in this very order by designating a, a probable cause finding and giving the, the government—as, as we'll talk about in a moment—kind of two, two different doors or paths to go down.

The contempt analysis as some folks may know, is determining whether there is a clear and specific order, that's question number one; number two, whether there has been a violation; and third, whether that violation has been willful.

And in I think a, a pretty detailed accounting, Judge Boasberg walks through each of those. He describes the, the order that he issued first orally. He focuses ultimately on the written order, but then comes back to say the oral order gives further context to establish precisely what it was that he had directed the government to do, which was not to remove individuals. The government's argument here was remove just meant you know, not leave the U.S., it didn't, it didn't encompass and then be transferred into El Salvadorian custody. And by the way, court, you don't even have the authority to order us once they're in the air or once they're out of U.S. custody. I think Judge Boasberg, in my mind, fairly persuasively walks through why that's not a, a, a compelling argument and more, more than that, a mischaracterization of what he had actually directed the government to do. So that is, is how he, he determined there was a, in fact, a clear and specific order.

He moves then to whether it had been violated. In that discussion, I think he's—in his words, the, the, the government has essentially conceded a violation on his interpretation of it, in other words that they, the government, failed to—had the opportunity but failed to—keep the individuals, the detainees from being discharged into El Salvadorian custody.

And then finally, in talking about the question of whether it was willful he uses pretty strong language here. I'll, I'll quote some of it. He says, from the opening hours of Saturday, the government's conduct betrayed a desire to outrun the equitable reach of the judiciary. Such conduct suggests an attempt to evade an injunction and deny those aboard the planes, the chance to avail themselves of the judicial review that the government itself later told the Supreme Court is quote, obviously unquote available to him. So pretty strong language there on the willfully piece. So that all in service of his ultimate conclusion that there was probable cause of of, of contempt, of criminal, not civil contempt.

And then at the very end, he leaves these kind of next steps. One is that the government can purge itself of contempt by, in fact, complying with his order, bringing folks back so they can have the process to which they're entitled or be prepared for essentially moving forward with contempt proceedings.

Interestingly, under Rule 42 of the Federal Rules of Criminal Procedure the, the prosecuting entity would first be the government, unless the District Court determines in the interest of justice to appoint a special prosecutor or the government itself declines. I, I suspect the government is not going to purge itself; I think some of the signals from the White House have been quite clear about that, so it will be very interesting to see what happens at, at this point.

One last thing that, that Judge Boasberg kind of adds at the very end of his opinion that is interesting, probably anticipating where this litigation may, might go, is he comments on what he thinks is an exceedingly doubtful basis for invoking the state's secrets privilege.

We, we, we know that the government has already noticed that as part of all of this. Judge Boasberg has quite a bit of experience from his time on the FISA court and with GDC litigation, so, that may well come into play, but that's, that's where we stand. I think it's April 23 where the government has the, has to sort of make clear which path it's choosing. Though I think it's, as I said, highly unlikely, that they are choosing anything other than the second door.

Benjamin Wittes: Alright, so help me out 'cause I've been—ever since he issued this order, I've been trying to puzzle through this, which is he gave them two choices. One is tell me, you know, purge the contempt somehow, which functionally means bring them back. The, the second option is tell me who the miscreant is who made this decision, which we all kind of know from news reporting is Steve Miller, but we don't have that in the record in a way that you could use.

So assuming that they choose neither and they say, we're not cooperating with this witch hunt, which a liberal unelected district judge decided to do, can you hold the government in contempt without identifying the specific perpetrator? Or do you need to identify an individual?

James Pearce: I think you have to identify a, a particular individual, and, and Judge Boasberg himself has said, you know, the government should be prepared through declarations and hearings. As I mentioned that under Rule 42 it's, it ultimately would not be him that is doing this; it would be you know, to, to complicate this even more, either the government itself or more likely some sort of a, a special prosecutor.

But I, I don't think, and certainly I'm not aware of a, a sort of a government writ large being held in contempt. I, I stand ready to be, be corrected on that by anybody who, who's, who's seen that. But I, I do think you need to come up with particular contemnor, not, not just sort of a, an entity, entity that has, that has engaged in contumacious conduct.

Benjamin Wittes: And so what do you do if you're the judge and the government, you know, asserts privilege after privilege—some of which will be frivolous, and some of them may not be frivolous—attorney client wise, executive privilege, you know, blah, blah, blah, and by the way, executive privilege is stronger than it was the last time the Trump administration was in office 'cause of this immunity decision. What do you do if you're unable to identify the condemner?

James Pearce: Yeah, I think that's a great question for which I, I don't have an answer. I mean, again, it's not, it won't be the judge himself, judge Boberg. It will be the special prosecutor taking whatever steps that prosecutor can take. I'm assuming here that the government is itself not going to engage in the prosecution of this contempt, criminal contempt case, but yeah, you know, I think this, like, unfortunately a lot of what we're looking at these days, it's this sort of clash of, of, of the government just putting up kind of obstructive wall after obstructive wall, and, you know, it's not, it's not clear to me how that, how that ends or what either the special prosecutor or, or Judge Boasberg—and I should pause for a moment. It's not obvious that Judge Boberg would preside over any criminal contempt.

It is not unusual in these matters where you have you know, for the very reason that it is the court, one court would seem to have an interest in the matter when it is issued, the order that it would go to a different judge in the, in the District of, of Columbia to oversee any criminal contempt proceeding. It doesn't answer your question. It doesn't say what that judge would be able to do, but just to, to put that out there. But I, I don't know. I, I, I think that poses a, a, a quite a challenging quandary.

Quinta Jurecic: Can I raise one interesting possibility here? So one sort of quirk of the way that Boasberg has fashioned the contempt proceedings so far is that he's pursuing criminal contempt, or he's indicated that he's found probable cause to pursue a finding of, of criminal contempt, which, so for listeners that criminal contempt is backward looking, it's a punishment, and the president can pardon a contempt charge as opposed to civil contempt, which is sort of forward looking and leaning on enforcing compliance.

I think there's reason to think that Boasberg may be going with criminal contempt because the extent to which the—how much of this case is in, how much of his jurisdiction is very unclear right now, and so backward looking kind of avoids some pretty naughty questions about the extent to which he can find anyone in civil contempt.

But the interesting thing about the way that he's fashioned this order of either purge the contempt or tell me who's responsible so I can pursue criminal charges is that it might open a way for him to sort of stack civil contempt on top of the criminal contempt if the Justice Department, then, you know, the administration refuses to hand over that information about who is responsible or if there is contemptuous conduct in the process of any kind of prosecution—although, as James says, I don't think it's clear that Boasberg himself would be presiding—because then you would have contempt in refusing to abide by the court's order going forward in the, within the contempt process. So it's kind of nested and at that point, it's no longer criminal. It's civil.

Benjamin Wittes: I've heard of double hearsay. I'm not sure I've ever heard of double contempt.

Quinta Jurecic: Contempt inception.

Benjamin Wittes: Yeah. It's the, it's nested embedded contempt. But you have teed up beautifully my question for Roger, because this all raises the question of how much of the case is still, in fact, in front of Mr. Judge Boasberg. He spends a fair bit of time in this case, in this decision explaining why he, why the vacating of his original order doesn't moot the contempt question, but how much of this case does he still have?

Roger Parloff: Yeah, that's a really good question. He, I mean, we—the plaintiffs, he had invited the plaintiffs to file and say whether they were still going forward with, they thought they could bring a, a motion for a preliminary injunction, and I wasn't sure what he meant.

So they have come back with a proposal to do several things, and they, for, to begin with, they take the position that the class here was never dissolved, even though the TRO was by the Supreme Court. And it's true if you track the language the court only vacates the TRO.

There are but it, it's, it gets strange, and what they've come back and wanna do is a couple things. One is the immediate thing is they would like to do, I think a nationwide class TRO on notice alone, requiring that anyone who is going to be taken out of the country under this proclamation needs to get 30 days notice and all and an opportunity to be heard, which is the same thing that, you know, the German enemy aliens during World War II were offered.

So, and, and because it's only notice that they're seeking with respect to that, and they're not seeking release, they're not even seeking to not be transferred out of the country from this order—they say that would not be a habeas. At the moment though, you have a class with no named plaintiffs, all of the name plaintiffs are out of D.C. and in fact, they're now involved in new lawsuits. So you're gonna need a new named plaintiff pretty soon.

All of this sounds pretty aggressive to me. And he also wants, and then I think they would, that's their immediate goal. They wanted to have a TRO on that actually a hearing this afternoon. They couldn't he did not give them that, e gave it Monday afternoon at 5. That's again, that's and I I read it as a nationwide thing, and it, it seems aggressive.

Then they wanna also bring back, they, they would like to form a class on behalf of the people in El Salvador, the 137 that were sent out under this proclamation without due process and on the theory, using the jurisdictional theory that was used with the Guantanamo prisoners the Rasul v. Bush case. And so that too would be a pretty exciting thing that, that I think will require a an amended complaint. And, and, and they would, I, I forget their timeline for filing that, but they are plan to file an amended complaint.

And then they, they also would like a class of all of those who are confined right now for criminal matters. And that part I didn't understand at all what their theory was for getting jurisdiction in DC for, for those that were confined criminally. I, I don't know why that wouldn't be a habeas and required dispersed filings. But anyway for, but all of this is just the plaintiff so far, and, and Judge Boasberg hasn't given you know, any indication that he's gonna bite on any of this.

Benjamin Wittes: Alright. In the meantime though, we do have, Quinta, a bunch of people who have gone ahead and just filed habeas cases in their local jurisdictions, right?

Quinta Jurecic: That is right. I think there are more every time I check. There are over five, let's, let's go with that. in local jurisdictions.

Off the top of my head there's been a class certified in SDNY, I think the Western District of Pennsylvania, District of Colorado, Southern District of Texas. There's one in Northern District of Texas, which I wanna get to in a minute. And then I also know of at least one case in Greenbelt that is currently an individual plaintiff who received a temporary restraining order barring the administration from removing him, but the litigants are seeking class certification.

So the, the Northern District of Texas issue, I think I'm gonna be a little hazy on because it is currently happening. I think I see some people in the chat have mentioned this, but this is in the Bluebonnet Detention Center in Anson, Texas. So this is a group of Venezuelans. They had sought a TRO after being handed paperwork yesterday that indicated that the administration intended to ship them out of the country under the Alien Enemies Act. Applied for and did not receive a TRO in that district.

And now, I believe that case is being litigated by the, the national ACLU which has also now filed an additional filing before Boasberg in J.G.G., asking for him to expedite his ruling, requiring additional notice along, nationwide, along the lines of what Roger was saying, reasoning that these people, I think it's been less than 24 hours since they received this paperwork, and the notice I'm using air quotes there, if you're, you're listening to the podcast later, is basically a piece of paper that says you're being re you're being detained, removed under the Alien Enemies Act. It's in English, there's no translation.

There's—I'm reading it right now—very little or no information about what process is available to, to these people, so it certainly seems like the administration is now trying to play games with the meaning of adequate notice or time to contest the removal. And the last I had seen, I think the ACLU filed an emergency motion before Boasberg about 20 minutes ago, and it doesn't look like the docket has updated.

But so that's a, that's a case where most of these cases judges have granted either class-wide TROs for a specific detention center, a specific district, or you know, starting with one plaintiff, maybe expanding it with the exception of this case in the Northern District of Texas.

Benjamin Wittes: And just to be clear, when the, the government hands you a piece of paper, the ACLU files, a emergency habeas motion, and the judge doesn't do anything, there's nothing that prevents after a reasonable time subject to executive interpretation, the government from just deporting you, right?

Quinta Jurecic: I think that, I mean, I, I don't see how that wouldn't be the case. I mean, I will say it's also worth noting there is at least one individual who has actually filed individual habeas petition from CECOT. So this would be the second, I, I think his name is Edicson Quintero something. Apologies, I don't have it in front of me. So this would be the second person—

Benjamin Wittes: The case is Edicson v. Dickerson.

Quinta Jurecic: Thank you. Yes. Which I, I believe Edicson is his first name, so I'm a little confused there. But at any rate, so this, this would be the second case filed individually on behalf of someone who is currently in CECOT. That is a, a habeas claim, I believe it's in D.C. So I think it's, it's worth noting that—you know, not this is pretty cold comfort—but if these individuals were removed to CECOT at this point, it seems like there's some kind of process to file a habeas claim from there. Obviously I would argue that they should be provided the adequate notice to, to receive legal process before being removed there, but I do just wanna note that because that has been an update that's occurred since the last time we talked about this.

Roger Parloff: If, if I could just belabor the obvious there too, if, if the a allegations in that case are accurate that they are still trying to bundle them out of the country with inadequate notice that this is something that they now know that apparently nine justices of the Supreme Court all agree is illegal. Certainly all nine—the per curiam said you can't do this, and no, there were no noted dissents. So it's really amazing.

Benjamin Wittes: Right. And, and just to foot stomp that point, the, you know, the, the per curiam doesn't say that—it says that you have a chance to notice and a chance to challenge it in habeas, it doesn't say anything about how long the courts can or should take to, to deal with that.

And so I, I think the, you know, in addition to, you know, it would be a very interesting confrontation at the appellate court levels if the government took the position as long as you got to file the thing, it was perfectly appropriate of us to remove you before that was adjudicated. That, that's a, you know, that's not a, I mean, I've never defended a matter at a hostile appellate court, but I'm not sure I would wanna be a government lawyer defending that.

Quinta Jurecic: There's, can I make one, one additional point here? So also the, the gentleman who filed from CECOT, his, yeah, his name is Edicson David Quintero Chacón. I do think it's notable just as we're kind of chronicling the administration's creep toward outright defiance of court orders that as far as I know, they have not directly defied—in, in all the instances in which a court has granted a TRO class-wide or individual after J.G.G, I don't believe that they have removed anyone under the Alien Enemies Act, that they've abided by all those court orders. It's just now when this judge—I don't don’t know the judge, apologies—in the Northern District of Texas declined to issue a TRO that they're now seemingly trying to play games.

Benjamin Wittes: And did the judge decline or did the judge just not act?

Quinta Jurecic: I believe the judge rejected the motion for the TRO, but I will confirm that.

Benjamin Wittes: Okay. So Roger, let's talk meanwhile before we go to Abrego Garcia, let's talk briefly about the birthright citizenship order. That's now gonna get oral argument before the Supreme Court. What's going on there?

Roger Parloff: Oh I was gonna let James discuss that one.

Benjamin Wittes: James

James Pearce: There's not, not a whole lot to say beyond just the top line, which is that the court has set oral argument. It's set it for May 15th, which is interesting in and of itself; that is about three weeks after its final argument and well beyond when it usually hears argument. The setting of it at that date is in some ways in line with what the court has already done, which is in a world of a lot of emergency litigation, moving very quickly to move a lot more slowly on these birthright citizenship matters. So as, as folks may recall, the deadlines were set at a different trajectory. And after, after it was briefed, they kind of took a while and finally have set it, keeping a stay in place.

So there are three particular cases that came out of the Ninth, the First and the, the D.C. Circuit. And then we'll hear argument, which will focus mostly on, as I, as I understand it, really the propriety of using a nationwide or universal injunction. Some people draw distinctions between the two of those, I don't think we need to go into that now.

But to me, I think the bottom line is that the court is not moving quickly on this. And in some ways may just be buying themselves a little bit of time while there is churn and a lot of activity in things like what we've just been discussing, maybe Abrego Garcia coming back to them, the MSPB and NLRB cases that—I don't think we plan to talk about that—potentially kind of showing up on their docket.

So, I think it's a bit of a, kind of a buy for more time for the Supreme Court. And it'll be interesting to see in mid-May whether, you know, how much of that argument moves into the merits and how much of it is really about this question that some of the justices have been quite kind of eagerly batting back and forth, which is again, how appropriate it's to be using universal injunctions in these cases.

Benjamin Wittes: Yeah. I mean, formally it looks like it's not a merits question at all, right?

James Pearce: That's right, that's correct. Yes.

Benjamin Wittes: So you could have the big birthright citizenship case go up for the first time, and it really just be about the scope of the injunction.

James Pearce: Yeah. And that's, that's how it's teed up. That may be how, how the court would like to tackle this issue for now, as I said, in, in a, in a, in an environment with a lot going on and a lot of things coming at them at, at quite high velocity. But yes, you could have, have no meaningful engagement with the merits underlying question.

Benjamin Wittes: All right. Quinta says she has an answer on the denied TRO.

Quinta Jurecic: Yes. And many thanks to the, the wonderful Anna Hickey, who behind the curtain was helping me research this very quickly. So the case title somewhat bewilderingly is actually AARP v. Trump. The AARP are the initials of one of the plaintiffs. It's not the American Association for Retired Persons.

So, the judge, somewhat bewilderingly, denied the motion for a TRO because the Supreme Court's ruling in J.G.G. leaves no doubt, and this is a quote, leaves no doubt that detainees like the petitioners are entitled to some level of due process and judicial review. And so is essentially saying there's not a likelihood of irreparable harm because J.G.G. shows that the government has to provide them legal process, therefore the government surely won't remove them.

Roger Parloff: Well I, I think in, I, is this the Northern District of Texas case?

Quinta Jurecic: Yeah, that's right.

Roger Parloff: I think the government was also saying, we won't remove this guy, we won't remove the named plaintiff. And I, I don't think they had gotten yet to the class issue. He's going awfully slowly on the class issue. And he is a Trump appointee, if you were wondering.

But it's also hard because a lot of those filings, in the habeas cases are not public. It, it's really hard to follow. And that might be because a lot of filings in immigration cases are not public. I, I, I don't know though why, why so much has to be non-public.

Benjamin Wittes: Alright. Roger, you wanted to talk about D.V.D v. DHS, and I gotta say I—these acronyms with D, I just can't keep them straight. I don't even know which case this is.

Roger Parloff: This is one that I, I think is actually pretty important. It's in the District of Massachusetts and it has to do with a change of a very quiet change in policy—all of this is quiet on Trump's part—-that occurred on Feb. 18. And this is related to Abrego Garcia as well.

And so, you know, these people that were in his position that have the status withholding of removal, they are removable because they came in illegally, but they are not supposed to go back to their home con country because they would get either persecuted or tortured or whatever.

And what they've said is, and, and in the past there was a policy in the, in the department that if you change that, if you decided, well, okay, let's try to send them to a third country, you would give him notice and give him a chance to say, no, I'll face torture there too, or, you know, at least give him a chance to speak up. And they changed that and said, no, you're removable. You can go now and we don't have to do anything else.  And so all of these immigration lawyers thought, wait a minute. I mean, you, there's no, you can't just say you have a removal order when there's no country designated, but that's what they've been doing.

And so this is a class action, and I think it's, it's nationwide on behalf of everyone that are potentially in that situation. And a preliminary injunction was entered and a class certification, I think today. And it's, it's long and I haven't read it, but that seems like an important thing for me to read.

And the people are in different states. One is in, one is in, one has been removed to Mexico. He was, he had, he wasn't supposed to be—he was, he wasn't supposed to be removed to Guatemala, so they sent him to Mexico, and Mexico sent him to Guatemala. He's in, he's hiding out according to the complaint. I think a couple are here and, and so on.

Benjamin Wittes: All right. We are gonna turn to Abrego Garcia, but before we do, I would be remiss if I didn't mention that we have our ongoing fundraiser going on, it being our ongoing fundraiser. And you know, for all of you who were Anna Bower fans I, I have really resented that you guys have dominated the fundraiser.

And as you can see, you can identify if you go to givebutter.com/journalism, you can identify, you know, who you want your ident your contribution to be associated with, and Anna Bower is just kicking the rest of our asses. And I take this personally as like the, the head of Lawfare, and so I want you to go there and, you know, support me. Don't support Anna 'cause that makes me feel like, you know, less important. So go to givebutter.com/journalism, participate in our fundraiser, but don't give the money to Anna.

Anna Bower: I wait. I, but Ben is the runner up right now, and so my suggestion is going to be for the last I checked that everyone give to Tyler, our managing editor, because the last I checked, he had just added himself to the like team or whatever, the fundraising team.

Benjamin Wittes: This is a zero sum game, guys. Any dollar you give to Tyler, I'm, I'm keeping score.

Anna Bower: But I'm just saying I, I'm endorsing Tyler for the time being because he, I think Tyler needs some love on the fundraising. But yeah.

Benjamin Wittes: All right, let's talk Abrego Garcia. While everybody is going to that thing, pressing the Ben button, and directing money to me, Anna's gonna talk to you about Abrego Garcia, which is really the wildest and wooliest part of the wild and wooly week, right?

Anna Bower: Yeah, it's been a wild week with that case, Ben. So, and, and I don't wanna focus too much on what happened earlier this week because we did do an entire Lawfare Live that everyone can watch, that Roger and I went live from the Greenbelt Public Library, which was by the way a complete furnace. It was so hot. So if you notice that Roger and I have like sweat running down our faces, then that is why, because for some reason—it was a lovely library—but that particular room was like 90 degrees. But so, beyond that though, people should, should definitely watch thatlive stream where we go in detail on the hearing that was held earlier this week.

But to get you up to speed, Ben recall that last week when we spoke, there was just a Supreme Court order that came down in which the Supreme Court said yeah, at a minimum, the government has to facilitate the return of Abrego Garcia, who was wrongly sent to the gulag mega prison in El Salvador. And then Judge Xinis followed up by changing her order, which previously said that the government must effectuate his return to now saying that the government must take all available steps to facilitate his return.

She then a few days later on Tuesday in Greenbelt had a hearing after she—in an order in which she amended her preliminary injunction—also required these daily status updates requiring that the government tell her exactly what they've been doing to facilitate his return. Over the weekend when the government was filing these, really all that we got from them was information that he's alive. And they claimed that he was in the custody of a foreign sovereign. They, they never suggested that they've even asked for his return.

But they, they started to develop this theory that you know, he's in the custody of a foreign sovereign and that we can't really do much about that. They at one point claim in one of these declarations that, you know, the government doesn't have the power to forcibly extract Abrego Garcia from the custody of El Salvador. They, there's a meeting with the president of El Salvador in which everyone's playing hot potato saying, we don't have the power to do this, we don't have the power to bring him back. So it, it's kind of this limbo that Abrego Garcia seems to be stuck in, in which on the one hand, El Salvador saying they don't have the power to send him back, the United States government is saying they don't have the power to do it.

So Judge Xinis holds this hearing on Tuesday, and in the interim period, the plaintiffs have also requested a motion for alternative relief in which they ask for discovery to try to figure out, you know, what exactly has the government even done to facilitate his return, 'cause it seems like they've done nothing. They've also, in this order or in this motion, requested an order to show cause why the government should not be held in contempt, but that seems to be a little bit more vague in terms of the content of exactly, you know, what it is they're asking for there.

 But Judge Xinis holds this hearing that Roger and I go to. There's not much that we learn more factually at this hearing from Drew Ensign, who is now arguing this before Judge Xinis—Drew Ensign also has represented the government in the J.G.G. case—but again, we get a more developed argument from the government in that they are now arguing at this hearing that facilitate just means that they have to remove domestic barriers to Abrego Garcia's return. They think that they have done that and that that's all they need to do.

And Judge Xinis says, no, you know, I, there's no evidence basically that you've done anything. So she issues an order later that day for expedited discovery as requested by the plaintiffs. She says—you know, she doesn't exactly say the government has to ask for his return, but she says that again, there's no evidence that the government has done anything, and facilitate at a minimum requires taking all available steps that, that the government could take to, to secure his return. She allows the plaintiffs over the next two weeks to take depositions to request interrogatories, all of those things.

The government then immediately appeals or seeks a stay of her orders and a writ of mandamus requiring her to, you know, not issue that discovery motion at the Fourth Circuit. And I am about to hand it off to James to talk a little bit more about that Fourth Circuit order, but yesterday we got a response from the Fourth Circuit before Abrego Garcia even responded to the government's motion for a stay and for a writ of mandamus, and it was, it's a really remarkable opinion from Judge Wilkinson, Wilkinson a conservative judge on the Fourth Circuit who was appointed by Reagan.

And, and again, I, I want James to speak a little bit more about that, but I will just say that if, if folks haven't read this yet it, you know, denies the requested stay from the government, but also just has some really remarkable language in it and is certainly raising the alarm from the bench about this standoff that is ongoing between the executive and the judiciary over the apparent non-compliance of the government in, in facilitating Abrego Garcia's return.

Finally, I will mention outside of outside of the courtroom, there's been some factual development in that Senator Chris Van Hollen from Maryland was able to actually visit with Kilmar Abrego Garcia. He has, has been in El Salvador, seeking to visit with him posted photos of this. So we do have confirmation that Abrego Garcia is alive and and, and was able to meet with Senator Van Hollen.

Benjamin Wittes: The hostage takers showed a proof of life video.

Anna Bower: Right, and it was honestly at, Bukele initially tweeted out some photos and, and I was kind of like, is this AI? Like, what, what's happening? But it, it was confirmed when Van Hollen tweeted out photos as well.

And, and then finally, I'll mention before we go over to James, that after this Fourth Circuit denial of the government's request for a stay was issued, the White House this morning tweeted something in which it marked up a New York Times headline and in like, you know, red crayon or red marker about Abrego Garcia, and it wrote off to the side, he's never coming back. And so, you know, it, it seeming, indicating again that like there's not a good faith effort here to actually facilitate his return.

And I certainly think that this is something that Judge Xinis is taking note of, but you know, if John Roberts and Amy Coney Barrett, I assume, might also have be taking note of, of the, these kind of very clearly defiant attitudes that the—and posture—that the White House is taking with respect to, you know, an, not just a district court order, but an appellate court order and clear directive from the Supreme Court.

Benjamin Wittes: Alright, James, walk us through the Fourth Circuit opinion.

James Pearce: So like Anna, I would really commend everyone to read it. It's not long, it's seven pages. I think it's, it's very moving. It's Judge Wilkinson who has, has a way with words is a, is a gifted drafter of opinions and, and can very effectively write for audiences that are not lawyers.

I just wanna make, make four points about it and, and perhaps others have, have things they would wanna say as well. But folks will recall perhaps that Judge Wilkinson wrote a concurrence when this went up to the Supreme Court, where he said, I agree that the, the, the government needs to do more here; at the same time, it's too much to say effectuate, I would say facilitate, which was basically what the Supreme Court ended up kind of itself in its opinion, endorsing this opinion doesn't use the word effectuate and it quite clearly says, you know, what the government needs to do is facilitate, and there has been no evidence that they have done anything, and, and, and very strongly stated.

And, and, and sort of the second point, kind of, I think closely aligned with the first is, whereas in, in, in the sort of the previous iteration when this came before him, and the the motions panel, he said this is a challenging case, it requires balancing the, the executive branch’s prerogatives and and judicial you know, kind of what, how much authority the court has to intervene.

He says in, in, I think maybe the second paragraph, this is a simple case, this is straightforward. You need, the government needs to take steps that it, that, that, that it can, to return this man to the United States. That's what facilitate means, you know, how you go about it—the sort of the logistical things to, to channel Judge Boasberg for a moment. Sure, you know, that's gonna take some working outta details, but you can't just come here and kind of hide behind language and words and, and sort of pretend that you're taking any steps.

And, and I think he, he makes that sort of, that's a very, very clear message, and that's sort of the third point, which is you know, thinking about his audience here, I think his audience is, is the public as a whole. I think it's very much written to be consumed as it should be by, by everybody who should be paying attention to this.

I also think—and I think Anna touched on this—it's very much designed to speak to the Court, to the Supreme Court if this gets up there and to say look you know, this is a matter where you Supreme Court are, are at some point gonna have to operate and understand that this is not an administration that merits the presumption of regularity that an administration typically does, but this is an administration that is operating in bad faith. And in the, the opinion Judge Wilkinson recognizes that there's a limit to what the Court can do, but, but I think also makes the quite poignant point that in the long term, if the, if the administration continues to run roughshod over courts and the rule of law, that that is not a story with a, with a good ending, with a happy ending for anybody.

Final point I'll say on this is, is sort of the, the question of what happens next. As far as I know, the, the, the government has not sought emergency intervention of the Supreme Court. It's not obvious to me that they will. I don't think they want an opinion like what they just got from Judge Wilkinson from the Court; they might want to go back and, and engage in some protracted or, or, you know, potentially obstructive litigation in the district court. But you know, I was heartened and I hope many were to see the Judge Wilkinson almost elegy opinion. But I, I think with so much of this, it's, it's hard to game out where we go from here.

Benjamin Wittes: Yeah. So I have known Judge Wilkinson for 30 years, and I have always thought very highly of him. And he is, as James says, a very, very gifted writer and norm. What makes this opinion so striking is that normally that gift is in service of a vision of separation of powers, as he sees it, that is very deferential to the executive branch. And it is just really interesting to watch him, you know, basically say without saying, all of that turns on the idea that the executive branch is acting in good faith, and I, I hope we're seeing that here, right guys?

But there's a, there's a real tone to it that is you know, very different from everything, anything I've ever seen from him before, and I will note that, you know, unlike there you know—it, it will not go unnoticed at the Supreme Court. It did not go unnoticed that he had concerns about the word effectuate, and it will not go unnoticed that he has no reservations about saying this is completely unacceptable. And so it'll be, I think we're gonna hear from the Supreme Court very quickly on this, because the government is asking for an emergency stay, and I think it's gonna be, you're gonna see some measure of J. Wilkinson's influence.

Anna Bower: Wait, Ben, I just really quickly, I don't think the government has yet asked for an emergency stay from the Supreme Court.

Benjamin Wittes: No, but they asked for it from the Fourth Circuit and it's-

Anna Bower: Oh, right, right, right.

Benjamin Wittes: –hard to imagine that they won't especially because if they don't, then they have to go through this discovery process, which they really don't wanna go through.

So let us turn now finally to—before we leave the immigration subject—to Mahdawi v. Trump. I'm not sure which of you is planning to take this, but this is a case of a Palestinian who was detained by the Department of Homeland Security following his citizenship interview. Who's followed that? Nobody? Okay. Well, I will just say we have a TRO in that case. And we will move on from there.

Roger Parloff: Can, can I just highlight a couple belated things about the Fourth Circuit ruling? A small thing—he refers to the judge, Xinis, as a fine district judge. I thought it was important in this context when people are–

Benjamin Wittes: And very gracious of him.

Roger Parloff: Yeah, and especially since he was the one who had sort of the first time around corrected her and the administration had declared victory.

And one other thing was the, the reference to President Eisenhower, a great man, who after the second Brown v. Board decision knew that he was going to have to enforce desegregation and it wasn't gonna be easy in the schools, and but he, he understood the, the court was Supreme.

And then just the line, everyone is I think the line that. Just was so, bleak and heartbreaking: the executive may succeed for a time in weakening the courts, but over time, history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph. I mean, that sounds like, it sounds like Paradise Lost, you know? It's, it's practically iambic pentameter. And it's, it's grim and it's unanimous, you know?

Benjamin Wittes: Yeah. And again, this is. Judge Wilkinson writing for a panel of three, the other of two of whom I believe are Democratic appointees. And they are reviewing the trial court judge whom they're reviewing, you know, I is a Obama appointee with a somewhat exotic last name which is actually Greek, but it starts with an X, right? And so it's exactly the type of situation where the, you have a, a, a powerful instinct upon the part of the Trump administration to demagogue the situation and talk about an unelected Obama judge did X, and so it's important in that context that he come out and say, this is a very fine district judge, and by the way, she's right.  And so yeah, all around I thought very substantively correct and powerfully written and classily written as well.

Okay let us turn to grant terminations, another subject is. There's no other show you guys can watch where, or listen to where we're gonna jump from, you know, Salvadoran Dungeons to grant terminations, but James is gonna do it for us, so let's do it.

James Pearce: Let's do it. Yeah, so these are colloquially known as the, the funding freeze cases. We've talked about them on and off over the past few weeks, but just so, everybody understands the big picture context, in the early-

Benjamin Wittes: The big picture question here is really gonna be whether James can handle the word Woonasquatucket.

James Pearce: I thought it was Woonasquatucket. But, but we, we'll, we'll, we'll see. I'm sure somebody out here-

Benjamin Wittes: You know, there’s a lake near there that's called Lake Chaubunagungamaug. So like, you know, place names in New England, it gets squirrely.

James Pearce: I, I submit after that, hat I can't, can't keep up with.

But yeah, the, the funding freeze cases are a, a series of challenges that arose after in the early days of the administration, both through an OMB directive as well as several executive orders, basically directed federal agencies to suspend or pause funding. That, that was then implemented by, by a whole series of, of different agencies which then in turn led to challenges from different entities, states in some cases, nonprofit organizations in others.

And so we've got updates this week in, in two of those cases, one in the District of Columbia and one in the District of Rhode Island. The one in the District of Columbia is Climate United Fund v. Citibank. That case may ring a bell in, in some of your minds because not only is it a funding freeze case, but it was also the case that made some news when it led to the resignation of a, of a senior prosecutor from the District of Columbia by the name of Denise Cheung.

There was, there was reporting that the acting U.S. attorney, Ed Martin, wanted essentially to place a hold on payments that we're issuing from the EPA through Citibank to various nonprofit and green banks—these are banks that help facilitate the work by nonprofits that had won EPA grants. And the prosecutor, Ms. Chung basically concluded that there wasn't in fact adequate legal or, or factual basis to do that and, and ultimately tendered her resignation. The FBI ended up issuing a letter and Citibank complied with that and, and froze the funds billions and billions of dollars to several nonprofits carrying out EPA grants.

So this week in a case before Judge Chutkan, she ruled on a, a preliminary injunction motion. She granted that that motion basically concluding again—walking through the steps that, that many are probably familiar with given all of this emergency litigation, the likelihood of success on the merits, irreparable harm, and then the balance of, of public equities and public interest—that the challengers had shown that the actions were arbitrary and capricious under the Administrative Procedures Act, and that it exceeded the lawful authority for the EPA to with, with no individualized reasoning to, to just go ahead and suspend the grants, and that doing so would cause irreparable harm to the, the various nonprofit actors, not to mention the, the communities and areas where they were working.

So she entered that stay; there was quickly a notice of appeal filed by the government and the emergency motions panel in D.C.—which this month as some folks may know, is, is Judges Pillard, Katsas and Rao—placed a quick administrative stay and asked for briefing from the parties. So, the preliminary injunction, which basically had directed Citibank to unfreeze payments that, that were going out to the, to the to the various nonprofits that had, that were implementing the EPA grants, that's now all, all all pause pending what the D.C. Circuit does with the, the case. They have on occasion, they being the DC circuit have heard argument as, as folks know and as we've talked about here, so what, it'll be interesting to see whether they hold argument on that perhaps next week. But as of now, the, the briefing at the D.C. zcircuit is, is not complete.

So that’s the United Climate Fund funding freeze case. There was also one in the District of Rhode Island, which the, the case, as I'm going to pronounce it, is Woonasquatucket River Water Council v. USDA. This is a slightly broader case in the sense that it is not just a challenge to EPA funding; EPA is one of seven agencies at, at issue there. The, the reasoning of the district court judge—well to, to, to give the bottom line first, like Judge Chutkan, the, the district court judge there (by the way, a Trump appointee) also granted a preliminary injunction in favor of the nonprofit challengers also directed that these various I think it's seven agencies unfreeze or unpause the funding finding likelihood of success on the merits for similar reasons that Judge Chutkan did under the Administrative Procedures Act finding similar, similarly on irreparable harm.

Interestingly, at the end, also had a short section on why similarly situated plaintiffs should be entitled to the same relief and imposed a nationwide injunction. I think one of the questions earlier in the chat, or perhaps in the Q&A is kind of, you know, how, how, how do all of these nationwide injunctions kind of play into what the court might say in, in the birthright citizenship case?

I think, I think that this will be sort of more fuel or more fodder to to, to that. I, I tend to think that there are serious efforts—just to pause on this point for a moment—there are serious efforts to try to think about when such injunctions are appropriate and ways to channel it so that there's not forum shopping, and then there are just clearly partisan attacks on, I like it when, you know, they favor my party and I don't like it when they, when they don't. And so, I'd like to think that the Supreme Court ultimately is, is going to undertake something where they think about, there are cases where our nationwide or universal injunction makes sense, and there are other cases where it doesn't, but it, but it clearly can't just all depend on policy.

So rant on that aside, bottom line there in, in the the District of Rhode Island case is a, a, a favorable result for the challengers, preliminary injunction granted. Interestingly—and for reasons I don't entirely understand, though I can speculate—the government has not noticed an appeal. Both of those rulings were from district courts, happened the same day. The, the government noticed an appeal immediately in D.C.; maybe they, they know there's a favorable emergency panel, and, and as I said, have gotten an administrative stay. But last I checked the docket before we started recording here, government had not noticed an appeal there.

I will say there is another funding freeze case out of the District of Rhode Island that is up on, on appeal to the First Circuit and the government, the First Circuit there denied the separate cases. Is the New York v. Trump, 22 states case, 22 states challenging it. The First Circuit did not give the government relief. Maybe the government thought it's not worth it, but that, that's never, that has not seemed to stop this administration.

So, that's, that's where we stand at this point. Slightly different procedural posture in each but preliminary injunctions granted in, in both cases.

Benjamin Wittes: Excellent. Thank you. Alright, let us turn to vindictive attacks on law firms, universities, and institutions of international justice. Roger, do you wanna do us the walkthrough?

Roger Parloff: So the four that are fighting. We have—next week will be eventful. We will have two dispositive, hearings on dispositive motions—that means mainly summary judgment motions—in the WilmerHale case on April 23 before Judge Leon, Richard Leon, and in the Perkins Coie case, same day before Judge Beryl Howell. And we should be hearing any moment about the hearing for Jenner & Block. Susman Godfrey is, was just filed; they just filed their, they won—they're more recent. They got their TRO this week on the 15th, and their hearing will be May 8.

I guess we're up to nine firms that have folded and they've banked, they've got, they're supposed to provide about $940 million worth of pro bono services, and they're beginning to get a little nervous about exactly what Trump had in mind.

Benjamin Wittes: I just wanna say here, just note this: we have four firms that didn't fold. All of them have TROs and they're all gonna get their dispo, a bunch of them are gonna get their dispositive motions next week. And nonetheless, we have nine firms that did fold that basically pledge a billion dollars in pro bono work in order not to have to win an easy litigation. Go figure.

Roger Parloff: And I think, I think that's all I have. Do others have things they wanna add to that?

Anna Bower: Yeah. So there was an additional suit that was filed related—oh, yes, yeah. It was brought by people who have either applied to, like people who either work at or have applied to law firms that received the EEOC letter which the EEOC sent out to various law firms, I think is 20 law firms in which it requested like really detailed information on the associates at these firms that had been hired including things like, you know, their, their names, their gender their law school, GPA whether they were hired through a 1L diversity fellowship, the, the goal being that the EEOC was indicating that it was going to open some sort of investigation related to the law firm's Title VII practices or employment hiring practices.

And so this suit was brought over these EEOC letters in which you know, one of the claims is that this is ultra vires, this is outside of, you know, permitted action by the executive, by the EEOC, because they cite a number of regulations in which, that suggest that the EEOC cannot open an investigation until charges have been filed under, you know, the, the EEOC procedures. It seems to be the case that there have been no charges that have been filed; these letters were just kind of sent out because they're wanting to get information first.

There also is a claim under the Paperwork Reduction Act, but, but essentially, that case was filed this past week. It was assigned to Judge Walton, which I, I—Roger, James, if you've got thoughts on Judge Walton, then please do chime in, I'm not super familiar with Judge Walton. But that is something that we're, you know, watching and following.

I, I will say that these EEOC letters have certainly been a point of of a concern amongst associates that I've talked to at various law firms because, you know, it is asking for very personal information about them. And, you know, it seems like the firms that have made deals with the White House, there are lingering questions about whether or not they're going to provide that really personal information about some of their employees to the EEOC. So it, it's something that you know, was filed this week and we'll be watching it.

Benjamin Wittes: Alright. We have one more subject to get through before we go to audience questions, and that is that we have some IEEPA challenges to tariffs. I am not sure who wants to handle that. Nobody! We'll deal with that one next week. See, you know, things show up on the, on the menu and people put them on so that other people can talk about it. And then nobody marks it. And so I don't know who to ask.

Let's go to audience questions. Audience. The estimable anonymous attendee has three questions, which raises the question is this three anonymous attendees, or is it one anonymous attendee asking three questions?

First question—see if you can identify his or her style and figure out whether it's all one person. Is there a conceivable point at which the Supreme Court dramatically curbs the number of DOJ appeals so that they hear and allow the circuit rulings to stand? Or is this Supreme Court so eager to elucidate a particular, particular understanding of the extent of executive power that they're going to take every opportunity to hold forth on the matter. If they decide not to hear an appeal, what kind of message does that send to the White House?

That's a really interesting question and I wanna throw it to James first and say, why are they here? Yeah. Why not just let a bunch of these lower court shadow docket stuff stand?

James Pearce: Yeah, so it is an interesting question, but I think there's a, a procedural point that we have to be attentive to in, in thinking about how to address it.

So on the shadow docket, when a party comes with, with stay litigation, that is then before the Supreme Court, whether the Supreme Court wants it or not. They, the, the Court can find ways ,and we've seen that, to, to sort of, to punt or perhaps to return it back, but it is unlike on the merits docket where, which is overwhelmingly discretionary and where, I don't know the precise statistics, but the, the Court grants cert—you know, agrees to hear—an infinitesimally small number of those cases. So absent some procedural changes to how the emergency docket works, that that stay litigation is going to keep coming if the, the, the solicitor general's office is continuing to, to push forward and try to get the Court to intervene.

I do think though, that there's the non-trivial possibility that the long-term reput, there, there will be long-term reputational damage to the government that will carry over potentially to the certiorari docket, right? Unlike most litigants before the Supreme Court, the U.S. government typically has a pretty good batting average in getting their cases granted. And that's because the government in the past has been relatively parsimonious and selective in the cases that it chooses to ask the court to intervene. The less and less the, the Court has that sense—and also just as a numbers game, the more and more the government, at least through the cert process, is trying to get the court to take cases—I, I think that the, the more the government is likely to find an unreceptive audience.

All of that said, the last thing I want to say—I'm sure others have thoughts on this—the question did focus on questions of, you know, executive power. Frankly the Supreme Court is, and in my view, should be the end all and be all on deciding these questions of the scope and extent of executive power.

So as an example, one of the cases that we have talked about that did not today, though I think I mentioned it are the Humphrey’s Executor cases, right? Removal from, from multi-member agencies. I think the Supreme Court needs to decide that—whether it needs to do it through emergency or, or next term in the, in the, on its merits docket, I don't actually have a strong view—but at the end of the day, I think the Supreme Court does need to, to resolve that. And I think that's probably true for a non-trivial other number of the executive power challenges that we're seeing.

But I do think that's gonna pose an interesting question of how much the Court is seen to facilitate an extremely aggressive solicitor general's office, while at the same time, I think, fulfilling its appropriate role in deciding cases of, of presidential power, which is what we want the Supreme Court to do, among the other things that it does, but an important thing that it, that it does.

Benjamin Wittes: Yeah, I just wanna say I completely agree with that point. I do think it is voluntary whether to use stay applications as a way of commenting on the merits of things and basically creating presidential, quasi-presidential opinions out of denials of stays or granting of stays. And I think it's not unreasonable to say, yeah, they should be throwing as much of—you know, they have to answer these questions, but they should do it as much as possible in the regular docket. And if that means inconvenience to the government in terms of some district court getting, you know, temporarily a little bit too much leeway in regulating relations with El Salvador, that wouldn't be the worst thing in the world from my point of view.

Alright, the second question from the anonymous attendee, and there's a clue here that attendee is lowercase whereas Anonymous is uppercase in all three questions, so that's a clue that it may be all one person. Can you discuss the potential of Rule 42(a)(2), which provides for the naming of a special prosecutor if the DOJ refuses to prosecute criminal contempt, being held unconstitutional?

So this question came up the other day. I don't think it is unconstitutional, and I don't think it is likely to be held unconstitutional. The, the relevant standard is the Appointments Clause, which says that judges can't appoint, or says that superior officers have to be appointed by the president with Senate confirmation, but such inferior officers can be appointed by other means. And so I, I think as long as, you know, the special prosecutor is confined to a single case that the Justice Department is conflicted out of—this is a very old statute, it's been around for the statute may not be old, but the, the, the common law rule is, is, is old—I just don't think it's gonna be a problem.

James Roger, do what, what, what am I missing here?

James Pearce: So I, I, there are some non-trivial arguments on the other side. Steve Vladeck actually developed one earlier this week in a post if folks are interested in digging in more there. There's also a dissenting opinion in a case out of the Second Circuit from a few years ago. The case is United States v. Donziger, where there was the appointment of a special prosecutor. Judge Menashi wrote a dissent.

I think there's sort of two, two ways that there, you, you could see a court potentially declaring or determining that Rule 42(a)(2) is, is unconstitutional. I'll put my cards on the table. I tend to think it unlikely. But one is through the appointments clause that, that Ben just discussed, you could say, you could see a court saying something like, well, even assuming that the special prosecutor is an inferior officer, Congress still needs to, by law have provided the statutory basis for that prosecutor's existence and Rule 42(a)(2) two is not a statute. It is a federal rule. Now it's backed up by the Rules Enabling Act, which allows, essentially delegates to the federal courts the, the ability to create that rule. So there's an argument on the other side but I, you know, I could see somebody sort of trying to, to spin that argument out.

The second way that it could be determined unconstitutional is, is essentially the argument that look it's hard to read some of the Supreme Court's modern jurisprudence, including in the Trump immunity decision that talks in quite robust terms about prosecution being the role of the executive branch, and saying that really courts just should have no role in that whatsoever. And I, I tend to agree with, with, with Steve Vladeck’s post that it, it is hard in some ways to square Rule 42 with the robust nature of that language. At the same time, as Ben says, there is a long common law tradition of courts being able to vindicate their own authority in contempt matters, and I just don't think courts, including the Supreme Court, wants to relinquish that.

I think you know, to sort of, I'll link this up with things that are happening out in the, in the public these days, right? In an era where judges themselves are under attack. I think the last thing that the, the court would wanna do is sort of undermine the sense that the court can continue to vindicate its own authority, including when necessary to the appointment of a special prosecutor.

Benjamin Wittes: Yeah. And I would just add that since nobody doubts that if you look the judge in the face and say, your Honor, I have absolute contempt for you. You're a rotten scoundrel. The judge can point at you and say you're in contempt. And that's I forget what it's called, inherent contempt or, or on the spot contempt, right, but since that power is undoubted, it seems a little bit crazy to say that the power to give you some process before held, held, holding you in contempt would be constitutionally controversial.

Alright, Steve asks, with the increase in nationwide rulings from more local jurisdictions, is anyone in the crew seeing a factionalism developing in the judiciary? What might Trump 2.0 mean for that potential dynamic?

So look, I mean, everybody hates nationwide injunctions unless the one, except the ones they like. And you know, when the when the Biden administration is in power, lots of Democrats think it's absolutely outrageous that people can go to a single district of Texas and where there's one judge and have Matthew Kacsmaryk review all kinds of things that have national implications. And when the parties switch you know, people on the Republican side find it outrageous that you might bring cases in Washington D.C. which happens to be the seat of government.

Yeah, there's factionalism about it. There aren't a whole lot of voices that are super consistent about it. And as James says, the merits of it are really complicated because just to take the citizen, the birthright citizenship case as an example you know, if you don't have a nationwide injunction there, what are you gonna do? Are you gonna have to litigate it in every jurisdiction in, in every circuit in the country, only to get the same answer? Are you gonna have to refile it as a class action, which would then represent all members of, you know, all people who don't have, wouldn't have birthright citizenship under the thing?

So there's, there's an efficiency value to resolving some things on a universal injunction basis, but there's also a, you know, it does go against the idea that a case is a dispute between two parties. And so I don't like there, there's a lot of room for some thoughtful appellate jurisprudence about when a universal injunction is and isn't appropriate.

And I—it does drive me bananas when you know a single district judge in a location that's very far from the where the policy seems most relevant, you know, just issues an order that applies everywhere. But I, there are also nationwide injunctions you really want and wouldn't want to give up. So I don't think it's a, I think it's an issue that people should be restrained and thoughtful about, and I think a lot of people are, you know, really being partisan bomb throwers about this one. I open it up to anybody else who has thoughts on the subject.

Quinta Jurecic: This isn't on the substantive issue of nationwide injunctions, but I do think it's worth noting that any factionalism—certainly there's been sort of factionalism along political lines that you might have seen in previous administrations. I think the factionalism that we're actually seeing this time around is not appointed by a Republican or a Democrat. It's were you appointed by Trump or were you appointed by somebody else?

That's not exclusive; there are, there are, you know, judges who were appointed by Trump who have kind of gone with the majority of, of judges, but there is a really striking divergence between judges who were appointed by past Republican presidents—Wilkinson is a great example—versus judges who were appointed more recently and are coming out of a very pugilistic, let's say, conservative legal culture.

Anna Bower: I would also just like to add that it is very interesting to look at Stephen Miller's past statements about nationwide injunctions that were obtained by America First Legal during the Trump, excuse me, during the Biden administration, in which he is celebrating those nationwide injunctions, and then to now look at his current statements about what he thinks about nationwide injunctions.

Benjamin Wittes: This is a phrase I never thought I would say, but to be fair to Stephen Miller on that, his counterparts on the Democratic side have equally ridiculous dichotomies. I mean, people swing wildly between positions about this, much as they do about whether the filibuster is friend or fiend depending on what policies they're trying to stop and what pol, you know, who's in control of the Senate.

Alright, we got two more questions. We're gonna get through both of them. We may run a minute or two late. The anonymous attendee, third and final question, can you speculate on why the Trump administration has not filed a SCOTUS petition seeking a stay in the Abrego Garcia case? Have they just decided to thumb their collective noses at justices, Judge Xinis and Wilkinson?

So, I don't know that I share the premise here. I assume that that petition is coming, but it wouldn't be just thumbing their nose at them. If they don't get a stay, it would mean that she goes forward with the discovery that she's ordered. So I assume that request for a stay is coming. Does anybody think otherwise?

James Pearce: I'm a little more skeptical. I think that there are some folks who watch, you know, read Judge Wilkinson, see that he's a pretty good weathervane for the Supreme Court, and may not want to get an opinion like Judge Wilkinson's from the Supreme Court.

And so the, the better approach here is take your relatively anonymous, you know, intermediate appellate court loss, go back skirmish a little bit more at the district court, hope that the district court does something that you can then try to take up in some other way, but not take the chances of getting a, again, a Judge Wilkinson type opinion from the Supreme Court where, I mean, if we take President Trump at his word, you know, when he says something, well, Supreme Court's orders it, you know, we'll, we'll comply with that. And so it wouldn't surprise me here if the, if for that reason the government doesn't seek Supreme Court intervention.

Benjamin Wittes: Interesting.

Anna Bower: I-

Roger Parloff: I agree.

Anna Bower: Oh, go ahead, Roger.

Roger Parloff: I agree with that. I think that when Judge Wilkinson rips you a new one, as it were, you might leave it at that and not go to the Supreme Court. I also think they feel very confident that they can stall these interrogatories forever with a blizzard of privilege invocations and non-responsive answers.

Anna Bower: I think that probably that's right. I will just say, if I'm playing devil's advocate, that that is what you would think if you were working with rational actors who are looking at legal, legal risk in the way that, you know, we do, assuming that everyone's kind of calculating all of these things in terms of really, actually like, oh, what are the outcomes here, what, you know, what are the risks, all of that, as you would do in a normal world.

But I think that it seems like, and I don't know this, but it certainly seems to, there's a correlation between what Stephen Miller is out there saying in the press and then a few hours later, what ultimately ends up happening in the courts. And if you've got Stephen Miller, who isn't a lawyer, who seems to be running your legal strategy ,you might go ahead and go to the Supreme Court. So I like I, it's just, you know, just to say that what a, what a rational actor would do in this situation is not necessarily what will happen. So we'll see.

Benjamin Wittes: Alright, last question. Rich asks, do we know anything about challenges to the IRS-Treasury-DHS information sharing agreement? I will take the universal silence to be a no.

Anna Bower: We will find out.

Benjamin Wittes: We will find out. We are gonna leave it there. Folks, we ran two minutes over. We try to start on time and end on time, but sometimes we fail. Thanks to Roger Parloff, Quinta Jurecic, James Pierce, Anna Bauer, and of course the long suffering Anna Hickey, who makes this show possible at so many different levels. We will be back next week.

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