Lawfare Daily: The Trials of the Trump Administration, April 3

[Intro]

Benjamin Wittes: It is Friday, April 3rd, 2026. It is 4:00 PM in Washington, D.C. and you are watching Lawfare Live: The Trials and Tribulations of the Trump Administration.

[Main Podcast]

I'm Benjamin Wittes, editor-in-chief of Lawfare, here with Lawfare Senior Editors Roger Parloff, Molly Roberts, and Anna Bower, and Lawfare Associate Editor Katherine Pompilio.

And we're actually gonna start with Katherine Pompilio today. We've got a lot of ground to cover, but for those of you who are unaware, we just released, I would say a database of tribulations of the Trump administration in litigation, which is a database of 300 cases in which federal judges have found in habeas cases that the Trump administration has defied or failed to comply with court orders.

This database is largely the work of one Katherine Pompilio. She and I have a piece about it that just went up along with the data. All of the data are available to the public. It is searchable in a variety of forms, and you all should take it and do things with it because it is a very interesting collection of cases.

So, Katherine, tell us about this project and what trials and tribulations it affects and to what extent it is, you know, what we know about these 300 cases.

Katherine Pompilio: Yeah. So this project was born out of a Situation column that you and I wrote together a few weeks back, kind of chronicling what federal judges were saying in habeas immigration cases.

And I noticed in a lot of them, specifically from in Minnesota there were complaints about non-compliance threats of holding government lawyers in contempt fines. And so, I thought it would be helpful just for personal reasons to keep track of all of the cases in which there were issues of non-compliance.

So this started from Judge Schiltz's order in Minnesota which I think—after I think three orders came out to be 210 separate violations in 143 separate cases. And then from there, there was that other list from the Justice Department in New Jersey of 57 cases, I believe admitting instances of non-compliance.

So it manually just kept growing and growing. And then as with the technological revolution, we figured out that we could have Claude basically scrape every habeas case throughout the country and flag for us in which potential, in which cases there are potential instances of non-compliance.

So, me, alongside my team, the editorial team, who did heroic work, manually went through all of the data, which thousands of cases that Claude presented to us, searched the dockets, and found an instance of non-compliance. So this tracker is the culmination of that work. It's 300 cases across, I believe, 20 separate jurisdictions over throughout the country.

The issues of non-compliance range from failure to file in any specific case to deportation despite an injunction against deportation or removal. And it was definitely a huge effort. But I think—I'm proud of it and yeah, I'm excited to see what people do with it.

Benjamin Wittes: Yeah. So how is this data set different from prior data sets that there's some, as you mentioned, that judges have identified particularly Judge Schiltz in Minnesota.

There's some that, in New Jersey, the government was ordered to sort of self-report its violations and produced a number of a list of cases in which it had screwed up and not followed orders. And there are some datasets that are kind of lists of cases that other people have put together particularly I, I guess Kyle Cheney has been doing it more—not as a dataset, but as a long running Twitter and Bluesky—

I mean, he seems to know about a huge number of these. So how is this data set different?

Katherine Pompilio: Yeah. First of all, I love Kyle's Friday night habeas threads that he does on X. They're amazing. But this dataset is different because it is the first—it's non-comprehensive. So it's not every, you know, non—issue of non-compliance throughout the country, but it is the first of its kind that spans the amount of jurisdictions that it does.

So the case, the list that you've previously mentioned were either, you know, the ones produced by judges in specific districts are limited to cases either within a specific jurisdiction or limited to cases more narrowly that are assigned to a specific judge. Kyle Cheney and other news reports as they come in are flagging, I think the most egregious instances of non-compliance.

But what this dataset reveals is that this is a much more widespread issue. And so it kind of creates, it kind of allows us to connect the dots between okay, there's, you know, 199 instances of non-compliance in Minnesota and within Minnesota, you know, certain judges might not even know that, you know, in sep—in one, one judge is dealing with like, I don't know, 100 issues of non-compliance and another judge is dealing with 20.

So this really allows you to kind of visualize all of the instances of non-compliance throughout the country that we know of so far, and identify much broader and larger patterns of the government's behavior in federal court. I think we said somewhere in our piece that this is kind of indicative of less of a one-off, you know, excuse of a, an instance or a mistake and more of a policy, I guess.

Benjamin Wittes: Yeah. I think one of the, one of the differences is that we tried to categorize them in a systematic fashion, and every judge describes these violations slightly differently. In Minnesota, they tend to have harmonized around a certain vocabulary. But then you go to New Jersey and they're talking about the violations in completely different terms.

And when the government reports on itself, it discusses it in these very exculpatory terms. So what a judge might describe as you violated an order to file this document, the government will report it as filed it 10 minutes late or something. Right?

Katherine Pompilio: Right.

Benjamin Wittes: And so we tried to create a uniform way of describing what the failures were and to apply them across jurisdiction. And I think that allows a comparison of like, to like, in a way that was not possible before.

I will say, as Katherine mentions, the data set is not complete. I'm certain that there are cases that we've missed and we will continue to add cases to it as we as we find more and as more occur. They happen almost every day as sometimes in sub substantial numbers, although they're slowing down now that Metro Surge is over in Minnesota.

But I think figuring out, like, you know, going through the data every few weeks and finding the additional cases allow, will allow us to move this toward comprehensiveness over time. But it, right now it's at 300. There were, it was, as you know, we keep adding cases and we've removed some because they don't meet our standards. But you know, it'll be—if you guys know of other cases do flag them for us, 'cause I'm sure we will have missed some.

All right. And let us turn to the person who had I think the worst week, which is Pam Bondi. Anna Bower, did Pam Bondi text you this week?

Anna Bower: She did not, but Pam, if you wanna talk, I'm on Signal. AnnaBower.24.

Benjamin Wittes: Yeah. So, I actually saw a social media post that Lindsey Halligan had been named to replace Pam Bondi, and it took me a minute to figure out that it was a fake. So, what do we know do we think that Todd Blanche is going to get the permanent nod and be sent up to the Senate?

Or are we just gonna have an acting attorney general who's sort of like one of these acting U.S. attorneys or interim U.S. attorneys who's there forever? What do we know about the post-Bondi era?

Anna Bower: I mean, I think that there are a lot of unknowns here. I, it has been announced that Todd Blanche will take over in an interim capacity, at least for some period of time.

Pam Bondi, it's been reported, will stay on as attorney general and working will—or will stay on, I assume, in a transitional capacity for at least the next month. So I, you know, it sounds like there will be a kind of period of passing the baton to Blanche and potentially then someone else.

There's a number of names that have been in the mix in the public reporting, including Lee Zeldin, Harmeet Dhillon, Ken Paxton, Mark Paoletta. I've seen just a lot of names thrown out there, so it's pretty unclear. Other than the reported front runner being Lee Zeldin, I think that we don't quite know exactly where Trump is going to land in terms of Blanche staying on or getting someone else to come in.

It's really unclear at this point, but Roger, Molly did, are your perceptions different?

Molly Roberts: No, not really. I think he will try to get a new, I don't think he's gonna just keep on with the acting thing for as long as he possibly can. I think he will try to get a new Ag. And the only reason I say that is because I think he was heartened by how easy it was to replace Kristi Noem.

And I think that's part of why he thought, yeah, I'll go ahead and get rid of Pam Bondi because I could, I got Markwayne Mullen in so quickly.

Benjamin Wittes: Right. But I think, you know, with Bondi you have this problem, like Kristi Noem kind of had no allies. Not that Pam Bondi particularly has allies, but she's not you know, you would have to get somebody confirmed who people would think would be better than her. Not worse than her.

And I'm. Like, I'm not sure what the what the political economy of replacing Pam Bondi is.

Anna Bower: But, I think you have an issue for, or at least Trump has an issue in that it's been reported. One of the reasons for his firing of Pam Bondi or forcing her out, whatever it was was that he was unhappy with her reluctance or not reluctance, but inability to sus successfully bring cases against some of his political enemies.

And I think that in terms of if we're talking about the political economy, it seems like the people who would confirm the next attorney general are maybe gonna be a little bit more concerned about some of the politicized investigations than they were the first time around. And so,

Benjamin Wittes: Right.

Anna Bower: while he wants someone who is more you know, aggressive in terms of those investigations, he's got this issue of he may not be able to get someone in who is willing to do that.

You know, so it's—

Benjamin Wittes: Right. I mean, that, that's sort of my point that it, that it's, you want somebody who's gonna be more aggressive than Pam Bondi, which is actually hard to imagine. But if you're Trump, you want somebody who's gonna be more aggressive and more pliant to your will than Pam Bondi.

But you also have to get somebody confirmed through a Senate where you have less muscle than you did when you confirmed Pam Bondi and Kash Patel and who have seen what your what your behavior with respect to the Justice Department looks like.

And so you—There's a difference it seems to me, between your latitude to get something done in the Senate and what you desire to have done.

I wonder if you end up with somebody who's, frankly more conventional than— Like I, I don't know that Todd Blanche could get confirmed right now.

Anna Bower: Yeah. But maybe he could. And I think that what he, I think that's, this is why though maybe he's looking at people who have already been confirmed.

And so it becomes a little bit harder to justify if you're a Republican senator why you are now voting against the person you already voted to confirm previously.

Benjamin Wittes: Right, right. Roger, do you have thoughts? You have to unmute yourself.

Roger Parloff: Thank you. The puzzling thing to me is like, what is the job description?

Because I never really understood because I never really saw her Pam Bondi as the head of DOJ, partly because when the president is really so directly involved there's a lot of different paths up to him that don't go through her. You know, I think Halligan had a direct line. I think Ed Martin had a direct line.

You have, Pulte has a direct line, and it seemed like Blanche was the person in charge and that Pam Bondi was sort of a public relations person which is an important role, in this administration is always the most important role. But so I don't really, that's another puzzle. What is the job description that you're filling?

Anna Bower: And I,

Roger Parloff: And—

Anna Bower: Oh, sorry.

Roger Parloff: I'm done.

Anna Bower: Oh yeah. And I think that's right, Roger. And that's one reason why I don't think that we will see Attorney General Todd Blanche is because I don't think that Todd Blanche particularly likes being the face of all the things. I think he likes being more so of, you know, he likes being the person who's in control but not isn't the one who's kind of getting all of the heat really for it, or—

Roger Parloff: That makes sense to me.

Anna Bower: Yeah. Yeah. So I'm a little bit, not that I know this is just, you know, speculation, but I would just suspect that we maybe would not see Todd Blanche as AG for that reason. 'cause I don't know that he would want it.

Benjamin Wittes: Alright, well we will see Pam Bondi, we bid you a fond farewell. And one thing the president retains the power to do is fire the attorney general in the middle of a war with no obvious plan for who comes next.

Another thing he retains the power to do is issue executive orders. Whether he can enforce them is a different matter. And while you were thinking about other things this week, the president went and issued an elections executive order, and Molly Roberts read it so you don't have to.

What does it do?

Molly Roberts: That is such a good question. I'm not 100% sure that anybody knows what it does, including perhaps the president. So what this executive order basically does is restrict mail-in voting, mail-in ballots, absentee ballots, and the way it does that is where it gets confusing in large part because it's kind of sloppily drafted.

And I don't know whether that's on purpose or whether that's, oops, we did a bad job drafting our executive order. But essentially how this executive order works is the Department of Homeland Security is directed to create lists of eligible voters to share with each state. Now, this is where it gets weird.

It doesn't say anywhere in the executive order what the states are supposed to do with those. So that's how it starts: DHS makes lists of eligible voters, gives it to the states. The next part has to do with the postal service. The idea is that the postal service will also create a list, and this appears to be a separate list.

And that list is the voters who are eligible to get mail-in and absentee ballots and to whom the order says it should transmit them. The order says it shouldn't transmit them to anything else, and that leaves this sort of gap in the middle of a third list, created by the states and transmitted to the postal service, that's a list of the people they want to send these mail ballots to.

And so what's kind of uncertain as well, are these three lists actually supposed to be one list is the idea that the states are supposed to get the list from DHS, use it to verify their voter rolls, then send the kind of narrowed version of that list to the people who wanna vote absentee or mail in to the postal service, and the postal service will maybe crosscheck it against the DHS list and only transmit to them? We don't know.

The way it's written is three separate lists. So super confusing. But the idea essentially is postal service is going to, well, not is going to, is directed to transmit ballots only to people who are on its list of eligibility. And it's gonna undertake a rulemaking to figure out how it will do that. And presumably the, I think, logical prediction is that it will be using DHS's lists in order to do that.

So the idea is we're gonna say who's eligible and then the postal service is only going to send absentee ballots to those people we've said are eligible.

Benjamin Wittes: Alright.

Molly Roberts: And—

Benjamin Wittes: So, there are two ways to understand a Trump executive order on elections. Oh, well, let's actually, you wrote a piece with Anna a couple weeks ago that was about the expected Trump executive order on elections that was I don't know how to say this politely, so I'm not gonna try conceived by a bunch of deranged people.

And they were rubbing their hands together eagerly awaiting the White House, the president signing their 17-page draft QAnon executive order. How much does this executive order look like the executive order that the 17-page draft reflected?

Molly Roberts: You said QAnon executive order. The thing with QAnon, I think is that often when the president doesn't really quite do the thing they said that he was going to do, they pick like a teeny tiny bit of something he did, and they say, yes, he did it. It's proof.

So I think there's, you know, an aspect of this year too, the answer is that executive order was like a wishlist fulfilled for any election denier. Just like every little bit of everything you would want done to elections was done in that executive order. And it was also done by declaring a national emergency.

So first point I'd make is no national emergency declared here. And then the second point is this is,

Benjamin Wittes: That’s good 'cause I'm looking outside right now and the sun is shining and it doesn't look like there's a national emergency going on. It feels all like really peaceful.

Molly Roberts: No—clear skies. Not even a single drone in my view, but so, so what this does is way narrower.

This has only to do with restricting mail-in voting, although—And it also doesn't make mail-in voting basically impossible. Right? Which is something that the president has essentially indicated that he is interested in. It just makes it much harder to do and makes it so that the president—well makes it so that DHS would devise this eligible voter list.

And then that list would restrict who votes via mail. Of course, the election deniers dream of an executive order would make those lists restrict how, who can vote everywhere, not just by mail. And indeed, might get rid of mail-in voting entirely. So it's much less ambitious than what those people wanted.

That said Trump, as he was signing it, said, we'd like to have voter ID. We'd like to have citizenship requirements. We're working on it. You would think it would be easy. Not so easy. I don't know that this is actually as easy as he believes either. And there are plenty of litigants who agree, but.

Benjamin Wittes: So let's talk about some of those litigants.

It's like Shelley said, if winter comes, can spring be far behind, you know, if a Trump EO on elections comes, can litigation be far behind?

Molly Roberts: Not yesterday or the day before litigation was hot on the heels of this executive order. So there are a few lawsuits and there are state suing. And so Oregon and Arizona, we already know are suing, but other states have indicated interest. And then there are also voting groups suing, and then there are Democratic officials suing. So it's already multiple lawsuits. I think the one that's maybe worth looking at mostly because there's tons of overlap, is the Democratic officials’ lawsuit.

And so that's filed in the District Court for the District of Columbia, and it argues that the order exceeds the scope of the president's authority violates separation of powers—and that has to do with power from both Congress and from the states, violates the First Amendment, the Fifth Amendment, and then various statutes, Voting Rights Act, Administrative Procedures Act, also the Postal Services Statutory Authority. So that's essentially what that lawsuit does. And I mean, it's a pretty, pretty strong argument for various reasons.

The biggest one being that the Constitution gives the states and Congress power over elections doesn't give the president power. And indeed what Congress has done, it has legislated in this area. So if you were doing kind of the traditional Youngstown analysis, you would say the president's authority is at its lowest ebb when he's taking measure measures incompatible with Congress's expressed will and Congress has acted here, and the executive order cites the Help America Vote Act and the National Voter Registration Act as if that should bolster it.

But in fact, those acts contain provisions that kind of conflict with what the president is doing here. So that makes his argument that he can do it less strong, not stronger. And one thing that this lawsuit focuses on is the idea that Trump is doing this because he's frustrated that Congress won't pass the SAVE Act. So you look at what does Congress wanna do? We know that's what they don't wanna do. He is that's why he's doing it. Otherwise he wouldn't be stepping in.

So,

Benjamin Wittes: Alright. Anna Bower, I am bitterly disappointed with your friend Judge Boulee in Fulton County because I was expecting a ruling by now. And we don't have one on this Fulton County, give us our stuff back, Rule 41 motion—what's going on? Why isn't he, complying with the needs of Lawfare lives schedule and getting things done before Friday?

Anna Bower: Well, we don't have a ruling and we knew that we wanna get a ruling until, at least today because on Monday following the hearing, or remember the hearing was on Friday. And then on Monday, the county followed up to that hearing with an additional motion in which they sought to supplement the evidence in the case.

And remember, as we discussed last week, Judge Boulee denied the county's efforts to have Hugh Evans, the FBI special agent testify at that hearing, he quashed a subpoena they had issued and that made things at that evidentiary hearing quite difficult for the county to elicit evidence related to the timing of the investigation and things that the judge really seemed interested in, which was this argument that the search warrant was really just pretextual and a way to kind of get materials that DOJ Civil Rights Division had been unable to get through its civil litigation.

So having been kind of unable to elicit any of the evidence of the timeline at the hearing. They followed up on Monday with a request to, for DOJ to at a minimum, you know, say when the investigation started, when the criminal referral came from Kurt Olsen, things of that effect because they wanted to be able to supplement the record with that information.

The judge ordered them to meet and confer and report back. We heard yesterday, I believe it was, or potentially the day before that the negotiations between the parties had failed. DOJ is refusing to produce any of that information. And then today we got a response filing from DOJ in which they oppose the county's request for information saying that among other things, it's privileged.

Keep in mind that the main things that the county is wanting here is information about the timeline of key events leading up to the search warrant. I wrote in a piece this week that even though DOJ is claiming now that that information is privileged, Harmeet Dhillon has previously made public statements related to the timeline of the investigation.

So it, you know, to be determined whether the county will ultimately come back and point to some of those public statements. But for now, we're waiting on Judge Boulee to resolve this issue between the parties on the county's additional motion. So that's why we don't have a ruling. Ben, you're muted.

Benjamin Wittes: Well, I just wanna say to Judge Boulee, get on it. You can't, you shouldn't be holding us up. We expect our district judges around the country to keep things moving so that we have stuff to talk about. Consider our need, Judge Boulee, that's my amicus brief.

Roger, one group of people who did consider our needs for content this week was the justices of the Supreme Court who held a birthright citizenship argument, and John Sauer who, the solicitor general, who addressed the court in a voice of unusual raspiness.

How did the argument go relative to your expectations of it?

Roger Parloff: Well, I admired I, I think both of the advocates were very good. And it was a, it was a interesting argument and I think, you know, that the judges want—I think in the end, they were able to make, you know, a more, make this sound a more plausible argument than many people thought.

Nevertheless, I'm with the big consensus of people that think it's gonna be eight to one, seven to two, possibly six to three in favor of the petitioners—I mean the the, against the executive order. Right? It you know, I don't know. We probably don't wanna—

I'm a little cowed by the fact that so much has been said by people that are true Supreme Court experts on this subject. But you know, there the key language, of course, 14th Amendment is “all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States.” So it's that our and subject of the jurisdiction thereof that's in play.

And the key precedent was Wong Kim Ark of 1898, which seemed a lot of people thought that settled it and that was a Chinese man, I won't go through all of that, but they sort of made a go of it. The Wong Kim Ark case does use the word “domicile” a number of times, and his parents had been domiciled in San Francisco.

And so Sauer was using that and saying, see, you we're returning to the original interpretation, you have to be domiciled. And that can't include visitors. It can't include illegal aliens as the executive order puts it. And also there has to be either sole allegiance to the United States or primary allegiance to the, he imports a lot into that term.

And I, and a lot of it comes from techniques that, you know, conservatives aren't say we're not supposed to use anymore. Like legislate, you know, one line from Senator Trumble becomes a crucial in congressional debates, that sort of classic legislative history cherry picking that we're not supposed to do.

So, you know, I don't think there's any way to pull it off, but it was an entertaining and skillful argument.

Benjamin Wittes: Yeah. The argument was almost entirely about the application of Wong Kim Ark. Because unfortunately for the administration, the actual text of the Constitution doesn't say anything about domiciled. It says subject to the jurisdiction.

And, you know, somebody who's born in the United States, who can be whisked away by ICE, who can be arrested if he commits a crime, who is not protected by diplomatic immunity, it is very hard to argue within the common sense understanding of the word “jurisdiction,” that person is not subject to the jurisdiction of the United States.

I counted three votes or the idea that there's even a subject, a question to entertain here. I thought Gorsuch was a little bit intrigued by this domiciled argument, but I don't know that, I don't know that it's easy to pin down where he's gonna come down. And I don't know that it's easy to pin down where Clarence Thomas is gonna come down, either.

The only one who really showed his hand as sympathetic to the administration's position that I could discern was Justice Alito. Do you have the same impression?

Roger Parloff: I actually, you know, I actually, I, I didn't know where Alito was going, but I, at one point I thought he was trying to help the ACLU lawyer Cecilia Wang, by saying, the reason that it says “domicile” all over the place is because at that time, it was illegal for his, for Wong Kim Ark's parents to apply for naturalization. It was, there were racist laws that said, Chinese are just ineligible, you can't be naturalized. And he was and the, and he thought that the judge was mentioning “domicile” a lot just to sort of,

Benjamin Wittes: To emphasize that it was in fact possible to be for a Chinese person to be domiciled here legally.

Roger Parloff: Yeah. He wasn't making it a part of the decision. He was sort of easing the public acceptance of this surprising state of affairs and, especially in a racist era. And, and Wang didn't understand at first, and then Amy Coney Barrett sort of explained to her, no, Justice Alito is trying to help you here, and and then I, so I don't even know where he's coming down.

I thought Thomas was the most was the one that the government had the best chance of getting.

Benjamin Wittes: Molly, Anna, do either of you have thoughts on the argument? Alright, let us use Wong Kim Ark and birthright citizenship to transition into our immigration roundup.

We haven't heard the name Mahmoud Khalil in a while, Roger, what has he been up to? And what court does he find himself in front of these days?

Roger Parloff: He's at the Third Circuit. And, he lost a case there maybe a month or two ago. And so he is now seeking rehearing en banc, and that's he lost two—

Benjamin Wittes: Including Judge Emil Bove.

Roger Parloff: Well, that's the issue. Whether it should include Judge Emil Bove.

He was you know, remember of the Columbia protesters who was one of the five key ones, protestors, pro-Palestinian protestors, who were targeted in various ways to be detained and deported. He's a legal permanent resident. And and so, and it's an important case 'cause the loss will be, of course, not just him.

It was done on a jurisdiction. What do you call those jurisdiction—One of those provisions that pulls jurisdiction away from the courts in immigration cases. And so if that is upheld, it will be a problem for a lot of immigrants. So it's an important appeal.

He, and he also filed a motion to have Judge Bove recuse himself and the government, we know the government opposes that, but says they see no reason for it, but they will defer to Judge Bove. The reasoning is that he was at the very top of DOJ at the time of the decision to target these five people, which was a joint decision between DHS and DOJ and Bove was at least partially involved in some of the activities targeting Columbia protestors.

I don't know, I don't think Khalil knows how closely he was involved in him, you know, targeting himself, but they did this is—Some of it is from reporting. Some of it is just obvious. Some of it is stuff he admitted in the Senate Judiciary Committee hearings. I think he, reportedly, he was one of those who pushed prosecutors to obtain a membership list of something called the Columbia University Apartheid Divestment Group to give to immigration agents.

And an issue in Khalil's case, is the government is claiming he was a leader of that group, he denies that he was, but anyway there's more than the usual. There, there's some stuff there. And of course the standard is 28 U.S.C. 455(a) partiality. If the judge's partiality might reasonably be questioned knowing, you know, in a, once you know all the facts.

There's also a little bit of another one, 455(b)(3) that says if a judge served in governmental employment and in such capacity, participated as counsel advisor or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.

Although Khalil's attorneys admit that only Bove knows that, they can't say so, it's a non-trivial motion.

Benjamin Wittes: No. It's a non—it's a real issue.

Roger Parloff: Yeah.

Benjamin Wittes: Alright. Speaking of real issues, there have been a, we've discussed a number of times these searches, ICE searches of homes without judicial warrants and we have observed that it is hard to see precisely how that gets, ends up getting litigated.

Now it is getting litigated. How did who get into court and are they gonna end up having standing to, or deemed to have standing to raise this issue?

Roger Parloff: Yeah. So it's six plaintiffs, three of them are U.S. citizens who had agents barge into their homes. The other three are the spouses of those three citizens, all in Minnesota.

And you know, battering rams, really scary stuff. Children you know, hiding in closets, detained for periods, then finally released. One of them, after release, is rearrested in violation of the court order, releasing them. But I do think standing will obviously be a key issue.

The and the issue here is the, there was no judicial warrant. So it's this—all of these searches were based on this secret May 12th, 2025 memo. It was finally revealed by a whistleblower in January, eight months later, that authorized this the, these sorts of searches on the base of an administrative warrant.

Apparently, it's ultimately based on sort of a very split Eighth Circuit ruling, and it, not in an immigration case, but in a, involving an escaped prisoner. It was a 5-5-3 ruling, so no majority ruling at all in that other case. And, interesting thing about it is that one of the defendants the key defendant is Mullen, of course, since now instead of Noem, head of DHS, but also the Federal Law Enforcement Training Center, known as FLETC.

Our colleague, Michael Feinberg, tells me that's the pronunciation. And one of the people that taught there is apparently one of the is cooperating with the plaintiffs here. He says that he was forced to teach this and the two prior people before him had both been fired for refusing to teach it 'cause it was so obviously to them illegal.

The, but yeah I the hurdle will be this Lyons decision, I think, which we've heard about in Perdomo Vasquez, and other cases where how, you know, yes they had their home barged in, but will it, they have their home barged in again using a non-judicial warrant, and if that is the standard which seems crazy, but it might be it's, it might be a hurdle.

So, I don't know how that'll play out.

Benjamin Wittes: Alright. Molly, let's talk about dismantling federal agencies, or in this case, federally supported agencies, partially, like NPR and PBS. A big Randy Moss decision this week. That seems like a pretty total win for, at least for NPR, although what do we know and how big a deal is it?

Molly Roberts: Yeah, I would say it's a total win for NPR and PBS in that Judge Moss found that the executive order that directed federal agencies not to fund them was viewpoint discriminatory, textbook First Amendment viewpoint discrimination. It would've been, I think, difficult for him to find differently, you know, it's one of those examples of you wouldn't think an administration would straight up say, we're doing viewpoint discrimination, and yet this one almost does in multiple cases, in context.

So in this one, there was a fact sheet issued along with the executive order where the White House was going after NPR and PBS saying that they fueled left-wing propaganda with taxpayer dollars. And then they gave examples, and the examples were an NPR article about queer animals and a PBS documentary about a transgender teenager.

It was just really clear. They were saying, this is, these are left-wing viewpoints and that's exactly why we're doing this executive order. So he found that, no, you can't do that. He found that part of the case was moot, which was the part having to do with the Corporation for Public Broadcasting, which no longer exists after, at Trump's urging, Congress didn't appropriate any more funding for it. So it's been dismantled now. It had kind of a ghost crew at the time that the hearing for this was taking place.

Which kind of gets to your question of how big a deal is this. Well, it's a big deal in that the federal agencies have been directed not to do this. And so if Congress ever tried to restore funding to NPR, PBS, couldn't. On the other hand, because Congress clawed back all this funding for the Corporations Republic Broadcasting, NPR and PBS already didn't get all that money. They're not getting back the money they lost. And they've started to figure out how to fund themselves differently.

So if Congress wants to give them more funding in the future, Trump can't say this ruling makes it very clear. He can't say they can't have it, but that doesn't really make up for what has already happened, which was quite a blow.

Benjamin Wittes: Speaking of people who had a good week in court, Anthropic had a particularly good week in court, largely 'cause the government didn't show up. And I am perplexed by this.

Last week on Wednesday or Thursday, there's an oral argument in Judge Lin’s court, in which the government says, if you're gonna rule against us, can you impose a five-day or a seven-day stay so that we can have an emergency stay order to the Ninth Circuit, stay petition to the Ninth Circuit.

She obligingly does this without an objection from Anthropic, and then the government doesn't bother to file the stay request, at least as I understand it. And so now the government, the stay has gone. The order has gone into effect. Judge Lin's injunction has gone into effect. Everybody can do business with Anthropic, and they've just filed a regular old notice of appeal to the Ninth Circuit.

So, first of all, do I have that right? And secondly, if so, what was the point of the whole, we need to you to file an emergency, you know, a seven-day stay so that we can, was that just a shadow dance?

Roger Parloff: It was very puzzling. So the, her injunction was issued last Thursday and so it ran out yesterday or at this morning, at midnight.

And they filed a notice of appeal yesterday, but no emergency motion for administrative stay or emergency stay. At least not as of the start of this taping. And so it took effect this morning.

And it's very important for Anthropic. Now it doesn't—remember there are two statutes and there are two cases. And so there's a statute this doesn't impact, and where Anthropic is trying to stop the other statute, we can talk about that in a second. But what this does do is, remember there were, one of the statutes is 10 U.S.C. 3252, but even worse than the statute, that, is they issued these directives on Twitter or Truth Social for Trump and Twitter for Hegseth.

And in those, Hegseth purported to impose a secondary boycott on Anthropic and say, you know, they weren't gonna do business with any private contractor who did any business with Anthropic and that would've been catastrophic for Anthropic. And you know, it's one thing not to have this some of these very sensitive DOD contracts, which is what 10 U.S.C. 3252 is about, but it's another to wipe out all of their private contractors.

And so that goes into effect—And also at that hearing the government lawyer backed down publicly from that and said, well, there was no, yeah, I know he wrote that, but there's no authority for doing it, authority for doing it. So the, that's a pretty big victory.

Now the other thing though is there is another supply chain risk statute 41 U.S.C. 4713, which is, you need to challenge that in the D.C. Circuit by statute. And the D.C. Circuit panel has not acted. They had asked them to rule by March 26th actually. And so that panel, which is two Trump, I think it's Wilkins, Rao, and I think Katsas,

Benjamin Wittes: Yes, it's Katsas.

Roger Parloff: Okay—has not done anything yet. And now we wouldn't ordinarily expect them to have argument 'cause it's an emergency stay type request. But you, I'm beginning, well, I, I don't know what to expect. 'cause sometimes, you know, those people have also acted by inaction sometimes. You know, we have this J.G.G. case that they have blocked for months and months by inaction.

The, that's the blocking Boasberg from doing his criminal investigation. So I, you know, I, it's too early to think that something like that could happen, but I do hope I do hope they act.

Benjamin Wittes: Yeah, I mean, it's a funny situation for Anthropic because you've won, they've won, quite decisively, the one matter that has been decided, and they haven't lost the other one.

There's just no movement on it, in a fashion that does make you scratch your head.

Roger Parloff: One other sort of interesting thing is that they've briefed the two cases a little differently. And to begin with, remember there was a First Amendment claim, Due Process claim, and then sort of a, it just, the statute just doesn't fit claim, and they've flipped those in the D.C. Circuit.

And it's, part of it is that it is a different statute and I think it's a little clearer that they didn't follow what they were supposed to do. There's like a 30-day notice provision that they didn't follow. And then when it got to the reply, they just like said, they just focused solely on the statute.

And I, by then of course, they knew it was the conservative panel, and I think they decided this is our best bet with them.

Benjamin Wittes: Yeah, I mean, you know, you have a very clear-cut set of statutory violations, and you don't get into that whole, do you defer to the military on, the Secretary of Defense on a judgment in national security?

Right. It's a technical set of violations of clear procedural requirements. I think it's a better, I actually thought it was a better argument in the Ninth Circuit too, but since they won all of the arguments in the Ninth Circuit, you don't really have to prioritize.

All right. It's been a big week in the politicization of the DOJ. Even before we we spit farewell to Ms. Bondil. We have a new class action suit from fired FBI agents. Which ones are these, and who is included in the class?

Roger Parloff: So, you may know these people better than me. They are Jamie Garman, who was actually a former AUSA. And then after that she was in the FBI for eight years, a lot of medals and awards. Blaire Tolman, a 14-year veteran, Michelle Ball, 10 years. And they were all fired between October and November of last year.

And the class would be people who are not subject to—FBI agents who were fired, who were not subject to Merit Systems Protection Board which is a real complicated determination of who is and who isn't.

But I think that there's at least 50 of them at this point, and that the number is increasing. It's very interesting. The defendants are Bondi and Patel and not just in a, you know, form formalistic way. I mean, it's very much Bondi,

Benjamin Wittes: So their personal conduct is at issue.

Roger Parloff: Yeah. Yeah. And if this, you know, gets to trial it'll be interesting because it's really telling the story of this sort of outlandish politicization of something that is very clearly not supposed to be politicized.

And the, you know, the facts are very open and shut really. I mean, as recently this includes you know, Blanche's statement from last week, you know, when he was at PAC. When it comes to the FBI, Director Patel has cleaned house there to, there isn't a single man or woman with a gun, federal agent still in that organization that had anything to do with the prosecution of President Trump.

So, you know, it doesn't get clearer than that. It's First Amendment, Fifth Amendment ultra virus, meaning there's no statute permitting what the, what they're doing. And they seek reinstatement, declaratory judgment that sort of thing. It's they're all Mar-a-Lago or Arctic Frost, the January 6th investigation in case, so by that I mean, of Trump and yeah,

Benjamin Wittes: I think it's a certifiable class. It's discreet. It—you can define it really precisely. It's, I don't know I, you know, sometimes class certification gets complicated, but this isn't like anyone who's ever smoked a cigarette, you know?

Roger Parloff: Yeah. And this is, now, this will be before Jia Cobb because it's a related case to two other FBI cases. We had one last week we talked about, which involved two John Does and then sometime back, you remember, there's one with Brian Driscoll and two others. That is also before her.

Benjamin Wittes: Alright. Judge Boasberg, Roger, doesn't seem to have thought better of his decision quashing the grand jury subpoenas to the Federal Reserve in the Jerome Powell matter. I have only one question, which is why does he not repent his sins?

Roger Parloff: Yeah. Well he, he said and this was just today. He said, there's a high standard for reconsideration, but I need not hide behind that standard to dispose of this motion.

And then the main thing the government wanted to say was that was a timeline thing, which he got right the first time anyway, but they wanted to stress that—Remember there's a meeting where Trump castigates the U.S. attorneys for not going after his enemies enough, and the grand subpoenas to the Fed went off the next day, and they wanted to emphasize but the invest—But Jeanine Pirro’s investigation, or the grand jury was convened I think the day before Trump castigated the U.S. attorneys.

And so he writes, the government fusses with a timeline. It wants to make sure the court knows that it first opened this grand jury investigation into a prominent target of the president’s. Then the president berated a gathering of U.S. attorneys for not prosecuting his opponents more aggressively. And only then did it issue these subpoenas. The court is puzzled about why the government thinks it helps its case to quibble over the details of the president's demanding that prosecutors target people he dislikes.

Benjamin Wittes: Judge Boasberg, Chief Judge Boasberg. Well done. It's a good, it's a good pithy—This is a great example of judges not overwriting. He doesn't, there's no rhetoric there. It's just, I'm a little confused why you think this helps. Excellent. Alright.

Anna Bower, this is a big week for frog embryo lady, AKA Kseniia Petrova who joined august company, the august company of Jim Comey, Letitia James, and Kilmar Abrego Garcia.

What is the club that all four of them are now members of?

Anna Bower: Well wait, I, so I don't know that the court ever got so far in the James and Comey cases as allowing discovery on vindictive.

Benjamin Wittes: You're right. So, so, so she and Kilmar Abrego Garcia are like advanced members of the club.

Anna Bower: It's a club of two basically.

I, I, although I'd have to think about what other cases. Yeah, but it's at least a club of two, a very elite club of people who have shouldered the burden of showing vindictive or selective prosecution to the extent that a court has allowed discovery to go forward on that question.

Now this is, so remember this is the frog embryo case of this, you can't help. But no. It's unfortunately you can't help but laugh when you say the frog embryo case, even though it is not a laughing matter.

Benjamin Wittes: Yeah, the case is not actually funny. It's just that when you think about smuggling frog embryos through customs. It becomes funny.

Anna Bower: Exactly. It does become funny. Although it is not funny the larger context of it. This is Kseniia Petrova, the Harvard researcher who is accused of smuggling frog embryos through Logan Airport. And this case started if people remember with, with her, the revocation of her visa.

And Petrova is a Russian national who expressed fear of being returned to Russia because of her activities related to protesting the war in Ukraine. Also, as I mentioned, a researcher at Harvard who after her immigration visa was canceled wrote a very popular op-ed in the New York Times, challenged her immigration detention and that decision through a habeas action. And there was a lot of publicity around her detention at a time when the Trump administration really seemed to be taking a stand to try to say that they would not be reluctant to cancel the visas of international students.

This was kind of, you know, in the early days of administration when there was a lot of cancellations of international student visas. And subsequently, past all of this publicity, Petrova ended up being criminally charged and the government, as a part of her habeas proceedings, tried to argue that the criminal charges kind of, you know, mooted out the habeas proceedings.

So there's this interrelationship between the initiation of the criminal case and the habeas proceedings. And all of tho—that timing and those circumstances around the publicity, all of that really plays a central part of this order that was issued by the magistrate judge on Petrova’s effort to get discovery on the vindictive or selective prosecution in which the magistrate judge, you know, recounts all of those things, including public statements by the U.S. attorney that were made about that New York Times article that I mentioned, the op-ed that Petrova wrote.

And the magistrate ultimately finds that Petrova has showed some evidence of vindictive or selective prosecution sufficient to get discovery on the matter, which includes, you know, a number of requests for documents, but also the grand jury instructions that were given to the grand jury regarding the smuggling charge.

So, and the Abrego case I will mention is cited in this order regarding the public statements that were made. In that case, the public statements were by Todd Blanche regarding, you know, the interrelationship between the habeas proceedings and the criminal case.

But it again, been an elite club here and we will see what happens because this is the magistrate judge. You would imagine that probably the government is going to seek to appeal to the district court judge. But we will see what happens and we'll be watching for more frog embryo action.

Benjamin Wittes: We call this the SNV Club, the Selective and Vindictive Prosecution Club. It has, so two full members, Kilmar Abrego Garcia, and Xenia Petrova, and two, I would say junior members whose briefs are very powerful but have not actually prevailed yet. Jim Comey and Letitia James. And of course those two may never get to join the club fully because they have won their cases on other grounds, like the people who filed those motions were illegally appointed in the first place.

Anna Bower: Well, and in the case of Letitia James, two grand juries have subsequently declined—

Benjamin Wittes: Right. Exactly.

Anna Bower: to bring charges.

Benjamin Wittes: So she may never get a chance to join the club, but we will, we're rooting for their memberships. Alright—

Roger Parloff: And I think Jerome Powell should get an honorable mention as, as well. I mean, he's not quite formally,

Benjamin Wittes: He hasn't even been indicted yet.

Roger Parloff: Yeah.

Benjamin Wittes: I don't think you can join unless you've filed a selective or in vindictive prosecution motion. Throwback to the good old days when we used to use this show to talk about the prosecutions of Donald Trump, back when Lawfare Live was young and innocent. People may remember the civil litigation over January 6th in which Trump is a civil defendant.

We have a ruling in that case, at least a ruling on some portion of that case. Roger, what did Judge Mehta do?

Roger Parloff: Yeah, so now we need to place this in context. This is the civil, it's a bunch of civil cases some brought by congressmen, some brought by police officers. One brought by the widow of Brian Sicknick.

And the way back in February 2022, Judge Mehta, Amit Mehta, denied a motion to dismiss and decided that there were a lot of not, official acts, that the president does enjoy, immunity for civil liability for his official acts that we've known since 1982.

But he already held that most of the acts that were being alleged here did not fall under that. And he also overcame the claim that that his—that the claim of incitement was that his speech at the Ellipsis was protected by a First Amendment and couldn't be considered plausibly considered incitement.

And that was upheld by the D.C. Circuit. And now we're going forward again after discovery. And so it's sort of a motion for partial summary judgment, and he's basically finding the same things. The Ellipse speech, most of the Ellipse speech is can be considered. I mean, the jury will still get a chance to decide these things, but he is saying there's a good case that these are not official acts.

The outreach to state and local officials are not official acts. He does find that, there were some, actually some things that I considered very incriminating that he did find official acts, I was a little surprised. What the most important tweet, the 2:24 PM tweet. So this is 11 minutes after rioters penetrate the capitol. And he says “Mike Pence didn't have the courage” and so on, which really inflamed the rioters who were listening who were, you know, had their phones and when they heard this.

Also he, but he does exclude that a 6:01 tweet, go home with love and in peace. Remember this day forever, the Rose Garden video. We love you. You're very special. He excludes all of those things. Frankly, I'm not exactly sure why, but all of the campaign speeches leading up to it for months and months, the baseless lawsuits, the fake elector scheme, all of that comes in.

Obviously the DOJ discussions that's excluded on the basis, you know, the, basically the Supreme Court already decided that was, those were official acts in the context of the criminal case. The Oval Office meeting with Michigan state legislators, he does exclude anyway. There is, they also re-raised the First Amendment question, and based on an intervening Supreme Court case, he said that, the Counterman case, he'd rejected that argument that Counterman didn't really change anything.

Also since his first ruling, Cassidy Hutchinson testified, and he said that, you know, her testimony really strengthens the argument that this could be incitement. Her testimony about you know, the magnetometers, him saying “get rid of the effing magnetometers. They're not here to hurt me.” So that, that it helps the incitement argument.

But he also certified that for interlocutory appeal. So now a number of these cases will presumably be—Maybe not all of them, but a number of them will presumably be stalled again while that goes up on appeal. So, there's also now a Westfall Act claim which means the DOJ has raised a claim that he has immunity as a federal officer.

This is independent from being president. And you would have to pursue him under the Federal Tort Claims Act. The judge rejected that as well. But I have the feeling that if this goes to trial, maybe Molly and Anna will get there for the trial. But I don't think I'm gonna make it.

I, you know, I mean, I've been to the mountaintop, but I'm not gonna, I may not get to the,

Benjamin Wittes: I may not get there with you.

Roger Parloff: Yeah.

Benjamin Wittes: Very good. Roger. Alright, Anna, speaking of statutes that may not get there with you, the Presidential Records Act. The Office of Legal Counsel, one of the benefits of having your own office of legal counsel if you're the president, is that if you don't like the Presidential Records Act, you can call up an opinion to have it declared unconstitutional.

Remind us why the president cares so much about the Presidential Records Act and remind us, and what did OLC do to it this week?

Anna Bower: Yeah, so the president has a interesting relationship with the Presidential Records Act because it is both the thing that kind of initiated his criminal charges—

It's the reason why in a criminal investigation was initiated against him, related to allegations that he unlawfully retained classified documents. But it also is a statute that he raised in his defense in that case. And just for people to recall the Presidential Records Act, one of the post-Watergate statutes that was enacted back in the seventies related to retention of presidential documents.

It basically specifies that certain documents, when a president leaves office goes to the custody of the National Archives. And then after a period of five years after the president leaves office some of those documents become subject to FOIA. And in the classified documents case, it was because the National Archives noticed that a bunch of these materials they were supposed to have were missing, and they try to work with Trump for many months to try to get these documents unsuccessfully in some cases, obviously.

It's because of that kind of, you know, back and forth with the National Archives that ultimately led to the investigation of Trump. And then led to his an indict, his indictment for unlawful retention of classified documents.

Now, after that case was indicted, Trump then raised the Presidential Records Act in a very convoluted and implausible argument and reading of the statutory text, raised the Presidential Records Act as a reason that he said, you know, vindicated him that he had authority to these classified documents from the White House because of the PRA.

Now all of that context set aside, it is as of January 2026, of this year. It was according to the PRA in that five years after you can leave office, it became time where people from, who wanted to FOIA information that were with the National Archives from Trump's first term, could start submitting those requests.

So that happens in January. Fast forward to now, April 1st it's not it was on April Fool's Day that this was released, but it is not an April fool's joke. OLC has now released an opinion in which it says the Presidential Records Act is actually unconstitutional. Congress—and a really like extraordinary opinion because of some of the statements and interpretations that it's making.

It says Congress does not have the authority to regulate the president's papers because the presidency is not a branch that was created by Congress. It's a coordinate branch. It is in an office that was created by the president. It was established by the Constitution that the regulation of papers doesn't fall within Congress's oversight power. Because the legislative purpose is too broad.

You know, basically that the PRA requires everything, all of the president's documents with no oversight, a specific oversight objective. It's not within the Necessary and Proper Clause because it restricts the president's power rather than expands it.

You know, it's not within the Spending Clause. It kind of goes through all these reasons. And then also astonishingly says basically that the Nixon case, which is a case related to a predecessor statute to the PRA in, that also was enacted after as post-Watergate reform that case was basically decided, you know, wrongly.

And says like the, for most of the history of the United States, the president's papers were kind of considered his private papers that he could take with him after office and kind of do with it as he pleased. And you know, again, it's just a really incredible statement from the OLC.

Like, I've been, Roger, Molly, I'd be curious for your thoughts if you read it. But in addition to it being a real, in my view, perversion of the case law and constitutional text, it also is just so ironic that the president, as a private criminal defense or a private criminal defendant relied on this statute that now his OLC, which is under A DOJ that is now being led by his former criminal defense attorney is saying is unconstitutional.

Like, it's just so I haven't been able to stop thinking about it in the days that since I read this opinion, because it's just so, like, what is happening.

Benjamin Wittes: Alright. Speaking of what is happening, let's talk about, this is outside of Lawfare’s area, but the stuff is so much fun that we're just gonna treat it like it's you know, I guess if anybody else bulldozed the White House, it would be considered a national security matter.

But we have Molly's significant developments on the unilateral reconstruction of the White House by the president. And Judge Leon has used a lot of punctuation to discuss it. As is his want. So first of all, how many exclamation marks were there? And secondly, what did he do?

Molly Roberts: I'm gonna need to fact check from Roger.

How many were there? 22, 23? Am I totally wrong?

Roger Parloff: It was 18. 18, but 18 out of 35 pages. So very, a good density over, 50% density.

Molly Roberts: I think that's a better metric for sure.

Benjamin Wittes: Yeah, it's definitely the right metric is exclamation marks per page. And, you know, if you're averaging one per two pages, that's pretty good for Judge Leon, I think.

Molly Roberts: Yeah, no, definitely. And they were, I was gonna say used, well, I don't know. They were used with spirit, as always. There was a “please!” exclamation point, which is a common one in his opinions. And it opened with saying that the president is the steward of the White House, but he is not the owner, exclamation point.

So yeah, it may sound, from those quotes, he did not side with the president on this one. So Judge Leon had denied an earlier request for a preliminary injunction that the National Trust, who's suing here, had made, and that was on the grounds that the National Trust had invoked the Administrative Procedure Act. And that wasn't the right thing to do because the White House is not a federal agency.

So this time he granted the request for a preliminary injunction, he ordered a halt to construction, finding that Trump lacks the power to do this under any statute available. And basically there were a few statutes, a few ultra virus claims, and he went through all the statutes and said, none of these, let the president do this.

You know, one of them had to do with how the law lets the president spend, gives him an annual budget to spend on the White House's care, maintenance, and repair, and cites air conditioning, and heating, and lighting. And he was saying, oh no, I can tear the whole thing down. And as Judge Leon put it, build a modern skyscraper in its place.

And he said that was a brazen interpretation, indeed, exclamation point. So that's the kind of short version of what happened. Roger may have more details, but around the same time, just a few days later, the National Capital Planning Commission voted 8-1 to allow the construction of this larger building. I think right now it's at two stories and 90,000 square feet.

And the National Capital Planning Commission is packed with Trump allies. It voted 8-1. Phil Mendelson in his capacity as D.C. City Council chair, was the only no vote. And he said, it's too large. It's just too large. But the, that doesn't really matter because what Judge Leon found was that he needs express authorization from Congress.

So even if he did need approval from these bodies, he got it. But that doesn't deal with the Congress problem.

Benjamin Wittes: So Roger, in addition to a litigation over raising the White House to the ground and rebuilding a Mar-a-Lago ballroom in its place, we also have a case to stop the Trump triumphal arch, which makes me think of arc de triomphe music.

Roger Parloff: Yeah. Both of these cases, the thing that is likely to save us, if it saves us is 40 U.S.C. 8106—

[music starts]

Oh, is that the triumphal music?

Benjamin Wittes: Yeah, it's the triumphal arch music.

Roger Parloff: Okay. Okay. 40 U.S.C. 8106, a building or structure shall not be erected in any reservation park or public grounds of the federal government in the District of Columbia without express authority of Congress. So that seems to be the main thing protecting us. There's also one in a second one involving the memorial arch called the Commemorative Works Act of 1986.

The, I think the problem, the hurdle with both of these cases may be standing, both the judge in the memorial the memorial arch, one is the other side of the Memorial Bridge across from Lincoln the Lincoln Memorial. And that one is being and apparently even though that's in Virginia, it's considered D.C. in the way these statutes are written as far as the, these needing Congress's protection.

So this is four individuals suing Trump. Three of them are vets, Vietnam Vets who visit Arlington Cemetery regularly. And one is an architectural historian, and they all say, basically the, it upsets their,

Benjamin Wittes: It hurts my feelings.

Roger Parloff: Yeah. You know? Yeah. Their aesthetic. And both judges seem to, I mean, certainly the plaintiffs, I mean, Judge Leon accepted that the National Historical Preservation Trust, National Trust for Historic Preservation had standing.

And it sounds like from Judge Chutkan’s little minute order, like she also finds that these people have standing based on their aesthetic concerns. It's a little surprising to me, but I hope that's right. And the government argument in the memorial case is really interesting.

Their argument is that on the substance is that we have congressional approval because in 1913, when they were getting authority to build the Memorial Bridge, Congress said you can build the bridge and you can also build two pillars on the other side of the bridge with a statue on top, with statues on top.

And a commission at the time, which doesn't exist anymore decided however, not to go through with that because there was an airport called Hoover Airport, and it's not exactly where National is, but—it's actually where the Pentagon is. But they thought it would be dangerous to planes 'cause it was gonna be 166 feet, which is much smaller than what Trump has in mind, but it was already scary.

And so they're trying to use that original authorization from 1913. But I sort of, I, I sort of think the 1986 Act that, that comes after that is gonna take priority.

Benjamin Wittes: Alright. We have three questions in the queue. The first is from Andrew. Imagine you were on the Senate Judiciary Committee questioning the, as yet unnamed successor for Attorney General Bondi.

What question would you ask to ensure that the nominee would uphold the rule of law and be an improvement over Bondi? Or is that simply too much to ask from this administration? From each of you, Anna, first, then Molly, then Roger. What question would you ask a putative attorney general designee?

Anna Bower: Wait, can I, someone else go first. I need to think.

Benjamin Wittes: Come on. You wouldn't ask: Who is the administrator of DOGE? I would think,

Anna Bower: Oh yeah, sure.

Benjamin Wittes: Molly, what would you ask?

Molly Roberts: You're not gonna give me a question? I don't know. I, what always sticks out to me about Pam Bondi was when she started up and said, we are proud to work at the directive of President Trump.

So I might ask, you know, how they feel about that statement, whether they would similarly make that statement.

Benjamin Wittes: Roger?

Roger Parloff: Maybe yeah you swear in oath to uphold the Constitution. And can the pre, you know, and Attorney General Bondi took the position that, well, whatever the president wants, that's his interpretation of the Constitution and I need to follow it.

Do you agree with Attorney General Bondi on that, or do you think maybe the oath has teeth, and sometimes you would be obligated to disagree with the president?

Benjamin Wittes: For my part, I would ask the following question: The president, the administration has asserted the right to fire career officials without cause, in violation of, apparent violation of civil service rules on the basis of, as it has articulated it, Article Two. Does Article Two of the Constitution give the president or the lower-down officials the ability to fire civil service protected people without cause? And if so, how is civil service protection different from service at the pleasure of the present?

Anna, do you have a non—answer? A question for the attorney general designee?

Anna Bower: I think that, for me, it really depends on who the person is. Like I, I'm, I would be, I often complain, publicly and loudly, about the fact that senators are really bad at asking questions of people because they need to be trained in like trial advocacy skills and cross examination.

Like, you need to be really specific. You need to do witness control. Like, it drives me kind of crazy, some of the questions that they ask and there are some senators who are really good at it. But I think it's just so context dependent. I don't have a, one of the really—

Benjamin Wittes: A generic question.

Anna Bower: Yeah. I don't have a generic question because I would want to be focused on the facts as I know them about that person in particular.

Benjamin Wittes: Alright.

Anna Bower: Yeah.

Benjamin Wittes: The anonymous attendee asks two questions. Has anyone heard about Drew Ensign lately? Did he become too well known to the federal judiciary, so the Justice Department stopped sending him to make their more, shall we say, alternative fact-oriented arguments. Anna, have you been texting with Drew Ensign of late?

Anna Bower: I haven't, but Drew, I'm on Signal, AnnaBower.24. Drew Ensign is still around as far as I'm aware. He's still doing his thing. I'm trying to remember when I last heard him in an argument, but I can't recall. But as far as I'm aware, he's still happening. He is, Roger's not with us anymore, is that correct?

Benjamin Wittes: No, Roger's here.

Anna Bower: Oh, he is? I can't see him for some reason.

Oh, there he is. Okay. Yes. Roger, what,

Roger Parloff: No he's very active. I think I, I think he did one of the mandatory detention arguments. Maybe both no, in fact he's surprisingly active. I keep sort of being amazed each time I see him given some of the things he's been involved in and, but you know, it's a teflon situation.

Benjamin Wittes: Alright, the other last question. Also from the anonymous attendee, I saw Elie Mystal assert that the presence of this president at the birthright citizenship oral arguments appeared to make no difference in the justice's conduct. Was that your impression too? I will just say for my own part I didn't see the argument because there's only audio available of it if you don't happen to be in the room.

And there is no, because you only, you don't get a chance to see what the justices would have said had the president not been there and then stood up and walked out. So there's no real way to know. I will say that no justice behaved in a fashion that seemed to me remotely atypical of that justice.

So in that sense, I don't think it, it didn't, it clearly didn't obviously, affect anybody's behavior in a way that jumps off the page of the text of the oral argument.

That said, it's very wrong of the president to go to an oral argument. It's a coordinate branch of government. He doesn't go to a state of the Union uninvited by, you know, he doesn't show up and just give an address at Congress. And the justices aren't invited just to show up at the White House anytime they want.

The president should be, in my view, respecting the boundaries of the physical space of a coordinate branch of government. And it doesn't matter if it rattles the justices or not, he shouldn't be there.

Folks, that's all we got time for. We're gonna be back next week. This has been a production of Lawfare. You can become a material supporter of Lawfare if you're not one already and join us in the studio. Have your questions answered either by name like Andrew, or anonymously, like the anonymous attendee.

You can do that at the lawfaremedia.org/support. Join the material support program because remember folks, it is a federal crime to give material support to terrorism and a virtue to give material support to legal journalism.

Check out our other podcast offerings, our audio engineer this episode is the great Anna Hickey. And thanks to Anna Bower. Thanks to Molly Roberts. Thanks to Roger Parloff, and thanks to Katherine Pompilio. We will be back next week.

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