Lawfare Daily: The Trials of the Trump Administration, Feb. 21

[Intro]

Scott Anderson: Again, I don't think district court judges have to reach this conclusion. I'm not sure I agree with it, but I'm not surprised by it because among other things, it's the number one vehicle to avoid the much harder constitutional and broader legal questions that are being implicated by these plaintiffs.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittes, editor in chief of Lawfare with Senior Editors Anna Bower, Scott R. Anderson, and Roger Parloff.

Roger Parloff: And the, the issues are separation of powers, that it violates the Appropriations Clause, the Purpose Act, the Impoundment Act, and also the Administrative Procedure Act for arbitrary and capricious agency action. So, I thought that that one sounded pretty promising.

Benjamin Wittes: In a live recording on February 21st, we discussed legal challenges against the executive actions from the Trump administration, the dismantling of USAID, DOGE's communication with executive agencies, and the attempt to ban transgender service members from the military.

[Main Podcast]

Let's start, Scott R. Anderson, with foreign aid. The government comes in and says, are we in compliance? We think we're in compliance. Don't you, Judge Ali, and the plaintiffs say no, please hold Pete Marocco in contempt and Judge Ali says no contempt, no compliance. What's going on here?

Scott Anderson: Yeah, so we had a pretty extraordinary filing at the beginning of the week from the government and from the Justice Department on behalf of the State Department in these two cases that are being heard together.

This is Global Health Council v. Trump and AIDS Vaccine Advocacy Coalition v. Trump. It's a whole bunch of plaintiffs in both of them, but, and a whole bunch of defendants, but those are kind of the lead ones, at least as we've been referring to them internally. They're being tied together because they all relate to essentially foreign assistance funding and they’re challenges by organizations that receive that funding or organizations that represent recipients of that funding over the funding freeze that's been installed since January 20.

There was a TRO issued last week, people may remember, by Judge Ali that basically said hey let's all go back to status quo ante until we can actually have a hearing on the preliminary injunction in early March. I think it's currently scheduled for the third as I recall, maybe the fourth looking at these notes.

In the meantime, everybody needs to go back to paying our contracts and do things as it was as of January 19, 2025. But he had in this TRO, he had a provision not in the specific directive, been discussing it, basically saying you know, the government has represented, there are, of course, normal contract terms that allow for suspensions and terminations in certain cases. And in the ordinary course of managing these contracts, if that comes up, that's okay, you can do that to paraphrase.

The government apparently over the course of the weekend interpreted that carve out as saying, well, this means that any independent authority we have to suspend or terminate these contracts other than the executive order or the implementing cable for the executive order, which is what the government, the court enjoined, we can go ahead and do that to do whatever we want.

And they use that authority to continue to hold up all the foreign assistance spending that the court pretty clearly unequivocally, in my view, directed them to continue and resume at the end of last week. It's a pretty ballsy move from my perspective. Anybody who's ever dealt with any of this knows executive orders don't give you any independent authority. They don't carry any unless the president is delegating constitutional or statutory authority, which these executive orders didn't do.

What happens is it's an order, the president gives it to you and you implement it with whatever authorities you have available to you to the extent possible under the law. So all these authorities that Marocco, who is the current director of foreign assistance or acting director of foreign assistance at the State Department, who's kind of leading all these efforts, filing a lot of these affidavits.

Whatever he and other people are saying about using these authorities, that somehow they were not, weren't precluded by a TRO, it would be an exception that swallowed the rule, which it did in this case because they basically said, hey, we haven't really haven't done anything different over the last few days. We don't think we need to under this TRO. But they in the status report did flag this and say, but correct us if we're wrong in this.

The plaintiff is very quickly motioned to say, hey judge, please correct them on this. These are the AIDS Vaccine Advocacy plaintiffs. We saw a back and forth with the government in briefing and yesterday, in fact, we did see a corrective TRO issued that basically said from the judge, hey, government, you really do need to start paying this.

Yes, you can manage individual contracts. If there's a contract violation or something you can cancel or suspend as you would an ordinary course, but you're not supposed to be just resuming the full freeze on foreign assistance that the original TRO clearly said don't do this anymore.

But it wasn't the most specifically worded or accountability inclined TRO, revised TRO. I mean, people clearly seem to say, government, I'm calling out, you're not doing it right, do better. But it didn't give any more specific directions than that despite requests from the plaintiffs. So I'm a little worried we're going to see another round of this because the government seems quite intent on not resuming this sort of spending. Either another round of this or possibly just an effort to appeal by the government to the D.C. Circuit and hope they'll get a friendlier panel there, which is a little optimistic, I think.

Regardless at this stage we saw the other plaintiffs, now the Global Health Council plaintiffs, come in with a filing seeking to enforce the TRO. Actually, after the corrective TRO was issued last night, their filing didn't come in until about 6, the corrective TRO was issued around 5.

Where they, in a kind of one-two punch that worked well with the other plaintiffs, came in with a brief that really, really laid out just how brazen what the State Department has refusing to do is. They pointed out that all their plaintiffs and they have several umbrella groups that represent a whole range of plaintiffs.

They checked with everyone, not a single person who received a single dollar of additional funding since the original TRO last week, including lots of people who are owed money for work that was due prior to January 20^th, meaning for work that was already done when the suspension was implemented. There's an existing exception for that under the implementing cable that the State Department has issued and they still haven't done anything on it.

We will see what happens with this. They're supposed to do a joint status report in about five days on the 26th, as I recall, that is, or maybe I think on the, I think it was the 26th or 25th or 26th. We'll see ideally at that point, you know, with ordinary parties, you would see them come to some sort of agreement and discuss and say, here's where we are on this.

And here's our points of lingering disagreement. And there would be pressure on both sides to meet in the to some extent, but I don't expect to see that necessarily in this case. This move by the State Department really is pretty brazen in my view. I think is really indicative of an intent to try and stick to their original policy, legal consequences be damned.

Will that lead to a contempt finding on them? Maybe, although I kind of think not I'm not sure exactly. I think it would be pretty extreme for that sort of conclusion, at least for the next round, but we'll have to wait and see. And this is all leading to the actual preliminary injunction hearing, which is supposed to happen again on March 4th.

Benjamin Wittes: And just to be clear, you know, when I read Judge Ali's order yesterday, you know, the thing that really screamed off the page to me was not that he was wrong, or that he was, that there was anything sort of, the matter with the way he was thinking about it. It's that this is a very junior judge, you know, and he's got, this is a case management issue. That this is a very powerful litigant that's trying to figure out a way around the order and a judge just has to be able to kind of run his court.

And he doesn't seem very sure footed about that. And I'm a little worried that, you know, the Musk-infused State Department is going to kind of run rings about around him.

Scott Anderson: I think that's a fair concern. I think that that aptly echoes what was my concern with this case. You know, look, the, the judge's letter, the judge's memo or order was a absolute model of civility. In a lot of ways you would hope to see that in any sort of contentious litigation, in a lot of context, but it does strike me as a little dissonant, what struck me as like pretty bad faith action by the government.

And it's really interesting in the government's filing in this, the status report that it filed on earlier in this week on the 18th, it's telling that there's like a huge part to the legal argument about why what they're doing is legal, why they're able to use these contracts, the fact that frankly they're frequently relying upon not any terms of the contract that allow for suspension and termination, but implied terms that they say are required by federal regulations, and that therefore have to be read into these agreements which may be legitimate or not, I'm not sure.

Those were arguments the Justice Department was willing to put forward. At least they didn't put forward them forward in their brief. Instead, we saw Peter Marocco's declaration make sub lot of substantial legal arguments. That was the only place they really got advanced in this particular government filing.

Benjamin Wittes: And is Morocco a lawyer?

Scott Anderson: I don't know off the top of my head, I'm not sure actually. Presumably a lawyer looked at this.

Benjamin Wittes: He's not functioning as a lawyer in this context, right? He's a witness in his capacity as a State Department official. I know for a fact that his predecessor in that role, or one of his predecessors, was not a lawyer because I'm married to her. And I'm aware that she did not go to law school. So it's not a legal job.

Scott Anderson: By no means.

Benjamin Wittes: So the only place that legal argument is being made that these are implied terms of contract is not by the Justice Department lawyers who are making the arguments to the court, but in an affidavit by somebody who is not in a legal role.

Scott Anderson: That, that's correct. I mean, an affidavit, you'd normally expect there to be factual assertions, assertions of experience, understanding, beliefs on behalf of, like, witnesses, essentially. It's like factual, stands in for, like, factual evidence, usually. It can do a little more than that. But it's weird, it's just weird to see these arguments, because these arguments would be useful for the Justice Department to put forward in their briefing.

Particularly as they're arguing, and they basically do rehash in their more recent filing, why they don't think the TRO should have been granted in the first place. But they don't take up those arguments particularly squarely. At least not like at the level of detail we see in these, Marocco's declarations.

So I, I don't really know what to make of that. I mean, it could be a sign the Justice Department isn't ready to co sign those as fulsomely but I don't know. I don't want to draw too many you know, conclusions from this black box. I just found a little strange myself.

Benjamin Wittes: And what about on the other USAID litigation, the one related to personnel actions, that's a different litigation, it's a different set of issues, has there been any movement on that?

Scott Anderson: There has just in the last hour, this is the American Foreign Service Association or American Federation of Government Employees, depending on which lead plaintiff people are citing, different ones, v. Trump. In the last hour, there's had been subject to a TRO that had been barring the government from putting lots of USAID employees on administrative leave, cutting them off from computer systems and potentially terminating them.

That hadn't actually been implemented yet, but that's what was believed was set to happen before the TRO was issued. TRO was lifted within the last hour and the preliminary injunction that the plaintiffs had motioned for was denied. The logic for this is going to sound familiar for folks who were here last week because it looks a lot like the logic that we heard in the decision that ultimately denied the TRO for the Fork Memorandum, or I said denied the preliminary injunction and the TRO for the Fork Memorandum.

The basic logic of it was, in this case, A, uniquely to this case, the judge had been very concerned, rightly I think, that a lot of overseas USAID employees were being put in very dangerous and risky situations by the sudden and fairly chaotic termination or suspension of their access to different computer and safety systems.

The judge really goes to pains to walk through in his opinion, this opinion he issued alongside canceling the TRO and rejecting the PI, basically saying, here are all the assurances the government gave me why I'm not as worried about this, and really spelling them out. And I take that as a sign that he intends to make sure they're abided by or at least if there's a you know, they're not abided by and there's real concern about that, he will be sensitive to that.

He really, really calls the government out in detail on the assurances they made to his credit to some extent. But once he clarifies that those people who are an imminent threat and danger are out of the situation, he steps back and says in the end this is all an employment dispute. And employment disputes with the government are supposed to go through an administrative process.

Separate ones for civil servants, foreign service officers, but all sort of the same process. And also other ones for labor unions can step in as well. And he makes a point saying that these things need to go through the Merit Service Protection Board, through the NLRA for labor disputes, for these other statutory processes. There's a separate process for foreign service officers. And only after that process comes through, is it at the point where judicial review is appropriate. Until then we lack jurisdiction.

And he got there through an application of factors, people who are following these cases have, will become familiar with, if you're not already. These are the Thunder Basin factors, which is the test that the Supreme Court has laid out for determining, well, when there's a specific statutory set of procedures for arriving at a remedy for a particular claim, how do you determine whether this claim fits within that set to the point of being exclusive of the general jurisdiction that district courts can usually offer. And that was the conclusion reached here. He thought these fit within the Thunder Basin factors.

When it gets back to that forest versus the trees sort of point that I tried to make last week, and then I've kind of been hitting on Bluesky and other folks with other folks in other matters, like the real question here is courts, do courts see this as simply a huge volume of individual, relatively conventional employment disputes?

If they do, then they're going to be really tempted to channel it through these existing procedures, because that is how they avoid the big constitutional questions. It's the normal process. And it seems consistent with how Congress wants to approach these things.

If you say, well, this isn't really about these 10,000 individual employment actions. It's about the huge policy shift overriding them. The big picture is you're shutting down an agency de facto or you are dramatically curtailing the federal workforce to deregulate industries. If you take that bigger view, then you could really see how a court could really look at the Thunder Basin test and say, no, these are bigger questions that don't need to wait to go through the administrative process.

In fact, they should be directly with the district court in the federal courts now because this isn't the sort of claim those processes are supposed to address. And only the Supreme Court just two years, two years ago in a series of cases actually accepted this case. They accepted that. I think in the context of FTC challenges, structural constitutional arguments didn't have to go through the administrative procedure, could go directly to the federal courts and ultimately the Supreme Court.

So far, none of the district courts have bit on that argument as applying to these cases. I wouldn't be surprised if a district court ultimately does in some contexts. But that's going to be the way a lot of these cases fall, depending on whether we're going to see immediate federal judicial action now, or whether first we're going to see these potentially long and drawn-out administrative processes have to play out before a court will feel like it can take it up.

Benjamin Wittes: And just to be clear, is there a, to you, an obvious right answer to this question? I mean, presumably a whole bunch of these cases go before the Merit Systems Protection Board. The government's going to lose before the Merit Systems Protection Board because there's no individual basis to fire this particular prosecutor or this particular prosecutor.

The only basis to do it is because I'm the president, I'm the silverback gorilla, and you know Article Two says I can do whatever I want. But I never talk about it. And, but then at that point you have to talk about it, right? So unless you're going to reinstate those people and follow the Merit System Protections Board.

So in what sense does it matter what order you do this other than, you know, whether you can enjoin the firing and the, for at all?

Scott Anderson: That is the difference. The difference is when you're in federal court now, you can, maybe you get a TRO and you can stop the firing from happening. And your hope is that you can stop the, you know, deconstruction of these agencies and the release of these personnel, at least temporarily, maybe in a more enduring fashion.

Once it goes through the administrative process, and this is a part of these, the way these courts are thinking about these cases, once it goes through these processes it really becomes a damages question. Yeah, reinstatement is possible at the end of the MSPB process. It's not entirely about damages. There's some like specific performance element of it.

But it basically comes down to, hey, these are contacts that weren't paid. So how do you make somebody whole who doesn't get paid under a contract? You pay them the money they're owed. You don't force them to, you don't force the, you know, guilty party to resume the work of the contract, that sort of specific performance. Employment contracts, little more complicated here cause again, there is that sort of reinstatement option.

But often it's going to be viewed as saying, well, it's lost wages. That's really what we're talking about here. Lost wages between the current moment and then the period of reinstatement, right? That is something that can make, come down months, years down the line. And maybe if, in terms of how courts often think about these things, normal examples of both these instances, they're going to say, yeah, this makes these people whole.

What's lost though, is that in that year, The Trump administration gets the policies at once. And that could fundamentally change a whole range of outcomes. Are there other plaintiffs who could maybe pursue legal challenges that may get more fundamentally at the underlying policy question? Maybe, but it's hard to think of exactly who that is and how really they're going to be. I mean, is it somebody who actually gets the foreign assistance who's required, right?

And can argue, I have standing to challenge the fact that there is a constitutional infirmity in what the Trump administration is doing. And that's not fixed. You can't fix this by just paying me damage because not an employment dispute. It's not a contract dispute. Like literally we are suffering in the field. Maybe you can get some sort of plaintiff like that to do it.

But working through employees and people who represent them and, you know, contractors and people who represent them essentially are grantees. You're going to get opportunity to get diverted down these administrative paths that exist for those sorts of relationships. And that's the risk of all this litigation. I think at this point.

We saw a third, another litigation is worth flagging cause something really weird happened in this one, which I hadn't been following that closely, but it's worth flagging, the U.S. Conference of Catholic Bishops v. the State Department. This is a case that similarly challenges the funding pause in refugee related funding.

We saw Judge McFadden there, Trump appointee, reject a TRO earlier this week. And he appears to have actually submitted it for mediation before a magistrate judge. At one point, I think there was a preliminary injunction hearing scheduled I don't know whether that's still scheduled or not and now it's in this mediation process.

It's very strange. I'm, not 100 sure what that entails or what that looks like. It's something worth looking into and I’m going to try and figure out what's going on there. But interesting step here about another sort of process. We might see some of these claims get pushed into

Benjamin Wittes: All right, let's talk subject number two, Anna Bower, Eric Adams. You know, we've left the realm of civil litigation. We're in the realm of criminal litigation, or the government wants to dismiss criminal litigation, but the defendant doesn't mind that because who minds having a case dismissed against himself, but the judge has some anxieties.

What did Judge Ho do? And who did he appoint as his special advocate amicus in the thing? Bring us up to speed, Anna Bower.

Anna Bower: Yeah. So two days ago, Judge Ho in the Southern District of New York held a hearing on the government's motion to dismiss Adams’s charges without prejudice which means that they could bring the charges again at a later date if they wanted to.

Of course, there's a whole lot of drama in the background of all of this that we talked about last week regarding these allegations that there may have been some kind of improper quid pro quo that was kind of suggested by, by Adams’s team at this meeting that occurred in D.C. over whether or not the charges should be dropped. So there are these questions about whether or not there was an exchange of, you know, dismiss the charges in order to allow Adams to enforce Trump's immigration policies.

Judge Ho calls a hearing, brings everyone into court. And Emile Bove himself, Trump's former defense counsel, who is now the acting deputy attorney general, shows up, sits solo at the table for the prosecution with, with no assistance from other Justice Department officials, and argues this question of whether or not the charges should be dismissed under Rule 48 of the Federal Rules of Criminal Procedure.

At the outset of the hearing, Judge Ho made it clear that he believed that even though rule 48 does require leave of court. So it sets out this procedure of the government filing a motion to dismiss and then it requires leave of court. But he made it very clear that he believes his discretion is very limited to deny the motion. But he thought in, you know, exercising his discretion that he might as well bring everyone in to hear their views on, on various matters.

So he questioned Adams under oath, in fact, to ensure that he did indeed consent to the motion and that he understood the motion fully. I think one of the more interesting parts of that questioning of, of Mayor Eric Adams related to Judge Ho asking him, you understand that you can oppose this motion in full or in part; you understand that you can ask the court to dismiss this case with prejudice, meaning that it cannot be brought again.

Interestingly, at no point after that exchange and that kind of series of questioning on that point Alex Spiro, Adam's attorney did not stand up and say, you know, your honor, we would not oppose if you, if you wanted to dismiss with prejudice. So there, there were several other, you know, exchanges that were, there were interesting.

Emil Bove defended the Justice Department's decision to dismiss these charges saying that, you know, basically it was unreviewable by a district court or any court because it is a exercise of the executive's prosecutorial discretion. And that these questions went to core Article Two powers of the presidency. One, one of those questions relating to national security matters because the government is claiming that this continued prosecution interferes with Eric Adams’ ability to respond to national security threats.

However, although Emil Bove noted in the motion that as an example of this, that Mayor Adams lost his security clearance upon being questioned about this by Judge Ho, he did admit that well, yes, it is within the president's powers to regrant security clearance to Eric Adams, but then he kind of had to backtrack and say, but our motion really doesn't hinge on this question of security clearance. There are other reasons he can't communicate with federal partners and that is why we want to dismiss this case.

Overall, we left the hearing without a decision from Judge Ho. He took it under advisement. And then earlier today, just a few hours ago, we got an order from the judge. He did not make a decision yet, but what he did do was appoint a, a friend of the court, an amicus to make argument in opposition or in a kind of more adversarial process on some of these issues. And that advocate that he pointed was Paul Clement. Paul Clement, for those who don't know, is-

Benjamin Wittes: My old friend.

Anna Bower: A very well known Supreme Court litigator, also has conservative credentials, he's-

Benjamin Wittes: Former solicitor general.

Anna Bower: Former Solicitor General held in very high regard amongst the Supreme Court Bar, but also especially amongst the conservative wing of the court. And you know, reading this order, there's, there's a few things that the judge wants Clement to address in, in briefing the matter.

One of, a few of them include, you know, whether or not the judge in considering this motion to dismiss can consider things outside of the motion. So for example, can the judge consider those memos or letters that were exchanged between Danielle Sassoon and Pam Bondi? Can the judge consider the resignation letter of Hagan Scotten, one of the prosecutors who worked on the case? That kind of thing is probably what he has in mind.

Under, you know, what circumstances could dismissal be granted with or without prejudice under Rule 48? And then if leave to dismiss were denied what would the effect of that be? You know, how would the procedure go from there?

So I think that, you know, it's, it's interesting that, that the Paul Clement choice is interesting. And I think actually very smart on the part of, of the judge. You know, for example, one of the amici who had actually actively filed into the case who wasn't appointed included Mark Pomerantz, who was there in court at the hearing. Emil Bove made a point to say that, you know, they opposed the filing of that amicus brief because they believed it was inappropriate to have someone who he called a quote partisan actor, you know, intervening in the case.

So I, I think that in terms of having a more adversarial process and having someone to argue these various issues it was smart of Judge Ho to appoint someone who seems to be a little bit more independent and especially if he assumes that this might go up on appeal in some way that, you know, it's Paul Clement who's doing it.

Benjamin Wittes: Yeah, can I, can I just tell you what I, how I read the subtext here and you tell me if you agree?

Anna Bower: Yeah, what did you think?

Benjamin Wittes: So, it seemed to me that Judge Ho, if you, if you read the transcript, or if you read Anna's account of the matter, which is much more readable, Judge Ho clearly believes that his discretion is extremely limited to reject this motion. And by the way, he's right about that.

The question is whether it's limited to this much or this much, like not at all. And so what he's doing is he's saying, I want somebody who's going to be able to anticipate the doctrine that the conservatives are going to adopt here to tell me whether I have this much discretion here.

If I have this much discretion, I maybe reserve the right to use it, but I want this to go up on the record of, I had Paul Clement look at this question for me. And Paul Clement said, I have this much discretion, which means if it's, if it's really obviously corrupt, or if Paul Clement says, even if it is obviously corrupt, you can't do anything about it, then don't ask me to try.

And I think that's smart. I think, I mean, I've known Clement for a long time. I think extremely highly of him. He's smart, rock-ribbed conservative. There's, I mean, don't, I don't want to kid anyone about it, but he's a first, first rate mind and a very, very able appellate lawyer.

And he's here, he's asked not in his capacity as a, as a judicial thinker, but in his capacity as, he's, a serious district judge with a serious problem is asking him how much latitude do I have with the subtext that if I have latitude, I'm going to use it. Tell me if I'm going to get slapped down by, you know, six justices who think like you.

And I think that's a perfectly respectable and reasonable thing for Judge Ho to do. And by the way, I think it's great that Paul Clement wants to be of service to the district court in that. I don't know, Anna, does that sound plausible to you?

Anna Bower: Yeah, I think that's right. Again, I want to stress that it was very clear during the hearing that Judge Ho agreed that he did not have much discretion here.

I do wonder, because I think it's actually kind of unclear the extent of his discretion to if both parties are consenting to this motion to dismiss without prejudice, if he can dismiss with prejudice in order to kind of nip the question in the bud of whether there's some kind of inducement or, you know, improper quid pro quo. That's something that I'm still looking into in terms of looking at the case law and all that.

But Roger, I'm, I'm curious what you make of all this, cause I know that you've been following it as well.

Roger Parloff: I thought he might be more aggressive than he is. That doesn't mean he's, he's not doing the right thing. A lot of people wanted him to hold some sort of hearing, a factual hearing. The three amici that were frankly inappropriately represented by Mark Pomerantz. I think that was bad optics to get him to be the lawyer having played this role in the, in prosecuting Trump.

But the three amici that he was representing were three U.S attorneys. And they were John Martin and Deirdre Daly and Robert Cleary, I think. And they were recommending that there needed to be more factual development. And apparently they thought that was plausible. And that, you know, I don't exactly see what having Paul Clement in there addressing relatively clear questions we could all brief without more clarity about the facts, how that is going to help.

Benjamin Wittes: I think the reason it helps is because there's two plausible answers to this question, at least as I understand the doctrine. One is the judge's only role is to make sure that there's no gamesmanship going on. As in, we unindict you today, we indict you again tomorrow, we unindict you. That's the clear role that the court does have, but that there's nothing else. Once it is satisfied that that's not going on, that's the end of the inquiry.

Anna Bower: Well, but I think what Roger is saying, though, that because the order, to me, does not contemplate at this point any further factual development. It is, it is just contemplating that Paul Clement will answer certain legal questions. And so I think, Roger, do I understand you correctly that you're saying that it seems like, you know, why not appoint someone who has the power to potentially do both? That would be unusual, of course, for an amicus, but it, it, is that, am I understanding you correctly?

Roger Parloff: Exactly.

Benjamin Wittes: But isn't that more of a special master role?

Roger Parloff: Well, I think that, you know, when Flynn you know, what, what's a litigating amicus, there's such a thing. I think, you know, Judge Emmet Sullivan tried to have, I forget who he appointed, but he wanted, I guess he didn't want him to, he didn't have to develop new facts. I can't remember, but I think it's more than briefing.

Benjamin Wittes: All right. I mean, look, my guess is that Clement will come in with a brief within the next few days that says you have no discretion here and Ho will follow that. I think if Clement comes in and says you have discretion in the following circumstances, Ho will then, will then, you know, have a hearing to develop the question of whether those circumstances do or do not exist.

I think he's just trying to figure out whether there is latitude at all. And I think that's perfectly reasonable.

Roger Parloff: You know, I just don't think that the facts, you know, if you have, you know, the fact that Adams is saying there's no quid pro quo, well, you have to believe Adams. You know, the structure of it is crystal clear. There's this thing hanging over his head. That's what makes it, you know, right or wrong. I don't understand that you you either accept that or you don't and I think that's the issue

Anna Bower: Yeah And I also will say to you I you know a lot of the news reports when this order came out were reporting it as though Clement had been appointed to argue against dismissal.

Benjamin Wittes: That's not correct.

Anna Bower: I don't think that's right.

Benjamin Wittes: Yeah. I read the order to appoint him to advise the court in a really not as a amicus with a position, but as, hey can you file a report on this question? Almost like he's appointed him as a clerk to write a clerk memo, but he wants. The clerk memo to be amic, a brief from amicus curie, Paul Clement appointed by the court.

Roger Parloff: That's what was confusing about the order because the first part of the order says it helps to have issues developed in an adversarial fashion. So I'm going to appoint this guy. And then it says he's going to write exactly what you said, Ben, a clerk's memo. So I was sort of, I didn't get it.

Benjamin Wittes: Well, if I know Clement, he will write a very thorough, relatively neutral summary of the state of the law and then have a very firm conclusion about what it means, so that it will give the judge everything he needs to know, but he's not a shrinking violet.

And if he doesn't think there's latitude, he will say, hey, there's no latitude. If he thinks there's latitude, he'll say these are the conditions in which there is. So I, you know, I, I think it's a complicated matter and getting a smart person to write your clerk brief for it is, particularly if you don't have confidence in your clerks is a great way to go.

Scott Anderson: I'm sure Judge Ho has great clerks.

Benjamin Wittes: I'm sure Judge Ho has great clerks too. And by the way, if you're a Judge Ho clerk and you want to come work for Lawfare next year, hit us up.

All right. Let us talk more about reductions in force especially mass reductions in force, those related to probationary filings. Scott we got a, we got a ruling on that this week, an order.

Scott Anderson: We did. It was not the ruling that I think most plaintiffs were hoping for unfortunately. We saw Judge Chris Cooper in the District Court for D.C., citing closely to an opinion issued by Judge O'toole last week that kind of lifted the TRO and denied a preliminary injunction in regards to the fork in the road memorandum on a very similar, similar logic, lifted the initial TRO and denied a preliminary injunction that was holding up a number of mass firings in particular of probationary employees in a number of agencies where those had not yet been implemented.

We know several agencies did have probationary employees get fired last week as well. His basic logic was very similar to what Judge Nichols did in the opinion I talked about in the USAID context, and with the O'Toole opinion, again, it comes down to Thunder Basin. The whole idea that these are employment disputes, fundamentally like-

Benjamin Wittes: I think you just like saying the words Thunder Basin, Scott.

Scott Anderson: It's a really cool sounding case, I'm not gonna lie. Yeah, I mean, I think I do like the case.

Benjamin Wittes: You have cited it now like eight times, and I'm just thinking you want to say.

Scott Anderson: And I'm going to for the next several months as many times as possible 'cause it's a great case sounding. Maybe not so much on the merits.

It is the same logic here that we saw Nichols pursue. Essentially these are damages cases. These people may be entitled to re, restoration of their role. At the end of the process, maybe they'll get money back. We have a process for this, and the fact that these are tens of thousands of complaints all happening at once doesn't change the fact that Congress laid out a process for this.

Again, I don't think district court judges have to reach this conclusion. I'm not sure I agree with it, but I'm not surprised by it. Because among other things, it's the number one vehicle to avoid the much harder constitutional and broader legal questions that are being implicated by these plaintiffs.

Instead, you get to say, nope, Congress has already addressed this and shove it into this administrative process. I'm not sure it's wrong either, necessarily. It's just a predictable way out by the conventional small c conservative judicial instinct, and this is the third judge in a row we've seen do it, and I don't think it'll be the last.

Benjamin Wittes: All right. Roger, let's talk about other presidential firings, these of the non mass variety specifically those related to the heads of agencies in a fashion that, you know, maybe begs that whole Humphrey’s Executor question.

Roger Parloff: Yeah, we have five major firings or groups of firings.

I think everyone will agree the, the person who's in the weakest position is probably Hampton Dellinger. He was a head of the office of special counsel and he's called a special counsel. And that's not you know one of the special counsels that we're familiar with. It's a specialized office that deals with protecting whistleblowers and some other matters.

He was fired summarily with no statement of reasons. The statute for all of the people were, well, most of the people we're going to talk about, the statutes say you can't be fired without cause, I don't have the exact language, neglect or neglect of duty and two other two other things. So he sued and he won a, a quick TRO from, a temporary restraining order, from Judge Amy Berman Jackson in Washington.

I say his case is weakest because there are a couple pretty recent Supreme Court cases that suggest that or they say that the head, a single head when you head an agency and you're the only one, it's not a board, pretty much if the president appoints you, he can get rid of you and, and, and he doesn't need cause.

And this is part of this unitary executive concept that the president has pretty much enormous power. Judge, judge Jackson was able to distinguish the, his situation because the key precedent, Seila Law does, you know, cabin out the office of special counsel and says, well, we're not deciding that today.

And so there is some, and also there's a, there's an old office of legal counsel memo in the, in the DOJ that suggests that OSC is special. But anyway, the, the, the Trump administration is raring to get that up to the Supreme Court. They appealed even when Jackson just issued a, an administrative stay, which for like 24 hours while she got her bearings, they appealed that, that was dismissed as non appealable.

Then they appealed the TRO, that was denied by a two to one margin. There was a dissent already. And now that's at the Supreme Court seeking to dissolve the TRO or to get an administrative stay to, to, to stop the TRO.

Benjamin Wittes: And the Supreme Court hasn't shown its hand on that, right? It's, it just hasn't done anything with it yet.

Roger Parloff: Not yet. Yeah. The D. C. Circuit was two to one. And so the one was Judge Katsas, who was a Trump appointee, and, and he's a, he's sort of a good barometer, in my humble opinion, of what the conservatives on the Supreme Court think. And he was, he's so sure this is wrong. He, he was willing to overturn a TRO, which, like I say, is not normally appealable at all.

So, and it's just a matter of waiting 14 days, you know, for the, for it to turn into a preliminary injunction hearing. So, anyway, that one's going forward on two paths. It's before the court, and it will also go to a preliminary injunction hearing on February 26^th. And if she turns the TRO into a preliminary injunction it will definitely go up, and it's not the strongest case, like I say.

The next furthest along is Cathy Harris, who was chairman of the Merit Systems Protection Board, Board. She was fired in exactly the same way. No pretense of cause, and she's entitled to cause by statute. That one's stronger. And the TRO there by Rudolph Contreras here in New York has been appealed also. And I think that's at the D.C. Circuit now seeking both vacator of the to get rid of the TRO or simply at an administrative stay while we're waiting for a ruling on that.

There's two more of those cases very similar to Kathy Harris’s, one involving an NLRB member, one involving an FLRA member. I think that's Federal Labor Relations Authority. Then there's an interesting case Storch v. Hegseth which is in front of Judge Anna Reyes, and that's eight of the 17 inspector generals who were dismissed en masse on January 24th, also without cause. Their situation is not so clear to me.

That's an interesting one. Congress there says to fire an inspector general, you have to give notice to Congress and give the statement of reasons to Congress. And then there's a pause and Congress gets to try to convince the president to change his mind. But you don't actually have to give good cause in the sense that you would with these other people. The reason doesn't have to amount to cause. And I think that's due for a preliminary injunction the week of March 10th. I don't think it's been set yet.

Benjamin Wittes: So this isn't a good cause requirement, it's just a notice and wait requirement?

Roger Parloff: Yeah. And so, you know, it's relatively easy to comply with if, you know, if Trump was willing to do that, but he's really making a point. I am all powerful. I'm going to test everything, unitary executive. And eventually I think he's going to be, you know, testing this with, well, I guess he's already testing it with civil servants. Anyway, that's, those are those.

Benjamin Wittes: All right. Let's talk about transgender service personnel who he also wants to fire on a mass basis on just a not, you know, by adopting a policy that they can't serve. What's the status of that litigation?

Roger Parloff: Yeah, this was an executive order, January 27, called Prioritizing Military Excellence and Readiness. Basically, he, he banished transgender troops in the military. It's been challenged by seven active duty transgender soldiers. And at this point we have some very accomplished transgender soldiers.

We have people that have been in service for 12 years, 15 years, people with bronze stars, deployments, commendations. So, it's an impressive group of plaintiffs that you, you know, would not want to try to explain why they are not fit for service. And I'll read the order because it's important. The language of the order is part of the problem.

It says “the medical, surgical, and mental health constraints of individuals with gender dysphoria dot, dot, dot, and the use of pronouns that inaccurately reflect an individual's sex dot, dot, dot, are inconsistent with the policy of the U.S. government to establish high standards for troop readiness, lethality, cohesion, honesty, humility, uniformity, and integrity.”

And then elsewhere, again there's some highly personal attacks. “Adoption of a gender identity inconsistent with an individual's sex conflicts with a soldier's commitment to an honorable, truthful, and disciplined lifestyle. Even in one's personal life, a man's assertion that he is a woman and his requirement that others honor this falsehood is not consistent with the humility and selflessness required of a service member.”

So anyway, it's being challenged under the Fifth Amendment as equal protection. We, we, we place in a, the federal equal protection we, we place in the Fifth Amendment, though it doesn't really say equal protection there, either on the basis of sex or on the basis of what's called a quasi-suspect class, or on the basis of animus. You're not supposed to make distinctions based on, quote, a bare desire to harm a politically unpopular group. So that's very much in play here.

The defense, the main defense is that you know, this is a an order from the commander in chief and judicial deference is at its apogee when policy concerns the composition of the military. So that will be a non trivial. And also this thing will be implemented formally. It the EO takes 30 days, gives the Army or the other services 30 days to give guidance, to implement it. I'm sure the implementation will not be as, the language will not be as over the top. It'll probably be more careful. So maybe the animosity animus will not be so much a factor and the the discretion given to the president is enormous.

She did hel-, she's in the middle of a preliminary injunction hearing. Basically, she had two days this week. She'll have another I think March 3rd And she's obviously highly skeptical. It was you know, she, she's expressive, she, she likes to cross examine people, and she was pretty tough on, on the Department. She found it frankly ridiculous, the notion that pronoun usage could affect military preparedness.

I think she's also going to attack some of the notions about the EO says there are only two sexes and she was talking about an enormous amount of biological acceptance and consensus that I mean, you know, not everyone has just either two X chromosomes or an XY chromosome. You know, there's, there's other phenomena, there's, and, and so she's she's going in that direction as well.

So, that's where that stands. I would just caution that we sort of went through this in the version of this in the first Trump administration. And, you know, you got four quick preliminary injunctions, but as you go up the court system, it gets tougher. So we'll see what happens.

Benjamin Wittes: All right let's move on to DOGE challenges of which it has been a busy week. Anna, get us started. Tanya Chutkan, back in our radar screen. She, we've missed her for the last several months.

Anna Bower: She's back and she's once again dealing with Appointments Clause issues. If, if folks remember during Trump's trial they raised Appointments Clause issues related to Special Counsel Jack Smith, both before Judge Chutkan and Judge Cannon with two different outcomes there.

But now we have an Appointments Clause challenge that is before Judge Chutkan related to the power of Elon Musk and DOGE. And Judge Chutkan at this initial phase had a motion for a temporary restraining order before her on, on the Appointments Clause issue. She held a hearing, or actually I believe it was two hearings. I didn't have a chance to go to the first one, but I did listen in to the second one.

It was on the issue of the TRO. During that hearing you know, she, I think like many people, not just federal court judges who are presiding over these cases was very frustrated by some of the lack of facts related to what DOGE is actually doing, what Elon Musk is actually doing, what his employment status statuses.

So she asked the parties in the case to clarify in a declaration or a notice what is Elon Musk's employment status? And then also how many employees have been terminated within the federal government? Because there were some discussion allegations related to that in the plaintiff's claims.

You know, the next day, the Justice Department filed a declaration of a White House employee named Joshua Fisher. They also filed a notice. And in that notice, the Justice Department said that they were not prepared to make representations about how many employees had actually been terminated. And then they also in the notice and then as well in Fisher's declaration made representations in which they claim that Elon Musk actually is not an employee of DOGE and he is not the administrator of DOGE.

The administrator, as we know, is, is, is in a position that is you know, set out in these executive orders because the executive order is-

Benjamin Wittes: Who is the administrator, Anna?

Anna Bower: We don't know who the administrator of DOGE is, still to this day.

Benjamin Wittes: Are you the administrator?

Anna Bower: It could be anyone, Ben. Are you the administrator?

Benjamin Wittes: I can say here that I am not the administrator, because if I were the administrator of DOGE, I would have to disclose that in my board member role at the Lawfare Institute. I have made no such disclosure, therefore I am not the administrator.

Anna Bower: Roger, are you the administrator of DOJ?

Roger Parloff: Nobody has linked me to DOGE.

Anna Bower: Well, anyway, -

Benjamin Wittes: Notice that Anna has not answered the question. She, she immediately turned it around on the two of us. She's been tweeting about it for the last several days about who the, but she has never denied. She will not answer straight questions about whether she is the administrator.

Anna Bower: Maybe I am just deflecting. This is all part of the plan that no one would suspect me if I am the prime instigator of asking questions about.

Benjamin Wittes: Notice again that she did not answer the question.

Anna Bower: Anyway, back to this declaration of Joshua, Joshua Fisher, he says in the declaration that Elon Musk is not the administrator of DOGE, that Elon Musk has no more authority than, than any senior advisor to the president, which is what Elon Musk apparently is.

And that he's not within DOGE, he is within the White House Executive Office of the President. And then of course, DOJ's notice to the court about this says Elon Musk has no more authority than anyone else and he doesn't work for DOGE. And, and so it kind of left everyone, you know, thinking, well, if Elon Musk isn't in charge of DOGE, then who is, hence the, the questions that we've asked here today about who the administrator is.

And then two days later, of course, Trump says I put Elon, one of the first things I did was put Elon Musk in charge of DOGE. So there's very much this element in which the administration's public statements seem to be somewhat inconsistent with the, inconsistent with the representations that the Justice Department and officials are making in court.

All of which is to say that the day after DOJ filed this notice and declaration, Judge Chutkan then issued an order in which she denied the plaintiff's motion for a temporary restraining order. She found that they had not showed irreparable harm in a way that was sufficient for her to grant a temporary restraining order.

You know, she mentions in the order that a lot of the statements by the plaintiffs and their declarations are kind of mentioning like hypothetical harms if DOGE did this. And I think one reason why much of those a lot of those statements are more hypothetical is because the plaintiffs have not been able to ascertain exactly what it is that DOGE is doing And then Judge Chutkan says however the, there is a colorable claim, Appointments Clause claim. And she, she suggests, heavily, I think that she believes there's some substance to this complaint to this idea that Elon Musk is, is wielding, and DOGE is wielding too much power in violation of the Appointments Clause. So the TRO is denied.

I will also mention that in that same order in a footnote, in response to the notice and declaration filed by the Justice Department she says to the Justice Department directly, counsel are reminded of their obligation to make truthful representations to the court. So kind of a warning shot there from Judge Chutkan to the Justice Department. But Roger, did I miss anything? What, what did you make of all this?

Roger Parloff: No, I think that was that was exactly it. Just to, to, to, the crux of the defense to the Appointments Clause claim is that neither Musk nor DOGE is actually exercising authority. All they do is exercise influence. They advise, and then sort of coincidentally everyone follows that advice.

And, and it, it was sort of in that context and, and actually quoting one of the more recent EOs, executive orders, you know, that gives DOGE powers to, they, they must be consulted on certain hiring and firing decisions. She just thought that was not sustainable.

Benjamin Wittes: Yeah, and just to be clear, there is a record of whether DOGE is ordering agencies to do certain firings or whether DOGE is doing it, is advising them, right? There's emails that are being sent from these little DOGE kiddies to other people where they're either providing advice or they are ordering people around.

And eventually that stuff is going to get discovered. And whether DOGE is exercising executive power or exercising influence on the president or his advisors is gonna like that's ultimately an empirical question.

And it's an empirical question that I doubt very much that these little, that what's his name? Big Balls. Is that, is that the guy's name? That I doubt he's like listening to counsel carefully before he, you know, writes emails decimating the federal government. Just a guess there. I, I mean, maybe Big Balls is consulting very carefully with counsel, but I just have this feeling that he's not.

Anna Bower: Yeah, and I'll mention to that in that, you know, they're at least one of the DOGE cases is there is a request for discovery at this stage including who is in charge of DOGE. So, so we may very well-

Benjamin Wittes: Is that discovery request made by you?

Anna Bower: I wish, maybe I should file a motion to intervene. But so, so we may, we may get some answers here at some point soon regarding who is in charge of DOGE. But you're right, Ben, that these are empirical questions that with further factual development, it seems will be answered.

Benjamin Wittes: Yeah. And just to be clear, the you know, this is actually an area where some of the Supreme Court conservatives are going to be, you know, pretty hard line, right? That or at least their doctrine would seem to be hard line, right? That if you are, if you have the power to hire and fire, if you, then you are exercising executive authority, right?

That is, if you have the power to direct the way the executive function is, is operated, then you are exercising executive authority. And so these empirical questions become really, really important.

Now, if you're whispering in the president's ear, you're like, Mr. President, I think you should fire Roger Parloff. Mr. President, I think you should hire Anna Bower. That's advice. But if you're issuing the order yourself, You don't get to say I'm just an advisor. And so I think what these guys have done is going to matter a lot.

Anna Bower: Can I just mention one more thing on DOGE before we move on? We are still waiting for an order from Judge Vargas who held a preliminary injunction hearing in New York on a different DOGE suit that doesn't relate to the appointments clause. That's one of the suits that relates to the APA and a number of different, the Privacy Act and, and various statutory, constitutional claims related to DOGE's access to systems.

In that case as well there was a motion to amend the consent order that the party's entered into regarding access to the Treasury system. If folks recall Marko Elez, the internet troll who posted racist tweets that were uncovered by the Wall Street Journal, left the Treasury Department and no longer as far as we're aware has access to it.

And the order only allowed Tom Krause and Marko Elez to have access to the system. The parties then amended or asked to amend the order to allow a Treasury employee named Ryan Wunderly to have access instead of Marko. So that was granted but we're still waiting for the PI order.

Benjamin Wittes: All right, Roger, we have a number of other DOGE challenges. One in front of Judge Moss, Anna just mentioned the, the, the Judge Vargas challenge. So what, what other DOGE issues are, are, have seen action this week?

Roger Parloff: Yeah, well, and, and as she said, the basis for most of these are that, you know, the DOGE people are getting access to the most sensitive data systems in various different agencies. And so, most of these cases allege Privacy Act violations and some allege internal revenue code violations.

This is the fact that on allegedly unauthorized people are looking at your social security numbers and things like that. One of those cases was one involving DOGE inside the Department of Education. That was in front of a very good judge named Randall Moss. And he denied the TRO and the reason that he gave is, is a fairly damaging one to, to all of these cases, I would say, if it's if it's followed.

That in turn, at least at the TRO stage, that he said, mere access to data by government employees without formal authorization without public dissemination would not amount to irreparable harm. And you can't get a TRO or a preliminary injunction without a showing of irreparable harm. So, that coming from a very good judge is a potential problem.

There's another case being there was a TRO today in Alexandria, Virginia. That's EPIC v. OPM. Epic is a privacy group. That's focusing on Privacy Act, but also sort of notions of that that this amounts to an enormous cyber breach with, with enormous risks That one was I believe was taken under advisement.

There was one involving the labor, Department of Labor, and I think several other agencies, HHS and CFPB, I think. That one's in front of John Bates, another good judge. He also denied a TRO, but that was an interesting ruling. In the course of it, he definitely had serious concerns about privacy. But he grappled with this problem of what is DPGE.

And, you know, when you're sending, the, the sort of simplified version, it's complex, more complex. But, you know, if you look at the original EO for DOGE, it's supposed to be that DOGE has these special government employees, and they detail them to all these different agencies. And what he was saying is that only an agency has authority to detail somebody to another agency.

This all matters in terms of whether you're violating the Privacy Act. If it's, it's not a violation of the Privacy Act if an agency employee with a need to know looks at your data. And so all of these people are claiming to be agen, agency employees, even though they're parachuted in from DOGE. And Bates, although he denied the TRO got frustrated with this.

And he called DOGE a Goldilocks entity that pretends not to be an agency when agency would be burdensome and pretends to be an agency when that would be helpful for it. And so, although this was a negative ruling, he found it to be an agency for a certain purpose in that case. And that means if it is an agency, it's, it's subject to a lot of other statutes-

Benjamin Wittes: Like FOIA to begin with.

Roger Parloff: Yeah. And so today or yesterday, actually, we had an FOIA suit filed by CREW, the Citizens for Responsibility and Ethics in Washington and a preliminary injunction. And they're relying in part on Bates's ruling that it is an agency. So it's another attempt to to try to get some transparency.

There's two other, quickly, DOGE cases. In Treasury, Anna mentioned one that's New York v. Trump in the Southern District. And the other was one of the first ones we talked about.

I think it's called Alliance for Retired Americans v. Bessent. It's here in D. C. in front of Colleen Kollar-Kotelly. And there was a consent order back on February 6th, keeping basically a standstill order, and that will become a preliminary, we'll have a hearing on preliminary injunction February 24th.

Benjamin Wittes: All right. Let's talk about that federal funding freeze, Anna the one that's not about the USAID, the one that's about the rest of the government. What's going on with that?

Anna Bower: This is about the OMB memo that was kind of this categorical federal funding freeze that the White House then said that it rescinded, but it seemed to not actually rescind. And Judge McConnell, in a suit that was filed by several states in Rhode Island issued a temporary restraining order because I, I can't remember the exact wording, but it was something that the effect of the memo continued. And so, temporary restraining order was issued. This is one of the TRO’s that they tried to appeal up to the First Circuit, I believe. And then the First Circuit sent it back down, rejected the idea that it could be appealed.

Judge McConnell then held a hearing today at the preliminary injunction phase. We actually had to cut out early on that, on listening to that hearing because we then joined this live stream. But Roger, what did you make of that hearing? I, I think that you listened to much of it, although there were some technical difficulties that we were having with getting access to it.

Roger Parloff: There were technical difficulties. And he didn't, he didn't ask many questions of the defendants. He asked one which was skeptical, but it seemed to be, I, I thought it was adequately answered. So I, I don't, I, I really can't read him. That case you know, is parallel to another case here in D.C. Which was also the same subject, basically, in front of Judge Alikhan, Lauren Alikhan, and, National Council of Nonprofits, and she held a hearing yesterday as well and I would say that she sounded fairly receptive.

The theory is that these massive stays on. And as Anna said, there was this OMB directive 2513, and then there was a administrative state entered against it. And the next day OMB purported to rescind it, but Caroline Leavitt, the press secretary said, don't worry, it's not really rescinded, you know, or words to that effect. And everyone needs to continue listening to the EO that, that that directive was implementing.

And the, the issues are separation of powers, that it violates the Appropriations Clause, the Purpose Act, the Impoundment Act, and also the Administrative Procedure Act for arbitrary and capricious agency action. So, I thought that that one sounded pretty promising. I couldn't read the what was going on with Chief Judge McConnell today.

Benjamin Wittes: All right. Let's go on to our penultimate subject which involves the various FBI cases. Roger, what's the status of that?

Roger Parloff: That is sort of in a holding pattern. This is before Judge Jia Cobb, and she set a preliminary hearing out. Well, she got a consent order, meaning to sort of a standstill order. And she sent the set the preliminary hearing for March 27th. So it's much later than all the others. The plaintiffs are now seeking some discovery. I don't know if they'll get it, but those are the two suits there.

One is a class action, a putative, it would like to become a class action. And the other is by the FBI Agents Association, and that's basically to make sure at this stage, it's to make sure that their names aren't released. They had to do this survey about whether they are their role in the January 6th investigation. They're worried that there'll be, there'll be outed and doxxed and as some of their members have been. And there's physical threats. Obviously, down the road, they're worried about being terminated as well.

Benjamin Wittes: Speaking of terminated, there's also a preliminary ruling in the Massachusetts funding of NIH stuff case. This is kind of at the margins of our issue area set, but do either of you have any information about that?

Roger Parloff: There was a hearing today again in Boston at 10 and I believe it was taken under advisement. I, I, I forget if that's a PI hearing or I think it's a PI hearing, preliminary injunction, and this was over that 15 percent cap on funding to NIH., but my, my knowledge here is very thin.

Benjamin Wittes: Finally, we've got 12 minutes left and one big issue area to cover, which is immigration. There's a whole lot of activity in that space. We got birthright citizenship stuff. Roger, what happened in that?

Roger Parloff: I'm gonna be something has to give when you're trying to follow this many cases and something has given, I do believe there are at least three PIs right now, preliminary injunctions on birthright citizenship, and I assume some are on appeal, but-

Benjamin Wittes: I think one of them is set for oral argument.

Anna Bower: I think an issue area that we missed that Roger has been following is the CFPB stuff. So I, Roger, I don't know if you want to chat a little bit about that, but I, I understand that you've been following that.

Benjamin Wittes: And when I said we had one major issue to area to cover and it was the immigration space, what I meant was we had one major issue area. And when I say immigration, that's really Finnish for CFPB. And so, Roger, what's going on in the CFPB case?

Roger Parloff: There's actually a couple. There is one here in front of Judge Amy Berman Jackson. And we're gonna have this is to prevent the dismantling of CFPB. Separate, it's the theory is separation of powers. Congress created this thing. The executive should not dismantle it without Congress's involvement.

And also I think APA, the Administrative Procedure Act, arbitrary and capricious action, action beyond statutory authority. There, there is a TRO, no, there's a consent order in the D.C. case as of February 14 and an upcoming preliminary injunction hearing on March 3.

And Judge Jackson we can be sure is on this because she asked to be provided with four emails that had been linked to in the footnotes, but the links didn't work. So we know she's, she's looking at the details. These were in a plaintiff's brief or in various plaintiff's documents.

So, and then there's one in Maryland, Mayor of Baltimore v. Vought. Same sorts of things. And I think we had a consent order and an up upcoming preliminary injunction, February 26th.

Benjamin Wittes: All right, and while we have been talking Judge Carl Nichols has dissolved his TRO in the USAID personnel case. And so that seems to, I have not read the order yet, which is apparently 26 pages but it seems to clear the way for you know, the move to place a large number of people on leave or terminate them.

Roger Parloff: That was a Thunder Basin ruling.

Benjamin Wittes: It was a Thunder Basin ruling, which Scott will be thrilled about. We have a few questions. Josh asks my usual question, or spin on it. Will E. Jean Carroll ever get paid? When and how much? We don't do predictions over here. Those appeals are proceeding and we don't have an update on those.

Roger Parloff: I think the second one is fully briefed and the first one was upheld. The 5 million was upheld, and the second one's being briefed.

Benjamin Wittes: Elaine asks, some of the J6 cases were dismissed without prejudice with the D.C. District judges, such as Judge Howell, explaining why they dismissed without prejudice. How does this compare to this issue with prejudice or without prejudice in the Eric Adams case.

So very briefly and Anna, you watched this so if, if you feel free to jump in, if I'm missing anything here. But when you dismiss a case without prejudice, it's possible to file it again. If you do that for a corrupt reason, as in to dangle it over the defendant's head to make him comply with something or to shut him up or to, you know, that's really, really unkosher.

If you do it for a legitimate reason, for example, the current administration does not want to pursue these cases, but we want to preserve the ability of the Justice Department if new information comes in or if there were a change of policy to bring the case again. Or maybe we think the, the evidence is inadequate right now, but we don't think the guy's innocent. So we want to preserve the option of bringing the case again. That's a perfectly legitimate reason.

So for example, the Justice Department or the special counsel's office moved to dismiss the cases against Trump without prejudice on the theory that maybe some future Justice Department they can't bring you it now because he's president, but maybe some future Justice, Justice Department would want to bring them again. Those are legitimate considerations, and so it's highly context dependent.

Lawrence asked does today's SCOTUS decision in Williams v. Reed signal anything about how the justices may ultimately view any of the claims by USAID or any other government agency or contract employees being laid off, fired, or having funding yanked and being forced to go all the way through administrative processes, acknowledging that this decision is in regards to state administrative processes rather than federal?

Let me confess that I have not read this Supreme Court opinion yet and have no opinion about what it may or may not portend.

All right. Alex asks, is there any basis for agencies to decline to fire staff if they believe the firing to be illegal rather than making fired employees sue to get their jobs back?

So this is, of course, what happened in the Saturday Night Massacre and in the case the other day, which is there is no basis to defy a presidential order that is lawful, right? If you think the order is unlawful you can resign rather than carry it out. Or if you think it's lawful and you don't want to do it, you can resign rather than carry out.

But if the president is entitled to do it, then he's entitled to have somebody do it. And that's, I think, the part of the unitary executive theory that basically everybody agrees with. And so the question comes down to, does the president have the authority to fire this person? If he does he has the authority to have somebody carry out that order, which is why eventually Elliot Richardson prevailed on Robert Bork to carry out the order in the, the firing in the Saturday Night Massacre.

It's also why eventually a group of people in the criminal division you know, got around the table and agreed one of them was going to drop the case against Eric Adams. These are very, very uncomfortable decisions, but, you know, the presidency is an enormously powerful institution. Do either of you have stuff to add to that?

Anna Bower: No, but I do want to, because I saw someone mention this in the chat. I do want to ask if Roger, since we have two minutes, can give a one minute synopsis of the expanded January 6 pardons, the seeming policy, the parent policy change on that issue.

Roger Parloff: Yeah, they flipped back and forth. A lot of these People well, one common scenario was you were being arrested for January, something you did on January, remember, nobody, almost nobody was arrested here at the Capitol. So FBI had to go out and arrest them at their homes in 48 states, basically, maybe 46. And sometimes when they arrested them, they found illegal weapons, grenades, illegal guns short handled rifles and unregistered weapons, or if they had prior felonies, you know, they weren't supposed to own weapons.

And so, they had a case at home, in their home state, in addition to the January 6th case. And now they're saying, well, you wouldn't have found my gun unless, but for January 6th. So this crime is January 6th related and at first they said forget about it, that's crazy. And now they've said no, yeah, maybe we're gonna we're gonna dismiss those too.

The real question is what's going to happen to a guy named Kelly? I think it's, I don't want to get his name wrong, but he's the one who he's a pretty serious January 6th guy, he came in the window, the first window the Senate wing doors, and then helped kicked out that door to allow the crowd to flow in.

And then I forget exactly if he was on bail, but he began plotting to murder FBI agents about maybe 11 or 12 had a list had a colleague and he was arrested and convicted of that. That will be an interesting one. I can't quite believe they're going to call that, I mean, it's January 6th related, but I can't quite believe they're going to give him a pardon. Let the pardon reach him.

Benjamin Wittes: All right, guys. I leave you with the following prayer. May all your crimes be deemed January 6th related. It's the magic ticket. Just link it back to January 6th and you're golden. Look, guys, we're gonna be back next week. Thank you to Roger. Thank you to Scott. Thank you to Anna for this roundup. We will be back.

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