Lawfare Daily: The Trials of the Trump Administration, June 30

[Intro]

James Pearce: When you go back to both what English courts were doing and then early American courts were doing, there was just nothing that that resembled the kinds of, of universal injunctive relief that we're seeing now.

Benjamin Wittes: It's the Lawfare Podcast, I'm Benjamin Wittes, editor in chief of Lawfare here with Lawfare Senior Editors Anna Bower and Roger Parloff and Public Service Legal Fellow James Pearce.

In the June 27th episode of the Trials of the Trump Administration, we discussed the Supreme Court's ruling on nationwide injunctions in the birthright citizenship case, the whistleblower complaint against Emil Bove’s actions as acting deputy attorney general, the Trump administration suit against the federal court in Maryland, and so very much more.

[Main Podcast]

It is Friday, June 27th. It is 4:00 PM and this is Lawfare Live, and it has been one heck of a week, including one heck of a day. So I'm not going to detain you with a lot of preliminaries. Just gonna get started. Joining me from the Sconce Studio, it is the estimable Roger Parloff. From the Cathedral Studio, it is James Pearce and from the blurry room in her palatial mansion and the blurry room, actually, your vision goes a little bit nuts when you're in the blurry room. It is Anna Bower.

Anna Bower: Hey everybody.

Roger Parloff: Hey.

James Pearce: Hi.

Benjamin Wittes: Hi. Folks, we got a Supreme Court decision on, on universal injunctions and it's a doozy. And it was not the one that a lot of people, including me, were expecting after that oral argument.

Oral argument showed a quite nuanced view on the part of a lot of justices of this. And then they split six three in a, a kind of hard left-right split. And you would think that they were, you know, the Fed Soc and the American Constitution Society duking it out in front of one or the other of their conferences. James, how many of the 119 pages have you read?

James Pearce: So I have at least put eyes on all 119, but I, I don't think I can say that I have read every word on every page of the 119.

Benjamin Wittes: So, all, so walk us through, first of all, for those who think, who call this the birthright citizenship case. Explain what this case is as presented in this Supreme Court opinion is and is not about.

James Pearce: Certainly. So it is called the birthright citizenship case or cases. There are three cases consolidated before the Supreme Court by some, because the origin of this litigation was following President Trump's executive order purporting to limit citizenship to those or, or, or at least restricting the access to citizenship to, to individuals non-citizens born in the country.

As sort of a longstanding principle of, of, of U.S law that if you are born in the United States, you have U.S. citizenship. There were a series of, of legal challenges by different parties, some kind of groups of non-citizens or advocacy organizations or states. That distinction becomes relevant a bit later.

Courts, handling those quickly, agreed with the challengers and issued preliminary injunctions and then issued in, in the cases before the Supreme Court, universal injunctions. And I think it's worth pausing for just a moment to explain what a universal injunction is, at least in how that differs from a nationwide injunction. They're often used, and I think I have been guilty in the past of this synonymously, though they are not the, the, and the difference.

And Justice Barrett, who wrote for the court here spells this out, I think fairly clearly in a, in an early footnote: a nationwide injunction is an injunction that, applies to particular parties, but kind of have nationwide effects. So, so an example could be a, a imagine an injunction that says government, you cannot remove this particular person. You cannot deport this person. And it, that doesn't just apply in the district of Maryland that applies throughout the country. So it has nationwide effect, but it only applies to that particular person.

By contrast, the issue here are universal injunctions where a court purports to pro-, prohibit the government from enforcing laws, not only as to the parties, to the particular litigation, again, whether that be states advocacy organizations or whatnot, but to any, anybody else who's not a part of the litigation at all.

So the government sought a stay of the universal, universal injunction aspect of this case. It was not at this point arguing that the, the courts had gotten it wrong with the underlying merits, and in fact, the courts hadn't really decided underlying merits when it, when it had put in place preliminary injunctions.

And so this came up to the court and I should say somewhat mysteriously because this did not come on the cert, docket where the court in those cases grants a question presented. The court set it for oral argument on the out of the emergency docket. And so there was not actually a question presented what most people thought.

And certainly what the argument reflected is this was going to focus. This case was going to focus on the propriety of the use of universal injunctions and not on the legal merit of the executive orders effort to change the, the definition of birthright citizenship.

Quick pause before we kind of dive into the opinions. If you read the the majority opinion and, and the concurring opinions, you understand, this is a case really about universal injunctions. If you read the dissenting opinions those are, are, are sort of chockful with a lot of discussion of the underlying merit and the problems of not having a universal injunction when in the dissenting, dissenter view, the, the issue is, is one of flagrant unconstitutionality. But we, we can get to that in, in due course.

Benjamin Wittes: Okay? So it's fair to say that the majority of six does not perceive itself as ruling on the birthright citizenship question at all.

James Pearce: That's certainly how I read it. And, and there is language explicitly in the majority opinion itself. And there are a handful of concurrences from Justices Thomas, Alito, and Kavanaugh, and, and none of them purport to weigh in on the constitutionality of, of birthright citizenship either.

So I do think that that's a, that's a fair way to at least characterize in the majority's view. I, I know, I think the dissent thinks, thinks otherwise. So to, to kind of cut to the chase and, and the, and the, what the court decided, the, the court concluded through Justice Barrett, maybe pause for a moment.

Interesting that Justice Barrett wrote, I think a lot of people imagine this might be something where the chief would weigh in. It's certainly something of, of quite high, high profile and so Justice Barrett, a relatively junior justice writing is, is interesting. She holds in, in essence that courts don't have the equitable authority to impose universal injunctions. And it does read as a fairly technical analysis.

There's some background that I think frames the case in a particular way. Saying, saying something like, look, the executive branch, the solicitor general's office has actually been consistent through administrations opposing this type of, of relief. You know, we've talked here and, and certainly plenty of talk that all too often in public conversation whether one likes or doesn't like in a universal injunction, has a, has a curious relationship to the, to the issue at hand and, and likes it when you know, you think that the what is happening is bad.

And, and doesn't like it when you think it's, it's enjoying something good. And so there's a little bit of that flavor in the, in the introduction. But when it gets down to the, the kind of the working through of the legal analysis. It's, it's quite technical. And, and some might even say quite dry. The question as the majority frames it as Justice Barrett frames it is when Congress, so, so Congress hasn't given courts the power to issue universal injunctions.

And they do, and courts do that in their exercise of their equitable authorities. And so the question as Justice Barrett framed it is when through the const, when the Constitution was ultimately ratified, and when the first, when the Judiciary Act of 1789 was issued and gave courts the power to act in equity, did that essentially provide was there some analogous way that courts were doing universal injunctions then?

Benjamin Wittes: And fact, and just for, for those who do not understand the terminology here, what does it mean to say when a court acts in equity.

James Pearce: Yeah, so, so equity as, is distinct from law. So law are, are statutes. It could, could, could even be common law decisions, but equity is essentially a a sense of doing justice and doing fairness.

And so it's not something that is kind of circumscribed in the, in the narrower ways that one thinks of as law, though surely there's lots of play in the joints for any good interpreter of a, of a text, including a legal text. But, but equity is, is doing fairness doing justice ensuring that parties who come in with unclean hands aren't somehow benefiting.

So it is a little bit more of a squishy, and in fact, the majority says here flexible. I mean, I, it's readily acknowledged that it's a more flexible doctrine, and this is something that the dissent ends up pointing to. But the distinction is between law on the one hand and equity on the other. And so, and I wanted to, to just read the way that the majority frames the question to give a sense of, of the kind of technical way that it is teed up.

The question is essentially, are universal injunctions sufficiently analogous to the relief issued by the high Court of Chancery in England at the time of the adoption of the Constitution and of the 1789 Judiciary Act. So not something that is, you know, when, when people are talking about this case in the media, there's, and, and publicly there's not a lot of conversation about what the high Court of Chancery in England is doing.

Right? At least if, if there is, I, I haven't been part of those conversations, but a lot of the opinion then, then walks through look when you go back to both what English courts were doing and then early American courts were doing, there was just nothing that, that resembled the kinds of, of universal injunctive relief that we're seeing now.

And then the opinion sort of turns and rebuts a couple of, of arguments that both the the plaintiffs and respondents in this case as well as the dissent raised, there's something called Bills of Peace, which are this sort, you know, arguably somewhat analogous to universal injunctions. But what the majority does here is say, that kind of collective way of seeking relief is much closer to class actions and class certifications, which there is a federal mechanism for, there is a mechanism in the courts under, under the, the federal rules. And so that's essentially the way that they. The majority both distinguishes bills of peace and kind of provides a way that some type of collective action could, could work moving forward.

The next argument that the majority rebuts is this which lower courts had relied on as a, as a, a principle that equity allows a court to provide, quote, complete relief. It's the complete relief principle. And the majority says yes, we agree. That's, that's a principle, but complete relief means complete as to the particular parties.

It doesn't enable a court to then reach outside the parties to the litigation and bind non parties or at least prevent the government's enforcement of a law as to as to non parties. And then the final part, the sort of final argument is that the, the majority confronts is one of policy and basically says, and I think this strikes me as right not to say what what's come before is wrong, but it says, look.

Both sides come up with policy arguments. You know, on the one side, the, the challengers, the, the plaintiffs rather say, this is so deeply unconstitutional. It's crazy that this could go into effect that there's not some mechanism and that everybody has to be coming into court. And on the other side, the government says, you know, there, there forum shopping problems, a lot of, essentially the, the kinds of, of concerns about universal injunction that I think has been readily discussed.

The, the majority just says, look, that's neither here nor there. For our purposes, we're doing a legal analysis. So that's, that's all in service of its conclusion of the majority's conclusion that the government is likely to succeed on the merits. Not of the birthright citizenship question, but on the question of whether courts inequity have the a power to enter these injunctions.

Last, last point, on the majority opinion, before either pausing or, or talking about the other writings, there's also a very brief irreparable harm argument, which is interesting because they're, the court essentially says, to the extent universal injunctions intrude on the government's power to enforce the law.

And then there's a very important addition as to non parties, that's enough to establish irreparable harm. I think that addition is important because we've seen the government argue in in a lot of the litigation, a lot of which is in the sort of stay or preliminary injunction posture, that the mere fact that the government can't enforce the law is enough to establish irreparable harm.

And there's a way to try to read this opinion as, as endorsing that view. But I read this as a bit narrower than that. I don't think the government necessarily will, I think that we'll go into court and make this and, and say this supports their position. But the fact that it is as to non parties is a, is a different than just, hey, this injunction you know, doesn't allow the government to enforce the law and therefore we, we, the government are irreparably harmed.

So that's kind of where the, the majority lands.

Benjamin Wittes: And well, let, let me, let me see if I can summarize that in very 40,000 foot high altitude. If Anna Bower sues the government or saying, I'm challenging this policy, and she wins, and she gets an injunction as to enforcing that policy against her, the injunction has to be limited to her or her co-plaintiffs.

There could be a class that's very large that includes a lot of people, but you can't have an injunction that really goes beyond the remedy that the particular plaintiffs need and stops the policy everywhere. Is that a fair summary?

James Pearce: I was with you until your very last word of everywhere, and the only reason I'm not with you on everywhere is that I think it could reach everywhere. It could not reach other people. Right, but not everyone. Yes, exactly right. Exactly.

Benjamin Wittes: So broadly speaking, the majority's position here is hey, a case in controversy is a case in controversy between a plaintiff or a set of plaintiffs and a defendant or a set of defendants. And unless there's some very specific authorization to do so, you can't use equity to say, we are going to make everybody in the, everybody a plaintiff even if they didn't sign up to be a plaintiff, unless you've styled it as a class action.

James Pearce: Yeah, I think that's right. Another little knit because I guess as a lawyer I like to knit. They don't actually use the case in controversy language 'cause they say they're not actually doing this as a matter of Article three. They're doing it as a matter of interpreting really The Judiciary Act of 1789 principally.

But there is language towards the end and I think that they would probably, the majority would probably say the same logic and and reasoning would apply as to a case or controversy Article three requirement.

Benjamin Wittes: Alright.

Anna Bower: So, but wait, can I, can I just clarify because my understanding as to how this impacts the birthright citizen citizenship cases themselves is that the court said, you know, yeah. If you've got an individual plaintiff who is suing, you know, it can only the executive order can only be enjoined as to that individual plaintiff or their co-plaintiffs has been said. But then in the cases where the states have brought. These actions challenging the birthright citizenship order.

There are these policy reasons about, you know, we don't, we can't have a patchwork citizenship, these patchwork citizenship rules because the way that our, the states people travel between states, you know, that kind of thing. And so it could very well be the case that now SCOTUS has said, let's go back to the district courts and see if they still think that these nationwide, this nationwide relief is appropriate.

So we still could have a nationwide injunction in the birthright citizenship cases once it goes back down to the district courts. Right.

James Pearce: So, again so, so nationwide injunction, there, there definitely will be nationwide as to the particular plaintiffs. But as to universal, right? I think you're, you're hitting on–

Anna Bower: So that's what I'm getting at. Right? Right. So the distinction between the two.

James Pearce: Well, but, so it's, it's a little different, I think in so far as for the states, the you, you are right to say that the majority says, look, it's a little bit hard to figure out precisely what sort of how broad the state's harms are here, because the state's not just an individual challenging, you know, Hey, I'm about to lose my, my citizenship.

It is, we are providing all these services, or we've got all these obligations that depend on whether someone is or isn't a, a, a citizen. And so the bottom line is the court doesn't offer a whole lot of guidance, but does suggest as you're, as you're saying Anna that when this goes back to lower courts, lower courts have to craft a form of relief that could end up looking at least as to those states that have challenged it very much like or sort of function analogously to a universal injunction for those in that state.

For, for individuals in states that have not brought the challenges. And I think maybe it's something like 28 or some that have, and I think this probably tends to fall out on a red state, blue state kind of, you know, gen generally speaking divide, those folks are going to have to most likely file a whole lot of class action suits or individual suits to, to be sure, to benefit from the kind of injunctive relief.

And I should say the, the particular plaintiffs here haven't lost their coverage. This is just coverage outside, of course, of the, the plaintiffs to these to this set of three cases, this set of litigation.

Benjamin Wittes: Alright, so we have three litigations. We have three dissenters. They are clearly not happy with this, and they are, I would say, conditioning a great deal of the public dialogue in response to it. What do they have to say?

James Pearce: Yeah, so it's, it's Justice Sotomayor writes the, the principal dissent joined by Justices Kagan and Jackson. And then Justice Jackson writes the dissent just for herself. The Justice Sotomayor dissent is, 40 some odd pages. I think it's, it's considerably longer than the majority opinion.

And as I mentioned before, it really sees this case and so does the Justice Jackson dissent as essentially blessing what the, the dissent views and frankly, courts of uniformly so held as a, as a constitutional and sort of indisputably unconstitutional practice. Namely this idea, this, this effort to revise or, or, or undermine birthright citizenship.

It, it, it goes through the technical analysis as well, right? It, it goes, and it, it sort of fights the battle on the same terms as the majority. It says, well, you don't quite have the history, right. There are in fact cases from around the time of, of Ancient England and, and, and early, you know, American practice that, that, that, that sort of resemble the kind of universal relief we see now.

And, and they, they rely on the the descents or the sort of my descent on the bill of peace. And also makes the complete relief argument. But really I think kind of animating, as I mentioned before, both the Sotomayor dissent and very clearly the Justice Jackson dissent is this sense that the, the court is stepping back and allowing unconstitutionality to kind of roam the land while you know, the, the Supreme Court could, could step in and, and stop it.

And that's, that's kind of really the flavor of the dissents that that comes through.

Benjamin Wittes: Sorry, I was muted. Alright, so I wanna, I, I don't wanna ask who's right here, 'cause that gets into all kinds of subjectivity and, and views of jurisprudence, but I'm trying to figure out how much really turns on this. So it seems to me if you, if it was yesterday, you file, you know, Anna Bower v. Kristi Noem.

I don't know why Anna's our plaintiff today, but she is. And you know, you file Bower v. Noem and you ask for a universal injunction. And if it's today, you file Anna Bower as the named plaintiff in a class of people who, you know, have red hair and live in blurry rooms. And you ask for an injunction affect, you know, all members of the class.

How is life different? Other than that, our hairs are standing up on end and we're how is life really different in a world in which you style everything as a class action rather than style everything as an individual action, but ask for a universal injunction?

James Pearce: Yeah, I think it's a great question and I think time will tell, but my initial instinct is that. It's not gonna end up looking that much different in the world that we now live in. We've already seen a handful of litigants bring class action suits. One in one of the three cases that was up in front of the court. That's the CASA case. I think another one in the District of New Hampshire. There may well have been others since we've started recording.

And so I do think that that class action mechanism will be one that is widely used and essentially one that the, the court the majority identifies as the, the sort of the appropriate. Now the appropriate way to do it. Now there are gonna be fights about whether there are appropriate classes fights over certification and the kinds of things that come up, questions of typicality commonality, all of that.

But I don't foresee in this particular case that that's going to be particularly hard. Right? I mean, it's a pretty defined class. I mean, it's a pretty defined class.

Benjamin Wittes: You're born in the United States and the government doesn't want to acknowledge your citizenship.

James Pearce: Right? And, and I should say, I didn't say this before, but as has been widely reported, the opinion makes clear that the executive order does not go immediately into effect.

There's a 30 day period between the end of the, the, today, the issuance of the opinion and, and before it could go into effect. And during that 30 day period there is going to be a lot of litigation, a lot of these class action I think cases brought efforts by, in, in the, the existing cases to, ensure that the injunctive relief already issued is, is appropriately fit to the, to the challenges and to the point that Anna made earlier.

I think for affected individuals in states that have or do also challenge the, the executive order, those folks are likely going to be covered. So I think that the big question will be whether there's sufficiently kind of active class actions and class certifications done in, in states where that are not themselves challenging the executive order.

Benjamin Wittes: So one last question on this subject. There was an issue at oral argument, and by the way, I do encourage people to listen to the oral argument in this because while the opinion may be fractured along ideological lines, the oral argument really was kind of the court at its best sort of thinking about this issue in a in a kind of an elegant, and I thought very thoughtful way.

And in a I'm a little bit disappointed actually after that argument to have this divide the way it has in a kind of ideological lines sort of way. But there was this issue that arose in the, in the oral argument about, you know, the, the court. The, the executive branch could lose and lose and lose at different courts of appeals and then not appeal.

And thereby never get a ruling that binds it everywhere. And because the solicitor general actually, I thought quite shockingly, frankly, would not commit himself to the idea that the executive branch would honor a circuit opinion throughout the diversity of geography within the circuit. You could end up with real dis uniformity in the law among over.

A long period of time and I'm curious whether anything in the Barrett opinion ameliorates that or whether one of the consequences of this opinion is that the executive, just as long as it doesn't ask for cert in any of these cases, never gets a kind of brown versus Board of ed moment where it says, you know, now there is an authoritative opinion that says birthright citizenship is real.

James Pearce: Yeah. There's nothing in the Barrett opinion that ameliorates it, but there is something that addresses it, which is that at some point, and I, I can can't remember where, where in the opinion the. The Barrett address, the sort of raises this specter, oh, the, the government could, could lose everywhere, but just se seek, seek cert.

And I think quotes from the, something in the transcript, which actually I didn't remember from oral argument, something to the effect of the solicitor general says, you know, if, if if they lose, if the government loses, it will seek cert. And so, that is essentially it almost, it almost says it, it, it takes, I don't wanna say on faith, but it, but it credits the majority opinion credits that representation as essentially I think assuming that the Supreme Court will have the final say, ultimately on birthright citizenship.

Benjamin Wittes: Okay. I don't mean to sound, I don't, I don't mean to sound like a raging lefty, but what actually commits the government to that. I mean, there's an estoppel principle. If you make an argument that says we take the position that X, that the court can say you, you later can't take the position that not X, but there's no estoppel position that says if you say you're gonna seek cert and then you don't later seek cert, we can force you to seek cert.

What? Why is Amy Coney Barrett confident that John Sauer is, is for real on that?

James Pearce: That that is a that is a great question. And the dissents may, maybe both of them certainly Sotomayor in a footnote I believe treats the majority as, as overly credulous on this point. And there, there is, there is nothing that would force the government to, to ultimately come back to the court.

Justice Kavanaugh, interestingly, in a, in a concurrence sort of, sort of suggest this, that says, look, the court ultimately is the Supreme Court, although all this stuff happens in the district courts, it all, all ultimately comes before the Supreme Court. So we are, we are, we are going to have to weigh in on this though again, not clear that the, the, the government would seek cert.

So I found that a very unsatisfactory part of, of the opinion. And, and it, it was interesting because I did, I recall Justice Barrett in the argument being among those maybe surprising to observers who was pressing the government more and giving the, you know, sort of questioning, you know, you can't really be serious, that you wouldn't honor, you know, court of appeals decisions in the relevant circuit.

And then to see, hear a, a kind of almost, I won't, I don't wanna call it flippant, but a, a quite you know, readily just sort of seeming to, to credit, as I said, that the government would seek certain, so that the, ultimately the, the Supreme Court would have the final word, a little hard to square. And I don't, don't quite know what to make of it.

Benjamin Wittes: I'm just going to say this here. Everybody should be hoping for a circuit court opinion that affirms the government's absolutely outrageous position here because without that, there actually is no guarantee that the Supreme Court will ever consider this issue, and I, I, as somebody who deeply doesn't trust the government to allow the Supreme Court to consider the merits of this question or to put it before them, I actually hope for a circuit split irrespective of the merits of the position.

And I don't think there's a single good argument for the idea that birthright citizenship is not available to everybody who's born in the United States. That said, I deeply, deeply hope for an opinion from some circuit, Fifth Circuit that would hold that merely to create a conflict in the circuits that would force the Supreme Court to justify its credulity here.

I, I think it's a very it's a very dangerous thing to take the administration at its word on anything, particularly something that there's no mechanism to compel it to do. Alright, folks. We could talk about this for many hours and there are like a hundred issues, sub-issues that we could talk about.

I'm gonna be writing about it tomorrow. But we need to move on. Because Emil Bove had his confirmation hearing the other day before the Senate Judiciary Committee, Emil Bove, who let's be honest, looks a little bit too much like Klaus Kinski and Nosferatu the Vampire. I spent six weeks with him, as did Anna in court in New York.

This is an immensely talented lawyer. And yet he was controversial. Roger, get us started on this point. What is the latest controversy surrounding Emil Boves nomination to be a Third Circuit judge before in the Senate.

Roger Parloff: Well, just before the nomination hearing, which Anna will talk about Ezez Reuveni, you may remember that name, filed a whistleblower complaint. He's the he was at DOJ he was the deputy or acting Deputy Director of the Office of Immigration Litigation at DOJ. He's a 15 year veteran. And on March 14th, he was promoted to this position or learned that he would be promoted. And and then about three weeks later, he was placed on administrative leave and fired. And this is his whirlwind tour.

And for anyone interested in, the cases we talk about primarily J.G.G., the original Alien Enemies Act case, the D.V.D. case, which is the other, the, the third country removal case, and Abrego Garcia. This is essential reading is 27 pages. We, we, I, I'll try to go through quickly because of all the other stuff that happened this week, but you really owe it to yourself.

It's sort of like, it's sort of like the answer key if you've been following these cases. 'cause you will just be saying, oh yeah, so that's what was going on. And it doesn't, and the worst actor, these are allegations of course. We haven't heard re many responses and, and I can give you some responses.

But it, it, I, it actually implicates more than Emil Bove, although Bove is the maybe the worst actor as depicted. Drew Ensign does not come off well in this. We've, he's a political appointee who's been involved in, especially J.G.G., Deputy Attorney General James McHenry also the top lawyers at DHS James Percival and Joseph Mazarra.

So, it's quite interesting, the, the, the, it all begins on the days promoted, which is also the day that Trump signs the Alien Enemies Act proclamation, though it's still secret at that point. And allegedly there's this meeting. And Bove is at the meeting and he is saying that planes will be taking off that weekend, that means March 15th or 16^th.

Quote, Bove, stressed to all in attendance that the planes needed to take off no matter what. And then there's a remark about the possibility of a court order trying to block them. And then it says, Bove stated that DOJ would need to consider telling the courts fuck you and ignore any such court order.

And allegedly everyone is stunned in the room. And in of, and later that evening and he talks to August Flentje and he's reassured that this isn't really gonna happen, but then the next day, of course is when everyone in fact the, the three planes are sent to CECOT in apparent intentional violation of judge the judge's order Judge Boasberg order.

And and so, that he also confirms. And in fact, he has a, that evening he has a text to Flentje and he says, they joke about the, they may need to tell a court fuck you, apparently, and they joke about being fired. And also they, they, they re reveal that. In fact, you remember on March 17th, two days later, Boasberg has them back.

And, and how suddenly Drew Ensign is not present that day. And it's a, a g another lawyer who's never been on the briefs before named Abhishek Kambli. And he, and, and, and Reuveni says, yeah, that's because what Boasberg suspected that Ensign didn't want to be there or Ensign to, to answer the questions.

Benjamin Wittes: Let me just cut you off for a second and say a word about. As you know, James probably has a better sense of this than I do, but I think of Erez Reuveni as a guy who's litigated a lot of the more aggressive positions on behalf of the government, on immigration matters. I don't think of him, you know, he's, he's being portrayed right now as a sort of Democrat radical within the, just an embed.

I think of him as a pretty hard line Justice Department, career official, who's willing to argue a lot of cases that are, that take pretty tough positions on immigration law. Do, does anybody have a sense of Reuveni that's either consonant or dissonant with that?

Roger Parloff: He I'm sorry, James, do you wanna say something–

James Pearce: Just, just briefly? Yeah, I, I, I, I didn't know him personally. I exchanged it a couple emails with him, but I was familiar with kind of the positions that he was taking on, typically on behalf of the Office of Immigration Litigation and I, I would say that my view is consonant with what you just described, Ben. Yeah. So,

Benjamin Wittes: So understand this as a, you know, this battle between Bove and Erez Reuveni when Erez Reuveni comes out as a, as a whistleblower here, this is not like the deep state left, you know, that actually believes in, you know, that, that DEI should be the gospel of the government executive branch, right? This is somebody who's willing to litigate, you know, politically unpopular positions on behalf of the government.

And by the way, I got no problem with that. I think the government has legitimate interests that are not politically popular and, and you know, by the way, August Flentje is, you know, represented the government in a lot of Guantanamo cases, that I was the only person in the United States who was willing to give the government a fair, you know, a like, like treat as, as a reasonable position that they might be taking. Sometimes the government takes positions that are not politically popular and they need people like August Flentje and, and, and Erez Reuveni to make those arguments.

But I just want you to understand this is not the left deep state taking on the Trump administration. This is the career bureaucracy of the United States that is perfectly comfortable standing up in court and having their asses handed to them on a platter. Because their client, ie the government of the United States led by Republican presidents who were taking positions that American, you know, American liberals find appalling.

Don't, you know, they're comfortable being the person who stands up in court representing that. And so I just want you to keep that in mind as you listen to what Roger's describing.

Roger Parloff: And he appends to his complaint about seven pages of, of mainly commendations at the DOJ. And there's three photos of commendations that he received during the first Trump administration.

And they are all for things like work, his work on the sanctuary cities unit and things that are you know, or close to Trump's heart at that time. So that's consistent with what you're describing. One last thing before leaving J.G.G., it, he does seem to say it was Bove that came up with, he alleges that Bove that came up, that with these theories that oral orders don't count until they're written down.

You can, you can violate them. And that once the you know, plane leaves, the U.S. airspace the, you can't reach the defendants either. Anyway, that I'll move on to what it says about D.V.D. This was the main thing here was that after the March 28 TRO that Judge Murphy entered to, to begin to stop these third party these third country removals without due process.

He, you know, just a matter of course, se sends the order to the DHS and to do Department of State to confirm that they have seen the preliminary injunction and try to get confirmation and he can't get confirmation. And at some point he's actually instructed orally stop sending these emails, seeking confirmation.

And and I think in this pa, this area, James Percival and Joseph Mazarra are sort of the, the some of the people that are implicated if what he's saying is correct, the Abrego Garcia, obviously I've done no independent research and have not sought comment from them, so I don't know what their view is.

Abrego Garcia, it's interesting he says that that, you know, after that hearing where you know, well of course the first thing he did was he. I think we knew this is that he attempted to do what he would've always done for the, you know, for the previous 15 years when there's an administrative mistake, you try to get the guy back.

And and he was sort of astounded that nobody was helping him arranged to get the guy back from, from El Salvador. He couldn't quite make this out. And then people begin getting angry with him after he, they, he submits a brief and that everyone is signed off on. And, you know, obviously the judge orders that he be returned and people begin asking, why didn't you argue that he was a terrorist?

And and this is and, and, and it would, it puzzles him 'cause there was no real there was this very murky evidence that he might be involved in MS-13 and what the theory is becoming. And, and, and, and the implication is that the White House gets involved in this argument, may, may be the source of this argument, the White House.

We, we don't know more specifically than that. And this is the argument. And, and then he is told to put this argument in the appeal, and he doesn't wanna put it in the appeal because it's procedurally improper. It wasn't argued to the district judge, but also because he thinks it's frivolous and wrong, which is, you know, the theory became, and we've seen this in other cases too, like Christian, the in also in Maryland the theory becomes, well, remember secretary Rubio declares MS-13 to be a terrorist organization.

And so the theory is that this causes. It makes him ineligible for the withholding of removal that he had already obtained in 2019. And the theory further is that that removal vaporizes and now they can just send him to CECOT. And and, and, and, and Reuveni is saying that can't possibly be, you need to reopen the case.

You go before the immigration judge, you make your argument, you try to prove that he's an MS-13, you know, you can't, this is all wrong. And that's apparently he won't sign that brief and that's why he's put on administrative leave and, and, and then fired. It's very worth reading the whole thing.

Benjamin Wittes: It's 27 pages, I believe, and it is actually a gripping read.

Roger Parloff: Yeah.

Benjamin Wittes: Anna, one day after this document becomes public, the estimable Emil Bove goes before the Senate Judiciary Committee for his confirmation hearing to the Third Circuit Court of Appeals. Oh, before we get to that, I wanna ask James a very quick question, I think has a one word answer. You have a 15 year career in the Justice Department. Yeah,

James Pearce: Yeah, just about I I did. Yep.

Benjamin Wittes: Yeah. How many times in that 15 year career did the deputy Attorney General or his designee order you to make an argument that you can, in a Republican or Democratic administrations on any subject, order you to make an argument that you found A) procedurally barred and B) frivolous.

James Pearce: That never happened?

Benjamin Wittes: Did anything remotely like it ever happen?

James Pearce: No.

Benjamin Wittes: Were you surprised to hear Erez Reuveni say that Emil Bove had ordered him to make an argument in a high profile case that he regarded as frivolous and procedurally barred?

James Pearce: I wish I could say I was surprised. I I was surprised or am surprised that someone from the Justice Department would ever be directing or suggesting that an attorney from the Justice Department do that. But, unfortunately, I'm not entirely surprised that Emil Bove is alleged to have done that,

Benjamin Wittes: But it's fair to say that it's radically different from anything you experienced in your own career in the Justice Department.

James Pearce: Absolutely.

Benjamin Wittes: Alright, Anna. So one day after the allegations arrives that Emil Bove did something radically different from anything James experienced in a 15 year career at the Justice Department, including some high profile cases the man goes before the Senate Judiciary Committee. You and I both watched that hearing. Tell me about your experience of it.

Anna Bower: Yeah. Well, Ben, I gotta say, I, it seems to me that it doesn't seem like a good sign when a nominee for a lifetime federal judgeship has to start his opening statement by saying something to the effect of, I am not a henchman. Which seems to raise some questions about whether or not you might indeed be somebody–

Benjamin Wittes: He thinks the lady doth protest too much.

Anna Bower: But that is exactly what Emil Bove started his opening statement with before the Senate Judiciary Committee. He portrayed himself as someone who has been kind of wrongfully maligned by the mainstream media.

He, it, it portrayed himself instead as a, you know, small town guy, a lawyer who's committed to the rule of law, who, you know, never expected himself to be on the world stage that he was kind of, thrust into when he was called up by Todd Blanche to work on the former president's legal team. And, and then of course, the now current president.

 But that is kind of how he portrayed himself. In terms of the questions, I would say that the questioning focused a lot on kind of three categories of allegations that have been made about Bove. So one is, as we've discussed this whistleblower letter. Another is the mass firings of FBI officials and DOJ officials who worked on the January 6th prosecutions. And then finally the Eric Adams ordeal in which he was accused.

And I will say it's something of a pattern because accused by, you know, career Justice Department attorneys or people who were otherwise like Danielle Sassoon, the acting attorney general at SDNY before she resigned over the Eric Adams matter. Someone who had kind of cons, more conservative credentials accused boby of of conduct related to the Eric Adams matter. And the court itself kind of more or less said that everything smacked of quid pro quo.

So those are the kind of three issues that seem to come up over and over again. And a lot of the questioning, especially by the Democratic senators it seemed to me that it wasn't until. We got to, I would say Adam Schiff, maybe some of the questions by Cory Booker that there was really effective questioning by some of the senators about these issues because everything was more general in terms of how Bove was able to respond.

He was kind of able to lawyerly you know, provide responses that were kind of, you know, oh, this is inaccurate. There was a lot of, evasive responses. And then also there was a lot of claims of, for example, privilege or deliberative process, those types of things. And certainly it seemed like, Grassley, the chair was trying to steer questioning away from issues that might touch on privilege or deliberative process.

But we then get to Adam Schiff and he very directly asks questions that, you know, quoting the, from this Reuveni complaint and, and specifically things like. Did you say anything of, of the sort that is related to this allegation that you said that the DOJ might need to consider, the telling the courts ‘fuck you.’

And it's wind shift gets very specific that all a sudden Bove says I cannot recall. I do not re recollect saying anything of that sort. And again, this is something that allegedly happened three months ago and is something-

Benjamin Wittes: That is not the thing you forget, right?

Anna Bower: Not the sort of thing you forget saying if you're saying, oh, maybe we should consider saying ‘fuck you’ to the courts if there's an injunction that's issued. And then the other interesting thing too was that Schiff asks very directly. Did you say that these planes that were going to take off pursuant to the forthcoming Alien, Alien, Alien Enemies Act proclamation, did you say that these planes needed to take off no matter what?

There's a long pause and then Bove says, I certainly conveyed the importance of the operation. So, so those were some of the more interesting parts to me because it seemed to be very convenient that he could not recall saying something as extreme as we need to consider telling the courts f you.

And then, you know, did not totally deny saying, you know, these planes need to take off no matter what. But Ben, you wrote a piece about this. What were your thoughts and what was your impression of the hearing?

Benjamin Wittes: Alright, so I wanna start answering this with a mea culpa, which is when Bove was appointed to be acting deputy.

I was actually encouraged by that and said, so on Lawfare Live on the theory that Bove is an extremely impressive lawyer. And this is not a man without talent. He's not a man without skill. He's not a man without intellect. And when you think about the usual Trump appointees and for my sins in life, I once coined the phrase malevolence, tempered by incompetence.

This is not somebody who is incompetent. This is an extremely talented individual, and I watched him as Anna did for six weeks in the trial in New York, and it was a pleasure to every time he stood up instead of Todd Blanche. It was a pleasure to see the defense argue motion when he cross-examined a witness.

There was one witness in particular, Mr. Davidson, who Emil Bove took a little razor and shredded into small ribbons and left on the floor. He was, he is an extremely impressive lawyer. And I wanna say I was snowed by that. I thought when he was named acting deputy, I thought. Well, look, it is bad form for the president of the United States to be appointing his personal lawyers to be to run the Justice Department.

I really don't like that, but Emil Bove is a talented guy and I got a email from somebody in the Greek chorus who had worked with him in the Southern District who said, you've got this wrong. This is a bad guy. And I wanna say that was exactly right.

The first thing Emil Bove did when he got into office is he fired the James Pearces of the world. And then he went after the Eric Adams prosecution. I mean, this is a guy who's been a dramatically bad actor. This is what malevolence untempered by incompetence looks like. And and so I'm chastened in my response to this by the fact that I am the target audience of the Emil Bove snow job. And I actually fell for it.

Look, he is not, you know, when you think about the classic the classic nominations, controversy, it falls into one of two categories. Either the guy is too ideological you know, thus the sort of bork is the paradigmatic. Highly competent, but too ideological, right? Bork is the classic example of that. Or the person is unqualified.

Bove is neither, he's not particularly ideological. I don't know him to believe in anything. In fact, ideology would be a little bit comforting here. 'cause, you know, ideology suggests that there's some, something you believe in that might restrain you. He's also manifestly qualified, and I'm just gonna be really upfront about this.

The problem with Bove is that he's utterly unconstrained by ethics. And I don't know how to say that politely, but there is nothing, this guy, at least I have not run into the set of things that he will not do. He has run a reign of terror over the FBI. He has fired not just the people like James, who are you know, worked for Jack Smith.

By the way, that is not a legitimate basis to fire people in the Justice Department. But also the group of people in the U.S. Attorney's office, some of whom Roger wrote about who were. You know, young prosecutors who worked on January 6th cases and I'm just gonna be blunt about this. He lied about it in yesterday's testimony.

He claimed that he had done this because they were discretionary employees and or they were probationary employees. And he had done it because he was afraid that the prior administration had embedded sort of political radicals in that's not true. He did it as a retaliatory gesture against all the people who had worked on January 6th investigations in the U.S. Attorney's Office.

And so I think when you put it all together, this is somebody who engaged in a deeply corrupt bargain in the Eric Adams matter who fired people both at the FBI and granted at the FBI, he denies it. He says, you know, that this was an FBI personnel matter. It was clearly directed by or inspired by Emil Bove or, and, and his broader cabal. He was he fired people who had had the temerity to serve their country by working for Jack Smith on, by the way, a set of cases that was entirely merited and that no court has found otherwise.

And that he more recently, and I just wanna put this out front. I believe I see, no, I don't know Erez Reuveni. I see no reason not to believe Erez Reuveni, who has never been found to have misled a court or failed to my knowledge to produce exculpatory evidence to the defense and has been a fairly hard line attorney on behalf of the government, but in an honorable way. I see no reason not to believe Erez Reuveni in his claims currently.

And so I, I look at this guy and I say, six months ago, I was relieved to hear that he would be acting deputy and then pay dad. And that shows that 30 years of experience in watching the courts and watching the Justice Department does not guarantee you wisdom. That's my thoughts on the subject. All right, let's move on.

Anna. It has been a long time since we have discussed the big cheese Kenneth Chesebro himself, and I know his name is pronounced Chesebro, but I refuse to acknowledge that reality he's been disbarred. He blast from the past. Tell us about the big cheese.

Anna Bower: Yeah, it's been a while since we have talked about the cheese.

So Kenneth Chesebro, the alleged architect of the fake electors bought during the 2020 election what, who also pleaded to criminal charges in the Fani Willis, Georgia case. Feels like it was a million years ago now but was actually not that long ago. But Chesebro of course after pleading to one felony count in that case.

He is an attorney and he is was barred in approximately seven states. And so as our colleague, or I guess I should now say, former colleague Quinta Jurecic previously wrote for Lawfare, a lot about various bar investigations against people who were involved. Some of the lawyers who were involved in this 2020 election shenanigans.

Chesebro was one of those people who was subject to a number of different bar disciplinary proceedings. One of them was in New York, and it was specifically related to the fact that he had pleaded two charges in that Fa Willis case. And back in October, we learned that he had been suspended as a kind of preliminary measure.

And, and then there were other further proceedings while the appellate court you know, decide whether there's the, the person who's kind of the referee of the grievance matter decides you know what to recommend in their report, it then goes to the appellate court who then decides what to do after that.

So this is the outcome of that process. The referee in New York actually recommended that he be, continue to be suspended, not completely disbarred pending the outcome of his other criminal case that is still active in Wisconsin. Because remember, Chesebro was particularly very active when it came to those constant electors, and then he kind of came up with more of the legal plan for the other states, but was less directly involved in the other states.

And, and instead of, you know, accepting that recommendation from the referee the appellate court who looked at this said, you know, no, we think we just. Are gonna disbar him. So that's exactly what they ordered. And in that order, they kind of went through the various aggravating factors.

One of them is that it seemed to the court from the record, that Chesebro, while he regretted that he wasn't more clear with the Trump campaign about what his role was and the fact that he, you know, only was making these observations about the elector scheme as a kind of preliminary thing and that nothing was final you know, he kind of, it regretted that he wasn't more clear about the fact that, you know, these weren't instructions that this wasn't a finalized kind of legal plan.

He did not seem to show a lot of re remorse according to the appellate panel. And, and so that was one of the aggravating factors. And then also just the kind of. Fact that the charge that he had pleaded to in Georgia was something that went directly to you know, disrupting the constitutional order.

They made comments about that. And so then ultimately they come down on the side of, you know, we're not gonna accept the recommendation of just keeping him suspended, pending the outcome of this Wisconsin matter. Instead, we're gonna disbar him. I believe he is still has other pending bar investigation matters in some of these other states where he is barred.

But in, in New York, he is now disbarred. And so it's again, another example of people like Jeffrey Clark, John Eastman who regardless of what's happened in the criminal cases in which they've been investigated or indicted have suffered professional consequences for their conduct related to the 2020 election.

Benjamin Wittes: Alright. I am old enough to remember, I don't know if some of you are, that we used to be concerned about military and National Guard deployments in Los Angeles. I know. It's like, you gotta stretch your memory for that. But it was a thing that, you know, long, long ago in a galaxy far, far away people thought was interesting and important. I hear we have had a new court order in regard to that mythical subject.

Anna Bower: Yes, we have a new court order in the Newsom versus Trump case, which I believe is what you're referring to. This is the national Guard ca, the federalization of the National Guard case. And recall that previously the Ninth Circuit Court of Appeals put on pause, Judge Breyer's order in which he issued a TRO or as they construed it, kind of a preliminary injunction that would have barred Trump's federalization of the guard in California.

And so you might be wondering, as we discussed last week, what's justice, what's Judge Breyer? Excuse me, Judge Breyer. Remember, it's the brother, not the justice. What does judge know? It–

Benjamin Wittes: From listening to him they, they sound really, really similar.

Anna Bower: It's really crazy how similar they sound. But as we discussed last week, there's this question that was lingering when it went back down to the district report about what does Judge Breyer still have jurisdiction over because.

Even though the, his previous order was about this question of the statute the section 12406, and whether or not Trump was authorized to federalize the National Guard under that statute, there was this remaining question that had still been kind of left unanswered by both the Ninth Circuit and Judge Breyer about the Posse Comitatus Act.

That is the statute that generally prohibits the use of military troops for domestic law enforcement purposes in California had argued that there were these potential Posse Comitatus Act violations that were happening on the ground in terms of, you know, how the troops were being used, but it wasn't quite ripe yet.

So whenever this in order comes back from the Ninth Circuit Court of Appeals, that is still a live issue. The parties brief it, but both of them actually agreed, both the government and the plaintiffs that. Judge Breyer still has, you know, some type of jurisdiction over that matter. But the government wanted, you know, just to go straight to a ruling.

Whereas the plaintiffs requested some expedited limited discovery on these questions of like. How are the troops being used? And is that a violation of the Posse Comitatus Act? There was also, as I mentioned last week, a question about the duration that they would be deployed. Judge Breyer says, you know, I'm gonna grant discovery.

So according to the, as to the Posse Comitatus Act issue, I should say he says, I don't think that the timing and the duration issue is quite ripe yet because where there's the 60 days that these National Guard members are supposed to be deployed is not up yet. So he doesn't grant discovery as to that, but he does say I'm gonna give you discovery on the Posse Comitatus Act issue.

So we have a very short discovery period that's supposed to wrap up. By July 15th, I believe, is when the parties are supposed to file supplemental briefing based on discovery that includes potentially depositions you know, written interrogatories, document requests related to how exactly the government is using the military troops in California.

So, that this litigation will continue. And we I think very well are going to get some more orders from Judge Breyer on this question around specifically the Posse Comitatus Act.

Benjamin Wittes: Alright, James, the government has figured out a clever way of dealing with court orders that it doesn't like. I'm not sure I've ever heard of this strategy before, but it's suing the courts. And I didn't, I, I guess I did know you could sue a court because the Damon Keith case, the famous surveillance opinion is styled as U.S. v. U.S. District Court.

So I did, and of course, in the mandamus context, you can, the court can be a defendant, but by and large courts adjudicate lawsuits. They are not the subject of lawsuits. What is the Trump administration doing, suing the U.S. District Court for the District of Maryland?

James Pearce: I mean, maybe the question is why only the District of Maryland? I mean, you know, you may as well just kind of go after the whole judiciary at this point. But yeah, this, this arose this was a lawsuit filed earlier this week.

And the, the backstory is that in late May the chief judge of the District of Maryland, Judge George Russell put in place a standing order, which is not an unusual thing for district court judges. Usually it's the chief judge who, who does that. And this standing order basically said, given the influx of habeas petitions in the immigration context and the fact that we're seeing some of them outside of normal operating hours we are putting in place a a rule that for any 2241 habeas petition in an immigration matter there's an automatic stay that lasts for lasts until 4:00 PM on the second business day.

And during that period, the government is enjoined and, and restricted or, or restrained from either removing the, the subject of the habeas petition or altering their legal status. Frankly, it, it reads kind of like, an administration matter in terms of like administering the courts, right?

You've got a whole lot of of things coming in. You wanna make sure that it is, it is handled in an appropriate manner against the backdrop, including from what we saw in the Supreme Court itself. And, and I'm sure Roger will correct me, I believe it was the A.A.R.P. case where the Supreme Court itself said the government is ordered not to remove the, the petitioner pending further order of the court.

So in some ways it, it was a kind of a, another version of that. And I think even in that litigation, there was a whole lot of fighting. Again, I know Roger will, will, will, will help me out if I've got this wrong, but, you know, whether the judge acted in a certain amount of time, whether it was 45 minutes or 14 hours, and, and I think Judge Ho on the Fifth Circuit said, look, you know, what do we think we are kind of a Denny's that's open 24 hours?

And so in some ways what the, what the district of Maryland through the chief judge had done, was put in place. What struck me as a pretty reasonable mechanism to just ensure that somebody who has filed a habeas petition isn't removed in the day and a half in a day and a half period. And so, so that's the backdrop on, Tuesday of this week, as you mentioned, Ben, the government's res response was to sue the entire bench of the District of Maryland.

And basically say this is a another, I think they say, say something like another regrettable example of the overuse of, they say nationwide injunction, which is interesting because it's, you know, going back to our earlier conversation, you know, no real problem with nationwide injunctions, but they also say this is inconsistent with immigration provisions that strip from, from district courts, the ability to enter this type of relief.

These kinds of things have to be individualized. And so, you know, 22-page complaint sues all of the judges as, as mentioned and says they violated the rules on preliminary injunctions. It's all in equity, by the way. Also, to go back to our conversation about law versus equity it violates the, the local rules and it, and it violates certain jurisdictional bars, mostly in the Immigration and Nationality Act.

Alongside the complaint, the government filed a motion for all of the judges to recuse themselves, which strikes me as, as pretty, pretty straightforward right. I mean, if you're all being sued, you can't adjudicate a case in which you are yourself a defendant. And so the government asked the chief judge to whom the case was actually ultimately assigned to refer it to the chief judge of the Fourth Circuit, which is the circuit in which the District of Maryland is based to then in turn assign it out.

That is what the chief judge of the District of Maryland has done. So the, the case has been sent to Judge Albert Diaz, the chief judge of the Fourth Circuit, presumably for that the case then to be picked up and handled by a district court judge. Interesting, I, you know, I unclear to me, does Judge Diaz just kind of pick someone?

You know, I, I imagine that the administration probably has pretty strong views about the, the judge before whom they would like this case to go. But, you know, as you said, Ben, this is pretty unusual. The only case I've ever heard of is the Judge Keith one. So I'm not sure there's a lot out there as guidance in, in how to handle this.

And honestly, I mean, my gut on this is, this just strikes me as a preposterous overreaction on the governments not to mince words. So, you know, again, I don't, whatever the court just did, the Supreme Court just did in the, you know, universal injunction context. I, I have a hard time thinking that the justices are gonna see that a day and a half stay to ensure that people are not removed, is somehow this vast overreach of, of, of judicial authority. But we'll see.

Benjamin Wittes: I just wanna say, if you, if you have to go back to, and I believe the Keith Case is ‘72 to a Supreme Court case that looks that he's even styled as anything like U.S v. U.S. District Court you're probably not dealing with something that has present reality. Speaking of things that are a little bit out of just out of joint with our current reality, let's talk about executive orders of attained.

We all know what a bill of attainder is, which is when Congress passes a law labeling you a criminal. Since we're picking on Anna today, you know, the Anna Bower is a traitor act. Anna Bower is a traitor, a biz law. But what Roger is an executive order of attainder. And why was the government in court with Mr. Zaid, Mark Zaid this week?

Roger Parloff: Yeah, Mark Zaid is a very important national security lawyer, and he was one of about 15 named people that was hit with a executive proclamation on March 22. It and it took away the security clearances of these people. Letitia James, Alvin Bragg, Andrew Weissman, Hillary Clinton, Liz Cheney, Kamala Harris, Fiona Hill, Alexander Vidman, Joe Biden.

I've left out a few, but number four on this non alphabetical list was Mark Zaid. Zaid represented a whistleblower who the, the whistleblower who led basically to the first impeachment. And so it, it's a very. I important and interesting case in a way. So it, it bears a lot of similarities to the law firm cases.

And it's it's, it's challenged on many grounds, First Amendment due process, but also executive bill of attainder. And this is at the preliminary injunction stage. There was a hearing today. He's trying to get his security clearance back. The and actually he's saving the exec, he is gonna argue bill of attainder, but at this stage, he's only arguing the easier points. None of them are actually easy, and the thing is that a security clearance is usually different. A security clearance is the, the decision making. If you go through a reasonable process is unjusticiable

It's not just Trump saying that it really is. You know, there's a, a Supreme Court case, there's a D.C. Circuit case, Lee v. Garland. So the decision is really non-viewable. And so, here, that's his difficult situation here. It was so un, you know, so vindictive. It was without any process whatsoever.

Obviously from the company he keeps here, you sees simply viewed as an enemy. And in fact Tulsi Gabbard went on Megan Kelly and, and talked about how, how fun it was to deprive these people of their security clearances. And because of the nature of his practice, he's this, national security it, it, this affects him more.

You know, it, it really takes him out of business. It, it really affects his. So the stakes are very high, and yet the legal arguments are very difficult. And so, eventually there will be an argument that it's a bill of attainder as well, which really only by its terms, it's in the first, it's in Article One, Section Nine, clause three.

So it, by its terms, it's saying Congress can't do this. There's also one in Section 10 that says, states can't do this. But a lot of people have argued a four. If Congress can't even do it, how could the president alone not carrying out any law whatsoever do it? And so that will be an additional argument. It was hard to read Judge Ali.

Benjamin Wittes: Alright, let's turn to our last major news event of the week, which there are some minor ones, but the last major one is the Abrego Garcia case or cases actually. James and Anna you guys have been following different aspects of this. James, you have the criminal side. What's going on? What's been going on there?

James Pearce: As you say, Ben, it's been a very busy week and in some ways the criminal and the civil immigration side have started to sort of bleed into one another. But it started on Sunday evening when the magistrate judge finally issued an order on the government's request to detain Abrego Garcia, who in in the hearings has made clear he actually prefers going by Abrego.

So I will call, refer to him as that. To, to detain him criminally pending trial, the magistrate judge ruled against the government and it, it actually principally held that the government had not established a basis for detention hearing at all, which is the first step before you get to a consideration of whether there are various factors that warrant detention.

The, the three bases on which the government had sought a detention hearing was that the charge defenses involved minor victims that Abrego was likely to flee or not, or not appear, or to obstruct justice. The one that, that turns out to, to be the most interesting is whether the a charge defenses involve a minor victim.

As folks may remember he is charged with a conspiracy and substantive count of human smuggling, which in and of itself has no element that involves a minor victim. The government had argued that nonetheless the facts or the allegations in the indictment showed that Abrego's conduct involved the, the a minor victim the long sort of opinion from the, the mag of judge, as I said, rejected those arguments and then had a sort of an alternative argument.

But even if the government were entitled to a detention hearing, I find that the evidence is not sufficient to, to detain him. And so, that meant that that abrego would be free, but on conditions, although bracket for a moment, what free means, given that both the government and the mag judge had sort of understood that free really meant in immigration detention, the government quickly sought a stay without a lot of reasoning.

Basically just sort of put on file, we'd like a stay. Then, then followed up with some briefing that the, the stay and an appeal in, in the context of detention goes to a district court. Judge doesn't go to a court of appeals that went to District court, Judge Waverly Crenshaw an Obama appointee in the middle district of Tennessee where all of this litigation is happening.

Judge Crenshaw denied the stay saying that the government had not met the factors that we've all become so familiar with likelihood of success irreparable harm, et cetera, but did think that. That there was a kind of a colorable question on whether the offenses involved a minor victim and said the government had raised questions about whether the district court had treated the evidence in kind of the right way.

The rules of evidence don't apply to detention hearings as they do to, to, to trials. But nonetheless, the, the way that the, the, the magistrate judge weighed the evidence kind of raised some questions for the district court judge. And then kind of the, the legal question of what does involve of a minor victim actually mean?

Does that mean require as Abrego had argued or does that, could that be more broadly construed as a, a case in which the allegations show that the defendant's conduct involved or implicated a minor victim? So that is set on a one track for, for briefing to happen in, in July. Meanwhile, the.

The magistrate judge had set a hearing on Wednesday to talk about potential conditions of release that I think pretty quickly, and Anna can, can certainly correct me if I've got got it wrong sort of, I don't wanna say devolved into, but resulted in a lot of conversations about the nature of the coordination between DOJ and DHS including the, or sort of ending with the, the magistrate judge saying, look, I want some additional briefing on this.

That briefing continued until today. And, and as that briefing happened, there was also then Abrego filing a, a se separate emergency motion given some statements from the government, which Anna can say more about in the, in the civil immigration matter, in front of Judge Xinis suggesting that.

If Abrego remains in immigration detention, there is a non-trivial, if not likely chance that he would be removed to a third country. And so that, so I, as I understand it Abrego is essentially asking to remain in the U.S. marshal's custody in the Middle District of Tennessee, so as to avoid the possibility, if not likelihood, that he would be removed from the country if he is remanded to immigration custody.

By the way, I will just say I predicted this or suggested this very thing when I wrote my piece a couple weeks ago. So I feel vindicated by that. But more importantly he's in a very tough spot.

Benjamin Wittes: I will also just say while we're preemptively claiming credit for predicting things that if Abrego Garcia or Abrego, is in fact deported instead of brought to trial. I will claim that as vindication for one of the five cases that I said would not result in conviction because if having indicted somebody, you deport him rather than bringing him to trial, it reflects a lack of confidence in your case. Anna, what do you think of the on the civil side, what's been going on?

Anna Bower: Yeah, so let, let me bring you up to speed there. As James mentioned, all this is going on where this release order from the magistrate judge is forthcoming. There's a question about what's gonna happen once he goes, presumably from criminal custody to ICE immigration custody, because there's all these statements the DOJ has been making in its filings, I should say, where it all, it kind of, you know, implies like he's gonna, you know, be removed if he goes to ice custody.

They even say at one point that the government would be harmed if he is released from criminal custody because of the threat that DHS would then deport him once he is out of criminal custody. So it seems like, you know, there's this real possibility that he'll be removed before the criminal trial.

That is exactly why the plaintiffs or Abrego's civil attorneys in Maryland in the case before Judge Xinis then go to Judge Xinis file an emergency motion in which they say, you know, we want him taken once he's released, we want him back in Maryland and we want an order, you know, saying you can't remove him from the United States.

The idea being that it would frustrate the court's jurisdiction. And so they cite the All Writs Act, which we've talked about before. That allows courts to basically kind of take some sort of measures or grant some sort of relief if their jurisdiction is kind of, you know, at risk of being frustrated.

And, and so they, they ask for this as an emergency hearing. Judge Xinis has this hearing. She basically says, you know, I am not gonna be able to do this. Today, I'm not gonna be able to do it within the next 24 hours, which is when they estimated that the release order would issue. She's like, I have all these jurisdictional questions that are pending before me even now even aside from this emergency motion and question of, you know, the All Writs Act and all that.

And I need to set a schedule so that we can brief this and then we can have a hearing on it. But I'm not gonna be able to do anything for you guys today. And so that basically is where that ends up is she sets a briefing schedule in, in which basically there's gonna be all these responses to some of the jurisdictional questions.

Then on July 7th, we'll have a hearing on oral argument on those matters. Meanwhile Abrego's, Mr. Abrego's counsel in the criminal case after this hearing, then go back to the judge in the criminal case and say, okay, we wanna stay of the release order because we're concerned about these contradictory statements in which sometimes the government is saying that they're gonna wait until he is brought to trial.

Sometimes in their filings, they're implying that, you know, he's gonna be removed immediately. And there the concern is that, you know, he'll be removed to a third country as, as the government said in this hearing. That was before Judge Xinis just, you know, the day before said my, the DOJ Jonathan Gwen said I, my understanding is that he would be removed to a third country, not El Salvador.

Was not clear on the timeline, but it seemed like it could happen, you know, before the trial. So that's where we are now. DOJ in its recent filing earlier today has agreed to stay the release order that would then be stayed I believe until July 16th, which is the day of the judge, James, am I correct about, that's the day the judge.

Judge Crenshaw, who's the district court judge, has set an evidentiary hearing to decide these matters that the government kind of appealed regarding the release order. And so we'll get a lot more answers then, but until then, it sounds like it's likely that this release order in the criminal case will be stayed.

Benjamin Wittes: Alright. If you haven't noticed, we're gonna run long today. It's just that kind of week. Roger, we have a D.V.D. update. I know it's like years and years and years ago, but there was a Supreme Court ruling in D.V.D. and some fallout from it. Bring us up to speed on where we are in the deportation of men.

I think they're all men to third countries, of which they are not nationals when their own countries will not take them particularly to South Sudan if they're in from El Salvador or Venezuela. But stuck in Djibouti.

Roger Parloff: Yeah, this happened way back on Monday. And the the, this is the the third third country removal case.

So the Supreme Court entered a stay and, and it was one paragraph majority opinion that gave no rationale. It just said, stay. And then there was a long 19 page, I think dissent from Justice Sotomayor and the, the other two Democratic appointees. And the main objection was James was talking about equity and inequity.

You're supposed to come to the court. This is when you're asking a stay that's a form of equity, and you're supposed to come with clean hands. And the government here had very clearly vi well, it, it, it appeared to have violated. The order repeatedly they, they violated Judge Murphy's order when they, after he said, don't send people to third countries without a meaningful opportunity to, to have a meaningful fear, to have a, a reasonable fear interview.

He sent them to I mean DHS sent them to Guantanamo, and then the DOD sent them to El Salvador and they said well, it wasn't D.V.D. You know, we're, DOD isn't a defendant, it was just us. And, and then they tried to send people to Libya and Judge Murphy cut that off. And then they, and then they tried to send people to South Sudan and Murphy got there in time to stop it, but they're, they're still in Djibouti.

So, it was quite a you know, a record of unclean hands. Then there was irreparable harm. We've discussed that before. There, you know, what are the equities here? You've got people that are gonna be deported to, on the one hand that are gonna be sent to South Sudan. And on the other hand, the government would have to wait a couple months or maybe one month until the First Circuit can hear this nevertheless.

And then there was a little bit about the presumptive merits. Like I say, we don't know. The reason for this day, the most likely reason was a jurisdiction stripping provision called 8 U.S.C. 1252(f)(1), which does bar class relief for certain provisions. I won't, I don't think I'll go into the, the details of that unless somebody wants me to, especially since it's a dissent, but presumably that's what this is about.

But as soon as it was done the defendant, the plaintiffs went back to Judge Murphy and said asked for an emergency order, saying, well, don't send those guys from Djibouti to Sudan because the remedial order that you issued, which was, you know, partly sort of. Almost a contempt order to give those guys additional.

The, the due process they weren't given was never appealed. And you know, only the original order, the April 17 preliminary injunction was appealed. And actually the, the dissenters had pointed that out, whether it's only in a dissent, but they had said the, the, the order protecting the people in Djibouti has not been appealed or stayed.

So, the judge said there's no need for an emergency injunction because the original injunction stands. And the government. Instantly went back to the Supreme Court with saying this was lawlessness lawless defiance. And, and asking them, you know, not only to reverse what Murphy had done, but to throw him off the case.

And also alternatively not allow him to issue any more injunctions without first going to the Supreme Court and getting their pre-approval, which I don't know, maybe James can tell us if he's heard of that arrangement before. But anyway I think unless you know, more than me, I think that we are still waiting for a result the Supreme Court to rule on that. It was, it's been completely briefed and over briefed with sir replies and so on. So I, I think that's where that one stands.

Benjamin Wittes: We have an opinion from the Second Circuit, or an order from the Second Circuit in Melgar-Salmeron, Roger. What's that one about?

Roger Parloff: Yeah, just very quick, quickly. This was the he's a former MS-13 guy.

He was, he was seeking asylum and he had lost at the bureau, you know, he had lost in the immigration judge and then appealed to the Bureau of Immigration Appeals lost. And your appeal at that point is to the Second Circuit. And the second Circuit was hearing his case, and the government wanted to deport him and gave him, you know, if you don't order a a stay, we're gonna send him back to El Salvador.

And the, and the government's ordered a stay and 28 minutes later they sent him back to El Salvador anyway. And they, they have called it since a confluence of administrative errors, a perfect storm of errors. And in any event, the judge the second Circuit ordered the government to facilitate his return, which will not be easy.

He's in Alco, which might be a worse prison than aka and I mean, I shouldn't laugh. I mean, it is really a horror, you know, they have the, the, the, the thing, the torture. You know, like, you put you in ice barrels of ice in sort of a water boarding situation. It's, it's unbelievable. So, but the, the, the government is supposed to report back each week on how it's going and how it's, how they're doing, getting him back. I think there's also a warrant for him in, in, in El Salvador, so there's a basis for holding him there.

Benjamin Wittes: Alright, penultimate issue. We have a frog embryo indictment. James, Anna. Is this, is this the end for frog embryo lady or is Kseniia Petrova gonna beat the wrap?

James Pearce: I can just lay out the, the, the, the indictment, what's alleged, and then I'll let, I'll let Anna who, who knows this stuff better, and to predict whether she'll beat the wrap three count Indictment first two are essentially not accurately filling out a customs form to disclose the fact that she was bringing in the clawed frog embryos.

And the second, as I read it, is a false statement sort of when, when being asked by customs and border patrol. Again, not saying that she had so, so one is a, i I I take it from the way it reads. One is a misstatement or a non-disclosure on a form. The second is the interview. I could have that wrong, but that's how I read how the, the two separate thousand and one charges, then there's a third smuggling charge.

That's not. Not. So 1001 is charged all the time in federal cases. That's not unusual. The, the smuggling charge, 18 U.S.C. 545 carries it 20 years stat max, which is interesting, which is for the actual act

Benjamin Wittes: Overcharge?

James Pearce: Yeah, you don't say but, but that applies to fraudulently and knowingly importing merchandise, which is defined as good wares, chattel of every description.

I haven't done any independent legal research, but, but I'd be curious to figure out when one thinks of the term merchandise one does not typically have clawed frog embryos you know, in the forefront of one's mind. But Anna, I may well have more insightful things to offer than, than just the laying out of the indictment that I've, that I've done.

Benjamin Wittes: I just wanna lay this out right here I am on Kseniia Petrova side. I think bringing clawed frog embryos into the United States is just fine for legitimate scientific research. I got no problem with it. And you know, she should have filled out the forms right and asked, do you have any Claude Frog embryos?

She should have said yes. But I don't think you get 20 years. There are bigger law enforcement problems in the United States than the illegal or sort of in your coat enforcement of clawed frog embryos, importing of clawed frog embryos, Anna. Is my girl gonna beat the rap?

Anna Bower: I, I mean, look, I think that there's a, this is a very tryable case is my initial impression of it, based on what we know about the probable cause hearing so far.

And then also one thing I will say that I've done some preliminary research on that doesn't relate to this question, that was a big focus of the probable cause hearing around, you know, merchandise and what biological material is is this question of the smuggling charge, which is the one that carries a maximum of 20 years.

You know, the way that it's structured is like there has to be a predicate. Like, it's like, you know, you brought merchandise in to the United States contrary to law, and then they cite the law that they're alleging that she, you know, brought this, these frog mb embryos in, in violation of, and it's a regulation CFR 11148. 11. It doesn't matter. But it's the, you know, custom and boredom customs regulation that, excuse me, boredom. Look, we've been doing this for an hour and a half, so I can't even speak anymore, but it's a customs regulation that basically says very broadly, all articles brought into the United States must be declared.

And it, it, it's like at the probable cause hearing as we know from some of John Hawkins's reporting, you know, the, the witness wasn't even able to say like, what, that even, it's so broad that it's like anything that is brought into the United States must be declared. But beyond that, I was looking at some of the circuit precedent.

What counts as law under the smuggling statute, and it's in the first circuit, it's, you know, been decided that yes, regulations can count as law under the smuggling statute as the predicate, you know, kind of law that you're violating. But what the First Circuit hasn't decided is actually there's a circuit split over this question of like.

Does the regulat, like, are some regulations excluded as the kind of predicate to this offense? So for example, there are some circuits like the Ninth Circuit, who have said that you can only use the regulation as the predicate in the smuggling statute. If it is one that says like, you know, there's a, there might be a criminal penalty for violating the regulation.

That's not the case with this specific regulation. And in the First Circuit opinion where they say, oh yeah, regulations can be used, they specifically say, we're not deciding the question of whether some regulations might be excluded or not. And then my other impression is that usually whenever you're charging or in it, you are trying a case around smuggling.

It's not just this specific regulation that is used often. It's like they list multiples in the indictment. And here they've just listed that very broad regulation about all articles must be declared. And so I haven't yet seen a case where that's the only regulation that they specify. Usually there's other more specific things about bringing wildlife, like prohibiting bring, bringing wildlife in, that kind of thing.

So that's my initial impression that there are at least some legal issues that whenever we get to like a motion to dismiss kind of stage or you know, on appeal later on, there might be some of these questions that come up. Even putting aside the questions around, you know, factual kind of things that make this case very tryable.

Benjamin Wittes: Yeah, I think. Just to be clear, if you didn't buy the frog embryos and you're not going to sell the frog embryos, it's pretty hard to argue that they are merchandise. You know, not everything that you carry counts as merchandise. And the word implies some, some transaction, financial transaction in a way that I'm just not sure they're in a position to prove with.

I mean, she wasn't running a frog embryo stand at the farm farmer's market, and she wasn't bringing them in for any commercial purpose. I don't know. Alright, last,

Anna Bower: Sorry, can I just say one more thing? Yeah. One of the other reasons, because in the complaint, I believe it when they, before they got a grand jury to indict her, I believe that the complaint, it was just the smuggling charge, right?

It didn't include the false statements. Someone correct me if I'm wrong about that but I think one thing that also could be, what they could be doing in the contrary to law kind of issue might be that there might later on be a kind of argument from the government that even if this regulation, she didn't bring it in contrary, that regulation doesn't count as the predicate that they can use.

It might be contrary to law if she violated, if she made those false statements to the customs officer. And so that might be one reason why they decided to bring these false statements or charges so that they kind of have an additional pros theory of the prosecution.

Benjamin Wittes: Here's a prediction for you about Kseniia Petrova. The only way she gets convicted of anything is if they decide to drop this case or to plead this case down to a single 1001 violation, which would be their way of backing down. Alright. Last issue, Anna. I hear Judge Bates had something to say about wied and sensitive government information.

Anna Bower: Yes. Essentially, so this is the American, oh gosh. I'm gonna, I'm gonna mess up the name Ben, I'm sorry. American Federation of Labor v. Department of Labor suit, which is one of the many cases around doge access to sensitive government data and systems that were brought under the Privacy Act.

Very quickly, because we are, I believe, way over time, I will just say that Judge Bates, who previously denied a motion for a temporary restraining order in this case, debar DOGE access to some of this data today also denied a motion for preliminary injunction. The basic idea being that at this time there's not a sufficient showing of, you know, risk that this data is going to be disseminated you know, outside of the agency.

And so therefore. We still don't have a preliminary injunction in, in that case. So yeah, again, I'll, I'll wrap it up because of we're low on time, but that's the gist of it.

Benjamin Wittes: We're not just low on time. We are 20 minutes in deficit of time. It's like the big beautiful bill over here. Just ballooning the def, the time deficit.

Folks, we are way over. We're gonna wrap up. We will be back next week. Hopefully it will be a little bit less packed with stuff to talk about and we'll be able to get to your questions. My apologies for not doing that. We're gonna be back next week. We will see you then.

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