Lawfare Daily: The Trials of the Trump Administration, March 6

[Intro]

Benjamin Wittes: It is Friday, March the sixth, 2026. It is 4:00 PM in Washington, D.C. and you, and I mean you are watching Lawfare Live. I'm Benjamin Wittes, editor-in-chief of Lawfare, and I am here with three Lawfare senior editors, Alan Rozenshtein, Molly Roberts, and Roger Parloff, joining from the Scont Studio, and one Lawfare public service fellow, the estimable, Troy Edwards.

Guys, we got a lot of ground to cover today. We're gonna start with the subject that keeps on not going away. It's TikTok. Alan, it is finally in litigation. The TikTok suit has finally been filed. Bring us up to speed. What, how did the TikTok thing that everybody thought was gone forever end up in court and what's the situation?

Alan Rozenshtein: So the question is, do you wanna talk about the case or you wanna talk about my rapidly deteriorating mental state now that I have to deal with—I really, I thought TikTok was behind me and yet it comes back.

Benjamin Wittes: Well, we're gonna get to your rapidly deteriorating mental health in a minute. Let's start with the facts that are driving your rapidly deteriorating mental health.

And then we'll get to the issue of emotional wellbeing.

Alan Rozenshtein: Yes. So the facts are that, now that there is a buyer for TikTok. It's a consortium of American and some foreign investors that are purchasing TikTok from its Chinese owner, ByteDance, and turning it into an American company.

And now that President Trump has labeled that a qualified divestiture under PAFACAA, the Protecting American from Foreign Adversary Controlled Applications Act, one of the truly worst acronyms of all time—a Google shareholder, Tony Tan who actually was part of the FOIA litigation that last year uncovered the very interesting and quite legally deficient memos from Pam Bondi to the companies telling them that they could in fact do business with TikTok, notwithstanding the law—

Tony Tan has filed suit supported by a new nonprofit legal organization here in D.C., the Public Integrity Project, challenging the current deal. This lawsuit is not challenging the non-enforcement of the law for a year. That's probably not challengeable anymore since that's all kind of mooted.

But there, he's challenging whether the deal currently actually satisfies the law itself. And he is alleging that in fact it's not a qualified divestiture because there is still quite a bit of operational relationship between this new TikTok and ByteDance, in particular around the algorithm which is being licensed to the new TikTok.

And so he's alleging that the qualified divestiture is invalid and that it should be declared invalid. And, we shouldn't force the law.

Benjamin Wittes: Alright, but presumably this is not a new idea. This has been lurking around for as long as this law has been there and this deal has been on the table. Why has it taken this long for, if I were a plaintiff's lawyer, I would've clawed my way to the courthouse door immediately. What's the holdup here that, that caused this to take really several months to, for people to get into court?

Alan Rozenshtein: Well, I mean, I think you needed to find a plaintiff that was willing to sue and you had to find a legal representation that was interested in doing this, right. The folks that are doing this, and this is not a big law organization. This is an organization that was created to you know, in its mission statement, sort of fight public corruption.

And so I think you needed to find the right plaintiff and the right, you know, legal organization to bring this to bring this lawsuit.

Benjamin Wittes: Alright, so what are the impediments? We have talked about in the past how this is, you know, the, what the administration did with TikTok is frankly unlawful. The statute is pretty clear about what it requires, and the administration basically said, starting on really the first week of the administration, I think the official statement read pfftt and Pam Bondi I mean, they've basically just refused to enforce the law and then they had this deal that they put together.

It's not really and so what's the impediment that an investor is likely to face in saying nothing about this is legitimate?

Alan Rozenshtein: Yeah, I mean, I think there are two. So the first is the dreaded standing issue. You know, this is why this is the principle that not anyone can sue to vindicate any legal or constitutional harm.

You have to be particularly harmed by the government action. And this is why I, despite, again, having progressively lost my mind over 18 months, could not sue as a pissed off con law professor. You had to find the right plaintiff.

Benjamin Wittes: Right, but you're not an investor in—

Alan Rozenshtein: I'm not an investor. So, so what Tan is gonna argue is that he's an investor in Google.

And he's a retail investor and he is just owned some shares. Google is a prime competitor to TikTok, specifically through YouTube Shorts, which is its kind of short form video platform. And that therefore he has standing to challenge this. The government will likely argue that that is not sufficient standing there, there are many investors in Google.

Probably, you know, half of the country is an investor in Google, just through your passively managed index funds and 401k retirement accounts. And that this is not the sort of particularized injury you know, that is gonna fairly traceable to him. So there's gonna be a fight. The first fight I think is gonna be over standing.

The second fight is gonna be over redressability, which is to say you know, he's alleging, you know, my Google share price my, the values of my Google shares are lower than they would otherwise be in, than in a world where TikTok is no more or something like that. The government is going to say, well, there's no guarantee that even if a court overturns this qualified divestiture determination that the injury that you're claiming is gonna be redressed—

To which, he is likely to say something like, well, it's not directly redressed, but one of the key legal impediments to it being redressed, which is to say that you've called this a qualified divestiture is now gone.

So, look, I mean these standing cases like this are always difficult to predict because the doctrine is sort of baroque and complicated and mushy all at the same time. And so, you know, as much as it would delight me to see this lawsuit go forward, this is hardly a slam dunk. But you know, it is being done by, a serious plaintiff and serious people.

And the real thing is that if it somehow survives the kind of initial motions to dismiss then we get into discovery territory and that gets real fun.

Benjamin Wittes: Alright, meanwhile, a case that has not yet materialized but is I think at this point, certain to materialize, Anthropic versus the department of, will it be captioned Department of Defense or Department of War?

Alan Rozenshtein: I think it'll be Anthropic v. Hegseth.

Benjamin Wittes: Really?

Alan Rozenshtein: No I hope

Benjamin Wittes: so. I mean that—v. Hegseth

Alan Rozenshtein: That goes hard.

Benjamin Wittes: Yeah, that would be cool. And I think the plaintiff should be Claude.

Alan Rozenshtein: Claude.

Benjamin Wittes: So when last we left off a week ago, Pete Hegseth had declared but not declared he'd sort of announced an intention to declare Anthropic a supply chain risk, but Anthropic had not received any notification that it had been designated a supply chain risk.

And there were i's that needed to be dotted and t's that needed to be crossed, even though there's no, I guess there's an “I” in risk. So they needed to put the dot on the “I” in risk and in chain but other than those two dots, there was nothing left to do. Now I take it, those two dots on the i's have been done.

What are we waiting for at this point, other than for Anthropic’s lawyers to make it across the street to federal court somewhere and file a complaint?

Alan Rozenshtein: I believe that is all that we're waiting for. So, so, DOD has sent a letter to Anthropic designating them as supply chain risk. My understanding is both under 10 U.S.C. 3252, which is the statute and of most of us thought was gonna be the case.

And then the other supply chain designation risk, the FASCA, which I've forgotten what it stands for, another failed acronym. But that it's fundamentally a similar statute. I, and so I think they have to file two lawsuits, I think for 3252, they're gonna do it in California.

And then FASCA, they file actually directly in the D.C. Circuit, I believe, because that's what the statute provides. And so they'll file, we'll see what they say. I mean, I think it's pretty clear what they'll say. You can read, mine and many others writing on this in Lawfare and in other places.

It's a pretty, I think, straightforward case. What's notable is that it sounds like the notification that DOD gave Anthropic does not go as far as the initial X post that Hegseth did last week. Lemme explain a little bit. The supply chain statutes allow the government to, if the supply chain designation is valid, to block the company from doing business on defense contracts as a prime or as a subcontractor.

But the X post that Hegseth wrote went far beyond that. It purported to ban any company doing business with DOD from having quote any commercial relationship with Anthropic. That would both apply to many of Anthropic’s enterprise customers generally, 'cause many of them are defense contractors and in each stream would prohibit companies like Amazon and Google which are obviously very large defense contractors, from selling cloud compute to Anthropic, right? Which would be a death sentence for Anthropic.

It sounds like that is no longer that DOD is not making that argument. That's obviously very good news for Anthropic because now the designation as a legal matter is no longer an existential threat to Anthropic, right?

It's still a large threat to Anthropic because it reflects the animus that the administration has to Anthropic, and that might scare away investors and it might scare away enterprise clients. But that's not because of the legal designation. That's just because, Trump issued a true social poet calling Anthropic a bunch of woke polycule weirdos in all caps.

On the other hand, though, that also might take some pressure off whichever district court gets this next week from issuing an immediate injunctive relief to Anthropic, because now it matters much less, right? The actual stakes for Anthropic financially are in the hundreds of millions, maybe a billion dollars, which, in any other context is an a massive amount of money.

And to Anthropic it's just not that big of a deal. So, you know, I still think Anthropic may very well get its injunction because I think it deserves it. The case against it is extremely weak. For other reasons. And I think ultimately it will win. But it's no longer a sort of every minute counts because every minute Anthropic is without cloud compute.

So we can all take a bit of a breath now which is, I think good. And it also look, it also allows for the potential for behind the scenes negotiation. And ultimately what I think would be best for everyone involved, a climb down, a deescalation. And even if Anthropic no longer does this with the government, it's because they have hearted ways rather than the government is pretending that Anthropic is somehow like Huawei or Kaspersky.

Benjamin Wittes: And what does a climb down look like? I mean, if you wanted to deescalate this and the court appointed mediator was Alan Rozenshtein, what is the thing that you would whisper in Pete Hegseth’s ear and whisper in Dario Amodei’s ear, ‘Hey, you guys should gather around and deal on this basis.’

What does the climb down look like?

Alan Rozenshtein: Well, so there, there are two levels of climb down if you wanna climb, you know, all the way down to base camp, then Anthropic and DOD come to an actual substantive agreement about how Anthropic’s tools are used.

I think, you know, DOD despite all the tough words about Anthropic, clearly values, Claude. It's by far the most useful model that it has access to right now. It's literally currently—

Benjamin Wittes: It's such a supply chain risk that they're using it actively in ongoing military operations in Iran.

Alan Rozenshtein: I was about to get there, right? Yes, which to be clear is presumably one of the arguments that Anthropic is gonna make on the merits about this.

But clearly there are parts of DOD that clearly value and Anthropic and value plot. So ideally they could come to some agreement where, you know, anthropic gets to claim and hopefully truthfully, that its red lines are being respected. DOD gets to claim that, you know, it is still fundamentally in control of this and everyone kisses and makes up. That would be the full climb down.

So the partial climb down would be they can't come to an agreement and they do what civilized people do when you can't come to an agreement, which is you shake hands and you walk away from the table. You don't, you know. One side isn’t trying to try to shoot the other side.

Right? And that would look like withdrawing the supply chain designation and we can all just be adults about it.

Benjamin Wittes: Alright, well, I have asked Claude whether Claude has thoughts on the dispute and Claude has offered the following answer:

This is quite a significant and fast moving situation. Here's what happened, as best as I can piece together et cetera, et cetera. And then he gives a long account of the facts. And then I don't know whether we use male pronouns for Claude. But Claude then says, as from my own perspective, I'm obviously not a neutral party here, and I wanna be upfront about that.

That said, I think the question of whether an AI company should be able to set limits on how its models are used in warfare is genuinely important and not easy. Anthropic’s position that it won't allow Claude to be used for fully autonomous lethal weapons or mass domestic surveillance reflects concerns that many AI researchers and ethicists take seriously.

The DOD’s counter position that it needs flexibility across all lawful uses also has a logic to it, from an operational perspective. What strikes me as most troubling about the government's response is the use of the supply chain risk designation, a tool for foreign adversaries against an American company seemingly as retaliation for a contract dispute.

Anthropic cutoff CCP linked firms at a cost of hundreds of millions of dollars in revenue and shut down a CCP-sponsored cyber attack, attempting to abuse Claude, see Lawfare—hardly the profile of a national security threat. The legal arguments suggest the designation is likely to struggle in court. So that is it.

Alan Rozenshtein: It gladdens my heart that we have wormed our way into Claude.

Benjamin Wittes: So I just wanna say that is actually Claude's response to the following question: Do you have thoughts on the dispute between Anthropic and the Department of Defense over the use of Claude, and it cites Lawfare. So I had no idea it was gonna do that.

But I, I just bring it to your attention, Alan. Thank you very much. And we are going to move on to non-AI related matters and you should feel free to hang around or disappear as you prefer.

Troy Edwards, I hear there have been some additional arrests in the matter of Don Lemon's case, including some of people who are, chilling out on vacation, what's going on in Minnesota?

Troy Edwards: A lot of new lemons. So 30 additional defendants were added. We mentioned this last week. And in the meantime, since last Thursday is superseding indictment. The court process has played out as you'd expect generally, which is a number of initial appearances across the country where the, some of the defendants were located and getting these defendants all back to Minnesota now for later arraignments, before magistrate judge or a district judge.

A couple things worth noting. One is, and I thought worth it was interesting, and it ties into some of our take with Eric Columbus and Anna Bower, was the odd procedural mechanisms going on by the government. One of the defendants at least, was internationally located, allegedly from Harmeet Dhillon on Twitter, on vacation.

And there are a number of reasons why a government may legitimately seek an arrest warrant and execute that arrest warrant overseas, and potentially then prompt a long detention process where that defendant has to now be transported from overseas back to the United States. I think there are a couple questions worth raising in this case, which is before this superseding indictment, the defendants sought detention on the leaders of this group of defendants and lost multiple times, both at the magistrate level and at the appealed argument to the district level.

And the district court did not spare them any harm. The government in referring to the arguments as speculative and not factor law based. And here the government has now sought an additional indictment over a month after the incident with no real claim to ongoing danger, but sought this arrest warrant and executed it overseas, which will now inevitably prompt what could be a multi-week process for that defendant to be transferred here.

The normal process, you'd want to preserve evidence. You don't want to give anybody a chance to delete. But it's been multiple weeks, over a month now, and allegedly they've secured a number of—so much evidence that they need to seek a complex case designation. So I find that odd and could potentially rub the judges the wrong way that they've now put a defendant through that process.

And the second that is interesting is, there were these original nine defendants, including Ms. Fort and Don Lemon, who have now argued that the case ought to be designate not designated complex. The government tried to seek a later trial date and later discovery and motions deadlines by saying it was a particularly complex case under the Speedy Trial Act.

These defendants argued against that. The court ultimately ended up ruling that it wasn't complex, that it was simple. It was a number of actions, but all within an hour of time, but still said that there appears to be voluminous discovery and so the government ought to be able to respond to motions by the defense by April 23^rd.

The defendants Don Lemon and Ms. Fort have come back to say there are these preliminary arguments we need to have resolved before these motions, including getting the grand jury materials to determine whether or not what the government did was appropriate. And as we saw in the Letitia James and James Comey case, that court in the Eastern District of Virginia bifurcated, they set these grand jury deadlines, motions, deadlines first, then these later motions to dismiss deadlines later, which made sense.

Here, the judge has now ruled on this motion. All the government has said back is we intend to follow the April 23rd deadline. So I anticipate the judge likely setting earlier deadlines for those preliminary motions.

Benjamin Wittes: Alright Roger, I think we saw something this week in the law firm cases that I at least have never seen, which is, to summarize, the government announced to the court that it was dropping the appeals of the law firm decisions.

And then about faced and said, no, we're not. I have seen the government drop appeals before, usually, but not exclusively when administrations change. But I've never seen the government drop an appeal and then drop the dropping of the appeal. And so my first question is, have you ever seen the government head fake the dropping of an appeal before—

Leak the fact that it was dropping it to the Wall Street Journal and then indignantly tell the court that it wasn't dropping it?

Roger Parloff: I've not seen that Ben.

Benjamin Wittes: Just checking.

Roger Parloff: Yeah.

Benjamin Wittes: I mean, you've been out this a while and I figured if anybody at Lawfare was gonna have a memory of that, it was either gonna be you or me.

Roger Parloff: No. And I looked up in the federal rules for the appellate procedure to see, they don't seem to have specific standards for withdrawing a voluntary motion to dismiss. And so, we're a little unclear on it. It sounds like the brief was due today, will be filed today. At least there's been no motion to the government is supposed to file its brief today.

There's been no motion to give them an extension. So apparently that's still on. As you say on Monday, they filed a motion, an unopposed motion to voluntarily dismiss. Everybody wrote their stories about the winners and the losers and the—

Benjamin Wittes: Including me. Alan Rozenshtein and I wrote a the situation column about how Anthropic should fight because look, the law firms that fought just prevailed.

Eventually the government dropped the appeal and then the piece comes out and I guess Trump read it and said, I can't have Wittes triumphing over me like this.

Roger Parloff: Yeah, well, there is a lot of speculation and some say it was Trump. Some say it was Steven Miller, but apparently, you know, somebody did not seem to be clued in that the DOJ was gonna be doing this.

But I, the D.C. Circuit can see what's happening and it must it be a sort of hint to them about what the solicitor general thought about the quality of the arguments earlier in the week. The only other thing you know, the court has decided that it will hear this case, even though we don't have the date yet of the oral argument, but it'll hear this case the same day that it hears the Mark Zaid case.

And the government had tried very hard to put these cases, there's four cases, of course, there are four law firms involved, Perkins Coie, Jenner & Block, WilmerHale, Susman Godfrey. They wanted to do the Zaid case first and then put the other one down the road, the law firm ones, because they share one issue, which is security clearances.

And the Zaid case, the government has a chance of prevailing it because when you deprive somebody, at least one person of a security clearance you have enormous, the executive branch has enormous discretion. It's very hard to challenge that—not that Zaid doesn't have a good case, anyone below, but that'll be a difficult one here.

Part of the executive orders, there were five paragraphs, one paragraph wiped out in a blanket fashion security clearances for anyone at these law firms. You know, a thousand people, you know, maybe a paralegal who was, who might be an army reservist, who had a, he would lose his.

I think they would rather have litigated Zaid first. And maybe somebody thought, you know, let's just get rid of this, the law firm cases altogether and maybe we can win Zaid.

Benjamin Wittes: Yeah. As horrible as the Zaid case is, and it is horrible. It's a much better case for them than the law firm case.

Roger Parloff: Yeah.

Benjamin Wittes: Alright, so do we know anything about, I mean, everybody's speculating about what must have happened to create this reversal. But we don't actually know anything about the behind-the-scenes decision making, right?

Roger Parloff: I certainly don't, and the papers don't seem to either just this speculation that, or maybe more than speculation that that Steve Miller was very angry and presumably Trump was angry.

Benjamin Wittes: All right. Meanwhile, in Fulton County, we have a mediator, which is, I gotta say a direction I did not expect that case to go. What do we know?

Roger Parloff: Yeah. March 4th the judge appointed—He gave the parties a chance to agree on a mediator, and apparently they agreed on two, but neither was available.

And so on March 4th,

Benjamin Wittes: I volunteer.

Roger Parloff: The judge appointed this fellow who is Harold Melton, former Chief Justice of the Georgia Supreme Court. He was appointed in 2005 by Sonny Perdue, who was a Republican. And he was elevated to chief justice by Brian Kemp, who as you know, is a Republican.

So, but and he's supposed to have ‘til March 18th to see if he can mediate something. There was—and, presumably it might be as simple as give all the documents back to Fulton County, but you can copy them you can make a copy I'm sure if it's something like that, each side is gonna want the originals.

But there was also a back on the 27th of Friday, there was a telephone conference which Anna Bower got the transcript for. And they were discussing some of these open issues. And one thing the government wanted to know, the government was apparently reading into the mediation order.

It thought, well, the judge, Judge Boulee has already said essentially that, it's not gonna be all or nothing. We're gonna have something. So why can't we start reviewing the documents? And Boulee did say, no I didn't say that. I, it's true that in many cases, in rule 41, it's not an all or nothing resolution, but it is still conceivable that if we do not have a mediation, we would come back, I would hear everything, arguments, maybe evidentiary hearing, and I would decide yeah, the government has to give everything back and can't keep anything.

So anyway everything is supposedly up in the air so far. The government has not says, it has not reviewed the documents, but there's actually nothing, there's no order preventing them. They have said orally, we're not gonna do that. And they were sort of wondering, do we really have to keep by that?

And the judge said, well, I haven't ordered it, but I would prefer you keep to that.

Benjamin Wittes: Yeah. I look at this and I still don't understand what is actually under investigation here, but I suppose we will leave that question for a different day.

Roger Parloff: I think that and maybe Troy knows more on this, but I mean, I just think that it isn't simply a probable cause question. It's there's, because rule 41 there's also this issue that you don't want this to become the norm when any defendant is subject to a search.

You don't want him to be able to go into court and second guess the magistrate before any before any criminal proceeding has begun. And I think he wants to avoid setting that sort of precedent. And I think all the precedents that exists try to avoid having this become a something that happens in every single criminal case.

Benjamin Wittes: Right. Alright, let's talk about the rather amazing update we have in the case of the fired FBI figures who were involved in the Mar-a-Lago probe and dismissed last week. We talked about them last week, but it seems LT that they may have been working on Iran related stuff. So what do we know about who the FBI agents were who Kash Patel dismissed in a retributive fit the other day?

Troy Edwards: So what we know from public reporting now, and I'll get to this in a second, Representative Bennie Thompson's letter to Director Patel, is that a number of these folks were involved in focusing on counterespionage efforts of our foreign adversaries, particularly Iran. And I've disclosed this last time, I know these folks, and so I'll stick to what these kind of reports are saying.

These folks, these were focused on countering any espionage activities of Iran or other areas in the Middle East. What's worth talking about is in a heightened threat space, like after the U.S. and Iran or Israeli strikes on Iran, is how these agents operate in either the counter espionage or counter-terrorism space.

Folks in the FBI are tasked immediately with filtering through intelligence reports and leads that come from around the world. And their responsibility is to assess these threats and parse them out for credible threats and which ones to follow up upon which ones not. And particularly focused on threats to the home front in the United States after strikes like this.

So as they do that, they then pick out leads and intelligence worth following up on, and then seek legal process, for example, from AUSAs in the national security space and they'll get search warrants or subpoenas to be able to bolster up what we know about any potential individuals that are either traveling in an abnormal fashion or traveling into the United States.

A lot of that requires institutional muscle memory relationships to know which agencies they can go to, to find out what information and appropriately so if a case in case it becomes a criminal case, but also relationships and muscle memory that increase. And the ability for you to be able to react to these threats very quickly.

When Director Patel fires folks like this two to three days before U.S.-Israeli strikes on Iran, now you're able to almost quantify the national security threat that we're facing when they, when folks like Director Patel diminish our ranks, remove that institutional memory and increase the amount of time it may take for folks who have to fill this space and don't know either the people to call or the steps to take to get to the AUSAs for that legal process.

And that's not to say these folks aren't good at what they do, but when you remove those relationships in that muscle memory, you can quantify how much danger we may be in a heightened space after these strikes.

Benjamin Wittes: Alright message to Mr. Patel. It's never too late to do the right thing.

Alright, Roger. Speaking of important criminal investigations, I hear that the famed auto pen investigation has come to not, and that no crime, the Justice Department has determined, was committed by President Biden signing documents with an auto pen. What do we know and do we know even what crime they were investigating?

Roger Parloff: Apparently that was one of the issues that had the prosecutors puzzled. They had been, apparently, and what I know about this, I know there was a New York Times article from Mike Schmidt, Devlin Barrett and Alan Feuer. And Ed Martin had started an inquiry when he, back when he was U.S. attorney, interim U.S. attorney in D.C.—

Apparently Bondi ordered that this be investigated and the Times has a great line in here about the Jeanine Pirro prosecutors, he says, investigators were never quite clear what crime, if any, had been committed. So I think that was a big stumbling block. It had something to do with him allegedly not being mentally competent. That is Biden. And then using the autopen, maybe his aides.

I do wanna say Jeanine Pirro had I need to give her credit. I thought she had a funny tweet here. After Schmidt tweeted out his article the exclusive and breaking New York Times headlining headline about that this investigation being over she quote tweeted it and said, we cannot comment on ongoing investigations.

Which seemed to be a way of saying it is so ongoing while purporting to abide by the former DOJ manual.

Benjamin Wittes: Well, I have some questions about this that I hope you'll be in a position to address for me, Roger. So first of all was the auto pen used for official acts by President Biden, or was it used, to sign unofficial personal correspondence?

Roger Parloff: Yeah. My understanding is that these would be official documents.

Benjamin Wittes: So assuming arguendo that you found a crime that would otherwise be prosecutable, isn't the nature of the use of the auto pen for official acts, doesn't that necessarily put any presidential use of the auto pen within the zone of absolute immunity under the Supreme Court's opinion in U.S. v Trump.

Roger Parloff: You know, the authors of the article also indicated that the investigators stumbled over that hurdle as well. That yes, this would be absolutely immune even as he,

Benjamin Wittes: So in other words,

Roger Parloff: find a crime,

Benjamin Wittes: Biden would be absolutely immune for any violation of any law that they couldn't find that this might have violated.

Roger Parloff: Yeah. Okay.

Benjamin Wittes: Is there anything else that needs to be said on this very important investigation?

Roger Parloff: I think theoretically they were also supposed to go after aides, so maybe the theory was you could find a, somebody that conspired

Benjamin Wittes: Right. Aiding and abetting the absolutely immune violation of a statute nobody can identify. Alright, I'm just, I just asking questions here.

Alright. Molly Roberts let's talk about somebody who may actually be in trouble, which is not President Biden. It's Lindsey Halligan. I hear the Florida bar has questions.

Molly Roberts: You may have heard that the Florida bar did say that, but there is a little plot twist at the end of this story.

So let me start at the beginning. So I chronologically, what happened this week was the Justice Department proposed a change to federal regulations saying that it would let federal officials intervene in state bar disciplinary proceedings, having to do with its department attorneys. And they would essentially get a first look at any complaints about attorneys before the state bar.

That was a little odd because they don't have any authority to do that. They cited a bunch of regulations just generally about their ability to appoint their own attorneys, which, sure, that doesn't have anything to do with whether their attorneys are barred in a certain state.

Benjamin Wittes: Yeah. Although there, the traditional position of the Justice Department for about as long as I can remember, is that state bars should defer to the Office of Professional Responsibility as in the first instance, as to attorney discipline in you know, that basically they ask state bars to defer to OPR. OPR spends 10 years investigating something and then refers the results to the state bar.

Am I misremembering that LT?

Molly Roberts: Oh, he would know better than I would traditionally do it.

Troy Edwards: That's my memory. I'll disclose that. I never had to encounter the process.

Benjamin Wittes: You never had an OPR investigation directed against you?

Troy Edwards: I had—not that I recall

Benjamin Wittes: You, you did not put your toes on the line enough.

Troy Edwards: Yeah, I,

Benjamin Wittes: Sorry, Molly, go. Please do.

Roger Parloff: But I don't know if OPR still exists, but

Troy Edwards: Right,

Benjamin Wittes: Right. Of course.

Troy Edwards: Although I used to poke—your phrase reminded me. I used to poke—never that I knew him at all, but I poked Michael Hayden's book. I think it used to be called, like Chalk on the Cleats or something, or his phrase was always chalk on the cleats.

And my slight pushback to that was always, if there's chalk on your cleats it means you stepped out of bounds even slightly on the football field. And so I, I usually try to avoid the chalk lines and I think everybody else in DOJ does.

Benjamin Wittes: Sorry, you were saying Molly.

Molly Roberts: Yes. So I was saying that this proposal said that—

It was necessary because over the past several years, political activists have weaponized the bar complaint and investigation process. And so they needed to make this formal change to the rules whereby they would request that a state bar association suspend any parallel investigations until the department had done its review.

So that's what the DOJ said. Everyone was wondering sort of, okay, what's this about? Why this proposed rule? And the following day, the news that you mentioned broke, which was that the Florida State Bar was conducting an investigation into Lindsey Halligan. This came from a nonprofit group that filed complaints against Halligan with both the Virginia bar and in Florida.

She was an insurance lawyer in Florida before she joined the Trump administration and was operating in the Eastern District of Virginia. And that news broke and it wasn't that surprising to people who'd been following the cases. They were complaining about her conduct in the prosecutions of James Comey and Letitia James.

And as we've covered here on Lawfare Live, there was a lot there, particularly in the Comey case, everything from making fundamental misstatements of the law during her presentation at the grand jury, to presenting in court this indictment that wasn't the one that had been approved by the full grand jury, to presenting to the grand jury attorney-client privileged information.

So that was the alleged misconduct. People were pretty familiar with it. It made sense.

Benjamin Wittes: And do we know that's the conduct that the Florida bar is examining, or do we merely know that there is an investigation related to something?

Molly Roberts: So this—no the latter, but, and this gets me to the plot twist.

This is what we believe to be the case. Until today, the Florida bar said there is no such pending bar investigation of Lindsey Halligan. It said that all that happened was the bar received a complaint against Lindsey Halligan and opened a monitor file on that complaint as it does with any complaint.

But this was, again, kind of weird because the reason to believe that the bar had done this wasn't only that it had seemed to confirm an ongoing probe by saying it didn't comment on active cases, but also in its letter to the nonprofit that submitted this complaint, it said straight up, we already have an investigation pending.

So that's where we are now and what exactly happened and why. They said they had an investigation pending, and now all of a sudden say there is no pending investigation. We don't know.

Benjamin Wittes: Interesting. And do we have any sense? I mean, normally when a bar says that it has a pending investigation, assuming it's telling the truth that means we're x or 3x number of years?

Molly Roberts: Yes. Yes.

Benjamin Wittes: From a resolution of the matter, some bars are speedier than others, but none of them breaks the land speed record for investigative activity. Do we have any sense of where this Florida investigation, if it exists at all, is in the process?

Molly Roberts: I think fairly early. I think it would be a, this could take years thing.

The bar would've opened the investigation and it would be doing the fact finding, but then its recommendations would go to a grievance committee, which would have to determine that there was probable cause and then that would go to the courts. And I think we're at like the very beginning, even of the bar's investigation, fact finding investigation, if the, if an investigation was ever open, which they're saying it was not.

Benjamin Wittes: So Troy, you used to work for Lindsey Halligan for like a day and a half. Are, I assume that you are have full confidence in her ultimate exoneration?

Troy Edwards: I have no doubt at this time. She will remember which side of the courtroom to sit on.

Benjamin Wittes: All right. So Molly, let's talk about the New York Times's suit against the Department of Defense.

There was a hearing today in which the Times challenged the new press rules of the Department of War. My first question is in the court hearing. Did judge and counsel refer to it as the Department of Defense or Department of War?

Molly Roberts: Defense. Department of Defense. The case says that it is New York Times versus Department of Defense, also known as Department of War.

But there was a brief exchange, and I can't give you the exact words of it, because I was listening during, on the public access line and the audio was very in and out, but there was an exchange about how there had not been an act of Congress, and that was why he was saying Department of Defense. So

Benjamin Wittes: Interesting.

So, so we're still going with Department of Defense.

Molly Roberts: It was certainly also written above Department of War, although there was the also known as

Benjamin Wittes: Right on the, we, it's the first time a federal agency gets an AKA designation. Which, you know, we usually refer used for criminal, alternative names you know, U.S. versus Benjamin Wittes, AKA, the Spider or something like that.

But you know, I think AKA Department of War is a good one. All right, so what happened at the hearing?

Molly Roberts: Yeah, I did not know. You were also known as the Spider, so I'll find that out,

Benjamin Wittes: That just came out.

Troy Edwards: You'll be now, if that's all, that's what,

Molly Roberts: Get that edited on the little livestream title thing.

So I'll try to keep it pretty brief. The real TLDR would be that the judge seemed very skeptical of the government's arguments. But essentially this agreement is a 21-page agreement that media outlets were asked to sign last year that prohibits gathering or publication of information not authorized by the government.

And that doesn't just mean like classified information, that includes declassified information off the record conversations that you've had anywhere, basically anything that the government wouldn't really like you to publish, so wouldn't really like to be published. And journalists had to acknowledge that they could be deemed security risks and that their press badges would be taken away if they asked for this information.

And news organizations, including the Times, did not agree to that. And then their press access to the Pentagon was revoked. A new Pentagon press court was announced that included, like Laura Loomer and Matt Gaetz, and the Pentagon was very happy about this. Pete Hegseth posted a little waving goodbye emoji on X, and the Pentagon press secretary, I think also was sort of celebrating.

So the plaintiffs, the New York Times, argued that the order violated due process because it was unconstitutionally vague. It didn't tell journalists what normal news gathering that is First Amendment protected would cause them to lose this badge as it was so open-ended that it opened the door to arbitrary enforcement and then First Amendment, and that's where most of the argument was spent.

Kind of two points, a little technical. Basically the Pentagon's argument was this is a non-public forum. These are areas of the Pentagon that we've decided to open up to the press. So we have a little mobility to restrict there what news organizations can do. And the plaintiffs are arguing, well, even then, your restrictions have to be viewpoint neutral and reasonable.

And they're not viewpoint neutral, not they pointed out, and they were really clear about this, not based on ideology. Fox News has had its credentials revoked too, because it refused to agree. But based on the viewpoint that like journalists should be able to do journalism and that they should be something more than the mouthpiece for the organization, that they should try to dig beneath what the Department of Defense or War says and try to figure out what's really true.

And essentially that the policy gives unbridled discretion to defense officials to decide what outlets get to be in the Pentagon. There's a lot of focus on the Washington Post having solicited sources and the Pentagon saying that violates our policy. And then Laura Loomer asking for tips and the Pentagon saying, yeah, that's all good. That is completely fine. Go right ahead.

And sort of for the same reasons they were arguing the policy is not reasonable—They say anyone who's a security risk is barred, but the standards aren't concrete enough to actually have anything to do with national security. Also these non-public fora were opened up for the purpose of transparency. That's what the department had said about them. And so given that's the purpose, the restrictions aren't reasonable.

And then a second claim that was, this affects news gathering also outside of those fora. And so then that's a higher standard that the policy would have to meet. And that's 'cause anything that you publish also and facts that you gather not within the Pentagon, you could have your press credentials revoked for the Pentagon on the—

Benjamin Wittes: And who was the judge at this hearing?

Molly Roberts: Friedman. Paul Friedman was the judge. Bill Clinton appointee. Yes, he was, again very skeptical. It was sort of interesting because there was the AP case recently too, also having to do with press restrictions. And in that case, the judge allowed the restrictions to stay in place pending appeal.

We'll see what happens here. But this judge seemed really skeptical, and so the Pentagon argued that it has a compelling interest in protecting national security information. The policy's reasonable because it does so while still allowing press access. And it said access is a privilege, not a right. But of course, they did decide to open this non-public forum to some journalists and then created credentialing rules that the plaintiff argued our viewpoint discriminatory.

The judge sort of asked what exactly are you barring? And the Pentagon said, there are no hard standards. And then the judge said, okay, so if you don't have unbridled discretion, then what do you have? Bridled discretion? And he went into the Laura Loomer Washington Post thing too. And you know, he kind of laid into the policy that the Department has against reporters asking for information that's not authorized for release.

And he said, I'm not persuaded. All you have to do is say, I can't answer the question. But reporters have to be able to ask. And he's brought up the Pentagon papers, he brought up 9-11, he brought up Abu Ghraib, and he said, again, reporters have to be able to ask right now, independent reporting might be more important than ever because of the recent military interventions in Venezuela and Iran.

And at one point he said, that's what the First Amendment is all about. So very skeptical.

Benjamin Wittes: Alright. Let's do our weekly immigration roundup and for the cheeky person who last week got upset at me for using the phrase immigration roundup. I just wanna say, when I say immigration roundup, I mean a roundup of immigration cases, not a roundup of immigration detainees.

That is what the government does. We do a roundup of immigration law matters.

Roger, it was a bad week for refugees in the Ninth Circuit. Decision yesterday mostly allowing the suspension of refugee admissions in so what did the Ninth Circuit do? And what is the status of the matter?

Roger Parloff: Yeah, this is the Pacito case. And it's a, it has painful aspects, but I think it's probably not that surprising. And I don't know if immigration lawyers would go on the record and say that, but I, that's my, I suspect that's the, their, how they're reacting.

Pacito is the pseudonym for a guy from the Democratic Republic of Congo. He and his wife and his baby had gone through the process of vetting to become a refugee through the U.S. refugee admissions program and they were due to travel on January 22^nd, 2025. And of course, on January 20th, Trump became president, signed an executive order and said he was suspending the whole program.

This suit is not just Pacito, it's a class action. And they had, you know, they had sold all their belongings and had moved out of their rental place and so many people are in their position. And the judge in Seattle, Jamal Whitehead, who's a Biden judge, had issued a preliminary injunction in February, last February 2025.

In July, the U.S. this Ninth Circuit stated and yesterday, it wiped it out. But it didn't completely—Now, so this is suspending the program for those who are not yet in the U.S. the part of it that they did approve, affirm, Judge Whitehead was as far as funding organizations that provide refugee services for people that are already here.

There are other attacks that Trump has made on people already here, and those are in different cases. There's one in front of the D.C. Circuit right now that had been in front of Judge Moss where Moss entered in injunction. I think those, the people have a much better chance. This was a panel and to be frank, I haven't read the whole thing.

This is a long opinion. And it came out just yesterday. It was Richard Clifton of G.W. Bush; Jay Bybee, G.W. Bush; and Kenneth Lee, Trump. Those are the judges. And the only partial dissent was the Trump judge who would've done something even more callous. I'm not exactly sure what, I think he would've stopped the funding as well.

It's not a, it's a not a great I don't, where it goes from here is I don't know.

Benjamin Wittes: Alright. Meanwhile Judge Jia Cobb is added again, I believe this is the third time she has ruled against DHS efforts to restrict members of Congress from accessing ICE facilities. LT, what's different this time and is this like a one woman crusade to solve this problem that is doomed to failure or is she finally hit the right note to, to get this, give this legs>

Troy Edwards: Not if this was anyone's one, you know, woman crusade, it was Noem, who is no longer with us. But this now,

Benjamin Wittes: Oh, she's not dead. I mean, let's be fair. I mean, she's no longer in office. I think she is still with us.

Troy Edwards: For Lawfare purposes. The Judge Cobb's opinion, you're right, revolved around again, whether or not DHS could lawfully block, or prevent is the right term, members of Congress from engaging in their oversight capacity by stopping them from entering their facilities, the DHS or ICE facilities, because there is a rider attached to certain appropriations that Congress has issued to ICE and DHS, and this all flows from the appropriations clause.

So this is now the third time. The reason it's a third time is because DHS first issued this policy in June. And then in December, the court struck it down, or granted this TRO and paused it, and reverted it to status quo. But in January, on January 8th secretary—then-Secretary Noem who was among the living at the time issued this policy that was the same in substance, but tried to shift around the funds that purportedly were being used to effectuate this seven day block or the seven day notice requirement.

And so specifically, they were trying to shift away from these. Section 527, which is just referring to that rider limiting the funds and how they could be used. Shift them to the OBBA funds, the One Big, Beautiful, Bill Act funds, which had no such attachment to this section 527 restriction. And the judge later granted a TRO and now we're here where the judge is ruling more substantively under the Administrative Procedures Act to decide whether or not the, we should revert back to the status quo and bar DHS from implementing an effectuating this seven-day notice requirement.

And Judge Cobb issued in the affirmative for the plaintiffs stating that this whole move by DHS to shift around and say, no funds were used to effectuate this policy. Judge Cobb dug into that and noted that DHS didn't do its homework to kind of explain more specifically the history of the funds flowing through DHS that were used to effectuate this policy.

And then this kind of threshold position Judge Cobb dug into was to say, and even if you could, you promulgated this policy back in June through 527 funds with this restriction, meaning they dug all the way back up to the secretary herself and various offices, or at the supervisory level that are funded by this 527 money. That's how they promulgated the policy. So no matter what, if there's a new memorandum in place saying, well, now we will effectuate it with new money that's not tied.

The judge wasn't persuaded by that saying, yes, but you've created, you've promulgated this policy with 527 funds. So that's kind of a ruling on the past behavior. The current behavior of the judge focused on was whether or not DHS had done its homework and showed that this OBBA fund was true, that 527 wasn't used to effectuate it.

And even that wasn't persuading the judge because the judge looked at the purpose statement in the One Big, Beautiful, Bill Act and was able to show that the purpose statement of this $191 billion that came out of that act without this restriction or this rider was tailored only to things like hiring and training new agents, transporting them to locations for new operations.

It was not focused on implementing these kinds of policies and the case law around the appropriations bill tailors the purpose statements, the way the funds can be spent to those purpose statements because otherwise the executive branch would gain in far too much power, which would kind of overrun this appropriations clause where Congress is empowered to determine how the money should be spent.

And then looking forward to the future, the judge even focused on this stating—Because DHS focused on the fact that there's this lapse in funding and stated in their arguments, well, if there's this lapse in funding, then the 527 restriction on that rider can't be applicable because it's not in effect right now. And the judge looked at that and said that's not, persuaded—

She wasn't persuaded by that either. Because when there is this lapse in funding, there are these legal mechanisms triggered that state that DHS had accepted, or exempted activity that can be funded by various funds through Section 5 27 rider appropriations. Meaning there's this money that Congress already gave you that can trigger if we're in this exempted space.

And so the judge said that's where that money's coming from and that is attached to that rider. So the bottom line is the members of Congress are now reverted back to this status quo before any of this policy was implemented. And there is no seven-day notice requirement.

Benjamin Wittes: Alright. Meanwhile, Judge Tunheim has enjoined DHS’s new policy of arresting all refugees on the first anniversary of their entry.

Roger, I can't say this one surprised me. What do you make of it?

Roger Parloff: Yeah, and I think I've mentioned this situation before. He's judge. He had issued a TRO before and now he this is a fuller treatment of it. Yeah, this was a strange policy that began to be implemented in January this year.

And initially only in Minnesota, they have 5,600 refugees. Remember that refugees go through this program. They're vetted before they get here. They're admitted there. These are not inadmissible. They came in legally. They're given work permits and they're on a path to apply for LPR, for legal permanent resident.

And but they have to stay here a year before they can apply. And this—but there is a provision that says at the end of that time, you return or are returned. And the exact language is, at the end of such period they shall return or be returned to the custody of DHS for inspectiom and examination.

Well, for 45 years, that's never been understood to mean you are arrested. It means that you come in and there's a, make sure that you haven't done anything that makes you removable or that you, something about your thing wasn't, your application wasn't fraudulent, and then you become a citizen.

They began to arrest these people without warrants and ship them off to Texas for several days and then, you know, release them wherever and so he enjoined this apparently. This seems to be linked to in late November there was that terrible incident where the Afghan refugee probably deranged, killed two National Guardsmen.

And so in December, they rescinded the existing guidance on this program and said, we wanna bring them back and check to make sure they aren't terrorists basically. And that, this is the theory. And, but I mean, it's they're taking families with, you know, like 4-year-old children and it is just, it's just crazy.

And he issued the preliminary injunction. We don't have it hasn't been appealed yet. He just did that last Friday after or, and we didn't know about it by the, I didn't know about it by the time the show ran before.

Benjamin Wittes: All right. Let's do an update on contempt hearings in Minnesota.

They seem to proliferate like rabbits. What which ones have made it and spawned this week?

Roger Parloff: I've got two sets of contempt hearings for you. One Tuesday and one Thursday. Each judge summoned the U.S. Attorney Daniel Rosen and the civil chief who's now David Fuller, after Ana Voss quit. And also somebody from ICE. This time somebody from ICE knew a little more than most people from ICE have in the past, in my experience.

And, the one on Tuesday was before Judge Jeffrey Bryan, who's a Biden appointee. I'm about 170 pages through a 200-page transcript. It begins very testy, very testosterone, I would say with Rosen and Bryan sort of facing off. It quickly gets quite dull as Judge Bryan tries to find out what is the process for and what these focus on. Now, these are not these, this is focusing on the return of property.

So usually the violations are, they aren't released. Finally, they're released late. They're released in the wrong state. You get them back to the right state, Minnesota, and then they don't have their property. And usually, the property is very important. It's like, it's your ID, it's and so, and these are people with Spanish accents and brown and without their ID or even with it, it's very dangerous in that city.

And this is their work permit, their passport, their driver's license. It's also sometimes the whole wallet with all their bank cards and money. So it's an important thing. And so this Judge Bryan set down 28 of these cases for, contempt hearing. The other judge, Judge Tunheim again for Thursday, sat down about six.

And of course, by the time the hearing arrives, a lot of the property has been returned by then. And so cases drop out. In the case of Bryan, there were two where the property had been lost. Among the other case, there were about three other cases where it had not been returned, but it was at that point, fuzzy as to whose fault it was.

And one of the other complicating factors is that the property, when it comes back from El Paso, it goes to the Whipple building, you know, near the—I think it's near the airport. This the Minneapolis-St. Paul Airport, and it's the holding center, and it's the last place in the world that the petitioner wants to go back to, especially with no papers, 'cause they're gonna get arrested again and thrown in a van and taken to El Paso.

And so, they won't go and the lawyer has to go and sometimes the lawyer is sluggish about it. And so there is a dispute. So, anyway apparently the second hearing was calmer.

I spoke, or I talked to a, I communicated with Matt Sepic, who's an NPR news guy there who attended both hearings. He said things had calmed down. Rosen was even contrite at the second hearing, which is surprising. He said there was there's been no rulings in either thing yet. He said that one of the petitioners, a guy named Ricky, said that the ICE agents had told him they were going to—

He's here on a visa, U-1 visa with a work permit, and he was a roofer and they took his $400 nail gun and they also took his work permit and they told him, the ICE agent told him they were gonna destroy the nail gun. And he's, so there are things like that. I don't know—

Benjamin Wittes: Taking a man's nail gun is low.

Roger Parloff: Well, if you're a roofer and No I'm, I'm being serious.

Benjamin Wittes: I, you know, that's the tools of his trade.

Roger Parloff: Yeah. So anyway, we haven't heard yet. We haven't gotten the rulings.

Benjamin Wittes: Meanwhile, it is not just judges in Minnesota who are pissed off the bench in West Virginia is irritated as well. What's going on in West Virginia, Roger?

It's there was like a hundred-page opinion, which I haven't read, but they seem, the judges seem upset.

Roger Parloff: Yeah. There's a number of things going on. As I'm, I don't know if I mentioned it here last time, and these cases I'm aware of, I've read these cases, I'm aware of them because of Kyle Cheney's reporting.

But one of the interesting things happening is that we're metaphors, I've mentioned the mandatory detention issue where the Trump, you know, this statutory question that the Trump administration is saying, basically everyone has mandatory detention. You're not entitled to a bond hearing.

And what's happening is that, even when the judge’s order a bond hearing, they're finding that it's futile because Bondi has insured, you know, she's removed people that were doing neutral adjudications and sort of word gets out and there is now some empirical evidence, at least in through declarations that bond hearings where they occur are being systematically denied.

So they're saying that these are no longer, these no longer comport with due process. The, their, they're futile. We have a, a Judge Johnston, who's a George W. Bush appointee, and then we have Judge Berger, who's an Obama, I think, appointee both saying that the, you know, you just need to release them outright 'cause the, you're no longer providing due process by even affording them a bond hearing.

And then Judge Goodwin he did something unusual, which was, he's sick of go, you know. There's five judges in the, in that district, the Southern District of West Virginia, four of them have handled these cases and they've all ruled the same way.

And they've said that your mandatory detention theory is wrong. The people need to get a bond hearing. And nevertheless there isn't compliance.

And so he issued what he called a final notice. And I don't know what the—He says, continued detention without individualized custody determinations, after this court's repeated holdings that such detention violates a Fifth Amendment will result in legal consequences. For state jail officials, that means … civil liability for federal officials. That means contempt officials who believe this court has erred in its constitutional analysis may seek stay of this court's rulings pending appeal or pursue appellate review. What they may not do is continue systematic constitutional violations while preserving appellate objections and expecting this court to grant relief without enforcing its rulings.

Benjamin Wittes: Alright.

Roger Parloff: I, if I can just say I think that's, it's a bit of a cri de coeur. We have more cri de coeur ahead.

Benjamin Wittes: Yeah. And we're coming to a cri de coeur momentarily.

Roger Parloff: Drawing the line is difficult between my cri de coeur section and those—

Benjamin Wittes: All right. Well, we're gonna, we're gonna introduce Creed occur. Okay. Watch at the end of the episode.

But first let's get a three-letter case caption update on JGG and D.V.D.

Roger Parloff: Yeah. JGG, remember is in this weird posture where it's a class action on behalf of the 137 Venezuelans who were shipped to CECOT without due process. Everyone can agree there was no due process, that it was under the Alien Enemies Act, and then they were prison swapped to Venezuela.

And then some of them escaped to third countries and a number of them want to challenge even now their Tren de Aragua designation, which is still causing them problems. And they would also like to challenge the validity of the AEA. 19 of them have committed that they would come back and be in the U.S. and be incarcerated detained and challenged.

And so, the February 12th order was to the government to provide a joint status report and say, how will you bring back the ones that are in third countries? Also, is it now possible if things calm down in Venezuela that you can contemplate doing the same thing for people that are in Venezuela. And rather than file that status report, the government took an appeal this week and we sort of expected that they had sort of said, we've had it, we're outta here.

Benjamin Wittes: And what about D.V.D.?

Roger Parloff: D.V.D. you remember Brian Murphy on last week February 25th issued a summary judgment for the petitioners. Again, this is the third country removal cases, said that your, that the DHS policy for third count country removal is unconstitutional and illegal under the statute.

And today the or today or yesterday the government sought an emergency stay. At the first circuit and made clear that if the First Circuit didn't grant that they would go straight to the Supreme Court where they have one stays at least once before, twice if you count—There was a relate, I can say twice.

Benjamin Wittes: All right. Which brings us finally to a new feature that we are inaugurating on this show this week. We kind of inaugurated it last week, but it, this is cri de coeur watch, or the cri de coeur roundup.

As Roger says, the line between merely a judicial warning or complaint and a cri de coeur is fuzzy. This we reserve to Roger's unreviewable discretion.

The standard of review is not abusive discretion. Roger is entitled to abuse his discretion and include or exclude anything he likes from the cri de coeur roundup. This week, we have two entries in it. Roger, who are the creed occurred judges this week.

Roger Parloff: One is Judge Farbiarz, who's, you may remember his name.

Michael Farbiarz in Newark.

Benjamin Wittes: Yeah. He is not the most coherent judge in the world.

Roger Parloff: He's a he is a sort of verbose

Benjamin Wittes: yes.

Roger Parloff: And but he you know, you know him from the Khalil case, but this is a different case. He got bent outta shape by all of the violations of orders in Newark and had the government count them and they were about 52 over a pretty short period, 17 of those involved violations of no transfer orders, meaning don't take him out of New Jersey and, to put him in the Fifth Circuit, usually Louisiana.

And there were 17 violations, so that came to three every two weeks over the period that he was looking at. And so instead of trying to determine whether ICE officials were, you know, holding an evidentiary hearing and trying to determine whether they were acting willfully or not, he decided that he would instead look at this on a going forward basis.

And now every time there is a release order or an order of no transfer, he wants the deputy director or director of the Newark Field Office of ICE to sign off on knowing that it was issued. And then if these things continue not to be followed he makes the point that there will be, willful blindness.

I, you know, at some point, I don't have to keep proving that you, on this occasion, me, you just aren't acting to improve the situation. So he will find them in criminal contempt on a willful blindness theory. So, I nominated him for cri de coeur occur for this.

Benjamin Wittes: All right. So who else gets a cri de coeur?

Roger Parloff: The Eastern District of New York Gary Brown, and I have to, I'm afraid I have to tip the hat to Kyle Cheney for this one again. He sits in Central Islip. He's a Trump appointee, which would make this more powerful, although I think in reality, Obama was the first one to propose him and some sort of compromise led to him being appointed.

It involves the case of a guy who came here when he was nine from Honduras as a special immigrant juvenile, SIJ, that means you've been abused as a minor and they let you, and they can't possibly send you back to, you know, to the conditions you came from. And he grows up and he graduates with honors and he goes into theatrical lighting.

And he's 24 and they arrest him on a without a warrant. He's shackled, he's detained. They realize they have the wrong guy, but they don't release him anyway. And they try to get an arrest warrant retroactively. This judge orders him released, ICE imposes its own conditions, an ankle bracelet, they won't give him back the work permit.

And then DHS tries to revoke his work authorization that it was associated with his SIJ status. And Judge Brown writes that's a reprehensible act of unimaginable cruelty, even after this court set the terms and conditions of petitioner's release, ICE imposed additional unsanctioned conditions upon him.

And then DHS imposed a hefty fine to offset the cost of his illegal apprehension. This isn't how things are supposed to work in America. Unquestionably, the laws of human decency condemned such villainy. All right.

Benjamin Wittes: I think that counts as a cri de coeur.

Roger Parloff: Yeah.

Benjamin Wittes: Alright we have four questions and I do not know the answer to the first one, which is from Joyce, but maybe somebody else does.

What do we think about CBP telling the court in the tariff case that it is unable to comply with the court's order, that it refund the illegally assessed tariffs paid? How can the court enforce its order? So I have not followed this carefully in the lower court since the remand from the Supreme Court.

If any of you have and have thoughts on this, feel free to jump in.

Alright, Joyce, we are gonna have to get back to you next week on that. And we will.

Ian asks, when discussing a case like the Fulton County case, why do we refer to the feds as “the government” when the other party is also a government? Well, first of all, a nomenclature issue. It's not the government.

It's the Government. And there's a bit of convention here in federal court. It is conventional to refer to the government party as “the Government” with a capital G. It is correct of course that when there are other government plaintiffs or government defendants that is slightly imprecise, but the, I believe “the Government” in federal court generally, it's not really a term of art, but it means the federal government.

And often when there's a state party or a county party, it will be described by the name of the party, for example, New York or the state, or Fulton County. But yeah, technically you're right, it should be the government of Fulton County. As a general matter, that's not gonna happen in a federal court setting, “the Government” will generally refer to the federal government.

I'm not sure there's a reason for that. It's just a convention.

Andrew asks big picture question. How qualitatively would you rate the effort by litigants to use the federal judiciary to curb immigration enforcement abuses by DHS?

It seems like a very mixed bag with district courts often getting reversed by courts of appeals or the Supreme Court, like the Seventh Circuit yesterday vacating the preliminary injunction restricting DHS's conduct in Midway Blitz.

Does this pattern speak to confusing, regarding to what extent courts should defer to the executive on immigration matters, and could Congress clarify that somehow? Roger, what do you think? How do we assess this?

Roger Parloff: I think that the courts get more and more conservative as you go up the ranks.

And that's what we're seeing. Yeah, I don't know if it's more complicated than that. What do you think?

Benjamin Wittes: I think the first of all, remember Andrew, that the percentage of cases that don't get appealed is quite high. And so the amount of power, the number of people who get released because a district judge orders them released is quite high.

And the number of people who you know when the Courts of Appeals or the Supreme Court reorients the district courts on a matter, that has of course a big effect across a lot of cases. But at the end of the day, you still have to litigate in front of the district judge.

And as Troy was describing before with Jia Cobb, you can come in and to the same district judge over and over again with the same issue and get, you know, a judge who really doesn't like what you're doing, can find ways to make trouble for you. So I think, look I agree with Roger that there's a lot that has gone on in the Courts of Appeals and particularly the Supreme Court that is very frustrating from the point of view of people who want to throw wrenches into administration conduct in these immigration cases.

But boy would you not want to be in an environment in which this stuff wasn't getting litigated. And, you know, the total amount of breaks that the court system has put on the administration is enormous. And I don't think we should lose sight of that. Even as we, you know, maybe criticize the fact that the higher echelons of the court are more reticent than the lower echelons about getting in the way.

Roger Parloff: I think that's right. But I also I have a lot of trepidation about, you know, if the Supreme Court finally grants some of these jurisdiction stripping provisions arguments you know, we're just gonna wipe away whole swaths of the litigation that is keeping this thing on the rails. And so I'm very concerned about that.

The other thing we see—

Benjamin Wittes: Can I just say something about that? That is certainly right. It is not clear to me at all that the problem there will be the Supreme Court's conservatism as opposed to Congress's grossly irresponsible behavior in writing these jurisdiction stripping provisions, which the Supreme Court will not be making up.

They are provisions that Congress wrote into law in order precisely to deprive people of access to the courts in situations like this. Now, were they imagining Stephen Miller and Donald Trump? No. But were they imagining situations in which you might wanna deport a lot of people? Yes. And so I, to go back to Andrew's question would, could Congress clarify this situation? Absolutely.

And one thing it could do is get rid of some of those jurisdiction stripping provisions. That would be a really healthy way to intervene in this situation.

Roger Parloff: The other thing I was gonna say is that you see a lot of gamesmanship by the government in terms of which cases it appeals.

So like with these mandatory detention cases, it took expedited appeals in the Fifth Circuit. Which it won instantly. And in the Eighth Circuit it's been dragging its heels everywhere else. And that's why those judges in West Virginia are pissed. That judge, I didn't name him, I, Richard Goodwin or Goodwin, at least I, is his last name I think was the one that was giving final notice.

I don't know if that's legally right, but what he's saying is, why don't you appeal? Why don't you appeal us? If you don't like these rulings, go to our go to our circuit court. But don't keep forcing us to, you know—and there have been class actions and they don't appeal those, you know, there's a class action on this in the Central District of California.

It's a class action declaratory judgment. And also she used the APA and said this this policy you have of interpreting the statute that way, which changes from 29 years previously is an administrative, you know, is a final order. And we, I vacated and that should have national effect, and they should have appealed that, but they didn't.

And so you just have thousands of cases being decided one after one. So the, and the Supreme Court did this, you know, with the CASA decision, it made it harder to bring class actions. And even though, you know, we have thousands of courts deciding the same exact legal issue. It's crazy.

Benjamin Wittes: We have one last question, and I just wanna say upfront, I have no idea what the answer to it is, and hat tip to any member of the panel who has any insight into the answer to this question from Reese.

In a Truth Social post, Trump seemed to have directed the United States International Development Finance Corporation to provide insurance for oil tankers transiting the Straits of Hormuz. Is the DFC an independent agency, does that even matter or mean anything? And anymore, how would potential insurance payments be made and where would those funds be drawn from?

Does anybody have any insight into the constitution or behavior or activity of the development finance corporation?

Molly Roberts: No, but someone could ask Lindsey Halligan. I hear she's an insurance lawyer.

Benjamin Wittes: I hear so too. Sorry, Reese, we got nothing for you on the DFC. We're gonna wrap up we're gonna be back next week.

Thank you to Troy Edwards, AKA, the Jackal. Thank you to Molly Roberts, AKA, the Kettle. Thank you to Roger Parloff, AKA, the Leopard. I'm Benjamin Wittes, AKA, the Iguana. And this has been a production of Lawfare.

Our audio engineer this episode is the great Anna Hickey, AKA, the Engineer. And you can become a material supporter of Lawfare at lawfaremedia.org/support where you can pose your own absolutely impenetrable questions and we will struggle to answer them. Guys, you got, before you give us development finance corporation questions, you gotta give us a little heads up about that.

We will be back next week. Thanks for listening.

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