Lawfare Daily: The Trials of the Trump Administration, May 22

[Intro]

Quinta Jurecic: Despite, I think the kind of generally genial manner of Judge Murphy on the, on the case and his willingness to give DHS some wiggle room and not requiring that these individuals in South Sudan be immediately returned to the U.S, it did seem to me like that requirement for a declaration and for that notice was potentially a real problem for the government here.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittes, editor-in-chief of Lawfare with Legal Fellow James Pearce and Lawfare Senior Editors Quinta Jurecic and Roger Parloff.

James Pearce: The real question here will be, how extensive does a court interpret this concept of a legislative act? I think under the D.C. Circuit case law, she'd have a pretty compelling argument that she was engaged in a legislative act, kind of irrespective of what the facts looked like on the ground.

Benjamin Wittes: In the May 22nd Trials of the Trump administration, we discussed a court hearing over the attempted deportation of immigrants to South Sudan, the arrest of Democratic Representative LaMonica McIver, the Supreme Court opinion allowing President Trump to remove members of independent agencies and so much more.

[Main Podcast]

So, we are going to start today with what we're not gonna talk about. We're not talking about Harvard University today, even though it is sure to end up playing a big role in some future Lawfare Live. And the reason we're not talking about it is because you guessed it, it's not in litigation yet.

The administration has announced that it is going to be prohibiting Harvard from enrolling international students. And I am personally confident that this will be, I sort of expected them to have sought a TRO already. They haven't yet, at least to my knowledge. And so we because this is the Trials and Tribulations of the Trump Administration, there has to be some trials. There has to be something going on in court before we're gonna touch it. So, you know, maybe next week.

We're gonna start this week with one of the three letter cases and we're gonna spend a bit of time on it, D.V.D versus DHS. It's actually two, three letter cases, three letter things in one case we're gonna get to it in just a moment, but before we do, I have an announcement to make.

There is new content on the Lawfare website. It is a new Trials and Tribulations page. And integrated into it is a Bluesky feed that we are now using for all live tweeting that we do of hearings and that sort of thing. So you can now follow along Anna's live coverage, Roger's live coverage, Quinta's live coverage sometimes Tyler McBrien’s live coverage on Bluesky from the Lawfare homepage itself. It's really awesome. A lot of people have been asking for it for a long time, so check it out. And now you never need to go to Bluesky again. You can even cancel your account. Everything you need from Lawfare is right there before your eyes.

Alright, let's talk D.V.D. versus DHS. Roger, remind us which of these cases this is because, you know, I certainly can't keep them straight.

Roger Parloff: Yeah. This was a class action, is a class action. And it's for people who have final removal orders. But for one reason or another, they can't be removed to the country that's designated in the removal order. The country, almost every removal order will designate the country you're from, the country you're a citizen of.

And sometimes you can't be removed there because for instance, you might have won a you might have made a credible showing that you face persecution there, in which case they'll issue what's called a withholding of removal. Or you might have made a credible showing you'll face torture there, or there can be things unrelated, like just the fact that we don't have good relations with that country, or that country won't accept you. So it could be like Venezuela or Cuba or something like that.

So basically what happened was until the current Trump administration. If you had a notice of removal and, and for some reason you couldn't go to that country and they wanted to remove you to a third country, which they can do if they wanted to do that, they would give you notice and they would give you notice so that you could raise these statutory rights about to try to show you face persecution in that third country, or you face torture in that third country.

That changed on about, I think February 20th. It was quietly changed by the DHS. They just dropped it and they took the position, oh, you have a final order of removal. We can just take you off the street and remove you with no further hearing. You've had your hearing. And so that's what happened on March 15th on with that third plane.

All those people in the third plane that went to El Salvador, they were Venezuelans except for Abrego Garcia. And the the theory was, well, they had final orders of removal and we didn't need to warn them about which third country. So at that point there was a suit filed. It has four plaintiffs from different countries, different situations, and one of them is already abroad.

His name is O.C.G. He'll come up later. He was Guatemalan, he had a withholding of removal for Guatemala and they removed him to Mexico. No process. And he says he feared going back to Mexico. He had been raped there. He had actually discussed it at his INS hearing on his withholding of removal to Guatemala, Guatemala. But the immigration judge said look, we're focused on Guatemala. That's where your order of removal is. I'm not gonna discuss Mexico. So he was removed there.

And at that point he was given a choice. He was put in jail. And, and this is part of the issue with, with these third party removals, third country removals. And they said, well, you can apply for asylum in Mexico, but you'll have to stay in jail indefinitely because we're backed up and we don't know when that will be. Or, we'll remove you to Guatemala, which is where you're from. And so that's one of the problems. It's called double refoulement. I never heard this word before, but, or chain refoulement, which means you go, one danger with sending them to a third country is that you're not a citizen of that country either.

So they're gonna send you back to your home country, which is where you feared and showed you had a credible fear of either torture or persecution. So he decided, you know, rather than stay in jail indefinitely I'll, I'll take my chances in Guatemala and I'll go into hiding. And so that's where he is now.

And so we'll, we'll hear a little more about him, but once he filed suit. The, the government responded and said, well, actually, he, he, he said he had no fear of Mexico going to Mexico. He told the DHS guy that, so we'll come back to that. He, he denies it. He said, of course, I feared Mexico. Anyway, moving on.

There was a TRO entered in March 28th, and then a that was expanded into a preliminary injunction on April 18th. And the preliminary injunction says, prior to removal to a third country the government has to provide you with meaningful opportunity. Well, first of all, they have to give you notice of the third country, and it has to be in a language you understand.

And then you get a pro, a meaningful opportunity to raise a fear of returning because of torture. And and then if, if you, you, you get a screening called a reasonable fear screening. And if the ICE official doesn't agree with you that you have a reasonable fear, you get 15 days to reopen to try to challenge that in an immigration proceeding. So quite a bit of process it seemed.

The government tried to stay that the First Circuit denied a stay unanimously. That was April 22nd. After that, and all of this is prelude is, is relevant 'cause you see what Judge Brian Murphy of, of the District of Massachusetts is going through.

After that, it develops that after he entered his TRO four people were sent to CECOT with which is a third country despite his order. When he asked about, and when the plaintiffs asked about how that happened, they said, well, we didn't violate your order. We, DHS, we sent them to Guantanamo where there's a ICE camp.

And then DOD took them and DOD–Defense Department–took them to CECOT. And Defense Department isn't a, isn't a defendant here, and there were no DHS people on the plane. So there was no a violation. So that was something that is in litigation was. Was that that was already in litigation before? What we're talking about was that a contempt?

Then we find out OCG the his deposition, OCG’s lawyers get to depose ICE about this supposed statement that he made to an ICE officer saying he didn't fear Mexico. And the day before the deposition, the government cancels it and says, okay, we can't find anyone who will say that this really happened, so we're going to concede that he probably didn't say it was okay to send me to Mexico. So Murphy is upset about that. He wants to get to the bottom of that as well.

And then on May 7th, there's this story in the press and it is a real story. And the, and the attorneys are hearing the same thing from clients that a group of people are about to be sent to Libya without seemingly without process in violation of the order. And so they seek a TRO from Murphy, and Murphy says there's no need for a TRO. This is already forbidden under the preliminary injunction.

He says, if there is any doubt, the court sees none. This is a written order. The allegedly imminent removals as reported by news agencies, and as plaintiffs seek to corroborate with class member accounts and public information would clearly violate this court's order. And I think that brings us up to about two or three days ago, and I think I'll pass this off to Quinta.

Benjamin Wittes: Alright, Quinta, you're up. What happened two or three days ago?

Quinta Jurecic: Yes. So as viewers can tell, this case is really just the case that does not stop creating or it's not the case that's creating the problems. It's the government that's creating the problems.

So we had this incident, as Roger said, where the court was notified that the government was trying to move people to Libya. The court blocked that. Then the other thing that happened in the last few days was that there's, there was another filing on the docket from plaintiff's counsel saying that two individuals had, who were members of the class had been informed that they were going to be removed to South Sudan and that they had essentially received that news late in the day, sometime early this week. And the next morning had been loaded onto these planes. It was a little unclear at the time, precisely how many people were headed where, and we will get into that.

But the, the long and the short of it is, it seemed like kind of a, a repeat of this, the same Libya situation except this time with South Sudan. And I should say that I think it was extremely unclear what rationale the government actually had for why it was supposedly able to take this action despite the fact that it had been very clearly blocked from doing so. And that in the Libya case where the, government tried to be let's say a bit cute. The judge had blocked that.

So all of this brings us to the evening I believe of May 20th where there, there was a hearing which I will note was not did not appear on the docket much to my annoyance because I had been refreshing the, the docket every like 15 to 30 minutes since this original filing from counsel had appeared. Nothing happened. Nothing happened.

I thought, wow, Judge Murphy is really, you know, slacking here. This could potentially be really bad. And then there was a New York Times story that Judge Murphy had in fact held a hearing and it was just never noticed. So I'm not sure what the story is there.

But it seems like what happened is that Judge Murphy essentially held the first part of this marathon hearing then, and then that continued at 11:00 AM the next morning, which is where Roger and I entered the picture because the, the court kindly allowed us to actually listen in remotely. So at this point we have set so much groundwork.

So just to, just to bring everyone up to speed, there are several different problems here, right? There is there's the South Sudan issue. There's the issue of Mr. OCG who was removed to Mexico despite the fact that he never had a credible fear interview.

There is the Libya issue, which has led to a dispute over whether DOD should be added as a party to the case or Libya and Guantanamo as a party to the case to prevent DHS from trying any of this kind of tricky stuff again. Also related to OCG, there's an issue of whether DHS is engaging in chain refoulement.

And then there's the issue of how, how we want to respond to the fact that it appears that the, the order was violated. So there's a lot going on. This hearing ran, I think from around like 11, 11:30 through four with some breaks in the middle.

So candidly, I think I am still recovering a little bit. I, I dunno about Roger. I'll give a very high level overview just because this was such a, a very long hearing. But I think that, here's my top line. I think Judge Murphy, I have not heard him or seen him in court before. I think he had a very sort of friendly, mild manner, let's say. He sort of came off as like wanting to kind of help everyone out.

He kept saying, you know, gimme some guidance here. He didn't come off as angry in the way that Judge Boasberg has in some of similar hearings when it seemed like his, his orders had been violated. But he was definitely not messing around. He kept saying, I have to take these, these things really seriously.

This, this speaks directly to the integrity of the court. And he did use the C word–contempt–multiple times in fact. He, he wasn't quite moving to that stage yet, but it is clearly on his mind. So, the takeaways, what we ended up with at the end of the hearing was a memorandum clarifying the preliminary injunction.

So this is a, this is about both the individuals who are currently in South Sudan and then also requirements going forward. So this essentially says, look, you can't, you can't remove somebody in the middle of the night essentially. There, there needs to be a written notice in a language that the non-citizen and the non-li, excuse me, counsel, can understand.

There needs to be a minimum of 10 days for the individual to raise a claim for protection under the convention against torture. And then if the individual raises a claim of, of reasonable fear and the administration does not find it to meet the standard they must then receive a full 15 days to seek reopening of the procedures in immigration court.

So essentially the judge is taking the initial preliminary injunction, which was a little vague on the specifics and just making it very, very, very specific to give DHS even less wiggle room. Then we moved to the question of, okay, what's gonna happen to these individuals who were headed to South Sudan?

That there's also a question of just where these people. Are right now. There was a closed portion of the hearing. So we don't know what exactly where they are. I think we had some, some hints. There was speculation on that I saw on social media from flight tracking systems that there was a flight that may well have been this flight.

I believe the times reported that it, it likely was that it landed in Djibouti. There was a reference made by a DHS lawyer at the end of the hearing to coordination with the Defense Department in terms of where to house these individuals. In the meantime, which I think is a tip off that it may well be in Djibouti because there is a U.S. military base there.

But the, the short version is that the judge gave DHS the option of keeping these individuals where they are. So we assume Djibouti, but we don't know in order to then have to provide them the legal process that they would have received had they never been removed in the first place. So they all need to get a reasonable fear interview under the convention against torture to see if they have a reasonable fear of being removed to South Sudan.

They need to have access to a phone where they can call family members, lawyers. They need to have a lawyer's phone number. They need 72 hours before they receive that reasonable fear interview. And then again, we have this 15 day window if the fear is not as not determined to be reasonable to allow them to reopen immigration proceedings, at which point DHS would have the option of moving them back to the United States for those proceedings.

Judge Murphy did say over and over again, you know, look like this is gonna be pretty onerous for you guys to figure all of this out. I should say he also specified that these individuals need to be kept in U.S. custody. So no funny business about moving them into some kind of, you know, analog. So Judge Murphy was essentially saying, you know, look, this, this is gonna be pretty onerous for you guys to figure out the mechanics of this year.

You could just bring them back to the United States, but you do have this choice. And he kept emphasizing over and over again that, there was going to be you know, he was, he was really working to keep the order narrowly tailored. He was really not trying to sort of overextend his authority here. I am somehow only halfway through. There are three more things that Judge Murphy did.

Benjamin Wittes: We budgeted plenty of time for this conversation Q.

Quinta Jurecic: I'm hoping I'm not losing our listeners. The, so there are three more things that Judge Murphy wants, and they all have to do with declarations, sworn declarations from the government.

The first one has to do with one of the individuals who who's situation is a little confusing. This is an individual and their initials are N.M. They're from Myanmar. It was initially reported on the, on the docket that they were one of the individuals who had been planned to be moved to South Sudan.

It then appeared that this person who I believe is male was moved not to South Sudan, but actually back to Myanmar. Which raises the obvious question, if the government was arguing that they could move this person to South Sudan because it was impossible to move him to Myanmar, how is it that he's now in Myanmar?

And the answer appears to be that the government had determined that it was the term is impractical in advisable or impossible to return N.M. to Myanmar until they then spoke with N.M. along with N.M.’s lawyer, at which point the department changed their mind and decided that it would in fact be practicable, advisable, or possible to return him to Myanmar. And so that is where he, he is now. Judge Murphy was not happy about this and did ask everyone's favorite DOJ lawyer Drew Ensign whether or not the department treated individuals equally, whether or not they had access to counsel.

So I think that is what he's trying to drill in to here. How was it–if the whole point of this case is these are individuals who the department has determined cannot be returned to their home country–how is it that this person, you know, they were about to send him to South Sudan and it magically turned out that they could send him to his home country anyway? So, Hudge Murphy is asking for sworn declarations about kind of the specifics of how this change occurred. That's one.

Two, he wants a declaration regarding chain refoulement. And this is actually framed not in the language of OCG's case, the deportation to Mexico and then removal to Guatemala, although that also involves the same concern, but actually the, the removal of these individuals to South Sudan.

And the reason that chain refoulement comes up there as well is that there was a news story where a South Sudanese official stated that if the U.S. removed people to South Sudan, that these individuals would then be removed to their home countries from there. So you can see how that would constitute chain refoulement, if this were an individual who had a withholding of removal to their home country. So Judge Murphy wants a declaration about the mechanics of this and how, what the department is doing. That's number two.

Number three, this I think was the most interesting one. This has to do with compliance with the preliminary injunction, which has now been sort of excruciatingly clarified. And what Judge Murphy wants here is a declaration from attorney of record on this case that notice of his clarification of the PI has been provided to all persons involved in the removal process.

And he kept emphasizing during the hearing that he means, like everyone in ICE, everyone in DHS who is involved at, involved at every stage of removing a person from the country, you know, the, the ICE agent who puts you on the plane and sits down next to you, everyone they all need to have notice of the clarified injunction. And they all need to be told that, if failure to comply with the terms of this injunction may subject them to civil or criminal contempt under the federal rules of civil procedure.

And Judge Murphy was very, very blunt about this in saying and this is a quote from my notes. Everyone involved in a deportation risks criminal contempt, so long as they were aware. So he is really trying to, I think, box the government in here, both by requiring that everyone be alerted to this. So people are individually, potentially at risk of contempt and he wants a sworn declaration from an attorney of record on the case so that if that doesn't happen, then that attorney is also in trouble.

So just again, despite I think the kind of generally genial manner of Judge Murphy on the, on the case and his willingness to give DHS some wiggle room and not requiring that these individuals in South Sudan be immediately returned to the us it did seem to me like that that requirement for a declaration and for that notice was potentially a real problem for the government here.

And it will be interesting to see how that bears out so that the previous two declarations were due on May 22nd, and that one is due on May 28th. I have now talked for a long time, Roger, is there anything major that I am leaving out?

Roger Parloff: Nothing at all major. And maybe nothing minor, but I'm gonna say something anyway that he was, even though he put off any to, to another day, any issue about criminal contempt, he did say very clearly the department's actions are unquestionably violative of this court's order.

And he said over and over again, they, what they did, what they provided was plainly insufficient in terms of due process, a meaningful opportunity to bring a challenge. And, and in fact the order that he issued the does not, is not called an amended preliminary injunction. It's called, I think something like remedy for violation of the order.

And he sort of has to do that 'cause the thing is on appeal and he's not supposed to amend the preliminary injunction, but it's clear that he regards the order as having been violated.

Benjamin Wittes: Alright. Both of you, I have one question about this case, which is, why is it that DHS thought in the presence of an order that says you can't deport anybody to a third country without doing the following things that it was okay to send them to South Sudan? What, like, do we know where this kooky idea came from?

Roger Parloff: I, I have two answers. One is, there was ambiguity in the first, in the original order about what is meaningful opportunity to raise a reasonable fear claim. There it was clear that if it was rejected, you got 15 days, but it wasn't clear what it, how much time you got to raise the claim.

And what they interpreted it, it as was when they start taking you to the plane, you're supposed to start shouting, hey, I have a reasonable fear. You know, you're suppo- and, and if you don't do that, you're not manifesting a reasonable fear. That's your, your opportunity. That's what they said, and he rejected that.

I would say the other argument is political and, and we should have mentioned this, that they do say that these are really bad guys. They say that they have been convicted of either murder, rape, or robbery.

Benjamin Wittes: But, but hang on. The court order doesn't say except if they're really bad guys, right?

Roger Parloff: No, it doesn't. That's why I'm saying this is the political thing. It may be that they made a political decision, okay, let's violate the order, but, but show people that we're put, you know, we're putting away bad guys. So, I don't know. There's a legal answer to that, which is the, the one, the first one I gave, and then there's the political answer.

Quinta Jurecic: I think. I think that's right. It is notable that this is a very similar move to the move that the DOJ tried to pull in A.A.R.P or W.M.M. what, whichever we're calling it, the case in the Northern District of Texas where they tried to remove individuals under the Alien Enemies Act. And argued that I think it was 24 hours, less than 24 hours was adequate notice under the Supreme Court's order in J.G.G.. That's, there's a similar sort of playing with the, the meaning of meaningful. I will say there was a really striking moment during the hearing where I think her name was Eliana Perez who was saying, you know, well, you didn't tell us what the specific time period was for a meaningful opportunity.

The judge then said, you know, look, we can debate the contours of meaningful opportunity. But do you really believe that these individuals had a meaningful opportunity to object overnight? You know, at no, he kept harping on this. It was not within business hours. They were alerted at, you know, around 6:00 PM in the evening, and they were put on the plane at 9:00 AM in the morning. They did not have time to call a lawyer.

So, so the judge asked, you know, do you really think this is a meaningful opportunity? At which point there was a long silence. I did not time it, but it had to have been like five, 10 seconds, just dead silence on the line. And then who appears, but Drew Ensign like a, a fairy here to answer all of our questions. And he, he said, yep, we think that was totally fine. So it was pretty striking that the, the judge was pretty astonished, let's say that DOJ was, was really making that argument.

Benjamin Wittes: Alright. Let us move on to from the first case. So far we've only managed to discuss one case, but it's been a heck of a discussion. Somebody in the YouTube chat, James says there has been a court order blocking the international students bar at Harvard already. Do you have any information about that?

James Pearce: So I just was trying to take a look and I could not chase down the docket. The reporting that I'm seeing suggests a judge has blocked the administration from removing, arresting or incarcerating, currently enrolled foreign students which, which may certainly seems related to the administration action. But I haven't actually, but it's–

Benjamin Wittes: Not a case brought by Harvard.

James Pearce: It, it doesn't sound like it. As I said, I, I, I struck out in, in trying to find the relevant docket, so this is just reporting from the ap. I don't know if, if anyone else has found it or I can dive in again, but I, I, there does seem to be reporting to that effect, but it does as a, as mentioned, appear to arise in an, an existing litigation. It's not a new challenge as, as far as I understand it.

Benjamin Wittes: Gotcha. Alright, so let's change subjects almost entirely and talk about how this is the part of the story where we're arresting and charging members of Congress. Specifically James a member of Congress has been charged with impeding and assaulting law enforcement officers for in the course of a visit to an ICE facility. Give us a sense of what happened and what kind of charges is she facing.

James Pearce: Sure. This arises out of an incident that we've talked about before here on, on Lawfare Live, perhaps last week. It was a visit on May 9th to Delaney Hall in New Jersey from by a couple different members of Congress. Delaney Hall is an immigration facility of some sort, and so I believe it was three Democratic members of Congress were going to kind of take, take a look at the facility and when we spoke about it before and, and, and reporting has, has I think detailed this somewhat extensively.

The Newark Mayor Ras Baraka showed up. He, unlike the members of Congress did not have the sort of the credentials that allowed him to enter the facility, not a federal official. And so there was a, a scuffle. He was arrested and some folks may remember he was ultimately charged by the, the U.S. Attorney's Office for the District of New Jersey under interim U.S. Attorney Alina Haba with a trespassing offense that trespass charge was dismissed at some point within the last few days.

Some reporting has also suggested that the magistrate judge had some pretty strong words for the U.S. attorney's office about their obligation to to do justice. And although the magistrate judge thought that ultimately that the dismissing the charge was, was correct, that the charge perhaps never should have been brought. You might have thought that would be kind of the end of, of the matter.

But in fact it was not as you, as you mentioned, Ben when we learned I think this was on, on, on Monday of this week, that one of the three members of Congress LaMonica McIver was charged federally with, with two counts. The statute she was charged under actually has a, a kind of a little bit of, of confusion. It's referred to typically as the federal assault statutes 18 U.S. Code 111. And the, the specific language is whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with essentially a, a, a federal officer is, is therefore you know, has committed a, an assault.

And then there, there are three different layers of assault. The, the criminal complaint essentially alleges that McIver along with others, try to form some kind of a human barricade to try to stop federal authorities from arresting Baraka. And in so doing that McIver, I think in, in, in public reporting has said something like, body slammed, the actual criminal complaint says something like, uses her forearm against some, some federal protective officers who were, who were there on scene.

What, you know, I'll leave the, the kind of the politics of this and the the aspect of potentially, you know, targeting mem-, democratic members to, to others just as a legal matter.

I'll just comment for a moment. So, a, as I mentioned this, this particular statute is, is raised all sorts of questions. I, I quoted the string of verbs forcibly, you know, starting with assault, but resist, oppose impede, and it seems like the complaint is really mostly relying on that kind of a, a theory that McIver was impeding or, or sort of resisting the efforts by the federal authorities. But some courts have said that you actually have to prove an assault to secure a conviction. And it depends a little bit on whether you are trying to prove simple assault, which is a misdemeanor offense.

The, the criminal complaint appears to, to charge a, a felony version of it, which requires showing contact with the victim. And then the, there's an adverb that, that even, that precedes the string of of operative verbs. The resist, oppose impede, which is forcibly, right? And so there, there, that implies some use of force by the the defendant, by the, the member of Congress here. And, a lot of that will, will come out when, when there's more facts.

But certainly from looking at the complaint, it looks like a large group of people, people pushing one way or the other. It's not obvious that, that the government will be able to prove, prove beyond a reasonable doubt that McIver has forcibly again, if they have to prove an assault whether they could even prove that at all.

If they can rely, for my money, I actually think the better reading is that any of the, those verbs is enough to get you a violation. Whether they can prove she's for forcibly arrested or impeded federal officers. So, we'll, we'll, it'll be interesting to see what happens. As we mentioned before, this is a criminal complaint.

She's been charged with a felony offense, so the government will need to go in front of a grand jury and secure an indictment within 30 days of the 19th of May. And I very much assume they will be further litigation if the government does not do an about face as it did with Ras Baraka and the trespassing charge.

Benjamin Wittes: So, I, I, before we wrap up on this subject, you know the case that this is also a little bit similar too, is the Wisconsin State Judge case where, Judge Dugan turns around and says, no, I have immunity here. Her immunity is a lot less clear, honestly, than a congressman's immunity to the extent that she's engaged in a legislative act, which is generally broadly construed.

So my question is, okay, she going to do oversight at an ICE facility is definitely covered by the Speech and Debate Clause, and then you get into a little scuffle. Nobody's hurt, nobody's, you know, with cops who are with ICE officers who are trying to impede your access to something that you believe is your responsibility to do oversight of, by the way, they acknowledge it too because they throw out the mayor, but they don't throw you out because members of Congress are different.

Seems to me she's gonna have at least a colorable speech and debate clause, immunity the claim here. Am I, I mean, it's not like, you know, she's beating somebody or something. It's kind of like she thinks she has access. They think she doesn't, there's a little bit of pushing right.

James Pearce: So, a, a couple responses. It does sound to your very last point. That does sound from the complaint and the reporting as though that's what happened factually, but to the, the, the sort of, the thrust of your legal question, right? So, a, a member of Congress can claim a certain type of immunity under the speech or debate. My, my, my former colleagues will, will needle you for calling it the speech and debate clause. It is the speech or debate clause.

Benjamin Wittes: Yeah, privileges and immunities, privileges or immunity, speech and or debate. Come on. Yeah. This is live television, man.

James Pearce: It's, it's true. It's true. But, you know, I, I'm a lawyer. I got a nitpick, right? So, yeah, and I think you've also hit the nail on, on, on the head, which is the real question here will be, how extensive does a court interpret this concept of a legislative act?

The speech or, or debate clause covers members of Congress engaged in legislative acts. There's been some back and forths some of it quite recent in the D.C. Circuit. The Third Circuit, which is the court of appeals to which this would, would go, has some, but not quite as fully developed a case law on, on kind of how extensively or how broadly you construe legislative acts.

I tend to agree, and I think under the D.C. Circuit case law, she would be, she would have a pretty compelling argument that she was engaged in a legislative act, kind of irrespective of what the facts look like on the ground. She's, she's engaging in congressional oversight activities of a, of a federal detention facility.

So, to the extent this, this does move forward I would very much expect to see, as you said, as we saw in the Judge Dugan case, albeit a, a a, an immunity claim of a different type a speech or debate, legislative immunity claim from Representative McIver.

Benjamin Wittes: Yeah. I think it'll be more plausible, frankly, than the, than the Judge Dugan claim.

Alright, so while we have been talking, the estimable Quinta Jurecic has been reading, has hunted down the case underlying that AP story that James found. So Quinta, is it Harvard University versus DHS?

Quinta Jurecic: No. So this is a Chen v. Noem, it's a case. This now seems so long in the past, but if viewers recall in early April, there were a spate of court cases where the administration had seemed to basically have gone through and deleted from the system, which is the system of, of student records for international students.

Any student that had had some kind of brush with the law by brush, I mean anything from like a. You know, drunk driving conviction to like, you got a traffic ticket one time. And there were a number of cases challenging this, it, it ended up being actually unclear whether or not DHS was saying whether their, their visas had been canceled, whether legal status was or if they had just been like deleted from the system. But their status was fine.

This all sort of somewhat petered out in early May when the administration said, oh, actually you know, we've changed our minds. We're not gonna do this anymore, but, you know, watch out. We're gonna come back with a more organized way of, of moving forward with things. So, I had actually been meaning to catch up on these cases.

Thankfully Judge White reminded us all that some of them are, are still percolating. And so this is an order from the judge saying look, I'm gonna grant you a preliminary injunction because even though the government has said, we're no longer moving forward with this policy there I basically have absolutely no faith that they will not try some future funding business and put the plaintiffs in these cases in, in a bad situation. So this is actually a nationwide injunction, which we haven't seen.

One of the interesting things about these vis cases had been that judges were mostly just ruling. Almost all of the students who had actually brought suit had won their cases or had had received emergency relief. But most of them were just like one or two plaintiffs at a time.

There was one case in Georgia, I think the Northern District of Georgia that was like 130 people, but judges were really hesitant to issue broader injunctions than that. I think because the Supreme Court has been so skeptical of nationwide injunctions as we saw the other week with the arguments in the birthright citizenship case. So notably, this is a nationwide injunction, but the judge actually spends quite a few pages explaining why he thinks that a nationwide injunction is necessary here. I'll be interested to see what happens with it on appeal.

And on a quick read essentially what, what the judge is saying is you can't, you can't arrest any of these, any of the name plaintiffs in these case are, are individuals similarly situated. You can't transfer them outside where the jurisdiction of their residence. You can't impose any adverse legal effect. You can't reverse the reinstatement of records.

I don't know if this would provide protection to the Harvard students whose status may now be in question if they're on a J1 or an F1 Visa at Harvard. It strikes me as totally possible, but I just, I'm afraid, I don't know enough about how the, the visa system works for foreign students. So it's, and I think it would probably depend on what similarly situated means here.

Benjamin Wittes: And the DHS order by its terms, doesn't do anything to the students. It prevents Harvard from enrolling them. And so I, I think we're gonna have to rather than speculate about this let's just revert to where we were at the beginning of the show and say, Harvard's gonna do what Harvard's gonna do on this, and we will treat it in coming episodes rather than go down this particular rabbit hole now.

Quinta Jurecic: Can I just say one thing? I think I agree with that, with one caveat, which is that I, my understanding is that, so if, if a university or a college loses its, its ability to admit international students. The problem is that the students are no longer enrolled. And so if your visa is contingent on enrollment, then obviously you are in a difficult way.

So I think that is the mechanism here. But again, I think, I just don't know enough about how this works to have a sense of whether this would immediately affect the Harvard case or not. And I am sure that the administration will be appealing this.

Benjamin Wittes: Alright. Speaking of things that the administration has appealed Roger, the administration got a bit of a win from the Supreme Court in throwing out large numbers of Venezuelans who were here under TPS. What'd the Supreme Court do?

Roger Parloff: Yeah, this was a pretty, I think it's an important and a pretty disappointing case. James talked about these two cases last week. The two cases, and this is one of the two National TPS Alliance. This particular part of it involves 350,000 Venezuelans.

Benjamin Wittes: And just for reference purposes here, the cases, if, if you can do this with 350,000 Venezuelans, there's a very large number of Haitians here as well, under the same status and a very, and a similar number, 400,000 or something, Ukrainians as well. So the Venezuelans are a kind of four, 350,000 canaries in a particular coal mine, which is the state of TPS status if Trump decides to revoke it.

Roger Parloff: Yeah. And in fact, there's another 250,000 Venezuelans that are in a simply a different chunk of a different cohort, different of, of TPS. And they will find out in September what happens to them.

But basically, and then they, the other case that James talked about last week was the one that, that has to do with parole for countries like Cuba, Haiti Nicaragua and Venezuela. And it's a different thing, but another 500,000. And in all cases it's, it's Christi Nome trying to do something that makes people removable overnight.

And it's, according to Trump, it's unreviewable. So these are very important cases. What they did was they issued a, the Supreme Court issued a two. Paragraph order with no reasoning that granted a stay of the order below. The order below had put off Kristi Noem’s orders. It was, it had the effect of like a preliminary injunction and and, and then there was an attempt to stay it from the Ninth Circuit, which was denied, I think unanimously.

And then and, and it was the Ninth Circuit was gonna hear the case July 16th. So you're talking about 350,000 people. And the, the program, TPS is for it when there's a humanitarian crisis. This is, it's under a statute from 1990. The president has the right to designate a country and its migrants as eligible for TPS temporary protective status.

And they can work here even though everything's not perfect for, for 18 months. And then this can be extended and they can apply for other visas and things while they're here. And, you know, you put down roots and you rely on this, and, and, and suddenly it vanishes.

How the government, you know, when you're, when you're seeking a, a preliminary injunction, you need to show irreparable harm. They showed that when you ask for a stay, it's, it sort of flips and the, the, the person asking for the stay needs to show the irreparable harm. What was the irreparable harm to the government to wait till July 16th, you know, compared to 350,000 people. Anyway it was a disappointment.

Benjamin Wittes: Can, can I ask a stupid question about this? What is the argument that–I mean, TPS as I understand it, is a presidential declaration that there's a, you know, ongoing catastrophe in x and such country, and we're temporarily admitting people to protect them. What's the argument as much as I, I think TPS is underused, frankly, and that we should be doing a lot more of it as a general matter, but what's the argument that the president doesn't have the authority to withdraw?

You know, as unwise and nasty as I think that instinct is–

Roger Parloff: Yeah.

Benjamin Wittes: –in the case of Venezuelans, Haitians and Ukrainians, what, what's the argument that he doesn't have the authority to do it?

Roger Parloff: Well, that may be the whole problem. But once you designate the country then there is an individualized process of screening the, the people and you, you make sure each person qualifies. They can't have a felony, this and that. And so the, the plaintiffs claim that there are implied breaks on just suddenly throwing this, this out, but I think that they aren't obvious and no one's tried it before, so there's no law on it. And in fact there was only one noted descent with a per curiam.

You, you never know, or with these orders, it doesn't, if there's one noted dissent, it doesn't mean it was eight to one. You don't, you don't know. You know that five voted for the pro curium, but there was no explanation. So we, we don't really know. But what they, they also, in the second paragraph, which was sort of unintelligible, it said individuals who received quote, form I797, notices of action and form I94 issued with October 2nd, 2026 expiration dates.

Could, could, this order is without prejudice to any challenge to Secretary Noem's vacate of those. And so I spoke to a couple immigration lawyers, and they really didn't know what that meant. I mean, they know, and they, they know what these forms are. They seem to be, they're things like employment authorization documents, and but in any event, the plaintiffs have already moved to try to preserve those. But that seems to be a very small subset that, that that that will impact. But I think you're right. There is a, if, if, if, if Biden can do it, why can't Trump undo it? And, and that may be all.

Benjamin Wittes: I mean, I assume at the end of the day that there are something like a million and a half people here who are in the United States at Trump's discretion from a number of countries.

Roger Parloff: Yeah.

Benjamin Wittes: And they're basically I, I think the technical term is all fucked.

Roger Parloff: Yeah.

Benjamin Wittes: Alright let's talk about two other three letter cases, J.O.P. where the Court of Appeals for the Fourth Circuit has also denied a stay. What's that one about?

Roger Parloff: Yeah, that's Christian we've talked about before. This was a, originally J.O.P. was a 2019 case a class action on behalf of unaccompanied alien children under the first Trump administration. And they reached a settlement in 2024 and said these people won't be removed until they've had a chance to finally adjudicate their asylum claims.

He was in that class and he was taken to CECOT on March 15th under the Alien Enemies Act. And so this is a different Maryland judge, Judge Stephanie Gallagher, who has been trying to get the government to facilitate his return. And what's interesting about it you know, there are some technical things, there are that don't really concern us. You know, it's a contract case really, in a sense 'cause it's a settlement agreement.

But she, the judge phrased her order a little differently than Judge Xinis did in the Abrego Garcia case, she went a little farther. She said, facilitating Christian's return includes, but is not limited to defendants making a good faith request of the government of El Salvador to release Christian to the U.S. So that goes a little further. And, and so, it was two to one denying a stay. So the government loses two to one. It's on political lines.

Judge DeAndrea Gist Benjamin, she says she she's okay with that, that language. She says the government cannot facilitate Christian's, return telepathically. It must express in words to the government of El Salvador that Christian be released for transport back to the U.S. That's two judges join that.

The second of them, Roger Gregory also in a concurrence, says that the AEA is obviously inval, plainly invalid. The alien, I mean, the proclamation is plainly invalid. He says the president's declaration that the nation of Venezuela, albeit, albeit through through Tren de Aragua as a proxy, has engaged in an invasion or predatory incursion against the territory of the United States is unsupportable.

Unfortunately I don't think the issue is really briefed, so I, I don't think that ruling is gonna have a lot of, of oomph. And then the third Julius Richardson who is a Trump appointee said–the the, the first two were, were Biden and Clinton–said he, he thought the language would go far. Simply put, the district court ordered the executive branch to engage in diplomatic negotiations with a foreign power. And I have to say, I wonder if the Supreme Court wouldn't agree with him on that.

Benjamin Wittes: Alright. Let's talk briefly about A.A.R.P., which is a Fifth Circuit case.

Roger Parloff: Yeah, it's it's come back from the Supreme Court.

You remember there was a, a harsh decision Friday per curiam that and again, we, so we don't know the exact numbers. It might be seven to two, but it's at least five to two. And the prom was very critical of Judge Hendrix, the district judge in the Northern District of Texas and also of the Fifth Circuit for not having taken seriously the due process rights of all these aliens in Blue Bonnet who were obviously about to be taken to CECOT where they could never get them back.

And so James, so they, they got this remand and they did dutifully expedited it, they're gonna send it to the next randomly selected oral argument panel. But there was a concurrence from James Ho who, he is the chief judge right? Is, isn't he?

Benjamin Wittes: Yeah. He's not the chief judge. Elrod is the chief judge.

Roger Parloff: Okay. No relation at all to Dale Ho up in the Southern district. And it's a very, political, crudely political in places. He re-litigate the 42 minutes issue. I write to state my sincere concerns about how the district judge, as well as the president and other officials have been treated in this case.

I worry that the disrespect they have been shown by the Supreme Court will not inspire continued respect for the judiciary without which it cannot long function. And he makes no mention whatsoever of the background of, of the fact that the Abrego Garcia ruling of the Supreme Court has been mocked and ignored by the government.

And the fact that once these people are gone, you can't get them back. And then he, he. It makes a strange, he takes shots at Obama and Clinton and Biden which Steve Vladek referred to as an unconnected rant against democratic presidents. Oh, and then, then he says, if this is not to become the norm, then we should admit that this is special treatment being afforded to certain favored litigants, like members of Tren de Aragua. And we should stop pretending that lady justice is blindfolded.

So, you know, this is like a non-lawyer who doesn't quite understand that, you know, due process is all about finding out whether they are Tren de Aragua. That's the whole point. So it's a very disappointing and frightening decision, which a lot of people in the right on the right have been celebrating and are thrilled about.

Benjamin Wittes: Alright. It's an action packed hour and a half. We've got lots of judicial action courts coming down with decisions as we're talking. The Supreme Court, James, has just issued an opinion in the Merit Systems Protection Board case what is going on? And is Humphrey's Executor merely on a respirator or is it just dead at this point?

James Pearce: I would say a respirator, but someone is really close to that power switch and about to, about to flip it. So, not a, not a good day for the challengers Gwen Wilcox and Kathy Harris from the National Labor Relations Board and the Merit Systems Protection Board. Yeah, so, so the Supreme Court just within the last five, 10 minutes issued a, a ruling on the stay application filed by the government.

The long and short of it is the administrative stay that the court had put in place is now staying in place through the litigation in the D.C. Circuit. Folks may recall that actually just last week the D.C. Circuit heard argument on this case. So it, it will presumably resolve it at some point that the, the reinstatement of, of Wilcox and Harris will stay stayed throughout all of that.

But the, the language in the, in the, in the Supreme Courts opinion does not, is not a, a, a good harbinger for Humphrey's executors continued existence. Basically, the court says that the president has a, a broad power to remove without cause. Officers subject to narrow exceptions doesn't actually sort of say out loud talking about the Humphrey’s Executor.

But it's clear that's what the, the court is, is talking about. The test is to deter, to, to determine whether a, a one of these independent agencies is within or outside the Humphrey’s Executor exception is whether the agency wields substantial executive power. The court says the stay reflects our judgment that the government is likely to show that both the NLRB and MSPP, MSPB exercise considerable executive power.

So that doesn't, doesn't sound very good for, for those particular for the challengers. The court also says our, our stay ruling reflects our assessment of the balance of harms and the harm, harms associated with these agencies continuing to adjudicate matters in front of them is a greater harm than presumably the lack of quorum that the, that the relevant agencies will have, and thus the grinding to a halt of the work that they do.

Interestingly, the court does take on directly the Fed question that we've long discussed. So many people have said, well, look, how could you distinguish the Federal Reserve from the kinds of independent agencies presented in this case? Court doesn't say a whole lot. But it says, quote, the Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the first and second banks of the United States, unquote.

So it is, it is clearly sketching out kind of a way, a path to probably strike down many of the removal protections for independent agency officers. But leaving the Fed kind of carved out–

Benjamin Wittes: Kind of like the Rehnquist. That was a case about a big railroad.

James Pearce: Yeah, exactly right. I mean, drawing distinctions to kind of create sort results oriented distinctions a cynic may say.

Justice Kagan joined by Justice's Sotomayor and, and Jackson dissent the, the, the thrust of that is, is essentially, look, we, this is not something we should be doing on our emergency docket. We should you know, we, I think probably accurately describes what the, what the per curiam has, has done as using the, the shadow docket to functionally overrule Humphrey’s and, and sort of takes the, the court to task for that. But that's three justices, so, that's where we are.

Benjamin Wittes: Alright. Quinta, did you spit at Ed Martin this week?

Quinta Jurecic: I, I did not spit at Ed Martin, but one, one woman did. There is a criminal complaint filed against her in D.C. court under the the same statute that the Justice Department used to charge Representative McIver, as a matter of fact. So this is a woman who according to the criminal complaint in early May, walked up to Ed Martin on the street and yelled at him, and I quote, you are a disgusting man.

Fuck you, Ed Martin. My name is Emily Gabriela Summer and you are served. Then I'm not sure whether it was later that same day. Yes. Was I

Benjamin Wittes: Like the end you are served? Yes. That suggests re-planning for the whole thing.

Quinta Jurecic: Yes. So this was about 3:30 PM on May 8th from approximately 6:03 PM to 6:10 PM a Twitter account. Emily Gabriela made several posts related to the incident tweeting at Ed Martin. Essentially, that was me who spit on you. Let me read it. It's: Ed, that was me that spit in your face today.

So I don't think it's a huge surprise that law enforcement was able to identify this woman especially because it was all caught on, on security cameras.

Benjamin Wittes: Good of her to use her full name, yes. Just to make sure there was no, you know, we weren't getting the wrong, you know, person like we do with Tren de Aragua.

Quinta Jurecic: Yeah, no, it is super clear.

James Pearce: I just have to, one other comment, not only was it caught on security cameras, Ed Martin was giving an on street TV interview, so, so I mean, there was a big person with a big, you know, old school TV camera that she comes up and does it in front of. So this is not someone trying to fly under the radar.

Quinta Jurecic: Yes. So I suspect she was probably not hugely surprised to be arrested and charged.

Benjamin Wittes: And, and are we gonna we have to the serious question people. Is this an example of weaponization of the Justice Department or, I did actually ask, or if you walk up to a sitting the head of the weaponization investigation at the Justice Department and spit in his face and tweet about it, is that just protecting federal government employees?

Quinta Jurecic: So I did ask James essentially this question earlier today, so James, I'll, I'll leave it to you.

James Pearce: I mean, look joking aside, I, I have to say that that spitting on anyone, even somebody who has shown himself as uniquely unqualified for holding a federal position as Ed Martin–

Benjamin Wittes: Not cool people.

James Pearce: –is, is, is nasty. And you know, would it in your, in your typical time warrant prosecution, look, I think prosecutors would take a hard look at it. It's the kind of thing they want to disincentivize anybody from doing. There are a lot of ways that one can and should in my view, express their oppositions to Ed Martin. But the comedy aside, the, the, the spitting here is not high on my list.

Benjamin Wittes: I agree. But I do wanna say one thing in defense of the defendant here, which is when you engage in civil disobedience, which is to say, when you violate the law to make a point, and this is not a way that I approve of. I do approve of putting your name on it and subjecting yourself to the criminal penalties associated with it.

I personally, the spitting thing, I'm, I don't do assaults or, you know, whatever, but I, I do like the branding it with your name and taking responsibility. Alright we got two more subjects to cover and then we're gonna go to audience questions of which there are a lot all, almost all on the same subject. James, did you destroy any federal agencies this week?

James Pearce: I, I didn't destroy any we, we tried to take a look at at some things at DOGE, but I, you know, Ben, I gotta figure out where, where, where are we going here? Are we looking at PCLOB or are we looking at DOGE?

Benjamin Wittes: Let's talk about the PCLOB first of all.

James Pearce: Gotcha. Okay. So, honestly, so, so PCLOB, the Private Civil Liberties Oversight Board which we talked about is in litigation. I think we talked about this a few weeks ago, frankly given what we just talked about with the Supreme Court's order in Wilcox, it's over this, this really probably doesn't warrant much, much discussion.

These were to, to remind folks or for, for new listeners to, to put them on the, on the same playing field here. There were a couple of individuals fired by President Trump in January from this oversight board that kind of keeps track of, of government surveillance and counter-terrorism measures.

Benjamin Wittes: Although I will say the PCLOB has no executive authority, it's purely a kind of oversight thing. It doesn't do anything. It writes reports.

James Pearce: And I think so, so that's pro probably the, the best argument that, that they have. The one problem that they have is that there are, un, unlike with NLRB, MSPB and others, there is no removal protections, at least textually specific removal protections at all.

Notwithstanding that Judge, judge Walton found in a 71 page opinion earlier this week, that essentially the structure of the of, of PCLOB an amendment in 2007, which although it didn't put in place any kind of explicit textual protection kind of suggested a, that PCLOB members were going to play an advisory role with respect to Congress as, as much as they would with the executive branch.

In other words that they were doing some kind of action outside of the executive branch. Sort of taking all of these things together that the, the PCLOB individuals could not be removed without cause. The other aspect of the, of the analysis as you just kind of alluded to Ben, is, is that PCLOB is not exercising significant or arguably any executive power.

So, maybe there's a a an avenue there for, for success for the, for the challengers, but it, that avenue certainly looks a lot more challenging or, or a lot harder narrower after what we just saw from the Supreme Court.

Benjamin Wittes: Alright. Quinta, what about USIP? Does thinking about peace count as exercising executive power? And in any event, is that even a government agency? What do, what, what do we make of it?

Quinta Jurecic: Yeah. So this, this is the case involving do's dismantling of the U.S. Institute of Peace, which listeners may recall had been before Judge Beryl Howell in D.C. She had declined to issue a TRO because she was not really sure what the legal status of USIP was.

The government had argued that it was an executive agency and that therefore Trump could decapitate it as he wished. The USIP plaintiffs were arguing that it was actually a wholly independent entity. And so Trump had no control over it. Howell wanted more time to study the question.

And now she has done that. And issued a ruling on summary judgment finding that essentially it's complicated. The, the USIP is sort of in this weird quasi-governmental, quasi-not-governmental position. It's just sort of unique. But regardless the president does not have the authority to remove its, its board and its president in this way.

She does then also have a sort of argument in the alternative where she says, even if I thought that it was part of the executive branch under Humphrey's Executor the president could not remove the, these members of the board. So that argument may no longer hold water after today, but regardless, her, her view is that it is actually a independent sort of quasi-governmental agency.

The, the president can't actually remove people. And so, at because of that, she is willing to grant summary judgment, basically saying that everything that doge and Trump tried to do was ultra vires. And we are waving our magic wands and undoing all of it. So, the president ambassador George Moose is back in USIP, once again, has control of the building, which had been kind of requisitioned by DOGE.

Benjamin Wittes: By the way, I just wanna say Ambassador George Moose has one of the best names in all of federal public service. It brings a smile to my lips every time I hear it.

Quinta Jurecic: I, I will say, Judge Howell is clearly also really enamored by the building. USIP, it is a cool building. You can look it up. It, it's super cool, it's super building.

Benjamin Wittes: We've done, I, I've done events there and every time I walk into that atrium, I'm like, why isn't this Lawfare’s corporate headquarters? And so, if DOGE wins this fight, and I'm, you know, I'm really rooting for, for USIP to stay alive. Dibs on the building.

Quinta Jurecic: Yes. So, so at any rate, this is the, this is the summary judgment. There was reporting that Ambassador Moose and other members of USIP were able to make it back into the building and reestablish control. There, the government has appealed. So we will see what happens from there.

Benjamin Wittes: And just to be clear, Q, this this case is not one of these Appointments Clause cases, right? It's really about whether USIP is a government agency at all. Is that right?

Quinta Jurecic: Yeah, exactly. Exactly. It's sort of, she folds in this Appointments Clause element saying even if it were part of the executive branch then we're gonna look at the Appointments Clause issues, and it would be the president wouldn't be able to remove the, the board members and the president.

But it's, yeah, as you say, it's really about the sort of category of weird quasi-governmental, quasi-not entities that exist, of which there are more than I thought including the Boy Scouts and Howard University, which I did not know was actually created by an act of Congress.

So Howell is essentially saying, you know, a, taking a sort of very, very rigid view of it's independent or no, it's totally executive is just not, doesn't allow enough nuance to understand what USIP is. The fact of the matter is that it's in this kind of weird gray area, but it is sufficiently independent and also importantly does not wield any executive power. It's a research organization that its members are shielded from removal by the president.

Benjamin Wittes: Alright, Roger, is it legal to dismantle the Department of Education by executive order?

Roger Parloff: Not at the moment. Today Judge Joun of the District of Massachusetts did issue a preliminary injunction against the dismantling of the Department of Education.

This began in March 11th. There was a reduction in force announced of more than half the staff. Department of Education is not huge, so it it's total of a little over 4,000 and, and more than 2000 were being laid off. Then a few days later, the executive order came out, directing the secretary to quote, take all necessary steps to facilitate the closure of the Department of Education.

So that sounds pretty pretty close. Yeah. So what does the government say? The government says, yeah we may favor closing it, and eventually we'll go to Congress to close it because we know that we would need to go to Congress to dismantle it. But right now we're just right sizing it. We're just looking for efficiency.

And he didn't buy that, Judge Joun. And so it, it, it, he it's unconstitutional under separation of powers. It's ultra virus, meaning it doesn't have either constitutional or or statutory authority behind it. The agency people are violating the APA. The Administrative Procedure Act. So, you know, similar to CFPB, Voice of America.

Also the big mother of all dismantlement cases a couple weeks ago that Judge Ilston issued in California that involved 21 agencies. But the the other defense, which we've heard all along we hear in all of these is the that the, well the employees have to be relegated to their administrative remedies. And the labor unions have to be relegated to their administrative remedies. But here, there were states, nonprofits as well, 21 states.

Anyway I just. I still just don't have a good feeling. 'cause conservative judges, when they see these they always manage to see them as not really dismantling, but just sort of, you know, a, a, a RIF,

Benjamin Wittes: The accumulation of individual steps, each of which has to be challenged separately.

Roger Parloff: Exactly. So I'm, I'm you know, for now it's good news, but we'll see what happens.

Benjamin Wittes: I will just point out that you have all these statutorily required functions of the Department of Education and if you don't have a Department of Education to do them, somebody else has to do them or else you have to create an organization to do them, which you might as well call the Department of Education.

Alright, James, two more questions for you. First, I assume because we haven't talked yet about corruption of the Justice Department, that all is well over there and that, you know, we're, we don't have any more problems.

James Pearce: Fine and dandy. Yeah. No there, there was some reporting this week, or at least since we last recorded about the Public Integrity Section that, that we wanted to, to bring to, to folks' attention if they hadn't seen it.

And, and by way of background, say the Public Integrity Section has, has existed since the, the mid seventies, essentially an outgrowth of the Watergate era and a and a, a greater focus on getting prosecutors to specialize and focus on public corruption prosecutions. Many probably remember that in the early part of this year in the fallout of the Eric Adams dismissal, a number of prosecutors from the public integrity section resigned.

The, the section was largely decimated in the aftermath, dropped from about 30 attorneys down to five. The most recent reporting that, that, that came outta the Washington Post, I think it was over this past weekend, said that the department appears to be considering a changing policies that currently require U.S. attorney's offices to get approval from the public integrity section or pin before opening investigations, let alone prosecutions of, of public officials.

So before, for example, you would've seen the prosecution of, of Congresswoman McIver that we've talked about on this episode. Or to, to kinda remove other consultation requirements, things like the non interference policy that's arguably implicated by suggestions that Andrew Cuomo is under investigation.

Now I should draw a line between sort of, surreptitious investigative steps and, and public ones. But there is an interesting sort of divide between the suggestion in the Eric Adams case that one of the objections that the Department of Justice, or at least that Emil Bove was, was articulating, was, look, this gets too close to the, the mayoral race, except why wouldn't that equally apply to, to Andrew Cuomo also a, a candidate in the mayoral race.

One quick note since we're running on, on time I had the opportunity to, to record a, a, a conversation about this as a podcast with John Keller, who was the until he resigned in February, the Chief of the Public Integrity Section, and worked there for about 10 years. I think that will hopefully drop some point next week. So for folks who are interested, I encourage you to take a look for that in your Lawfare Podcast feed.

Benjamin Wittes: Finally in Anna Bower's absence. I'm gonna pick on you James, who is the administrator of DOGE.

James Pearce: Yeah. What a poor substitute I am for, for Anna. But so the answer the government has given yet again in its in an application to the Supreme Court that it filed yesterday was our, our good friend Amy Gleason is identified as the acting administrator of DOGE.

And on page 17 of the, of the aforementioned stay application, they were, they, they described someone named Elon Musk, who whose name I've heard as parenthetically a White House advisor who is not a part of USDS, United States Digital Service, ie DOGE. So kind of a back of the hand to whoever that Musk character is, right.

Benjamin Wittes: Just no no importance attached to him. Yeah, just some advisor.

James Pearce: I know we're, we're short on time, but just to give folks another 30 seconds, this all comes up in, in the context of a discovery dispute that's been kicking around about whether about a FOIA request that CREW, the Citizens for Responsibility and Ethics in Washington filed.

There, the D.C. Circuit had put a an administrative stay in April. A different panel denied the government mandamus request to basically stop discovery earlier in about, about a week or so ago. And so either yesterday or the day before the government now has gone up to the Supreme Court seeking mandamus relief or at, at best an administrative stay to try to preclude any kind of, of discovery in connection with CREW’s FOIA requests. So that's, that's the, the milieu out of which the, this WITAOD update grows.

Benjamin Wittes: Alright, I want to close the show today by getting through all of our questions. About 700 of you have posed this same question as was first posed by Clarissa. I'm gonna read the formulation of it from James and then add some of Clarissa's nuance to it.

Jeff asks, the new spending bill has a provision that would prohibit federal courts from enforcing contempt orders unless the plaintiff posts a bond at the outset of the case. Courts usually waives such bonds, especially in public interest cases or when the United States is the defendant. This provision would seem to neutralize valid injunctions and leave courts powerless to act in the face of open defiance. Is it constitutional?

To which Clarissa A adds, won't this allow the Trump administration to arrest and deport homegrown residents, including citizens like journalists, democratic leaders and critics, similar to what happened to, or Abrego Garcia? And would it also allow the Trump administration to arrest judges without consequence?

So, the provision in question according to the anonymous attendee reads, no Court of the United States may enforce a contempt citation for failure to comply with an injunction or temporary restraining order if no security was given when the injunction or what or order was issued pursuant to federal rule of civil procedure 65 C, whether issued prior to on or subsequent to the date of enactment of this section.

So let me say that I do not, I, I have not studied this provision and cannot give any kind of an authoritative answer to it. I will say that legislators who sought to strip the courts of jurisdiction over Guantanamo habeas cases over several different iterations in increasingly clear language applying increasingly obviously retroactively found themselves running into a brick wall of the courts themselves, which tend to be jealous of their own jurisdiction and their own authority.

By the way, the authority of courts to enforce judgments in and orders is inherent. And I think the courts would probably look ance at the ability of Congress to say go ahead, violate these orders at your own free will. As long as you don't post any kind of surety. In addition, the House of Representatives is not the Congress.

This would have to get past the Senate unchanged. And that said, it is a destructive and dangerous provision and we shouldn't be flirting with it. Roger Quinta, James, do any of you have anything to add or anything to correct on this point?

Quinta Jurecic: The only thing I have to add is that I think this provision is gonna make it through the budget, through the reconciliation process. So we'll have to go through what's called a, a Byrd bath. I'm pretending to be Molly Reynolds here, and I can only provide a, a weak imitation. But it essentially, it's gonna go through a process where it's gonna be determined whether or not it fits the, the parameters from reconciliation.

So it's, you know, it's a budget proposal. It's not something, it's not kind of trying to shoehorn in a policy via something about the, the budget. It is not obvious to me how this could make it through a bird bath. But we will find out.

Benjamin Wittes: Alright next question. Now that the administration is declaring transnational gangs to be terrorist organizations and declaring people to be members of those gangs on thin and untested allegations, what are the legal risks and likelihood of the material support statutes being weaponized to go after people and organizations that do work supporting immigrants?

This seems to be in line with the general zeitgeist of turning the tools and civil liberty erosions of the Bush era on immigrants and other disfavored groups. Could an immigration firm giving pro bono representation in a civil suit like habeas be charged with providing material support in the form of specialized knowledge?

If the government declares that the client is a member of TDA, could a domestic violence shelter be charged or sued if the government decides one of the immigrant's clients is in MS-13, et cetera? Okay, so I think I am probably the person here who has the most experience with the material support statute.

Although James, if you've ever if, if you've ever worked with the statute let me know. So there is a risk here. And, but the risk is not for lawyers. So recall that in the ch in the case where the material support statute was challenged which is the humanitarian law project case the the designated foreign terrorist groups, which was in that case, the PKK actually, you know, had council and challenged its designation.

And so there is a understanding that counsel, the right to counsel is unaffected by the material support law, which is why, you know, all, all of these you know, hardened Al-Qaeda terrorists can have lawyers when they are prosecuted. The danger is, as the question suggests, with humanitarian support and the protection against it is not incidentally giving aid to somebody who's a member.

It would be doing business with an organization that you sort of know to be or may be a front for some organization. And one of the things about. Foreign terrorist organizations is they set up all kinds of dummy you know, relief organizations and then solicit money through them and the gangs could do something very similar.

And you could imagine people getting caught up in that. As a general matter, the government has been, I'm gonna get myself in trouble for saying this, but pretty good about not prosecuting relief workers. And what it has been less good about is not deterring people from engaging. This was a particular issue in Afghanistan where you just didn't know if you provided services in this arena, could you be said to be doing business with, you know, the, you know, X group or Y group.

And so that definitely deterred a lot of humanitarian activity. It does the same thing frankly in Gaza. And you definitely have risks of that in, if you imagine areas that are substantially controlled by gangs. Yeah. The more groups you designate, the bigger a risk that is. Alright.

Finally, a question for James submitted, not one by, but by two separate viewers. What is the name of the cat that grooms on your window cell?

James Pearce: I have four cats. That one is Oliver.

Benjamin Wittes: Oliver. It is. We are gonna leave it there. Folks, apologies for running a little bit over today. Had to get through your questions. We're gonna be back next week, I think, at the regular time, which is Friday at four. And we will see you then.