Lawfare Daily: The Trials of the Trump Administration, July 11

[Intro]

Scott Anderson: He really was saying, I know what you're doing, executive Branch, and we're not even gonna get there. We're gonna stop this, nip this at the bud.

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

In the July 11th episode of the Trials of the Trump Administration, we discussed the Supreme Court's ruling allowing mass terminations of federal employees, the many hearings this week in the Kilmar Abrego Garcia civil case, updates on the Trump administration's attempts to dismantle various executive agencies, and so much more.

[Main Podcast]

It is Friday, July the 11th, 2025. It is 4:00 PM and you are watching Lawfare Live, our weekly roundup of the trials and tribulations of the Trump administration. I am joined - well, I am Benjamin Wittes Editor in Chief of Lawfare, joined by the very estimable Roger Parloff in the Sconce Studio. Hello, Roger.

Scott Anderson: Hello Ben

Benjamin Wittes: And Scott Anderson in the very blurry basement studio. How are you Scott?

Scott Anderson: Cannot complain. Cannot complain.

Benjamin Wittes: Because you are not a State Department employee and have not been RIF-ed. 

Scott Anderson: No longer.

Benjamin Wittes: But we are gonna get to all of that in a moment. We are shortly to be joined by the very estimable Anna Bower from some previously undisclosed room in her palatial mansion.

She is just returning from the latest of the Kilmar Abrego Garcia hearings, which required that she take the train back to New York. So, she will be with us in a moment. Let us start this week, Scott, with the Supreme Court's big decision on the emergency docket. Of course, not to stay the riffing.

And by riffing, we mean implementations of mass firings, otherwise known as reductions in force at a variety of federal agencies. This one was not with the usual six three split. It was very bitter, however. So what did the Supreme Court do? And who objected? And what is the ongoing result?

Scott Anderson: So this was a decision that came out down 8-1, as you noted, Justice Jackson being the sole dissenter. And it is because it's one of these motions or cases that's arisen on the shadow docket, the kind of expedited proceedings docket we actually don't get as is often the case of those cases as explanation as to exactly what the court's reasoning is, which makes it a little hard.

The, the question before the court is whether to maintain a preliminary injunction a district court had issued that had essentially enjoined the executive branch, the Trump administration from pursuing risks and a couple of the related measures, risk being terminations of federal employees across a whole range of federal agencies based on the president's early executive order about downsizing the size of the federal government and a implementing OMB directive. The majority said essentially, we're gonna stay that injunction. We don't think that injunction is appropriate at this point.

A concurrence from Justice Sotomayor, who I think it's fair to say, is the justice who joins Justice Jackson most often in dissent at least has recently in these particular line of cases, dealing with some of the Trump administration's actions, wrote a paragraph or two concurrence essentially saying, look, here's why we're doing this, and, and implicitly why I'm joining it.

It is that the actual executive order by President Trump and the OMB implementing directive, both say that executive agency shall take steps to reduce agencies within the contours of the law consistent with the law, and so. On its very face—and worth noting neither one is very specific. They both basically just direct agencies to develop plans for pursuing these broad policy objectives consistent with the law. so on their face, neither of them actually direct any sort of unlawful conduct. So there's no basis for enjoining it or no basis for believing that the government will lose on the ultimate merits. So it's a warrant in injunction and that that's the base on which they stay.

Now Sotomayor really takes pains to make clear and the court itself, I would say, if you read it, particularly in the context of Sotomayor's, concurrence seems to say much of the same thing, which is basically we're not pass, no judgment whatsoever on any actual plans agencies might adopt to implement this executive order and this OMB directive. So if an agency develops a RIF plan or actually RIFs people, then at that point you can challenge it and maybe you can even get another injunction. But right now, when all we're dealing with are two very broad orders, both of which expressly say, act consistent with the law, it's hard to say that the executive branch is doing anything illegal here.

Justice Jackson wrote a pretty lengthy certainly compared to the rest opinion dissent from this where she both laid out the factual finding that had led Judge Illston in, I believe the Northern District of California to make this injunction initially, where she essentially said. Look, whatever these memorandum might say, it's very clear they are intending, meaning the Trump administration is intending to dramatically cut these agencies in ways that pushes strongly against a variety of statutory authorities, or, and almost, or at least, almost certainly will and therefore this is a very reasonable prophylactic measure.

And Justice Jackson essentially said, when you have an executive branch that you have good, strong evidence, is clearly intended to do something illegal is acting very broadly, has already done so in a lot of other contexts, it is not unreasonable for a district court judge to act with that sort of breath, to act essentially prophylactically to prevent it.

You don't have to wait for them to get further along in this kind of causative chain of unlawfulness to enjoin it. She also says we should give district courts and district court judges the tools they need to regulate these sorts of things 'cause they're the ones at the front lines and we shouldn't be second guessing their judgment, but with, by being too nitpicky. That obviously didn't persuade any other justice, including Justice Sotomayor. You know, I think it is the role that Justice Jackson has found herself in and kind of willingly adopted of really calling out the Trump administration on doing something really unusual and essentially implicitly, if not exp expressly saying the usual standards shouldn't apply, they are doing something extraordinary.

And the court should act in an extraordinary fashion in response regardless. In this case though, at least personally, I was not terribly surprised with the court's outcome in this case because Judge Illston’s preliminary injunction really did address something that was so preliminary before you got these actual plans.

I'm not sure it's actually that significant because again, you will be able to see injunctions and legal challenges to specific agency dismantling and termination plans when they come. You're gonna see a multiple rate of other litigation that's annoying for plaintiffs, it's more costly for plaintiffs, but it doesn't mean the Trump administration's gonna get away with it any more likely.

And in a case dealing with the executive branch, I can see why the Supreme Court would be hesitant to, to kind of adopt a preliminary injunction that is arguably overbroad and that it's restricting things that aren't clearly illegal.

Benjamin Wittes: Alright. I wanna ask you, before we go on to the practical effects of this, I wanna ask you about a quality of this opinion that both you and Roger have raised in other contexts before.

So, you know, normally if you're gonna be fired from an agency and you wanna claim your firing was illegal, you don't go get an injunction against the action, right? You get fired and then you contest it before the Merit Systems Protection Board, and then you file a lawsuit later.

And normally if you're, the government wants to stop your USAID grant, you don't get an injunction against stopping USAID grants. You contest it, you go to the court of federal claims, you if it's illegal, you get relief. And so part of what the majority is, and there's, this plays out in a million different contexts in this litigation where there's a normal remedy, which is you sue after the fact.

And then there's a, hey, wait a minute, but the Trump administration is trying to dismantle USAID or destroy the whole foreign aid program or rip apart the United States Institute of Peace, which is a private organization, right? And do these in these, you know, proactive senses. And so do you see it as a thousand litigations in the regular process? Or is there something genuinely extraordinary going on that causes you to say, wait a minute, none of those remedies in the ordinary course of business gets you to what's really happening here. And I guess the question is, is this six, seven, or eight justices?

It's not really clear how many, 'cause all we know is who signed a dissent. Right? But is this, you know, just Justice Jackson saying by herself, like, we should treat all of these questions as though. Like, don't pretend this is a thousand individual cases of people getting fired. I mean, that's literally the number of people who were dismissed from the State Department today, 1,300 or something.

This is a programmatic activity and we know that, and so let's just proceed that way. Is there, like, is there a big common theme here?

Scott Anderson: Yeah, there is, but I, I, I would not, I'd hesitate to read too much of that into this particular case. 'cause kind of on one end of the spectrum, at least in my mind, towards a you, you this is at, at its such a macro level that it's not maybe unreasonable for the court to say we need to get a little more specificity without going all the way down to which some judges have argued and we've seen district courts and appellate courts find that, you know, each of these employment disputes to these contract disputes has to be taken individually to the MSPB or to the court of federal claims and adjudicated their on their individual merits as contract claims or as employment claims.

I don't think this court was weighing into that debate at all in this particular instance. They have in a few other cases, but, and with kind of mixed results. But in this case, I really think this is actually just about the nature of this injunction. I mean, judge Ston was acting again prophylactically, I think is the best way to think of it.

She really was saying, I know what you're doing, executive branch, and we're not even gonna get there, we're gonna stop this, nip this at the bud. And I think they're saying even in extraordinary times. When you're, we are the Supreme Court and we are dealing with a co-equal to borrow frequent language that the court uses branch of go of government.

We shouldn't be acting prophylactically, at least to that extent. We actually have to wait for the executive branch to try and do something illegal. And then we can enjoin that. We can evaluate, we can do whatever we want, but here's not even clear that they've actually tried to do it, even though there is pretty compelling evidence that that's what they intended to do and almost certainly will do now.

And somebody pointed out in the chat, I'll, I'll mention it here. I, I missed this detail, but it's really useful. Judge Illston is, directed the government to produce the RIF plans by early next week. So at that point then we will have a clear idea about what exactly the agencies are planning, as will the different parties, and presumably they can pursue more direct legal challenges to them.

Again, it, my guess, I think they're probably gonna have to it separately, particularly in light of CASA and the approach to nationwide injunctions. Obviously this court is skeptical of overly broad relief to overly generalized categories, so it's probably gonna be multiple different types of litigation.

But having those plans on board gives you something to sink your teeth into and, and then what this court decided really isn't restrictive at all. That's why I don't think in the end it's actually that significant on, certainly on the merits of the ability of the Trump administration to pursue these sorts of restructurings.

Benjamin Wittes: Alright. One agency produ-, did some, something of that nature today. Tell us what's going on at the State Department.

Scott Anderson: Yeah, I mean, we've, we are getting reports of 1,300-ish risks or terminations, I think a little north of 1,300, about a thousand to the civil service in the State Department, about 300 to the foreign service.

Although it's worth noting, overseas deployments are reportedly still being reviewed, so there may yet be additional cuts from the foreign service and from overseas deployments. I think the 300 foreign service people being cut currently are mostly those on domestic deployment and offices that are being terminated.

You know, the actual formal reporting of this, I think is coming together. I'm a former State Department employee. I've spent all day texting and talking to people about it. It is as far as I can tell from anecdotally, extremely arbitrary people are being cut with years and years of experience, whereas junior employees are staying in place simply based off what offices they're being, they work in.

Huge reservoirs of institutional memory are being vacated because they are, for example planning to consolidate the front office and human resources components for all the different bureaus, which are currently managed separately in one office. Meaning they're eliminating a lot of the people who do that sort of work, which I, I find slightly terrifying if I were a State Department employee dealing with those processes.

Normally a ton of people at a variety of different policy offices are being shut and there's still a lot of ambiguity because they're being done, done in batches. So not everyone who's going to get RIF-ed has heard yet. We, we got reports that it was gonna come over a number of days. It does seem like a lot of them have come today. Almost every office has been hit by some degree of RIFs so far. But there may be yet to come.

And reportedly the total kind of downsizing coming to the State Department at, in this wave and this restructuring is gonna be in the vicinity of 3,000 people. It is the number of people being terminated is only 1,300 'cause about 1,700 people have already taken the Fork opportunity that was on the table until about Memorial Day, as I recall or otherwise departed the department. So pretty substantial down downsizing.

And the point I'll throw in there, which I will just point in there again, as former State Department employee, State Department is the most under-resourced federal agency there is for the scope of its mission and the scope of activities it has to undertake.

This is a really, really dramatic capacity undermining for a really important agency, doing important things at a dangerous and important time in the world. And it, I, the sheer numbers, while the sheer number of people being terminated doesn't compare to certain other agencies, we've seen other agencies fire people in the tens of thousands.

The impact on the, on the agency I, on the department, I think is gonna be pretty substantial. And, and it's gonna make Marco Rubio's job a lot harder. So, I think it's a, a step he's going to yet live to regret.

Benjamin Wittes: And what is the relationship between the State Department RIFs that are going on now and the litigation at the Supreme Court and now back in front of Judge Susan Illston?

Scott Anderson: I don't believe any, 'cause I don't believe the now you have me second guessing 'cause I should go back and double check that. I do not believe.

Benjamin Wittes: No, I think you're right. I think it's unconnected.

Scott Anderson: I don't believe the State Department was one of the agencies enjoined by Judge Illston's preliminary injunction. I'll actually double check that to make sure, and I'll correct myself if I'm wrong on that later in this discussion. But my recollection is that is not included in that.

We've had the reorg plan on the table for a while. We've known that this scale of cuts, the state, to their credit, the State Department has not ambushed people the way other agencies have, at least in terms of the macro level planning.

Benjamin Wittes: Yeah. They've been signaling this for months now.

Scott Anderson: Exactly down to the same number of people has been pretty consistent. This 1,300 to 1,400 number has been pretty consistent for the last several weeks. So we knew it was coming.

What people didn't know is what components, what office. Some people did know, the DRL Department of Democracy Rights and Labor Bureau, which is kinda the human rights office, is being removed and decimated. Global Criminal Justice, a lot of offices that deal with issues the Trump administration is not a fan of, are being decimated and removed, if not eliminated entirely.

And so those people had a good sense that they were on the chopping block, many of them took the Fork and already left. But we are seeing a variety of cuts on, again, lots of bureaus. Almost every bureau is getting hit by some degree of cuts in some capacity. And that's, you know, it, it is a real resource constraint for a department that is often already stretched, extremely thin.

Benjamin Wittes: All right. We will keep an eye on the State Department situation. Scott will look into and make sure that we are correct. He and I both have the same instinct, which is that the relationship between this and the, and the litigation is timing coincidence, not a not a direct result of what the Supreme Court did.

But let us turn to what is the direct result of a Supreme Court emergency docket matter, which is that we have a new nationwide injunction on birthright citizenship. What is old is new again. Scott, you know, meet the new injunction, same as the old injunction. What's going on here?

Scott Anderson: Well, I'm glad you said nationwide injunction. Justice Barrett will be immensely relieved to hear you say that and not universal injunction.

Benjamin Wittes: Right, it's not a universal injunction.

Scott Anderson: It’s a true bête noire that we're all living in fear of.

Benjamin Wittes: It’s a class.

Scott Anderson: Class certification.

Benjamin Wittes: It's a classy injunction is what we're gonna call it.

Scott Anderson: Yes, yes, exactly. This in Barbara v. Trump a case in the District of New Hampshire.

There's one of the ACLU lawsuits challenging the birthright citizenship. I don't think it's actually a huge, I have not been checked the exact status of all these. I actually don't think it's that big a surprise that this was the first case to reach the status 'cause the judge came in immediately after the CASA decision on universal injunctions.

And said essentially we are going to speed run this, at the request of the plaintiffs, to I think over the course of 10 days was the schedule that set out completely brief, brief this class certification question and resolve it so that there's lots of time to appeal it all the way up to the Supreme Court, both in the 30 day timeframe that the court has stayed its own decision on universal injunctions.

So because of the court was very aggressive in pursuing it, it hit that timeline. And now we have a resolution of this issue to, to the judge's immense credit. Essentially what the judge determined is that she provisionally certified a class or he pre-, presumably certified a class. Excuse me.

Benjamin Wittes: And just to be, just to be clear, for those who either don't remember CASA 'cause it was, you know, a week and a half ago, or who never quite understood it. CASA said you cannot issue a universal injunction. A single district judge cannot issue a universal injunction that binds the beyond the parties to the case.

But of course, the parties to the case can include a class, and a class can be nationwide if it meets the if it meets the standards for a nationwide class. And so what Scott is saying here is when, the class certification is a way around the nationwide injunction ban and a way of effectuating nationwide relief against a against the executive order while it goes up for Supreme Court review.

Scott Anderson: Yeah, exactly. And so in this case, what we saw the plaintiff's motion for is that they renewed a request to certify a class for essentially the same group of plaintiffs that have they've been representing, which is the individuals, the, the children who will be affected by this change in policy that the Trump administration is implementing and their parents.

Interestingly judge, and this Judge Laplante in the District Court, said essentially, I'm gonna grant a provisional class certification. That's usually what's done. There is some debate as to whether that's appropriate, but that is usually what you do at this stage where you're evaluating a preliminary injunction. Again, this is all provisional, it's all preliminary relief, so maybe the judge reaches a different conclusion eventually when ultimately weighing the merits. But for the purposes of the preliminary injunction, he reached a provisional conclusion for a provisional class certification.

But he said, I'm gonna apply Rule 23 as to federal rule of civil procedure that governs class certifications. Looked at this request of the plaintiff. He said, actually, no, I'm not gonna certify as broad a class for the reason that parents are clearly affected by this policy. They clearly are affected in a lot of different ways, but the types of harms they suffer actually aren't what squarely adjusted addressed in the complaint.

The complaint is about the constitutionality of the policy and the loss of citizenship for the actual children. And those harms are different both across that class because different parents may have different relationships with their children, their children's citizenship status, and are different than, more importantly, the harms the children will suffer.

And this is really indicative of what a lot of courts are really gonna wrestle with in the aftermath of the CASA decision, which is that Rule 23 requires among other requirements for class certification that the class have pretty similar torts of claims, look a lot alike. And that's something the Supreme Court has really engaged with pretty skeptically over the last 20 years or so.

There have been a number of cases where, including one this term that actually ultimately got dismissed as improvidently granted. But Justice Kavanaugh wrote a dissent from that in where he essentially said, I think this class was overly broad. Where they say we, you really need class members to all sort of look alike.

And now the next big question in all these cases is gonna be, well, how far does that go? How far does that stretch? How diverse plaintiffs can be, members of the same class. In the birthright citizenship context, it's not that hard because they are really, really similar. Lots of other cases that have relied upon universal relief, including like the foreign assistance cases we're gonna talk about later today, that's a much harder question.

So, it is, it's something that we're gonna see litigated over and over and over again. Rule 23 allows for interlocutory appeals on this class certification question. So that is where this is going. Now we have this provisional class certification. It is expected to be appealed, the judge actually stayed her determination for seven days pending appeal. I think it's fully anticipated. She's expecting it to be, or he's expecting, pardon me, to be appealed ultimate at the Supreme Court, who's gonna have to decide on this or, you know, deny cert on whether or not this is a properly construed class.

I don't think it's a hard question for this particular set of plaintiffs. In a lot of cases, it's gonna be a really hard question and we're gonna see a lot of case law on what is a legitimate class and what isn't. Particularly in this sort of public interest litigation context where, because of the use of a universal injunction the last 15 years, we haven't seen that many public interests class certifications. So it's, it's gonna be a very contested legal issue moving forward.

Benjamin Wittes: And Scott, let me just ask you, I mean, one of the reasons that class, the Supreme Court has really tightened up on class certifications over the last 25 years, is that you have these giant plaintiff's law firms that are, or, or plaintiff's law firms that try to certify these giant nationwide classes.

And the court has the impression, and in my judgment rightly so, that the principal beneficiary of a lot of these class actions are the lawyers. You know, you get these huge classes, you get these immense settlements, you take 40% off the top, and then, you know, tens of millions of class members get a pittance, right. And the court is super skeptical of that. And frankly, I don't think they're wrong to be.

It seems to me a really different matter when you're asking for injunctive relief against a policy and you, you're, you're saying, look, we're not asking for, you know, 30 gazillion dollars of which we're gonna take half and, and divide the rest by the number of people in the class. We're asking for an unconstitutional policy by the government not to be enforced. And by the way, the consequences for any one of the class members could be dire at a moment's notice.

Do you think there's any, is there any reason to think that the, when you're not asking for damages and you're dealing with a public party, like, like the federal government on a policy matter, rather than a private action for recovery of damages like the tobacco industry, right?

That you, you, that, that some of the anxiety that people have about the Supreme Court's class action standards might be, like they might take a very different attitude toward it in the context of injunctive relief or am I just fantasizing there?

Scott Anderson: I worry that might be optimistic. It's possible. I mean, I certainly see the logic there. But, A, the case law doesn't distinguish between public interest and private interest class certifications. So, the same determinations that the district courts are gonna be wrestling with, the precedent they're gonna be juggling doesn't draw that sort of distinction. And you know, the logic, you see a lot of judges including Justice Kavanaugh in that dissent I mentioned on the case that that got DIGed this term, if I recall it correctly.

You know, part of it is the essential logic that if this isn't important enough for a plaintiff to litigate, maybe it's not something that we should impose the cost on a company or the government or the defendant to really have to deal with. It's only when you aggregate it that it becomes an issue. And yeah, in the, in the private sector context where you're talking about $5 of damages for each plaintiff, that provides kind of perverse incentives for lawyers to say, yeah, but you get a million $5 payouts or 10 million, and I get 50, 40% of it.

That's actually a good chunk of money. That's something that people may object to, but the logic is there for, you know, smaller scale public harm as well. And so the real question is like, where is the incentive there? The same logic still kind of applies. Is this really a burden we should put on the government? But these are real harms that people are really suffering.

And I think the bigger issue here really is that, you have public government, public policies, the same policy affects Americans in really diverse ways, in really different ways. All of it can be bad, all of it can be very real harms. And so this, a likeness requirement, when you're dealing with often nonpecuniary harms, non-monetary harms to American citizens, which is much more common when you're talking about public policies that are being wrought. The commonality's just not there.

But all these district courts are made dealing with precedents that come from the context of private claims and, you know, financial harm. So I, I think it's gonna be really messy. I'm, I think you might see some courts push back on that logic as you're describing. I don't know whether the Supreme Court will buy into it or not. We'll have to wait and see.

I certainly hope, I think they need to, or else they're gonna have to deal with a lot more litigation, which they ultimately may not wanna do. And maybe they'll come around to that view eventually. But in the initial instance, I am a little more skeptical.

Benjamin Wittes: I think it's a really dangerous area because I think a, I think a bunch of those justices are, you know, skeptical of class actions for, you know, for reasons that I'm not unsympathetic to. And, but they're really thinking of the sort of big evil corporation of America. And commonality is, you know, we all ingested asbestos.

One of us is dying of mesothelioma and the other is, is asymptomatic, completely asymptomatic, but shows up as a, you know, has having some kind of asbestosis on a screen, right? And the, I don't think the Supreme Court is wrong to say, wait a minute, a mesothelioma patient and somebody with, you know, as sort of mild asbestosis do not have the same harm, right. There, that's not a commonality question.

I do think when you're saying, my child is entitled to citizenship and the government isn't giving them their citizenship. And the result is that they're treating them as an illegal alien and they may be deported, you've got a lot of, like, there's a lot of commonality there that's, that's sort of inherent.

And and so I would hope I, I, I started thinking about this because Sam Alito wrote this very grouchy concurrence saying it's really important that we enforce our you know, that we do the exact opposite of what I think is important here, which is, you know, that, that we not treat, you know, that we insist on commonality, on common harms, on, on, you know, similar effects and all, all these things.

And I was just like, whoa, you know, I, I understand that, I understand where that comes from, but boy is that wrong when you're talking about the federal government enforcing unconstitutional policies. So I was, I was moved by Sam Alito to, to think about it a little bit and unsurprisingly came to some different conclusions.

Alright, we're gonna break this up now and go talk about Kilmar Abrego Garcia, and then go back to the subject of dismantling federal agencies before coming back to the subject of, of the other immigration cases. Roger, Anna, you guys were both at the Kilmar Abrego Garcia hearing on, was it Tuesday or Monday?

Roger Parloff: It was Monday, Wednesday, and today.

Benjamin Wittes: Alright, so we, we talked about Monday, the Monday, one on Tuesday. So let's Roger give us the briefest of brief summaries of Monday.

Roger Parloff: Oh. So that was a, a hearing about three, in you could say four motions, and but and she made some preliminary findings about two of them.

She wasn't gonna dismiss. One was a motion to dismiss, that one's rejected. One was a second motion to dismiss. It's basically about mootness. That's sort of still on the table. That's the idea Abrego’s back, that’s what you asked for. Isn't this case over? That's the government's position. And and obviously it's not Abrego’s position that has to do with well, the order said, restore the status quo ante. And that hasn't happened yet.

But really the, the big motion is the one that they filed. It's called a motion, an emergency motion for relief. They're worried about what is gonna happen if he is released from criminal custody. And he will then, there's a detainer - he goes into ICE custody. And the trouble is they're worried that once he goes into ICE custody, they will whisk him off to either a third country or to even El Sal - El Salvador again.

And they wanna make sure he gets some sort of due process. So that's the key one. There's also a motion to file an amended complaint, which we, we didn't really get to yet. That's the one that makes torture allegations. And so she wanted to, to decide this emergency motion she wants to know more about the process, and ideally, she wanted to know, what are you gonna do with him?

And they were pretty clear. They're not gonna tell her what they're gonna do with them. They're gonna, they're, they're taking the position that. You know, nobody knows, we haven't thought about it. This will, you know, if he's released, then he goes to a case agent and, you know, he goes to a detention center and the case agent at that detention center will start deciding, well, how are we gonna deport him? And, and she doesn't buy that.

And anyway, so she wanted to hear some testimony and it was we heard four hours of testimony from an ICE official yesterday, and then today was oral argument about the upshot and should she issue a TRO, a temporary restraining order, that would give him some protection if he's released.

Next week, on Wednesday, there will be a new detention hearing. The detention hearing that occurred was in front of a magistrate judge, and she said that she, if, if it were up to her, she would release him. And with a magistrate, you get a chance to appeal to the U.S. District Judge. The U.S. District Judge did not stay the ruling, but we'll give a new hearing that's gonna be Wednesday. Anna's gonna attend in Nashville.

And so the concern is, you know, theoretically as soon as Wednesday, I don't think that'll happen, the Judge, Waverly Crenshaw, could release him and then, you know, there could be this mad rush again. And that's why she wants to, she's worried that plaintiffs wants something in place there. So anyway maybe I'll turn it over to Anna to, to cover in more detail.

Benjamin Wittes: Yeah, so Anna, that's Monday. And then, and then we had Wednesday, or Thursday and Friday. Right.

Anna Bower: Yeah, it was a long week in the Abrego Garcia case world. I'm really tired actually, because I expected that the hearing on Thursday would last two hours tops.

This hearing, as Roger just explained was related to this emergency motion to return Abrego to the District of Maryland if he is released next week in Tennessee from criminal custody. Because remember, the whole idea is that you know, he is gonna go from criminal custody to immigration custody. And then the question and concern from the plaintiff is what happens once he's in immigration custody? Are they going to whisk him away to a third country as they, or excuse me, to El Salvador or to a third country as they did before?

And so this motion, at first it was, you know, we want him to be returned to the District of Maryland and we want an injunction that basically prohibits. His removal from the continental United States unless there's, you know, further order of this court.

And, and then ultimately they kind of shifted it a little bit to be more so that the minimum requested relief is, you know, give us like a, a pause between that, you know, getting out of criminal custody and then potentially removal to another jurisdiction. You know, give us some kind of like little thing to work with, set 48 hours, 72 hours, so that if they do plan to remove him, he at least gets notice. He at least gets opportunity to be heard, you know, something to that effect, that kind of ensuring that there is due process for Abrego Garcia if he is removed - transferred to immigration custody.

So, as a part of the argument around all this specific motion that occurred on Monday, Judge Xinis is asking all these questions, as Roger explained, trying to get to the bottom of all, like, what is exactly the plan for Mr. Abrego and no one can say. And so she orders DOJ to produce someone on Thursday for an evidentiary hearing. The order specifically required someone with personal knowledge or who has acquired, you know, knowledge from people who do have personal knowledge about what the government's plans are for Mr. Abrego, you know, a number of different subjects about the government's intentions if he is released from criminal custody transferred over into immigration custody.

The guy that they choose to come in on Thursday for this hearing is Tom Giles, who is a senior ICE official, he's the assistant director of Enforcement and Removal Operations. So he shows up for this hearing that was scheduled for one o'clock. Again, I, I wanna reiterate, I really did not think that this hearing would last that long. And we get in there and it, it turns into a, like five hour plus hearing, Ben. Then in which, you know, we have direct examination by the, the government.

There was a, an individual, a new attorney named I, Roger, help me out here, Khojasteh, is that how you pronounce it?

Roger Parloff: Sarmad Khojasteh.

Anna Bower: Khojasteh. Okay, so Mr. Khojasteh, you know, does the direct examination and it was kind of expected, I think, by anyone who's been following this case, who's been going to the hearings that it was seemed very likely that the government was going to produce someone who maybe didn't really have a whole lot of knowledge of, of, of what was going on.

Their, you know, the, the kind of line that they've been saying over and over again even before this is, you know, we don't know what's going to happen to him. He'll either be removed to a third country or will re, kind of reopen, his immigration proceedings and try to get that withhold of removing to El Salvador removed.

So we go into this hearing on direct examination, the government gets Tom Giles to basically just kind of talk more generally about what typically happens in removal proceedings. And there's this DHS policy memo that was issued in March, 2025 that was a big subject of the direct examination and the hearing as a whole, in which it kind of sets out what, what the process is for third country removals.

And again, you know, Tom Giles kind of just more generally walks through explaining. You know, what happens with third country removals? He seems to suggest that you know, an, an individual will receive notice of their removal that they will have an opportunity to express of reasonable fear of persecution or torture before, before they're removed to that third country.

And, and then that might trigger, you know, some further procedures that might ultimately end up being referred to an immigration judge. And so the whole point of this kind of line of questioning is to suggest that, you know. Mr. Abrego is going to re-, there's all these processes and he will receive, you know, these processes if he is, if the plan is to remove him to a third country.

He also testifies that things to the effect of, you know, as far as he's aware, there are no plans because the reason why there's been no determination about a third country he might be removed to, if that's the option they choose, is that they don't make those decisions until someone is actually in immigration custody.

He also claims that once Mr. Abrigo is in immigration custody, it, he will be treated like, like everyone else in which he's assigned to a case officer. And it is that case officer who makes these determinations about whether his withholding of removal will be reopened or he'll be removed to a third country and then which third country it is that he is removed to if that's the option that they choose. So that's kind of the gist of his testimony.

It takes a long time to get through it, at least on, on the direct examination and the cross examination in part because he, there are times when the questions have to be refit-, rephrased two or three times because he, he doesn't seem to understand, you know, what is actually being asked of him.

And, and then in the cross examination, I think that a big part of what the cross focused on by Sascha Rand, who is Abrego's counsel, who handled the cross, was focusing on the fact that this is not someone who has personal knowledge. And then also that the direct examination didn't really seem to get into the fact that if you read the DHS policy for third country removals, seems like there's two tracks.

One is that, you know, you get certain processes as you might in a typical immigration removal process. But then the other track is if a third country has given diplomatic assurances, you know, that someone won't be tortured or persecuted, then the DHS policy memo says that no further procedures are required. And so that might indicate that, you know, even if Mr. Abrego does express reasonable fear, that might not trigger the typical, you know, credible fear interview and these other processes that you might get in a usual immigration proceeding.

So that's kind of where we ended. It, it, we got so late in the day, Ben, that we ended up having to take a little break while D - DOJ figured out, you know, whether they wanted to come back. The next week or after Judge Crenshaw makes her decision.

Judge Xinis suggested maybe she would just go ahead and enter a TRO if so, because, you know, she was like, I don't, still don't have a good idea of what's going on here. I think maybe like, you know, maybe what I do is enter a TRO so that there's a little gap between the criminal custody release and then you know, whatever might happen with removal.

And DOJ didn't wanna do that after they came back and so they ultimately scheduled for, to return to today to have oral argument. And I'll let Roger talk a little bit more about what happened today 'cause we had about three hours, I think, Roger of oral argument on what happens next.

Benjamin Wittes: Yeah. So Roger, pick up the story. It's you know, two days of hearings down now it's Friday morning. And what happened today?

Roger Parloff: She did, she let off a little steam today. She it was allowing arguments on what we'd heard yesterday. She was saying that like she would say, you're relying on this notion that he'll be treated like every other person. And this guy Khojasteh said, that's the evidence in the record. And she said, and that evidence is incredible.

And he also the fact that he hadn't, the, the expert Giles hadn't even spoken to the office that would likely be making the decision on what to do with him. She said that's an insult to my intelligence because she as, as, as, as Anna said she'd provided all these questions she wanted him to be able to address. She also said–

Anna Bower: The presumption of a reg-, reg of regularity is destroyed according to Judge Xinis.

Roger Parloff: Yeah, that's right. So that was another big one.

And then there was one point that might be less important 'cause I think it was a little, he, he made one flip comment and she responded that, if that's where we are, you can sit down right now and something like we can all go home right now. But I think that even on the substantive stuff, she was sort of shocked.

And Giles, for instance, Giles, you know, was a 24-year veteran of ICE. But you know, the truth is he had only handled one third party, third country removal because they never did this before January 20th, 2025. So experience doesn't really matter. The, the memo we're talking about, like Anna said, it, it's March 30th of this year.

Benjamin Wittes: And I mean, just, just, just to give you an idea of like, Roger is not overstating this. This third country removals happen on this extremely bespoke basis when you have people like Zadvydas or you know, people who you can't effectuate their deportation for some reason, you're also really, really resistant to letting them out on the street in New York 'cause they're, say, career criminals or something. And then you go through these years of negotiations with countries to find a place for them. It's not, this is not something that you did en masse until a few weeks ago.

Anna Bower: Well, and one, and one of the things that was so frustrating is that. On cross, Rand tried to get at this, that it is very unusual that it is relative to other immigration removals. The third country removals is a very, very small proportion relative to, you know, removals to a country of origin. And, you know, Giles was just totally unwilling to agree that it's unusual, which really the credibility I, I like, it was just, he, he not credible.

Roger Parloff: He'd said he'd only done one in 24 years and it was unsuccessful.

And that, you know, he's done, he's been involved in probably, you know, thousands upon thousands. And the other thing that really struck me was, and. He did not know what refoulement or refoulement is. And in fairness, I didn't know what it was, you know, a month ago, but I'm not an ICE official refoulement is sort of crucial to–

Benjamin Wittes: What's, anybody who spent any time on the Guantanamo cases has spent quality time with the non-refoulement doctrine.

Roger Parloff: Yeah, the, the, the whole problem with third party a key problem with third country removals is, is, for instance, if you sent Abrego to Mexico, Mexico might say, okay he's not Mexican. And you say he's MS-13, why do we want him? We're sending him back to El Salvador where, you know, he had a withholding of removal that's double refoulement or chain refoulement or chain something. And it's sort of basic and he'd never heard of it.

Anna Bower: And well, but he also just didn't like, it wasn't even that the term was unfamiliar, it was that he could not understand–

Roger Parloff: What we were getting at.

Anna Bower: –the idea of that you might send someone to country X even though they're prohibited from going to Y in order to get them to X so the X can send them to Y. Judge Xinis tried to explain this to him. The counsel tried to explain it to him, and he just could not even comprehend the idea of it.

Roger Parloff: So, anyway, long story short, the the she's gonna, she didn't make a ruling right there. She's gonna try to make one as soon as she can. She's gonna certainly make the ruling before Wednesday, which is when, you know, conceivably, I don't think he will, but conceivably Crenshaw could make a ruling.

Benjamin Wittes: So this is just to be clear, we're expecting a ruling from her in advance of, excuse me, the

Roger Parloff:: Yes.

Benjamin Wittes:: Criminal case ruling as to his continued custody and bail. Is that?

Roger Parloff: That's right. And I wouldn't be surprised to see an instant attempt to go as right to the Supreme Court saying, this is, this is moot. It's, no jurisdiction. It's not right. So on.

Benjamin Wittes: Alright, so, we have one more thing to cover on Kilmar Abrego Garcia, and it's his criminal case because we have a piece about quite an exhaustive piece about the last detention hearing. And also we have a detention hearing coming up, which Anna is going to attend. So, Roger, tell us a little bit about the detention hearing that was, and then Anna, tell us a little bit about the detention hearing that will be.  

Roger Parloff: Well, my story is about the detention hearing June 13th in front of the magistrate, Barbara Holmes, and she of course did, would have released him. And I, I, it's a deep dive so you can get a feel for what the evidence is because you can't really understand the detention hearing without understanding the criminal case, and you can't understand the criminal case without understanding the civil litigation over the wrongful removal, it becomes a big piece.

It's all about political messaging. But I think what you can see is, you know, in the new case, in, in the new hearing, they will be permitted to try to shore up the weaknesses. And, and I'm certain that they will, they might call an additional witness. There was only one witness this time.

And there's certain topics that I, you know, the most sensational thing of all that Pam Bondi announced when he arrived here June 6th was he said there's, she said there's this allegation that one conspirator says that Abrego told the conspirator that he participated in a murder and that that was how he got into MS-13. Well, this would've been powerful evidence at the bail hearing because it would show tend to show he was MS-13 and it would tend to show he's dangerous things that are relative, relevant to detention.

Also, detention has really lacks evidentiary rules. You can get multiple layers of hearsay. None of this could possibly come in at the trial. It's too prejudicial and irrelevant to the charges, which are just human smuggling. So it's sort of now or never. And they didn't mention it, you know, at the first hearing.

So I, I'm assuming whatever it is, we'll probably hear, unless it's, it, it's, there's something bizarre about, about the quality of that evidence. So that's what I'll be looking for.

Benjamin Wittes: Anna, what's happening on Wednesday?

Anna Bower: Yeah. So we're gonna have another detention hearing or a combination. You know, do they have they met the threshold for detention hearing last time?

What they did is kind of do it all in one. But I think that it's go, you know, this last hearing that they had, it was, six hour hearing, and to some extent it was a bit like a mini trial then there was a lot of, obviously there was only one witness, but it was one of the case agents on the case who testified about a lot of different areas of the investigation that relate to the evidence.

And so I think that we will maybe get an even better understanding of what exactly the government has. But I, we do know from filings that the government has made in the interim period that they do intend to produce some additional evidence. For example, they mentioned in one of their filings in a footnote that they intend to include phone records that, that they say show Mr. Abrego on the phone with one of the cooperators who has been identified in the press as Jose Ramon. Oh my gosh, Roger, help me, I'm sorry, I'm, I'm blanking on the name.

Roger Parloff: Jose Ramon Hernandez Reyes.

Anna Bower: Reyes. Thank you. Jose Ramon Hernandez Reyes, who Abrego says in the, it, this, it's actually interesting to me because the government talks about how they're going to produce these phone records, but in the video, Abrego says, you know, this is my boss that I'm calling.

That kind of is undisputed. And the government is suggesting, you know, that, these phone records kind of, you know, prove up their case. But, you know, if you if you take it, it's, it's all consistent as well with what Abrego’s defense counsel has represented in terms of or defense argument has been in terms of, you know, that he was calling his boss. So, point is I think that we will maybe get some new evidence. I, we don't yet know who the witnesses will be. Will it be the case agent again? Will it be multiple people?

One of the big kind of issues that the magistrate raised about the evidence that they presented at last hearing was that they didn't produce, for example, the trooper who was one of the people who actually, you know, pulled over Abrego during this 2022 stop is the guy who said that he took passport photos of the people who were in the car, who would've been able to see if there was a minor child in the backseat, which is what the government is saying , would've been the person who actually took the names of the people and birth dates of the people in the car.

So there's this question, you know, will they maybe try to have someone like the trooper or someone else there to try to shore up the reliability of the evidence, which is one of the big concerns that the magistrate had.

Benjamin Wittes: Alright. Scott we are, you and I have miscollectively misinformed the audience about the relationship between the State Department, RIFs today and the Supreme Court decision. Mea culpa, mea culpa, mea maxima culpa. Correct, our ourselves.

Scott Anderson: Yeah. If there's ever a doubt that we do do in fact to do this live and do not plan our q, Qs and As in advance, here's evidence of that. We are wrong. The Department of State was one of the agencies enjoined in the AFGE v. Trump or Trump v. AFGE case Supreme Court decided under Judge Illston.

And actually more than that, digging into the docket a little bit during our Abrego Garcia discussion, it looks like there actually was a very specific question as to whether the State Department reorg plan it had filed and various other statements that it made were covered by the injunction. The judge actually clarified it just a few weeks ago saying, yeah, these are covered by the injunction. You cannot move forward with them. So it's worth noting that, yeah, it probably is not a coincidence that this happened this week.

In fact, this might have been a response to this Supreme Court decision although the timing is something that they had had been signaling a little bit in advance as well. So, so there might be a combination of factors there. It's also worth noting this is part of the reason why we're getting this discovery in early next week that Judge Illston has asked for is again a remedy, something that the plaintiffs asked for so that they can pursue additional litigation potentially to join this and that may yet come in the State Department case as well if counsel are actively representing them. So we'll have to wait and see early next week. Maybe we'll see another action.

And in prior cases that had resulted in the suspension and reversal of the issuance of risks, think of the CFPB and a few other contexts where that's what's been the result of litigation. So, there may be some silver lining there for some State Department employees next week, but we'll have to wait and find out where the courts land on that and if somebody stands up to litigate it.

Benjamin Wittes: Alright. Meanwhile it has been a banner couple weeks for agency dismantling and for litigation over that. And so I think we're just, I'm just gonna turn it over to you for the next few minutes. Scott, give us an overview. You're our contestant this week on who wants to dismantle a federal agency? Which agencies are we taking apart?

Scott Anderson: A number of them, and it is, has been a really busy couple of weeks, and it's worth noting it is all coming to a head.

Not a coincidence, it's the end of the fiscal year. So a lot of the impoundments issues are, are we're approaching the end of the fiscal year. The impoundments issues are really coming to the fore, which are integrated with a lot of these issues. We're seeing personnel actions and in a lot of these cases, so they're really hitting a point where the litigation is getting to some really tricky questions.

Let's start with Widakuswara v. Lake. This is the litigation in the D.C. District Court and the D.C. Circuit that relates to the Agency for Global Media.

Benjamin Wittes: And has the distinction of the most impossible caption to pronounce of any in the Trump era.

Scott Anderson: I was very proud of myself for having pulled it off.

Benjamin Wittes: I want, I just wanna point out that, that Scott just did it with aplomb. I mean, Widakuswara.

Scott Anderson: I have been talking about this case a lot, which helps, for better or for worse. I think it's a very important case that people haven't been paying enough attention to. I wrote a piece about it maybe a month or so ago for Lawfare. That's probably due for an update.

If you all recall, and as I detail in that piece, essentially after this matter went to the D.C. Circuit, then en banc D.C. Circuit, we ended up in a situation where three prongs of the original preliminary injunction issued by the judge. One was barring people from being removed or fired, two was barring–

Benjamin Wittes: This is USAGM, the VOA-

Scott Anderson: The Voice of America case, exactly. Two, relating to the cancellation of various grant monies and contract monies. Three, relating to meeting the statutory mandate of these different agencies and organizations.

The, the two prongs of litigation, the first two prongs of preliminary injunction are being debated and are being appealed to the D.C. Circuit. Notably, we got the panel and the D.C. Circuit assignment in the last week and a half of this it's gonna be decided or heard oral argument in September. It's not a very friendly panel for U.S. Agency for Global Media staff.

It is Walker, Katsas, and Rao which is pretty extraordinary. All three of them dissented from how the en banc court handled the funding issue that they're hearing. So we know how they're gonna come out on it, probably and probably the en banc may come out the other way, so we may not get resolution for yet another step beyond that.

But regardless, in the district court while is all happening, there's still that third prong of the preliminary injunction that says the government has to meet the statutory mandate of these agencies. And as the en banc D.C. Circuit kind of signaled, as I wrote about in my piece a few weeks ago, it signals that that can include enjoining people, if you terminate too many people to meet your statutory mandate or you cut too much funding to meet your statutory mandate, that third prong of the injunction still stands.

And that's something that district court judges today should be evaluating and ensuring compliance with. Well, the plaintiffs have taken the government and the en banc D.C. Circuit up on that. They fired - filed a number of motions in the last few weeks trying to enforce the injunction or to show cause why the government is not violating the injunction.

They got a big win on that just in the last few days. Judge Lamberth, who's overseeing this case in the district court basically came and said, hey, U.S. Agency for Global Media, I've gotten all your explanation about how you're meeting your statutory mandate, and I don't get it. Here are a bunch more questions give me an expedited response in the next few days.

It's not a, it's not yet in joining the termination of VOA employees that the VOA pursuing and the U.S. Agency of Global Media’s pursuing. It's not, yes, yet mandating that they expand their services beyond just rebroadcasting OANN and pursuing, you know, three or four foreign language services opposed to the 48 they used to do. But the judge is asking very, very targeted questions.

The judge, in my view, is laying a foundation for being able to issue injunctive relief later by really establishing a factual basis for saying, yeah, you're clearly not meeting your statutory mandate. Here are the elements of the statutory mandate, and here are the things you are and aren't doing, and the things you can't gimme answers to.

And notably, that's the relief the plaintiffs actually asked for. They didn't go forward and ask for additional enforcement of an injunction to bar things yet. They just ask for more clarification. They get the court has to build that record to, for withstand appeal, and they're helping it do that. So that's actually a big win for the plaintiffs in that case, I think. And something that may yet bear fruit.

Meanwhile in another case, the AIDS Vaccine Advocacy Coalition v. Department of State case, also Global Health Counsel. It's referred to by both captions, somewhat confusingly. A lot of big developments in this case. This is the case about a huge array, probably the largest swath of foreign assistance funding.

It was the very first case to go up to the Supreme Court on the shadow docket under the Trump 2.0. We had oral argument on the conventional appeal to the preliminary injunction that's in that the District Court issued in that case before the D.C. circuit. This is before Judges Henderson, Katsas and Pan. So what you might not think is a super friendly panel. I will say the government did not get a very warm reception by my hearing in this opinion. I was not there in person. I have listened to the audio–

Benjamin Wittes: Well, I mean, Henderson has not been like a, a friendly, I mean, she's a, she's one of the old lion conservatives of the D.C. Circuit.

But she's been you know, she's been quite an un-, unpredictable as a Trump, as a pro-Trump vote, including on, on before the administration on issues of presidential immunity. I mean, she is, she's been an interesting voice in the last year or so.

Scott Anderson: She is, she of course, wrote a very passion–

Roger Parloff: And J.G.G. too.

Benjamin Wittes: That’s right. Oh and the Alien Enemies Act case.

Scott Anderson: That's exactly what I was gonna say. She wrote a really compelling opinion case. Yeah.

In those cases, in the gov agency dismantling cases, so far she has joined most of the other Republican appointees and essentially saying, under the Tucker Act, under various other statutes, employment and contract disputes should go to other courts, which has been the main government line of arguing argument, although not directly at issue here.

Here this case is really focusing on this impoundments question because the existing preliminary injunction really sits on is there a statutory mandate the government is failing to meet in a manner that is unconstitutional and or in violation of the Impoundment Control Act? That is, is something this court can enforce, the district court can enforce that results in the government having to spend this money. And then more specifically, having to spend this money on the plaintiffs in this case, where the original intended recipients of this foreign assistance funds.

The panel, the, the debate really started hinging on a lot of very technical questions. The government is making a very technical argument that in fact the plaintiffs aren't able to enforce the Impoundment Control Act or other statutory cause of action, therefore have to make a constitutional argument that they say isn't a remedy that you can pursue in this case.

The plaintiffs say, we never conceded that that's the case. We're making all these arguments, but in fact, this is essentially a Youngstown, you know, constitutional compliance separation of powers type issue in the first place. That has statutory implications. But we're not trying to enforce the Impoundment Control Act. We really are looking primarily at this constitutional separation of powers.

The, while a lot of the deputies center on those issues and an effort by the government to resurrect an argument, it arguably waived 'cause it was not in its preliminary brief, it brought up a whole new line of cases in its reply brief, which is something that's a big no-no in most courts, particularly in the D.C. Circuit.

Regardless when it really got to the nub what Judge Katsas said at one point, and I think it's probably true at least for this panel, is that the real question here is how many of these appropriation statutes expressly say, hey, government, you have to spend this money for this purpose. And how many of them say you have to spend up to this many for this purpose, as the government was saying.

And at one point he said, pretty revealingly, I read these statutes and all the ones I'm seeing look pretty mandatory to me, especially in light of the Impoundment Control Act. That's a really revealing statement. We'll see if that's where he ultimately lands on this. He had plenty of hard questions for the plaintiffs in these cases as well.

It was a really interesting oral argument. You know, we'll see an opinion on this maybe soon, maybe not. A number of these cases have tape are still, were two months later, like in the CFPB case two months later. We're still waiting on an opinion, so it could be a while, but they might move relatively quickly.

Benjamin Wittes: For those of you who want a political read of this, there is no universe in which Judge Katsas is, is right, is left of the center of gravity of the Supreme Court.

Scott Anderson: Yes.

Benjamin Wittes: So I think it is. I, I, I think, I mean, Judge Katsas is a, is a very, very bright able, very conservative jurist and he is squarely to the right of both John Roberts and Amy Coney Barrett. And probably Brett Kavanaugh too.

And so I think if you, if you, if you don't clearly have his vote, much less if you don't have his vote on an impoundment inflected question, it's very hard to see how you count five votes for that position on the Supreme Court. It’ss that, that's a crude argument, but I think it's right, Scott.

Scott Anderson: I think that's exactly right. He's a very closely tracked with Roberts and Kavanaugh, leaning towards Kavanaugh, I would say. And so he's somewhere on the spectrum between the two of them on most issues comes from a similar background, executive branch lawyer, former in the White House Counsel’s office like Kavanaugh was and so I think he's got a lot of the same presumptions that are friendly towards the government. And so when you lose him, it's bad.

And notably, the government has lost him before. He also cited with the government and Aviel v Gor, that's the case about the Inter American Fund that basically found what the government had done was illegal there cited with Judge Pillard against Judge Rao in that case.

So he's somebody who's, who's been able to stand up on this. So I'm very curious to see where this comes out. Again, I thought the oral argument was really interesting, but I don't a hundred percent know where it comes out. But it was more interesting than I expected.

Meanwhile, the district court stuff is still happening 'cause there the plaintiffs are much like in Widakuswara, are trying to enforce the preliminary injunctions that's still on the books. They have basically said we are getting close to the period where the appropriations for these foreign assistance programs are expiring or set to expire and the government still has provided absolutely no plan to explain how they're gonna spend this money down other than to give the money to us, which is what we argue that they should do.

The district court had said essentially, my preliminary injunction is not gonna compel them to spend this money moving for the rest of the fiscal year. But they have to come up with a plan to spend it on the purposes Congress has said they have to spend it on or else you're gonna have an impoundments violation, and they haven't provided that plan yet.

And so we now have fully briefed at the District Court level essentially a motion to enforce the preliminary injunction to compel them to develop and produce before the court a plan as to how they're gonna spend this additional money. If they can't produce a plan, then the court's gonna away, well, we are looking at impoundments violations, so how do we remedy it?

And then potentially, is the right remedy here compelling the government to pay these specific foreign assistance recipients that the Biden administration had intended to pay? But that has since had this money pull out, even though usually the government has some discretion deciding who they do pay among different foreign assistance recipients for a certain purpose.

It is the bleeding edge of impoundments challenges. It's the first case that, I think, the only case that's teed up to approach it as squarely, it's already been the Supreme Court once. So keep an eye on this case. It's gonna be a big deal. We're gonna see a decision on those matters. And again, it's probably still gonna be the next step is another demand for report, more information from the government, more pressure on them to give reports about what they're gonna do. But that's all building a record that the district court will be comfortable actually ruling on the Impoundments Act substantive questions. And that's not too far away because a lot of this money does start expiring September and later this year.

Also note there, there's CASA ramification that provision. There's a been a big debate in that case saying, can the injunction, preliminary injunction, the court issued actually provide relief to all foreign assistance recipients or just the plaintiffs. They've got the, the district court had previously said can in fact be all the foreign assistance recipients after those initially challenged by the Trump administration. After CASA that argument's coming back and I suspect it will be narrowed to some extent although we may also see additional plaintiffs kind of jump in to avoid being cut out of the relief in this particular case.

Two other quick updates because I think those are the big ones. In National Endowment for Democracy v. the United States, we have a new updated superseding indictment, or, I'm sorry, amended complaint, superseding indictment wrong, wrong civil, not criminal amended complaint in this case. This is a case where folks may recall the National Endowment for Democracy gets a big statutorily directed chunk of funding traditionally from Congress every year through the executive branch.

Trump administration initially didn't provide it when it withheld all sort sorts of foreign assistance funds. NED filed a lawsuit and pretty quickly the Trump administration seemed to capitulate and say, we're gonna give you some of this money after all. And they basically, this case, case was essentially in a advance for a while.

Now the Trump administration, as we report a few weeks ago, has come back and said, well, after the continuing resolution expanded the funds, we understand that this money is actually available through next year. And we're gonna hold it in abeyance. We're not gonna pay you the rest of your 2025 money. We're gonna reapportion it all the way until 2026 through our apportionment authority.

NED is saying, we're not gonna stand for that. We're gonna sue over it now. We now have an amended complaint set up. It's being teed up to have full litigation, including the new motion for a PI that is gonna be filed, I believe, next week. And that's gonna be fully briefed by August. So we're gonna see a big resolution of that case, which is another one of these kind of frontier cases for these foreign assistance questions.

And the last case which is notable that we talked about before. U.S. Institute of Peace v. Jackson as, as agency Ben mentioned earlier they had received a preliminary injunction from the district court after initially being denied TRO, preventing people from coming in, kicking them outta their offices, taking their insignia down, their sign off the wall, which did happen.

They then got a preliminary injunction from the district court judge, despite initial reservations. That, about a little over a week ago that preliminary injunction was stayed by a panel of the D.C. Circuit. Another relatively conservative Republican appointee dominated panel that said essentially we're staying this without much explanation.

Notably though, they didn't issue an opinion, but in their order they talked a lot about the president's Article II foreign affairs power. And it basically read that this is a reason the president's dominance of foreign affairs is actually a big reason why we shouldn't, we can't, have to read this agency as performing executive functions and therefore is under the Appointments Clause, something that Congress can't restrict the removal power, which is integral to how essentially Trump reappointed the board and took control of USIP.

That is going to be litigated further, the plaintiffs immediately moved for an urgent and emergency appeal to the en banc D.C. Circuit. Traditionally, the enbanc D.C. Circuit really reticent to take these sorts of cases, not something the D.C. Circuit likes to do in reverse a panel. But they've done it already in one case here, that is the Widakuswatra case, on a fairly similar set of issues. And I think you are gonna see it again potentially. It, it is a, the, the disposition of the case is not a super strong one.

Again, it's a complicated question, but leaning so hard on Article II powers is something I, I've troubled seeing a lot of D.C. Circuit judges leaning into. So we'll have to wait and see. But regardless, we might see the en banc D.C. Circuit weighing in again in response to what has been a real run of Republican dominated panels even on a court that is not Republican dominated.

So we may see a flip in that position on that case, but for the moment that PI is stayed meaning that Trump administration can, and perhaps have, I haven't seen reports about it, but can begin reasserting control over USIP.

Benjamin Wittes: Yeah. And speaking of cases that have immediate implications for workforce federal or quasi federal you know, when they asserted control over USIP, they threw every, all the employees out of the building.

And when the preliminary injunction issued George Moose, who's the head of USIP, went back to the building with the staff of USIP. And so, you know, these, these cases, this case in particular is really about who gets to control the, the key to the front door of USIP.

Scott Anderson: Quite literally in this case.

Benjamin Wittes: Is the, is it the president of USIP or is it, you know, some DOGE monkey. Alright. Thank you. Alright. Thank you Scott, week for another episode of ‘who wants to dismantle a federal agency?’

But we have a few more things we've gotta cover this week. Let's talk about you know, some politicization of the Justice Department. Let's start with, I guess I'm asking myself questions about this one, but the announced investigation of former CIA Director John Brennan and former FBI Director Jim Comey.

I'm gonna be brief on this. This is a a story that I think I actually don't believe. And it's not that I don't believe that Justice Department sources told Fox News that such an investigation exists. They clearly did. I have no reason to think Fox News is making them up. I will note that if you look at the Fox News story, it actually does a rare thing, which is attributes this to Justice Department sources, not sources, familiar with the matter, or government investigators, which can be code for congressional sources or you know.

This says the Justice Department, Justice Department officials say this. And the reason for that is that it comes from the attorney general's office or the deputy attorney general's office or somebody acting at their behest. This is not, you know, some line prosecutor who's leaking something. This is a decision to disclose for political reasons, the existence of a criminal investigation.

And I wanna say that I don't personally believe a real criminal investigation exists. And I go into the, the reason for this in some detail in a column that I wrote on Wednesday, I believe. There is, it is very hard to look at the laws that might apply to the conduct that is supposedly at issue, which has to do with the production of the intelligence community assessment eight years ago on Russian interference in the election, and find any conduct that the statute of limitations would not have run for by now.

And moreover it one thing that you cannot identify in that Fox News story is what anybody is supposed to have done that's illegal, with the exception of a a, a, a single statement by, by Brennan that could arguably be thought to be false if you don't have the whole context for it. And it was not more than five years ago, which it was.

So I think the best way to understand this case is not as the use of the criminal justice system to harass perceived political opponents, but the announced use, the use of the announcement of an investigation that may exist on paper, but in fact does not exist in reality at all. At least in any sense, that would involve, you know, interviewing witnesses, executing search warrants, issuing subpoenas.

I don't believe any of that is happening or is going to happen. I think this is an example of you, the use of the criminal justice system to issue press releases by way of harassment of people. And so I think that's super disturbing. But I don't think it's exactly what it seems to be, which is, you know, launch a criminal investigation.

Don't expect John Brennan's gonna be like, dragged away and anytime soon. That's just my view of the matter. I lay it out in more detail. Also, we have an excellent story on the merits of the underlying tradecraft review by the very estimable Renee DiResta and my buddy Shane Harris has a very good piece in the Atlantic on the underlying merits as well. So I think between those three pieces, you can get a very good sense of the parameters of this issue. Does anybody have stuff to add on this?

All right, Anna. We had Anna's favorite thing in the world happened the other day which is a document dump.

Anna Bower: Oh, you know, I love some hot docs, Ben.

Benjamin Wittes: I mean, like, it's, you, you have no idea the excited texts I got. OMG, There's a Reuveni document dump. It's 150 pages.

Anna Bower: When I see over a hundred pages of internal DOJ text messages and emails, you know, I'm just the happiest person alive.

Benjamin Wittes: Yeah. So what's in?

Anna Bower: Yeah. All right, so this is, this relates to Erez Reuveni, who is the a former Justice Department official who was ousted, previously a senior DOJ official, who is the one that during one of the Abrego Garcia hearings you know, was candid with the court about the fact that, you know, conceding that yes, he was erroneously removed.

At times expressed some, some frustration with the fact that he'd not been able to get answers from his clients. But to be honest with you, having been to almost every single hearing or, or in fact maybe every hearing in that case it was Reuveni who was the most effective at kind of judge management and rapport, because sometimes you do have to you know, acknowledge that you haven't been able to get answers, that kind of thing.

The thing that has really frustrated Judge Xinis is, is when you know people are very obviously not you know, being helpful to her. And that's, I think with many judges, it would be the same thing. He was ousted from the department. And then after Emil Bove was nominated to the Third Circuit Court of Appeals there was a whistleblower complaint that from Reuveni that became public that described a number of allegations.

Some of, some of the ones that are probably the most notable in terms of someone who is, you know, for Bove nominated to be a federal judge. Include that, you know, it's alleged that during this March 14th meeting ahead of the J.G.G. case a big hearing in that case that related to the Alien Enemies Act proclamation that Trump issued that sent a number of, of men off to El Salvador to be confined in CECOT, a notorious prison ahead of that issuance of the proclamation, there was this meeting between top D, DOJ officials in which it was discussed what would happen if there was an order that's issued to enjoin the removal of, of these individuals under the AEA.

And it was alleged that Bove said, you know, maybe we have to say “fuck you” to the courts and, and ignore court orders. There's a number of other allegations in this whistleblower complaint as well, including that Drew Ensign who's one of the other top officials who's been dealing with a lot of these immigration cases, made a untrue statement to Judge Boasberg in that JGG case, when he, when he said basically that he didn't have knowledge of, you know, planes taking off within the next 24 hours.

So that's the background Ben. And this document dump that we have relates to Bove’s hearing in that it was released by a Senate minority staff who requested additional documents from Reuveni related to this whistleblower complaint and some of the allegations that he made. So we get all of these text messages between Reuveni and his supervisor, between Reuveni and colleagues, call logs, all of these things that corroborate some of the key allegations that he made in this complaint.

And it doesn't really reveal a whole lot of like new things, but the thing that's important about it is that it is highly corroborative of the allegations that he has made already that have been, you know, dismissed as inaccurate by Bove and by other top Justice Department officials with respect to the fuck you comment that Bove allegedly made regarding, you know, telling the courts or saying that they might have to ignore court orders.

There's a number of text messages in which Reuveni refers to this FU comment, and it, it is implied that the people he's talking to, whether it's his supervisor, you know, other colleagues of the Justice Department understand that he is referring to a comment that was made regarding, you know, a decision point around this, you know, kind of FU question.

The other really big corroborative thing that stands out to me from these documents relates to the Drew Ensign thing in which you know, I mean I truly it reading this, you are like, oh, this doesn't seem great in that it involves Reuveni and a col-, a DOJ colleague contemporaneously texting during the J.G.G. hearing when Ensign is representing the government, being questioned by Boasberg about what the government's plans are with these planes that are about to take off.

And I kid you not, one of the text messages as they're listening to this hearing is, “Oh shit. That was just not true,” in reference to something Ensign just said to Boasberg. And, and they have this conversation about, you know, well, he definitely knows that there are plans for AEA removals within the next 24 hours and, and it's real. So it's a really, really bad look for one Drew Ensign.

Benjamin Wittes: Especially because Drew Ensign then was asked by Boasberg a few days later, do you give me your word of honor that you were telling the truth when you said you didn't you know? And I, I believe you as a  lawyer and a member of the bar that you didn't know.

I, I think if you look at the transcript between Boasberg and, and Ensign in the in the cleanup phase of that, it, that text gets even worse.

Anna Bower: Yeah. And well, and it's also gets even worse when, you know, there's other text messages included in these documents in which it's DOJ colleagues wondering whether Ensign is, is gonna be able to escape this hearing before Boasberg without sanctions.

I mean, he, they quite literally, one of them says, “The question is whether Drew gets out without sanctions.” And, and, you know, keep in mind, Judge Boasberg already tried to initiate contempt proceedings and there is an ex, you know, a part of that order that he issued in which he is going through the things that made him, at least it implies that he's very suspicious of Ensign.

And then the D.C. Circuit administratively stayed that contempt order back in April. We still haven't had any kind of, you know, any order further order from the court on that. But, you know, it, it seems like when these messages comes, come out, it gets harder for the D.C. Circuit to, even if, you know, it's not a part of the record, surely, you know, they seem to prob surely they're aware of it.

And I think it gets harder for the D.C. Circuit to say we wanna keep this contempt thing on ice because the things that these messages are showing indicate that Judge Boasberg, you know, may have been on the right track in terms of, you know, thinking about whether or not the representations that were being made to him were true. So that's kind of some of the big takeaways for me. Roger, I think that you read–

Benjamin Wittes: We gotta, we gotta move on.

Anna Bower: Okay. Alright, cool.

Benjamin Wittes: Roger, we have a motion to dismiss resolution in the Judge Dugan criminal case in Wisconsin which is normally James Pearce territory. But this won't come as a surprise to anybody who's been listening to or reading James Pearce on the subject. What happened? You're muted.

Roger Parloff: Sorry. Motion was denied. This is Hannah Dugan, Milwaukee County Circuit Court Judge, that was indicted. So she was making a - you remember, she's charged with obstruction of justice and a similar charge about concealing a person whose arrest war warrant has been issued. And it had something to do with the a, taking several facts, but alleged facts. But taking a, a, a, an alien that was before her into that was going to be arrested by ICE, taking her into her chambers, and then letting him and his counsel leave through a non-public jury door. And she, he, she was claiming she was asserting absolute immunity as a judge and that was the main claim.

And it's quite an interesting 37 pages. I, you know, I thought it was a frivolous motion and it is a losing motion. It might not be quite as frivolous as I thought, but it's very interesting reading. It's like 400 years of it's really 400 'cause it goes back to Floyd v. Barker in 1607, case by Lord Coke spelled Coke. And, and all these wacky fact situations fact situation going back 400 years.

But the long story short is, you know, every, the Supreme Court has only recognized immunity in, in for for judges in civil cases. And beginning in 1880, it allowed prosecution of a judge for, in a criminal case.

So, it's not really that, that close a question, but you may remember in recent years, the kids for cash scheme in Philadelphia where judges were sending juveniles to a particular private detention center in exchange for kickbacks, you know, they were allowed to be prosecuted. So, anyway we're, we're over time, so I'll, I'll let that stand.

Benjamin Wittes: Alright, so we are, we have one more subject, which is an update on the non-Kilmar Abrego Garcia immigration cases. We're gonna run through those quickly. Anna, we have a J.G.G. un–El Salvador situation. What's going on there?

Roger Parloff: You, you, that was the one you discussed early earlier in the week. You want me to summarize that for you? Or or you?

Anna Bower: Oh no, I was looking for the mute button. I'm good to summarize that.

Roger Parloff: Oh, oh, okay. Oh, sorry.

Anna Bower: No, I just couldn't find it. So, yeah, so, this is related to the, so one of the big que-, and I'm gonna try to do this really briefly so everyone can go and listen to our other conversation about it.

One of the big questions that has been kind of throughout the J.G.G. case relates to this question of whether the U.S. has constructive custody over the people who were removed to CECOT in El Salvador. You know, also in the Abrego Garcia case, although it's a little bit different because the U.S. has argued that Abrego Garcia, you know, was not removed under the AEA, it was a administrative error. There's been this question about what the U.S., what power they have to facilitate his return. They've consistently said, you know, we don't have the power to facilitate his return.

Separately in the J.G.G. case there's this question about constructive custody because there seemed to be an agreement between El Salvador and the U.S. in which the U.S. pays El Salvador to keep some people in detention at CECOT. And over and over again, the U.S. has said, you know, we, the, they are detained under the sovereign power of El Salvador.

And Judge Boasberg ultimately ended up accepting this representation, deferring to it in which he in a recent order found essentially, you know, I don't think that the U.S. has constructive custody, but I do think that in any event, you know, there's some equitable relief that I can still grant. So amid all of this, after Judge Boasberg has already, you know, made that finding, counsel in the J.G.G. case become aware of this U.N. report, or communication from the El Salvador government—this is in the context of within the UN special procedures, there's a working group on involuntary you know, disappearances.

As a part of that a number of families of Venezuelan nationals who were taken to CECOT, you know, asked for information. The UN asked requested information from the El Salvador government, which is where they believe that these men are being held. And El Salvador basically writes in response to this request for information that you know, it, it, under international law, one of the things that you have to show if you have legal responsibility for something is attribution.

You know, that there's a kind of causal connection between the, the thing, the disappearance and the state, the actions of the state. And so what they're saying in this response is, you know. At the time that these people were disappeared they were in the jurisdiction and, you know, legal responsibility of the United States.

The, the only thing that El Salvador is responsible for is the implementation of this bilateral cooperation agreement. There's a line in there, and, and Roger, I don't have it in front of me, so if you have a better summary of what exactly they say, but. There's a line in there that basically suggests like all of the legal responsibility is that of the United States, not El Salvador.

Roger Parloff: And yes, in this context, the jurisdiction and legal responsibility yes, for these persons lies exclusively with the competent foreign authorities i.e. the United States.

Anna Bower: Right. And there's, I think there's two ways to read it. I, and I'd be interested, Roger and Scott, if you read it the same way, one is that they are, they are specifically looking at responsibility at the time that these people were disappeared, meaning when they were in the U.S. and taken to El Salvador versus another way of reading it is that they're saying, you know the, the responsibility writ large, even if they're in El Salvador now, that is the responsibility and jurisdiction of the United States. Anyone have thoughts on that?

Benjamin Wittes: Wait, we're not, we're not going to other people's thoughts.

Anna Bower: Oh.

Scott Anderson: I have one though.

Anna Bower: I actually think this is a but, okay.

Scott Anderson: Very short.

Benjamin Wittes: We have to. Roger, we have three short updates, J.O.P. Cristian, Melgar-Salmeron, and the new Mahmoud Kahlil case. Bring us up to speed.

Roger Parloff: Okay, so the day after that, you know, that was filed before Boasberg, even though Boasberg doesn't have jurisdiction to do anything right now, he can't act.

So the next day, Judge Stephanie Gallagher in Maryland, who's over presiding over the Cristian case, another guy in CECOT, sua sponte issues an order, a letter order. She wants the people in her case to respond because quote, “defendants have repeatedly skirted this court's directive to provide information regarding the steps they've taken and, defendants have repeatedly made oblique references to their request of assistance from the Department of State. But if this is true, basically no diplomatic discussion should have been required. Respond to this by July 15th.” So we will get whatever the government's take is on that next week, I think Tuesday.

Melgar-Salmeron he's the guy El Salvadoran that was sent to El Salvador 28 minutes after the Second Circuit said, don't remove him from the country 'cause they were adjudicating his case. And so the, they ordered him, the gov-, the government to facilitate his return and to give joint stat- I give status reports after two weeks they have located him. That's the good news. The bad news is he's in CECOT and that's all they have for the Second Circuit so far.

Mahmoud, Khalil, who you remember, was arrested in March, did about three months, over three months in Jena, Louisiana, in a prison. There was released recently finally by Judge Farbiarz on several theories. He is has filed an FTCA claim, Federal Tort Claims Act claim, seeking compensation for false arrest, false imprisonment, malicious prosecution, abusive process, intentional infliction of emotional distress, negligent infliction of emotional distress.

Those claims you need to file one of those, an administrative claim, and then six months later you can sue. Honestly, Federal Tort Claims Act stuff is very specialized. I would be surprised if maybe I, I just shouldn't comment. I, I don't know the strength of this, but that is that's where that stands. You're muted this time.

Benjamin Wittes: We've got two audience questions. We're gonna get through them quickly. The anonymous attendee asks, is there a threshold where the Supreme Court will abandon a presumption of regularity? I think of the census case during the first Trump administration, but I feel like that may be an outlier.

Number one, that's a good example of where the presumption of regularity does bend. Number two. So yes, there is a threshold and normally speaking when, you know, when the plaintiffs or the opposing party shows that you've litigated in bad faith and that you've made factual representations that aren't true, the presumption of regularity gets overcome. I think the, the interesting question that, the question or raises is, is there a point at which the administration will lose the presumption of regularity in the first instance? And I think that's an issue that the justices kind of disagree about.

And one of the things that underlies Ketanji Brown Jackson's recent dissent is, hey, we're dealing with a repeat player who may be a coordinate branch of government, but is serially behaving in predictable fashions. We shouldn't treat this executive branch like all other executive branches, whereas the majority, takes the view that, hey, the president is due a certain set of deferences and presumptions, and every time you litigate, it starts over.

So I I, I think it's a profound debate among them. The more alarmed are more, more willing to like, abandon the presumption and then abandon it as in the first instance, the next time around. The more conservative, more deferential ones are not.

Andrew asks, Judge, not justice, Breyer has set a trial in Newsom v Trump to adjudicate violations of the Posse Comitatus Act. This is the Los Angeles deployment of the military and National Guard. Has there ever been an adjudicated violation of posse comitatus? What will California have to prove? Scott, you being the closest thing to Chris Mirasola, we have on this call, I'm gonna throw this one your way.

Scott Anderson: It is a great question about a really interesting case that was almost, I almost added to our agenda, but I was worried we didn't have time for there has been litigated before and, it, it is not a totally novel question.

I am not aware of a case where somebody has tried to enjoin military action by the virtue of violating the Posse Commandant Act. And notably, that's actually not the full scope of the argument the government, the state of California I should say, is making. There's other elements of it as well. But it comes up a lot in exclusionary rule and evidentiary context and context of detention as a defense or ability to challenge availability of evidence.

And doesn't come up a lot, but has come up there a number of times. Most notably as recently as 2015 in the Ninth Circuit. It's a case called United States v. Dreyer, where a military investigator essentially in investigating child pornography among service members snatched up a bunch of data for non-service members and then handed that over to local law enforcement who then arrested somebody.

And that person did not ultimately successfully argued and persuaded the Ninth Circuit en banc that there was a PCA violation and that could warrant the application exclusionary rule. Although in this case, they ultimately determined it did not warrant invalidating his, his conviction. But, so the Ninth Circuit has experience about it relatively recent. And so, it is definitely a real thing that could come into play here, whether it reaches an injunctive relief that, that's another question. Well, sorry, go ahead.

Anna Bower: I would just like to know if the pilot project is going to apply to an evidentiary trial, which is the re, the pilot project is the reason why we've been able to actually see these, this, this hearing before just Judge Breyer on Zoom, which is novel in federal courts. And I don't know the answer to that, but it will be very exciting if we do actually get to watch it on Zoom.

Benjamin Wittes: Alright if Anna does not want to seize control and start throwing questions to the other panelists, I will declare this at an end. Roger Parloff, Anna Bower, Scott R. Anderson, senior editors all, thank you for joining us today.

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