Lawfare Daily: The Trials of the Trump Administration, March 20

[Intro]

Benjamin Wittes: It is Friday, March 20th, 2026. It is 4:00 PM in Washington, D.C. and if you can't hear it in my voice, I am a bit under the weather. So, be patient. You know, if I start coughing that's the way life works. I am you are watching Lawfare Live and I am Benjamin Wittes, editor-in-chief of Lawfare here with Lawfare Senior Editors Kate Klonick, Anna Bower, Eric Columbus, Roger Parloff, and Molly Roberts, which I think makes this the first time there have ever been five Lawfare senior editors on the show at the same time. I'm not sure about that. Usually we have a public service fellow sprinkled in or something, but this time it's an all senior editor cast.

[Main Episode]

And we've got a lot to cover. So let's get started. With our latest example of cases where, you know, the government just kind of spins a wheel, turns around and points at somebody and says, this is the part where we destroy your life or business, or, and that is of course the AI industry and the Anthropic case.

So Kate, we have government responses now to Anthropic’s suits in both the Northern District of California and the D.C. Circuit. Are there any surprises and what is the government saying in these responses?

Kate Klonick: Yeah, so they filed, the government, filed responses to the Anthropic’s suits on Tuesday before a judge in the Northern District of California.

And there will be a hearing on this what is the 24th? It is gonna be on the 24th on Tuesday. So, one week from the data filing of the, of their answers, there was nothing like, hugely surprising, I would say Alan Rozenshtein a senior editor who covers all this, who no doubt any all listeners are familiar with, has written a really excellent writeup kind of, summarizing the, summarizing like the arguments that the government makes.

And I'm sure that we'll link to that in the episode links today. But essentially it's straightforward. They're not likely to succeed in the merits and principally they argue that 3252 and FASCSA, like, I don't even know there's too many S's and C's and they're all like canceling each other out in terms of like the silence or whatever.

So like, I'm just like, I got good legal advice to just say whatever I thought the acronym was with confidence and that would be what we went. So, anyways, that, that's

Benjamin Wittes: Clearly right, because if you say it authoritatively, then everybody assumes that's, and probably no one's ever pronounced that acronym before.

Yeah, so there is no standardized pronunciation.

Kate Klonick: I think we should just call it the Supply Chain Act. The Federal Acquisition Supply Chain Security Act. So the Supply Chain Act es essentially which was an act about 15 years ago that was designed—Basically it's an anti-espionage suit. And so I think that Alan, I'm just gonna speak for Alan here and channel his excellent kind of writeup of this.

But like, I think that basically what Alan says is correct in the analysis of like the government's brief is correct here. The government says like, listen, we can do this through FASCSA, we can do this through the supply chain. We can also do this through 3252. And we can do this through the, you know, the APA, like the the, you know, the Acquisition Act.

And so like essentially we can figure all of this out and Alan basically has two main points, and so does Jessica Tillipman, who does an excellent, who kind of wrote an excellent kind of writeup about procurement who basically says that essentially like one, they went around this the entirely wrong way for procurement purposes.

So essentially there probably isn't a very strong case for there being a procurement issue. And two, that essentially, like you can't back channel an espionage act into a contracts dispute. You can't like just repurpose this for your own purpose. And so I kind of like the way that that that Tillipman like puts it, which is essentially like you can't just like basically have the president tweet it and the secretary tweet it and then the department reverse engineer an administrative record to backfill the justification for canceling a contract.

And so I think that's kind of right. There's both procedural issues here that the administration failed to follow. Those are not really fully addressed by the government's brief.

And I'm sure that the Judge Lin is going to be taking those into account on Tuesday. To the First Amendment claims. I will just say off the bat they argue pretty like typically that this is conduct, this is contract, this is like freedom to contract. This is not First Amendment type stuff.

And, probably for the purpose of the preliminary injunction, I think that if Judge Lin grants the preliminary injunction on this, it will probably not be for First Amendment reasons. There are much stronger grounds on in like the, in the in the Procurement Act and other types of and other types of issues with the 3252 and Supply Chain Act that are much richer and I think kind of more sound sounding and kind of constitutional avoidance than deciding this on First Amendment grounds, which is extremely kind of, would be a very, will be a very, like, we'll be a very, I don't know, we'll have a lot of debate around the First Amendment issues when and if we decide to reach those.

Benjamin Wittes: And just to be clear, that's because it's not. Obviously because of an, anything Anthropic said that the government did this. It's because it's obviously retaliatory for a position they took—and the position they took is not necessarily expressive, right? It's just like the government wanted you to do X and you refuse to do X and so they retaliated against you.

And retaliation always sounds to some degree in First Amendment principles, but it's not like, you know, they went and, you know, said, you know, wrote an op-ed that said we won't do you know, this or that or the other. And the government retaliated for the op-ed. Is that why it's a little bit mushy to think about it in First Amendment terms.

Kate Klonick: That's one reason. Yeah, totally. I mean, one of the reasons is that there is no nexus, essentially no cause causation, that the retaliation is from speech, right? Like you could basically argue that the retaliation is from like. If there is retaliation that is from a lack of, from a failure to like a denial of conduct or something like that.

But then you get into, I mean, and this is why it's such a kind of a, kind of out there argument. Even if you're sympathetic towards it, you get into the idea that code of speech. And so, like at the end of the day, the conduct that they're demanding from Anthropic is in fact like a, basically kind of is basically kind of, them compelled speech of a sort.

And that Anthropic’s failure to comply with providing that compelled speech through code is therefore the act that is being retaliated against. So that's the nexus. It is like slightly attenuated. And would be a couple of leaps in terms of what we're talking about and what we think of code versus conduct and like code as speech.

There's a lot of things implicated there. There's a lot of downstream effects

Benjamin Wittes: —And that versus speech, whether code is speech has been one of the great unanswered questions in the—

Kate Klonick: You mean—

Benjamin Wittes: Relationship between First Amendment law and tech law since the mid-nineties, early nineties—

Kate Klonick: A hundred percent.

And like, you can argue, we could, I mean, we could have like 10 episodes on this, you know, and like, you know, and we would bore everyone. But essentially Bernstein among other kinds of cases, leaves this question to some say, resolved and others say not resolved. And of course, it changes as you change like the facts.

And so like, and how, and like what you see as the slippery slope of Bernstein. And then there's questions of like, kind of what you see the legacy of Lochner as and other types of other types of questions that are in play here. So in, in short, like the First Amendment issues are absolutely a mess and robust and like this isn't the best place to answer them.

And I don't think that Judge Lin is going to, so I do think that this is gonna end up being kind of, I mean this could just be dealt with kind of cleanly on the, as Alan lays out the, like the procedural failures of the administration. Like to just kind of tweet this stuff and like then kind of backfill versus like kind of create a record that this was a problem.

And then the idea that like, this is not what the Supply Chain Act was for. This is not like, this is for, you know, actual espionage, not procurement issues. So those two things together, I think we'll see Molly's gonna be cover, Molly's gonna be watching the hearing. I'm gonna be watching the hearing.

And I think that we will, we'll report back on kind of what happens with all of that. But it should be interesting. And it seems like, Judge Lin is kind of running a tight court as far as I can tell, and kind of a tight briefing schedule.

Benjamin Wittes: So Molly, will you be at the D.C. Circuit hearing at the Northern District of California hearing or at both, or at one of them virtually—

How do you cover the bi-coastal nature of this?

Molly Roberts: I do not know the answer to that question, although it might be with help, I think I'm not the only one here interested in covering those. So,

Benjamin Wittes: Gotcha.

Molly Roberts: We court reporters will sort it out.

Benjamin Wittes: And for those who are wondering where Alan Rozenshtein is, Alan is in Sweden and where no district court has jurisdiction over the Anthropic DOD matter.

Alright. Excuse me. Alright.

Let's talk about Molly, your favorite subject, the grand conspiracy. 'cause I heard a rumor that there are, like 130 new subpoenas that went out. And so what do we know about the grand jury in the Southern District of Florida and what it's up to right now?

Molly Roberts: Yeah, we know less than I would like to know.

So what was reported this week was that there were more subpoenas out, and in particular that former FBI Director James Comey had been subpoenaed, which isn't really that big a surprise given that the grand conspiracy is supposed to be,

Benjamin Wittes: And when we say subpoenaed, we mean subpoenaed again, right? Because he was subpoenaed months ago, wasn't he?

Molly Roberts: So I'm not sure that we knew that he was in the initial batch of subpoenas, but the very fact that you're asking that question is interesting, right? Because like why wouldn't he have been that says the subpoena issued last week, the reporting says relates to his alleged role in the drafting of the 2017 Intelligence Community Assessment.

We already knew that's what this case was focusing on originally. And so why would he not have been subpoenaed, particularly when what kicked this off was this investigation into Brennan. And I believe that in the referral that John Ratcliffe made of Brennan, there was also referral of Comey. So to me, the most obvious thing is that James Comey would've been subpoenaed.

And I was wondering, okay, well was he subpoenaed then for. Something related to Crossfire Hurricane, is this a new subpoena that had to do with Crossfire Hurricane, because that would signal an expansion of inquiry and the reporting by the New York Times last month indicated that the inquiry was expanding to precisely that.

But the reporting from Axios, which is who broke this story, says 2017 Intelligence Community Assessment. So that's something I'm gonna be trying to figure out and look at is, does this subpoena actually cover more than just that? Because it doesn't feel like huge news if it only covers the 2017 ICA. And then of course, what we also have our eye on is will this expand even further, not just to these 2017, 2016 investigations into Trump and Russia, but also into‑

We know that there've been interviews conducted on this subject, Trump's attempts to get false slates of electors approved and perhaps also the Mar-a-Lago classified document search, which would provide the jurisdictional hook. And then you may have been about to ask about this, but the other thing that I'm gonna be trying to figure out is, did these subpoenas come out of Fort Pierce, which is where this grand jury is, or did these just come out of Miami, which is where all the other subpoenas in this case of which as you said, there are lots and lots, many of them.

My understanding is to people who really haven't been in the public eye, the, they've been coming outta Miami. So has this worked yet?

Benjamin Wittes: Yeah. So Axios has mentioned the number 130 subpoenas. Yeah. And there are a lot of people, everybody keeps mentioning the same five or six names as though this is an investigation that's focused on a number of very specific people.

I have no reason to believe that's the case. You know, I think those are just the people that Axios has been able specifically to identify and whose names it believes readers will know. But alright, I have a really dumb question. I mean, I guess all questions about this subject are dumb.

Molly Roberts: Either no questions are dumb on this, or all questions are dumb on this.

Benjamin Wittes: Yeah, exactly. So, and let the record reflect—given Jim and my relationship, I have had no contact with Jim on this subject. I have no, had no contact with anybody representing Jim on this subject. I know absolutely nothing that is not in the press.

But if I were the government, I would assume that the answers to almost all of these subpoenas, if these are gonna be about the ICA from 2017, is that there are no documents responsive to this request because most people don't, in fact, the paranoid fantasies of the grand conspiracists aside, take home large quantities of documents related to intelligence community assessments.

And so my question is, do we have any reason to think that there, that I mean, I don't know if this is a fishing expedition exactly, but the production of material in response to this might itself be, you know, if the material is classified, might suggest criminal activity. Like that you were so, like why does the government think any of these people has like a cache of, I mean, none of them is John Bolton, or, and I don't mean to cast dispersions at John Bolton, but you know, usually when you're looking for, like, if you wanna know what Jim Comey or Lisa Page, or you know, Andy McCabe did in government, you subpoena the government or you send a document production request to the FBI.

What's the, what do we know about the theory other than that it makes for a good Axios story of subpoenaing the individuals, nine years after the events happened?

Molly Roberts: Yeah, I think it's a really good question. I totally agree that they're not going to be able to get much here because these are classified documents and if these people have those classified documents, then that's a whole other problem.

I think that part of what's going on here is exactly what you said. It makes for a good Axios story. The other part is that this is, in my view, at least a revenge mission, a kind of personal revenge mission. And so to enact your personal revenge against each of the people you wanna get it on, you're going to subpoena them and make their lives individually difficult and make it so they each have to hire a lawyer and go through all of this rather than subpoena the government.

So I think that's one thing too. And I think also part of what is going on here is they want all these individual people somehow involved in this case, because if they manage to establish that these people are part of a conspiracy, they can then encompass many acts that these people have engaged in and bypass the statute of limitations by saying that those acts were somehow related to the conspiracy.

So those are kind of all my small answers to it, but it did, they still face this big problem, right? I mean they need to actually have something on these people and—Right, if it's in classified documents, they can't get it.

Benjamin Wittes: Eventually somebody is gonna file a motion roughly akin to the one the Fed filed in the Jerome Powell case, which is, wait a minute, I don't think there's a theory of criminal liability that gives rise to a good faith subpoena on this.

Molly Roberts: Yeah, no, exactly. Which I guess is partly why you want it in Aileen Cannon's courtroom.

Benjamin Wittes: Alright we will stay on that matter. Roger, speaking of matters that we're staying on, we have another FBI lawsuit against Mr. Patel over firings of FBI agents. What's the latest of on this subject?

Roger Parloff: Yeah, this one just came down.

I don't think it's assigned yet. It's two FBI agents. John Doe one and John Doe two versus Patel and Bondi. It's in the it's in D.C. federal court. They were on the Arctic Frost investigation, which is the one that, between November 22nd and June 23rd, led to the indictment of Trump in the January 6th case conspiracy to overturn the 2020 election.

And apparently one of their names was publicly leaked last in October, this recent October by a Republican legislator. I couldn't get through the whole complaint. It's 41 pages. It may be by Grassley, but one of the Republican legislators. And then on October 31st, Patel, summarily fired both of them.

They are you know, there are procedures if you're gonna fire somebody, and there are even, I think, extraordinary procedures that might warrant summary. But they're extraordinary. None of those were obviously taken. And apparently they were perceived as political opponents or the allegation is simply because they were assigned to that investigation and assigned.

Obviously they weren't, didn't volunteer. It's an unusual suit in that it is pure First Amendment and Fifth Amendment retaliation for First Amendment protected speech and fifth Amendment due process and injunctive relief directly from those. So it's sort of like a Bivens action.

Benjamin Wittes: Kinda like the Anthropic case actually. I mean, except that they were employees instead of a federal contractor.

Roger Parloff: Yes.

Benjamin Wittes: You know, alleging retaliation for you know, for getting assigned to work on and doing your job.

Roger Parloff: Yeah. And failure to follow the relevant law. Yeah. Relevant procedures. Yeah. It's and that's, oh, one of them is a veteran of 21 years.

They go into, without revealing their names, they go into their rather illustrious careers.

Benjamin Wittes: And it's pretty easy. We're not gonna reveal who these people are because the court is protecting their names. They're filed as a John, as John Doe. But if you line up the facts against publicly reported matters, it is not particularly subtle who these people are.

Roger Parloff: Yeah. And we know—Oh. So, you know, you can recognize these two?

Benjamin Wittes: I'm pretty sure I know who both of them are. But I'm not a hundred percent sure.

Roger Parloff: Okay, so one is 21, the other is eight years. He was in public corruption, but he had an unusual job too, which was he was working on a sensitive fraud case and he was the guy who was supposed to brief Kash Patel himself and Kash praised him as recently as October 1st before the October 31st summary firing.

It's on a crisis negotiation team, multiple awards and so on. We know from other FBI cases that one issue is likely to be, can you go to federal court at all? Is there supposed to be some, you know, are you supposed to go to the Merit System Protection Board? Some, it's not easy. Some agents are, some aren't.

It depends on if you're a veteran or you aren't. So, but that's all. I can really tell people at this point.

Benjamin Wittes: All right. We will follow this case as it develops along with, you know, a bunch of other FBI cases.

Meanwhile some judges are getting a little bit prickly. Judge Boasberg fresh off his spat with Jeanine Pirro last week has issued a surprising little order about no true bills in his court.

Roger, what does this order require?

Roger Parloff: Yeah, this is interesting. And it was first reported by Josh Gerstein this week of Politico. Actually the order was issued March 4th, which might have, which I think was before the latest tizzy with Pirro.

Benjamin Wittes: And it seems to be in response to the six members of Congress who a grand jury didn't want to indict for—

Roger Parloff: I think so, yeah.

Benjamin Wittes: Truthfully about military service members obligations in the face of illegal orders.

Roger Parloff: There's actually, you know, and he's it's a very, it's a very sober it's not an angrily worded thing. It's a local rule and it just says based on, several recent matters have arisen.

It says several recent matters have raised the question of whether notice should be provided to the duty magistrate when a grand jury fails to concur in an indictment in a GJO, which is a grand jury original investigation and what we might—

Benjamin Wittes: Call this the passive aggressive voice.

Roger Parloff: Yeah. Yeah.

So, what's going on, and it is sort of unusual, is that there is a rule in the federal rules of criminal procedure that says if there's a case alive already because somebody's filed a criminal complaint or an information, and then the prosecutor tries to elevate it to a felony by getting an indictment, and the grand jury, no true bills that there has to be a notice filed to the and given to the magistrate. It's not public necessarily. It's still sealed typically, but it exists and the magistrate knows about, there's no such thing if it's an original grand jury matter, meaning there's never been yet a criminal complaint, which was the situation with the attempted indictment of Senator Kelly and and the other con congressman.

So, that's what this one says, from now on those situations will need a formal notification. It will remain the assumption will be the default setting is sealed and it can't be released without a court order. So he's gonna try this for a hundred. He did seek the government's thoughts on this change.

He says he doesn't say,

Benjamin Wittes: And I was stunned to find that they opposed it.

Roger Parloff: Does it say that? I missed that.

Benjamin Wittes: I believe they, they issued a statement, I think to Josh Gerstein saying, oh, they opposed, but I could be wrong about that.

Roger Parloff: Okay. The document, I don't think it, it notes that there views were solicited.

It doesn't give any insights into what their views were. And it says that this will be in effect for 120 days, and then he will consider making it a local rule. The thing I had not understood is that in these situations where it's a, it's an original grand jury investigation, there is you don't even have to tell the magistrate the magistrate might, it's not just even a document.

There might be. You don't have to tell the magistrate at all. So there's no real way until now of saying, look how many no true bills. And of course,

Benjamin Wittes: Which really does raise the question of how the press is finding out about all these no true bills. I mean, if the, you know, I, you know, people involved in courts should of course, talk to the press with propriety or not as a member of the press that said you know, if prosecutor walks out of the grand jury room and says to, you know, member of the press, I just got no true bill.

You know, that's a, like a violation of a grand jury secrecy rule. And the defense lawyers presumably don't know about it except in the elliptical sense that they may have been informed that the government was gonna seek an indictment and then one never materializes. So I'm a little curious where all this information about no true bills is really coming from

Roger Parloff: No, it's it's very interesting and some, and it's pretty fortunate, it's pretty fortunate that somebody is going public.

Benjamin Wittes: Yeah. Don't stop guys. Okay. Keep it coming.

Roger Parloff: I mean, that Senator Kelly thing is such huge news and the notion that nobody would've known about it.

Benjamin Wittes: Well, and that somebody disclosed not merely that it was no true bill, but that it got zero votes among the grand jury. I mean, that, that was some detailed information. Yeah. And it's hard to imagine that's Jeanine Pirro’s office, you know, dishing dirt on itself. I don't know, like it's a very confusing question, like where that comes from.

Alright. Meanwhile, in New Jersey, another judge is even more pissed off than Judge Boasberg. Roger, this one kind of took me by surprise. It, I'm not sure I've ever seen a judge throw prosecutors out of his courtroom before. What on Earth is going on in New Jersey?

Roger Parloff: Yeah, this was sort of a perfect storm.

There's a, at least three or four things going on, and maybe a judge who's a little irascible too. It's Judge Zahid Quraishi of the District of New Jersey. I think he's in Trenton. And the case is an aggravated one. Francisco Villafane, charged two years ago with possession receipt and distribution of child pornography material.

So, offense where there's a five-year minimum up to 20 years. 7,000 emails to a minor over a three-year period, a girl that went from 13 to 16 involved videos like, show me you doing this and so on. In April 2025 there's a plea agreement reached stipulated term of 84 to 108 months, which sounds like a lot, but it's about a third of what the guidelines recommend for this sort of offense.

And then twice as the sentencing is approaching, the prosecutor tells Quraishi, oh, you know what? After the plea agreement was reached, we noticed that there's more stuff in his computer and we need to notify some other potentially identifiable victims. And then it develops, in fact, a potentially 116 additional identifiable victims. And so we now know that he's steaming, like, how could you make a guilty plea under this?

Meanwhile, other things are happening over there at the District of New Jersey. On August 21st, Judge Brand says that Habba is, has been unlawfully appointed. That's appealed. And Habba continues to put her name on indictments as the appeal is pending.

So then in December the Third Circuit affirms. So all of those indictments in the interim are now have an appellate issue that they didn't eat. And then on December 8th, she steps down. But then Bondi and Blanche, rather than following one of the ways of appointing an interim or an acting U.S. attorney invent a new theory that doesn't involve anyone's intervention except Bondi or Trump, which is to appoint a triumvirate to head the office.

And then just on March 9th, Brand strikes that down. And he's issues a stay order while it's being appealed. But he says, a stay cannot invalidate, can, cannot validate an unlawful appointment if the government chooses to leave the triumvirate in place. It does so at its own risk. So the next day, Quraishi writes the prosecutor and says, look, do you want an adjournment in this sentencing hearing that's coming up?

Because that way we can sort out what the hell is going on rather than, 'cause otherwise we're gonna need your client to, to try to waive this flaw, potential flaw. The AUSA writes back and says, no, I don't need any adjornment plus, you know this. And he says, among other considerations, this is a victim case.

Like we need to go forward because there are real victims here. And this from a guy that entered a guilty plea without finishing the investigation and, you know, failed to notice 116 other victims. So he's already pissed. And we know also that last month he had issued another order threatening the office with contempt because of the way they were hand handling immigration cases, 1225(b), the mandatory detention stuff.

So, so there's all of this churning and he really just goes and when the guy shows up, the, he's a fairly young guy. He’s been there since 2023, 2 and a half years in the office. He shows up with the appellate—head of the appellate division, Mark Coyne. And Coyne hasn't entered a notice of appearance and there was no reference that he would be showing up.

And here Quraishi loses it and says, no. And frankly, this part, I don't understand why it would be such a grave. I've seen prosecutors come in with senior prosecutors without and says it won't let him speak and says, you must, you know, don't speak. And it, and he does speak.

He tries and he has him removed—or he says he'll have you removed unless you leave on your own. And eventually he does. But there, there's one other as yet another thing going on, which is that apparently, Habba meanwhile, has become a senior advisor in DOJ supposedly supervising U.S. attorneys, and she's been seen in the district of New Jersey offices.

And so that he's really wondering who is running everything. And so he's ordering that all of them now come to a hearing and testify about what the structure really is and whether Alina Habba is playing some role. And he's, and he says, and what you've told me today, and this is really not you, here, is really the office, not the young AUSA I think, which I don't believe you, by the way.

I won't believe it until you testify. That is why that is what has happened to the credibility of your office. Generations of AUSAs had built the goodwill of that office for your generation to destroy it within a year. Dot dot dot. You all need to figure, start figuring out how to proceed going forward.

And it's not gonna be walking into the courtroom making representations and us accepting it. We know now way too well not to accept those. Your folks are gonna start testifying. They're gonna start speaking under oath when they tell me who's running the office, so I have a proper factual record. And in fact, he specified that these three leaders of the office would be sequestered, which is a way of saying he doesn't trust them to hear.

He, he thinks they'll shade their testimony if they've heard the others. Anyway, it was a pretty lively hearing.

Benjamin Wittes: Yeah. You know, that you're in trouble with federal judge when the leadership of your office is called a triumvirate. That's, I just like, choose a different name, guys. Alright.

Eric, back in D.C. here we have the U.S. attorney's office. And remind me, who is the U.S. attorney here?

Eric Columbus: Jeanine Pirro.

Benjamin Wittes: Okay. Jeanine Pirro has dropped prosecution of a flag burning suspect, rather than give him discovery regarding his claim of judicial of vindictiveness or prosecutorial vindictiveness.

So, what is going on here and what evidence of vindictiveness is she so afraid of that she will drop the case rather than provide discovery of?

Eric Columbus: Well, the backstory here is that in August, Trump, who has been, you know, low level obsessed with wanting to throw people in jail for burning the flag since his first term he put out an executive order criticizing flag burning which as I assume most of our listeners know, is protected speech under the Supreme Court decisions interpreting the First Amendment.

So he put out an order saying, my administration will prosecute those who otherwise violate our laws while burning the flag. And the order said that noted that some content neutral laws might be applicable, such as open burning restrictions or destruction laws by destruction of property.

Now, you know, it's no longer content neutral if you are announcing to the world that you will use content neutral laws because to get at this particular type of speech that you hate. But so, so this guy goes out a guy named Jan Carey goes out that very same day, grabs an American flag and heads to Lafayette Park right across from the White House and puts the flag down on a brick path and his megaphone and one hand the lighter than another, and he says that he's served in the Army for 20 years.

He said, I've fought for every one of your rights to express yourself. There's a First Amendment right to burn the American flag. But the president signed an executive order saying it was illegal to burn the American flag.

He then proceeded to, as a form of protest burn the American flag and, very quickly park police on the scene came up to him, eventually extinguished the flag and arrested him. And they were trying to figure out what to do. And there was actually body cam video, which they're saying that, you know, I don't know—

There's the president sent out this executive order today about flag burning. Maybe we should, there's some charges in there that we could, we should use against him. Let's see. And they arrested him and he's charged.

Benjamin Wittes: But just just so that we're clear here, I remember a case called Joey Johnson v. Texas, where the Supreme Court said that flag burning was constitutionally protected speech.

Right, it would have to be some crime other than flag burning, right?

Eric Columbus: Yes. Okay.

Benjamin Wittes: Just checking.

Eric Columbus: In this case, the crimes were, basically lighting a fire on National Park Service property in a ways that kind of create a hazard and are not permitted and stuff like that. So these are misdemeanors.

Benjamin Wittes: I mean, I gotta say, I wouldn't be confident as someone who's had my own run-ins with the Park Police, I wouldn't be totally confident about setting a fire on park service or Lafayette Square, even if I were burning, you know, twigs or a piece of paper, that there's no reg that says you can't like, like, set things on fire there.

I'm just like, I wouldn't be confident of that.

Eric Columbus: Yeah. And there are regs as it turned out. And he sues rather, no, he doesn't sue. He the defendant files a motion to dismiss saying that these, that the app the general applicable regs, the General National Park Service regs are superseded by regs that govern D.C. parks specifically. And oh, by the way, they're prosecuting vindictively.

Judge Boasberg says, no, the regs are fine in due to gain the motion to dismiss. But he says about whether the, they, the prosecution was vindictive. He says, well, you know. I can't really tell. He says, on the one hand, it seems unlikely that the prosecutors would have felt free to defy the president who had just put out this executive order and had this case basically nicely teed up for him of someone who would, who burned a flag.

And Trump said, I want you to go after flag burners and here's one. But on the other hand, Judge Boasberg said there's a good chance that he was prosecuted for the fire and not for what he said on fire. I mean, he, there, there are actually photos in the opinion. I mean, this guy just lights this flag in the middle of Lafayette Park and there's like a—

You know, it's an American flag sized fire and there are people around, there's no fire extinguisher. The fire damaged the bricks under it. But he says, okay. He's made a good enough showing that he's entitled to some type of process on his, on this claim here, and he orders discovery and from he that the defendant can propound discovery request on the prosecutor's office, which has to get back to them by March 16th on Friday, March 13th.

DOJ says, nevermind. We're dropping the case. So, and Judge Boasberg of course grants that, so we don't know and we will never know. We'll probably never know what exactly it was, but it was something that was pretty bad. I suppose that Jeanine Pirro, who, you know, claims that she's so willing to take not guilty verdict as she announced in that press conference I think a week ago was not eager to have it come to light, right?

Benjamin Wittes: I just wanna say to anybody who wants to burn a flag. Don't do it. Setting fires in public places, bad idea. You're gonna get in trouble. You're gonna set something on fire that you didn't mean to, and be imaginative. Think about using projectors to project images of burning flags that will get all the expressive value and it has none of the risk.

Anna Bower, there was another case that the U.S. attorney's office dropped in federal court this week. And you were there for it. What, very briefly, 'cause we did a whole show on this. What happened?

Anna Bower: Oh, you mean your, you the, you mean your case? Is that what we're talking about?

Benjamin Wittes: Yeah. That's the only one that I know that you were present for.

Anna Bower: Okay. I was confused for a minute. Yes, I yes. So, our very own, Benjamin Wittes had his day in court this week in Federal District court at the E. Barrett Prettyman Courthouse. My first time covering a proceeding of our editor-in-chief in court.

And it was the strangest hearing that I've ever been to at Prettyman because it wasn't really a hearing. Ben was summoned over a citation that he received related to projecting on the Washington Monument. And instead of having a, an actual judicial proceeding at this initial appearance before a magistrate judge.

It ended up being a kind of, you know, conference situation where there's an AUSA and Park Police who are seated at a table and then they call people up one by one. Many of the people who were there were vendors who you know, received citations related to things like parking violations or other types of regulatory violations.

And it seemed to me that most people were not represented by counsel. It was very difficult to hear what was actually happening during this. What was called a court proceeding, but kind of wasn't one. But still had a presumption of, you know, public access because there was no microphones turned on, that kind of thing.

The AUSA, when I tried to approach listened to in on what happened with Ben's case got very upset that there was a journalist there to cover the proceeding. But Ben, do you wanna explain what happened next in terms of the case getting dropped?

Benjamin Wittes: Well, for people who are really interested in the details watch yesterday's Dog Shirt TV where Anna and I went through the details with precision.

But for now no charges were filed. I agreed to pay $100 civil fine, $30 in court costs. My property, including both Lord and Lady Laser, will be returned to me, as well as a very treasured camera lens, which I feel very strongly about. And my co-defendant, who was wrongly accused, he actually did not project on the Washington Monument had charges against him, dropped entirely.

So altogether a very satisfying outcome despite the procedural irregularities, which were extreme. And yeah, I will be back in action doing projections again soon, although not on the Washington Monument. Now that I know that there is a specific reg that forbids that.

Anna Bower: Yeah. And I highly recommend listening to that Dog Shirt Daily episode that we did on this, because it really was such a strange proceeding.

And we go into the details as to why in that in that episode.

Benjamin Wittes: Indeed. Alright let's go to Fulton County which is, feels like a blow back to times past where Judge Boulee has announced that mediation has failed and we are now going to have a litigation over Tulsi Gabbard’s execution of a search warrant for the FBI, what's going on down there?

Anna Bower: Yeah, so, remember this is the ballots case in which Fulton County is trying to seek the return of the ballots that were seized by the FBI. There was a lot of briefing in the lead up to what was supposed to be an evidentiary hearing, where we expected to hear from the affiant in who filed the search warrant affidavit supporting the search warrant.

And then at the last minute before the, that hearing was supposed to take place, Judge Boulee ordered the parties into mediation. And as you've said, Ben, after about, you know, a week and a half, two weeks of mediation Judge Boulee has now announced on the public docket that the mediation has failed.

And now the question is will we go forward with this evidentiary hearing that was supposed to cover essentially whether or not the search warrant affidavit was sup supported probable cause whether there were omissions in it that violated the law, that kind of thing. And again, we expected to hear from that special that FBI agent who filed and swore out the affidavit.

But of course, there's this pending motion to vacate the hearing and quashed the subpoena that was filed by DOJ. And so Judge Boulee ordered the parties to provide further briefing on that issue of whether the hearing should go forward, and in doing so, ordered the focus to on the arbitrary and capricious standard under 2e.

Now, for people who don't know what that is, a reference to, there's something called that are referred to as the IIe regulations. That's when a third-party subpoena is issued upon an agent of the government. The agency has regulations that kind of set the guidance for, you know, whether or not it should allow that person to testify or the evidence to be released in relation to that subpoena.

But these regulations don't, aren't supposed to like create a kind of substantive, right, to just unilaterally kind of allow the government to refuse, to provide someone to testify at an evidentiary hearing. But it does set up this process. And there's different circuits that look at the refusal or the denial of a 2e request at under different standards.

So some circuits look at it under the same type of procedure that you would under the Federal Rules of civil procedure, which allow you to quash a subpoena for undue burden that is a more favorable standard to the person who's seeking to the testimony of the federal agent. But then some circuits look at it under the APA, the arbitrary and capricious standard.

That's a more deferential standard for the agency. And so, so here there's this question of like, now that the government has refused the 2e request that Fulton County sent for this agent's testimony should the judge, Judge Boulee look at it as that, look at that denial as arbitrary and capricious, or look at it under, you know, a different standard of like, they can only seek quash based on undue burden.

So that was what is being addressed in the litigation now. We do have a tentative hearing date for March 27th. Fulton County has filed its brief in which it argues first that the standard isn't arbitrary and capricious. It's you know, just look at what can, how you can quash a subpoena under rule 45 of the federal rules of civil procedure.

And then even if it is arbitrary and capricious that this denial here is arbitrary and capricious 'cause they're not seeking privilege information. They've shown that there is a reason for the agent's testimony under Frank's and under the rule 41g, which does explicitly say that a court shall you know, hear evidence and testimony on any factual dispute that is to be resolved.

So all of this is being you know, hashed out in these briefs. We have not heard from the government yet, that's due. I actually think maybe it's today, but they haven't filed yet. And so within the next few days, Ben, I expect to hear from Judge Boulee about whether that the agents will testify.

I suspect that probably, it seems to me that the issue isn't whether the evidentiary hearing goes forward, it's the question of like, whether at that evidentiary hearing, we will hear from the special agent, because there's still witnesses that Fulton County could call like Ryan Macias, who's their elections expert, who filed a very long declaration.

And I also wonder too, that, you know, if the government declines to allow this agent to testify, will there be an adverse inference that the judge will make against the government in respect to deciding the ultimate issue, which is, you know, whether or not there the Fulton County's rights have been violated here and that they can therefore get their the return of the ballots.

Benjamin Wittes: Anna, who is the administration of DOGE? The administrator of DOGE and do we have new video evidence that bears on the question?

Anna Bower: We have lots of new video evidence that bears in the question, but Ben, you will maybe not be surprised to learn that there's no clear answer in the video evidence. So in, we have 23 hours’ worth of deposition videos that were published online by,

Benjamin Wittes: And just to be clear, how many of them have you watched?

Anna Bower: I have watched about 20 hours. I still have like three more hours just checking to go that I'm still trying to get through, but I've watched over the course of about a week, I've watched a lot of DOGE deposition testimony. And I, I kind of recommend it, but also kind of don't recommend it.

But we learn a lot about the structure of DOGE. This is all in the context I should mention, of the a case that was brought against the National Endowment for the Humanities, by groups of scholars and historians, people whose grants were canceled by NEH after DOGE came in and was deciding to, cancel certain grants that, that, that were deemed to be DEI or that were deemed to be wasteful.

And as a part of this litigation, one of the big questions as we've discussed before is like, who was really calling the shots here? What was it actually the agency heads and the people who were in charge at NEH or was DOGE really kind of, making these calls in a way that they, which they had no authority, statutory authority to make, and therefore it would be ultra virus because, you know, they don't have the authority to cancel these grants themselves.

So that's kind of one of the issues that's lurking in the background here. And for that reason, in these depositions there's a lot of questions about the structure of DOGE and who was in charge and who was making these decisions. Was DOGE just advising or was it actually instructing on the termination of these grants?

And on the question, the who is the administrator of DOGE? There's lots of interesting stuff because two of the DOGE guys are deposed and multiple times, you know, they're asked like, who did you understand to be in charge of DOGE? And there's kind of a variety of different answers they give. You know, Elon is described as one person who was understood to be in charge.

Even though the in legal filings and in its legal cases, DOJ has claimed that no, he was not in charge of DOGE. And then also there's another name that came up over and over again, which is Steve Davis, who is one of Elon Musk's known, kind of, you know, right hand guys. And is described in these deposition videos as kind of, you know, regardless of whatever his title was the guy who was understood to really be running the day-to-day at DOGE and ran the meetings and over again when these questions are asked, guess whose name is not mentioned? Amy Gleason, the purported acting administrator of DOGE.

And at one point, Ben, there's even this moment when someone asks Nate Cavanaugh, who was the DOGE team lead of you know, killing the small agencies team or whatever they called it. I believe it was just the DOGE small agencies team.

He's asked at one point, who was Amy Gleason, and he takes a moment of like a whole like five second silence and kind of stares off, like, who, where have I heard that name before? Almost as if he's thinking like, who is that? And then he goes I believe she was the administrator of DOGE. So it's just a fascinating insight into DOGE.

There's also a whole other saga that's going on around the release of these videos that we can talk about if you want to. But there's a lot in these videos that is very interesting.

Benjamin Wittes: Alright. Roger, while I wasn't looking this week, the government sued, once again, that hotbed of antisemitism, Harvard University, and I confess, I completely missed this until I saw it on the schedule this week.

And I know nothing about it. And so fill me in. What you know, violent acts or you know, or pogroms, are they responding to this time?

Roger Parloff: It's the same pogroms and the same violent acts. It's, this is now the third litigation between the two. This is the first that the Trump administration has brought.

The way this worked, if you remember, is that they began terminating all the, all of Harvard's contracts. So, just, you know, in a letter, right.

Benjamin Wittes: But the previous pattern had been that the Trump administration cites antisemitism as a reason to cut off Harvard's money on matters that have nothing to do with antisemitism, like, you know, biology and—

And then Harvard sues over that to top that.

Roger Parloff: Exactly. Yeah.

Benjamin Wittes: So what's the, is this a Title VI litigation? What's the theory exactly?

Roger Parloff: Yeah, it is, and it's and Title VI of the Civil Rights Act of 1964. Forbids racism, I mean forbids discrimination on the base of race or national origin by federally funded entities.

Well, basically they had cited, you know, in their letters terminating all of Harvard's contracts. They had said you violated Title VI. And then Harvard went to court and said, well, okay then, but you didn't follow Title VI. I mean, if you're if there were really a Title VI violation, you need to, you know, Title VI tells you how to proceed and there's due process.

You don't just write a letter and say, I'm cutting off $9.2 billion in—or I guess 2.2 billion in grants and everything. In the future you have to follow procedures. And so Judge Burroughs said, that's right and entered a originally a preliminary and then a summary judgment. And that's now on appeal.

So now they're bringing. The Title VI. So I, I think that's what's happening.

Benjamin Wittes: Alright. So Molly, we talked last week about judge Lamberth's ruling in Widakuswara, which is the VOA I don't know what to call it, the destruction of VOA case. There's another one now another ruling, this one somewhat broader in terms of the relief it granted.

What did Judge Lamberth do this week?

Molly Roberts: Yeah, so Judge Lamberth vacated the decision, the memorandum by the Voice of America Parent Company, the U.S. Agency for Global Media that put almost all about a thousand, I think it was 1,042 of its 1,147 full-time employees on administrative leave and also ceased most of the broadcasting.

So he vacated that order, and that means that those thousand-ish full-time journalists and staff will come back to work on Monday, or are supposed to come back to work on Monday, and broadcasting operations will or should resume on Monday. Of course, in practice, that's gonna be tricky because it's been about a year of this organization having been totally gutted, the exception here is contractors who were terminated for their disputes.

Benjamin Wittes: This is a very big exception.

Molly Roberts: Yes. A very big exception. And for their disputes, Judge Lamberth found that his court didn't have jurisdiction. There's a separate court that deals with that.

Benjamin Wittes: Yeah. So, so just a word on that. A huge number of VOA employees are actually contractors. And the reason they did it that way is because it was easier to get people in the United States on visas that let them work on a contractor basis than to sponsor them for full-time employment.

These are, remember there's 46 or 48 language services, some of them, you know, so you need these really specialized skills, you know, Cambodian speaking, broadcast journalists, right? Like, and so there's a lot of people who were brought in, including from countries with very repressive governments, or in the case I'm most familiar with countries that are in war zones like Ukraine.

But, and then, they're, a lot of them are brought in as contractors, and they were all basically terminated the same day. And so this action is great for the people who were full-time employees of DOA, but it doesn't help—it's still not clear to me how you get back the if the goal is to have them start broadcasting again at the level that they were, you cannot do that without the contractors.

And so it'll be interesting to see what this group of people now freed from the clutches of Kari Lake, although still under the clutches of the, you know, Kari Lake 2.0, what they're able to do and whether the administration really tries to go for the jugular again with them.

Molly Roberts: No, that is all right. And I think that, I mean, it'll be interesting to see exactly what happens, right? Because the issue here, the judge ruled was that the U.S. Agency for Global Media had violated the Administrative Procedure Act in two ways.

One, by not satisfying the reason decision making requirement. And he was really critical of the complete lack of reasoning in the memorandum doing this. And two, it engaged in unlawful withholding of required agency action because there's a statute that says you have to communicate directly with peoples of the world by radio. And there are also specific regions in which you have to do this.

And they weren't doing that. So now the idea is, well, they should resume operations as they were before that. But going forward, they still need to meet that statutory requirement. And I do kind of wonder, how do you do that? When you've gotten rid of so many of these contractors who were responsible for it,

Benjamin Wittes: It's gonna be such an interesting question, and it's not gonna be one that is limited to VOA.

So in so many agencies, the administration has taken the position that it can satisfy what it calls the statutory minimum, which is the thing that the appropriation statute mandates that it spends X amount of money to do basically without having a federal agency. Like, you know, USAID mostly doesn't exist, right?

Like now, but how, and in the short term, the Supreme Court has been quite deferential to the executive in terms on the shadow docket in terms of what it lets it get away with in reductions in force and, you know, meeting the statutory minimum. But I am not, you know, this is the first time that I am aware of, but it won't be the last.

There are other cases that are percolating up where, you know, the statutory minimum really does say some things, right? And you're now not in the, you're not in the emergency order department anymore. You're in the merits phase and you get a good district judge, somebody like Royce Lamberth, who's actually gonna read the statute carefully and say, well, you know, it says you have to reach this number of countries in their languages.

Are you doing that? Well, you know, you're supposed to be spending $400 million doing that. I think there are going to be a lot of these cases and I have my eye on a few others that are similar in that regard, where I just don't, I don't see how you can meet the statutory minimum without and terminate the existence of the agency entirely, or almost entirely.

Alright, Roger, let's do our weekly immigration roundup, which is gonna be brief this week because there hasn't been that much going on in the immigration space this week. And I wanna start with why, what, why has this been such a quiet immigration week?

Roger Parloff: Well, two cert grants isn't chopped liver.

Benjamin Wittes: I mean, okay.

Roger Parloff: Okay. The, so these TPS cases I've been talking about, the temporary protected status, the Supreme Court took two of these, and they, it's cert before judgment, meaning the appellate courts haven't ruled on these cases yet, but obviously they had to do, they've had to finally face these in a holistic way.

Trump v. Miot involves Haitians 350,000, Dahlia Doe involves Syrians less than 7,000, maybe around 5,600. Miot came out of Judge Reyes here in D.C. Doe came out of Catherine Polk Failla in the Southern District of New York.

And the key question is probably going to be, the statute, the TPS statute has its own jurisdiction stripping provision that says there is no judicial review of any determination of the attorney general with respect to the designation or termination or extension of a designation of a foreign state under this subsection. And that sounds and the attorney general has delegated this to the secretary of homeland security.

So that's known. All of these things start with a designation of a country as under the, as being eligible for TPS status. And then that makes a category of non-citizens eligible. But they have to. Then apply individually and prove that they don't have criminal records and so on. Like, that's how you get TPS status. These are not illegal aliens.

But anyway, that sounds like, oh, so no can designate which, which countries get it and which don't. And how do you get around that? And so the way that many judges have gotten around that is to say that, yeah, that's the designation. I'm not quibbling with whether, you know, you choosing whether to designate or not. I'm saying you didn't follow the procedural rules you have to follow, you're supposed to do a country review first and you didn't you know, and you're supposed to do this in good faith, and you're supposed to make findings, you know, that they're no longer in danger of their lives. You know, this sort of thing.

And you didn't, you just, you came into office and you terminated 12 of these things so far, and so the claim is it's arbitrary and capricious. It was a preordained decision. The, it was pretextual reasons were offered. And also in, in some of these, in the Haitian case, racial animus in a fair number of these cases, not race racial or national origin animus.

And which is either tucked in with a, as a form of the arbitrary and capricious or as an independent constitutional violation under the Fifth Amendment Due Process. It's Equal Protection that's smuggled into the Fifth Amendment for the federal actors. So, it's really important case.

Benjamin Wittes: Speaking of important cases, in JOP yesterday, the government seems to have admitted that there are more than a hundred instances in which members of the class, this is a class action immigration habeas, have been unlawfully removed from the United States in violation of some kind of settlement agreement.

What happened and what do we know about these a hundred cases?

Roger Parloff: Yeah. Well this is a hearing that actually continued today in Baltimore in front of Judge Stephanie Gallagher. She's technically a Trump appointee, but I think she was first nominated by Obama. And you've heard of her before in the JOP case.

Benjamin Wittes: Yeah, she's a very good judge. She did a very nice job in earlier in the administration in this case.

Roger Parloff: Yeah. If you remember, Cristian, a Venezuelan was this is a case that began in 2019. It's a class action for unaccompanied alien children, UACs, they're called and for Venezuelans.

And it basically reached a settlement in November, 2024. All of these class members were entitled to have adjudication of their asylum claims before they could be removed. And then it turned out that this guy, Cristian was removed to CECOT under the Alien Enemies Act. And she issued an order to facilitate his return.

The government at first sort of jerked her around and then said no, we're working on it. We're go we're almost there. We're almost there. Then all of the CECOT prisoners were sent to Venezuela and he hasn't been heard from since. And then by November it, no by February last month it developed that there were eight more confirmed cases of class members who had been re removed.

And she set this hearing, and then yesterday, apparently, according to TPM, and frankly, I haven't seen many other press reports. So, I have nothing against TPM, but I just would I I'm relying on them solely on this. A UCIS person was testifying and shocked the room at least the petitioners and the judge, certainly the judge when he, she he or she said that there were really in the low hundreds of people.

And so more than a hundred people. So, so we're gonna see earlier, you know, back in November, she did deny a criminal contempt request partly 'cause Rubio wasn't a party. And it got too complicated blaming DHS for what state was doing. But we'll have to see what comes out of this.

Benjamin Wittes: All right. Finally let's talk about some cases involving federal funding, which we have not been dealing much with recently 'cause they've been percolating along.

Eric, we have a major First Circuit opinion affirming the preliminary injunction issued by, I believe Judge Burroughs would be wrong about that against the federal funding freeze from the beginning of the Trump administration.

How big a deal is this?

Eric Columbus: I, it's not entirely clear how big it is. I don't think it's huge—this was the side, this was a, the district court decision was from early 2025 and the first circuit at the time denied a motion for a stay pending appeal by the government. And I believe the government then did not seek Supreme Court review.

So it may by this, at this point, be water under the bridge. But it's not entirely clear to me, I mean, as you said, OMB issued a memo freezing a wide range of grants in the early days of the Trump administration and that might grants, that might implicate certain of the executive orders that were issued.

In the first week, flurry a bunch of states sued OMB rescinded the memo with apparently kept withholding a lot of the money. And a preliminary injunction was issued. And this the case was filed in April. The appeal was filed in April and we are in March now. So the First Circuit really took their sweet time.

The government argued that these things were committed. These issues are committed to agency discretion by law, under the Administrative Procedure Act citing a case, a Supreme Court case called Lincoln v Vigil. The First Circuit distinguished that case and said, no, that just applies when there is a, an open-ended statute that requires the distribution of funds without recipients already being predetermined here.

However, the agency had already obligated, the funds had already designated who they'd be going to, and they can't withdraw that without providing a reason to explanation under the APA and the district court had ruled that it was the decision of the of OMB was both arbitrary and capricious and not in accordance with law.

Both are two no-nos. Under the APA the First Circuit found it was arbitrary and capricious, and therefore did not reach the accordance with law issue. And the First Circuit concluded the government failed to show that it made any reasoned assessments about the impacts of their actions, and failed to consider any reliance interests that the states had in receiving the funds that they had been that had already been obligated to them.

So, however, though there is an intervening decision in April in the on the Supreme Court shadow docket where, in a different state challenge to grant terminations. The Supreme Court said that the administrative procedure acts waiver of sovereign immunity does not extend to orders to enforce a contractual obligation to pay money.

And so for that, you need to use what's called the Tucker Act and do that in the court of, in this a separate specialized court called the Federal Court of Claims in order to get your money back, which is a somewhat more annoying and because separate process and I don't know, and the opinion did not really say how, you know, to what extent this money has already gone out the door.

'cause there was no stay of the District Court's opinion, or whether there was, there is in fact separate court of claims proceedings going on. But it definitely had to apply the intervening Supreme Court case law.

Benjamin Wittes: Alright. Alright, two more cases. We have a district court order blocking the administration from taking $600 million in public health funds from blue states.

What's that about?

Eric Columbus: That gets back to a directive. It's a little bit similar to the other case that involves OMB telling agencies not to do certain things and the agencies being a little bit squirrely in terms of what in fact is or is not going out the door. These states, there is a in various orders by, there was an executive order by the president in January saying that the federal government would not make any payments to states having sanctuary cities.

And there was a separate list in earlier 2025 that included various states as states that have, that are, have sanctuary jurisdictions within them, including the four plaintiff states here, Illinois, California, Colorado, and Minnesota. However, it was never matched up and there was never like a specific order saying these four states are not going to receive money from certain agencies.

And the agencies at issue this case are HHS and D, Department of Transportation, and also DHS. But the states put together a record indicating that they were in fact not getting money from, these agencies and that there, the judge determined that there is a reasonable inference that OMB directed HHS to cut the funding because plaintiffs were on these plaintiff states were on a list of states with sanctuary jurisdictions. The order basically tells 'em to stop doing it. But it does not grant that give them their money back.

And because of the aforementioned Supreme Court case that I mentioned in the in the, regarding the earlier case, so the states to get their money back, need to go to the court of claims.

Roger Parloff: You're muted. Ben,

Benjamin Wittes: Sorry, very quickly as we have to wrap up we have a district court order. Last but not least, granting a preliminary injunction to Colorado in a challenge to USDA over a SNAP funding that appears to be a retaliation for Governor Polis not pardoning Tina Peters the election conspiracy theorist who is serving time in Colorado. What happened?

Eric Columbus: So on December 11th, Trump announced that he had pardoned Tina Peters for convictions of state crimes relating to, effort to breach Colorado voting machines and election data. Now, that is not a thing.

Trump cannot pardon anyone for state crimes, but it's his way of, you know, pleasing people in some strange form and attempts put pressure on Governor Polis, who he later called weak, empathetic for not releasing. Tina Peters, who was a big call celeb on the right. And then ICTU just a few days later, a letter shows up to the governor saying that you're being required to participate in this pilot program.

With regard to SNAP, you've gotta recertify the eligibility of all SNAP households in five of your most populous counties within 30 days of the receipt of the letter. And it, this is something that they usually do on a ruling biannual basis. And the letter basically mandated them to complete roughly half a year's work in one month.

And the letter said, oh, by the way, if you don't do this, then you know, there'll be consequences. There'll be financial sanctions and may also affect your continued participation in SNAP. Colorado sued. The judge said this is just quoting the plaintiff. The district court judge said that the, this project is unlawful many times over.

And just came up with I think four different ways in which it is unlawful. First, it is not authorized by the federal by, I believe it's called the Food, the FNA, the Food Nutrition Act. It floated various due process requirements. It was arbitrary and capricious. And finally, it violated the spending clause by imposing an unconstitutional condition on the receipt of federal funds.

Benjamin Wittes: Alright we are going to leave it there, unless Roger has an answer to the one question in our Q and A queue—

Which reads for Roger: Rodriguez v. Porter, the Idaho Horse Fair Bulk Apprehension case seems like that has stalled. I don't see any scheduled next steps probably can't be answered today. So can it be answered today or are we gonna put this on the list for next week?

Roger Parloff: I think it can be answered. It was filed last month and it's a damages case. It's not a preliminary injunction. You're not seeking a TRO or a preliminary injunction, so the government gets 60 days to respond. I think that's the number normally.

So, I think it's just the normal pace. I mean, this event occurred last October, so, and with money you can always, you know, if you win

Benjamin Wittes: You can always let it sit for a while.

Roger Parloff: Well, you're supposed to get pre-judgment interest and,

Benjamin Wittes: Right.

Roger Parloff: And so it's not irreparable to, so they go sort of slowly. I think it's still on track.

Benjamin Wittes: Alright, we are gonna leave it there folks. Thanks this week to Kate Klonick, Anna Bower, Eric Columbus, Molly Roberts, and Roger Parloff. Thanks as always, to the most estimable, Anna Bower—Anna Hickey, I, you know, I just say Anna and Bower comes out after it.

Thanks as always, to the most estimable Anna Hickey, who makes all this happen as our audio engineer and video engineer, we're gonna be back next week. The trials will keep trialing, the tribulations will keep tribulation. And we will be back to talk about it.

Thanks for listening.

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