Lawfare Daily: The Trials of the Trump Administration, July 18

[Intro]

Nick Bednar: So what we're really talking about here is called a reduction in force.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittes, editor in chief of Lawfare with Lawfare Senior Editors Anna Bower and Roger Parloff, and Contributing Editor Nicholas Bednar.

Nick Bednar: Part of the, you know, argument is that all of these RIFs are unlawful because it is clearly an entire reorganization of the federal agency. So what would it even mean for these to be consistent with law?

Benjamin Wittes: In the July 18th episode of the Trials of the Trump Administration, we discussed the Supreme Court's rulings, allowing terminations of federal employees the hearing in Kilmar Abrego Garcia's criminal case, the politicization of the Justice Department, and so much more.

[Main Podcast]

It is Friday, July 18th, 2025. It is 4:00 PM, you are watching Lawfare Live the Trials and Tribulations of the Trump Administration. I am Benjamin Wittes, editor in chief of Lawfare here with Roger Parloff joining us from the Sconce Studio. How are you, Roger?

Roger Parloff: Very good. Thank you.

Benjamin Wittes: Nick Bednar I think this is your, is this your first appearance on Lawfare Live, Nick?

Nick Bednar: It's my second.

Benjamin Wittes: His second. Nick is the master of all things law of the civil service, presidential dismantling of agencies. And what room are you joining us from?

Nick Bednar: I am coming from my office where I've been living for the last week as I watched the civil service fall apart.

Benjamin Wittes: Excellent. Well, and from the Temple of Doom itself in Nashville, Tennessee it is Anna Bower. Anna, tell us about this particular room of your palatial mansion, which really does look like it's something out of the Marvel cinematic universe.

Anna Bower: I prefer a fortress of doom as opposed to temple of doom, but I will admit that there is a temple like looking structure there in the background in the center of this fortress Marvel villain lair looking building, which is an exact replica in my palatial mansion of what the Nashville Federal Courthouse looks like then and I was just there earlier this week, and so I immediately got my construction crew in the palatial mansion, you know, on it in terms of building a, a Fortress of Doom replica. So, well, I'm excited about this new edition.

Benjamin Wittes: Well, excellent. Let's start with your trip to Nashville. Were you there to see Taylor Swift?

Anna Bower: I wish I didn't even have time to go to the Country Music Hall of Fame or do any of the you know, go where Taylor Swift has been in Nashville tours. So I was very disappointed about that.

I was there for a whirlwind 24 hours for a federal court hearing in the criminal case of Kmar Abrego Garcia. This was the redo of the detention hearing that was previously held before the magistrate judge in Tennessee.

Benjamin Wittes: And stop right there. For those who do not know federal criminal procedure, when you go before a magistrate and you, the magistrate finds that you're bailable and you know you're gonna be held in immigration custody rather than in federal criminal custody, why does the government get a redo?

Anna Bower: Well, so the government basically the magistrate makes a recommendation. The government then appealed to the district court judge. So rather than it going up to a court of appeals, it goes to the presiding judge who is the, you know, Article III federal court judge who's gonna be presiding over the trial.

In this case, it's Waverly Crenshaw who when the government appealed up to the district court judge following the magistrate's ruling he said, all right, everyone just come back and we're gonna kind of do a redo. We weren't really sure, was it gonna be a supplement or was it, would it be a full-on redo of this six-hour hearing that previously occurred before the magistrate?

And so that's kind of why I was in Nashville. And the government brought in it the same witness that it had at the previous hearing before the magistrate. That's Special Agent Peter Joseph, who's one of the Homeland Security Investigations case agents on the Kilmar Abrego Garcia case.

Benjamin Wittes: Alright. And so how different was this from the hearing before the magistrate? And what do we, and the judge hasn't done anything yet, right?

Anna Bower: Right. The judge hasn't done anything yet. And I'll, I'll start by just like reminding people kind of what is at stake here. Again, this is the detention hearing.

The magistrate judge, as we've mentioned previously said made two findings in her ruling. One was that, you know, the government had not even established a legal basis for a detention hearing 'cause that's one of the things that the government has to do to even, you know, get to a point where maybe they could have a ruling that Abrego should be held in criminal custody.

There's a number of, of basis that they've argued in, in terms of establishing a basis for a detention hearing. The main one that has kind of been an issue is whether or not the charged crime involved minor victims. The government has said that one of the passengers in the vehicle that Abrego is alleged to have smuggled during this 2022 incident in which he was pulled over in Tennessee, the government says that one of those people, the passengers in the vehicle was at the time, about 15 years old. They have not located that person, but they do have a handwritten list of names and birth dates that suggests, that, you know, the passenger in the government's account, it was 15 years old at the time.

There's other legal basis as well. One is flight risk. Another one is that Abrego poses a, a risk of obstruction or witness intimidation and they've, in that respect, noted their all allegation that he's a member of MS-13. And, and the magistrate judge found that if the government did not establish any of those legal bases for holding a detention hearing in the first place, but even if they did it, you then go to this kind of second issue at stake here, which is, you know, even if there is a basis for holding a detention hearing is there, are there no conditions of release that could kind of, mitigate the potential danger to the community?

That kind of thing. So basically, is detention warranted? And the magistrate on that prong also said even if a detention hearing's warranted you know, still no criminal custody is justified here. So that's kind of where we were going into this in terms of what the magistrate found. And, and this time around it wasn't a complete do-over. Last time, you know, there was a six-hour hearing. The magistrate mentioned that it was the longest detention hearing she'd had in her, you know, I think over a decade on the bench, Roger, correct me if I'm wrong, but it, it was a lengthy hearing.

This time though, it was more like a supplement to that hearing. It wasn't like a full, you know, we're gonna go through every kind of little thing because the judge made it very clear that he'd read the transcript of the last hearing, had gone through the exhibits, that kind of thing. So it was kind of more of an opportunity for the government to supplement its case. It did so in large part by admitting additional phone records, which it didn't admit last time.

One of the reasons among others that it wanted to admit those records had to do with this idea that they, they've, they have an allegation that Abrego lied about, you know, where he was coming from. Was he in St. Louis for construction work as opposed to in their account coming from Texas allegedly smuggling people who are undocumented? And they admit these phone records essentially, in which they're showing, you know, communications with the cooperator one, Jose Ramon Hernandez Reyes but then also that there, in their account there are not phone calls that are pinging off of towers in St. Louis. Although on cross examination we learned that there were some calls that pinged off of towers in Missouri. So, so you know, that's I think one of the big kind of supplemental evidence that the government admitted otherwise.

It was kind of like a speedy, quick supplement slash redo of all the major points that they'd gone through before. In terms of, you know, things like the passengers in the vehicle this list that was there's a picture that they have admitted of the names and birth dates of the people who were in the vehicle.

There is, there are allegations by the cooperators that the agent testified to regarding Abrego's alleged behavior towards women or as particularly minor women who were traveling as passengers as a part of the alleged smuggling ring. There's also this witness that they interviewed who is referred to as N.V., who alleges that when she was 15 years old, Abrego asked her for nude photos via a Snapchat account that they say is linked to Abrego.

So they kind of ran through all of those things. There was much less emphasis this time on some of the allegations that they made about these at the last hearing allegations that he was involved in drug smuggling and running guns potentially as a part of this conspiracy.

But one of the big new revelations been relates to something that Pam Bondi brought up in the initial press conference in which she announced these charges against Abrego and she publicized during that press conference an allegation by a cooperating witness who alleges that Abrego claimed to be involved in the murder of a rival gang member.

And it, there was nothing at the last hearing that we really got about that allegation. And then in this hearing we did get a little bit more. Special Agent Joseph talked about a witness that he had interviewed for the first time on Monday who had already had a number of interviews previously with other law enforcement investigators, but this was the first time this particular agent had interviewed the witness.

And he testified to this witness claiming that at a dinner party with drivers who are part of this alleged smuggling ring and then also the main you know, cooperating witness, Jose Hernandez Reyes, during this dinner party, allegedly Abrego bragged about being involved in the murder of a rival gang member when you, and that's the reason why he came to the United States.

On cross-examination you know, Abrego's defense counsel, who I will mention is his new defense counsel, previously this hearing he was represented by the Federal Public Defenders, this time he was represented by Hecker Fink. Sean Hecker was the, the lead defense counsel who handled the cross-examination—was able to get Peter Joseph to admit that, you know, basically the government has not been able to corroborate that allegation about Abrego being involved in a murder of a rival gang member's mother.

And I thought that was very remarkable in that, you know, Pam Bondi was willing to go out at a pre, press conference and publicize this allegation when all that they have is one co or one cooperating witness who has made the allegation and there's been no other cooperation and including from the main cooperating witness, Hernandez Reyes, who the case agent admitted, you know, that he has not even asked Hernandez Reyes about this. And he was allegedly at this dinner where Abrego made the kind of, you know, bragging about the murder statement.

So, other things, I, I think on cross-examination that was effective was Sean Hecker was able to really kind of focus on the fact that the case agent who was testifying Peter Joseph had not read previous interviews of some of the cooperators who had been interviewed by other law enforcement personnel before he interviewed them.

And that was struck me as unusual because it would seem like you would want to go into an interview. Or if you're testifying, you know, even weeks later, you would've read kind of all of the relevant materials. You'd want to be able to know if there are inconsistencies that kind of thing. But the case agent admitted that he has not read a number of the prior interviews of some of these main cooperating witnesses.

And, and so, but it was interesting because it to some extent was somewhat effective for the government because he was therefore not able to be cross-examined about these prior interviews so that, you know, the inconsistencies could be pointed out because he wasn't familiar with them. So, however, the judge did allow defense counsel to, you know, admit those prior interviews under seal.

So I think Ben, you know, where we are now in terms of–

Benjamin Wittes: Before we get to where we are now.

Anna Bower: Yeah  

Benjamin Wittes: I, I wanna try to understand what turns on this because everybody acknowledges that he's not gonna go free while on bail while he's awaiting trial. So what turns on this, as I understand it, is whether he remains in custody of the Bureau of Prisons, or whether he remains in the custody of the of ICE while he's waiting for trial. Is that right?

Anna Bower: I don't know that it's necessarily a sure thing that he will re, remain in immigration custody. I mean, well first there's obviously, there's the question of whether or not the government may remove him before the trial, if he is transferred to immigration custody, but you know, the trial has now been set for January.

here is case law that, and Roger, correct me if I'm wrong, I'm, I wanna preface this by saying I'm not an immigration law expert whatsoever, but there is case law that is to the effect of, you know, you can only hold someone for so long in immigration custody before you basically have to make a showing that their removal that you're making steps to imminently remove them. It's like a, you know, six, I think it's a six month.

Benjamin Wittes: Yeah. But that's after a final order of deportation. It's after. Yeah.

Anna Bower: But he already has a final order of -

Benjamin Wittes: No, he has a final order of removal with or withholding of removal for El Salvador. Yeah, so if they, if they reopen that then I don't think the order is final.

The issue in Zadvydas, the Supreme Court case from, what is it, 2003 or four or something, is this guy's removable. There's nothing to contest anymore, but he's stateless, so no country will take him and they say you can't hold him forever. There's a sort of presumptive six month thing, but this guy, a, Abrego’s removable would be very much still in play.

I don't think Zadvydas applies as an initial matter at least until there's nothing else left to litigate.

Anna Bower: I, Roger, do you wanna chime in on this? Do you have thoughts? Because I.

Roger Parloff: I think it's, it is quite a live issue. I, I don't think they can't, you know, it, it, and in fact in the amended complaint that his lawyer, that Abrego's lawyers filed in the civil case, they've claimed that the 180 days has run.

I mean, they, they say that it did start with, that's the final order of a, a removal. It was 2019. And, and they make an argument that I think is wrong that it expired in April 2020, but he's been in custody four months this time. And in, in, immi, well, not, I don't know how CECOT counts, but it it's definitely a live issue. They're gonna argue, yeah.

Anna Bower: Yeah. And so I, I think that, you know, it's it's not,

Roger Parloff: And with six months to go for trial, you know, INS can't DHS can't say, right?

Anna Bower: And so I, I think that there's, you know, this question and then there's the question of how Judge Xinis plays into all of this as well. If he is released from criminal custody which we don't know yet there's, in the civil litigation that's occurring in Maryland, we've still, we're still waiting on an order from Judge Xinis on Abrego's motion to return him to Maryland and enjoin his removal from the United States.

And there's even the question of whether maybe I, I mean, I, I think probably not, but part of the argument in, in respect to that motion has been that she needs to order that he is put back in being a, you know, a, a free man on supervised release in Maryland as opposed to being detained in immigration custody.

And, and I think it's more likely that she does something else in terms of relief, but at, at the kind of extreme end of what the potential relief could be. You know, it's that she's saying like, to go back to you know, letting him be in Baltimore on supervised immigration release as opposed to being in detention.

So it's really unclear, Ben, exactly how all these things are going to play together, but it's, it's kind of like there's all these moving parts and one of them, the threshold question is, does he even get released from criminal custody to start with? So I think that,

Benjamin Wittes: Alright, so that brings us back to where we are in, in the process. Where, where do you think Judge Crenshaw is in his thinking about this? Or do we have any idea when he is gonna rule and what he might be moving toward?

Anna Bower: Yeah, so we had argument after Peter Joseph finished his testimony. Here is what I think Judge Crenshaw is thinking. He reserve, he took the matter under advisement.

He said that he did not expect to have a ruling this week, but he would rule next week. Based on the way that the argument went. I think it seems likely that Judge Crenshaw is going to depart from the magistrate’s view on the first prong that I mentioned, which is whether or not a legal basis has been established to even have a detention hearing in the first place.

One of the main questions there is this question about whether the government has made a showing that you know, the charged defense involves a minor victim. There's some question about how broadly you construe in involves, like, what does that even mean for a charged defense to involve a minor victim?

It seems like the judge is thinking that that has a, a more, has a more liberal interpretation than what the way that the magistrate might have been thinking about it. And I think that ultimately it seemed like, and I very much could be wrong, that Judge Crenshaw, seems to be more willing to find that, you know, at that threshold question, there was a basis for having a detention hearing in the first place.

But then going to the second question is, you know, are there conditions of release that you could impose, you know, have you that kind of mitigates any of the issues that might come with releasing someone into the community? I think that it seems clear. He even said, you know, I, I don't understand how you're getting to like, clear and convincing evidence that there's no conditions of release, like the magistrate's conditions are pretty stringent. He'd be on, on house arrest, like, he's not gonna be driving people, you know, smuggling more people around if he's on house arrest, that kind of thing. So I think that it seems clear to me that the judge is, especially on that second prong, just not convinced that the government has made its case.

And, and so I, I suspect that at least on that prong Abrego will not be ordered to be held in, in criminal detention.

Benjamin Wittes: Alright. All–

Anna Bower: Oh, can I add one more thing? Sorry.

Benjamin Wittes: Go ahead

Anna Bower: At the very end of the hearing because we were all, you know, waiting to see what Judge Xinis is gonna do while this hearing is ongoing.

And there's been all these questions in this case about what actually is the government's plan to if he is released from criminal custody. Sean Hecker tried to ask the judge, Judge, could we get you to, you know, ask the government what its plans are, if they have any update on what they plan to do with Mr. Abrego if he is released. The judge, I think, misunderstood the question and so wasn't, didn't directly address it. So we still do not have a good sense even on the day of this hearing, you know, what the government's latest plans are if Abrigo is released from custody and or criminal custody.

Benjamin Wittes: Alright let's turn, Roger, to the civil case involving the same two parties, the government in this case the, in its immigration capacity and Mr. Abrego Garcia. What developments have happened this week in front of Judge Xinis.

Roger Parloff: Well, I think Anna said the, the big thing, which is that we sort of expected Judge Xinis to rule before a Wednesday and she didn't. That's the ruling about what to do in case he's released so that he isn't the plaintiffs were asking for some assurance that some 48 hours, 72 hour window when they could make motions and try to make sure he's not whisked off either to a third country or, or back to El Salvador.

And, and we ended, it was a little surprising we didn't get it. Except I, I assume, I mean, this is speculation obviously, that that would've been a weird order. It would've been, it wouldn't really be ripe. It would've been anticipating. And it looks like she, she would, she was, she's probably waiting until there is a ruling and, and if it's, that he is released from criminal custody, boom she’ll have a, a, a ruling then I, I, I'm speculating. The other thing is that litigation is going on about whether there can be they filed this motion to file an amended complaint. And of course, the government is saying not without force that the case is over.

You know, the, the, the original complaint was to bring him back. He's back. And these arguments about, well, he's back, but he's not in Maryland. Some of those are not that convincing. There are these new claims about there is one claim, like I said, under Zadvydas already. And, and there are things about protecting him from these future due process problems, given the history of his case.

And, and maybe she might let those go forward.

Benjamin Wittes: Alright. Meanwhile, we have a deal with El Salvador regarding the 200 plus CECOT Venezuelans, but it's not the deal that people like you and me were thinking about where they would send them all back to the United States, and it's a deal with the nation of Venezuela.

Tell us what's going on.

Roger Parloff: Well, the story I saw before this taping began was from Reuters. And this is a, you know, I think everyone's sort of in process of learning what Reuters was reporting is that at that point is that 238 Venezuelans are going from CECOT—these are the guys, the guys we sent there—to Caracas.

And in exchange, Venezuela will release five US citizens and five U.S. lawful permanent residents. So if that's true we don't, I, I, I guess that's a three-country deal, but the only beneficiaries are the U.S., the only beneficiaries are the U.S.. Remember there was another reported. Deal that El Salvador was working on to send these pe, Venezuelans to El Salvador and get El Salvadorians back, El Salvadorans back.

This sounds like the U.S. made this deal. And, and so it, it will obviously incite new questions about whether all of those people were in constructive custody, whether the U.S. still, you know, how do you make a deal without seeming to think that you have control over these people also there's a few people we've been talking about that if this is really happening are you know, like if you remember Cristian the guy in the J.O.P. case that Judge Stephanie Gallagher has been ordering him to be returned instead. He's going to Caracas apparently.

There's a guy, Edicson Quintero Chacón in Middle District of Georgia, there's Jose Ramos BA in the Middle District of Georgia. All of these people now, apparently this would not be Melgar-Salmeron, who was Salvadoran, that's the guy in front of the Second Circuit that was sent to CECOT.

But anyway, if this is what Reuters says it is this is a developing situation. I tried to get a couple co comments from a couple attorneys involved, and they were, but they were all, we gotta learn more and we'll be making a statements later.

Anna Bower: And do we know Roger, are these people, is there reporting on what's going to happen to them? Will they too be imprisoned in Venezuela or will they be, and some of them, I think, are people who had come to the U.S. because they were fleeing Venezuela.

Roger Parloff: A lot of them were fleeing, a lot of them were fleeing. And now I'm, I'm offering some really unreliable stuff. You know, just stuff I, I saw from on internet from, from sensible people.

But some apparently Maduro is, is presenting this as a success to bringing people home. Like, this is, this is a fest, you know, a great thing for Venezuela. So it would be very incongruous if he throws them all in jail. But on the other hand yes, this would include people like that Andry Romero, Romero Hernandez, maybe I, I can't remember the, the hairdresser.

So yeah, these are people that have reasons to fear Maduro. So that's a very good question. I don't think, I don't, we don't know.

Benjamin Wittes: Alright, let's change subjects. Go to a much lighter subject and play our weekly game. Who wants to dismantle a federal agency? And we have a special guest contestant on the show Nick Bednar, who has dismantled more federal agencies than just about anybody else we've, who's played the game. Nick has a, a big article in Lawfare I wanna say two days ago, although time all blurs together. Nick, I'm just gonna turn the floor over to you and say like, what's going on? Do we still have a department of education?

Nick Bednar: Do we still have a department of anything, is the first question. You know, who wants to dismantle a federal agency? Well, a lot of people, right? It's a, it's a hot thing to do right now. So, I'll just kind of briefly set the framework and talk a little bit about what's going on, and then I'll get to the two Supreme Court cases that we're dealing with.

Benjamin Wittes: So each of which is like a paragraph long.

Nick Bednar: Right, right.  We'll, we'll, we'll read some tea leaves as to what's going on, but that's about all we're gonna be able to do. Okay. So what we're really talking about here is called a reduction in force. So a reduction in force is the legal procedure in which the federal government removes a large swath of employees either due to lack of funds, lack of work, or reorganization.

And you'll all remember starting around February, we start getting all these news alerts that USAID, has been rated by DOGE and 99% of employees have been laid off. There's in like on April 1st, which is the absolute worst day for this to happen, there is a line outside of HHS as employees are scanning their badges, trying to get into the building and finding out that they have been removed from their positions.

So we have these large-scale reductions in force that are taking place between February and about May to remove all these federal workers. And in total there's been about 130,000 people removed from their jobs. So it is the largest layoff in federal history, or actually in U.S. history. The next largest layoff came from IBM in the nineties.

So we're talking about massive job loss, which triggers massive lawsuits. So, percolating throughout the district courts for the last couple months have been, you know, between 22 and 30—depends on how you kind of count it— cases regarding these RIFs, and I'm gonna talk about two big ones. And I should say about 60% of these cases or so are succeeding.

So the employees are getting some relief temporarily, but 40% of these cases they're finding that these claims are not valid. So the cases being brought in federal court are typically being brought by one of three groups: federal labor unions such as the American Federation of Government Employees, state governments who rely upon these workers to process federal grants, or nonprofits who equally rely upon these workers to process federal grants.

And there have been some standing issues that have arisen from this, I can talk about that if we want, but the big argument that has been made is that the president's effort to remove all these individuals is a violation of Article II and the separation of powers. Because all of these agencies were created by Congress and therefore it seems rather absurd that the president can use these procedural provisions designed to reduce the size of the workforce when say, Social Security closes a rural office in upstate New York to dismantle whole departments.

So we're talking about 50% of the Department of Education, 24% of HHS. That is a lot of people to suddenly remove on the basis of an obscure provision in the civil service laws designed for handling kind of small office removals. So the claim being brought, separation of powers claim, under Article II. And we've seen kind of two different approaches. So I'll talk about the two cases that end up in the Supreme Court as kind of two examples.

So the first is AFGE (American Federation of Government Employees) v. Trump. And in that case, the nonprofits, federal labor unions and states sued to enjoin implementation of the executive order that required all these agencies to conduct RIFs in the first place. They succeed in their arguments.

Judge Ilston of the Northern District of California ultimately enjoins implementation of this executive order and the OPM memos requiring agencies to produce reorganization plans. And she just says, look, this is an unlawful reorganization the president used to say, or used to have reorganization authority, the president no longer has that authority, and therefore this is an unconstitutional overstepping of the boundaries between the legislative and executive powers.

So there have been these broad claims that have been brought that seek to target the executive order. There are also these narrower claims that are brought with respect to particular agencies and the tasks performed by that, those agencies.

So in New York v. McMahon, the state of New York challenges the dismantling of the Department of Education and says, look we rely on all these grant programs. We can point to exactly how the law will not be implemented and how we will be impacted by it. And therefore, you should enjoin the RIFs in the Department of Education as an unlawful reorganization of the Department of Education.

And once again, these RIFs are enjoined. In both cases, the government goes to the Ninth Circuit and the Fourth Circuit respectively asks for a stay. They are denied a stay. Which brings us to the Supreme Court in this week and last week.

So we'll start with AFGE v. Trump, which is the first case. In A-F-G, A-F-G-E, I'm never gonna say that acronym smoothly, AFGE. I don't know. AFGE v. Trump, the Supreme Court says we're gonna stay the injunction and allow the RIFs to go forward. And their reasoning is that the Trump administration is likely to succeed on its argument that the executive order and memorandum are lawful, but they emphasize that they are not making a assessment as to the legality of the particular RIFs and reorganization plans being conducted by the agencies.

Basically, they think the executive order itself is lawful. They make no opinion on whether these RIFs themselves are lawful. The interesting thing about this case is Justice Sotomayor actually concurs in the result.

Benjamin Wittes: And just to be clear, yeah. They think the RIF is law, the, the executive order is lawful because it says to the extent it complies with federal law. Right?

Nick Bednar: Right. So the, the executive order is phrased in a way, which, if you didn't phrase an executive order this way, I don't know what you think you're doing. That basically just says agencies should engage in large scale RIFs and reduce their workforces to the size permissible by law. And so, this language permissible or consistent with existing federal law is really the hook here that they're relying on saying, well, they were told to comply with the law.

Benjamin Wittes: And just to be clear, couldn't you make anything lawful that way. I mean, if you issued an executive order to engage in genocide and, and added the phrase to the extent permissible by federal law on its face, it would, it would satisfy form and legality review it just might cover a null set, right.

Nick Bednar: Right. And, and I mean, I think that's really the question here, and I think this is Jackson's frustration with a lot of this, right? So Justice Jackson writes this dissent against the stay in this case. And part of the, you know, argument is that all of these RIFs are unlawful because it is clearly an entire reorganization of the federal agency, so what would it even mean for these to be consistent with law, right? These are unconstitutional reductions in force and reorganizations of federal agencies. And so yeah, it, it's a null set. And if it's a null set, why are you staying the order?

Sotomayor, as I said, interestingly, concurs here and basically tells the district court where to go next and says you have to look at the individual RIF plans and determine whether each one is actually unlawful because in theory some of these could have been consistent with applicable law.

Justice Jackson has a lot of issues with this decision. So she first kind of lays out the argument that Judge Illston also lays out saying the president used to have reorganization authority. Congress used to give the president from about 1930 to 1984 broad authority to reorganize these agencies and that authority lapsed in 1984.

And so the president doesn't have this authority, but it is very clear if you read the executive order, if you read OPM’s memos, that they intend to organize or reorganize the federal government. A bunch of these agencies like USAID, right, they specifically say reduce the size of the federal workforce in order to eliminate the agency. Same with the Department of Education. So what are we doing here? Right?

This is clearly a usurpation of Congress's ability to create agencies. The other issue Justice Jackson has really draws from her experience as a district court judge, and she takes a very strong stance against the court intervening in this way.

And she says, these are factual disputes and the district court actually made quite a long and lengthy record of what the issues were in these cases. And the district court had already reviewed four of the RIFs and the reorganization plans. And so why is the Supreme Court choosing to ignore the discretion it typically accords a district court judge in fact finding? And the final thing she makes is kind of a plea to what are the balance of the inequities here? Like what is the risk if we stay this decision? And she ultimately is gonna be proven right by the very next day, which is a lot of people are going to be fired immediately.

And there are going to be a lot of government programs that cease operating and that's gonna affect farmers, it's gonna affect schools, it's gonna affect–

Benjamin Wittes: But presumably not below the level of the statutory minimum.

Nick Bednar: Right, right. Presumably.

Benjamin Wittes: Without violating both the statute and the executive order itself.

Nick Bednar: Right. The question being, what is the statutory minimum, right? I mean, like, it's not like we, Congress passes statutes and says, we think we need five people to implement this program, right? Like no law is ever written in that way. Congress just assigns agencies tasks and presumes that the agency will use its resource to actually implement those tasks.

So, you know, Justice Jackson's dissent proves very predictive of what happens the next day, which is HHS, just to give one example, sends an email to everyone that had previously RIFed and says we're terminating your position as of today pursuant to the RIF. Thanks, have a great career. And so the federal government has restarted its efforts to remove a lot of these federal employees and we're gonna continue to see that ongoing. Now that–

Benjamin Wittes: Now I wanna ask you a question about that.

Nick Bednar: Yeah.

Benjamin Wittes: Because number one, there's two ways to read this. I think one is that basically six justices, let's scratch out so to my or and Kagan here, but at least five or six justices believe the administration is within its rights to do this.

And so why freeze them up while we litigate it? They're gonna win eventually, so let 'em win in the interim. That would be the cynical way to look at it. The less cynical way to look at it is, hey, go back to Brett Kavanaugh's concurrence in D.V.D. or was it D.V.D. or was it one of the, I can't even keep them straight anymore, but you know, he is saying, look, the real question here is what is the interim default rule and who sets it while these questions are being litigated?

And, you know, it'll pain Roger Parloff, but you know, the, the, if, if the government's behaving illegally, we can deal with that in the due course of time. And, but in the meantime, we shouldn't be getting in the way of the executive branch doing its job on the basis of emergency orders. And yeah, they'll, all these people can recover in the, you know, at the Merit Systems Protection Board or the Court of Claims or whatever.

Which one do you think going is going on here? Is this a bunch of people who've made up their minds and are just clearing the underbrush? Or is this really a fight about what the default rule is gonna be while we're figuring all that stuff out?

Nick Bednar: So, you know, I, I don't wholly know. I have a guess based on the next case I'll talk about in a second.

I think to some degree it, it's, some of the justices have made up their mind. I think part of the reason we're not getting an extended conversation here, so like comparatively right in Wilcox v. Trump, which is the case about the National Labor Relations Board member who gets removed, we get quite a lengthy discussion of where the Supreme Court is headed.

That they are basically tipping their hand that they think Humphrey's Executor is going to be overturned, but that we're gonna carve off the Fed in the end. And they basically lay out more or less what's gonna happen. We don't get that here. I think what's happening is that the conservative justices are inclined to let this go forward, but they don't agree among themselves as to what or the like, the reasoning behind why the administration could go forward.

And there could be multiple different answers to that. So one could be that the president has to be permitted to remove all federal employees by Article II. There are certain justices who think that's the reason. The other could be that these litigants don't have standing. And so we're gonna have to litigate this through the Merit Systems Protection Board.

I mean, the one trick with all these cases, right, to go back to the harms you mentioned, like these employees will be able to get back, pay and reinstatement through the Merit Systems Protection Board. That's true. But these employees are not the plaintiffs in these cases. Right, the plaintiffs in these cases are the states and the nonprofits who are being denied federal benefits by virtue of the reduction in capacity.

And I don't think that gets resolved through litigating in the Merit Systems Protection Board in the same way, right? I mean, like indirectly it would if all those people came back to work. And so I think that's really what we're talking about. And so to some degree, you know, whether you think this is the state is correct or not, it depends a little bit on what you think the harm is. If you think the harm–

Benjamin Wittes: Unto whom?

Nick Bednar: Unto whom, exactly. Yeah. If you think the harm is that certain individuals are being unlawfully removed and this is fundamentally a personnel action, you are more likely to find that these individuals do, or that the states and organizational plaintiffs don't have standing because they're not the ones suffering harm.

Right, and I think that's where a lot of the conservatives end up. If, however, you see this as a broad constitutional harm that certain individuals are being deprived of the rights they are afforded under statutes, you are more likely to find that these individuals have standing the states and the organizational plaintiffs, and that a stay is appropriate to protect those statutory rights.

Benjamin Wittes: Alright, so let's talk about the second case.

Nick Bednar: Okay. So the second case, so where we leave off with AFGE, is that what it looks like the court is signaling to the district courts is you need to go plan by plan and figure out which plans are unlawful, which would seem to suggest that if a court were to focus on a particular agency and a particular RIF plan, they could enjoin that plan upon finding that that particular plan is unlawful.

The next case, McMahon v. New York, really calls into question that idea. The Supreme Court actually says nothing in this case, or the majority says nothing about why it is choosing to stay the district court's preliminary injunction, we get no reasoning in this case, the best we have is this long dissent from Sotomayor, which repeats a lot of what Justice Jackson says.

And so I'm, I'm not gonna re-litigate the whole separation of powers arguments, but throughout there are these hints that what the majority is really concerned about is standing that these states don't have standing. And if the states and the nonprofits don't have standing, then these cases aren't gonna work in the district court ever.

You're going to have to bring that, the federal employees are gonna have to bring them through the Merit Systems Protection Board. And so the Department of Education case, McMahon, really cast a big shadow over the 22 cases going forward in the district courts and whether states and nonprofits are gonna be able to maintain these claims challenging RIFs.

Benjamin Wittes: And just walk me through that for a minute. If you're a state that hasn't gotten your money, or you're a local school board that is, hasn't gotten your money, and the education department has slashed half of its workforce, is the standing theory that you can't connect specifically the, you haven't gotten your money to the fact that the, the, the workforce was cut in half? What's the, what's the theory in which you've certainly suffered injury, in fact?

Nick Bednar: Yeah.

Benjamin Wittes: What's the, what's the theory in which you don't have standing?

Nick Bednar: Yeah, so I, I think it's a, there's a couple different things going on. One of which right now is that they think the harm is too tenuous. That you can't connect the, like particularly right now before these grants have like actually been delayed for a significant period of time, you cannot connect the RIF to the delay in receiving grant fund.

I think the other thing going on here is that the federal courts have always been very, very hesitant to question agency distribution of resources and agency personnel decisions. They view that as something that is committed to agency discretion and generally not reviewable. And so consequently, even if you could connect it to a RIF, right, a lot of federal courts are gonna say this amounts to a delay that is caused by a lack of agency resources at this point.

And we are not the ones to determine how agencies should be spending their resources. The fact that they've chosen to allot five people to this instead of 50 doesn't necessarily reflect anything that is a systematic or unconstitutional problem, it is the agency's management of resource.

Benjamin Wittes: Oh, in other words, if you school district and such and such haven't gotten your money, you can sue to get your money right, but you can't sue to address the staffing decisions that may have led to that.

Nick Bednar: Right, like eventually this could all start to like bleed into the impoundment issues. Right?

Benjamin Wittes: Right.

Nick Bednar: Where, if it's the case that we have whole pots of federal money that aren't being spent because there are no federal employees to spend that money, you can imagine a bunch of these, you know, states and local governments bringing claims either under theories of impoundment or under the Tucker Act, asserting that there have been cons or contractual violations.

But those are different claims than challenging the RIFs themselves.

Benjamin Wittes: All right. So we also this week had a couple of decisions that you alluded to in the firing people department. Walk us through those. Those ones are, I think, a little bit more predictable.

Nick Bednar: Yeah. So I'll, I'll keep this short because I, I think this is like relatively simple as to where we are.

So the Trump admin, or President Trump specifically started removing a bunch of commissioners from multi-member commissions like the Federal Trade Commission, the Merit Systems Protection Board, the National Labor Relations Board around February, March, and we're starting to see some of those cases get summary judgment motions decided. So the first one that's worth noting is that Kelly Slaughter, who's a former FTC commissioner, won her case before Judge Lauren Ali Kahn on summary judgment saying that she had been unlawfully removed from her position. Judge Ali Kahn sees this as a very straightforward case and it ultimately very much is because it involves the Federal Trade Commission.

So the key case that says as of right now that removal protections are constitutional for multi-member commissions is Humphrey's Executor v. United States. That case involved the Federal Trade Commission. Kelly Slaughter was a member of the Federal Trade Commission and she was removed. And we know those removal protections as of today are constitutional.

Now, Judge Ali Kahn is very aware that the Supreme Court is likely to overturn Humphrey's Executor. We see that suggested in Wilcox v. Trump, but says that's not the District Court's decision to decide, Humphreys is still good law. The only other thing worth flagging on the removal of these commissioners is that Solicitor General Sauer has requested a stay from the Supreme Court on the removal of members of the Consumer Product Safety Commission.

And we'll see where that goes. But there's currently an injunction on the removal of those commissioners too. Supreme Court will likely act on that in a manner similar to Wilcox.

Anna Bower: Thanks so much, Nick. So let's move from dismantling of federal agencies to the politicization of another agency, namely the Department of Justice. Ben, this week there's been quite a bit of hysteria around the Epstein files. The Jeffrey Epstein case is not one that we typically talk about on Lawfare Live, but the controversy around the Epstein files has engulfed the Justice Department for–

Benjamin Wittes: And it's making its way into court now.

Anna Bower: And it may very well make its way into court.

It has also led to calls for Pam Bondi to resign it has led to Trump calling on Bondi to seek the release of grand jury testimony, and it has also led to the long awaited return of baby cannon. So before we get to the question of exactly how this makes its way into court and whether the, the grand jury materials even can be released, Ben, can you kind of bring us up to speed and tell us exactly how it is that we got here and what's been going on?

Benjamin Wittes: Well, how we got here is mostly a creature of a world that I don't follow very closely, which is the world of right-wing conspiracy theories. And this is not an issue that lives primarily in the law or in court. It, I mean, it really lives in the fever dreams of right-wing podcasters. Two of whom are now running the FBI.

And so I think the, the, the origin of this particular problem is that in their zeal to gin up conspiracy theories about the Biden administration and about Democrats, a lot of people, including the attorney general, including the FBI director, and including the deputy FBI director made, a and the president made a lot of promises about releasing the Epstein files never quite specifying what they mean by that.

As though there's this sort of file, you know like a manila folder that contains a list of everybody that Jeffrey Epstein ever provided an underage girl to. And of course, that's not what criminal files look like or how they're organized. And so then these people get into government, and they actually have to contemplate what would it mean to release the Epstein files.

And of course, the first problem is that a, a lot of doing that would be flatly illegal for a, a lot of reasons that we can talk about. Secondly, it would involve, naming and releasing the testimony of a whole bunch of sexual abuse victims, which is not something you would wanna do, there are a thousand of them.

And so you're talking about, you know, releasing highly sensitive data about the victimization of a thousand people who were either underage or may have been close to underage or trafficked, which is an appalling thing to talk about. And then of course, there's the problem that you would run into in any criminal investigation if you were talking about dumping files into the public, which is that, you know, most witnesses who come into contact with federal law enforcement, when they're doing an investigation like this, are innocent of anything.

They're just people who saw something or who sold something to somebody, or who, you know, worked on the island. You know, like, and so you end up with just immense capacity to slime people and some of whom are actual victims of crime, and some people, some of whom are you know, not victims of crime, but just witnesses to very awful things, not people who necessarily need opprobrium directed at them.

And so the you know, the moment you're in a position of responsibility, and then there's this other little factor. Which is of course, that the president is in those files, which is now we've learned from, in an authoritative way from the Wall Street Journal, but which a lot of people had suspected before, and so you get into office promising to release the Epstein files and then you find out that there are all kinds of very good reasons that that wouldn't be a great idea and of course a couple of corrupt reasons as well. I'll leave it to the viewer to decide which, what balance of which is inflecting the FBI and Pam Bondi's decision.

And so the result is that you feel like you can't do it or don't wanna do it after, after all. And then of course, the fever swamp goes insane. So I think that's how we got to where we are.

You're muted.

Anna Bower: A, a part of those, that expectation setting early on I is that Pam Bondi at one point went on Fox News and said, said, or suggested something to the effect of, you know, I've got the Epstein list on my desk.

Benjamin Wittes: It now says the list doesn't exist

Anna Bower: Now says the list doesn't exist. I, I mean, did Pam Bondi lie then, and if she did, you know, what does that mean in terms of her standing as the Attorney General? Is that something that, you know, people are calling for a resignation in your view? You know, is that something that is, is something that one ought to resign over?

Benjamin Wittes: Well, so let me say, let me be very precise about this. What Pam Bondi said, according to Pam Bondi now was untrue. Whether she lied depends on a, a motive and sort of enter question that I have my suspicions about, but I don't I don't purport to know the answer to.

What she said was not in fact, consistent with what she now says the reality is. If she lied, she should certainly resign. The attorney general has no busy business lying in public about a law enforcement matter. If she spoke recklessly and stupidly but not maliciously, and what she meant when she says the list is on my desk is there's a bunch of files with Epstein stuff on my desk, I don't know if she should resign about that. She should certainly resign about her treatment of, of Erez Reuveni.

However, I mean the, the, this is the classic overdetermined variable, like why Pam Bondi should resign. And so I, I, I don't like, there's like 10 reasons why Pam Bondi should resign, whether this is one of them or not, depends on how charitable you wanna be about her state of mind. But, but, but importantly, this certainly was talking for a lot of other reasons.

Anna Bower: Well, and also the importantly, this is the only reason that Laura Loomer is agreeing that Pam Bondi should resign. Right. This is, and, and by that I mean that this is the only reason of the reasons you've just listed that MAGA also seems to have support for, you know, agreeing that there's something that Pam Bondi has done that is, that is in their view wrong and, and not something that is in fitting with the Office of the Attorney General.

But let's move on from Pam Bondi and go, well, still in Pam Bondi world, but goes to this question of whether or not these grand jury materials can be released. Trump, just last night on a Truth Social post in the wake of the Wall Street Journal's report about this birthday letter that, that he allegedly sent to Jeffrey Epstein called for Pam Bondi to seek the release of certain grand jury materials related to the Epstein matter.

Can the Justice Department do that Ben and is it a good idea even if they can, should they?

Benjamin Wittes: Well, funny you should ask because you are asking this question of one of the very few people in the United States who has moved a court successfully to unseal grand jury records. And I, along with Jack Goldsmith and Steven Bates moved the District Court in the District of Columbia to unseal the Jaworski impeachment report.

And much to my surprise Judge Beryl Howell did so. And, and so, yes, it is possible to get grand jury material unsealed. It is quite rare and it is very rare to do it within anything like real time like that.

Anna Bower: And, and just, just to be clear, what is the reason why it's rare? You know, there's Rule Six. Like what, what's going on with that?

Benjamin Wittes: Rule Six says, grand jury matters occurring before the grand jury is not, cannot be disclosed. And it is in perpetuum. It is not like for 30 years and then it becomes public. It's not like classified information which can be declassified. It's forever. There is grand jury testimony from the Civil War era that sits in the national archive today, and it cannot be thrown out because it's of historical value, but it also cannot be released because it is grand jury material. Now, whether this is a good idea or a bad idea, I don't know. That's the rule.

And the, the theory of it is that people are compelled to give testimony before grand juries. They don't wanna talk about the things they're asked about. They're not speaking for purposes of creating historical records or creating, you know, gossip material for Anna Bower and Ben Wittes to shoot the shit over, they're speaking to make a de, so that prosecutors can, and they can make the, and the grand jurors can make a determination about whether somebody should have to answer for this in criminal proceedings.

And so we protect their identities, we protect except to the extent that it gets they get called in trials, we protect what occurred before the grand jury forever. And there are very limited exceptions to that. And so, yes, your, the answer to your question is yes, Pam Bondi can go and ask the district court to unseal stuff, but that doesn't mean the district court will, and in my opinion, it doesn't mean the district court should.

Roger Parloff: Okay. I'm gonna move us to a, a new subject here. We've been, well, not a wholly new subject, we've been discuss discussing politicization of the DOJ. And it's hard to discuss that without eventually discussing Emil Bove, or as Pam Bondi reportedly calls him Sweet Emil. And as the President Trump would like us to call him his honor Emil Bove. So, he is moving toward his Third Circuit judgeship. Ben, can you bring us up to date on what happened this week with him?

Benjamin Wittes: Well, so there's a theatrical aspect of what happened, which is he got voted out of the Judiciary Committee after all the Democrats walked out. So he got voted out unanimously without but, you know, with as many votes as he would've gotten if, if the Democrats had been there.

The only actual thing that happened that might reflect on his likelihood of being confirmed is that I believe one of the 11 people who voted for him was Senator Tom Tillis of North Carolina, who is one of the possible fourth votes for his against him on the floor. So there was never a chance he was not gonna get reported out of the Judiciary Committee favorably.

It's one of the most partisan snake pits in, in, in the Senate or in the House for that matter. But I, I do think there was a bellwether issue, like would he get Tom Tillis's vote? And I think the, we, we saw the answer to that was yes. And I think that augers well for him on the floor in that it's a little bit hard to count four votes against him without Tillis.

It's not impossible, but it's hard. And, and so I think he is likely to get confirmed. And if you ask me what I think of that prospect, I will use very careful words.

Roger Parloff: What do you think of that prospect?

Benjamin Wittes: I think it's freaking appalling. I mean, this is a guy who, acknowledges that he arranged the Eric Adams dropping of the charges.

Who, who, even if you don't believe, Erez Reuveni’s allegations, and I'll get to them in a minute, is personally responsible for the purge of AUSA's who worked on the January 6th stuff, he's responsible for terrorizing the leadership of the FBI, and if you believe Erez Reuveni, and to be clear, I absolutely do—he is responsible for conspiring to violate federal court orders and roping other Justice Department officials in it too.

It's a completely appalling specter that you would put this person on any federal court, let alone the Third Circuit Court of Appeals. And let's be honest, he is now, I think if he gets confirmed the leading, he's jumped past Aileen Cannon as the leading candidate for President Trump to put on the Supreme Court. Because remember, Aileen Cannon only provided yeoman's service to Donald Trump in a single case. Whereas Emil Bove services have been diverse and widespread. And so I think and he's, you know, clearly no, no offense got a lot of IQ points on Judge Cannon.

So I, I think it's a, it's a disturbing development in just about any way that a development like that can be disturbing. Do you disagree with me?

Roger Parloff: No. It's, it's, I mean, we, we haven't even discussed, I mean, further down the list to today if we get to it is his as soon as he got there, he fired the eight DOJ officials and, and demanded the names of all the January the FBI agents who worked on January 6th, which he himself worked on as if

Benjamin Wittes: Right.

Roger Parloff: You know, I mean, it just gets worse and worse and worse. It's, it's no,

Benjamin Wittes: and I, and I wanna say I started as longtime viewers of this show back in its previous incarnation as Trump Trials and Tribulations last year will remember I started very favorably disposed to Emil Bove. He's an immensely talented trial advocate, and I thought he did a in contrast to his co-counsel, Todd Blanche, I thought he did an excellent job most of the time during the New York trial and when he was nominated to, or appointed to be acting deputy, I took that as a reassuring sign and said so on this show.

So I'm not, this is not somebody I'm looking to hate on. His conduct over the last six months has been hateful and, and just keeps and keeps getting worse and keeps getting worse. Alright, we've got 14 minutes left and I would like to end on time today. So let's, let's breeze through the rest of this.

Roger, speaking of reductions in force, we've got a reduction in force, maybe unintentionally at DOJ’s Federal Programs branch, what's going on there?

Roger Parloff: Yeah, there, there's a Reuters article this week two thirds of the Federal Programs branch has departed since November. That is 69 out of about 110 people.

And that is, that's the group that defends the Trump administration, well, the administration in court. And so this is beyond, these aren't pe, this is beyond, we're not the, the people that were forced out of the corruption unit or out of the civil rights unit. These are mainly voluntary defections and it's it, it's extraordinary. 10 out of 23 supervisors you get the idea.

Benjamin Wittes: Yeah, if you move in D.C. legal circles, you know, the fact that half of main justice and a lot of list civil division litigators are on the market is, you know, no secret to anybody. Meanwhile, those FBI agents who sued to prevent their names from being disclosed to Emil Bove are, I think the technical legal term is shit out of luck.

Roger Parloff: Yeah. They sued, remember it back in February, in, in front of the case was went to Jia Cobb, and there were two suits. It's both individual FBI agents and the, union, the FBI Agents Association. And they got a consent order very early February 7th, agreeing not to disclose their names while the litigation went on.

And I guess as it went on, it then went to the summary judgment phase and she just ruled yesterday. Things have calmed down and she just felt there wasn't, it was too speculative at this point to say that to, to predict. There just there was discovery, there were no imminent plans to expose their names.

People were saying the right things that they realize you're not supposed to do, that, that would deeply endanger them. There was a comment from one of the lawyers in this case, Mark Zaid on, on social media who, who said that the case had succeeded in a sense. It, the, the, the names would've been disclosed if they hadn't slowed it down and, and changed the momentum and so on.

And that's conceivable, but the FBI agents are petrified still, and we'll have to see what, what happens.

Benjamin Wittes: Alright. Just before we went live today, Tulsi Gabbard has made a new, or announced she's making a new criminal referral on the 2016 election interference investigation. I wanna say this falls in the category of too dumb to discuss on Lawfare Live and until the FBI takes it up, but the Justice Department has taken up the Adam Schiff mortgage fraud matter.

So while too dumb to go into it passes the threshold of apparently under investigation. So, Roger, what do we know about that?

Roger Parloff: The, the Schiff investigation? There's a good article in the New Republic about that in which a friend of Lawfare the former DOJ Inspector General Michael Bromwich comments that from beginning to end, this process is highly irregular.

This was the, apparently it relates to something that actually came out in 2024. It has to do with him having a house in California, a house in Maryland, and treating them both as his primary residence, which he says is a, a common phenomenon in among congressmen 'cause he, you, you do use them equally.

But anyway, it was a, a Fannie Mae made, made a criminal referral to the DOJ and it stemmed from a memo, which refers to sustained pattern of possible occupancy misrepresentation, although it doesn't use the word fraud. Some of the very strange things are that, you know, that Trump himself is announcing this thing.

How does it get to Trump? The, the, the response from the, the Fannie Mae is the crimes unit gets is responding to, comes up with this information after there is a specific request for it from the FA, from the Federal Housing Finance Agency, inspector general, which is odd according to Bromwich, and it makes it almost sound like the inspector generals, instead of being a check on the executive branch are becoming part of a weaponization force for the president.

And the response to the inquiry then goes back to the head of FHA, FA and, and, and gets to Trump. So Bromwich says so far as I know, it is unprecedented for such raw information to be forwarded to the White House responses to OIG requests simply don't go to the White House ever. So anyway, these are sort of concerning things.

Benjamin Wittes: Yes. And the fact that the, the fact that the thing was announced by the president.

Roger Parloff: Yeah.

Benjamin Wittes: Is about as irregular as it gets. Alright. Speaking of irregular, you shoot a person as a cop after breaking into her house and you kill her. And the Justice Department gets a conviction against you and then asks for one day in jail. What's going on with the Breonna Taylor case?

Roger Parloff: Yeah, and I do wanna say I haven't studied this case, so I, I'm just relying on the media coverage. But yes, it's, it's, it's reminiscent of what happened with Roger Stone, where, where Bill Barr sent somebody a political appointee to write the sentencing memo instead of the career prosecutors. And that's what happened here.

The, the sentencing memo was written by two political appointees, Robert Keenan and Harmeet Dhillon who is head of the Civil Rights Division, a former legal advisor to the Trump campaign. And they asked for one day. It's sort of, consistent with a series of things that are going on where police brutality is being, abandoned or, or, or, or, or, or as a, as a justice department priority.

The, Keenan had also earlier moved to withdraw the conviction of a deputy sheriff in Los Angeles and offered a, a misdemeanor plea and several AUSAs resigned in that incident. So, and there were also agreements relating to investigations of certain police forces, but I, I'll keep this short, and I, I'm, I'm not well versed in some of this.

Benjamin Wittes: Yeah. I, I just seem to me like a theatrical Black lives don't matter statement on the part of the administration. Alright. Meanwhile, finally, we have several weird incidents at U.S. attorney's offices. Give us a quick rundown.

Roger Parloff: Yeah. It, yeah, it's U.S. Attorney weirdness. Alina Habba, I think today has said that she will be leaving. She was unable to get judicial approval to have her interim appointment as acting or interim U.S. attorney extended. We don't know who will be replaced. The same thing sort of, or should have happened with John Sarcone, who's a, AU, the U.S. attorney in acting U.S. attorney in Northern District of New York, which is Albany, he couldn't get judicial approval.

Actually he told the TV outlet that he had gotten approval and then the judges on the, on the bench said, no, you, we didn't. And he's had some odd things going on. He alleged that a undocumented alien tried to kill him, and the man was arrested for, charged with attempted murder, and then a surveillance tape showed that he didn't get close to Sarcone and the charges were reduced to menacing.

So anyway, but he is not leaving, he's been appointed special attorney to the AG. And he will continue that, that's the plan, to be assistant to be acting U.S attorney, as well as his own first assistant. The New York Times says that this appears to be a first.

Meanwhile in the Southern District Maureen Comey, of course, was fired. That's James, James Comey's daughter. We don't know why she got a letter that said she was being fired under the President's Article II Authority and the Southern District U.S. Attorney Jay Clayton apparently didn't know about it. It was so the Sovereign District of New York, you know, that's what the SDNY used to be jokingly referred to is, is really a different animal now. It's just.

Benjamin Wittes: Sovereignty is overrated as it turns out.

Roger Parloff: It's, yeah. And I do think the Maur, Maureen Comey letter, which, whe whether she was, she of course was the prosecutor on the Jeffrey Epstein and Ghislaine Maxwell cases. Ghislaine Maxwell got a long sentence. I don't, I, I can't remember what it was.

I, I, I don't know. We don't know if this is somehow related. But she wrote a, a letter and, and she, it, it referred to the, this phrase that all the, all federal prosecutors use as their aspiration to, to act without fear or favor. And she said if a fear, “if a career prosecutor can be fired without reason, fear may seep into the decisions of those who remain. Do not let that happen. Fear is the tool of a tyrant wielded to suppress independent thought. Instead of fear, let us this moment fuel the fire that already burns at the heart of this place. A fire of righteous indignation and abuses of power, of commitment to seek justice for victims of dedication to truth above all else.”

Yeah.

Benjamin Wittes: Alright. Anna, who is the administrator of DOGE?

Anna Bower: Well, we might be one step closer to finding out Ben, because after the Supreme Court, since Judge Cooper's discovery order back down to the D.C. Circuit ruling that effectively the order was too broad and potentially intruded on the executive branches deliberations because the order required, that DOGE disclosed, like all the recommendations that it had made to certain agencies.

This is, remember the case that relates to this question of whether or not DOGE is subject to FOIA. And so there's this question about whether or not it's an agency subject to FOIA. And so there's this ongoing case about you know, figuring those things out and there's a discovery order.

The Supreme Court sent it back down to the D.C. Circuit to narrow that the scope of discovery. And we got a ruling from the D.C. Circuit panel this week in which they basically just threw out any of the discovery order that related to requirements of disclosing all of these recommendations that Doge made, but it still kept a good part of the discovery, including importantly, a deposition of the alleged acting administrator of DOGE, Amy Gleason. So I think that that is an important development because it seems like that deposition may very well still occur. One other thing, I will

Benjamin Wittes: Wait, does that mean somebody's gonna get to ask her?

Anna Bower: Who is the administrator of DOGE?

Benjamin Wittes: Well, are you the administrator of, are you the administrator of DOGE? And, and what does administering DOGE, what constitutes administering DOGE?

Anna Bower: Right. Especially considering that there's also been reporting in Politico recently that Steve Davis, who was one of the top DOGE lieutenants to Elon Musk, is out of government now, but stuck around for at least a week or two after he left government and still conducted DOGE meetings until finally the White House had to say guys, please don't go to meetings with someone who is no longer a government employee who is purporting to run your organization.

And, and he subsequently, according to this report, put three people in charge of DOGE without authorization. So again, Ben, the mystery persists. Another weird thing that I will point out the name of this, of this government list, there is a list, it has an official name that I am completely blanking on right now, in which certain agencies, the government does reporting where it'll list, you know, it's basically a directory of kind of the most recent updates on who is who of political appointees within the government.

And there is on the most recent update, someone flagged for me that if you go and look at it and you look up Amy Gleason she's actually listed as the deputy ad, administrator, not the administrator.

Benjamin Wittes: Excellent.

Anna Bower: So

Benjamin Wittes: So what, that's another question for the deposition. What responsibilities were taken away when you were demoted?

All right. We are gonna skip this week, our immigration case roundup. We will do it next week. We have two questions and I think they're both have Nick Bednar’s name written all over them. The first one from Kevin: Is the administration's 15 out of 15 win rate on emergency applications since April most easily explained by coordination with some justices? Isn't judicial independence just another norm that some justices could feel justified in breaking? So how, how cynical are you about this? Is there a secret line of communication between the White House and the Justices?

Nick Bednar: I'm gonna, I'm, I'm not that cynical.

I, I'm gonna say the answer is probably not because they don't need one, right? Like, if, if the Justices are just gonna kind of do what the Trump administration wants it to do anyway, because they have this theory of executive power that permits the Trump administration do what it's doing, you don't need a secret line of communication.

In fact, that's why President Trump appointed the, a lot of the people he appointed, right? Because when you're interviewing Supreme Court Justices, you try to look for people who are gonna do exactly what you would like them to do and uphold your, you know, policies. So I don't think there's a secret line of communication.

Here I mean, that would be groundbreaking if there is, but I, I, I think this is just the Supreme Court justices have ideologies that are congruent with what the Trump administration wants to do.

Roger Parloff: That would be norm breaking. I think that's the phrase we use now.

Nick Bednar: Norm breaking. Yeah. Yeah.

Benjamin Wittes: Although I will point out that you know, Lincoln's famous line, which may be apocryphal, “we should like to appoint someone who will uphold what we've done with respect to I think it was the credit or the but, but we must not ask a man what he will do, and if we should ask and he should answer us, we should despise him for it.”

I don't think Trump would be that gracious about and careful to avoid asking questions. That said we have no evidence of illicit communications. Andrew asks, have we had any Court of appeals guidance regarding whether some of the dismantling cases must be routed through the Federal Court of Claims and the Tucker Act? And are we likely to get Supreme Court guidance on that if we haven't already in any case?

Nick Bednar: Okay, so, it's I first, I'm not an expert on the Tucker Act, so let me just say that it's like tangential to everything I do. But there have been some district court cases that have said those claims that are tied where the RIF is tied to a denial or delay in grants have to be brought to Federal Court of Claims under the Tucker Act. The Tucker Act is the legislation or statute that governs contract disputes, indirect or explicit contracts with the federal government. There is a D.C. circuit case I'm not going to remember which one it is off the top of my head, that concerned a stay of one of these RIF cases.

In that case I think it's Judge Rao stayed the preliminary injunction saying that it had to go through the Court of Appeals. And then Judge Pillar offered a dissent that basically said, no, the Tucker Act cases only apply in certain situations, and this is not one of them. So we don't have a lot of guidance out there.

There is a D.C. circuit en banc decision in that case, but it's also very short and doesn't provide guidance. We will probably see more guidance come from the circuit courts. I don't know if those cases will get as far as the Supreme Court. I think the Supreme Court is much more likely to take these cases up on the standing grounds that we're seeing right now.

Benjamin Wittes: We are going to leave it there 'cause anytime you can end a live stream on standing grounds that is a good day. Nick Bednar wearing a dog shirt on Lawfare Live. I think it's the first time ever. He's a great American. Anna Bower, Roger Parloff thank you all so much for joining us today.

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