Lawfare Daily: The Trials of the Trump Administration, Aug. 22

[Intro]

Benjamin Wittes: It is the Lawfare Podcast. I'm Benjamin Wittes, editor-in-chief of Lawfare with Lawfare Senior Editors Anna Bower and Roger Parloff and Lawfare contributor James Pearce. In the August 22nd episode of the Trials of the Trump Administration, we talked about the FBI's search of John Bolton's house, a ruling on the legality of Alina Habba’s service as U.S. attorney, updates in the Kilmar Abrego Garcia case, and so very much more.

[Main Podcast]

Welcome everybody to this week's Lawfare Live. It is Friday, August the 22nd, the year of our Lord 2025. It is 4:01 PM in Washington D.C. and I am here with Roger Parloff joining us from the Jura Studio where he is still a muck yard in the French resistance. Hey, Roger.

Roger Parloff: Hey, Ben. Good to be here.

Benjamin Wittes: And Anna Bower from the blurry room in her palatial mansion. Anna, you've been spending a lot of time in the blurry room.

Anna Bower: Yeah, but today this is the Georgia Blurry Room.

Benjamin Wittes: So, hard to tell the difference.

Anna Bower: It is a change of pace, but it is nonetheless still the blurry room

Benjamin Wittes: And from his car, in, in advance of a soccer game it is the estimable James Pearce back with us in his new career, having fully transitioned from government lawyer to anti-government lawyer. James, how is the new gig?

James Pearce: Thanks, Ben. Yeah, it's been, been busy, but in, in all good ways, some of which I, I think I'll have the chance to talk about shortly.

Benjamin Wittes: Well, it's very exciting. Again, James is the picture of the, the Lawfare Public Service Fellowship program in action giving people a bridge from being fired by Donald Trump and Pam Bondi to gainful employment in suing Pam Bondi and Donald Trump, that's what we're going for with this program, no I'm joking. That's actually not what we're going for, although we have no objection when it happens to work that way. Alright, we've got a lot of stuff on the agenda.

James has to jump off at 4:30, so we're gonna front load all things James which means talking first about Justice Department politicization. James, we have a decision in the Alina Habba matter. Is she legally wielding the powers of the U.S. attorney in New Jersey, or is she a, an imposter who is usurping the powers of the legitimate U.S. attorney?

James Pearce: According to Chief Judge Braun of the Middle District of Pennsylvania, who is sitting by designation in a couple of cases out of the District of New Jersey, Alina Habba is not lawfully serving as either the acting United States attorney or delegated power from Attorney General, Pam Bondi. Before I go further, I should say I am in my new post Lawfare life and career involved in this litigation, I represent the Association of Criminal Defense Lawyers of New Jersey filed an amicus brief essentially in support of the defendants who were challenging the validity of Alina Habba’s appointment and serving in this role and also participated in, in an oral argument that happened just a week ago. So, yeah, so for full disclosure purposes

Benjamin Wittes: So tell us about your new role. So we, I, when we last talked to you, you were, you were leaving for opportunities, unknown. But you were gonna stay involved. So here you are still involved. What are you doing?

James Pearce: Yeah, so I am a senior counsel at the Washington Litigation Group, a law firm that opened up earlier this month, on August 4th.

It's a, a, a law firm that, that is focused on upholding the rule of law, and particularly offering representation, pro bono representation to people or entities targeted by the administration. And it was the, the, is the, the brainchild of a, a bunch of, of luminaries of the D.C. bar former defense counsel, judges a former acting attorney general.

So, so attorneys with a lot of, of experience and. And then also folks like myself and a couple others who been recently practicing either as former prosecutors or doing high level appellate and Supreme Court work. And so we've taken on a couple of different matters, one of which is, as I just mentioned representing the association of Criminal Defense Lawyers in the challenges to Alina Habba’s, the validity of her appointment.

Benjamin Wittes: And why does, I mean, Alina Habba is a, I'm just gonna say this bluntly, a clownish Mar-a-Lago like figure she's not as clownish as say Ed Martin, but we focus on her as opposed to the, say the U.S. attorney in Albany who has a similar thing because she's Alina Habba and she kind of looks like she was plucked out of central casting for, you know, a Trump lawyer.

But why does it matter who is running, you know, whether that office is, whether Trump can install his person on an interim basis in that office or not. What, what's the, given that the Justice Department is ultimately controlled by Todd Blanche and Pam Bondy anyway, why, why do we really care? Who is US attorney in New Jersey on this interim basis?

James Pearce: So U.S. attorneys have existed even before the Department of Justice. They have existed since 1789, the Judiciary Act, and they have been the federal prosecutors that oversee the prosecutions in the, they're 94 federal districts. They're actually 93 federal attorneys for those keeping score at home. The U.S. attorney for Samoa and the Northern Mariana Islands is the same person.

So that's why you've got a slight mismatch. And, and that person, that U.S. attorney is an officer of the United States who, who under the Constitution is appointed by the president and by statute is required to be confirmed by the Senate, right? Has to have Senate’s, the Senate's advice and consent.

And so, that's a role that as I said is failed in, in the 94 districts and is essentially the top federal prosecutor making prosecutorial decisions and, and leading the offices. And the challenge to Habba in the district of New Jersey is, is one that, you know, doesn't take issue though. I think, as you've said, Ben, it could be perfectly fair to take issue with her qualifications as a matter of first principles, but takes issue with essentially the manipulative way in which the executive branch has tried to put her in place inconsistent with the statutory vari-, there are various statutory options that the Justice Department, or excuse me, the executive branch could use, but ultimately the court found and, and happy to kind of wade through the, the details, the details are, are weedy that none of those options were available in Alina Habba’s case.

Benjamin Wittes: Alright, so, walk us through what Chief Judge Braun found, and I assume this is going to the Third Circuit where Emil Bove will be the presiding judge on the panel that will reverse him right.

James Pearce: Yeah, it will be interesting to see, I mean, Chief Judge Braun was, was very attentive to, and his and his ruling also makes clear the likelihood of further proceedings of appellate proceedings whether judge I, last I checked, he hadn't had his commission. Maybe he's now on the Third Circuit. I would think he would recuse from something like this, but we'll, we'll see

Benjamin Wittes: I would think he would have to recuse, but I am, look, I am mindful of the rule that a judge who does not have to recuse, has to not recuse. And so I think we all need to start with the assumption that Judge Bove is hearing every case in the Third Circuit. And that's, we just need to remind ourselves that when you hear the words Third Circuit Court of Appeals, you should hear the words Emil Bove.

James Pearce: Well, we'll, we'll see when, when we get there, if, if that in fact turns out to be true. But so yeah, the, the situation was, and I think a little bit of context is, is helpful though I'm sure many folks here followed it.

After, so in early January, at the end of the, the past administration, the U.S. attorney under, under the under President Biden resigned. The position was filled with a, with a first assistant, sort of the top deputy in the office. And then in early March a, a, a different acting U.S. attorney was appointed, or technically interim U.S. attorney was appointed someone by the name of John Giordano. He served for three weeks and this was under a statutory section 28 U.S.C. 546, which allows the attorney general to appoint a, a, an acting, or really, really the better terminology is an interim U.S. attorney, has the full powers of a U.S. attorney for 120 days.

Mr. Giordano served three weeks of that and then Alina Habba was named, there's some controversy about exactly when she started. President Trump announced through social media that he was appointing her effective immediately on March 24th. But according to the Justice Department, she was not actually appointed until March 28th. Anyway, late March, she comes on the scene.

And then as, as folks may well know the, when that a 120 day period ran, at least as far as the District Court in New Jersey considered it, they put in place or issued an order, also consistent with Section 546, not Ms. Habba, but in fact Desiree Grace, who was the first assistant, the Justice Department or the attorney general.

Ultimately, we learned the president fired Grace and then purported on July 24th to put Habba back in place through a, an order that made Haba a special assistant under a different statute, 28 USC, principally 515, which by the way, is the same statute that really authorizes the appointment of the special counsel, like Special Counsel Jack Smith.

Benjamin Wittes: Basically, it's basically a statute that says the attorney general can name whatever person's he, he or she wants to do the things that he needs done, right?

James Pearce: Yeah. I, I think, I think that's, that works as a, as a sort of a, a basic des description of it.

Benjamin Wittes: I mean, it's a, it's a super broad housekeeping statute that says the, that the attorney general runs the Justice Department and he or she can appoint people to do things.

James Pearce: Yeah. When, when read in conjunction with other statutes like 509 and 510, that give the attorney general the power to delegate and other statutes that put the attorney general in, in, in basically supervisory role with respect to all litigation. Yes, that is essentially the function. It's a, it's a way to delegate authority to a, a particular attorney.

So the, the order purported to do that with Habba, make her the first assi, assistant, and then under the Federal Vacancies Reform Act, which we, we will need to talk about in just a moment, then turn her into the acting U.S. attorney. So there were challenges from two different criminal defendants. One was, was a, was a group that had been indicted under a, a previous U.S. attorney in the, in the Biden administration. They argued that that Ha, Habba was disqualified from further prosecuting in, in their case because none of those various authorities either Section 546 or the Federal Vacancies Reform Act, or this kind of special delegation under Section 515, allowed Habba to serve as U.S. attorney.

There was also a challenge that Chief Judge Braun consolidated with the, the challenge by the first sort of group of defendants. And this was somebody who was actually indicted on July 7th of this year. So kind of right in the period where Habba was serving or purporting to serve as the acting U.S. attorney.

Ultimately what the, what the judge found is that none of these provisions justified or, or provided a, a basis for Habba to serve in the interim role, the acting role or using the delegated authority of the attorney general with respect to 546, which again provided provides the attorney general the power to appoint someone for 120 days, the district court said there's only one appointment that an attorney general gets, that appointment started with John Giordano in early March and actually had run out by July 1st. And so under the, the chief Judge Braun's ruling Habba was actually no longer eligible under 546 as of July 1st.

So that, that's even before the, the period later in July when the District Court of New Jersey put Ms. Grace in power under 546(d). So then the next question is or, or, or was for the, for the judge is, could Habba serve under the Federal Vacancies Reform Act? A little bit of background on this is helpful.

This is a sort of an omnibus provision it's existed since essentially the founding that has recognized that there are times when officers who otherwise needs to be appointed by the president and confirmed by the Senate, those offices come vacant. And yet it is still important that somebody fulfills the duties and functions of that office.

And so the Federal Vacancies Reform Act is the most recent version of a statute that provides it's not specific to the Justice Department across the executive branch, a way to kind of ensure office continuity. And it, it provides a couple of different ways that sort of the default provision is that the first assistant, basically sort of the top deputy who is in the office will, will come in and fill for a limited period of time, usually about 210 days under, under the statute, the, the role of that, that the, the office that has, that has become vacant. There are two ways that the president can, can go a different route.

This came up, for example, with the appointment of Matthew Whitaker during the first Trump administration, which is instead of going to the first assistant, essentially the top deputy, the president and the president alone, the statute says, can either pick a, someone else who's been Senate confirmed for a position presidentially appointed and Senate confirmed, or somebody who has kind of adequate seniority in the relevant agency.

So it has to be at a certain level of seniority and has to have served in that agency for a long enough period of time. So I don't wanna go kind of too deep into the weeds, but the long and short of what the judge, Chief Judge Braun found here was that the appointment under 546, the sort of the specific version for filling a vacant U.S. attorney's office again, Habba’s appointment ran out and July 1st. She was not eligible to then come in under the Federal Vacancies Reform Act because she was not the first assistant at the time the office became vacant.

And there was a separate challenge that the defendants had made and, and we also made as amicus that involved her having been nominated to, to the office at the same time. The court didn't end up reaching that. And then with respect to that final basis, so again, 546 is one, one basis. The Federal Vacancies Reform Act is another basis.

The third basis was this kind of theory of delegated authority. The court held that what the Justice Department, what the attorney general had purported to do was to delegate to Habba all of the authorities of an attorney general, but that, so in that, doing, that actually conflicted with the Federal Vacancies Reform Act, which was designed to be essentially the exclusive way to do something like that, so it was a a, an effort to kind of maneuver or around, or sort of circumvent what, what Congress had put in place to, to try to prevent precisely this, this type of kind of end around maneuver.

And so the upshot of all of that is that the, the judge ordered that Habba is disqualified from the order says, participating in the prosecutions of the two cases or supervising any assistant U.S. attorneys because this is a case that that involved just these two, or involved just these two cases, there's some lack of clarity about how, how far it extends, but on its reasoning, it would seem to apply to, to any prosecutions currently occurring in the district of New Jersey.

Benjamin Wittes: Alright, so if I am, it seems to me there's two significances here. One is in the particular case of U.S. attorneys. You know, can you install a flunky like Ed Martin or Alina Habba passed a certain period of time over the objections of the local court, blah, blah, blah. U.S. attorneys are unique beasts and there's a, there, they have their own appointments process.

The second issue, which strikes me as much more important or at least broader, is. how does the Federal Vacancies Reform Act, if at all, limit the ability to deal with vacancies that otherwise would require advice and consent of the Senate, but you just kind of don't feel like it because you're Donald Trump and as he once said, I like acting, it gives me more flexibility, right. And so my question is, if the Third Circuit were to affirm this opinion and the Supreme Court were not to intervene, and by the way, I think that is a remote possibility because Justice Kavanaugh has made clear that he wants these kind of interim decisions to be made by the Supreme Court, but I'll leave that aside for a second.

It seems to me this actually really is a substantial interpretation of the Federal Vacancies Reform Act that basically says, you know, it doesn't give you carte blanche to put whoever you want in there for however long you want. How do you read the application of this to say, positions like the Secretary of Defense who was installed under the Federal Vacancies Reform Act once upon a time, right? Or the, you know, like Trump was using this profligacy in the first term. Are we seeing the courts now push back and say, wait a minute, if there are rules, if you're not going to use the Senate advice and consent process?

James Pearce: Yeah, it's a great question and, and certainly a feature of the government's argument. Less so, a little bit in its brief, but more so in the hearing a week from, from today, a week ago, was that the practice of using the Federal Vacancies Reform Act in kind of the way it was used here is, is widespread and, and sort of cross cuts administrations and, and the chief judge's response to that was kind of along a couple of, of different lines.

One was, well, you know, maybe that's true, but you know, this idea that everything just operates by, he said something like operates by, by handshake and, and people don't challenge this, when you actually get down and do the nitty gritty work of interpreting the statutory text are some of these appointments in fact supported?

And, and in doing the work in Habba’s case came to the conclusion, I think quite well supported that the answer was no. Now, as a kind of practical matter Judge Braun also made the point that, look, when it comes to this very specific question of can the Federal Vacancies Reform Act apply to a post vacancy first assistant?

In other words there's this practice. The government often argued in this litigation of putting someone in place in a first assistant position after there had been a, the resignation of the pass officer of the Senate confirmed presidentially appointed and Senate confirmed officer and then as of, you know, noon on, on January 21st, that person would become the acting head of the, of the relevant agency.

And the judge made the point, well, listen, I mean, that could still happen, you just have to have the person resign in the new administration. Then at, at which point you've already put somebody in the first assistant position and that under the operation of the Federal Vacancies Reform Act would be under the 3345(a)(1), one for those keeping score at home, would be lawful. And so I, I don't think that this ruling all of this is to say, I don't think this kind of, signals a sea change and, and should scare the, the government to thinking that there aren't plenty of tools as Judge Moss said in another sort of a, in a Ken Cuccinelli case from a, from a few years back, there are plenty of tools still available.

I think the point here is you can't just kinda keep coming up with ways to get the person that you want to, to fill that office because you can't figure out a lawful way under either. Again, in this case the U.S. attorney specific provision, the FVRA ways of, of delegating. And so I, I think it will have limited effect though I, I suspect in this litigation, the government will come in and make precisely the op opposite argument, a kind of sky is falling consequentialist argument to to, to try to advance its position.

Benjamin Wittes: Alright, mindful of the time, 'cause James has to drop off in six minutes. I wanna turn to some of the substantive work of the office that is now not lawfully headed by Alina Habba, which is to say the prosecution of Representative Monica, LaMonica McIver who has moved to dismiss.

So, James bring us up to speed on where that case is, which flows from the savage beating that she gave to ICE officers when she was trying to break into an ICE facility, and they were reasonably trying to stop her right.

James Pearce: So, so the government has, has alleged, yes. We, we've talked about this a couple of times on, on Lawfare Live.

But this arises from an incident where not only Representative McIver, but also Mayor Ras Baraka, and then there were a couple of other, I think two other Democratic Congress members who were performing on, on their view oversight at Delaney Hall, a kind of ICE im, immigration facility in New Jersey and a, a scuffling,

Benjamin Wittes: Which sounds like it's like the name of a plantation where, you know, you know, Delaney Hall, where, where, you know somebody you know, got married in the 1860s, but is actually a, a detention facility.

James Pearce: Yeah, it, it does, it does have that ring or something from Harry Potter, but yeah, no, it, it is a, it is a immigration detention facility. And, and we've talked about. So, so, so Mayor Baraka was briefly charged with federal trespass, the office moved to dismiss it. The magistrate judge had some pretty strong words for the conduct of the U.S. attorney's office in that matter, but they did move forward, the office moved forward, the government moved forward to prosecute Representative McIver charged her under 18 USC 111, often referred to as the federal assault statute, though it, it includes not only assault, but resisting, opposing, impeding essentially federal law enforcement officers. You, you get very different perspectives of, of what happened depending on whether you talked to Representative McIver or, or the government.

But for present purposes, in terms of the update a week ago was the deadline for filing dispositive motions for the defendant for, for representative McIver. And I just wanted to flag two of them here. One, which, which I actually haven't had a chance to read, but we've, we've anticipated is a legislative immunity motion.

In other words, that Representative McIver was in doing oversight is, is essentially protected by, I suspect it's, it argues the speech or debate clause of the, of the United States Constitution. To my mind, not having read the motion, that does strike me as a, as a pretty compelling argument. The other motion, which I have read–

Benjamin Wittes: Because speech and debate, definitely includes administering beatings, right?

James Pearce: Well–

Benjamin Wittes: I mean, when I debate with somebody, I reserve the right of full body contact.

James Pearce: I mean, I suppose how you speech your debate and, and I wasn't, it wasn't it Charles Sumner who, who, who got a beating in the context of the–

Benjamin Wittes: Charles Sumner was caned.

James Pearce: That was, yes, exactly right.

Benjamin Wittes: And it was considered, and that was defended in the Southern press as, as I recall, something that a man of honor could not have avoided doing was caning Charles Sumner. And so, yeah, I think that's clearly was on the floor of the House of Representatives. So clearly it, you know, this is a, a, a legitimate form of speech and debate.

James Pearce: Yeah, well, well, we, we'll, we'll see how, how that goes. As I said, that's one, one of the two, two motions. I, I think though I haven't read it, it, it, there's a pretty persuasive case to be made that Representative McIver be, should benefit from a, from the speech or debate immunity.

The other motion, and this–

Benjamin Wittes: All, all jokes aside, I actually agree with that. I, I think that there's the authority, the, the autonomy to defend yourself when you're, when you're there on legislative business I think has to be understood at least a little bit capaciously.

James Pearce: And, you know, another interesting point here, and I don't know, because again, I haven't read this particular motion, whether the motion makes it, it's the, the, the selective and vindictive prosecution motion to dismiss, which I'll mention, which I'll discuss in just a second, does make the point, which is that, it does not appear based on some kind of, of reporting that the office, the U.S. attorney's office consulted with the public integrity section, which as we've talked about here before, has essentially been whittled into non-existence, but that is sort of issue spotting, potential legislative immunity, speech or debate immunity would be precisely the kind of role that the public integrity section would have played and might have given advice to say you know, this, this is, poses a substantial hurdle to this prosecution.

So, again kind of an effective point, I think made in the selective and vindictive motion to dismiss, perhaps also made in the legislative immunity kind of about questions of the government's regularity and the regularity of its, of its processes.

The selective and vindictive motion, it makes an interesting argument that it notes that the, the, the statute under which Representative McIver is, is being prosecuted, I mentioned it before 111 essentially the federal assault statute, was charged and then dismissed against 160 or so January 6th rioters. And so argues that essentially to the extent those folks were charged with it, and then the beneficiaries of a pardon for far more egregious conduct.

 The motion argues, I think compellingly than what Representative McIver engaged in, she should therefore be entitled to dismissal as a selective prosecution, particularly in light of the fact that she was both exercising her congressional oversight function and engaging in sort of First Amendment protected conduct.

So that's the sort of the thrust of that motion. It also includes a, a, a vindictive or a prosecution challenge, basically saying she's being targeted. And at the end just makes a, a says at least, we are entitled to discovery on this matter which is, these motions are actually pretty, pretty rarely granted, but on my view, this one is, is more compelling than, than many of those, at least that I used to see when I was on the other side of them in government.

Benjamin Wittes: Alright, finally, before we let you go we have an update on the attacks on law firms, which is that two major law firms, Kirkland and Ellis the great Chicago firm and Paul Weiss the, the great New York firm are now busy doing work for free for the Commerce Department on trade stuff.

James is this a, oh, how the mighty have fallen situation, or are these firms just waiting for the D.C. Circuit to affirm the district court rulings in the other cases, at which point they will rise up and say our agreements are unenforceable too.

James Pearce: Yeah, that is a, a great question and what I've been wondering, I mean, the reporting just says as, as you've have, you summarized Ben, that these two firms Kirkland and Ellis and Paul Weiss have been involved as was, as was anticipated when a lot of these deals were, were made in sort of furthering the, the trade deals that the administration has been kind of advancing and, and trying to, to carry out you know, hard to see how that falls under kind of the, the typical view of what pro bono does what pro bono is intended to do.

Benjamin Wittes: Yeah, pro bono, it's all about representing the powerful against the other powerful, so–

James Pearce: Right.

Benjamin Wittes: You know, or the less the powerful the U.S. government against the government of Lesotho,

James Pearce: Right.

Benjamin Wittes: You know, like, who can't hire Kirkland and Ellis.

James Pearce: Yeah, no. And so to the extent this is pro bono, and I think there was a question in the chat that's a fair one, I, I, I'm not from the reporting, it's not a hundred percent clear that it is pro bono, and if it's just worked on as a, as a client work, that's a different story. But if it is pro bono and carried out under these, under these settlements, then I do think it marks a, a pretty different approach to pro bono work.

I think the real question is the one that you flagged, and we'll just have to wait and see, right? The, the four firms Wilmer Hale, Jenner and Block, Susman Godfrey, Perkins Coie, that have challenged the executive orders and that, and which the government has appealed and which I think the government will lose whether that will then have the result of the, the firms that have otherwise made deals turning around and saying, yeah, good luck enforcing your unconstitutional deals at this point, but we'll just have to see.

Benjamin Wittes: Right, I just wanna say, I can make very few predictions about the D.C. Circuit, I will say there is no panel of the D.C. Circuit that I can imagine that will not affirm the lower court rulings on the constitutionality of this. The, and so if you're one of the firms that made a deal, you are now asking the question when do we argue that this deal is unenforceable?

And maybe the answer is never, because actually it's better not to pick a fight with the snake. But maybe the answer is once, you know, there are enough rulings at the lower court level. There are currently four, or maybe it's when there's a controlling precedent at the circuit level and a denial from the Supreme Court. James, thank you for joining us today. We kept you a little bit long but it's great to have you back and congrats on the new gig.

James Pearce: Thank you so much. Hope to, to be back soon.

Benjamin Wittes: Excellent. So, we are gonna turn now to a subject we have generally never spoken about before on Lawfare Live.

And that is the giant civil judgment in, against Donald Trump and the Trump organization specifically in the New York case. And I wanna explain before I ask Roger to talk about the 323-page opinion, is that, am I getting the length right?

Roger Parloff: No.

Benjamin Wittes: And I have not read it. I read the syllabus and said, I'm not reading this. But I wanna explain a little bit about why we have gone from not covering these cases and these will now include the, the Carroll case and some of the other civil litigations in New York. And I, I've actually given this a lot of thought. Why? Both in the before times when we did not cover these cases and in the current environment when I think we should, and I just wanna explain my thinking about this to everybody for transparency purposes.

So our general posture has been that we cover national security law and whatever sexual harassment against a former president is, or sexu, sexual assault against former president is, it's not a national security litigation, whatever fraud against the Trump organization for real estate in New York is, it is not a national security issue.

And so if you're Lawfare and you're not a, a, a Trump litigation website, you're actually a national security legal policy website, there are things that involve Donald Trump that don't involve us. And I have always thought of the civil litigation in New York, whether it's about the Trump organization's business practices or about Trump's sexual behavior as not implicating Lawfare issues as a general matter.

Now, sometimes there are specific issues that arise as opposed to, for example, the, the New York civil ca, the New York criminal case, which raised issues about the integrity of the 2016 election that cannot comes in a little bit closer to our orbit. Right? And so we have over the years, and I think both Roger and Anna will back me up on this, spent a fair bit of time asking the question, hey, is this in our orbit or not?

And sometimes the answer is yes, and sometimes the answer is no. Well, with these civil cases over the last eight months, the answer has changed. And the reason is that you know, a $450 million lawsuit judgment against Donald Trump or against the Trump organization by the state of New York, in and of itself is not in law fairs orbit, but, but if a $450 million judgment against the president of the United States is within Lawfare’s orbit.

And so the moment Trump goes from being a former president and maybe someday a future president to being the actual president again, a bunch of this stuff becomes part of our vocabulary, sort of the way the Paula Jones suit would, you know, if you think about presidential power, big issue for the Clinton administration, right?

And, and so I think you know, the, if, if you're thinking, oh, you guys didn't use to cover this and now you are, you're right. We are shifting gears a little. And the reason is that the magnitude suits against the president matter in a way that suits against private individuals from a Lawfare point of view, though they might matter from a lot of other point of view, from a national security legal point of view, they really don't matter very much, or at least they're not part of the field.

So that is my thinking about this. And, Roger, we had a judgment from the what is it, the First Division of the New York Appeals Court? I can't, their nomenclature for the appellate body of the Supreme Court of New York which has like 30 judges, no two of whom could agree on this, they wrote 323 pages. What do we know about the opinion and what does it mean for the Trump organization? Is this a win or loss for the president?

Roger Parloff: It's a win for the president. It's, it's five judges on the panel of the appellate division first department appellate division of the Supreme Court.

And so we have three re rulings. It's, it's two and two and one. And so no three command a majority. But as I'll explain, there is a weird footnote there too. So, there are five justices, four of them are Democratic appointees. The first two Peter Moulton and presiding Justice Diane Renwick.

Hold that there, there is ample evidence, there was ample evidence to find him liable for both fraud, persistent fraud, and what's called illegality under this statute, which actually here means five violations of the penal law. And we can discuss what those are and, and as a result, they uphold rather extensive injunctive relief against Trump and his, and the organization and some other defendants, including an independent monitor a compliance officer to, to oversee the Trump organization and banning Trump from being a corporate officer or director for three years, but they would vacate all of the discouragement which was what came to initially about $465 million.

Benjamin Wittes: And why would they do that? You affirm the judgment, but vacate the discouragement. Why?

Roger Parloff: They primarily, the Eighth Amendment excessive fines statute, but there were other issues excessive fines clause the, a, a, but anyway, that's just two, so that's two out of five, which doesn't get you very far. Th, then you have two and we can come back to it, but then you have two more and those two are, are Democrats, the next two are also Democrats, John Higgitt and Llinét Rosado. And I apologize for the pronunciation.

And if they had their druthers, what would happen is this whole thing would be sent back for a new trial and, but only on a subset of the charges because they found that some of them were barred by a statute of limitations. And weirdly, there was an earlier opinion in this case by the First Department, but by five different ju, just, justices that the people on this panel couldn't agree how to apply. And so two of them think that that statute of limitations intervened and, and so incidentally, they don't reach the, excessive fines issue because under their view of things, first of all, it should just go back and be retried.

And second if you eliminate the, the ones barred by the statute of limitations, the fine would've been only $78 million, I mean, the discouragement, and they don't give an opinion about whether that is excessive. That leaves us the fifth whose David Friedman. He's the Republican on the panel, the only one, and he would dismiss it entirely on every conceivable ground that Trump argued. He would say Attorney General James had no standing to bring this under the relevant statute, which is called the Executive Law 63(12).

They, he says it can't be used that way, but even if it could be used that way, there was no fraud as a matter of law, you have to dismiss it. So, that would ordinarily get us nowhere. You would probably have to re argue the case.

And so, two of the justices, the Higgitt Group, do something unusual. They join the first group for the decretal, and I apologize for that pronunciation, decretal section only, which I guess means they're, they, they join the Moulton’s group's judgment essentially. And the reason they do that, they explain in Footnote Two, “not withstanding our analysis that new trial is app, the appropriate resolution Justice Rosado and I, after much consideration with great reluctance and acknowledgement of the incongruity of the act, join the decretal, modifying the judgment to the extent of vacating the discouragement and sanctions under truly an extraordinary circumstances here where none of the writings enjoys a sport of the majority we are moved to take this action, to permit the panel to arrive at a decision and to permit the parties and the court to avoid the necessity of reargument and, to allow, basically to allow this to have a final judgment that can be appealed to the Court of Appeals.”

It's a remarkable solution. A remarkable situation has necessitated a remarkable solution.

Benjamin Wittes: So it's basically a, we're gonna sign onto this even though we don't think it's right because we're just a way station anyway and so, this lets the Court of Appeals.

Roger Parloff: Exactly

Benjamin Wittes: And the Court of Appeals in New York, for those who don't know, the weird nomenclature of New York state courts is the Supreme Court of New York. But we're gonna let the court of, we're just gonna sign onto this because that way the court of appeals can hear it and our opinion doesn't matter anyway.

Roger Parloff: Yes, that is it.

Benjamin Wittes: I mean, by the way, I think a lot of appeals courts should do that a lot of the time because it's so clearly right. You know, like, who cares what the eighth circuit thinks about this issue? There's already a conflict in the circuits. It's going to the Supreme Court, I don't care what you think about who bakes who, a cake

Roger Parloff: Yeah.

Benjamin Wittes: Don't spend six months writing an opinion on it. Just write a, you know, facilitating Supreme Court review here affirmed or,

Roger Parloff: Yeah and the other thing kicking around that the justices were concerned about is that, you know, sending it back for a new trial when the guy is president of the United States is not really a, a great idea, not really feasible. Waiting until the end of his term is not really a great idea, not really feasible. You know, we had an 11 week trial. We, we've got, we had about 50,000 pages of briefings and transcripts and, you know, let's, let's get an end to this.

Benjamin Wittes: Alright, so, just so that we're all on the same page here, the next stop here is the New York Court of Appeals, I assume Letitia James will appeal the vacation vacating of the discouragement. And do we have any way to game out how she is likely to do at the misnamed Supreme Court or not Supreme Court of New York?

Roger Parloff: I'm afraid. I don't, I've, I've been slogging through the 323 pages and haven't really done the research on the, scoping out the, the court of appeals.

Benjamin Wittes: Alright. I will just re, remind everybody that it was a judge of the Court of Appeals who famous New York Court of Appeals, who famously said that a grand jury would indict even a ham sandwich if a prosecutor asked. And I just wanna point out that Sol Wachtler, who said that was wrong, as we are learning that, you know, there are cheese sandwiches and vegetable sandwiches and roast beef sandwiches, all kinds of sandwiches that are not getting indicted in D.C. and L.A. because in fact, federal prosecutors are not observing their traditional standards.

And so, you know just remember it was only the ham sandwiches that got indicted. Anna, the floor is yours.

Anna Bower: Yeah, okay. So Ben, let's move to a subject that is a little bit more squarely in our national security issue area. This morning there was breaking news about a search by the FBI at the home of John Bolton.

Benjamin Wittes: Was there really?

Anna Bower: You, You were the one who broke the news. You were first on the scene, as I understand it. And I, I wanna talk a little bit about it. So tell us, you know, before we get to kind of the circumstances surrounding it the background here and, and trying to figure out what's going on. What did you observe this morning at John Bolton's house?

Benjamin Wittes: Well, so, first of all, I have to be careful about how I talk about it, but I was there, at around 7:00 AM when a rather large number of first Montgomery County police cars came and then FBI vehicles, which are, you know, black SUVs and other similarly unmarked vehicles the Montgomery County police officers made clear to me that they were there in a support capacity vis-a-vis the FBI, that this was in fact an FBI operation. And the FBI officials were agents were clearly executing a search warrant. And they were executing a search warrant against John Bolton's house and presumably against him himself.

And they were they were you know, it was hard for me to tell how many vehicles there were 'cause I was kind of pushed back, but it was a substantial presence. The, obviously the exact question that was that arose in the context of what, what, what precisely this was about I, you know, we don't have the text of the search warrant application or the warrant itself, so we don't really know. It does appear to flow from the, from the issue of the Bolton's book in 2020. Although JD Vance, who of course is the vice president, is always supposed to be deeply read in on grand jury investigations and so he said today that there were broader concerns about Bolton. So it's not entirely clear to me what, that we fully understand what this is about or how concerned we should be.

Anna Bower: Yeah. And let me stop you right there, because you mentioned concerns about Bolton's book. I mean, what, what are, what's the backstory there for people who might not remember? Because it seems like we've all lived a million news cycles since then. So what is the backstory? And then, you know, in addition to JD Vance, I, there's other Trump, close Trump allies, people who, you know, are often aware of kind of what's going on in the inner workings of the admin, administration. Particularly I'm thinking of Mike Davis who has also mentioned as well something to the effect of, you know, it goes, it might go beyond just the circumstances of the book. Do we know anything it sounds like maybe no, but what do we know beyond kind of what it could be about? So fill us in there.

Benjamin Wittes: Yeah. So, well, the issue with the book is simple, which is that in 2020, after serving 15 or 17 months as Trump's national security advisor, Bolton resigned slash was fired, depending on you know how you understand the decline of his relationship with Trump. And he proceeded to write a book that was deeply mocking or critical of Trump, and was all the things that you would expect John Bolt, somebody of John Bolton's political persuasion, which is to say hard neocon right to think of somebody like Donald Trump, which is to say you know, populist, isolationist with an anti-inter, a strong anti-interventionist streak.

And of course that resulted in a first a, a bit of a stalemate between Bolton and the pre-pub review people about whether this material could be published. And then there was some indication in an initial review that there was no classified material there, and then a supplemental review was ordered, and Bolton's book was held up further, at which point he jettisoned the pre-pub review process and went ahead and published it.

And so the question that that raised of is, is there classified material in the book? And Trump and his coterie has always claimed that there was, and the Biden administration never proceeded with this case. And so if, if you limit it to the book, it does really seem like they have reopened a existing, you know, a, a sort of dead matter in the, in the days waning days of a, of a, of the statute of limitations for purely vindictive reasons.

You can hypothesize, and JD Vance and Mike Davis did today, interesting question how either of them would know this. JD Vance, it's a little bit more. You know, it, it's, it's a little bit clearer, but this is presumably grand jury and national security information. I can't imagine a good reason for Mike Davis to have insight into what's going on in this case, but if you hypothesize that, you know, they are saying that there are some broader concerns about Bolton, I don't know what that would, those would be you know, but look, I mean, if the Justice Department and the FBI have reason to suspect John Bolton of something more serious than disclosure of classified information in his book, I am unaware of any allegations that would give rise to that.

But, but they did suggest that today, and I don't wanna, you know, my regard for the truth and veracity and accuracy of JD Vance is of course extreme and so I don't, I certainly don't wanna suggest that that may be just a defamation.

Anna Bower: Yeah. Okay. So one question that I have for you is, there's a, a few things about this that stood out as unusual.

One is that while the search was underway, the FBI director tweeted something that seemed to be an acknowledgement of the fact that the search was underway, which it, it typically, as I understand it, you almost never, while a search is ongoing,

Benjamin Wittes: So not as you understand it, that is an unthinkable thing.

Anna Bower: Yeah.

Benjamin Wittes: In any previous FBI director's tenure, you cannot imagine Bob Mueller or Louis Freeh, or Chris Wray, you know, tweeting something like that. In any search warrant ever. And you know, I I, I'll make Roger burst out laughing just by saying, you know, you also can't imagine the recently deceased Bill Webster, you know, tweeting at 101 years old, you know, you know, we got the motherfuckers or something like that, right. Like, it, it, it's not, you know, that stuff doesn't happen in a, in a correctly functioning bureau. And

Anna Bower: Yeah. And it's also that the guy who tweets this, the FBI director, wrote a book in which the guy who's the target of the investigation or subject of the investigation is a guy who's on the FBI director's enemies list, right?

Benjamin Wittes: Correct.

Anna Bower: So–

Benjamin Wittes: No, it, I mean, it, it, it's disgraceful conduct by Kash Patel, and I don't care if it is elliptically worded you know, and, and could be. It was clearly a reference to this. And by the way, at the same time as he tweeted that the New York Post published exclusively, whatever that means, that the FBI was conducting this raid now as somebody who was also, you know, reporting on it at the same time, I don't wanna criticize the New York Post for, for reporting the information that they got, I, I do think that the, you know, the FBI brass and has, you know, they need to be really careful about disclosing operations like that while they're happening.

I mean, that's a way to, it, it in, I mean, it's very, very unfair to, to subjects of the investigation. It potentially, you do that in the wrong situation, it puts agents at risk. And yeah, it makes for good photos. But the FBI, you know, that is not something the FBI should be doing, which is not to criticize the New York Post for, you know, publishing information.

They get, that's their job, their reporters. But that had all the hallmarks of, you know, the FBI leadership de, decided to thump their chests by at John Bolton's expense. And I don't look, I don't know what John Bolton may or may not have done, and I don't wanna get in his corner, you know, necessarily, but I, I, that is not the way the FBI should be behaving.

Anna Bower: Right. And then beyond that, you've got, as you already mentioned, that the vice president who typically would not be read in on particular criminal investigate, investigative details, you know, is publicly talking about it in an interview, although maybe being a little bit more cautious than he was last week when he, you know, promised indictments related to the Russiagate investigation, that kind of thing.

But is there anything else beyond those types of things that we know about this investigation that is procedurally irregular or norm breaking?

Benjamin Wittes: Well, so I, I will say there are circumstances in which it's appropriate for the vice president to be briefed on a national security investigation. And I don't wanna say that that's categorically inappropriate. It is very likely inappropriate. The circumstances in which it's not inappropriate are, limited, and we can go into them if you want, but I, you know, generally speaking when a former official like this, and John Bolton has not been an official in the U.S. government since like 2019 or something, right? So this is a long time ago.

There's no particular reason why the vice president should be read in on this unless there's some reason to do it, some and for him to be commenting on it. Remember, this is, there's no indictment there, no charges against Bolton. There's no, you know, the search warrant isn't even public, so for him to be commenting on it is wildly inappropriate and may very well be prejudicial to any case that the government ends up bringing.

And so, you know, are there other things that are procedurally weird about it? Look, I don't know because we don't, we know so little about what it is right now. We don't know, you know, other than having a sense that it's related to the book, although it may be broader as JD Vance says, than the book, I'm not sure we know like what is John Bolton suspected of doing? My, I, I personally bring a presumption of irregularity to these investigations. And it seems to me that if, you know, I don't, I've met John Bolton. I don't know him well, by any means. We're not friends.

We're not, but you know, if you ask me who would you trust, John Bolton or Kash Patel? Neither of them rates especially high in my trust demeanor, but John Bolton is higher than Kash Patel and significantly higher. And by the way, in the Intelligence department than Dan Bongino. So, I, I, you know, I don't, I don't know how to answer that question. I will wait and see. But I don't start with the assumption usually, you know, I start with the assumption that when the government finally puts its cards on the table, it's got a hell of a hand. And I don't start with that assumption here, and I would not be surprised at all to see the government have a very weak case.

Anna Bower: All right, well we will leave it there for now. We will keep our eyes open for any more information about the search warrant. And unless you have anything else to add, Ben, I'm gonna hand it back over to you.

Benjamin Wittes: Alright, well, let's, I'm gonna turn the tables and ask you, Anna to talk about NIH v. APHA which is a Supreme Court ruling related to the Tucker Act. I think of Roger as our Tucker Act guy, but tell us what's going on here.

Anna Bower: Yeah. And Roger, feel free to chime in. This is a case, this is a litigation I have not been following particularly closely, but I did read the Supreme Court's decision yesterday. This is a case over the termination of NIH grants related to a guidance that was issued in which essentially grants that are related to so-called DEI or gender identity or COVID-19 were to be terminated. And then, you know, subsequently these midstream grants were terminated.

There was litigation brought over it seeking to have the terminate, grant terminations vacated, and also to have the guidance vacated as well. The district court subsequently did both: vacated the guidance and vacated the grant terminations. The appeals court declined to stay that order, and then the government went to the Supreme Court asking for a stay and then we got as a response on the emergency docket, this very fractured decision from the Supreme Court in which they grant a stay as to the terminations of the grants or the vacate of the term grant terminations.

And then deny the stay, I believe, as to the guidance. It, and, and so you have a number of different opinions. You know, it, four, the justices would've given the government everything that they wanted, four excuse me. Five did a, with Amy Coney Barrett, you know, kind of split the, were willing to split the baby, although the other four in that group including John Roberts would've denied the application for a stay. The end result here is very weird and, and quite consequential for a lot of this litigation around grant terminations. Effectively what the court ends up saying is that you can go to the district court and, and challenge the guidance under the Administrative Procedures Act and, and that's fine.

But if you want to challenge the termination of the grants, you've gotta go to the Court of Federal claims, so essentially you have to do this weird kind of sequencing of the litigation where, you know, you challenge the guidance and have it declared unlawful before you can then try to go and get the, fix your solution or get a remedy in terms of the, the grant termination being terminated as a result of the unlawful guidance.

So it's a, it's a very weird and seemingly kind of unworkable situation. And, and there's a lot in here to, that we could dive into. There's, at one point a concurring opinion from Kavanaugh and Gorsuch in which they, you know, claim that the district court was, you know, defying a previous Supreme Court order that was related to its decision on the emergency docket in the California case related to Department of Education grants.

They're incredibly harsh in the language that they're using and talking about the district court the lang, it's, and it's really remarkable considering that, you know we've had examples of the administration seemingly defying court orders, and the Supreme Court has never had as harsh of language as Kavanaugh and Gorsuch do in this, you know, concurring opinion in which they're accusing the district court of kind of defying an order of the Supreme Court.

So I, I think that that was really remarkable. And then finally, you have a dissent from. Justice Jackson, in which she just flat out says, you know, the, the majority what they've, what they're doing here is Calvin Ball. And the first rule is that, you know, there are no rules. And then the, the second rule is that the administration gets whatever it wants.

So it's, it's a really fractured decision that is remarkable in a lot of ways, but one of the major consequences of it is that for other litigation that is still ongoing related to grant terminations that don't just have to do with the NIH it seems like what the court is saying here is basically you have to kind of do this weird sequential type of litigation where you can bring part of it in under the APA in district court, and then you have to do the rest of it in the court of federal claims. It seems really unworkable practice.

Benjamin Wittes: Roger has been warning about this since like the first Lawfare Live.

Anna Bower: Yeah. Roger, what'd you make of it?

Benjamin Wittes: Wait, you're muted, Roger.

Anna Bower: Oh, you're muted.

Roger Parloff: Sorry. Yeah, it, it seems like a, a catastrophe just to and, and there are like two dozen cases that are going to be impacted by this at least. And just to highlight it you know, the outcome now is one that only Justice Barrett favored that neither party proposed.

That is just I, I think the two, two factions agree that these are inseparable issues. And it's also, as you mentioned by law, you're not supposed to have jurisdiction in the Court of Federal Appeals if you have a case pending, if the case is already pending elsewhere. So how would this work?

And you know, we've got $800 million in, in worth of grants, I think about 1800 grants involved, they're, they're, they're, you know, the, the majority cartoonishly ca, caricatures them have as ha you know, having something to do with DEI or, but they are medical research, some of which involves, you know, yes, a lot of medical research.

There are medical problems that are unique to women that are unique to certain racial groups and, it's just it's just crazy. And it's yeah, it's a, it, it's, it's a, it's a, and it, it, it probably means, it seems to mean that they are effectively overruling Massachusetts v. Bowen, which is the case, goes back to 1988 that allows you to bring an APA case that a, a against a decision that happens to cause you know, a, a, a, a wrongful cutoff of funding.

And they won't say that. And, and yes, the, and, and, and Kavanaugh and, and Gorsuch they, they list they, they really go off on the, you know, you know that you've heard the law professors, the right, the conservative law professor say, oh, it's not a problem where the DOJ is, is disregarding court orders, it's a problem with district judges disregarding the Supreme Court and they go off on that line of argument. And, and so they say, see, this is the latest example there was the Boyle case, there was the D.V.D. case, but of course, these, you know, interim decisions are pretty confusing.

There's no, there's, you know, they're a paragraph long, did you mean, you know, I, I, I'm guessing what you, you probably mean this but I don't know. And well, you haven't overruled the controlling case. Aren't I bound by the controlling case? Where you, you, you, you, you decided this with briefs, remember briefs, remember oral argu, I mean these, these have briefs, but you had more than nine days of briefs, so, you know, you had more than you had an oral argument. So yeah, it's a, it's a catastrophe.

Benjamin Wittes: Alright so, we are going to move to the immigration space, which has some non-catastrophes to deliver us this week. And I wanna start with that of Kilmar Abrego Garcia, who is today free, despite the administration's, or at least out on bail, despite the administration's promise that he would never be free in the United States again.

Stephen Miller last I checked was wallowing in grief at the White House. And Anna get us started on this. How did Kilmar Abrego Garcia go from being you know CECOT to under indictment and accused of murdering people for entry into gangs, to walking the streets in Tennessee.

Anna Bower: Well, I don't know that he is walking the streets, but he is, according to his counsel on his way back to Maryland–

Benjamin Wittes: I thought they let him loose in Tennessee and he was already–

Anna Bower: No, well, they did well–

Benjamin Wittes: They let him wild and, and you know, running through the streets and you know, shouting things.

Anna Bower: I just can't speak to whether he is running through any streets, but I, I, a statement released by his counsel says that he is on his way back to Maryland. Much of this, as we've talked before, has to do with a combination of a release order that, you know, he previously had been ordered, released, that was from criminal detention, that was stayed at through a voluntary agreement of the parties for a number of reasons, including that there, you know, it was ongoing litigation in Maryland in the civil case that Abrego Garcia initially brought when he was taken to CECOT.

And that is the case before Judge Xinis. And in that case, while all of this was ongoing in the criminal case, Judge Xinis also issued an order in which she said effectively that Abrego Garcia needed to be put back to where he was at the beginning of all this, which was on supervised release under immigration supervision as a free, essentially as a free man in Maryland. So that order issued. The, the judge, the district court judge also found that Abrego should be released from criminal cus, custody. All of this was on pause until this week when Abrego's counsel asked to dissolve, dissolved the stay on the release order, and that the release order be issued by the magistrate judge that was to expire today.

Strangely and interestingly, the government did not actually oppose the issuance of the release order or, and the dissolution of the, of the stay. They, they, and they wrote this kind of interesting filing in which they, you know, say, even though we don't oppose it, you know, we we're still gonna write separately kind of maintaining our position that, you know, we don't think that he should be released, that kind of thing.

But then also at the very end. It, there's, there's something in which they're discussion discussing the conditions of release that he'll be under when he's released. And at the end they're talking about allowing him the ability to have access to counsel following his release. And they mention something at the very last line saying, you know, however, if he is removed to a third country, we can't guarantee that we can facilitate access to council.

Benjamin Wittes: You know, right. We're not, we're not setting up a, you know, a a a Skadden Arps or Arnold and Porter Law Office in South Sudan.

Anna Bower: Yeah. And so that again, kind of seems to allude to the idea that the government, as they've said before, is still considering removing him to a third country before he is tried on his criminal charges that he and

Benjamin Wittes: And what prevents them from picking him up and putting him in immigration detention, and then deporting him now.

Anna Bower: That's, that's exactly what I was about to get to. And that goes back to the Judge Xinis order, which the government has not yet appealed by the way. But it, it because of that order essentially, once he's free from criminal detention, he then has to be taken, he, well, his counsel said that they hired a security firm to transport him back to Maryland, and then he has to be, you know exactly where he was before, which is on, under supervision as someone who's not in immigration custody in Maryland, and they can reinitiate his immigration proceedings, but they still have to go through, you know, all of the kind of normal process things that they would, and Judge Xinis’ order also means that if he's going to be removed to a third country, then they have to give his counsel at least 72 hours’ notice so that he can then bring any kind of, you know, issues to the court as, as they see necessary.

So right now it's kind of like he at least gets to go back to Maryland, but whether or not he stays on release is kind of in question because it has to do with, you know, will they reopen his immigration proceedings and that kind of thing, and what will happen then? Is that right, Roger? I mean, is that how you understand it?

Roger Parloff: Yeah, yeah, it is. And I was surprised to see it actually happen. I had assumed all along they would appeal Judge Xin, Xinis’ order and they haven't yet. And I'm yeah, so, I, I, I don't know exactly I, I thought she said they, that ICE cannot take him into custody immediately, but I don't get, you know, if they do initiate and give him the 72 hours’ notice, I don't know how long she can keep him out of custody, so.

Anna Bower: Right, exactly. And I think that's what, I think that's one of the issues, right? Is that they could it's, it's a question of he is on release now. How long will he remain free? We, we don't know

Benjamin Wittes: You know, you don't want to encourage anyone to jump bail, but boy, if there were ever an incentive structure that, that created an incentive to not honor the terms of your pretrial release, this is it, folks.

Anna Bower: Yeah. And Ben, before, before we go to questions too, I will just add as well, another happening in that case is that we had a selective and vindictive prosecution motion to dismiss from Abrego Garcia's counsel. That happened before he was released today. I will note that it, it seems like the one they're leading with the most seems to be the vindictive prosecution claim.

The idea on a vindictive prosecution claim, of course, is that you, you have to essentially show that the prosecutor is acting in order to punish the defendant for exercising a legal right. It's a really difficult motion to dismiss to win. It almost never works. I do think though, as James said about the McIver motion, I think here if there is ever a vindictive prosecution claim that might work it may very well be this one, there's so many.

Benjamin Wittes: I mean, this one has some unusual features, and I haven't read the motion, but remember that this is a guy that the government conceded upfront until they fired the, the lawyer who made the concession that he was arrested by mistake and deported by mistake. And then they opened an investigation only at the point at which they were, had a court order to repatriate him or to endeavor to repatriate him and so they were looking for a way to repatriate him that was not embarrassing. And I don't know what selective or vindictive prosecution could mean if it doesn't mean like we didn't even open an investigation of you except that it was you. And we wanted to, we were ordered to bring you back and we wanted to do it in the least embarrassing fashion.

I, I don't know if that's like vindictive, but that's sure selective. And so I, I just think we're gonna learn a little bit about whether the cases that, you know, that involve that in which a selective or vindictive prosecution claim can exist, can, can carry the day, are a null set beyond the, I'm gonna indict you because you are a Jew, or because you're Black, right? Like, like, okay, that's gonna succeed. But beyond that if there's any case that should succeed, it's this one.

Anna Bower: Yeah and at the, at the very least, you, again, it's also very hard to get discovery on selective or vindictive prosecution claim, but again, like the McIver motion we were talking about, they asked at the very least for, you know, some kind of discovery proceedings.

And if that happens, I, I mean, I'm gonna guess, I don't know, but I'm gonna guess that there's probably more to be learned about, about this that, that may very well shore up even more than just the public statements they already have in the public evidence that, that may very well add even more strength to the idea that this is a vindictive prosecution.

I quickly I'll say selective prosecution is a little bit different. In that, you know, it, there it's more about, were other people who were similarly, similarly situated, would they be prosecuted or can you show that they were prosecuted? I think they have a little bit of more of a challenge there.

One of the things they're raising is the question of the delay and the time period. So the, they analyze like all of the cases under this charge. And the thing they, that they're kind of, you know, arguing is that, well, usually people are charged within like a month. And here it was like, you know, over two years in which there was this delay.

Benjamin Wittes: I, I mean, I just think there has to be something here. Look, look, it, it would be a very weird thing for a federal court to say, given the fact pattern here, no, there's nothing amiss here it's, it's perfectly reasonable for the government to arrest you by mistake, deport you to a dungeon by mistake, and then open a criminal investigation of you so that it can repatriate you pursuant to a court order without having to set you free.

I mean, I don't know what–

Anna Bower: Right, I agree I just clarifying that there, there's two discreet legal tests–

Benjamin Wittes: Understood. Yes, there, there's something like maybe you need a new doctrine that you, we could call the Abrego Garcia doctrine. Sort of like we have Brady and you know, you know, but there's gotta be some rule that says, okay, you can't do that. And

Roger Parloff: I think they're likening it, it to like where you appeal a ca, case and you win and it's sent back down, and then they charge you with a, with a, a more severe crime. And here you have something where, you know, he was arrested in November, what he was stopped for, for this traffic stop in Tennessee in November 2022 and they didn't give him a ticket, you know, they notified the federal authorities, they didn't give him a ticket.

And then, you know, three years later he's embarrassing them. You know, he's, people are pointing out that they sent him mistakenly to a place where he's getting tortured and he, he's, and he doesn't seem to have any convictions of any crimes. And, and then–

Benjamin Wittes: Which is really inconvenient.

Roger Parloff: Yeah. And, and then they, they bring the, the, they come down with the indictment. So I guess that's the, that's the line of argument. And, and I think the and, and, and Anna's right, the, the other one is harder, the selective because there are people that did what he did that are in jail, so.  

Benjamin Wittes: alright, we have two audience questions this week we're gonna do 'em both. They're both quick questions actually. Joyce asks, where is the appeals court decision on the tariffs case? How much longer will we have to wait? I think I can answer on behalf of all three of us. We don't know and we don't know. That's the nature of court decisions, you never know when they're coming.

Andrew asks, would the Bolton prosecution normally be handled by a special counsel? Answer: no. He says because of the apparent ethical issues, he is a notorious public enemy of the president. Or is that norm Totally out the window now, and Pam Bondi will run this.

So the answer, Andrew, is that the premise of your question is wrong. Being an enemy of the president is generally not a grounds, at least under the special counsel rules for, a special counsel being running against the president is a political opponent. But generally speaking, the fact that the president may hate you is an argument for having an attorney general with you know, sort of dignity and credibility.

But you generally. For example, you didn't need a special counsel to prosecute, oh, say Steve Bannon, who presumably President Biden loathed certainly should or Peter Navarro, right. Generally speaking, having, being a political opponent is not an adequate basis. Usually the, the adequate basis are close family members, like, you know, Hunter Biden being the target subject yourself, like the Russia investigation or pol, being a political opponent, the opposing candidate a-la Trump himself in both the Mar-a-Lago and January 6th investigations, it was a bit different under the old Independence Counsel statute, but that has been defunct for more than 20 years now. And that had a different set of rules.

But merely being somebody who the president hates is actually not a grounds traditionally for the appointment of a special prosecutor, a special counsel. And so I don't have a problem with Pam Bondi handling this herself, except that I have no confidence in her integrity whatsoever. That's a problem with her handling any case, particularly one that.

Involves a presidential interest, but that's a much more pervasive problem than this. Hey folks, we're ending more or less on time today. Thanks to Roger, thanks to Anna, thanks to James Pearce from his car, and thanks to all of you for joining us. Join us next week. We're gonna be back folks.

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