Lawfare Daily: The Trials of the Trump Administration, Feb. 28

[Intro]

Anna Bower: And so there's this accountability and oversight issue. It's very similar to the argument that was previously made before Judge Cannon, ironically by Trump's defense counsel in his criminal cases.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittes, Lawfare's editor in chief, here with Lawfare senior editors Anna Bauer and Roger Parloff, and Chris Mirasola, assistant professor of law at the University of Houston Law Center.

Roger Parloff: The main theories are separation of powers and the, alternatively, it's arbitrary and capricious agency action, violating the Administrative Procedure Act.

Benjamin Wittes: In a live recording on Feb. 28, we discussed litigation challenging the executive actions from the Trump administration: the foreign aid freeze, the detention of migrants at Guantanamo Bay and the firing of probationary employees across the federal government.

Chris Mirasola: It's, it’s, it's going to be pretty boring at the Supreme Court as well. I, I can't imagine, the Chief Justice, Justice Barrett getting behind some of the legal theories that we've been seeing.

[Main podcast]

Benjamin Wittes: Hey folks, welcome to this week's Lawfare Live. I'm Benjamin Wittes, editor in chief of Lawfare. I'm here with Roger Parloff, senior editor, we'll be joined by Anna Bower, senior editor. And of course, we are joined today by special guest Chris Mirasola, contributing editor of Lawfare, professor at the University of Houston.

And we got a lot to talk about because one thing that is not slowing down are the trials and tribulations—not criminal trials this year, of course, or criminal tribulations, but the civil trials and tribulations of the challenges to Trump administration executive actions.

So let's get right into it. Roger, we had two cases reach the Supreme Court this week and we have real resolutions on neither of them. But let's start with the one that's right there now, which is one of the aid freeze cases. What's going on in the challenge to the U.S. aid freeze that is now at the Supreme Court?

Roger Parloff: Yeah, this one, it, it, it, in the lower court it was called Global Health Council v. Trump, and a second case that's, it's consolidated with, AIDS Vaccine Advocacy Coalition v. I think Trump, and now the captions probably reversed because it's up at the Supreme Court. And it's in front of Judge Amir Ali, a Biden appointee.

And so the plaintiffs below just filed their response in the Supreme Court, and I'm not sure if we're going to get a reply. I, I, I imagine we will, but it's, it's obviously moving exceedingly quickly. This is—he entered a TRO, the judge —it's an extremely odd procedural posture—the judge entered a TRO on Feb. 13. And then he had the defense file a status report. And it, it, it basically said, you can't have this blanket freeze on USAID foreign funding. You need to lift that.

So four days go by and they file a status report, maybe five days, and the status report indicates that not a single funding has been resumed. And, and the reason given is that they found, oh, we thought, we found other contractual provisions that allow us to, to, terminate these. So we thought that wouldn't violate your order. And he said no, you can't possibly have gone through 10,000 contracts and determined in an individual fashion which were appropriate and which were not. This—you need to suspend the blanket freeze and if there's some particular problem with one, yes, you can cancel it.

Anyway, then there, that was followed by a motion for enforcement because nothing changed again, and it was followed by another motion for enforcement, which was granted and then a motion to clarify, and a lot of stalling.

And finally, there was, I think on the 25th, an order of enforcement that said, look, you need to pay this. You need to start paying by tomorrow night by 11:59 PM. And, at that point, the government appealed, simultaneously to the D.C. Circuit and the Supreme Court.

So first of all, TROs aren't supposed to be appealable. And they didn't appeal the TRO. They appealed the order enforcing the TRO, which most people think would also not be appealable. and, and, and so the D.C. Circuit thought that, and they said they dismissed. There's no, you know, once you get to the preliminary injunction phase—and we're not far off from that, he's held a preliminary injunction hearing—we're gonna get to, he's gonna rule as fast as he can.

But anyway, it went up to the Supreme Court and, Judge, Chief Judge, Chief Justice Roberts stated, an administrative stay, which doesn't mean a whole lot. He had like four hours until maybe less than four hours before midnight. So that's what they often do, when there's just no time to, do the briefing and, and to get it to the full court.

So that's where it stands. It's a very confusing posture. The government is raising new issues at the Supreme Court that were not raised in front of Ali. including a sovereign immunity claim. So it's quite complex. It's very hard to predict what will happen with that one.

Benjamin Wittes: And I, I mean, I find it—and I should, as I always do when we talk about this case, disclose that, my wife runs an organization that is extremely directly affected by this litigation and by the underlying freeze and, so, I'm, I'm going to refrain from expressing any view of it—but I, it seems to me this would be a very unusual posture for the Supreme Court to get involved. Is that fair to say?

Roger Parloff: That is fair to say. I don't think they could find a whole lot of, precedents about this posture at all.

And if you think about it, I mean, what the plaintiffs were arguing was that suppose, you know, what the government is seeking is a stay of the order enforcing the TRO. And if they got that, they would still be under obligation to fulfill the TRO, which the judge says you're not fulfilling.

So it's sort of, it's an odd thing. So unless they reach out and say, you know, something with pretty far reaching consequences, that does seem like the safer thing to do.

Benjamin Wittes: And then just hypothetically, let's say they were to not intervene, given the weird procedural posture, then presumably Judge Ali's order—what happens? It then goes into effect, or–?

Roger Parloff: He's working, we're close to a preliminary injunction ruling from him. So that would be appealable.

And, and then you would, you know, you would look at this in, in the more normal way is, is there really a, you know, the finding, the findings are about is there irreparable harm? Is there standing? Is there, is there a likelihood of success?

And the, the, the main theories are a breach of separation of powers and, and, because the, basically, the allegation is that the Trump administration is dismantling the USAID, or, or defunding it, when the Congress has, created it and funded it, and they're not involving Congress. Alternatively, it's arbitrary and capricious agency action, violating the Administrative Procedure Act. Those are the theories.

And then, so, you know, you would have a more conventional ruling on the merits, whether those cases are made out.

Benjamin Wittes: So this is actually the second court to reach this, case to reach the Supreme Court this week, tell us about the first, which is also in a strange procedural posture.

Roger Parloff: Yeah, Trump fired a number of heads of independent agencies and, one of them was Hampton Dellinger, who runs a small and unusual office called OSC, Office of Special Counsel—has nothing to do with the Jack Smith kind of special counsel—and it's an office that has several–.

Benjamin Wittes: That's the SCO, not the OSC. If the office goes in front, then it is the Hampton Dellinger and they're responsible for protecting whistleblowers. If the O goes at the end, then it is an office that investigates President Trump.

Roger Parloff: And so there's a number of these offices where Congress created the, the entity and, and provided that the head of it, or the heads of it—often you'll have a panel that is the head of it, like the NLRB or something that which is a board, the National Labor Relations Board—but, there were a few that have a single head and this is one of them and Hampton Dellinger is the head.

And, in 2020, in a case called Selia Law, the Supreme Court said that—that case involved the Consumer Finance Protection Board—said that you can't have a single head of an independent agency that, you know, the president appoints, but he can't get rid of at will. Congress provided that you could fire him, but only with cause, for cause. I forget the particular—something about negligence, and, two other categories.

And Trump very clearly fired him without cause. So he's relying on that ruling and also a ruling the next year involving the head of the Federal Housing Finance Authority, which was set up the same way and came out the same way. So frankly Trump's on pretty good grounds on his, in this case, on the merits.

The, the, the basis for, objecting is that in Seila, or in, in at least one of those cases, they did specifically carve out OSC and say we're not deciding that one. That's a little that's there are some special issues there. We're not deciding.

And it is a situation where it really can't perform the function that Congress intended if if it can be removed by the president it's there to, for whistleblowers who are probably ratting out, you know, something was wrongdoing within the executive branch and something the president might not want to be reported.

So, it's, there is a good faith basis for distinguishing it and Judge Amy Berman Jackson granted the TRO and it was immediately appealed as a TRO. And I said, as I mentioned, TROs are not appealable. The D.C. Circuit dismissed saying it's not appealable, but, one of the judges, the conservative judge, Katsas, a Trump appointee, dissented, and then it went to the Supreme Court, and now I'm getting mixed up with the other, the other case.

So I, it has been held, it was held in abeyance, with two dissents. Gorsuch and Alito who, who, would have reversed. They, they felt that, you simply can't, enter an injunction against a president.

Benjamin Wittes: Firing this person he doesn't want to work with.

Roger Parloff: Yes, you can't force the president to rehire somebody he doesn't want to work with.

And Katsas has, had a slightly different theory; oh yes, his, his theory was that it might have been similar to that, but he also had a theory that after the Trump immunity ruling that whenever you intrude on an executive to on an article to executives. core powers, it's immediately appealable no matter what, no matter what posture.

So those are, those are broad, new doctrines that are floating around that, that, we could hear more about. So ,anyway, judge—the abeyance is while Judge Jackson decides whether to convert the TRO into a preliminary injunction hearing. And–

Benjamin Wittes: In other words, it's like, wait for you to follow our precedent so that we can reverse you?

Roger Parloff: Yeah. And so, she is planning to get a ruling out. She had a hearing on, this week on the preliminary injunction and extended the TRO till tomorrow. So she will presumably rule by tomorrow.

Benjamin Wittes: All right, let's shift gears, and Chris, let's talk about the Guantanamo cases. Which I have to say, whenever I say that–

Chris Mirasola: I know.

Benjamin Wittes: –it feels like, you know, 2005 or something, but these are different Guantanamo cases. Bring us up to speed.

Chris Mirasola: It's, it's, it's a return to the past, but the past is somehow a weird new future. It's all very confusing.

Right, so our case here is in, the District of D.C., right? And so, this is Las Americas Immigrant Advocacy Center v. Noem. The complaint was filed, right, on Feb. 12, with a request for a TRO. The Department of Justice filed opposition to the request on the 20th, plaintiffs responded on the 24th, so that's getting us to, what is today, the 28th? God even knows. Great, like earlier this week, right?

And there, since there, there has been radio silence. Partially this seems to be because, right, the facts keep on changing, right, before, Judge Nichols, who has the distinct displeasure of having to deal with this case.

So folks will call, will recall, right, that this case was originally on behalf of a number of folks who were, who could possibly have been sent to Guantanamo Bay. In the middle of all of this kind of briefing, everyone who had been sent to Guantanamo Bay was deported, that happened, I believe, at the same time or just after DOJ filed its opposition to the request for the TRO.

And then, just before the plaintiffs responded earlier this week, new folks have been sent to Guantanamo Bay. And so, a lot—

Benjamin Wittes: Just to be clear-

Chris Mirasola: Yeah, go ahead.

Benjamin Wittes: –people are there in a transitory capacity, because it's basically a stopover. We're, we're deporting you, you have a presumably valid deportation order. So we put you on a plane, and we could fly you to Venezuela, or Columbia, but we're not because we want to thump our chests and seem really macho. So we're gonna stop in Guantanamo for a few days and treat you badly just long enough for you to file a litigation, but then we can moot out the litigation anytime by actually completing the deportation.

Is that an ungenerous, but basically fair way to describe it?

Chris Mirasola: I think that's about right. I mean, like what I think we're seeing is like a big shell game, right, of like, where of, of, of hide the, the, the migrant detainee, right? So these are folks who have–

Benjamin Wittes: But question: what does the government get out of doing this, other than being able to say it uses Guantanamo Bay? Because it's not like these people were not in detention before, right?

Chris Mirasola: Right. I've also been struggling to figure out what like tangible benefit the government gets from this, except for like—and it's not a benefit, a gigantic bill, right, because it's hard to do everything on Guantanamo Bay.

 Only thing that I can think of is like, it is diplomatically difficult to get Venezuela to, like, agree to a deportation flight. Why you would detain these folks in a much more expensive place than, than detain them somewhere, like, you know, in, in, in Texas or whatever, right? I think a lot of that comes down to what you were just saying about the vibes and the political points that you're scoring and things of that nature.

I also wouldn't be shocked if folks who are making decisions, like, fundamentally don't understand the protections that apply to these folks with final deportation orders, even if they're at GITMO, right? I could very easily imagine a world where, some of the folks making decisions think that if you put them at GITMO that somehow we should think of them like a, like, like a law of war detainee, which is obviously fundamentally incorrect, but like, also wouldn't shock me, right. Like that's level of sophistication,

Benjamin Wittes: Okay, so, so is your impression that the negotiation with Venezuela, you know, if you have them at Guantanamo, then you say, we've got your guys at Guantanamo. And then Venezuela is like, Oh, okay. We'll take them. Or, you know, whereas if they're in detention in Texas, you're like, Hey, we've got your guys in Texas, and the Venezuelans are like, I don't care.

Chris Mirasola: It's hard to tell. I mean, like, maybe, like, the correlation, the causation here, like, is not, like, working, like, you know, is, is not helping us out.

Benjamin Wittes: I mean, like, when Guantanamo was, like—Natalie gets very upset when we say this—but when, when Guantanamo was a law of war detention facility, my view was, I don't really care where you hold law of war detainees. If you, if it's legal to do it in, you know, in Bagram, if it's, if you're holding people in ethical conditions, in law of war compliant conditions, I don't really care if you're doing it in Guantanamo or in, you know, Leavenworth or in Bagram or in, you know, some makeshift facility in, in wherever.

But in this case, it's like you already have them detained. You're, you're already putting them on a plane to deport them. It really feels like an extra stop. And it's not like Dubai, where there's a shopping mall or something, you know; it's like, it's like an extra stop that's just for litigation purposes. I can't, I really can't figure out what they're getting out of it.

Chris Mirasola: Yeah, I mean, I think the only additional like maybe benefit is hardest construed as a benefit, right?

It's like all this litigation is about you know, do these folks have sufficient access to counsel right and the facts seem to always suggest that they don't right? There like, aren't enough, you know, phone lines; there are insufficient number of flights, for lawyers to get there, right?

It's, it's like, if the goal is to, like, a combination of, like, own the immigration defense attorneys and make it at least more difficult for folks to get any legal counsel in this like final stage of deportation, maybe putting them in a spot where it's like very institutionally difficult to like, do any of that stuff gives them like some marginal benefit.

But like, that seems really thin, especially if you're comparing it to all the extra costs that they're incurring.

Benjamin Wittes: And especially if you're doing it for an extremely short period of time, right? The theory of it in the law of war context was these are long term strategic detentions with, associated with interrogations. So you're taking people out of the field and you're building a special facility for it. Okay, maybe that's a plausible idea, maybe it's a terrible idea, but it's an idea

Here it's like okay, you've got your deportation order; the plane takes off; it could go to Venezuela, but no, we're going to stop in Cuba because we can. And, and the secretary of defense is going to kind of make a big deal about it because somehow the word Guantanamo implies a kind of level of machismo that just deportation to Venezuela does not imply.

I mean at some point people are going to figure out that this is not like a good cost benefit analysis right, apart from the human rights components of it.

Chris Mirasola: Totally. Right. Cause this is all going to be extremely expensive. I imagine that the departments are still arguing about who has to foot this bill, right? Because it's been entirely unclear who should be fitting the footing this bill.

And so right, I mean, like, I think you had like a one off idea from the dome of the president, which leads to like actual concrete action, and that actual concrete action is like doesn't make a whole ton of sense, and it's really expensive. So like, I don't know if we get past like a couple more weeks of trying to do this kind of thing.

Benjamin Wittes: All right, so we're having we file, it's moot, we file, it's moot, we file—like a kind of a mootness whack a mole game. So what is the status of the litigation now?

Chris Mirasola: Yeah, right. So, there's been radio silence since the 24th. So the, there was, a—there have been no hearings that have been scheduled. The plaintiffs and the defendants have both asked, Judge Nichols that if he wanted to do a hearing, that he do it, on the 26th. So what is that, two days ago now? And there was no response to that request.

So at the moment we’re, like—everyone's like literally just waiting for the judge to decide something.

Benjamin Wittes: And has, Judge Nichols given any indication of his thinking?

Chris Mirasola: No, not in the way of like any actual—I, I was just checking it right before we started, and there's been nothing posted to PACER since the 24th. That was, that was when they posted the reply opposition to the motion for, for the TRO.

Benjamin Wittes: All right, let's talk about birthright citizenship, because it's kind of the opposite of Guantanamo, right? If you can move somebody to Guantanamo to take away their rights or to pretend you're taking away their rights that are already gone because they've been deported, you can also deny that that person, if they were born in the United States has rights, even though the Constitution says they do. And that's the birthright citizenship cases.

It's not quite two sides of the same coin, but it's awfully close.

Chris Mirasola: The coins are very close to each other.

Benjamin Wittes: Yeah, exactly. All right. So, where are the birthright citizenship cases? Right.

Chris Mirasola: it's like, whereas with the GITMO case, right, we have a lot of silence here, we just have a resounding defeat for the administration across what is now, I think, four circuits. so quite the record.

So like going chronologically with our cases, right? We have, one case in the district of Massachusetts. So the Second Circuit over here, this is New Jersey v. Trump. And there's been a lot of steps already for that case, so, there was a preliminary injunction, that was entered, earlier this month, and that enjoined enforcement of the executive order. The Department of Justice appealed. ask the judge to stay the injunction pending appeal. The judge declined to stay the injunction pending appeal.

And, and, and all of these decisions are all because like every single judge believes that, there is just like no likelihood of success on the merits.

Benjamin Wittes: And why, why are all these judges of diverse politics all in such agreement? Is there, is there any reason that you can think of for that?

Chris Mirasola: Great, yeah, that's right, right. So, a couple of reasons. One, just like the text of the 14th Amendment, right? Right, so the 14th Amendment tells us that if you are born in the United States, if you're, subject to the jurisdiction of the United States, that you are a citizen of the United States.

And, case after case, since this one particular case called Wong Kim Ark in, the late 1800s has affirmed this idea, that unless you are subject to the jurisdiction of some foreign power–because, for example, you are the child of a diplomat, or you are the child of, someone who is invading the country, right, some other person that is, like, unquestionably subject to the jurisdiction of another, country—you get birthright citizenship. And this is consistent with, like, common law understandings of birthright citizenship.

Benjamin Wittes: Okay, so I have a funny thing to say about this, which is, I swear I am not making this up.

The other day, I was asked to brief the staffs of four foreign embassies. and, so I went to one of these embassies and, and they asked me about this case and I had to explain the subject to the jurisdiction thereof language. And I said, so, you know, the people who don't have birthright citizenship by constitutional law are your kids. And they all burst out laughing. And, and so yeah, I actually talked to the people whose kids do not have birthright citizenship about the constitutional birthright citizenship, about this case.

But the point is unlawful immigrants, undocumented migrants are not diplomats.

Chris Mirasola: That's correct, right. There have been a small handful of commonly understood exceptions, right? It's the diplomat exception, it's the invading army exception, before, citizens of federally recognized tribes were, given automatic citizenship. In 1924, it was folks who were subject to the jurisdiction of those Native American tribes, right?

You know, very narrow categories which have been understood for, like, Over 150 years now, which, like, contributes to the fact of like, why the administration just, like, keeps on losing, right, in every single circuit. It's the Second circuit, it's the, it's the Ninth Circuit, it's the Fourth Circuit. I guess that was three circuits. But anyway, a lot of losing.

Benjamin Wittes: And normally when there's no conflict in the circuits, the Supreme Court will generally not hear a matter, although one countervailing thing is when the Solicitor General asks for cert, they tend to get it.

Is your impression that this is likely to be more interesting at the Supreme Court level than at the circuit level? Or is this a total loser for the administration at the Supreme Court level, too?

Chris Mirasola: I am terrible at Supreme Court prognostication, but I will do it.

So, I think that, it's, it's gonna be pretty boring at the Supreme Court as well. I, I can't imagine, the Chief Justice, Justice Barrett getting behind some of the legal theories that we've been seeing, to, like, create ideas of birthright citizenship that are based somehow on, like, ideas of being accepted into, accepting the jurisdiction of the United States. It like requires so much cherry picking of history that it's just like really quite implausible.

But I've been wrong many times before, so like, you know, I don't want to overstate it, but like, I would be pretty shocked.

Roger Parloff: Is the government using the invasion analogy in their briefs on these cases?

Chris Mirasola: Interestingly, they're not. You would kind of think they might, right? Potentially, I've been thinking about this, like, maybe it's because, like, the idea that you're—it might be too narrow.

If, like, all we're thinking of is, like Tren de Aragua, right—the, one of the transnational cartels that the United States, that the government has, been speaking about, right. If that's the invading force, right, and you're only talking about the children of that invading force, that might give you not—that's like not enough, children, to, strip citizenship from, so you need something a little bit broader.

Benjamin Wittes: And you have to hold them under the law of armed conflict.

Chris Mirasola: You totally would, and which is like another stuff they haven't taken yet, right? It's like this, it's, it’s, it’s a whole, it's a whole bag, bag of something. Yeah.

Benjamin Wittes: Alright. So let us move on to the giant raft of cases, Roger, that involves the attempt to dismantle the federal government and fire all its employees.

Where do you want to start with that? What was—I mean, the volume of these cases is now really astonishing. How do you want to organize the discussion?

Roger Parloff: Well, we can talk about dismantling some agencies and then there's the DOGE cases and their different ways of attacking DOGE.

And, so I'll briefly talk about the dismantling, per se, cases. Those aren't going that well, at least the USAID-

Benjamin Wittes: Going well for whom?

Roger Parloff: For, for plaintiffs, certainly, not for employees of these agencies. and that was, the, the USAID case that, that Carl Nichols also, the same judge is, is hearing, American Foreign Service Association v. Trump.

Last week—I think Scott, I think we knew, I think it happened, before the broadcast—he had rejected, he dissolved the TRO and denied a preliminary injunction. And the main reason was, this concept that, the, the employees—if you don't look at this as a unique thing, like dismantling an agency, if you look at it as just a lot of people getting fired—there are remedies for employees, administrative remedies, and they're in front of a lot of different boards that Congress has set up, things like, the Federal Labor Relations Authority, the Merit Systems Protection Board, the Foreign Service Grievance Board, the Foreign Service Labor Relations Board.  And, so, Nichols was saying that's your remedy so you don't have irreparable harm, the, the, the, employees.

His ruling was actually a little worse than that for plaintiffs, I would say. He also said some things he didn't have to say. He brought up a case that we're probably going to be hearing a lot more about called White v. Berry from 1898. And, and this is actually importantly a case that Gorsuch brought up in his dissent in the Dellinger case, which was joined by Alito.

And the gist of what Judge Nichols took away from it was that, it's not that easy to use an injunction in a government personnel case. He said, he said, he said, to enjoin actions on federal employment matters you can't apply routine injunction standards; a, quote, far more rigorous showing, quote, is necessary.

So when you combine this, this concept of channeling that—basically the, the, the theory is that the, the judge doesn't have jurisdiction, that Congress has said I need to channel these cases to these administrative remedies—that's a, that's a big hurdle. Now, well, people have tried and, and, and so it'll be interesting, but, but

Benjamin Wittes: Why is the, why is there an assumption that the normal standards of injunction don't apply to a mass firing of government employees?

Roger Parloff: I haven't read White v. Berry from 1898 yet, so I don't know. And what the, what Gorsuch was saying was that it's almost like a, it's just a blanket thing, you can't, there was no remedy, equity, to force a government employee back into a job when the country was founded. And, and so I can't do it either.

So I don't really know, but I think if we—it's also a concept thing. Are you buying that these are conventional layoff cases, or is it really something different where this administration is violating the separation of powers by dismantling an agency that Congress created?

And what Judge Nichols said is—he, he was a little cavalier in my humble opinion. He said, well, they say they're dismantling USAID, but it still exists. Well, it might have existed when he wrote that. I don't know that it still exists. it, it, it, it's, certainly the funding has been, the, the programs, it's funding, have been slashed by at least 92%. The lease has been, is in the process of, you know, they ripped the signs off the, the, the, the, the headquarters, and we're going to have a big test of this coming up with the Consumer Finance Protection Bureau.

Benjamin Wittes: And I, I think there's a, there's a, like if the president bombed USAID or like took a crane and, you know, with a wrecking ball and knocked it down, you know, there's some point at which firing enough of the employees becomes an attack on the institution.

And it—certainly it's more than three. If you fire three, you're not, but if you fire 90 percent of them right at some point now, that does raise a who has standing question, right? Do they, is that an employment law problem? Or is that, and so I take part of what Nichols is saying is, wait a minute, to the extent you're thinking about this in separation of powers terms, Congress can do something about it tomorrow if it wants, why are you bringing that to me?

But to the extent you're thinking about it as employment law problems. Hey, go to the merit systems protection board as individuals. I do think there's gotta be some point at which if you create enough problems for enough individuals, it has a kind of an institutional separation of powers quality.

Yes, Chris?

Chris Mirasola: I very quickly just skimmed White v. Berry.

Benjamin Wittes: See, this is the kind of thing that happens when you watch Lawfare Live. It's not happening on other podcasts where we have, you know, we're talking to one guest and the other is reading Supreme Court cases from the 19th century.  And what does White v. Berry have to say?

Chris Mirasola: But thankfully, it's incredibly short, which is, I think, pretty unique for an 1898 case.

And so the issue seems to be one mostly about the jurisdiction of a court sitting in equity. So what they're saying is that there aren't, the court can't exercise equitable remedies. for these employment decisions. So it says like the, the, so the jurisdiction to determine, the, the, the hiring status basically of these public officers belongs exclusively to the courts of law, is exercised, either by cert, error of appeal, mandamus, prohibition, quo warranto, or information in the nature of a writ. Quo warranto, I don't know old CivPro.

And so I wonder, and, and, and so they say, right, you know, or, like, other mechanisms created, by statute, right? And so it seems like what we're doing is, like, a really complicated kind of CivPro thing, right? Like, can you use these equitable injunctions, to prevent the kind of firing that we're talking about?

Roger Parloff: And if you can't, we're in bad shape. I mean, that's the whole ballgame. And, and, so it's, it's, it's a potential problem. I think we're going to have a better test case, with the Consumer Financial Protection Board.

Benjamin Wittes: And why is that?

Roger Parloff: It's a good set of, well, it's a good set–it's a horrendous set of facts and it's going in front of a judge, Amy Berman Jackson, Monday, March 3.

And at least as presented by the plaintiffs—I haven't verified, you know—they say the administration has closed its headquarters and its regional offices, has removed CFPB signage, has moved to cancel leases and contracts. I think they say, if this does not constitute unauthorized closure of an agency, established by Congress, it's hard to know what would.

And there's a second case in Maryland, Mayor of Baltimore v. Vought that I think is also about dismantling that agency. And, we're awaiting a ruling on the preliminary injunction. In that case, the hearing was February 26. So I think, we might get some rulings there that, could, balance Judge Nichols’ approach.

Benjamin Wittes: And what about DOGE? There have been a bunch of challenges, to various aspects of doge, which of course has been difficult to pin down what it is and how it works. What are your—where are we with those?

Roger Parloff: Now, Anna is actually at one of those, right now. There's a couple that are challenging it under the Appointments Clause. and maybe, so I'll, I'll let her—hers is, in Maryland today, Does 1-26 v. Musk.

There was another one in front of Judge Chutkan, and she actually denied a TRO on Feb. 18, but that was mainly due to the plaintiffs not showing irreparable harm, she had a lot, she, she had a lot of issues about, the appointments clause. it was a favorable ruling in, in, in many of those, in, in that way.

And I would say in, also this week, in a case that doesn't involve the Appointments Clause, Colleen Kollar-Kotelly brought up the issue sua sponte. She, she just didn't see what, how, how does he have these, these powers? The, the, the trick with the Appointments Clause is how much relief—even assuming you get a ruling—how much relief are you going to get? Because there is a argument that, well. There's something called a de facto officer.

And so, in fact, this is the little secret about when Judge Cannon dismissed the case in Florida because Jack Smith, she felt didn't have, wasn't properly appointed. Ordinarily, one of the remedies would be to say, okay, hand it to the U.S. attorney, prospectively will have a guy who's properly appointed. You don't eliminate everything that's happened.

And the, the, government, hadn't briefed that point. And then when they realized, when she sai,d she really looked like she was going to dismiss it, they said, can we brief remedy? And she said, No, the time has passed. And, and so she dismissed it.

But anyway, expo—so that's a issue. On the other hand here, I don't think Musk even seems to have de facto authority. So it might be a little different. Anyway, those are interesting cases.

But the most of what we've are cases that, try to, that object to the fact that DOGE is looking at these unbelievably sensitive documents of ours, you know, —tax information, social security information, health information—his, his 20 year old, you know, software programmers.

And so these cases are brought under sort of a Privacy Act claim. Again, it's ultimately an Administrative Procedure Act claim, that arbitrary and capricious or agency action or action beyond, statutory authority in giving DOGE access to, these ultra sensitive documents.

The trouble, there's a few problems with that. One is that DOGE has been cleverly, you know, lawyered. It's, it's better than I think some of us thought. But the, the, the recurring problem at the injunction stage and, is, is that, is the question of whether having one of these 20-somethings look at your stuff is irreparable harm if if the 20-something doesn't–

Benjamin Wittes: What if the 20-something is named Big Balls? I think having, leave aside whether he's a 20-something, I think having somebody named Big Balls look at my stuff is irreparable harm.

Roger Parloff: Yeah, well, it, it, it actually seems, and the courts have been split, but the D.C. courts have not been. And it might, and, and I think, Judge Kollar-Kotelly actually said that the D.C. Circuit’s standards are higher than some of the other circuits.

So, for instance, we did have, I think a preliminary injunction last week from Southern District of New York Judge Jeanette Vargas against what was the DOGE in the Treasury Department. But here, we had a good judge, Rand, Randy Moss deny one—that, that was in the Department of Education. And we also had Judge Bates deny one, that was DOGE in Labor, CFPB, and HHS.

And the recurring problem was, that as Moss put it, the mere access by a formerly, you know, some, a government employee who isn't formally authorized to see it, isn't irreparable harm. But the, the, the hurdles go beyond that because doge has gone to great lengths to make it appear that these guys are agency employees, even though, you know, they're not being paid, that most of them are detailed from DOGE into multiple agencies—you know, some of them have been in five agencies.

The reason I'm, I'm saying all this is that the Privacy Act has an exception. It says if, it says that agency employees can view your information if there's sort of, if there's a need to see it. And so they're, they're claiming that all of these DOGE people are employees of Treasury today, employees of Labor tomorrow, employees of CFPB the next day, and, so far, judges have been buying it.

So, we're waiting to hear what, if Judge Colleen Kollar-Kotelly converts her TRO into a preliminary injunction. But I heard that hearing, that was the one where she did sua sponte talk about how this seems to be an appointments clause problem.

But she also said to the plaintiffs your problem is your weakest link is irreparable harm, and that's a bad weak link because it's, you know, it's, the courts say it's sine qua non for injunctive relief here.  So without irreparable harm, you, you can't get the preliminary injunction.

So I'm very—she should rule any moment. I'm curious what she does.

Benjamin Wittes: Alright. So let's talk about the politicization of the Justice Department. We were last week or the week before—I can't even keep weeks straight anymore—it was all about the defensive use of the politicization of the Justice Department to protect one's friends, in that case, Eric Adams the mayor of New York.

But, you know, if defensive politicization comes, can offensive politicization be far behind, as Shelley wrote? And, this week we got a bizarre story about a criminal investigation launched by the acting and now nominated U.S. attorney Ed Martin involving a large amount of funds for climate change that appears to have triggered the resignation of a U.S. Attorney's office prosecutor and then triggered multiple magistrates to deny a seizure order.

So, Roger, what do we know about this case and, what do you make of it?

Roger Parloff: Yeah, this is a real troubling case, it's, and everything I know about it comes from a Washington Post article that ran either this morning or yesterday and I'm sorry, I don't have the reporters' names.

But, it seems to have been a $20 billion grant under the Biden administration, toward the end of the Biden administration, under the Greenhouse Gas Reduction Fund. And, the EPA administrator Lee Zeldin wants to try to claw it back. He's sure there's something wrong about this. It doesn't smell good to somebody, and they have a–

Benjamin Wittes: But doesn't feel good is not the standard of a predicate of criminal investigations or else we would be investigating the hell out of DOGE, right? The standard is are there articulable facts that constitute a criminal, a predicate that a crime has been committed?

Roger Parloff: Well, it didn't used to be the criminal standard, it appears to now be the criminal standard.  And apparently, Emil Bove is involved in this as well. And Ed Martin, according to the article.  

And we actually saw, you know, we got a glimpse of this thing last week, when —I think it was the Post also reported—the head of the criminal division in the U.S. Attorney's office in D.C. resigned. It was over, over this, apparently. She didn't, they, Martin wanted her to, I think, get a seizure order, criminal seizure order. against a bank that had some of these funds and she refused, and resigned according to the article, Denise Cheung.

And then this one added that at some point along the line they moved, they gave up on the D.C. U.S. Attorney's Office and went to another one somewhere in the southeast and the prosecutors there didn't want to do it either. At some point, somebody submitted a, an application for a seizure order to a magistrate and he rejected it. and the last we've seen of it, it was in, the Southern District of Florida and Miami, seeing if, that we don't know if, if they're going to pursue it.

Um, so it's a very fishy thing. Apparently there was a piece of evidence they're relying on that comes from a Project Veritas video, if people, you know–

Benjamin Wittes: They’re a highly reputable organization that has never been known to doctor videos that they collect.

Roger Parloff: So, anyway, that's a very, that's a very disturbing one.

Also this, this week, a DOJ spokesperson quit—Joshua Stueve, long time person. He said, I cannot continue to serve in such a hostile and toxic work environment. He, he praised the basic decency of his colleagues and then said, it is heartbreaking to see that basic decency come to an end.

Also, today, I think, Bloomberg is reporting that Ed Martin, demoted, about a half dozen Jan. 6 supervisors. I, I, I have heard that, it was about seven, and that it included, one of the, key, one of the Proud Boys prosecutors, one of the Oath Keeper prosecutors, one of the prosecutors involved in pursuing some of the worst violence at the Lower West Terrace. So, the beat goes on here.

Benjamin Wittes: All right, let us take,

Roger Parloff: Oh, and then there was a development in, in, in Adams, as well. In case you missed it, Adams has now—on, on, two days ago, Feb. 26—asked to dismiss his case with prejudice.

Remember, the offer before was without prejudice, so that they could sort of hang it over his head like a sort of Damocles if he didn't do what they wanted. At least that was the what the structure implied.  He now wants it dismissed with prejudice on, for prosecutorial misconduct because of the leaking of, the, Sassoon letter, which, which also revealed that they were about to file a superseding indictment for obstruction of justice and so on.

The odd thing about that is on, you know, the, the Sassoon letter came out, I think, around Feb. 12 or 13, and, and on Feb. 19, he was in court and said he had no problem with the dismissal without prejudice. And now he's switched and says he wants it with prejudice. But anyway, that's where that is.

Benjamin Wittes: All right. Let's take some audience questions, and then we are going to be joined by the estimable Anna Bower, who has ducked out of court in Greenbelt, Maryland, and is looking for a quiet place from which to join. Isn't technology fabulous?

The, estimable anonymous attendee asks, American Oversight filed a complaint with the New York bar requesting an investigation of Emil Bove for his actions in the Adam prosecution. Is this a Hail Mary move? How plausible is it that DOJ attorneys who behave in such a manner may face bar sanctions up to and including disbarment? To what extent can the prospect of bar sanctions function as a deterrent to such behavior? Or are we in terra incognita?

So I have some information on this. Roger, Chris, if either of you do, you're welcome to go first.

Roger Parloff: No, go ahead.

Chris Mirasola: Yeah, go ahead.

Benjamin Wittes: All right. So the traditional posture of the Justice Department is that it investigates its own attorney misconduct. And allegations of attorney misconduct are traditionally referred by state bars to an office at the Justice Department called the Office of Professional Responsibility, which, conveniently enough reports to the deputy attorney general, of which Emil Bove is currently the acting.

OPR is famously protective of Justice Department lawyer ethical conduct, and is often thought of as a place where, you know, ethical complaints go to die, or at least to take a very long time to be resolved.

The wrinkle here, of course, is that, the licensing agency is in fact, the state bar, not the Justice Department. and it is not a convenient thing if you are, say, a former Justice Department official, to have a bar complaint against you.

This is a particularly interesting one because the allegation is an allegation of an actual conflict of interest and is being made by the U.S. Attorney or the until recently acting U.S. Attorney in New York. who is herself a very respected lawyer. It may be coming from American Oversight, which filed the complaint, but the allegations are ones that are actually coming from Danielle Sassoon. And of course, Ms. Sassoon wrote it in an eight page single space letter with a lot of attention to detail, I think with the expectation that it might find its way to a bar or toward the Office of Professional Responsibility.

Is there any history of this stuff, actually causing problems? Yes. The answer is Jeffrey Clark, of course, who was a senior Justice Department official and has faced bar discipline. Rudy Giuliani, of course, has also been disbarred and he was back in the mists of time a very senior Justice department official. He was associate attorney general. And I believe he's the only U.S. attorney for the Southern District of New York ever to be disbarred.

And so I actually think bar discipline—which takes a long time and is a difficult process—t is one of the processes that has legs And it has a very interesting, I think, element that makes it a little bit resistant to Trump's, you know, predations, which is that it's not subject to the pardon power. It's actually a licensing power.

Now the wrinkle is you know OPR will probably get first crack at this. And it is—I have never known OPR to find that the Deputy Attorney General has behaved unethically and so report to the Deputy Attorney General. Although, of course, in OPR's most famous moment, it did once take down an FBI director, the estimable or not so estimable William Sessions, who was taken down in, by a devastating OPR report by one Michael Shaheen.

So I would say, look, these are serious allegations. and it is going to be a little bit tricky for OPR to simply be dismissive of them. I doubt the—I don't know whether, think Bovee is a member of the New York Bar—I doubt the New York Bar will ultimately be dismissive of them. And there are, witnesses who worked with him who will presumably offer testimony. And so I think it's a potentially pretty serious matter, whether it will restrain the Justice Department in the meantime, I will leave to others to guess.

Josh asks, George Conway seems concerned about the consequences if/when, he assumes when, the Trump administration starts disregarding court orders. Are his concerns justified? Do either of you have thoughts on this question?

Roger Parloff: Well, the, the case in front of the court right now, is, is quite a record.

They do have this, you know—there is this claim that, well, we thought there was an exception to your TRO if we could find a loophole or a separate statute allowing us to.  But, you know, he clarified it about three times before this, this finally order of enforcement, you know, and it went from Feb. 13 to I think about Feb. 25 with zero—you know, I don't think—zero funding, resumed. They're walking the line.

And I think, there's another case. I can't right now where there's a P.I.—there's a preliminary injunction—and somebody is bringing up, more issues. So, I, I, I think they're trying to avoid doing the full. you know, apparently, apocryphal, defiant Andrew Jackson defiance thing. But, if that's who it was, who didn't do it. But, they're pretty close.

Chris Mirasola: Yeah, I, I think I would agree right.

Like if you think back to like the first administration and how the administration like, right, lost all the way up to the Supreme Court right on all the border wall litigation, right? They actually did along the way, right, stop building the border wall for significant periods of time in response to lower court decisions.

And we're not seeing the same track record here, right? You could have imagined the same kind of a strategy, right, of finding other loopholes to get their way around, right, the, the lower court decisions. And we're, you know —what are we, less than two months in? I don't think that the indications are good for their appetite to at least obstruct.

Benjamin Wittes: Yeah, so I want to soften that just a little bit.

There are, it seems to me, differences between defying court orders, not complying with court orders, and, you know, sort of doing the hardball litigation that attempts to avoid compliance, or tends, you know, tries to tries to resist compliance, but within the terms of, of the order.

The, they are definitely not, as Chris says, not jumping to comply. They are appealing aggressively. And they are, but what they're not doing is refusing to comply.

They're not saying we acknowledge that, you know, Judge Anna Bower, has ordered us to do this and we refuse because Article II is über alles. And, you know, and that means once when you acknowledge you sort of pretend to be complying, right? I'm going to file an affidavit by Pete Marocco that says here, we're how we're going to comply with this order. We're going to instead of doing a blanket freeze, we're going to individually cancel all the grants. And then the judge says, No, that's not compliance. I order you to comply. And then you appeal that.

It's not exactly defying the court order. It's, it's being as aggressive as possible within the possible terms and arguing about the terms of the order, I would say, as long as they're in that zone, which is to say acknowledging the authority of the court and by actually appealing is a way is a form of acknowledging the authority of the court.

I am going to operate on the I-will-not-jump-to-defiance until it happens. I'm not saying George is wrong. I love George Conway; Lawfare was the first place to publish George Conway when he, you know, emerged from his shell. He's a friend. He's a very smart man.

He's not wrong to be concerned about this, but I think you have to always approach litigation as though the court has the authority to resolve the litigation. and at the point at which somebody says the court has no authority to resolve this litigation over me, then you have to see whether the court has the authority to lock that person up or whether the court has the authority to sanction them in a way that is meaningful.

And so before I get to the question of compliance or defiance, I want to exhaust all of the court's actual powers, and that starts with okay, you say you're complying and you're filing an affidavit that describes non compliance. And then Judge Ali comes in and calls you on that, and you appeal him, what happens when the Supreme Court says no, actually, that's a valid court order.

And so, you know, I'm not disagreeing with anything that Roger or Chris says; I'm saying don't jump to catastrophize the end stage of the process, while there's still a hundred incremental things to do to actually get to compliance, including, by the way, figuring out what the law is and what it in fact requires in each of these cases.

We are joined by the estimable Anna Bower, who showed up at first with the Southern District of New York court as her background and then got embarrassed and realized that she had the wrong court in back of her. And so she is now outside of the Beltsville court having traversed 200 miles in mere seconds.

Anna, what's going on in that court?

Anna Bower: Yeah. So I'm coming at you, as you said, live from the Greenbelt, District Court, in Greenbelt, Maryland.

Benjamin Wittes: Are you actually there or is that a background?

Anna Bower: No, I am actually here. 

Benjamin Wittes: You were at one court with a Zoom background from a different court?

Anna Bower: Yes, I forgot to remove my SDNY background from last week, so it was automatically there, and then I had to remove it, but what you are seeing behind me is indeed the federal courthouse. Apologies for the recording conditions.

I just minutes ago walked out of a hearing over appointments clause issues related to the operations of DOGE and Elon Musk. and it was a three hour long hearing. It started at 2, so I've been in this courthouse for quite some time, and there was no ruling from the bench. It was under advisement, but happy to talk about what happened in the hearing if you all have specific questions.

Benjamin Wittes: Yeah. So well give us a little bit of an overview. Why is the Appointments Clause issue in—first of all, what is the Appointments Clause issue in DOGE? And secondly, why was it, why is it in Greenbelt?

Anna Bower: Right, so we talked about the Appointments Clause cases, a little bit before. One of them is currently before Judge Chutkan. She denied a TRO, but suggested that the plaintiffs in that case, which is in the District of Columbia District Court, may have at least a colorable claim.

The claim essentially relates to the idea that DOGE and Elon are operating with significant authority to the extent that they violate the Appointments Clause in the sense that they, they aren't reporting to someone other than the president who is a person who is nominated and confirmed by the Senate, and so there's this accountability and oversight issue.

It's very similar to the argument that was previously made before Judge Cannon, ironically by, by Trump's defense counsel in, in his criminal defense, in his criminal cases. Infamously, Judge Cannon then dismissed the case based on this appointment, appointments clause violation related to the appointment of special counsel, Jack Smith.

And, and so here there's a very similar argument that. essentially, Elon Musk is acting as though he is a principal officer of the United States, even though he is technically supposed to be classified as a special advisor to the president who only has the power to advise the president or communicate his directives.

That is what the Justice Department has said in court filings, at least, but of course, the public record seems to suggest otherwise. There's a number of statements that have been made by Trump and Elon Musk that suggests that he has been deeply involved in, directing the dismantling of, for example, USAID.

So that was a big topic of the discussion today during today's hearing, which was the preliminary injunction hearing in this particular case, which is separate from the District of Columbia plaintiffs. The plaintiffs, are a number of, either, USAID employees who, had contracts that were terminated or were employees of USAID and are now on administrative leave, and they're seeking, among other relief, access to, the database that they've been effectively kind of, have not had access to since DOGE took over the USAID operations. And, and so today was this preliminary injunction, phase in which they're trying to get access back to those, database systems.

Some of these folks that are being represented in this case are people who for example are in high risk, areas and they have not, one of the plaintiffs at least, did not have access to for example, the, I forget what it's called, but it's like the safety and security system in which they're able to actually communicate with people in case there's an emergency.

And then there's another plaintiff where for example the person is in central America and as a result of the dismantling of USAID has had their electricity bills stopped being paid and that is what, you know, powers their radio if they need to contact someone in case of an emergency, and that kind of thing.

So that, that's the who the plaintiffs are, and then as I mentioned the claim is that The operations of DOGE violate the Appointments Clause. There's also some separation of powers issues that have been raised.

And, the Justice Department interestingly, again, today—this is a pattern that we've seen, including earlier this week, when there was another case about DOGE before Judge Kollar-Kotelly. She questioned the Justice Department on the chain of command within DOGE, who is making these decisions, and the Justice Department wasn't able to answer many of those questions again. Today It was the same kind of thing.

And so the judge I think is weighing a number of issues, but he he certainly does seem to think that if it's the case if it suggests that Elon Musk is the person who directed the dismantling of USAID, then that suggests that he had significant authority that may very well violate the Appointments Clause.

Benjamin Wittes: And so, Anna, we found out the answer to a very important question to you this week. would you like to tell us a little bit about who the administrator of DOGE is and what we know?

Anna Bower: Yes. So, as I mentioned, we came in not knowing the administrator of DOGE is, and I managed somehow—whether, whether she knew it or not, Judge Kollar-Kotelly joined my cause, my one woman mission to find out who the administrator of DOGE is.

Benjamin Wittes: No, I think we know the answer to that. Judge Kollar-Kotelly read your Twitter feed over, or your Bluesky feed, over many weeks, and decided that your quest was a worthy one, and listened to Lawfare Live and determined it was like an amicus brief, basically, and took up your cause. It's very similar to the relationship between Josh Blackman and Judge Cannon.

Anna Bower: Well, Ben, I gotta say it really does help when a federal judge joins your cause because they are able to ask attorneys on the record who have a duty of candor to the court, who is the administrator of DOGE?

Unfortunately for me, the Justice Department attorney, as I mentioned, did not know the answer, which was very disappointing, but I think that what then happened is there was a lot of media interest all of a sudden in this question of who is the administrator of DOGE because the Justice Department was not able to answer that question.

And so the next day, there were a number of reporters who started asking this question over and over again, essentially, to White House communications and, and spokespeople, and so then finally during a press briefing—was it on Wednesday? It's hard to keep track at this point, but I believe it was on Wednesday—at a press briefing Karoline Leavitt said there is an administrator of DOGE and I'm not gonna announce the name from the podium.

Minutes after the press briefing the White House then revealed the name of the person. Her, her name is Amy Gleason, a former USDS employee who then went back into the private sector. My understanding from reporting is that she worked at the firm of Brad Smith, a Trump ally who, who has also been working in the administration, and, and then came back to USDS or, or DOGE at the start in January and, and now has been announced as the administrator.

But something I will say that is odd is that the White House said in a briefing? that Amy Gleason was the administrator for several weeks, maybe a month, that everyone knew about it, it wasn't any secret. But there's reporting that even DOGE employees didn't know that she was the administrator.

And then today in the hearing that I was just in, the judge at one point said so who was the administrator—if there was one—before Amy Gleason? And the Justice Department attorney said I don't know and, and the judge said well I think that would be something that would be, you know, pretty basic to find out. Have you asked anyone? And the Justice Department attorney at first said no I haven't, but then he backtracked a little bit and said, actually judge, I apologize, I need to correct the record. I did ask someone that question. earlier, but I wasn't able to get an answer at the time.

So, so there's just, there continues to be a lot of inconsistency here, Ben, and truly this was very frustrating to the judge, not just on this point, but on other inconsistencies. The incoherence of the public statements about, you know, what Elon Musk says he's doing and then what in court declarations they say Elon Musk is doing. And at one point the judge even said you know, I gotta admit it is pretty suspicious that there's, you know, this discrepancy, between these public statements and then what's being said in declarations and such. And he said at a minimum, it at least causes a lot of confusion.

Benjamin Wittes: Alright. So I have a yes or no question for you. Do you believe that Amy Gleason is the real administrator of DOGE?

Anna Bower: I believe that Amy Gleason is the formal, on-paper administrator of DOGE. Is Amy Gleason performing the duties of the DOJ administrator and is she calling the shots? That I am, as the judge put it, suspicious of.

Benjamin Wittes: Alright. We have one more question from the audience and then we are going to wrap.

The anonymous attendee declares that this week, Representative Andy Ogles of Tennessee introduced an impeachment measure against Judge Ali for, quote, marginalizing the president's Article II authority, marginalizing, of course, being a known impeachable offense. In what other ways, if any, do you anticipate forces outside of the judiciary to take advantage of that, attempting to influence outcomes in the ongoing surge of lawsuits that have significant policy implications. Who has thoughts on this?

Roger Parloff: Yeah, I, I, I don't think this will cow many federal judges.

It, it's a, a piece, I—a strange thing also this week, Chad Mizelle, the chief of staff to Pam Bondi, filed a complaint with the chief judge of the D.C. Circuit, about Ana Reyes, Judge Ana Reyes, in the, who had, who presided in the hearing on the transgender in the military case.

And I have to say, Judge Reyes is, you know—on the spectrum of judges, she's, she's toward the performative end, she's, sort of theatrical. She comes in very well, prepared and she peppers the attorneys and, and. But he was, got very bent out of shape. She used the acronym WTF at some point. and, he was upset about that. It was beneath the dignity of the courtroom.

And, you know, if you're in the, if you're used to working for Donald Trump, you, you, you're heavily into decorum and dignity.

Benjamin Wittes: Yeah.

Roger Parloff: So he was really offended. I don't think, you know, I, I don't, I don't think—he omitted, you know, she did do some very performative things and then she also praised the DOJ lawyer to the hilt, said, you know, I'm just sort of, I, you're terrific. He didn't mention any of that. and so. Anyway, it's, it's, it's just part of the way this administration seems to work.

Benjamin Wittes: I will just add to that that there are a few pressure tactics that people are using with respect to federal judges.

One of them, of course, is threats of violence. And that is, has affected a lot of judges’ lives, from district judges to, you know, famously Brett Kavanaugh, who had an assassin show up, would-be assassin show up at his house. And, you know, the environment is very toxic and, and when people who are responsible behave completely irresponsible, people who are, start with a level of derangement or craziness sometimes take it to very different places.

So that's another thing. As Roger just described, complaints about judicial conduct over substantive disagreements are another one.

But, you know, the judiciary, for all of its faults, which are non-trivial, is very good at protecting the independence of judges. And, you know, there are liberal judges in conservative jurisdictions and conservative judges in liberal jurisdictions. And, you know, the day-to-day functioning of courts actually, you know, to the institutional judiciary's credit, is largely unaffected by noise like, these sort of impeachment resolutions.

Folks, we're going to leave it there. Chris, thank you so much for joining us today. Roger, Anna, thank you guys for joining us today. And Anna, you know, the whole popping out of the courtroom with the wind and the wrong court behind you. It's a very cool thing. We'll be back next week.