Lawfare Daily: The Trials of the Trump Administration, June 12

[Intro]

Eric Columbus: Hello. It's Lawfare Live, the Trial of the Trump- Trials of the Trump Administration. And I'm Eric Columbus, Lawfare senior editor, sitting in for Benjamin Wittes, who is out today. It is 4:00 PM Eastern on June 12th, and I am here with my estimal- colleagues, estimable colleagues, Lawfare Senior Editors Roger Parloff and Anna Bower.

It is the NBA finals, and to make sure everyone's represented, we have Anna in New York, and we have Roger in France. And I am going to lead off. I'm gonna kind of like, you know, be the, the, the host and also one of the panelists. I, I think that's maybe the equivalent of a a, a lawyer proceeding pro se, which they tell you is something that is to be avoided at all costs.

They say that a lawyer who any lawyer who represents himself has a fool for a client. So I am going to see whether the see any, any any host who appears as any panelist who tries to host has a fool for a ... Well, it, it, it breaks down after a while, which maybe is a reason why people don't do it.

[Main Podcast]

But anyway, I'm- we're gonna start right in with DOJ politicization and the slush fund. There have been two, not one, but two court hearings in the slush fund cases, which loyal readers may know that Anna Bower and I have written not one, but two pieces about the slush fund. And since then there have been

There are now five challenges in court and two judges: Judge Leon in D.C. and Judge Brinkema in Eastern District of Virginia, have held hearings on TRO/preliminary injunction requests. And I attended both of those hearings, so I will try to explain what happened. So a- at Judge Leon's hearing he held that there was no

He ruled from the bench and declared that the case was moot because there had not because the- Todd Blanche had represented both at to Congress and in briefs to quoted to the court that it was not going to go forward. And this was over the objections of, of counsel for plaintiffs for which are this crew, Citizens for Responsibility and Ethics in Washington, saying that the, the, the, the slush fund could be revived at any time.

And they pointed out that as Anna and I had noted in our, in our story, the, the s- the settlement agreement between the, the parties, meaning Trump and DOJ, had required that the attorney general create this, this fund. Sorry, between Trump and the Treasury Department and the IRS, not DOJ.

So, but anyway, he said "The government has represent..." Judge Leon ruling from the bench said, "The government has represented that the challenge fund is, quote, 'not moving forward,' and I'm entitled to credit the government's representations, particularly when they've been orally repeated in court hearings, stated in formal court filings, and announced by senior officials."

He said he would rule on the request for the preliminary injunction soon. Then he added the end, he said, "I give the Justice Department, however, a fair warning. Don't play possum with this court." And it was oral, so there were none of his trademark exclamation points. Which I think it's, it's more effective actually when you say something like that calmly without exclamation point.

Kind of like in Clint Eastwood as Dirty Harry when he says, "Go ahead, make my day." It's just a period, no exclamation point. All the more effective. Who knows? But at, at any rate, Judge Brinkema then two days later across the river, had a very different view. She point-, she, she began by asking the government attorney, Andrew Block, who was a political appointee.

A- as we've seen in some of these cases, we've got–, they send up a political, appointee up there by himself and there was no one sitting with him at counsel's table. And Judge Brinkema said, "You're a brave man, Mr. Block, all up there by yourself." And which, which kind of echoes what Judge Leon had said.

He, he, he he said to, to Block, he said, "Well, it looks like you drew the short straw." So the judges found it kind of amusing. And that, that Block was n- the only person there at counsel's table, and was also the only name on the brief. Although the only, the only, the only ... Sorry, the only name on the brief plus the associate attorney general himself, the number three official in the Justice Department.

And she asked him a question that Judge Leon also asked which was, "Why has the attorney general just not rescind his order?" And he told Judge Leon he didn't know the answer to that. And Judge Brinkema said, "Well, you've had a couple days to think about it and talk to your clients. Why not?" And he s- still had no answer for that.

And so Judge Brinkema said, "Look, this is not moot. Voluntary cessation is not enough." She said, "Look, I've had nothing sworn from the attorney general, and multiple contrary statements from the president." And she noted, she quoted the president referring to her actually saying a, a, quote, "A radical left judge ruled against it, and we'll see how that all works out."

Was kind of, slyly doing that. And one thing that I found notable actually is that she relied on the fact that Judge ... She noted that judge as had j- actually Judge Leon earlier, she noted that judge rather that Todd Blanche's testimony before the House was where he first said it's not going forward.

She noted that that testimony was not under oath, and this was something that Anna and I had discussed while we were writing our piece. And I said, "Ah, I don't think it was that the Democrats had noted it, noted it." And I said, "Well, you know, I, I don't think we need to include this in our piece because it's something that always gets, you know, the oppo- the, the, the party that doesn't like the witness always says, 'Oh, they're not under oath.'"

And it never really matters much because you're, you're always, ... It's a crime to lie to Congress whether or not you're u- you're under oath. But Judge Brinkema made an interesting point. She said, "Look, as an evidentiary matter, I cannot consider this because it's not under oath, or at least I cannot give it the same weight, and I, and I need that in order to conclude that this is, the, the fund

That, that there's enough evidence that the, the fund- Not going to go forward. And she, then she kinda yada, yada over much of the rest. She said, "I'm satisfied that at least someone has standing." And, and, but, but she did not say, specify which of the various plaintiffs in this case did have standing.

And then she also just kind of assumed, I, I'm sure she d- she had answered the question in her own mind and analyzed it, that the plaintiffs were going to succeed on the merits, but they've got various claims, and she didn't address which one. And she read actually r- at the end some language from a, a, a amicus brief by Senators Booker and Cassidy about how this is basically a slush fund designed to benefit the January 6th who did really bad things.

I, I don't, the language in front of me was more eloquent than that. That was her reasoning for why it's in the public interest to enjoin the fund. And she asked w- the g- government lawyer what irreparable injury the defendants faced if the preliminary injunction was granted. And all he could say was that it's presumptively harmful for the government to be enjoined.

So she granted the preliminary injunction. She's gonna give the government a week to get a sworn declaration signed by Blanche and Treasury Secretary Bessent, and that may or may not suffice in order to moot the case. The plaintiffs did not concede that it would. They said they wanted to confer with their client and among themselves as to whether the declaration would suffice because as they noted, and as Anna and I noted in our piece, the, the settlement agreement is still in effect, which-.

And that settlement agreement didn't require the attorney general's order. So that's my dispatch from D.C. and Alexandria. And Roger and Anna, if you have any further thoughts to add or about that or questions about it?

In that case, we are going to head over to Anna with a, another DOJ politicization item in New York City.

Anna Bower: Yeah. So this is the case of Brad Lander, the city comptroller. And it relates to an incident at One Federal Plaza in which a number of local elected officials in New York were going to inspect the facility. They ended up s- sitting in front of a bank of elevators and chanted and subsequently were charged with, you know, a petty offense of obstruction related to charges that they were obstructing the elevator.

Some of those elected officials took plea deals. Bla- Brad Lander, however went ahead to trial. There was a one-day trial. I actually did not get a chance to attend the trial, but shout out to people like Molly Crane-Newman at New York Daily News who covered it. And so I've, I've read a bunch of the coverage of what happened, and it's a, a loss for DOJ in that the magistrate judge Judge Ricardo, found Brad Lander not guilty of willful obstruction.

Among other things, based on the reporting that I've read one of the things is that, you know, prosecutors had raised the fact that Lander and the elected officials chanted a, a, a song to the af- that had the lyrics, "We will not move." Lander himself testified, though, during this one-day trial and explained that what they meant by that was, you know, we will not move in terms of our position on civil rights and the rule of law.

And, and the judge found that to be self-serving but credible. And the judge also noted that Lander, throughout the, you know, ordeal, did not seem to be motivated by obstructing the elevators, but was kind of resigned to the whole situation because they were there to try to inspect the facility and that kind of thing. So it, it's just an interesting thing to note that it's yet another a- among a, a string of losses here for DOJ in the pol- politicization category. This is yet another one that I think is notable.

Roger Parloff: Well, Anna, do you know what what the statute is? I, I, I don't know this.

Anna Bower: I would have to look up the I’d have to look back at, b- back at it. I, I can tell you in a few minutes, Roger

Roger Parloff: Is it a federal statute or a-?

Anna Bower: I believe that it's a fe-

Roger Parloff: Yeah I, I, I believe so. Yeah, I'm guessing it is.

Anna Bower: But it's-

Roger Parloff: Okay.

Anna Bower: But it's a it's a misdemeanor. It's not, it wasn't a felony charge.

Roger Parloff: Okay. Okay.

Anna Bower: Let me tell you. Hold on.

Eric Columbus: I wonder if there's an elevator specific statute. That'd be really cool.

Anna Bower: But you can- Come back, come back to me

Roger Parloff: Yeah.

Anna Bower: I'm sorry, I'm gonna have to find it, but come back to me-

Eric Columbus: Okay.

Anna Bower –in a few minutes and I will- I will have it for you.

Eric Columbus: Okay. We will now move over as our, in our tour of the great cities of America over to Chicago, where we have some developments in the Broadview Six case, where we discussed earlier a few weeks ago, where six folks protesting against ICE were, indicted for, for conspiracy to impede police officer.

And the, the case was eventually whittled, was whittled down and eventually dropped when some evidence of misconduct before a grand jury emerged. I wrote a whole story about that a few weeks ago. And the latest development is that the g- some grand jury transcripts were released. And they show, as, as promised various types of, of misconduct by the government.

And, and, and the, it kind of falls into, into three... There's n- they're not really anything that dramatically new from what I was described, but i- it's, it's kind of interesting to see it, it just kind of in the flesh how the sausage get- gets made and the mistakes made by s- by some, some prosecutors. And one of the things that had been reported was that the prosecutor gauged, engaged in improper vouching which is where a prosecutor says, "Look, you know, trust me, you know I wouldn't bring a case if I didn't believe in it. I know that these, these witnesses are telling the truth and that, that, that there's probable cause here."

And, and that is, is, is viewed as improper because it, it's kind of telling jurors not, or rather to give up to, to elevate the evidence because it's, it's me, the specific prosecutor presenting it to you, and that's not something that, that, that's allowed.

And the, she did it an interesting way, this prosecutor. She, she said, I wanna go before this, this grand jury, the Thursday grand jury, because I know you and I trust you, and you know me and you trust me, and I would never ask you to charge somebody if I didn't think there was probable cause. And you know, you've asked me before, 'Well, what about this person?'

And I said, 'I don't charge people unless I'm absolutely sure.' A- a- and that's kind of a no-no the way she did it. A- and one kind of amusing thing on this case is, is that she maybe had a bit of a guilty conscience because right before that, right before that she said "This is a very interesting case.It's a little different. I purposefully, I purposely asked if I could wait for the Thursday grand jury. Matt," Matt is the other lawyer there her colleague. She said, "Matt will vouch for me." And so she used the word vouch, and right before she started vouching.

And th- that, this was the word vouch in like, used in a completely benign way, but it's still weird like that she, it's like kind of bizarre that, that that word was in her head right before she went out to vouch in the bad way. It's almost like, you know, looking for something to compare it to. It's like if like, you know, a, a, a, a comedian's about to go on stage and for some reason he like–. This is a bit weird, but like if for some reason, I don't know why, he like strangles a kitten and then he goes out and does his show, and then afterwards, you know, going out telling friends and says, "Hey, I killed it tonight."

A- and he'd be talking about the show when maybe in his guilty conscience he's talking about the kitten. So what I think that shows is that I need to come up with better analogies when I am discussing cases. But the, the, the lawyer should not have, have done that. And then there's another point at, where she tells jurors that she wants, she needs them to be sure they're pr- looking at the case with an open mind, and if they don't, if they can't do that then they should leave.

And that they have to leave if they can't do that. A, a one says, "Look, I can't do that. I c- I can't. I, my, my mind is basically made up." And she was really kind of like targeting that juror because she f- that she noticed kind of weakness in that juror and, and, and, and, or, or, or, or, or qualms about the case in that juror.

And so she kind of made those points. And there doesn't seem to be anything that in the, in the rules allow a l- the lawyer to excuse a grand juror to tell them to leave. And the court can do that, but I, I don't think the prosecutor can do that. And, you know, in some sense it doesn't matter because under the rules, You need to have at least 16 grand jurors, 16 to 23.

But no matter how many grand jurors you have, the numbers you need for an indictment is always at least 12. So i- if you're excusing people, it doesn't really matter in some sense, but but where it does matter, I think, is that, you know, the grand jurors can talk among themselves before voting, and so it seemed like the prosecutor didn't want to have this grand juror poison the other ones if you will.

And so that to me seems improper. I don't know, Roger or Anna, if you have ever encountered anything like this done by a prosecutor, if there's anything that they could point to as saying that they're allowed to dismiss a grand juror

Roger Parloff: I, I'm not an expert. I, I, I had thought it was just the judge that, that would do that. But, Anna, do you know?

Anna Bower: No, no, I am, I am not aware of, of what authority the prosecutor would have to do that. But I have not looked at it, it matter deeply, so I'm, I'm not sure.

Roger Parloff: One thing I, I think we should say is that this was the the woman that was doing most of the briefs of the issues was not a y- young person and was not a political appointee.

It was, like, a 20-year veteran and, and, and so, this ... it, it's, it's disturbing in a different way than s- you know, than, than that ... something we can heap on the political climate here.

Eric Columbus: So that's an interesting point, and that's is gonna be a nice segue to another aspect of what's going on in Chicago.

I mean, Roger is, is, is right as, as usual that this is a, a longstanding career prosecutor and someone who actually then a couple months later went on to serve a, a, a detail meaning a, which is like a, a job transfer to Senator Durbin's office in Washington which occasionally happens.

They send prosecutors or other lawyers from DOJ to work in Congress for a, a, a set period of time. And so if she were, like, a, a hardcore MAGA person, she probably would not have, have wanted to do that. Now, I, I, I think it doesn't totally resolve the question because it's possible that she felt heavy pressure from her boss, the U.S. attorney, to bring a politicized case.

So even if a- it, it's often, or it can be the case that a, a a career official can do something improper because of political pressure being brought from above. However a- another development in the past few days was that the, that US attorney moved to dismiss another case that the same lawyer had worked on involving allegations of fraud in billing the government for COVID tests a case, a big I think a fairly big fraud case that, as far as I can tell, does not have any political implications on its face.

And, suggesting, and we haven't seen any grand jury transcripts there, but it suggests that sorry. The defendants had moved to get a to release the grand jury transcripts because they thought that maybe something was afoot. And rather than do so, the U.S. attorney moved to dismiss the case, which suggests that maybe this is a prosecutor who is in, in a variety of cases trying to put her finger on the scale or, or work the grand jurors in a way that's improper.

And, and maybe it, it was, maybe it was a coincidence that this was not that the other case was so politicized. Hopefully we'll learn more about this in, in weeks to come. Moving on now back to you Roger, and back to D.C., and back to one of the president's favorite people, Jerome Powell

Roger Parloff: Yeah. This was, remember the, the grand jury proceeding in front of Judge Boasberg, and the U.S. Attorney Jeanine Pirro was trying to get two grand jury subpoenas for relating to Jerome Powell and the Fed. And Judge Boasberg quashed those back in March. And you r- might remember J- Pirro saying, "This outrageous decision will be appealed by the U.S. Department of Justice." She said that several times. T

hey moved for reconsideration. Judge Boasberg issued another very humiliating ruling for the office a- about how the case was basically just harassing him for political reasons. Not his words, but it was that, the gist. And then they finally denied they, they did not appeal, and they dropped the case.

And then they went back to Boasberg to try to ask him to vacate the ruling saying they were now moot. So, trying to get rid of the embarrassing rulings. And he said no, and then gave them a third embarrassing ruling. So this is sort of the judicial version of the Streisand effect. He said things like describing his previous ruling "The court found that the subpoenas were meant to harass Powell and pressure him to truckle to the president's policy preferences. It also concluded that the government had no good faith basis to believe that Powell was guilty of any crime other than displeasing the president, and that the government's justifications were mere pretexts."

The the legal theory that the government was pursuing here was sort of a version of something that comes up more often at the appellate level. The classic example is y- you, you have a-- the Court of Appeals writes a decision, and it has precedential weight. It binds, you know, like maybe three or four states. And the party that is upset with the ruling, and it, it's usually a party that has a lot of litigation, like the government or an insurance company or something like that.

They appeal to get this terrible precedent overturned, and then something beyond anyone's power happens and moots the case. I don't know, like somebody dies, the litigant dies or... And, and so the case becomes moot, but the litigant does not want that precedent to, to stay on the books. And so there is a doctrine where the Supreme Court will say, "Yeah, if it's not really-- he didn't have a chance to appeal it we will vacate that decision."

And so here the, the attempt was sort of the same, to, to get rid of the opinion because it had become moot and, and, and that's why they didn't appeal it. But actually, it's not a good analogy for a number of reasons as and that's what Judge Boasberg explains. M-mainly, they could have appealed, and they didn't appeal.

They didn't appeal it, a-and, and so that's voluntary on their part. So i-- And, and it's not even clear that it's moot because Pirro keeps threatening, "Oh, I, I, you-- I'm, I'm not pursuing it now, but we're gonna see what the IG says, and if he, and if he finds that there's something there, I may go after him again."

So, i-it, he, he rejects it. Those are the legal grounds. But it, it, it's a, it's a strange thing for them to keep going back to Boasberg trying to erase these painful rulings when the the... it just keeps getting worse and worse.

Eric Columbus: But is there any-- can you think of any, I mean, o-often there's a method to the madness of the administration here, like they pursue bad or weird ends through logical means, at least. But is there any strategy you can think of that would explain this?

Roger Parloff: I, I don't-- not really. It was embarrassing, and they hope maybe to take it off the books. You know, it doesn't even have, you know, a district judge ruling has no binding precedential weight, not even within the district, not even on, on, not even on him. I mean, like I said, the facts could change in this case.

If, if they get more evidence, he'll, he'll render a different ruling. So, I, I, I can't really understand it, no.

Eric Columbus: Very strange. Next up on our docket, we have some odd developments in Ohio where the FBI has been, well, I'll let Anna tell us about that. What's the FBI been doing in Ohio?

Anna Bower: Yeah, it's, well, they- they've conducted a search at, at the office of a progressive group that works on voting rights issues and, and voter registration issues. And it's not entirely clear yet. I- we wanted to flag this, but it's not entirely clear yet what the basis for the search was. I, I have not seen the search warrant itself or the supporting affidavit yet.

I don't believe that those things are publicly available. So, other than the reporting, which MSNOW first reported, Carol Leonnig. Other than that initial reporting, we don't know much about the basis for the search, but we know there was a search. We also know that the FBI has been also visiting it, it sounds like, based on the reporting at some in some instances, the homes of some of the volunteers or people who work for the organization and has, you know, pr- ha- provided subpoenas for information and in some cases electronic devices.

So it's it's not clear what exactly is going on there, Eric, but it's something that we're certainly keeping our eye on, especially in light of previous efforts by the FBI related to, for example, in Fulton County the search at the election hub there. So we'll see what happens, but there's not a whole lot of information right now what exactly the basis of this search might be

Eric Columbus: Good to know. We now turn from DOJ politicization to another one of our favorite categories. I feel like we're kind of playing Jeopardy, and we had the categories up top, and then a variety of, of dollar amounts assessed to each of them. But this is now turning to the category of Trump's monuments.

There is a new lawsuit challenging the White House UFC fight that is scheduled to take place on Sunday which I am sure by total coincidence just happens to be the president's 80th birthday. And I, I could say I drove by I was picking up some of my, my kids from a party last night, and I just drove, drove by somewhat distance from the White House, and this massive thing they call the claw just, like, lit up in blue and red, and it's, it's I can say it's even more hideous than whatever y- you can i- imagine it to be. It, it's really impressive accomplishment in that regard. Roger, tell us about the lawsuit.

Roger Parloff: Yeah, it's a really interesting lawsuit. It, it, it was unsuccessful w- earlier today. Judge Amit Mehta denied the TRO that the plaintiffs were seeking to stop the, the match and some things associated with it.

But it's a, it's, it's a educational thing, and it was, it was only filed June 6th, and that's part of the problem. There was a strong, the government argued that it was unreasonably, there was unreasonable delay. And but just to ... So you understand the facts tonight Friday, it's supposed to begin.

And there will be an event there will be a so a face-off at the Lincoln Memorial. And in the brief, which was a, a government's brief, they said, "Well, we're not gonna be in the chamber itself of the Lincoln Memorial, of course, not where the statue i- is, and, you know, we're gonna be out between the Lincoln Memorial and the, and the Reflecting Pool."

This is in the brief that was filed, I think, maybe Tuesday. And then the plaintiffs, who are the, the lawyer, i- it's the Public Integrity Project wrote to them and said, "But it's in your plans that you are going to go through there." And then they wrote a correction the next day. Maybe this is Wednesday, I guess.

They wrote a correction saying, "Yeah, actually, the fighters are gonna take the elevator up. They're gonna go a- into the chamber." They cross past the statue and then come down the, the stairs.

Eric Columbus: Sorry, the, the government filed a, a correction?

Roger Parloff: A, a correction, yeah. Saying, yeah, that they, th-this was... they had it wrong.

The, the plaintiffs were right. They, they, the, the event does take place in the chamber of the does involve walking through, past the statue and so on. I, I should get to the point. Well, so that's tonight. And and then on there's an event tomorrow, but that's at the Ellipse, and y- that's not being challenged.

And then on, on Sunday is the main event, and that is supposed to be on the White House South Lawn. The fighters are supposed to come out of the Oval Office and go into this octagon and, and, and the cage match that's underneath this claw, which is 6,600 tons of steel. It's 92 feet high, it's 145 feet wide, that's been built.

And all of this, and this is the point of the suit all of this is a for-profit event. And probably as far as the plaintiffs know, the, the only, the first for-profit sporting event ever held on White House grounds. And it's by the UFC. The head of the UFC is this friend of Trump's named Dana White, and it's being broadcast by Skydance by Paramount Skydance, another ally of Trump.

And allegedly, and, and none of the allegations well, o-o-o-of basically cronyism and, and sort of corruption were touched in the reply from the government. They didn't deny anything. They didn't engage. They simply adopted legal r-uh, responses. And so, the, the Skydance is apparently supposed to charge.

If you wanna see the main event, you need to have the premium subscript- pay the s-premium subsc-subscription fee. So, and there are sponsors. There are allegedly, Something called a $1 million VIP packages, maybe $1.5 million VIP packages, which according to the plaintiffs seem to be sort of glorified tickets, good tickets.

And there, and, and you can see from the pictures now you know, Monster is a big sponsor and, and I think there's some others. So that's why the Public Integrity Project, which was created by a guy, a attorney named Brendan Ballew, got involved. It's, it's about-- it's not exactly...

Although the, the legal claim is aesthetic injury, it-- and dignitary in-injury, it's, it's sort of about-- it, it's really about what i-in the briefs they call a volcano of corruption and an inflection point in the history of the country. The the, the problems that the main hurdles were standing, which is our usual hurdle here, espe- it's the big hurdle with the ballroom.

It's the big hurdle with the Triumphal Arch. It's the big hurdle with the, the fund, the Anti-Weaponization Fund. And so they had two act- they had two people Susan Douglas, who's an activist an organizer, and she comes frequently to the White House and the Lincoln Memorial. And Paul Romano, a retired Air Force sergeant.

He's a, a, a, and a, a rideshare driver. And of course, they both thought these things were hideous and disgusting, but, you know, that it's not a, a- a- a- that Romano was also upset about the-- well, both are upset about the desecration of national monuments the commercialization, the exploit- commercial exploitation of these monuments.

But that said, there were serious standing problems. You know, they both live in Alexandria. It's not it's not even clear that Romano was gonna be there when this occurred. And Douglas was gonna come, but she was gonna come to protest, so there's sort of a self-inflicted quality to the injury.

And and then there was the issue of delay. And, and, and Ballou the plaintiff's attorney said, "Well, that's because they concealed the corrupt nature of the thing. We knew there was gonna be an event. We didn't know it was-- who was controlling it. We thought it was being controlled by the government.

It wasn't until recently we found that the UFC was running the show." And, and when he found out June fourth, and he brought a suit two days later. The, but the truth is, this has been, Underway, you know, people have been preparing for a year, $60 million has been spent, and a lot of innocent people fans who wanted to see the event paid airfare and got hotels.

And so, there were gonna be a lot of innocent bystanders i-i-if at this late, it hurt, if at this late stage it was interrupted. So Judge Mehta did today reject it on standing and some, to some extent the delay issue also ir- lack of irreparable injury, which you need for these e-equitable relief.

But it, excuse me. It's a it's a disturbing set of facts and the it's a it's, as a, I think hortatory device, is that the right word? Is that any word? E-educational device, it's a it's a valuable lawsuit.

Eric Columbus: A, a teachable moment, is that?

Roger Parloff: A teachable moment.

Eric Columbus: Yeah, also playing there. Did, did they, did, did Judge Mehta also rule against them on the basis of that it took too long to file or, or, or not?

Roger Parloff: He mentioned he, he, he, he did mention unreasonable delay. He, he hedged a little there because there were some claims where Balu, he felt Balu maybe was right that you know, he didn't know it, it arose until very recently. But there were also some claims where he felt he should have known earlier. So that was a, that was a, a, a subsidiary factor.

Eric Columbus: Got it. Roger, I hear you have another thing to discuss regarding Donald Trump's edifice complex.

Roger Parloff: Yes. Well, as you probably know, the we have developments at the Kennedy Center. You know, two weeks ago Judge Cooper said, "You're, you're gonna need to take down your name," to Trump.

"You've got 14 days." And so he waited to day 13 or, or 14, I'm not sure which, and then moved for a stay. And so today Judge, he, this was, you know, the, the arguments in this motion are, are sort of, like, staggering. He, he, the one party says, "Yeah, Congress said th- th- that the name would be the Kennedy Center," but he didn't, but it didn't forbid secondary names.

And, and of course, a- a- and, and the example they gave, they said, you know, like, "Other things in government have secondary names, like the Department of War is also known by secondary names," which is such a weird analogy. I mean, Congress, Department of War is, well, anyway, it, it, it's a, it, it, it's like a three-year-old wrote this thing.

And so, Judge Cooper rejected that in a, in a paragraph earlier today. And, and and actually, you know, there were a couple webcams that were there, and the scaffolding be- was built, and it took to, to take down the names and then just maybe about an hour ago he filed with the D.C. Circuit.

The D.C. Circuit, so far as I know, has not granted any stay, so he will technically be in violation of the order in a, in a couple hou- well I'm, I'm in a different time zone, so, at, at midnight tonight. But anyway, but we'll, we'll have to see what the D.C. Circuit does, I guess.

Eric Columbus: Now correct me if I'm wrong, but I think Judge Cooper also said that in, in the stay paper, in the stay, in denying the, the request for a stay, he said, "Look, you've been, you've been, you've managed to do everything else short of taking off the name," right?

And so you, you, with regard to the secondary name thing, you've already gone about, you, you've, you've, you've removed- They had taken the changed the website from-

Roger Parloff: Yeah, they had taken substantial steps over the last and, and it looked like they were complying, and then at the last minute there was this sudden switch.

And you know, it's classic, i- i- it's the phenomenon we're dealing with. But yeah. You know, y- you're right. There was, yeah.

Eric Columbus: No, go ahead, go ahead.

Roger Parloff: Yeah. If, if, if there were a, a, if reason not to comply, it, it, you know, 9/10 of it was already in you were 9/10, you were 9/10 of the way there, and, and so you've sort of undercut the argument that there was some reason you couldn't comply.

So- There was also an argument in this motion that said, "Well, you know, if we take it down, and later the D.C. Circuit says we can keep the name, it's going to be very confusing for the public to keep changing the name back and forth." And then you know, and then the the other, the other reasons were like it'll impede fundraising efforts, you know, i- which had n- they'd been unable to prove the first time around anyway.

Eric Columbus: And so, so this, this filing, the D.C. Circuit was right before, like maybe 15 minutes before we went live, right? Something like that?

Roger Parloff: The D.C. Circuit one, yes.

Eric Columbus: Yeah. And Roger, have you had a chance to look at it?

Roger Parloff: N- no, I'm, I, I haven't. I mean, it seemed to go... I think I was assuming it would go over the same ground. I haven't looked at it.

Eric Columbus: So Roger, I have some exciting news for you about–

Roger Parloff: Oh.

Eric Columbus: The, the first, about the, the, the introduction to that filing.

Roger Parloff: Oh.

Eric Columbus: That someone on Bluesky was just, was reading it and, and, and, and posted a little bit about it in the past 15 minutes. It seems like a, a raccoon or a squirrel perhaps somehow got, got into the filing, got into the introduction and made some edits or, or, or possibly the, the president of the United States.

I, I, I, I don't know which, and I'm not making any accusations, but there are several exclamation points, and some language that is suspiciously familiar. And very long paragraphs. And for example there's a sentence that says, "The district court is not allowing us to close in order to properly fix up and repair the building, including potentially life-threatening structural damage like beams and parking garage ceilings that are rusted and in serious danger of falling onto people below. Indeed, total collapse!"

Well, for one thing, that's wrong, right? I mean, the, the, he said that they, they could go back and, and if they provided justification for it, they could in fact properly close the building, right?

Roger Parloff: Yes, they can go ahead with renovations. I mean, yeah, and and it they couldn't close the building entirely.

I mean, they c- and, and stop programming unless they went through a full process and came to the same conclusion, and then they can close it. The thing that's confusing me is that I'm, I'm wondering if they appealed the same thing that they sought the stay on, because the stay was about was solely about the name.

They the stay did not really address the issues about going forward and whether there would be a, a complete stay on programming or not. So I, I, I guess I do need to read this a- and see, see if the appeal even relates to the stay.

Eric Columbus: It would not shock me if the president had ordered the inclusion of language that had absolutely nothing to do with what is before the Court of Appeals at this point.

And then I'm sorry, I'm just, I just, it's just this is so much fun to- Yeah ... to read. "Without the name Trump on the building, our fundraising will not only come to a halt, but any and all monies raised or committed would be obligated to be returned, refunded, or terminated." Which is just great. I mean, just let that very Trumpian trio of verbs, returned, refunded, or terminated.

Like, he's trying to sound all legal and stuff. And I, I assume that's not, they would not be stupid enough to raise funds contingent on the building being named after Trump, but who knows? There's... Trump explains, he says, "The reason for this c- clause is that people and companies who have given or will be giving millions of dollars to the center were only willing to do so with the name Trump on the building.

Many did it because they love the concept of two great presidents, one Republican, one Democrat, working together as one. In many ways, a bipartisan relationship!" Exclamation point.

Roger Parloff: The, the ar- the... I'm sorry, go ahead. Oh,

Eric Columbus: No, you go ahead. You go ahead.

Roger Parloff: The, the argument that all funding would stop basically if, if his name wasn't on the building was brought up in a strange declaration a- about two days before Judge Cooper's ruling.

And and about, you know, a- about a month after the arguments on the fully briefed issues. It was, it was tot- it was brought up a- and there was ne- never any evidence for it. There was evidence against it, and and, and, and so, that's sort of the record on the the fundraising power of his name.

I, I think that R- Richard Grenell had talked about very positive fundraising prospects before the name change. So anyway this, I don't think this will be convincing unless they get a very favorable panel

Eric Columbus: I, I, like how Trump or, or whoever added this language suggests that people gave money 'cause they loved the idea of two great presidents, one Republican, one Democrat-

Roger Parloff: Yeah

Eric Columbus: working together. Without kind of realizing that one of the two has been dead for over 60 years.

Roger Parloff: Slain, in fact. Slain. Yes, exactly. This is a memorial- It's- ... to a slain president. I mean- And, and, and maybe I'm the only one that remembers, but you know, this was you know, this is the first time I saw my mother cry.

This was a real guy, and this was a real, ... This was somebody that m- matters. And, and for this guy, Trump, to nail his name, I mean, onto, onto his memorial, the Co-, that's what Congress says this is. This is a, a living memorial to a slain president. I mean, it's a crime, and Grenell- The, you know, I, as I watched them taking down be- I thought they were gonna start taking down th- these things.

I thought, you know, "Is this being done forensically?" 'Cause it needs to be. The there needs to... You know, you need to preserve evidence, and hopefully the video will be sufficient.

Eric Columbus: Believe it or not, we actually have a second Kennedy Center-related litigation item today. And this, which, which I'll discuss, involves a lawsuit this time by the Kennedy Center against a musician named Charles Redd who performed every year in some Christmas Eve, something called the Christmas Eve Jazz Jam.

But when the renaming was announced, he backed out of it and i- i- was saying, "I don't want to be part of this anymore." And he said it publicly, he said to the Associated Press, and he got some, he got some nice publicity for it. And someone at the Kennedy Center, or possibly the president himself d- decided to sue.

And that s- that suit did not, It was a g- a, it's kind of standard breach of contract claim in local court in District of Columbia. And y- the judge Judge Tanya Chutney Jones Bosier, who I'm not familiar with ruled a- against it granted the motion to dismiss this past week.

And so interestingly, the motion to dismiss was filed under d- D.C.'s anti-SLAPP act. I believe SLAPP is, stands for, I think, strategic litigation against public participation. And y- y- you see this often in defamation claims. It, it, it, it, these are lawsuits that are... Sorry anti-SLAPP act is, is intended to guard against lawsuits that are, are filed by someone aiming to, like, squash the expression of opposing points of view.

And you often see it used against frivolous defamation suits. But this is, I think, perhaps unusual to see in a, in a, in a contract claim. And to, to secure a dismissal, you, y- y- you need to make a prima facie showing that the claim at issue arises from something you did in furtherance of your right of advocacy on public issues.

Then the burden shifts to the, the, the, the other party who needs to demonstrate that their claim is likely to succeed on the merits. And- It, the reason why these acts exist is that you're, you're, if you prevail under it, you're, you're presumptively entitled to a a fee award. And that is, it serves as a disincentive to plaintiffs to file lawsuits that could be slapped down, if you will under an anti-SLAPP act.

And so, the, the, the court, So basically, Chuck, Charles Redd, he said, "Look, you know, this, this breach of contract claim they're filing is because they're mad at me because of my public statements about the disagreement with adding Trump's name." And, and the Kennedy Center said, "No, no, no. It's, it's, it's that you- it's that you didn't show up for the concert.

We had a contract, and you're supposed to show up for it." But the court, you know, said, "Well, that's not, that's not really true. The, the, the complaint says that you agreed that Mr. Redd agreed to a m- a morals clause, and he, he chose to abuse the public forum provided to him by the center in order to make a political statement."

That's the quote. So it's, it's clearly they're suing him because o- of the political statements that he... the statement he made to the press about backing out. Because a- as the, the judge further noted, lots of folks backed out but he's the only one who made a public statement a- and then got got sued.

And then the, the, the, the judge looks, looks through the contract and finds that there is actually no no written contract at the time, and also that there's, there's basically no effort to prove any, any damages caused by the alleged breach of contract. Like the Kennedy Center said they had lost goodwill with the public and sunk costs preparing for a concert that didn't occur.

But apparently it was, one, it was a free concert, and there was no reference to Charles Redd any in, in, in any of their, their, their, their marketing materials. And, you know, the judge said, "Look, you know, you, you don't need to actually specify what the damages are, but, or the amount of damages, but you, you need to do a little bit more proffer some type of expenses or costs beyond just kind of conclusory allegations," and that a lot of artists, in fact, canceled.

This was not just him. So they're, they're... I- if anything, they may have saved money in, in some way from expenses. And so, the, the, the artist prevailed, and, and, and again, this is an instance of the, the the, the Streisand effect in that it was a news story that, that came and went in December, and now kind of gets another news cycle worth of attention because the Trump administration filed a, a spurious lawsuit and and lost That's all for the monuments for now.

We now turn to our third and final category, and this is a, a, a... I was gonna say perennial, but that, that may refer to multiple years. I will say at the very least during this, during the Trump administration, this category has been a big one and remains a big one, and it is immigration. We'll start off with Anna, who will tell us about developments in Delaney Hall.

Anna, what i- and where is Delaney Hall, and what's happening there?

Anna Bower: Yeah. Delaney Hall in New Jersey is the immigration facility that has been the subject of a lot of recent protests. It is a place where you know, there's been a lot of protesting around the conditions at the facility. And then now the conditions at the facility have also found their way into legal disputes.

The- there's a case before Judge Quraishi in New Jersey that was a habeas petition. And the man who filed this petition was seeking release, but also seeking to challenge the conditions at the facility at Delaney Hall. And a- as a part of that case, Judge Quraishi set a hearing, an evidentiary hearing for administration officials to testify about the conditions at Delaney Hall.

And that set off a chain of events in which first there was this- kind of, notification to the court that there was a settlement agreement of some sorts, b- but it wasn't clear exactly what the settlement agreement between the parties were or what it was. Then it was it, then we found out that actually the petitioner was not going to move forward with the settlement.

But what the government did instead, ahead of this evidentiary hearing, was to transfer the petitioner from Delaney Hall to, I believe it was Elizabethtown to a different immigration facility. Or Elizabeth New Jersey. And as a result, while all this is ongoing, Judge Quraishi isn't sure, you know, whether to move forward with this hearing or not.

He d- you know, plans to move forward with it because it's so unclear what exactly is going on with this. You know, was the, was the petitioner released? Was he, you know, then it was the transfer. It wasn't clear whether there was a chance that he could be transferred back to Delaney Hall. So Judge Quraishi decided to move forward with this hearing.

Meanwhile, the government goes to the Third Circuit to seek mandamus to, to put off the hearing. The Third Circuit does grant a stay invites the judge to respond to the government's petition. Eh, so all of this is happening over the past few days. And today we did get two things from Judge Quraishi.

The first was a ruling on the habeas petition and the conditions of confinement claim. And, and of those, the habeas, the actual seeking release was s- was denied without prejudice. And then the conditions claim was denied as moot because, of course, it related to conditions at Delaney Hall, and at this point the petitioner had been moved to Elizabeth, New Jersey, to a different facility.

But in these filings i- in addition to that filing, there was also the response that Judge Quraishi gave to the Third Circuit, and explains all of this sequence of events that, that made it unclear, you know, whether he should move forward with a hearing, and, and gave the reason of, of wanting to move forward, which was that at that point the government had not provided any representations that the petitioner would not me- be moved back to Delaney Hall.

At this point, however, they have provided such assurn- assurances, and so for that reason, Judge Quraishi, you know, said "I'm gonna deny this conditions of confinement claim as moot." But there's a lot of strong and interesting language in, in th- in these especially in the order on the habeas claims in which the judge is cautioning DOJ, "You know, I'm going to take you at your word for now on, on this question of, you know, moving not moving the petitioner back to Delaney Hall."

But, you know, like, you can't use these kind of maneuvers to get around a- an evidentiary hearing. Essentially that's the gist of it. So another really remarkable ruling in which a judge blasts the government over the erosion of the presumption of regularity. But for now it seems to have resolved, I think this, this standoff over the evidentiary hearing.

Roger, did I miss anything? 'Cause I know you've been following this closely as well.

Roger Parloff: No, I, that's, that's what happened here. The just some background that, that Quraishi is one of the many judges in the country and, and in New Jersey that are really have had it with the, the mandatory detention policies.

And he had warned the government in the past and this fellow who wrote it had been in detention for two months. And originally the petition claimed that he had no criminal record, and that didn't turn out to be true. He he had an open theft charge in Florida, and so the mandatory detention was actually accept- is the, is, was the law for what he was charged with.

That aside, He, he's been-- I- it's really Quraishi. It's because of Quraishi that we have a U.S. attorney in in New Jersey. You know, remember there was Alina Habba, and then when she was disqualified, the, the government tried to appoint or, or I guess, I think it was Pam Bondi appointed a triumvirate, and then they were disqualified, and then they were still sort of, jerking around at, at the, the courts and, and there was, people were saying, you know, Alina Habba had been seen at the at the U.S. attorney's office and was playing some role, too.

And he just called a hearing and said, "Okay, everyone get in here. I, I want all of these triumvirate to be there. Everyone's gonna testify. We're gonna find out who's running the show." And before the hearing an agreement was worked out and Robert Fraser was chosen that both the U.S. District Court for New Jersey and Pam Bondi or, or, or Blanche could agree and, and they got a US attorney who was lawful.

So Quraishi, you know, likes to, "Let's get to the bottom of it. Let's just-- I don't wanna hear about accusations about Delaney Hall. Let's have a hearing. You get somebody from ICE here, we're gonna find out what's going on." And then they transferred, a-and he said, "Forget about it. We're having the hearing." And, and then the Third Circuit intervened, and then these other things happened.

And, and so that's sort of Quraishi. He backed down or, or, or a- a- given the facts and I guess, But it, it's-- he's been an, an important figure here.

Anna Bower: Oh, oh, can I just say as well, sorry Roger, on the Bla- Brad Lander question that you had for me,

Roger Parloff: Oh, yeah. Yeah ...

Anna Bower: Yeah. So it, it was a regulatory offense. One of those weird ones where it's not even, like, it's not even on PACER. It is technically could have been a misdemeanor. But it, it's if anyone followed the you know, bin and then National Park Service regulatory offense saga, you know that these are kinda weird, limbo kind of, area. But it was a regulation that prohibits obstructing the use of federal property.

Roger Parloff: I see. I see.

Anna Bower: Yeah.

Roger Parloff: And so, and that's why, 'cause I had never heard of it. And then of course when you say obstruction, I knew it was none of the obstructions-

Anna Bower: Yeah.

Roger Parloff: we're familiar with. So that's all.

Anna Bower: Yes. So that's so that's what the, the underlying offense was.

Roger Parloff: Okay.

Eric Columbus: Roger. What is the H-1B fee, and what happened about it this week?

Roger Parloff: Yeah. This is you know, the H-1B visa is for people that ha- have a foreign workers with specialty occupations that c- can't be filled by Americans or enough Americans. And so, last year at some point, I think September 19th, Trump decided to charge $100,000 for each, the employer pays it but for each H-1B visa he wants.

The- they had been expensive. You know, it the, There's a lot of fees. It, it could range from about 1,000 up to about 7,500, but 100,000 was something that was of a different order. And so, The we've had a couple suits, and in fact, you might remember, In fact, I'm pretty sure Eric spoke about it.

Some months back, Beryl Howell, who's a very good judge in D.C., rejected a challenge to it. And this time Lee Sorokin a judge in I think Boston it is certainly District of Massachusetts Lee Sorokin granted struck it down. He it was summary judgment, and he it's a, it's a s- 706 order under the Administrative Procedure Act.

So this actually will have a national effect, and it has been appealed. And the government is seeking a stay from the First Circuit. The the government, the, the, the president has enormous discretion over visas. There's two statutes and you may remember from Trump versus Hawaii, the travel bans the travel ban case from the first man- from the first term.

A- a- and they, they upheld those 'cause under twelve... There's 212(f) and 215(a) of the Immigration Nationality Act. A- and the, the U.S. code versions are 8 U.S.C. 1182(f) and 8 U.S.C. 1185(a)(1). They give a lot of control to, to the president about who can enter the country. But it's usually you're thinking about, Who you're not saying you know, are they a danger?

You're not saying, "I don't care who, as long as they pay a hundred thousand." That's a-- that's sort of, not the usual way we think of using that statute, even though it gives a lot of discretion. So, here he found that this was an unauthorized tax, basically. That the, you know, the immigration law doesn't say-- isn't set up to impose taxes and that's what this amounted to.

It wasn't-- you know, there's a whole set of laws over what's a tax and what's a penalty, and a hundred thousand dollars that you-- you know, it's not like that you're saying it's bad to come in or it's bad to get an H1B H1B visa. It's okay, you just need to pay us a hundred thousand. The-- I think, I think what's changed since Beryl Howell got the case, which was several months back is the Learning Resources case the tariffs case at the Supreme Court.

I'm, I'm sort of-- I'm speculating here, but, but this case was briefed and decided after Learning Resources, which, you know, decided that the IEEPA did not authorize taxes. It, it, it authorized regulation, and you could not... And, and tariff would be a type of tax. Regulation they, they wouldn't infer from the word regulation the, the idea that you could, you could impose a tax.

And, and so Learn- Learning Resources was cited five times in this ruling. And I, I think that's probably one of the key differences. Also with Learning... There was also an argument before that, well, the, the, the DHS is getting the money here, not the IRS, so it's not a tax. But again, that was the case in IE-- in the IEEPA case.

The tariffs, the money was going to DHS, and the Supreme Court said that doesn't make any difference. It's still it's still a form-- it's still a tax. So, yeah, that was a, a big case.

Eric Columbus: Did Judge Sorokin engage with Judge Howell's opinion or, or, or not really?

Roger Parloff: I, She-- he acknowledged that she went the other way.

I forget how how he, he didn't distinguish it. I forget what, what he said exactly.

Eric Columbus: Got it. Next, one item that we-- that I think came down last Friday, and so we did not have a chance to bone up on it for last week's Lawfare Live. A district court in Rhode Island has blocked a bunch of immigration related policies. Tell us about it, Roger.

Roger Parloff: Yeah. These are policy, this was Judge John J. McConnell Jr. who he's an Obama appointee in Rhode Island. I think we've mentioned him before. And th- it's a series of and there have been other cases raising these. It's a series... This also relates to the travel bans. But after around November 26th of last year when an Afghan national shot two National Guard members in D.C. and killed one of them maybe I, maybe I have to say allegedly, 'cause he hasn't been adjudicated yet.

But the next day the administration began imposing a series of policies, there's about four of them, that put a quote, unquote, "Pause" on on im- benefits. It means, like all pending asylum claims, all withholding of removal, work permit requests, green card, citizenship applications, all of those are paused for people from 39 countries. And the theory was, well, those countries are high-risk countries. They, they have insufficient vetting and screening. But it really changed the immigration laws, 'cause a lot of these, you know, statutes that allow for asylum, allow for withholding of removal, use the word shall.

You know, the immigration, the, the, the defendant here is the USCIS, the Customs and Immigration Service. I, I hope that's right. But–

Eric Columbus: Citizens- Citizenship and Immigration Service.

Roger Parloff: Citizenship and Immigration. Okay, thank you.

Eric Columbus: I used to work at DHS, so that-

Roger Parloff: Oh

Eric Columbus: –that's the only reason I know.

Roger Parloff: Okay. And so th- this challenged all of those, I think, four policies under the Fifth Amendment and the APA. I think the, the, the decision was made under the APA here. And he the money lines are, But the rule of law has to apply to everyone equally, and as evident here, USCIS has neither followed the law nor done things the right way.

Indeed, the agency has violated the very immigration laws that Congress has charged it with administering, as well as the administrative laws that govern the agency's actions... dot, dot, dot. The government justifies its actions with pretextual concerns of national security that mask anti-immigrant sentiments that it is forbidden from letting influence its decision-making.

This was one of the cases that it, it too cites some of Trump's language and, and Noem's language right after that shooting. The, the famous Kristi Noem's tweet December 1st, "I just met with the President. I am recommending a full travel ban on every damn country that's been flooding our nation with killers, leeches, and entitlement junkies... dot, dot, dot." All caps, "We don't want them. Not one."

That's played a important role in the Mio case and the TPS case that the Supreme Court will render shortly its ruling on. So, that, that too was a factor here as far as the, the animus and the, and the fact that the the anti-immigrant animus was the real motivating factor, not these national security concerns

Eric Columbus: Great. And we have one more immigration item from you, Roger, right?

Roger Parloff: I think we do. And this one is really thanks to, It's not really as far as I know, it's not yet a case. It's The New York Times. And and here are some tough names, but Megha Raja Gopalan and Hamed Ali Aziz. They, they they-- apparently there are about two dozen people that the government is about to ship, wants to ship to, it's these third country removals that wants to remove to the Central African Republic.

These are two, at least two of the women are from Iran. They f-fled Iran. One is a Syrian who's a Sufi Muslim who was being tortured there. And of course they're being sent to countries they have, We-we've seen this with Ghana and Equatorial Guinea and Eswatini, and Central African Republican Republic is one of these countries where the, where the State Department says, "Do not trav- do not travel there under any circumstances."

And, you know, if you do travel, it might be a good idea to have, you know, Copy of your dental records so your family can identify your body when, you know, the charred remains are discover- are, are, are recovered. You know, these are really gruesome places to be sent. And and what the, the government apparently does is it, you know, these are desperately poor coun- companies.

It pays them something, and they, they say, "Yes, we will, we will be careful with your people and make sure they aren't refooled and back to the original country where the withholding of removal has been granted, and whatever else you want us to say, just give us the money." And we saw that with Ghana.

We saw that people were refouled, refooled, refouled, I don't know the word.

Eric Columbus: Well, could you explain for those of us who, for those of our-

Roger Parloff: Oh.

Eric Columbus: listeners who don't know what that means, can you explain what that means?

Roger Parloff: Yeah. Refoulement refoulement or something. It, it... But the idea is you- you're sent back to the count- country you, you came from.

You... We send these people to, to, to Ghana because and, and Ghana sends them to the company, the country that our immigration judges have, have said they must not be sent to. The whole reason we're s- It's, it's like a a bank shot where the immigration is not allowed to send them to, like with Abre- A- Abrego, it would be like with Abrego, he's not supposed to be sent to El Salvador.

Let's send him to Centra- Central African Republican, Central African Republicans, Republic sends him to El Salvador, because m- most of these countries don't keep people that aren't their own citizens. So, and all of this we are dealing with because the Supreme Court in the, in the DVD case many months ago stayed the district judge order below, Ryan Murphy, who, who found that this third country removal stuff didn't w- was illegal, and he tried to stop it.

And the Supreme Court said, "No, while this is being in litigation, we have to let this go on." And and it's going on. People are being sent to these these, C- countries they have

Eric Columbus: But, I mean, is there anything that,

Roger Parloff: a-

Eric Columbus: as you noted there, r- you said there's no litigation now by these folks who are the subject of the Times article.

I mean, why, why not?

Roger Parloff: There might be. I, I, I, it, it sounded like there must be or there is about to be because they, th- there was attorneys speaking to the New York Times. But I don't know how much luck they'll have. There is no injunction at the moment. The, the DVD case is now before the First Circuit that we're, we're, we should get a ruling shortly.

But but even... Well, I can't say for sure. If they tried to stop it, I, I think the Supreme Court stay would still be in effect until there's a cert petition. I'm not 100% sure of that

Eric Columbus: We have a few questions from our, our loyal listeners or lo- our loyal Lawfare live listeners who are listening live.

And I, Anna Hickey, do I read them myself out loud or is will someone, do people, folks read?

Audience Member: Sure, I can read.

Eric Columbus: Okay, John, go ahead.

Audience Member: All right, so I reviewed the transcripts released in the Broadview six ECF 219, 220, and 221. And although the prosecutorial ethics violations that have been described are present, they seem far less bad than I thought they were gonna be, at least based on reporting.

And so I'm wondering if I'm discounting their significance. So two examples. One, the improper ex parte conversation was a grand juror stopping the prosecutor in the hallway and asking about having trouble with their feelings and the rule to apply the facts to the law, and Mecklenburg replied, "That's true.

That's exactly what you, what we want you to do." And then on excusing the juror, she didn't actually do that. She suggested the juror could excuse themself if they can't be impartial, and that feels subtly but importantly different. Her words, "If you feel that you can't be blank, then excuse yourself.

That's fine. There's still 16?" And I don't know, actually know if that's far more minor or far more sinister. So I guess I'm just wondering if these are really reasons to throw out the case. A- and it's ... It seems like what Judge Perry said about the redactions being far worse than the underlying conduct makes sense and resonates with me

Eric Columbus: I- I'll give you my views, and obviously, you know, Roger and Anna, feel free to jump in. I, I, I do agree with you about the, the the conversation with that was in the the hallway with the jurors. I, I, I think that Judge Perry described it as a substantive conversation with grand jurors, but it did not seem very substantive to me. With regard to excusing, you know, the grand juror I mean judge rather the, the prosecutor did say you know, "Do you have an open mind for deliberation?"

And then she said, "If there's anyone who feels differently, 'cause if you do, then you shouldn't deliberate with, and then she kind of like interrupted herself and went on to something else. So, it, it, it, it seems that she was doing a little bit more than offering him a chan- or her a chance to leave.

And, and later on she says, "Are you gonna be able to listen with an open mind? Tell me the truth." And then the grand juror says, "I no." And then she says, "Okay, then you have to go." And then she gets cut off. So I, I, I think she was, you know, really try- trying to e- evict that grand juror from the case.

And you know, so whether it rises to the level of, of, a, a, a, a conviction being overturned some, I, I, I don't know. You know, down the road I wouldn't know the law there, but it seemed to disturb the, the, the U.S. attorney enough the office enough that it, so that at one point they redacted it. They did- they redacted it in the materials that they turned over to Judge Perry, and then later on just decided to dismiss the whole case.

And I don't know whether it was because of, you know, the underlying offense, if you will, by the prosecutor that caused them to dismiss the case, or whether it was that, you know, coupled with their later decision to hide it from the judge that made them think this was not gonna end well from them, for them.

And it, it still is, may very well not end well for them with possible sanctions against them.

Audience Member: I guess we'll see in some of the other cases where these similar issues are being raised how much of a pattern this is in that office.

Eric Columbus: Yep.

Roger Parloff: I, I sort of agree with John about the, I was surprised when I saw the, the, the c- conversations outside the jury room.

The fact that she seemed to, and maybe I'm wrong, but she seemed to immediately afterwards re- reali- report what she had done and, and, and said, "I shouldn't have spoken." But, you know, it's so hard to just be rude to somebody who comes up to you and asks a question like that, to say, "I can't talk to you."

And, and I think there's a reflexive thing, and she did the right thing to report it all as soon as possible, assuming she re- reported it correctly. But I did think the vouching was pretty clear. And and then I didn't read the whole thing. Also, I when, when the judge described it, I thought she said there were...

there ended up being, like, three people excused. Is that it was more than just one that ended up being ex- be- leaving or-

Eric Columbus: I think there was one who she, like, basically forced out or-

Roger Parloff: Yes.

Eric Columbus: And then did two- And then there was another, and then there was another who- ...

Roger Parloff: pick up

Eric Columbus: on their own? Then there was another who I think left on their own.

Roger Parloff: Yeah. Okay. Well-

Eric Columbus: Anna, do you have any, do you wanna weigh in on any of this, or-

Anna Bower: Yeah, I, I mean, I just with the excuse, with the excusals, I ... Like, it's one thing if a grand... Because, you know, grand, grand juries, you have to have quorum. You often have grand jurors who are missing because of things like appointments and that kind of thing.

I, I just don't know what reason there would be or authority there is for a grand juror to be excused or to excuse themselves based on... Like, 'cause that goes to a qualification of the grand juror, of this idea of, you know, whether you can be im- impartial, I guess, which seems more like I, I, I guess I just am not quite sure.

I think there's a big difference between I've got a dentist appointment well, you should excuse yourself for the day, versus I don't think this case is right and I won't be able to vote for it kind of thing. Oh, well, you should ex- you know, and then suggesting that the grand juror should excuse themself from-

Roger Parloff: Yeah, I, I think that's right, 'cause there's, I don't think there's any voir dire for a, a grand jury. And it, it seems, Yeah, I, I-

Anna Bower: My, my most, most of my experience with grand juries is from a state grand jury procedure, so I am not sure in the federal grand jury. But usually it's just, like, are, do you actually live in the district? Like, are you... There's, you know, certain qualifications. Then there's, like, you know, are you y- you know, you might have a issue if you're related to one of the people who there's, like, a case that i- that is coming before you or that kind of thing.

But, like, otherwise, it's, it's the qual- There's not really, like, a voir dire in the way there is in, in regular jury practice. So-

Eric Columbus: And, and, and I'll, I'll note also that re- when, when she was trying to, you know, kick out that grand juror, the, the context I think matters. It was ... The previous meeting of that grand jury on the, the previous week, they voted they rejected this indictment.

And so she's now coming back to them a second time. And so when she's trying to kick out someone who she thinks is a problem it's it's, it's because this is a really a live issue for her, and she doesn't wanna lose again. So it, it seems that maybe this is not something she would've done under normal circumstances, but she was afraid she would lose again, and so she wanted to, you know, kick out any bad, you know, any, any people who might continue to vote against her.

And, and re- sorry, not just vote against her, but more importantly, persuade others to vote against her.

Anna Bower: Yeah. Yeah. I think that that's ... 'Cause that, that's the thing, is that it's ki- like, it's, it's so suggestive of, well, you should you know, take yourself out of the scenario if you're not gonna be able to vote for the case kind of thing, as oppo- You know?

I, I don't know. I think that's the thing that makes it troubling.

Eric Columbus: We have three questions left. Do I read them, Anna Hickey, or?

Anna Hickey: Yes, please read them

Eric Columbus: I will read them. So the first question from Elaine G., "How can conflict of interest corruption be structurally opposed legally? And is there a way to narrow the apparently widening gap between legal theory and practice?" I, I'm gonna rephrase that slightly, and what I think E- Elaine is, is getting at is we have these laws on the books and but it seems that the laws don't wind up leading to consequences about things such as conflict of interest for a variety of, of reasons.

Roger or Anna, do you want, have a, do you wanna take a crack at, at that?

Roger Parloff: I, I think it's a, a good question. I don't know how useful I can be. The answer seems, you know, The answer for everything seems to be impeachment and and and impeachment is not doable 'cause with this unitary e-e-e-executive, it, it, it seems like push come to shove the president does what he, what he wants.

So I, I guess I'm not being very helpful here. M- but, you know, for instance, a, a conflict of interest. I mean, do we believe that Blanche-- I mean, oh, Blanche is not his personal attorney anymore. He's just the acting attorney general who must do what Trump wants because that's Trump's interpretation of the Constitution.

And, and he is the one who sort of signs a document that waives all tax liability, he alone for Trump, his former client, his, quote-unquote, "former." I mean, it's just way beyond anything that I can begin to, I, I, I mean, if this is okay, then what isn't?

Eric Columbus: Anna, any thoughts?

Anna Bower: Okay. No.

Eric Columbus: The next two questions are both the final... Next and final two questions are both about the immunity aspect of the agreement, quote-unquote agreement between- Trump and Department of Justice. This, this is relate to an, Well, sorry, I'll just, I'll just read the question.

Do the rulings on... This is from David Emery. Do the rulings on the Trump slush fund have any impact on the Trump family release of liability from IRS? If not, who has standing to object to that? And the second question by an anonymous attendee is, is basically to the same effect in asking whether anyone has filed a suit that is specifically challenging that aspect of it.

And, and the, the attendee also notes that there's already is a DOJ fund established to compensate people who have claims for frivolous lawsuits. Am I right to think that Blanche pulled the entire IRS dealings out of pure air? Which I assume you mean the IRS immunity aspect to it. Anna, do you want to answer those?

Anna Bower: Oh dear, I am afraid that I was having a conversation with John in the chat still on the question of- so can you, can you help me to?

Eric Columbus: Yeah, it's about the- It's about the immunity the, the Trump family release of liability from IRS. And does, do these laws, do these rulings on the Trump slush fund have any impact on that?

And if not, who has standing to object to, to that?

Anna Bower: I mean, I as we write in our piece, I, I don't think any of this changes the fact that, you know, individual settlements can still be reached in in you know, regardless of whether there is a slush fund. And so the goals of the settlement fund or the anti-weaponization fund, whatever it was called can still be reached.

And I can't think, I mean, Eric, you probably have... You're the standing guy, so what- You know d- w- we have, we have been hard-pressed to think of situations in which people would have standing, but do you have the additional thoughts after having been at these hearings this week? Well,

Eric Columbus: I mean, on these, on, on the specific question asked about the, the release of liability from IRS the, the basically, the, the immunity aspect of what Todd Blanche did with his second order, I, I find it really hard to see who has, would have standing to challenge.

I mean, it's basically, it's basically, you know, the I- IRS saying, "I'm not going to give you... You know, we're, we're not going to pursue these, these au- these audits that we're not gonna... that may have resulted in you owing us another $100 million." I, I mean, I could... I, it's weird. I mean, you could... M- It would be a stretch, but I could maybe imagine some competitor of the Trump organization suing and saying that they- You know, we compete against the Trump Organization, and if Trump is, is allowed to hold on to $100 million that he d- doesn't deserve, then he will be more effective at competing against us.

That sounds a little silly, as I, as I say it. I doubt a court would grant standing. But Roger, you sounds like you want to say something on that.

Roger Parloff: Yeah. I, I don't think you need somebody t- to challenge that. I think the next administration, you need people to just go ahead and charge him, and then... or, you know, bring the case.

And then when he says, "Oh, I got this. No, look, I g- I got this thing from Todd Blanche," you say, "What is that thing? That, that's worthless. This was, you know, this was a f- this was a, a, a fraudulent settlement. This was a, a piece of paper signed by your former lawyer. It's signed by nobody else. It was signed the day after the so-called settlement.

That's worthless." I, I, So I don't think we need to do anything right now. I think, I, I, I think the problem will be statutes of limitations. But I, I think you just go... And, and also the loss of evidence if they discontinue au- you know, ongoing audits. But I, I don't think you need to challenge it right now.

It's just a nullity. You would, you would later on say, "This is, this, that was a nullity. It doesn't protect you."

Eric Columbus: I think that's exactly right. A- and that's, and then, and that also, I can, I can say accurately that's what Anna and I wrote in our initial piece, that this was, was, it, it will, will be regarded as presumptively invalid by a future administration.

And, and I'm no expert in IRS enforcement, but I don't think there's a, a, a statute of limitations on how long they can bring a, a civil enforcement action. So I believe that wraps it up for today, and we've gone long, but we had lots of fun things to talk about.

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