Lawfare Daily: The Trials of the Trump Administration, Feb. 14

[Intro]

Roger Parloff: And it's ongoing, and it's not just Bove. It's Pam Bondi. Because Sassoon wrote her letter to Pam Bondi saying, do you know what happened? You know, can we get a meeting? Here's what happened. She laid it out, eight pages, single spaced. And Pam Bondi said, nope, let's do what Trump wants.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittes, editor-in-chief of Lawfare, with Lawfare's senior editors, Anna Bower, Scott R. Anderson, Roger Parloff, and managing editor Tyler McBrien.

Scott Anderson: The thing that's helping the plaintiffs on the other picture, ironically, it's Elon Musk and Donald Trump. Because what do they keep doing? Making very public statements saying, this is about destroying USAID.

We've heard those toned down this week, and I don't think that's a coincidence. I think it's because lawyers have gone back to them and said, hey, this is probably going to hurt the case for doing this. Those statements are already out there, particularly in regard to USAID and certain other agencies on the table here.

Benjamin Wittes: In a live recording on February 14, we discussed the civil litigation against executive actions by the Trump administration. We talked about the massacre of Justice Department employees that took place the previous day. We talked about the federal funding freeze, access to the Treasury Department's computer systems by associates of Elon Musk, and of course, we talked about the fork in the road.

[Main Podcast]

We're going to start actually with something that is not litigation, that is dropping of litigation. And that is the Thursday afternoon massacre at the Justice Department perpetrated by Emil Bove, the acting deputy attorney general. Scott get us started on this. What happened and what do we know?

Scott Anderson: Well, we all know earlier this week a letter was leaked from Emil Bove, the acting deputy attorney general directed to the acting U.S. Attorney for the Southern District of New York Danielle Sassoon directing her to dismiss the criminal case against New York Mayor Eric Adams. Adams, of course, had been indicted for a variety of charges related to bribery, wire fraud, conspiracy, a few other things, mostly relating to different interactions with foreign government and government officials and inappropriate relationships, favors, campaign contribution, things along those lines.

But the letter essentially directed the acting U.S. Attorney Danielle Sassoon, to dismiss the charges on the grounds that a the case had been somehow inappropriately compromised by a prior outgoing Biden-appointed U.S. attorney due to some public statements that individual made and then also based on the assessment that Adams would be better situated as mayor if he were allowed to focus on fighting immigration, enforcing immigration laws and fighting high crime both of which the letter blamed on the outgoing Biden administration.

And essentially did not contest the conclusions, the legal conclusions reached by the Southern District of New York regarding the fact that Adams had broken the law and met the standard for indictment and prosecution, but nonetheless directed dismissal to it so that Adams could better advance that policy goal and on the logic that the case had come up and compromised.

This was the case going into yesterday and we were all waiting for a few days with bated breath to see what was going to happen. And then we got I think it's fair to call it a bombshell. The acting U.S. Attorney Danielle Sassoon chose to resign, actually initially wrote a response letter to the attorney general laying out in multiple pages why she thought the request was inappropriate.

Most notably making some allegations against Bove that he had met with Adams attorneys at one point where Adams put, attorneys proposed an express quid pro quo of immigration enforcement for a dismissal of criminal charges. And that Bove had actually directed one of her the members of her office that had been taking notes to not take notes and confiscated the notes he had taken about the exchange, which she found suspect, to say the least.

She essentially declined and said she did not think she could consistent with her legal obligations and duties and the nature of the law, participate in dismissing the case and offered a resignation to the attorney general and asked to meet with the attorney general. I don't believe, there's no reporting any such meeting took place.

Instead Bove wrote another response which leaked actually slightly before Sassoon's letter saying your resignation is accepted. He also then essentially laid out a fairly weak defense of his case and why he reinforced the original basis of his letter for dismissing the case that I, at least for one, found really remarkably unpersuasive.

He then also said I'm, I'm going to take this case away from the assistant United States attorneys that have been working on it and give it to the public integrity section here in main Justice instead, so that they can file a dismissal. Oh, and then the assistant U. S. attorneys were going to be put under investigation by the Office of Professional Responsibility by the attorney general's office for purported weaponization, acting in a disloyal manner, refusing to enforce the law and pursue actions at the direction of the president and the attorney general.

This led set out kind of two tracks that have proceeded in parallel fashion last few days. First, we've seen a number of resignations come almost immediately out of the public integrity section. Where a number of senior attorneys and then line attorneys resigned, resigned, resigned after repeatedly declining to file the dismissal as directed by Bove.

We don't know exactly how this got resolved. There's a rumor that they were essentially put in a room and told one of you is going to dismiss this or you're all going to be fired. It does, as of reporting this afternoon, appear that somebody volunteered to file the dismissal. I have not checked the docket in the last half hour, 45 minutes, so I'm not sure who that was. I may have missed it, but presumably we are reportedly going to see the dismissal.

At the same time, at least one of the AUSAs that have been on the case, lead attorney Hagan Scotten chose to resign as well. And I think released a fairly scathing letter addressed both to Bove and frankly to people standing in and, and accepting and participating in this effort, dismissal, calling it inappropriate, and a violation of the role that prosecutors are supposed to play in our criminal system, advancing a political and policy agenda in this way.

A really dramatic set of events to say the least. The sort of thing that, goes down as you think of the Saturday massacre. This is a similar sort of event in scale. Who knows if it's gonna have the same ramifications.

Benjamin Wittes: Do we know how many resignations there were either at main Justice or at the U.S. Attorney's office?

Scott Anderson: I have seen six lists of the number. I believe that was prior to Scotten’s resignations. So we may be up to seven, but I’m not sure. Did that include Scotten, Rager, Roger?

Roger Parloff: I thought it did, yeah.

Scott Anderson: It might, it might then. Maybe I’m, maybe I’m, I haven't caught the sequencing of the-

Roger Parloff: Oh, actually, no, yeah, you're right because he's he's a part of the team. I don't think he's one of the high-level DOJ people. He was, I think, part of the team. So you're right. I don't know if that's a firing or a, he's a separate, he's gone separately.

Benjamin Wittes: No, he resigned. And I'm not sure if there are other members of the trial team who also resigned. They were essentially put on administrative leave and. So, Scott, I just finished writing a column that is probably being edited and posted now, and I think you should ask me about it.

Scott Anderson: Well, Ben tell us about your column and your sense of this. Obviously, you've watched the Justice Department for a long time, longer than a lot of us and have a good sense of how the organization operates.

Tell us why this has proven to be such an electric direction, electric action by both the attorney general and the acting deputy attorney general, why it's triggered such a remarkable response.

Benjamin Wittes: Right. So the key thing here is to connect this with the destruction of the norms that we've all gotten so used to talking about and talking about, you know, how important they are. These norms of political noninterference, right?

The first thing that happened here was that the Justice Department fired the special counsel's office people, not because they'd done anything wrong, not because they were bad lawyers, but because they were politically unreliable because they participated in prosecuting Trump.

The second thing that happened was that they fired a whole bunch of J6 prosecutors who had, you know, who they regarded as politically unreliable. And the third thing, of course, is removing FBI agents and threatening to fire a whole lot of others.

And so when you do that, you've dismantled this idea which exists entirely in norm, which is that the White House shouldn't be interfering in the prosecutorial and investigative decisions of the Justice Department, that there's a certain amount of independence there.

And the problem is that that norm is the only thing that makes ethical federal prosecution possible. Because without it, there's nothing, you know, a federal prosecutor who said, I'm going to hold, I'm going to dismiss this case against a politician with prej-, without prejudice so that I can get his political cooperation on a completely different matter, which is what Emil Bove is accused of here. That is an outrageously unethical thing to do.

And, and as Hagan Scotten wrote in his letter that the idea that any, no AUSA would do that, right? But now we have a system because we've dismantled these norms in which the president can reach down literally to the AUSA level and say hey, the guy you're prosecuting is somebody who I want to do me a political favor so please drop the case against him.

And so this is a perfectly normal political horse trading thing to do. And it's completely unethical for a federal prosecutor to be involved in it. And so it took exactly three weeks for the destruction of these norms to put prosecutors in such an unethical position that they couldn't continue in federal employment.

And, you know, I think we have to ask the question, if you tear down this system, which is the only thing that makes it ethical to be a federal prosecutor, at least in politically sensitive matters. What, how do you ask people to serve as federal prosecutors? And that's what this story is about.

And it's about the fact that the answer to that question is you can't. Because there is no space for ethical service, at least if the president cares about your case. And that's why this is such a big deal. Roger, your thoughts, what am I getting wrong?

Roger Parloff: Exactly, and just one addition, I would, I'd go back to that quid pro quo concept that Scott mentioned. I mean, the whole thing was structured as a quid pro quo. Bove likened it to a prisoner exchange with a foreign country.

Benjamin Wittes: Right.

Roger Parloff: It was coercive. The way it was structured was the southern district would recommend to be dismissed without prejudice. He conceded, we, we, we don't think, there's nothing dishonorable about how the prosecutors acted. We, we're not doing this for lack of evidence. What we plan to do, allegedly, is after the election, we're going to have the new U.S. attorney re-examine the facts and then decide.

And so what it does is it puts this elected official in New York at the mercy of the federal DOJ, which we know, I mean, that if he doesn't do what they want with respect to immigration, they can still lower the boom and bring this indictment again. So it's extraordinary. It's not, it's not a crime quid pro quo, but it is unethical and coercive. And it's, it's it has nothing to do with what the, the criminal justice system is supposed to be used for.

Benjamin Wittes: Yeah. And, and the critical thing here is that this is exactly the sort of thing that politicians do all the time. So when politicians make deals, we don't even use a negative term for it. Like quid pro quo, we call it horse trading, right? And it is precisely, we expect politicians to do it. I'll vote for your thing if you vote for my thing. That's, you know, we say, oh, you know, Tip O'Neill was really a master at counting to 218, right?

These are not vices and politicians, and it's wildly unethical in prosecutors. And that's why you have this tradition of separating the politics function from the prosecutorial function. You destroy that and you put prosecutors immediately-I mean, it doesn't even take a lot, it took three weeks-in a position where they are being asked to conduct essentially a sort of extortion against a politician for unrelated political benefits to the administration.

Now, query whether Emil Bove will face a bit of a reckoning for this, assuming that Danielle Sassoon is telling the truth about what he did. But the, the more important point, I think, is that the moment you relax these rules, I don't care if the rules don't exist in the Constitution, if they're a normative matter, the moment you relax them, it becomes very hard to be an ethical federal prosecutor. And that's what we're seeing in this episode.

Do either of you have additional thoughts on this subject before we move on to litigation?

Scott Anderson: Just two small consequences from this that are worth bearing in mind. First, on the political side, it's worth flagging, both of the folks who had the most public resignations about this, that's, that's Danielle Sassoon and Hagan Scott, who both of them I should disclose, I knew when we were students, you know, a decade and a half ago in passing.

The, they both, it's worth noting, have profiles where it's going to be hard for folks who are critical of this to dismiss them as somehow partisan or hostile to the Trump administration. Sassoon is a lifetime Federal Society member, known to be politically conservative. There's a New York Times profile giving a lot of details on this, Scalia clerk, Wilkinson clerk. Somebody who cites both of them as in arguing why exactly she couldn't go about doing this. So it's gonna be hard to argue that she is somehow you know, a lapdog of the Biden administration or people opposed to Trump.

And Scotten went to length of noting in his letter, I'm not doing this cause I'm opposed to the administration. I don't have an inherently critical view of the administration. He says that quite clearly. I am doing this this cause it's inappropriate and I think the president's getting bad legal advice.

Benjamin Wittes: Can I just add something on that point?

Scott Anderson: Yeah, please.

Benjamin Wittes: Yeah. This is not a left right issue. This is an ethical unethical conduct issue. And Scott's point here is extremely important. It doesn't matter if you're a Scalia clerk or Brennan or Douglas clerk. This is the request here is for flatly at odds with the ethics of federal prosecutors.

And all you have to do to see that is to crack the Justice manual or the sort of ethical rules that govern federal prosecutors. You're not allowed to do this sort of thing.

Scott Anderson: And the other consequence I flag out of this is that the motion for dismissal has to be accepted by the judge under Rule 48 of the Criminals, of Criminal Procedure, and it does complicate this. I mean, the letter that Sassoon writes basically is a letter about why this does not meet the standards for dismissal for a judge could accept under Rule 48 and says essentially this is improper. And very, I can't remember if she says it expressly, but strongly suggests that this is going to be rejected by the court.

That might well happen, The judge is Dale Ho, a former senior ACLU attorney. Like a very well experienced, well regarded judge, but somebody who's certainly sensitive to these sorts of issues. And I, I think that's a possibility here that certainly at least he's going to drag out this process, ask a lot of questions about it. You know, it's going to make this a lot harder to accomplish.

Now, what happens in the end? I don't know. I'm not a New York criminal law attorney. I've seen some people talk about, well, the handful of other cases where something remotely like this has happened, and there aren't many, basically, the prosecutors have waited out the clock and just refused to prosecute. And then what do you do?

So the remedies are a big question here, but it might not amount to an easy dismissal at this point. And that's going to be something that's going to drag the story out and could put a lot more egg on the face of Bove and others in the Trump administration Justice Department.

Roger Parloff: I agree with Scott. I don't think the judge is going to approve the dismissal. That doesn't mean it will go forward, it will not go forward. But it will be a black eye, it will be an embarrassment, and it's ongoing.

And it's not just Bove. It's Pam Bondi. Because Sassoon wrote her letter to Pam Bondi saying, do you know what happened? You know, can we get a meeting? Here's what happened. She laid it out, eight pages, single spaced, and Pam Bondi said, nope, let's do what Trump wants. And so that tells us something about who we're dealing with.

Benjamin Wittes: All right, let's talk litigation, which was the original purpose of this conversation.

Scott, get us started on the matter in which I am going to sort of recuse myself, which is the matter of the foreign aid litigation. Which for those who don't know, I have family members who are directly involved, not in the litigation, but in the issue, and so I'm staying out of this one myself. Scott, what is the state of the litigation involving USAID?

Scott Anderson: Absolutely. It's been a very eventful week, to say the very least. At the end of last week, it looked like we were on the verge of USAID being de facto, if not necessarily du jour, shut down. We knew the Secretary of State Mark Rubio had been made the acting administrator earlier in the week.

We heard rumors that nine tenths, eight tenths, somewhere between everyone but between 300 and 600 of the staff members of USAID out of 10,000 original staffers before January 20th were going to be put on administrative leave.

That measure was temporarily stayed on Friday by a TRO issued by Judge Nichols in a lawsuit advanced by a number of labor groups representing employees of USAID and other entities. Basically saying we're going to put a hold on personnel actions at least and particularly the transfer of people from overseas, something Judge Nichols was particularly worried about, for a week, while we have hearings on this about a preliminary injunction.

We heard some additional hearings. Earlier this week where Judge Nichols, I think it's fair to say, and Roger, you were in this hearing, so I want to turn it over to you to elaborate a little bit on this where it's fair to say, I think he was a little skeptical. But nonetheless, we heard him we had him extend his TRO essentially by a week after making a request for some additional information. So now we are waiting to see essentially what action comes out of Judge Nichols in the next week that he's bought himself to work out how he's going to approach the request for a preliminary injunction in this case.

Roger, talk to us about that hearing. Tell us what you heard and fill in a little of the details here that I'm skipping over.

Roger Parloff: Yeah. The one in front of Judge Nichols does involve just employees, not recipients of funding. And so he was very skeptical, even though he ended up extending the TRO. This was a preliminary injunction hearing. He had already issued a TRO.

So he extended the TRO up until February 21st while he writes an opinion.  But he was very skeptical because both you have to prove irreparable harm to get one of these injunctions before trial, either a TRO or a preliminary injunction. It's the same thing.

A related question is whether he really had jurisdiction to give the relief because all of these government employees, usually if they have a dispute with their employer, they, they have to go through a administrative procedure. And it's a different administrative mechanism depending on you know, exactly where you are in the federal structure.

But there's a civil servants service grievance board, there’s a MP, you know, there's all these different initials I forget the different mechanisms. But he thought look even though there's, we're now talking about 2,000 employees at least that have been put on administrative leave, and that he forced back to their jobs, and there's probably going to be immediately at least 4,000.

In theory, they could all go individually to this little mechanism and file their claim and get reimbursed for whatever travel expenses they lost and, and problems at home that, monetary damages that they suffered as a result of losing their job. It would take years.

It's not you know, it's obviously not at all what the plaintiffs are, are the real relief which is to save the whole agency and its whole mission. But he felt that the precedents don't give, it sounded like he was going to he was moving in the direction the government was arguing that that he has no choice. He needs to use these other mechanisms.

Scott Anderson: And I think this is actually gets to at tension that we're going to see not just in the USAID cases, but a lot of these cases moving forward, the plaintiffs are trying to frame this as a really unprecedented action, a collective assault against an agency, right?

In this case, they are saying, and they make very clear, and other filings look, this isn't just a bunch of employment actions, although yes, that is the thing that most directly impacts the employees that we are representing as a kind of employee and labor organizations.

This is about trying to break down an agency. And by the way, there's an agency that Congress has mandated, that Congress has expressly said you have to consult with us before you take it apart in the most recent applicable appropriations bill. And that all of these measures amount to a much bigger thing than just a bunch of wrongful and unlawful personnel actions.

The government is going to come back and say, no, this is just a bunch of potentially unwrongful, they're not going to concede that, but they'll say, these are just a bunch of personnel actions. These need to go through the administrative process for personnel actions. And the question is whether the court sees this as a forest, or a bunch of trees on exactly how procedure is going to come in.

If they see it as an action that is very different of the type that those administrative procedures are designed to handle. And that is the test, the Thunder Basin test that we're going to hear come up in another case about the Fork in the Road memo that was more or less resolved, at least for the moment this week.

Then they're going to say, okay, probably in a lot of these sorts of claims, personnel action, potentially contract claims as well, other claims, they're going to have to go through these administrative procedures. And there may be remedies at the end, particularly in the form of damages. This is particularly easy in damages cases.

But people say it's just lost salary. It's just lost money. You can get that back at the end of those procedures, you know, with interest, if need be, and with a sort of things to make you whole. Certain judges, at least, are going to be inclined to do that because it lets them avoid the trickier constitutional and other questions of the bigger picture.

The thing that's helping the plaintiffs on the other picture, ironically, it's Elon Musk and Donald Trump. Because what do they keep doing? Making very public statements saying this is about destroying USAID.

We've heard those toned down this week, and I don't think that's a coincidence. I think it's because lawyers have gone back to them and say, hey, this is probably gonna hurt the case for doing this. Those statements are already out there, particularly in regard to USAID and certain other agencies on the table here.

How court judges choose to view this is gonna be really integral at this stage, particularly because most of the injunctions we're seeking here are about very concrete impacts on third parties. They don't get as directly at that bigger constitutional, that bigger policy question that really is at the root of all of this.

Later actions might, but you might need a different set of plaintiffs. It's going to have to be argued differently. Might see additional indictments, like if they actually do try and dismantle parts of USAID institutionally. So far, they've talked a big game about that, but it's mostly about rescinding leases, taking names off of buildings, and doing a lot of smaller steps without taking the bigger whole of saying, as a legal matter, USAID no longer exists.

And that's, that's going to be the rub. How far can they push to that line before a judge is willing to say, I know what you're doing. You're doing this much bigger thing. You can no longer hide it as a bunch of trees. This is a forest, and we need to address it that way.

Benjamin Wittes: All right. So, there's another USAID case that produced a different TRO on a different subject. Give us the skinny on that one.

Scott Anderson: So it's worth noting the first case before Judge Nichols again, it was really about primarily dealt with personnel actions. It did try and pull in both the broader question of the funding freeze. They essentially argued, look, our people, representing these USAID employees are hurt by these funding freezes reputationally because they have relationships with these other, with their clients, with implementing partners.

But Judge Nichols did not buy that. His TRO expressly said, I'm not going to, I'm going to deny a TRO on the funding freeze. I'm just going to do it for these personnel actions. And that had a lot to do with who the plaintiffs were. Again, these were USAID employees and, well, groups representing them in the Nichols case, AFSA v. Trump.

In these subsequent two cases, which are now being debated together, AIDS Vaccine Advocacy Coalition v. Trump and Global Health Coalition v. State. I think I may have the ‘C’ wrong in one of those, but one is not coalition but something to that effect. They both argue, these are actually representing organizations that are implementing partners of USAID.

These are the people who are supposed to be getting the money that has been frozen. So they are much better situated to directly attack the withholding of those funds and that's what they've done. And that's what they have now gotten this temporary restraining order for, in the next week until we get some sort of, at this point, kind of indefinitely, until we get some sort of scheduling. I don't think we actually have the schedule for this case, this case yet.

That's a big deal. The TRO now didn't go as far as the plaintiffs wanted. The plaintiffs asked for a complete suspension of all efforts to enforce the executive order, which would essentially mean the ability to go forward with a lot of other agreements and programming that was in place or set to go in place after January 20th.

Instead, the TRO basically said everything that was subject to an agreement was in place as of January 19^th, you State Department, USAID, you need to start abiding by those agreements sticking to those contracts. That seemed really to be what the judge was most focused on. Again, that's not the whole universe of cases in dispute.

We know something that's really brought up at the, in these proceedings, USAID and State have been very actively canceling these contracts and agreements at a rapid pace. The one day prior to the hearing on this matter on the 12th the USAID disclosed that they had removed some like 230 agreements and contracts and programs, that they had terminated just in the prior 24 to 36 hours, and that that was just USAID. It wasn't including programs that State Department managed directly.

So they're doing this really quickly, and those are going to be a point of dispute. The court didn't seem willing to enjoin that sort of active, action temporarily. They were really focused on, well, when you came into office, you had agreements to do these things and it sounds like you've been ignoring them and not abiding by your contractual obligations. And that's something we're going to enjoin right now.

There will still be arguments about the rest of this, particularly in regard to preliminary injunction and then potentially other remedies and damages later. Roger, you got to listen on this hearing. I heard, I listened to the first half of it. I think you were there for the whole thing. Tell us more about granularity about the argument. What else we heard in that hearing that I'm missing?

Roger Parloff: This is a, a new judge, good judge apparently it seemed, Amir Ali.

He gave the plaintiffs most of what they wanted. And they were actually, you know, originally they wanted to enjoin the whole executive order that Trump issued. And that's a bigger deal than trying to enjoin the agency action that implements the executive order and so he steered clear of that. It's a careful, sort of clever that way.

You know there are, these, we maybe we should just explain that in, in almost all of these the, the, the arguments are recurring. The main themes are recurring. The main constitutional argument for these, where, where an institution is being dismantled is usually that Congress established the institution and the executive can't dismantle it without Congress's approval. So that's the biggest issue and which the judges want to avoid because it's a big constitutional issue.

What most of these are being decided on is the, the Administrative Procedure Act. And, and that just says that an agency can't act in an arbitrary and capricious manner. And that's what he was saying here was that yeah, you know, you can do a review of all the funding. But how does it follow that in order to do that review, you need to stop all funding in a blanket way and create total chaos and, and catastrophic conditions overseas in a, you know, with humanitarian conditions and and so on. So this was arbitrary and capricious.

Another APA claim is called ultra vires, meaning you had no statutory authority to do this. And these are the recurring claims. And, and, and those are the ones he, those are sort of the safer claims that he relied on here.

Benjamin Wittes: All right, let's move on to the next agency, which is the CFPB. Roger what's going on in CFPB litigation?

Roger Parloff: You know, we've had, I think we've had four hearings today in different cases. You know, this is the sort of volume we're dealing with. So I believe Amy Berman Jackson had a hearing today at 2 p.m. I was on the road coming back from someplace.

So this one seeks a TRO against, you know, to stop the mass firings, the defunding, the across the board stop work orders. And it relies on the same arguments I just mentioned, separation of powers, the APA, ultra vires, and arbitrary and capricious.

There's also a I believe in this case, there's a side issue that maybe Ben or Scott know about called the Federal Vacancies Reform Act. Because there's an issue that that Vought, who has become the head of CFPB, Russ Vought, is not the person that, according to statute, ought to be assuming that that post and enacting capacity is not Senate confirmed yet, I don't think.

Benjamin Wittes: Well, I believe he is Senate confirmed, but not for that position.

Roger Parloff: Yeah, he's for OPM, but not for CFPB.

Anyway, so, I, I believe she has taken that under advisement. I, there, in one of these cases, a CFPB CTO, the chief technology officer until about, former CTO until like February 7th, filed a declaration and he was saying that he had information that people planned to delete enormous amounts of information.

I believe that was in this case. I, it wasn't clear to me. And, and, and so there was great urgency to, to stop this from occurring. This is not so far as I remember a DOGE case.

Benjamin Wittes: We're gonna get to DOGE cases in a moment.

Roger Parloff: But anyway that, that's what I know about this and I think she took it under advisement.

Benjamin Wittes: Let's talk DOGE litigation, of which there is a lot. Roger. Give us a sense of scope and sweep.

Roger Parloff: Yeah. There's a lot of different attacks on DOGE. Many of them relate to the Privacy Act. DOGE detailees, broad, I'm broad brushing, go into these agencies go into their computer systems and there's a question and they, they see ultra sensitive information. And so there's a Privacy Act question. Are they really permitted to see this?

Obviously, there's great suspicion about whether their mission is really to modernize and improve technology, which is what the original, what the first DOGE executive order said. And so there is a challenge, a Privacy Act, also the Administrative Procedure Act is involved too, challenge to DOGE people inside Treasury. And then there's another one to DOGE people inside the Department of Labor, Health and Human Services, and the Consumer Financial Protection Board.

The one, there's a couple challenging Treasury. One of those is before, is in D.C., before Judge Kollar-Kotelly. And that one reached a consent order. I think, I think that happened even before our last week. That preliminary hearing is coming up February 24th.

There is a similar case that's in the Southern District of New York, Manhattan, and I think Anna is attending a hearing in that one right now, or was. Maybe she'll join us shortly. So I'll let, that also involves, is about DOGE inside Treasury. A more expansive TRO was entered there. That was controversial.

Some Trump people began to claim, and Senator Cotton claimed that it prevented the secretary of Treasury from, from seeing the, from looking inside his computer, the, the data system that was denied. But in any way a subsequent clarification of the TRO said it doesn't do that. Or he's free to look if he wants to.

Those are the, the challenges that are furthest along. There's another one. There is a couple that challenge Musk’s role in DOGE, which is actually exceedingly murky. I mean, it's never, we assume he's the head of it, but he is not so far, I don't think there is any official statement that-

Anna Bower: Can I just interject, oh, sorry on that point really quickly? Sorry. Hi Roger. Hi everyone.

Tyler and I asked, one of after the hearing that we were in today, we actually asked one of the lawyers for DOJ who was making representations during the hearing about who the administrator of DOJ is and he said, I don't know the answer to that question. So there you go.

Benjamin Wittes: So there you go.

Roger Parloff: So that leads to a couple questions. One is an Appointments Clause issue, that's been raised under the Appointments Clause. People that wield exceedingly important roles in government, you know, you, you might have to be a principal officer in which case you have to be Senate approved.

If you're an inferior officer, you need to be properly appointed pursuant to congressional authorization. You remember these issues came up with the special counsel. So, there is a case that isn't, that I think is before Tanya Chutkan, that's being argued right now, I think relating to the Appointments Clause.

And there's sort of a, a reverse side of that. If he's not an officer, and if he's not, a an employee then he seems to be what's called a advisor. And then that there's a different statute that covers, Federal Advisory Something Act. What is it?

Benjamin Wittes: Federal Advisory Commissions Act, otherwise known as FACA.

Roger Parloff: Yeah, so and it requires enormous disclosure, which of course isn't taking place. So there's another case that raises FACA issues with respect to Musk, but I will let Anna and Tyler talk about this case they just went to, or-.

Benjamin Wittes: Yeah, Tyler, give us an update on the hearing that you were just at and Anna chime in as need be.

Tyler McBrien: Right. So as Roger was saying, this was in SDNY. This was about DOGE team member’s access to sensitive Treasury information. So payments, personal information, including social security numbers, bank account details of, of individuals who received Medicaid, that kind of thing.

It was a suit brought by I believe about 20 state attorneys general, was being argued by someone representing the state of New York. And there's a temporary restraining order in place to essentially return the Treasury system to the status quo three weeks ago. During which, three weeks ago is when the DOJ team came in and began essentially rooting around in the source code, gaining access to this information.

The upshot of the hearing is that the judge is reserving judgment on the, the preliminary injunction. And, and what they're, what the plaintiffs are asking for is threefold. First, to restrain the DOGE team from, from developing this, this automated process that is intended to flag certain payments that, that are, that contravene Trump's policy priorities.

Two, to assume that anyone who does have access only be Treasury employees and have proper training have proper ethics training disclosure, et cetera. And then also to, to direct that the, the laptops and the activity logs of the DOGE team members, two of them, that are currently in quarantine remain in quarantine. And that third part has been granted because the TROs been extended until the judge actually issues judgments or decides on it.

I'll just say quickly. There's, I think the weakest, maybe the most skeptical part of the plaintiff's case that the judge had was this sort of disconnect between the harm claimed and then the remedy sought. So, the harm that was claimed is this disclosure of sensitive information and the risk of identity theft and that kind of thing. But she seemed to think that the relief they were seeking was actually related to the blocking of payments, not the access of the data. But the plaintiffs clarified that.

And then I'll just say on the defense side, the vagueness of the entire DOGE enterprise is not doing them any favors. The judge had so many questions about the employment status of the two DOGE team members, the objectives of the actual project, this engagement plan, and then also the reporting structures.

And that was one of the most interesting things that came out of the hearing, I think, was that first, the defense seemed to say that these two DOGE team members were reporting to the chief of staff in the executive branch, but I think that he misspoke and actually it's the chief of the staff at the Treasury Department. I can let Anna clarify that.

But I mean, the judge was just seemed really confused. It's very vague. The words used is just to improve government efficiency and that kind of thing. So that was doing them no favors, as I said. But Anna, I know I left a lot of links for you to fill in if you want to add anything.

Anna Bower: Yeah, so I, I mean, look, on the reporting structure thing, Tyler's right, the judge did have questions about, you know, what exactly is the reporting structure here, because it's, it's been pretty vague. We don't have a lot of facts about exactly how things are operating. And, and even though these are clearly DOGE-affiliated people, they've purportedly been hired, you know, within Treasury itself.

And so there's this kind of weird relationship where yeah, it's within, it's action that's done within the Treasury, within the agency itself. But there's this kind of strange interagency element where they have this like very unclear relationship and reporting structure when, as it relates to DOGE. And so when DOJ was asked about this they at first said that Krause and previously Elez; Marko Elez who is now not within the Treasury Department because he resigned after the Wall Street Journal reported on his racist statements that he made on an account that was linked to him online.

Benjamin Wittes: Just to be clear here, Anna, when you say racist statements. You don't mean, that's not like a matter of opinion. The statements include things like I was a racist before it was cool. Right?

Anna Bower: Yeah. Like he's literally saying that he is a racist. Like it's, I mean, it's, it's not subject to debate that they were, that some of them at least were, were racist statements and that he's literally calling himself a racist.

Benjamin Wittes: Okay, just checking. I just didn't want you to be in the position, like I, you know, want to make it clear that it's, you know, not your characterization of the matter. It's actually an objective characterization.

Anna Bower: Yeah, I mean, it's also, I will say, even JD Vance, when he was talking about this online, he, at one point, responded to someone who was discussing Marko Elez. And he said racist internet trolls don't hurt me or my children. And the implication being that he himself is referring to Marko Elez as a racist internet troll. So, it's, again, yes, not, not my opinion, but just an objective description of his statements on this account that he was linked to by the Wall Street Journal.

Anyway, so they ask about the reporting structure of these folks as it relates to DOGE. As Tyler mentioned, at first DOJ says they report to the chief of staff, and I, my, as I heard it, and as other reporters heard it, he said, within the EOP, meaning the Executive Office of the President. However, it seems like there was a little bit of backtracking on that later in the hearing, it, it, it seemed to be more that he was referring to the chief of staff within Treasury itself.

Afterwards we, we approached this official and, and asked for clarification along with a reporter from ABC. And it was, the response that we got was that he was referring to chief of staff within Treasury. But I think that it was really not clear within the hearing. And then of course, as I mentioned as well, we asked who the administrator of DOGE is. And the response was, I don't know the answer to that question.

So there was a lot of things that weren't clear about that, and, and that I think that, you know, the judge had some real concerns about.

Tyler McBrien: I would just add one more thing that was really unclear, was the defense wanted to paint this, or is painting this as this is not an unauthorized access of data because this was accessed by Treasury employees. And it was kept within Treasury, but the defense couldn't say with confidence or any certainty what these two DOGE employees did with the information. They're still conducting a forensic analysis of the activity log. And it's, it's, it's still unclear what that is.

And then the, the second point I would bring up is that it was similar claims on the, the APA and the Privacy Act that Roger was speaking about. And there was also a, another one on the E-Government Act that the, the plaintiff's claim that there should have been a, a privacy risk assessment from conducted before developing or, or procuring new IT, government information technology.

There's no denying that there was no assessment that took place. But the defense is claiming that this was not the development of new technology. This was rather using existing technology, that being the source code in this sandbox environment, which is even one step under testing. So they're claiming that it was not the development of new technology.

Anna Bower: Yeah, and on the point about the forensic audit, we already knew from some declarations in the filings in the case that there was an ongoing forensic audit of what exactly Marko Elez did and what he had access to. Because it was revealed in some of these declarations that he was accidentally or mistakenly given read write access to some systems at one point.

So it DOJ informed the court that that is ongoing. But they did mention that, which is something new, I think, in addition to not being able to fully say what exactly is maybe been done with some information. They did say something to the effect of that they have found there were emails that were sent outside of the Treasury. I know that they represented that things weren't sent outside of government. But they said that they did believe there were emails being sent outside of Treasury.

Benjamin Wittes: All right, we are going to move on to the next subject, which I know almost nothing about. So, Scott and Roger, litigation over the firings of protected persons. What do we know?

Scott Anderson: So there were kind of two sets of cases here that are, both saw a fair amount of action this week. One much more than the other. One is Dellinger v. Bessent, they're both before a district court in Washington, D.C.

One, Dellinger v. Bessent. This is a case over the firing of the head of the Office of Special Counsel, not in the Jack Smith context, but as the internal kind of ethics office and investigator in the executive branch. And a second, Storch v. Hegseth, which is about the removal of a whole suite of inspectors general all around the executive branch that took place a few weeks ago.

The latter case is at a kind of preliminary phase, there's actually a hearing that got scheduled for 4:30 p.m. while we were, since we have been on this Zoom call so it's currently ongoing. I don't know, have any information from that, obviously, because I've been here with you all. But that is a request for a TRO that we may see a decision on by the end of the day or over the weekend. We'll wait and see on that.

The issues are very similar to what was teed up in Dellinger v. Bessent, where we actually saw a fair amount of argument and substantive debate this week. There we initially saw Judge Jackson, Amy Berman Jackson who it was brought before, issue an administrative stay. This is usually a stay that judges do, not without controversy as a legal measure, but nonetheless somewhat not infrequently.

And we've seen a few of them already in these cases, saying we're gonna hold this matter and hold the status quo for a day or two, just to give people a chance to file. And in this case she actually did it to give the government a chance to file a brief in opposition to the motion for the TRO. Instead the government immediately appealed the administrative state at the D.C. Circuit and said essentially this is an infringement on the president's Article 2 power of over appointment and removal, this in particular removal. This is like a violation of core Article Two powers.

And the D.C. Circuit in a panel including Judge Pan, Judge Childs, both Biden appointees and Judge Katsas, who was a Trump appointee, slapped it down very quickly and said essentially, look, we're not gonna, we're not really going to engage in this. There's no substantive opinion except from Judge Katsas, who issued a concurrence where he even said, on the merits, I can see why there'd be a difficult case.

He says there's a few case law pointing to that the, that the court is clamping down on the president's ability or Congress's ability to limit the president's removal of subordinate executive branch officials. But he says, but administrative stay for two days, nah, we're just gonna let this sit. We're not gonna deal with this.

After that slap Judge Berman came back pretty quickly, a day later and issued the TRO. And in doing so, basically rebutted a lot of Katsas's argument, at least from her view. In hich she made the point of is that the Office of Special Counsel, unlike the CFPB in, which is an issue in Seila law, one of the cases that was cited in there, unlike some of these other issues that agencies and officials we've seen at issue in recent cases, really does not have the sort of independent, substantial capacity that we expect, and that have been a problem for courts when they see agencies that are outside and protected from removal by the president.

The essential argument is, look, if this, if this person's doing something that's exercising a lot of power on the executive branch's behalf, they have to be subject to removal. Congress can't restrict that. And that is an increasing view within the executive branch. And it butts up against Humphrey's Executor, a longstanding decision that basically says, well, whether Congress can limit removal or not, kind of hinges on the nature of the office and specifically talks about member or multi member commissions.

It was a little different here. She makes the point basically that the Office of Special Counsel actually doesn't have that sort of independent authority like the CFPB or other bodies does. It’s basically, is a body that does internal executive branch investigations, investigatory authority of staff, some subpoena power but essentially issues recommendations to different offices.

And she points out that at several points, Chief Justice Roberts, among others, have actually pointed the Office of Special Counsel in distinguishing the problematic agencies in the context of which restrictions on removal are a problem, saying this isn't like the Office of Special Counsel, rejecting that as a, as a parallel and saying like, that is actually less of an issue here.

These are much bigger problem. So pointed that there's some daylight between a lot of these core precedents relied on and pointed to by Katsas in particular, she addresses both of those squarely and saying the OSC is just different. So she issued a TRO. Now we are setting up to have actually full briefing on preliminary injunctions. A hearing on that is scheduled for the February 26th. We're going to get briefing up until then.

And then we're going to see a decision on a potentially much longer preliminary injunction as to whether that might more permanently reinstate Mr. Dellinger pending the resolution of that. Roger, do you have anything else to add on that particular front?

Roger Parloff: Not too much. I just say that, and the case being heard right now before Judge Ana Reyes, I think presents similar issues. I, I would say I thought the Katsas's concurrence was more ominous. You know, he, there's no need for him to do that at all. He should have just said they, and they usually say that we intimate no opinion on the merits.

Instead, he goes out and practically says, if this is before me, I would reject it. And Katsas is an important, he was appointed by Trump. He’s a smart guy, he was-. And he's the, I would say that he is a better barometer of how the Supreme Court might rule than anyone else on the D.C. Circuit, maybe. He was the one that decided that Fischer basically gave the ruling in the Fischer case that the Supreme Court later adopted 6 to 3.

That's the case about obstruction of justice, narrowing the statute so that it couldn't be applied in most January 6th cases. But beyond that, I'll let, leave it there.

Scott Anderson: Yeah. The only thing I would add to that is you know, I, I, I suspect Katsas is in the minority on the D.C. Circuit. I think there's a much better chance Jackson has a better read of the D.C. Circuit on this. But this is the sort of issue that's almost certain to go to the Supreme Court.

We do know several justices have strong feelings on this at the Supreme Court. They've not been shy about it. This has been like a kind of like a pet issue for the kind of conservative federalist society sort of revolution of the court, really, for the last 30 or 40 years. It's central to the idea of unitary executive theory.

The question is just how far does that go? Does it really mean go all the way to say Congress can never restrict any executive branch official, a removal of power, in which case it could go all the way down to civil servants? Mybe you can't have, you know, merit protections like we've traditionally had for the last hundred years for civil servants.

That's not an issue here.

Benjamin Wittes: It's more than a hundred years.

Scott Anderson: More than a hundred years.

Benjamin Wittes: It's been more than a hundred years at this point. It's since the 1870s.

Scott Anderson: Yeah. So that is an issue that's going to squarely get teed up. I think these are the cases that are more most likely to go directly to the Supreme Court because you are going to see a number of justices who really want to hear this. That's not necessarily true of all these other issues before they're ripe. But this sort of set of issues, one of these two cases, I suspect is the one that's going to go there first.

Benjamin Wittes: Yeah. So I agree with that, but I want to, I want to flesh out several layers of this point. Right. So one is, can you fire like people who run independent agencies? And there are a lot of justices who've been spoiling for that fight for a long time, that's, you know, overturning Humphrey's Executor.

Second question, can you fire people like the special counsel? You know, probably a very similar question, right? Yeah, a little bit less obvious, right, that that one.

But then you get this third quest layer which is, is this whole civil service law thing just a big myth? And the thing, the civil service has never constitutionally existed, and I don't know that I believe there are six, five votes on the Supreme Court for that idea. That's a radical sort of return to Jacksonian democracy. And so, you know, I'm just curious, which are the questions, Scott, that you think there are justices spoiling for on that?

Scott Anderson: I think you are certainly going to see justice spoiling for the actually the multi-member commission. Like that's central. That's, we saw the, that's actually not in litigation currently. We saw the Trump Justice Department this week say, essentially, we're not, no longer going to defend the constitutionality of statutes, setting the limits on the president's ability to remove members of a multi-members for commission.

So that's like fundamental to the Humphrey’s Executor question. And it's been more of the bugaboo, I would say in certain ways. So I think you're, you're likely to see justices really want to take that up. I think you might have four justices want to take up most of certainly these cases, special counsel and IGs.

Regular day to day civil servants, I think is a much harder issue. Maybe they're there, but really we only heard a couple of judges, like, you know, Judge Ho in the Fifth Circuit, not to be confused with Judge Ho in the Southern District of New York, we were talking about earlier, very different judge, who has said this basically in a series of remarks saying we may need a review, the revisit the constitutionality of the civil service.

That's pretty minority view, I think. Maybe we'll get there. Maybe the Supreme Court will surprise us again like it did in the immunity decision, but I, I would be a little surprised by that. I'd be very surprised by it. But I won't rule it out as a possibility.

But I'm not sure there's five votes even for these offices. And I think the number of votes you get when you have people like Chief Justice Roberts, to some extent Justice Kavanaugh, maybe Amy Coney Barrett, is that while they are very conservative and they believe in a lot of these things, they also have a strong pragmatist streak. And, frankly, I think a lot of these justices are going to look at the way things that are, the Trump administration is going about in certain things, and it's going to make it harder for them to embrace the most full throated version of these theories.

Maybe they'll find statutory outs, maybe they'll find other ways to limit it, but if there's a pragmatist bone in your body, you gotta be worried about not having inspector generals in the executive branch in a period where you're seeing billionaires with billions of dollars of contracts in there fundamentally changing how you spend government money.

I think that makes a lot of people nervous across the political spectrum, including potentially people in the Supreme Court. And I don't think they are as committed ideologues as certain of their colleagues are in the Supreme Court. I could be wrong. I could be disappointed. I have been disappointed before and will be again, I'm sure.

But I think even on these, I'm not sure it's an open and shut door the way a lot of people have been watching these issues think it is because that is certainly the trajectory of the court's thinking on this. But I'm not sure that trajectory stays as it has been for the last 20 years if you see the pattern of conduct, frankly, we've gotten out of this administration the last three weeks.

Benjamin Wittes: All right. We got three more subjects to cover. We got 25 minutes. Forks, roads, Roger go.

Roger Parloff: So this one was a while ago. So I'm hoping I get this right. This was the District of Massachusetts some unions suing over the Fork in the Road buyout plan.

Benjamin Wittes: And just, I just want to say this is a notable case because in the entire litigation history of the Trump administration, this is the one thing they've won.

Roger Parloff: Well, they won in the before Judge Bates in the labor case the first time around.

Benjamin Wittes: Oh, yeah. Okay, so this is one of two Okay.

Roger Parloff: Yeah, this was unions suing over the buyout initiative. And he initially, Judge George O'Toole did grant a TRO, but this week he dissolved the TRO and denied a preliminary injunction.

And if I'm remembering correctly, it was those two things again. It was well, it was standing. The, the union, you need to show more of a stake than just the same stake that we all have in seeing government collapse, particularized injury. And so the unions would either have to show that to themselves or to their members and he felt they hadn't.

But I think the bigger problem was, and a related problem is, is the one I mentioned earlier, that basically employees who are wronged, injured, are relegated to these administrative remedies, even though they may not seem very practical and won't get any relief for many, many years. I think that was the basis for this ruling. Am I wrong?

Scott Anderson: That's right, but I think it's worth drawing one line on this case that's really significant on the standing point and the reason why it's not going to be replicated in other labor driven cases, or at least I think it's less likely. With the Fork in the Road memo, we have to bear in mind, the memo didn't actually do anything yet to anyone, to any individual employees, right?

The complaint about it is that, well, you're making this offer that's confusing, making people stressed out, and may not be lawful. And can you even make an offer like this? And the unions were basically arguing, well, we can't argue that any of our employees, like, they did make the argument, but it wasn't, it's harder to argue that they're directly impacted in a negative way.

Very different if, you know, their members are being terminated or suspended indefinitely, right, which is happening in other contexts now in the other, other lawsuits. So instead they had to argue, we have to expend a lot more resources educating people, trying to help people figure out what the heck is going on. You're going to steer, steer away our membership. It's going to hurt us organizationally in a lot of these ways.

And that's what the judge found unpersuasive here. But those arguments aren't going to carry the same weight in outside of this very unique context of the Fork Memo. I think when you're talking about union members actually being terminated and suffering adverse career penalties and consequences, standing is not going to be an issue.

On the merits, on that procedural point, this is the forest and trees point I hit at the top of our debate. He is a trees guy. He said, this may be happening at a large scale, may well happen at a large scale, but there's a process to deal with all of these trees and this forest that this may be an unlawful program, I'm not going to get at.

That's an administrative process and courts will take it after the administrative agency has its cut at it. Again, that is a lens that we may see recur in a lot of these cases that will be problematic for plaintiffs and beneficial for the government, the way the government's going to try and steer these. But who knows if they'll succeed in this one case it did.

Benjamin Wittes: All right, we have a federal funding freeze litigation. Roger. This is the one where the administration has, I think, objectively had the most trouble because they've run into court order compliance issues. On the other hand, they seem to convince the judge this week that their turning off FEMA money was not a problem under his order. What's going on in that case? This is the Rhode Island case.

Roger Parloff: Yes. And again, it's fuzzy to keep all of these straight. This is John J. McConnell in Rhode Island. He entered the TRO against a blanket freeze on funding. And one of the problems in this case is that I think this was initially an OPM memo, which was then retracted.

Benjamin Wittes: OMB.

Roger Parloff: OMB, yeah. OMB. And it was then rescinded. But the Trump administration tried to achieve this same thing with other directives. And the judge expanded his TRO to cover that, and there was an issue about, well, did he have the right to extend, you know, where these, these claims weren't even made in the complaint, technically.

And then there were issues about whether it could defund certain things in, with particularity, and particularly this expenditures to FEMA that were allegedly being abused by a gang at, at the Hotel Roosevelt in New York, you know, a violent gang, immigrant gang. And the judge said that was never barred by my order. The order has always allowed you, if you have, you know, if you're acting under a particular provision of a statute to withdraw funding, you can do it.

Anyway, so this is another one that was instantly appealed to the First Circuit. I think, even though TROs aren't appealable, and I believe that's been dismissed.

Benjamin Wittes: So there's one last issue on our agenda, and it is again, one that's a little bit obscure to me, which is the research grant cap. And the question is, what do we know about that litigation?

Roger Parloff: I'm going to pass on that one, except I know there was a TRO entered and by Angel Kelley and the District of Massachusetts. And there's a preliminary injunction hearing on February 21, but I have not read that one.

Benjamin Wittes: All right, Roger, I think we have done the impossible. We have covered all of our litigation areas intended. Are the do you have further thoughts before we wrap?

Roger Parloff: Just the Department of Labor case before Judge Bates. I heard some of that and this was a DOGE in the Department of Labor and also CFPB and HHS, and presented some of the same issues as DOGE in Treasury. And the thing I thought was interesting, Bates was asking a question that I have been asking myself, which is, I think the trick question. I think that DOGE had better lawyers than we thought they would.

You know, initially we thought they were going to be an outside agency and the problem was going to be the, the FACA, the Federal Advisory Blank Act. But in fact, they situated in USDS. And they renamed it. And the thing is, you could imagine a legitimate, say that it was the Obama administration, USDS, and you want to really do want to improve software throughout government.

Why not have these experts from outside that, I mean, these brilliant coders come in and then detail them to all these different agencies to look in and say, what could we do better? That sounds sensible. And is it really illegal?

Benjamin Wittes: Yeah, but hang on a second. I just want to, I want to break there because that's not what DOGE is. When you have you know, the White House dispersing special government employees to different agencies, they're not giving orders to, you know, the people.

And this actually gets to the principal officer, subsidiary officer, employee, advisor, Appointments Clause issue. If you are wielding executive power, we need to understand who you are in relation to the presidency and the executive branch. And fine if, if the president wants to have, you know, a committee of commissars that are politically loyal to him that fan out through the agencies and give, you know, orders to people like party apparatchiks.

You know, he should go to Congress and have that authorized as a, if he wants to give them the authority to issue orders. You know, that's a structural change to the way the executive branch is designed. And, you know, there, there are appointments clause issues related to that.

Roger Parloff: Well, this is what the judge was asking the plaintiffs to prove, is that there's something different. And the plaintiffs at that time were not having an easy time of it, and I, I think part of it is that we, we know so little about DOGE and musk and what is going on. And it's it's not transparent.

And of course, I think a problem with the Appointments Clause is that they're temporary and that you need for, for to be a principal officer. You need to be a continuing employee. And these people are all temps despite the enormous power they wield. It's not clear the Appointments Clause will apply.

They've put them, I think it's a clever structure. It might not work, but it takes, I think it takes a lot of discovery in order to pierce it. And there isn't a lot of time to do that discovery. There's no discovery. There's just affidavits right now. And so, I think it's a, it's hard for the judges.

Benjamin Wittes: All right, I just noticed that we have two audience questions. We are going to take them before we wrap. Mark, you have a question for which you have to unmute yourself.

Audience Member: Yeah, thanks. Yeah, I just watched J.D. Vance's speech at, at the Munich conference. And I believe, or I'm asking you if you guys have seen it, did he just tell all of our allies at the conference that rogue courts are part of the deep state enemy within for all of the assembled allies?

Benjamin Wittes: So I have not watched the speech yet and therefore can't answer that question. I have seen some traffic suggesting that let's just say the vice president's speech was not well received at Munich, but I'm actually not in a position to address that question. All right. We're going to have to leave that one to a different time, Mark.

Sorry for that. All right, so I'm going to read Josh's question which is as follows. Repeating a question that many others more qualified than I are asking, what can courts do if the Trump administration ignores court orders?

All right. So, this is a subject about which I recorded an entire podcast with Natalie Orpett the other day. I'm not going to recap in detail my answer. I will, however, recap it in a, in a brief form.

So number one, there's two different issues here. There's the issue of what if there is a court order against a third party, let's say Elon Musk, and the court orders him to do something. He defies the court order. And the government doesn't act with alacrity to enforce the court's order.

And there, I think people are frankly, I have a lot of confidence in the courts. And, you know, yes, ultimately, they can jail people, but they need the marshals to do it. And that's an executive branch function. But realistically, most of the time, they use fines and other coercive mechanisms that don't really rely on executive enforcement.

And the courts are actually very adept at compelling compliance with court orders, including by the way, by making it very difficult to win the litigation. If you are in violation of certain orders, you can ultimately default cases. You can, you can do yourself a lot of damage in civil litigation by defying court orders. So I think the answer to that question is: yes, there is a, do we count on the executive for enforcement at the end of the road issue, on the other hand, don't underestimate an angry district judge as a force of nature.

So the second question and the harder question is, what if the order is directed at Donald Trump himself, or at the executive branch itself? And there the courts are in a weaker situation. Frankly, the same rules apply. But, you know, you're forcing the president to do something is a tricky business. And so, I will say only that this situation would arise presumably only after an appeal that went all the way to the Supreme Court.

And so the, you would, you would see the executive in its weakest. But ultimately, the answer to that question is the same as it is with every, you know, showdown between the courts and the president, which is it really does matter which side Congress is on. And so I would say that that set of questions is further down the road than people think it is, but it is lurking there. You know, based on the comments of people last weekend including the vice president, you have to be at least a little bit worried about it.

Okay, then we are gonna leave it there. Roger Parloff, the only one of my colleagues who made it through the entire show. You are a great American. We're gonna be back because the show is not going away and it's not even intermission time. We'll be back. You'll join us.

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