Lawfare Daily: The Trials of the Trump Administration, Feb. 6

[Intro]

Natalie Orpett: It is the Lawfare Podcast. I'm Natalie Orpett, executive editor of Lawfare with Lawfare Senior Editors Eric Columbus, Roger Parloff, and Molly Roberts. In the February 6th episode of the Trials of the Trump Administration, we discussed the congressional hearing into ICE's use of force in Minneapolis and Chicago, a district judges rejecting Minnesota's 10th Amendment challenge to Operation Metro Surge, and much more.

[Main Episode]

Hello everyone and welcome to Lawfare Live. My name is Natalie Orpett. I'm the executive editor of Lawfare. I am joined today by my colleagues, all senior editors, Molly Roberts, Eric Columbus, and Roger Parloff. It is Friday, February 6th at 4:01 PM and we are going to get started with what is a quite lengthy overview of what happened this week.

So we'll try to move through it, but really a lot to talk about. So let's start with something I think we are uniquely read in on, which is the drama unfolding in Fulton County. So Roger, I'm gonna turn to you for this one. There's been a lot happening down there, lots of law enforcement, lots of actions, things about elections, things about ballots.

What are we talking about and what happened this week?

Roger Parloff: Well, actually we talked last week about the search itself. What happened this week—Although it's the most important thing going on, we don't know a whole lot about, which is that Fulton County has filed a suit to get, at least to try to get it some of this stuff back that was taken, the ballots and the 700 boxes.

And the suit is under seal, so we know essentially nothing. We assume it's a Rule 41. And the crucial thing there is to try to show some sort of callous violation of your constitutional rights—

Natalie Orpett: And Roger, apologies for interrupting, but just remind us who are the parties in the suit.

Roger Parloff: Well, we—Fulton, it was announced I think, by the Fulton County's Board of Commissioners Chairman Robb Pitts. So, I think it's Fulton County.

Natalie Orpett: Okay. Against the United States in connection with the FBI search. Okay, thanks. Sorry, go ahead.

Roger Parloff: Yeah. And the other incredibly disturbing thing is that he gave a statement, Mr. Pitts, and said that somebody was telling him that telling he and Brad Raffensperger and Gabriel Sterling were gonna be indicted. He didn't say who was telling him that, and that hasn't happened so far. And so, I don't want to get out over our skis there, but I mean, obviously this is all, all widely reported. But I guess the big hurdle is how do you show a grave violation of constitutional rights when a legitimate magistrate judge has approved the search and found probable cause.

On the other hand I, that's sort of the starting point of almost every Rule 41 motion. So maybe you have more familiarity with Rule 41s than I do. They've sort of been in the news they're sort of having a moment with the Dannie Richmond of Rule 41. And of course, way back when after the Mar-a-Lago suit Trump, it was not a Rule 41 that he brought.

It was an action in contemplation of a possible eventual Rule 41. And that one was of course thrown out. But have you, do you have any experience with Rule 41s, Natalie?

Natalie Orpett: They are difficult to make, but they do prevail sometimes. And I think the simplest way of talking about it is just to say that magistrate judges have limited information and the threshold for meeting probable cause is low and doesn't involve a lot of legal analysis that can come up later with the presentation of more facts.

So we will see as it comes out. I think, I suspect you're right that a lot of what we can surmise based on reporting will lead us to thinking about this as a Rule 41 motion, and then we can fill in everyone in on the standards. But for the time being, we're a little bit hands tied behind our back.

Okay, well, let us move on to, speaking of searches of Mar-a-Lago, sort of tangentially, a blast from the past to our prior iteration of this show, which was looking at the criminal trials of Donald Trump, then former president, Donald Trump. And this past week we had a little detour into the New York state criminal trial of then former president, Donald Trump.

Molly, why are we talking about this case again?

Molly Roberts: Yeah, that's a great question. So yeah, we're talking about the Trump hush money case, which is where a jury found Trump guilty of 34 counts of falsifying business records when he repaid Michael Cohen, his fixer at the time, for a $130,000 hush money payment to Stormy Daniels.

So that's the case we're talking about, and you're right, it feels like a blast way from the past. The reason we're talking about it again now is that Trump has been trying, and trying, and now trying a third time to get this case removed from state court and put into federal court where he can then seek to have his conviction overturned.

So this has been happening in the courtroom of 92-year-old District Judge Alvin Hellerstein, and he's basically being asked to say, okay, yeah, I am going to accept the judgment made in a state court and move this to a federal court. That's what they're asking him to do, but he's been really resistant to that.

It does not look like Trump is going to prevail. And Trump has already failed on this with Hellerstein twice. So this is the third time he's in his courtroom trying to get it moved. And the theory here essentially is that federal officials can try to get cases moved—for the criminal prosecutions of them—moved to federal court for any prosecution that's related to any act under color of their office.

And Trump is saying that's the case here. And he has kind of two points that he's raising. One of them is that the prosecutor's theory of the case is preempted by federal election law, but that's basically already been litigated. Now he's focusing on the second, which is a presidential immunity point that he's making.

And he's saying, after the Supreme Court's presidential immunity decision, not the hush money payment he's accusing of making was some official act for which he gets immunity. But some of the evidence that the jury considered in the case was protected by the Supreme Court decision. So, he is saying the jury was effectively tainted by that.

And so those are the points that he's bringing up. Again, the judge was skeptical kind of on two points. One of them was that any of this evidence actually would be covered by the immunity decision. He was saying these are arguably personal acts, not official ones. It had to do with I think, communications with Hope Hicks in particular.

But the other point he's making is that Trump is trying to get, quote unquote two bites at the apple, that when the Supreme Court decision came down, he first went to state court and tried to get it overturned there. That was with Judge Juan Merchan, or Supreme New York State Supreme Court Justice Juan Merchan.

And then he said, when that wasn't looking so good, I'm gonna try to do this in federal court. And the judge’s saying that Trump shouldn't be able to do that.

Natalie Orpett: Right. So let it never be said that Lawfare does not follow up on its trial coverage. I'll just note also for folks, removal is actually a very important legal issue that will appear in a number of contexts, and I suspect it will come up again, in not too long if we start seeing any states try to pursue charges against federal officials.

And this has already come up in the context of some of the protest activity and ICE and CBP response. So fortunately for all of you, we have done a lot of good work in the past on the law around removal. So, we got you covered for when that inevitably comes up again.

Molly Roberts: I should also add, I should have said the reason we're back in Hellerstein's courtroom is that the Second Circuit Court of Appeals said that when he looked at this previously, he didn't adequately consider the point Trump was raising about whether the evidence was protected by the presidential immunity decision.

Natalie Orpett: Got it. Thank you. Okay. So the next on our somewhat miscellaneous grab bag up top before we switch over to immigration relates to the lawsuit brought by Senator Mark Kelly against Secretary Hegseth and the Department of Defense relating to the action that the Defense Department seems to be taking regarding Kelly's military status and his military—

What sorts of obligations he had pursuant to his military status and whether that can be sort of reactivated for the purpose of charging him for this video that he participated in, with other legislators, reminding members of the armed forces and the intelligence community that they have an obligation, as they put it in the video, to disobey unlawful orders.

Roger, tell us what's going on in that suit.

Roger Parloff: Yeah. There was a hearing on Tuesday before Judge Richard Leon here in D.C. and Senator Kelly is, a retired naval captain, of course. He was, he flew 39 combat missions. He was an astronaut. He is now on the Armed Services Committee, and also the Intelligence Committee.

So he comments a lot on news relating to the military. Then, on November 18th he did issue this—he was part of this video with five other members of Congress also on military committees. And he said this administration is pitting our uniformed military against American citizens. You can refuse illegal orders. You must refuse illegal orders. Do no, we have your back, stand up for our laws, for our constitution.

So, Trump immediately denounced that as a seditious conduct, and he was a traitor and retweeted to hang him. And then on January 4^th, Hegseth issued a letter of censure to him and it was for, quote, a sustained pattern of public statements, unquote, that, quote, characterized lawful military operations as illegal and counseled members of the armed service armed forces to refuse orders related to those operations.

The letter also mentions other things his criticisms of the firings of generals and admirals, the National Guard deployments. He writes, you continued to accuse me and other senior military officers of war crimes, and it says that these amounted to five violations. He makes a determination.

There are five violations: undermines chain of command, counsel's disobedience creates confusion about duty, brings discredit upon armed forces, is conduct unbecoming.

It says Kelly can respond if he wants to, but it'll go into his file. But then additionally, it says these violations, warrant reviewing your retirement grade and benefits. He also threatens criminal prosecutions if he continues to do this. The same day, Kelly gets a letter from the Secretary of Navy saying that they are reopening his grade determination for retirement purposes, how much his compensation will be, and he has X number of days to respond.

And then he sues first, First Amendment, due process, separation of powers, speech or debate clause. Also there's a claim about the statute under which they want to revisit his retirement. He says you can't do it retroactively based on stuff that came after you retired.

Judge Leon wanted just, you know, this is a motion for a preliminary injunction. He just wants to focus on First Amendment, the, which is mainly retaliation for protected speech. It's also viewpoint discrimination maybe, but retaliation. And then he just wanted to focus on irreparable harm and justiciability. The main defenses here are, one is that it's not ripe that, you know, he should have let, nothing's happened to him yet, so.

If his retirement grade is changed, then you go through an administrative procedure and challenge that. Also, a lot of military judgements are non-justiciable. Also the First Amendment—active-duty military have diminished first Amendment rights. Now he's retired, and so Judge Leon kept asking during the course of it, wait a minute, do you have a single case where it's, where that's been extended to retired military and if it's extended to retired military, you’re talking about millions of people that have diminished first Amendment rights, but the theory is you can be called up once you're retired.

And so that's the government's theory. You're still in, you're in the military, you're still in the military. Judge Leon seemed skeptical of the government's position. He is gonna try to rule by February 11th. That's because they're supposed to respond to that letter by February 16th.

And so that's where it stands. Arnold and Porter is representing—Paul Fishman is representing Senator Kelly. But Ben Mizer of that firm did the argument and he ended on a strong point, which is that he said, one of the tells was that one of the lines that Secretary Hegseth objected to in his letter was where Senator Kelly said he would quote, always defend the constitution.

So, you know.

Natalie Orpett: Alright, I'm gonna do a little bit of shameless self-promotion, but because I think this is a really important issue, I did a podcast several weeks ago with some former JAGs looking into the substance of that claim of the video of whether members of the military have a duty to disobey direct orders, or, I'm sorry, disobey unlawful orders.

It's complicated, but the answer is yes, with a lot of nuance. Please go listen to it 'cause it's very important. Though not directly at issue in the litigation that Roger was just discussing.

Alright. Let us move on to the general field of immigration which I feel has ballooned into a lot of different things.

So I decided this week to split it up a little bit, starting with the sort of world of reaction to the administration's very aggressive enforcement operations. And in that sense specifically to protests. So, as we know, there's been an enormous influx of activity in the form of deployments of ICE and CBP officers.

We've been talking a lot about Minneapolis in the last couple of weeks and in response there have been very significant protests. In the last month alone two protestors have been killed. The first was Renee Good, who was shot by an ICE officer one, one month ago tomorrow, I believe. I don't believe, to my knowledge, you all should correct me if I'm wrong, that we know of any specific moves by the government to investigate ICE in connection with the shooting.

But there was, this week, a sort of different type of effort to find some accountability in the situation, and that came in the form of a congressional hearing. So, Molly, can you tell us about the hearing?

Molly Roberts: Yeah, so this was a hearing convened by Senator Richard Blumenthal and Representative Robert Garcia, and it was on the violent tactics and disproportionate use of force by DHS agents.

And what was really striking about the hearing was that two of Renee Goods brothers testified. Their names are Brent and Luke Ganger, I think is how to pronounce it. And their testimony was definitely hard to watch. At one point, one of them quoted from his eulogy for Renee Goode, and there was kind of discussion of trying to explain to her niece why one of them was sad, things along those lines, but also the details of the testimony, not just from them but from the other witnesses, were fairly harrowing.

So they testified, but so did Aliya Rahman, who is a woman with autism and traumatic brain injury, who was dragged from her car by ICE and CBP agents. And there's video of this, but she's yelling, I have a disability. I'm on my way to a doctor's appointment, and they're dragging her out of her car. There was a man named Martin Daniel Rascon, whose car was fired on with his family members in it.

And then there was also Marimar Martinez, who is a woman from Chicago who was shot five times by CBP agents and then was later charged with assaulting them. They said that she'd rammed her vehicle into them. We've discussed her before on the podcast. She was the one whose car got driven to Maine and the agents who drove it there ordered the body repair shop to buff out the damage as they were accusing her, of trying to ram it into them. But eventually, they dropped the charges.

And she kept referring to her attempted executioner when she was talking about the agent who shot her. And she kept saying his name, which was striking too, because Kristi Noem and others keep saying that, saying these agents' names is a form of doxing them. And she was sort of pushing back against that idea there.

The main substantive takeaway from the hearing I would say was, well, this is occurring in the context of the general government funding battle, but you know, there's this $1.2 trillion funding package that was signed into law this week, and it funds the majority of federal agencies through September, but it leaves DHS funded only for two weeks.

So there's still this confrontation over Trump's immigration enforcement agenda, and the Democrats have been saying that they're only going to fund DHS if there are changes made to how ICE is conducting itself right now. And so, has various components. But one of the components that I thought was particularly interesting that Blumenthal was calling for in the hearing was some ability for victims to seek redress.

'cause right now that's very difficult. So that's kind of the long and short of the hearing and yeah.

Natalie Orpett: Alright. Thank you. Yeah, and I'll just to round out that last bit, for folks who are not aware the main burden, their main problem with people seeking remedies from civil suits against federal officers is that there is not a statutory right to a civil suit against a federal officer, even if they are legitimately accused of wrongdoing.

So there is a line of cases known as Bivens, but it has become very narrowed over time. I'm raising this now, because it will inevitably come up again. I'm sure it has already. But let us move on now.

The second protestor who was killed in this past month of course is Alex Pretti. And we have heard a little bit more about investigation around his death, and that's in part because there has actually been some litigation about it.

So Roger, tell us about what is happening in connection with evidence relating to his case.

Roger Parloff: Yeah, the Minnesota Bureau of Criminal Apprehension, which is the body that normally helps investigate these sorts of cases sued to when they were excluded from the crime scene—they had actually, I think we mentioned last week, they actually got a search warrant, even though it was a public space. But they could, would not, were not allowed in.

They had obtained a TRO last week to prevent destruction or altering of the evidence. That was before the government had even filed a response. So the government did file a response. And then there was a hearing—and also it, so the government wanted to dissolve this, and the bureau wanted to also get additional access to the evidence.

The judge dissolved the TRO and did not give them access. It's Eric Tostrud, he is a Trump appointee. He said, though the record is not one-sided, the greater weight of the evidence shows defendants are not likely to destroy or improperly alter evidence related to Mr. Pretti's shooting during the life of this case.

He did have affidavits from an HSI officer, Homeland Security Investigations, and CBP agents outlining their obligations to keep to preserve evidence. I thought it was a little odd ruling in places. He does cite the statements of Steven Miller and Kristi Noem, obviously prejudging the situation saying Pretti was trying to massacre people and approaching people with a nine millimeter.

And he says these are troubling and do suggest not a genuine interest in learning the truth, but he found that the connection between their statements was—and to the agents on the ground was too remote. And he also added that it's been, quote, widely reported unquote, that the FBI is now leading the investigation, which I thought was odd 'cause he didn't have any affidavits in front of him to that effect.

But, and also, every sentence seemed to be presuming, you know, indulging the presumption of regularity. And yet, at the end of the thing, he said, I've assumed for purposes of this ruling that the plaintiffs have rebutted the presumption of regularity. So, I found it puzzling. I think it was presuming regularity.

Natalie Orpett: Yeah, I agree. I found the reasoning on that one very confusing. The other element that I found a little puzzling was just on the way that he set forth the balancing of equities and the risk of irreparable harm. I thought sort of missed a step and got up, caught up in the merits at a pre-merits phase.

But lest we get too into the weeds on that one there has been litigation, as well, in other places on allegations about excessive use of force. Molly, there is a case that we're referring to as the Portland Chicken case, which doesn't seem sufficiently serious to be around these issues.

But tell me what we're talking about.

Molly Roberts: Yeah, I mean, on the one hand, maybe it doesn't seem sufficiently serious. On the other hand, you know, he's wearing the chicken suit for a reason, I suppose. So the Portland Chicken case is a case that stems from protests at, what's known as the Portland ICE Building and the Portland Chicken is only one of several plaintiffs in this suit. There's also an elderly couple, there are veterans, there are journalists. The chicken suit is kind of part of this general trend of inflatables and other silly costumes that people are wearing at protests. Partly just sort of, I guess as Ben would say, mock the situation, right?

'cause you have Kristi Noem trying to say this is a war zone. And then you have a photo of her and there is a photo of her standing there looking out over this crowd where there was a guy in a chicken suit. And so then you know who looks ridiculous now, but the facts of the case aren't particularly amusing.

They're lots of examples of excessive force. The judge, and the judge in this opinion, 'cause he granted a temporary restraining order to these plaintiffs kind of talked about free speech and news gathering. As I said, some of them were journalists and he explicitly made a contrast with authoritarian regimes.

He said, in a well-functioning, constitutional, democratic republic, free speech, courageous news gathering, and nonviolent protests are all permitted, respected, and even celebrated. In an authoritarian regime, that is not the case. And he sort of said, it's the judiciary's role to help stem the tide of, well, he didn't say stem, the tide of creeping authoritarianism.

Those are my words. But he didn't say any, he didn't say something that far from that either. But the examples of excessive force here were unsurprisingly upsetting. They had to do with an elderly couple, I think they're in their eighties, both of them. Who, one of them had his walker shot with the, what do you call the little balls?

They're not pepper balls, are they?

Roger Parloff: They, yeah, they are.

Molly Roberts: Okay. They are pepper balls. Yeah. Shot with pepper balls. You had a journalist who had pepper spray sprayed all over him and over his camera. And the Portland Chicken himself was pushed 15 to 20 feet. And then when he got up, he was starting to walk away and they shot a bunch of pepper balls at his back, stuff along those lines.

So the judge, evidently, thought that this was excessive force and the claim that they were focusing on, their motion for a temporary restraining order, was about First Amendment retaliation, and he found that there was First Amendment retaliation here, so he issued a temporary restraining order, but it is narrow.

I mean it's confined to the Portland ICE building, in protest at the Portland ICE Building. But his thinking was that he had to issue that temporary restraining order against ICE agents using excessive force there to give complete relief to these plaintiffs. He couldn't just say you can't use it against them because their First Amendment speech news gathering would still be chilled if they were using that force against anyone at that space where they might go to protest.

Natalie Orpett: Okay, so we'll keep an eye on that litigation as well. Good to remember that these issues are being litigated in many places, not only Minneapolis, because same sorts of incidents are happening all over the country.

Let us switch gears a little bit to a different follow on effect of the administration's immigration enforcement actions, which is the tremendous burden that they are putting on the legal system.

So this came out in a pretty unexpected way, but we thought it deserved some attention 'cause it speaks to much broader issues. There was a hearing on February 3rd in Minneapolis. It came out of a hearing for several different petitioners for habeas corpus, individuals who had been detained in connection with I believe ICE, maybe also CBP was involved, roundups, I suppose.

And there was an assistant U.S. attorney who had some really remarkable things to say. I'll just preview before I turn it over to Roger to explain what this was. This is sort of being talked about as the quote unquote, this job sucks meltdown. The “this job sucks” is in fact a direct quote from the transcripts.

But I think the meltdown is a really condescending term to place on this. So I hope that what we talk about here can serve as a little bit of a corrective to some of the, in my view, really inaccurate portrayal of what happened here and frankly how we should understand it. So, Roger, over to you.

What happened at this hearing?

Roger Parloff: Yeah, this is a habeas, and what's happening throughout the country, but in Minneapolis in particular the Trump administration is not just arresting a lot of people, but it's also taking the position that none of them are entitled to, virtually none of them are entitled to bond, which has not been the case in the past for almost, for a huge proportion of them.

So they must be kept and no one can handle this volume of detainees and keeping track of them. And this volume of habeas corpus 'cause, which have to be brought individually.

And so, this the case is called Segundo, A.P.G. PACER doesn't print their last names even though it's not really a secret. And the special assistant U.S. attorney was Julie Le. And she was being confronted. She was, it was there. It's a criminal con—well, it's a civil contempt motion because they haven't responded to, the habeas corpus orders saying to release the person. And it's not an isolated incident, it's just a wave of this same sort of problem. And she says, at some point, what do you want me to do? The system sucks. This job sucks. And I'm trying every breath that I have so that I can get you what you need.

She says, sometimes, I wish you would just hold me in contempt, your honor, so that I can have a full 24 hours of sleep. She talks about how it's pulling teeth to try to get ICE to respond. She, herself, had been an immigration attorney for ICE, in the immigration courts. Had volunteered for this job, had tried to go back. They wouldn't, they couldn't find anyone else. They wouldn't let her. And she also talked about, you know, she's Vietnamese herself. She's an immigrant from ‘93, and she's worried about racial profiling. She's sensitive to what's going on.

But I also thought the judge's comments and the defense lawyers' comments, you really should read the whole transcript. It's worth it. It's out there. It's on my social media threads. It's on other people's as well. The judge says, the overwhelming majority, he's saying, you know, this is serious business 'cause the overwhelming majority of the hundreds seen by this court have been found to be lawfully present as of now in the country.

So, you know, we're punishing people that have done nothing wrong. They're in jail, and he's saying what you cannot do is to detain first and then sort out lawful authority later. Continued detention is not lawful just because compliance with release orders is administratively difficult or because an operation has expanded beyond the government's capacity to execute it lawfully.

He said ‘…In many instances, I have had to not just issue an order, but another order. Another order. About seven or eight different iterations sent to the government, simply asking essentially for release.’ And then he also talks about how the, his orders keep getting longer and longer 'cause he has to add things that he shouldn't have to add.

You know, when people are finally released, they'll be released in New Mexico or in Texas with no means of getting back. Or they'll be released in the clothes that they were picked up in, pulled out, you know, pulled out of their home—like one defense lawyer said at this thing, hearing, we shouldn't need a specific court order to ask the DOJ not to put someone's life in danger.

They're wearing Crocs, or my words, whatever they had been wearing when they were pulled out of their homes. She says, I've had to pick up clients, quote, “who were left on the side of the road with no coat, no phone, no wallet, no hat… and it's zero degrees outside.” So you have this overwhelming thing where everyone, and not just Le, I mean, her supervisor, the chief AUSA Ana Voss is there.

She's not saying, oh, this is wrong. She's getting it all wrong. She's not saying this sucks, but she's not saying any of this isn't how it is. And then you know, Politico did a story about what happened there. And so they dutifully go to, I think this is an important part of the story. They dutifully go to Tricia McLaughlin, you know, the DHS spokesperson, and what does she say?

She says, “the Trump administration is more than prepared to handle the legal caseload necessary to deliver President Trump's deportation agenda for the American people.” And then she blames, quote, activist judges who have attempted to thwart President Trump from fulfilling the American people's mandate for mass deportations.

So you just have this utter, you know, refusal to face facts, just these reflexive lies. The statement from DOJ was essentially the same, except talking about rogue judges instead of activist judges. It's a really shocking transcript and I think the DOJ and the DHS official responses are just as shocking.

Natalie Orpett: Yeah. And I will not get us too long on this, though I have a lot of thoughts as well. But the one other thing that I have not seen surface much and I think is really important, albeit very small insight that we got out of this transcript is, Julie Le said at one point “I was told that if we provided all informations, the protestors would show up at the airport and the agent and other people will be in danger.”

So this is in the context of her explaining to the judge, 'cause this was an order to show cause. So the judge started the hearing with a real walking through some of the really terrible situations that had happened in connection with these specific cases. But sort of more broadly to the, and this sort of hearkens back to the letter that we spoke about last week that Judge Schiltz had put together documenting, you know, 90 some odd examples of the government defying court orders.

There is this insight in here that one of the reasons—she's talking about some, we don't really know 'cause it's a little unclear from the transcript. There had been some mention the government had of why complying with the orders and bringing people to where they needed to go to be released in accordance with court orders would be dangerous.

And they're trying to talk around this because something is maybe under seal. But it comes out that, in this sentence that I just read, that part of what the explanation was for what was dangerous and thus was hindering the government's ability to release people who had been found to be unlawfully detained, was that she was instructed it would be dangerous to provide information to judges when they did things like issue orders saying, I need to know the time and place of this person's release because they were supposed to be released already, that she was being told by her superiors, she could not provide that information because it would put the agents at risk.

So that's a little bit lengthy because it requires some contextualization, but I think it was a potentially important insight into what the instructions are inside of DOJ. You know, there, there are a lot of different factors that can go into the degree of non-compliance that we're seeing in the courts.

And it is not, and I think it would be a mistake to understand it all, to be on the basis of just deciding that it's okay to disobey the courts. I think there really are, and I think this is part of what, Julie Le was saying when you read the full transcript and understand her statements and context, that there are just a ton of systemic problems that are contributing to this.

And that's important to understand because it's they're much harder to fix. And when they're this deeply ingrained and diverse in consequence, it's important to understand the complexity there. So, sorry, Roger, go ahead.

Roger Parloff: Yeah, one last thing. The judge has not ruled yet—Judge Jerry Blackwell.

So we, we could still be getting a very interesting ruling coming down the pike.

Natalie Orpett: Right. Okay. So now we get to shift gears to federalism by which I mean when states and federal powers have to confront each other and disagree about what the right thing is to do. So, Roger, with the whiplash, that goes from what we were just talking about to talking about a 10th Amendment suit.

Tell us about Minnesota's lawsuit against DHS.

Roger Parloff: Yeah, well, you know, there's been a ton of lawsuits. You know, the ACLU, has brought some have been brought for observers, and Minnesota itself brought one with the two Twin Cities. And they actually have like 11 causes of action. But for the TRO, they tried sort of the biggest, conceivable one, which was to kick ICE out. And they tried to do that under the 10th Amendment.

And they tried to do it in a way that's never been done before. It would've been quite a remarkable order. And it was an interesting argument. The stronger of the argument was that this was coercion that they were trying to force the state to change a policy, the so-called sanctuary policies which is actually the city’s and county’s, to the extent it exists. By, through coercion, and in this case through fomenting violence and chaos in the streets.

There’s a precedent for, coercion violating the 10th Amendment in the, in a statutory context but not in a context here like, where it's federal agents ostensibly enforcing federal law, but really wreaking havoc.

So the judge, Katherine Menendez, who had been basically reversed or her order in a different case, had been, stayed about three or four days earlier by the Eighth Circuit in sort of a stinging rebuke, denied this TRO, she said. And she quoted the Eighth Circuit’s rejection of her other order three times in this one, including “federal courts do not exercise general oversight of the executive branch.”

It, it's a narrow ruling. There were some remarkable things in it. She said Minnesota's claim that the entire operation is, quote, unlawful, unquote, not a legitimate exercise of federal law enforcement power is, quote, not without merit unquote, but she said that given that there was no, that there was no precedent really on all fours and she said to extend existing precedent to a new context, she said novelty does not preclude ultimate success, but it weighs against … preliminary injunctive relief. And so, this was not a big surprise, but it was an interesting ruling.

Natalie Orpett: Alright. So, in a sort of similar vein there have been a bunch of confrontations about access to detention facilities.

And this this week there was action and some litigation challenging an ICE policy on that subject. Eric, can you tell us about that?

Eric Columbus: Yes. This is the latest round in an ongoing dispute between Democratic members of Congress and ICE about access to detention facilities, to ICE detention facilities. In the beginning of the Trump administration or it may have been during the summer of last year, ICE imposed a requirement that members of Congress must provide a minimum of seven days’ notice before being allowed to enter ICE facilities in order so that they may prepare, they would say so that they could prepare for the visit.

More skeptical sorts might claim that this is so they can sanitize things for a very narrow period of time and make the situation look a lot better than it normally is. Obviously, unannounced inspections are far more powerful at being able to figure out what's actually going on in a facility.

Democratic members of Congress sued and pointed to a provision, known as a rider, in an appropriation statute that has existed for several years, preventing DHS from using funds appropriated via the normal appropriations process to prevent members of Congress from entering for the purpose of conducting oversight facility is used to detain non-citizens.

And the language of that statute—so, sorry. They sued under that, and they prevailed last fall, by the judge, district court judge in D.C., Judge Jia Cobb said that it was, the language of the statute was quite clear that it did not allow any notification requirements to be imposed on members of Congress.

So in January, Kristi Noem issued a new memorandum, purporting to reinstitute the seven day notice requirement by claiming that this new policy was to be implemented and enforced exclusively with money appropriated by via the One Big, Beautiful Bill Act of July 2025. In other words, the reconciliation bill, which was passed solely with Republican votes as it was exempt from the 60-vote cloture requirement, and Democrats, the Democrat, the plaintiffs then challenged that as well, and said basically—look sorry lemme back up a bit.

That lang—everyone agrees that language is, that bill does not impose any limitations on ICE's ability to limit access with it via notice requirement. The Democrats said instead, look, there's no way that you can segregate the funds. There's no realistic way that you can actually segregate the funds so that you're only drawing down money from this reconciliation pot rather than from the annual appropriations.

And they included affidavits from ICE officials, previ, sorry, prior ICE officials from prior administrations saying basically that, explain that how the various pots that are used for salaries, they're used for detention facilities that are used for all the everyday work in the department. So that's basically impossible to segregate it. And the administration did not make a huge effort to counter that, apparently.

They did kind of claim that money used in the promulgation of the policy was not money that was, that is used to restrict senators’ or representatives’ ability to enter the facility. The judge was not convinced by that. She granted the temporary restraining order. We will see what ICE does next.

Natalie Orpett: Okay. So, Roger, I think we're back to you on a true lightning round of getting into the actual immigration cases themselves. So let's start with the Fifth Circuit oral argument on DHS's mandatory detention policy that we've been speaking about the past couple of weeks.

Roger Parloff: Yeah, so this is this issue that Kyle Cheney has been all over, and we've got literally thousands of cases.

And—

Natalie Orpett: Which, sorry to interrupt. I'm going to shamelessly promote Roger now. Roger did a very excellent podcast with Kyle talking about Kyle's reporting and the really amazing stories that are coming out of tracking that litigation relating to the mandatory detentions.

Sorry, Roger. Go ahead.

Roger Parloff: Always time to interrupt for that. You know, there's been more than 350 judges who have rejected the Trump policy here, which was invent—which was started in last July. It's a reversal of policy. I think 29 years of since the statute was enacted.

But about 20 judges have gone the other way. Mostly Trump judges, but not all. And, anyway, the government has been pushing to have the appeals expedited in the Fifth Circuit and in the Eighth Circuit, the two of the most conservative circuits, the Eighth Circuit is also Minnesota. It's been opposing expedited treatment in all the other circuits.

The Fifth Circuit one came to argument Tuesday, and I think that they will probably win. In that case, it was Edith Jones, who's a Reagan appointee. Although I mean she is like, she's been a Trump judge since before Trump was born. You know, she is a tough cookie. And Dana Douglas, who's a Biden appointee, and Stuart Kyle Duncan, who's a Trump appointee.

And I think it, it sounded like it will go on, political lines. And meanwhile, the Seventh Circuit, the same day, was visiting this issue also, but in a more a more complicated case. It's a consent decree that goes back to 2018, and it's not the main event. But—and they've already, on December 11th, they sort of, they said it was likely that the Trump policy was wrong.

So, we will probably have a split in the circuits very quickly. The Eighth Circuit is also fully briefed on this, that I don't think that an argument date has been set, but this is moving along.

Natalie Orpett: Okay. And just remind me, Roger, this the core of the legal issue is just a statutory interpretation question of whether the policy, whether the language of the statute permits this sort of policy making.

Is that right?

Roger Parloff: There's two statutes, 1225(B)(2) and 1226(A) and one seems to, until July of last year, everyone understood 1226(A) to apply to people that have been in this country for a long period of time illegally. And 1225(B)(2) was when you catch them right after they come into the country or shortly, you know, shortly thereafter.

(B)(2) is about seeking admission, and so, detention is mandatory when you catch the person seeking admission that illegally it's, you get a bond hearing. If you've been here for 30 years and you have, you know, you, you live in Iowa and you have a—you're married to, you know.

Trump administration has developed a theory. No. They all fall into (B)(2),

Natalie Orpett: Right.

Roger Parloff: So, and that's the issue.

Natalie Orpett: Okay. Alright. The next case I wanted to ask you about is DVD there were oral arguments this past week. Remind us that one what that one was, and how did oral arguments go?

Roger Parloff: Yeah. So this is in First Circuit.

This is the third country removals case. And you know, this is another change in policy. Third country removals were exceedingly rare until shortly after the Trump administration, second Trump administration took office. This is when you do have an order of removal, but for some one reason or another, you can't go to that country.

Maybe we don't have relations with it, like Cuba, or more likely it's because there's been an order that you'll face persecution in your home country. This is like Abrego Garcia, or you will face torture under the CAT, the Convention Against Torture. The Trump administration has adopted a policy, that once you've been have this notice of removal you have virtually no rights and we can just send you to South Sudan or wherever we can get an in for you Ghana even though you have no relationship with the country ever before Tini and what the position is if we get, there's two situations.

One is if we get diplomatic assurances from the country that they won't, you know, let you be tortured, then you have no rights. We just send you there. And that's what happened with I think Ghana and we saw Ghana, refouled, send back a lot of people to the country that they were supposed to not go to because they would be tortured or persecuted.

And the, if you don't, if we don't get diplomatic assurances, then you get 24 hours’ notice, and in some cases just six hours’ notice and you need to affirmatively convince raise a reasonable fear. And so anyway, the case is whether this policy is lawful. And it's in a very complex procedural posture.

The lower court did grant a preliminary injunction, but the Supreme Court has stated, and also meanwhile the case is going forward at the district court towards summary judgment. And I think that the plaintiffs would actually prefer if the court would simply remand and let a fuller record supplant the one that exists now.

But anyway, that's where it stands, it's very, it's a very tortured procedurally right now.

Natalie Orpett: Okay.

Roger Parloff: For what it's worth, it's a Biden, it's two Bidens and a George W. Bush.

Natalie Orpett: Okay. Alright.

Roger Parloff: Chief Justice Roberts would not approve of the way I'm describing them.

Natalie Orpett: Alright, next case.

And then you get a brief reprieve, is the, I'm actually not sure how to pronounce the plaintiff's name. The case regarding Haitian temporary protective status or TPS.

Roger Parloff: Yeah. Miot. As if I'm an expert. But this was, this is a real, it's about 80 pages, but it's an interest, a re well written article ruling by Ana Reyes in the district court.

And it's five Haitians—this is a TPS case. We've spoken about temporary protective status. You remember the Venezuelans, there are 600,000 Venezuelans. There's 350, some, thousand Haitians that have this status. This is five. And Secretary Noem has been trying to terminate every country that has been designated as a temporary protect—given temporary protective status.

She's term, she's tried to terminate 12, all 12. I mean, there isn't one that she's preserved. And Haiti is the most awful situation. I mean, this began in 2010 with an earthquake and, you know, then it was followed by cholera and then it was followed by the fall, you know, the assassination of the president and the gang violence and there's no government.

And the current State Department guidance is that Americans are not supposed to go there under any circumstances. And it's worse that guidance has gotten worse from when Mayorkas was there. And these five are in their twenties and thirties.

And, like, one was two when she came to this country. She doesn't speak French, she doesn't speak Creole. If you sent her there, she would probably get killed. You know, it's, this is not a safe place. If she's not, if she doesn't get killed, she'll starve. If she doesn't starve, she'll get, you know, a disease.

And Judge Reyes begins with a Kristi Noem tweet: “I am recommending a full travel ban”—which was about three days before she terminated, tried to terminate Haiti's TPS status—"I'm recommending a full travel ban on every damn country that's been flooding our nation with killers, leeches, and entitlement junkies… We don't want them, not one.”

And then she writes, “the plaintiffs are not it emerges killers, leaches, or entitlement junkies. They are instead… a neuroscientist researching Alzheimer's, a software engineer at a national bank, a lab assistant.” I get—it's a hard case.

But anyway, she decides that it's arbitrary and capricious under the APA and also a violation of equal protection racial animus against non-white immigrants. And so she, this is what's called a stay under, even though it's just five plaintiffs. It's a stay under the APA, under 705 of the APA. And so, it actually benefits all 350,000 if it stays in effect.

And it's been, obviously it's already—appeal has already been noticed and a motion to stay.

Natalie Orpett: Okay. We'll definitely continue watching that one as well.

Okay. Roger, please take a take some breaths while I go over to Eric because I know you just went through a whirlwind of downloads for us.

Eric, talk to us about this—There's a photo that I think really became a symbol for a lot of people of some of the immigration enforcement actions that were being taken, which was a little boy in a bright blue hat and a Superman backpack, if I recall correctly, who was detained with his father.

And there have been some subsequent developments in his case. So what's going on?

Eric Columbus: Yeah, so this is an interesting case in, just in terms of what it says about how the media and administration and the judicial system interact. This was, on January 20th, a boy named Liam Conejo Ramos, wearing a bunny hat and a Spider-Man backpack, was detained with his father outside his home in—outside their home in Minneapolis.

I should note that I haven't seen this reported, but “conejo” in Spanish means rabbit, which explains, I believe, the hat. And the officials at his school said that he was—the five-year-old who was arrested with his father, was being used as bait to lure family members out of the house.

And DHS denies this, but there have been numerous cases where DHS has told one story, and the other others have told a different story and evidence has come out to support the, or to demonstrate that DHS was not accurately portraying events in the immigration enforcement world over the past six months.

Anyway, they are detained and sent to a family center in Texas. And it got—the photo went viral and they filed a habeas petition to get out of detention. And the judge, Judge Biery in the—trying to see which district of Texas it is—the Western District of Texas, granted their habeas petition, but he, and he did so in he a three-page opinion that is shall we say, rather unusual.

It cites more Bible verses, two, than cases, one, and only in a footnote. And it is basically rhetorical saying that these petitioners seek nothing more than some modicum of due process on the rule of law. This case is about the ill-conceived and incompetently implemented government pursuit of daily deportation quotas, apparently even if it requires traumatizing children.

And it then began to quote grievances against King George III and the Declaration of Independence. It says that—it suggests that the administration has improperly been using administrative warrants to gain access to houses. It doesn't connect that to this case at all. And it's not at all clear how the use of the child, the alleged use of the child as bait would in fact depend on the use of administrative warrant.

And it basically—and then it grants the writ, orders the release of the children, of the, sorry, of the five-year-old child and the, his father. And then it, it has underneath the judge's signature is a picture, the picture, I think, that went viral of the kid in his bunny hat, and two Bible verses: Matthew 9:14 and John 11:35.

And looking up those verses, the first one, sorry I'm getting to it. The first one says, “but Jesus said, suffer little children and forbid them not to come unto me, for of such is the kingdom of heaven.” And the other verse, John 11:35 is apparently the shortest verse in the English Bible: “Jesus wept.”

Now, when I first read this, I thought this judge is being is kind of being ridiculous. He's just grandstanding knowing that people are gonna read what he says if he writes it like this. But after a little bit more thought, I think I've concluded that he may have done so in a, done this in a deliberate and very clever way that was not in fact about himself, but rather about trying to ensure that his opinion stood up.

And he may have predicted, as it turned out correctly, that writing an opinion like this and grounding it in emotion would be more effective in the, if you will, the court of public opinion, in ensuring that the administration would not try to appeal, not try to take it up to the Fifth Circuit, which, where the administration usually is a very friendly audience, but instead would release the kid and his father.

That is exactly what happened.

The story does not in there, however 'cause we found out today that the administration moved up by several weeks an asylum hearing for the boy's father, and therefore the boy, also, which was, is now taking place, apparently took place, reportedly taking place today.

So they are still very much trying to kick this kid out of the country, but they're trying to do so without getting the bad publicity of having to take on a judge who writes an opinion like that. So I found that kind of very telling snapshot of where we are in immigration issues these days.

Natalie Orpett: Okay. Thank you for that. We are going to shift gears to, what I suppose is sort of a cross-cutting categorization of things, derived from some, somewhere between Article Three and Article Two, let us say. And this relates to the long tail of the misconduct allegations against Judge Boasberg, allegedly in connection with some comments he made at a judicial conference after which DOJ filed a complaint against him.

Eric, back to you. Tell us what has happened, what has become of this misconduct complaint?

Eric Columbus: So this is another interesting example of performance. I talked about Judge Biery’s opinion as being performative in some respects, or appearing performative. Here we have a, basically wholly performative misconduct complaint filed against a district court judge, Judge Boasberg, who has ruled against the Trump administration on several immigration cases, several high profile immigration cases this including case cases under the alien—

The administration's attempt to invoke the Alien Enemies Act and deport detained individuals allegedly affiliated with the foreign terrorist organization, Tren de Aragua. And this judge is someone who's become an enemy of the administration, or rather someone who the administration has tried to portray as an enemy and various members of Congress have called for his impeachment. I think Elon Musk, back at the time when he was commenting on some things, called for his impeachment, I don't know whether the president has it, it would not shock me if he or other members of the administration have, but I don't recall specifically that they've done.

So, at one point, last I believe it was last summer I think it was July, the then chief of staff to Attorney General Bondi filed a judicial misconduct complaint against Judge Boasberg. And the gist of the complaint was that Judge Boasberg violated the code of conduct for United States judges based upon a comment that he made, allegedly, at a meeting of the Judicial Conference of the United States and.

This is—the Judicial Conference of the United States is a policymaking body that has, that consists of the chief judges, chief justice of the United States, the chief judges of all the circuit courts, and the chief judges of certain of district courts. Judge Boasberg is the chief judge of the court, of the District Court for the District of Columbia.

And the gist of the complaint was that Judge Boasberg violated ethics rules by expressing concerns that the administration might disregard rulings of federal courts leading to a constitutional crisis. This complaint was then made public, of course, by DOJ, and it was submitted to Judge Srinivasan, who is the chief judge of the D.C. circuit.

That's, you know, normal course of events of how these things are handled. And he then, because the D.C.  circuit was, would be hearing various appeals coming from Judge Boasberg, he felt it was inappropriate for him to handle the complaint. So he sent it to the chief justice and asked the chief justice to, you know, maybe assign to someone else.

So then Justice Roberts sent it to the Chief Judge of the Sixth Circuit, Jeff Sutton. Jeffrey Sutton, who is appointed by, George W. Bush, a very well respected and very conservative judge. And he last—this week published a seven page opinion written very politely, but basically concluding that the complaint was nonsense.

And as this conference included the chief justice and all the chief judges, Judge Sutton and Chief Justice Roberts were there in the room when the alleged comments were made. And so they basically know what happened. And the, Judge Sutton notes that the Department of Justice had a footnote to the allegation citing the only source of evidence in their complaint was a footnote called which it called Attachment A for the judge's statement, and the setting where it occurred.

The submission to Judge Srinivasan did not include Attachment A. And a bunch of us kind of wondered about this when DOJ released their complaint, there was no Attachment A, and we kind of wondered about that and turns out that they didn't actually submit it to Judge Srinivasan either.

And Judge Sutton says, well, you know, we the D.C. Circuit contacted the department about the attachment and said, look, you know, if you don't submit it, we're gonna, we're just gonna decide without it. And the department never supplied the attachment.

And so Judge Sutton says, well, look, there's nothing we can do. This is—but even if we assume for the sake of argument that we made, that he actually made some comments, this was not, quote, prejudicial to the effect of—expeditious administration of the business of the courts, which is what the judicial conduct rule that's relevant requires.

There was also another allegation that they made regarding his handling of the underlying Alien Enemies Act litigation. And Judge Sutton said, basically said, look, if you've got problems with what the judge is doing, your remedy is to appeal. And in fact, you did appeal. And there's, it's not an ethical issue. So it was kind of remarkable rebuke of the department. It just, I think, kind of shows that this complaint that they ginned up was wholly for the purposes of getting attention, I think in, with their base, with right-wing media, with Republicans of Congress who disliked what Judge Boasberg was doing and it, they didn't care at all about the outcome months later.

Natalie Orpett: Alright. We have one more item that I am gonna come to Molly on momentarily. But just a reminder, if you would like us to answer any questions, please go ahead and put them in the Q and A box and we will turn to them next.

So Molly, I feel like you, you're getting another blast from the past right now, which is way back in the day when all we talked about was DOGE.

And you know, the wheels of justice go very slowly. So there has been litigation about DOGE and there was some interesting developments in one of those. So tell us what happened last week.

Molly Roberts: Yeah, a blast from the slightly more recent past, but both this and the previous topic I discussed are before my time at Lawfare, so I cannot whip out a, who is the administrator of DOGE hat. I don't have that in my wardrobe unfortunately. Maybe someday.

This is a lawsuit from current and terminated USAID employees against Elon Musk and other officials linked to DOGE in which Musk, as well as former USAID Director Peter Marocco, and Department of State Official Jeremy Lewin were seeking to avoid being deposed, and what has happened here is Judge Theodore Chuang has not gone for this.

He has said that they cannot avoid deposition and they will be deposed. The lawsuit asserts violations of the appointments clause and the separation of powers in the defunding and dismantling of USAID. And what Musk and his co-defendants had said was that they were invoking what's known as the Apex Doctrine, which sounds like something Elon Musk would want invoke, and that's a rule that lets high-ranking officials avoid depositions, but only in some situations.

And Judge Chuang ruled that the Fourth Circuit hasn't adopted Apex Doctrine. It has recognized that high-ranking government officials may be able to avoid being deposed if their testimony would be about the mental processes or reasons for taking official acts, and also that they'd need to show extraordinary circumstances.

So, crucially, he said that Musk et. al. were perhaps not properly deemed to be high ranking government officials, which makes a lot of sense, given they were always acting in an unofficial and formal capacity. Who was the administrator of DOGE, et cetera, et cetera. The defendants had said that Musk's role as senior advisor to the president made him a high ranking official, but that wasn't the relevant capacity in which he was acting in the case.

The judge also said that one reason for the protection against deposition for high-ranking officials is that high-ranking officials are super busy, but Musk is kind of just chilling now. He's not working for the president anymore, so that didn't hold up. Then, the judge finally said that there are extraordinary circumstances that make it necessary to have a deposition here, which is essentially that the claim in the lawsuit is based on the allegation that Musk made decisions relating to the shutdown and dismantling of USAID when he lacked the authority to do so, and that there was no duly authorized official who did approve or ratify those decisions.

So, they need his testimony to figure out what his role was, when, and more generally, who, in what, role made key decisions here, when? And because Musk and the other defendants have acknowledged that all the relevant orders were given orally that there's no documentary record and because they haven't identified any lower-ranking officials who were present when those decisions are made, basically just 'cause they were off making these decisions willy-nilly sounds like, and not writing anything down anywhere.

There's no other way to get the information. So they have to be deposed, so, oops, on their part.

Natalie Orpett: Alright, well, I think those depositions are unfortunately going to be behind closed doors, so we'll just have to wait and see if anything comes out in filings. But, good to hear, I guess. Alright. It is looking like we have no questions.

So I'm going to assume that we did such an extraordinary job and my colleagues are so knowledgeable that we have left you with only answers. But I want to thank all of you for joining us and thank you to Eric, Roger, and Molly for your wisdom and all of your research on the incredibly wide-ranging number of things that we're covering these days.

Thanks very much and see you next week.

[Outro]

Benjamin Wittes: This podcast is part of Lawfare’s livestream series, Lawfare Live, the Trials of the Trump Administration. Subscribe to Lawfare’s YouTube channel to receive an alert the next time we go live. The Lawfare podcast is produced by the Lawfare Institute.

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