Lawfare Daily: The Trials of the Trump Administration, September 1

Benjamin Wittes: It is Tuesday, the first day of September, 2026. It is 11:00 AM in Washington and you are watching Lawfare Live: The Trials and Tribulations… of the ballroom. And when I say the ballroom here, I mean what the solicitor general actually called to the Supreme Court of the United States, "A secure state-of-the-art facility that provides for the physical protection of the president and the command, control, and communications capabilities necessary for the president to carry out his constitutional duties when under conventional or even nuclear attack." And I stress that that is a quote from the Justice Department of the United States to the Supreme Court of the United States.

I'm Benjamin Wittes, editor-in-chief of Lawfare, and I'm joined by Lawfare senior editors Molly Roberts and Roger Parloff, both of whom are expert on building drone facilities with party tops to them, five stories deep. We're gonna be doing some deep dives into how the government has described this facility. But we are here today because the Supreme Court has allowed construction to proceed, and along the way, we have a deep division among the justices over the core issue of how to spell the word “aesthetic.”

We also have, on a totally different subject, a whistleblower who's come forward on the Postal Service stuff, so we actually have a weird amount to talk about today. But let us start with the ballroom because, you know, that is what we're here to talk about. Molly give us an overview. What did the Supreme Court do yesterday?

Molly Roberts: Yeah. So, the Supreme Court said that President Trump can keep on building his ballroom. It did that by staying an injunction against the above-ground construction of the ballroom, which was only part of the construction that was going on. The below-ground construction was allowed all the time to go on. The below-ground construction has to do with where there's this presidential bunker. But this sort of nifty trick that the administration had pulled was to say, "Actually, it's all an integrated whole. We need to be able to build the above-ground part, too." And in fact, that's one of the things that the Supreme Court relies on in this 5-4 emergency ruling in the case. And it's 5-4 with the chief justice writing the dissent, which is co-signed by the Democratic-appointed justices.

So, the kind of core issue here is not the lawfulness or likely lawfulness, unlawfulness of the ballroom or of the razing of the East Wing beforehand because the justices in the majority did not want to reach that. Or, I mean, the, the less cynical thing to say would be they found that they had no need to reach that because the plaintiffs here, and the plaintiff was the National Trust for Historic Preservation through one of its members, Allison Hoagland, didn't have standing to challenge the ballroom.

And then what the majority spent the rest of their time on was the irreparable harm component of granting a preliminary injunction. And that's where they sort of bow quite low in national security deference to the administration and again, let the administration get away with having said initially this bunker below ground and what's on top are separate, and now say it's a highly integrated unit full of protective missile-resistant steel columns, roofs, and beams, drone-proof ceilings and roofs, military-grade venting, and bullet, ballistic, and blast-proof glass. So-

Benjamin Wittes: To wit.

Molly Roberts: To wit, yes.

Benjamin Wittes: They actually literally wrote the sentence, "The Project," project with a capital P, "includes bomb shelters, state-of-the-art hospital and medical facilities, protective partitioning between all areas of the building, top-secret military structures and equipment, military-grade venting, a single integrated air conditioning and heating system, sniper's nests, a drone port on top elevated by the structure of the ballroom, all to protect the White House and surrounding region from aerial attacks, one of the nation's largest emerging threats." That's a quote from the application to the Supreme Court.

Molly Roberts: Yes, we'd be remiss not to mention that the columns on it will be made from the “highest grade Indiana limestone, which has been shipped to Italy and is being carved by some of the greatest artists anywhere in the world.” This is in a filing. Apparently, this is relevant to the case.

Benjamin Wittes: Okay. But none of this decision actually turns on any of that, right? The, the decision turns on the question of aesthetic standing.

Molly Roberts: Yeah, so that's, that's what the majority devotes most of its opinion to. It does also talk about irreparable harm. So those are the, which, which has to do with this being supposedly a structure that's necessary for national security, and they say the government has presented declarations from, and then they list a whole bunch of officials saying that there are harms that will arise from enjoining this single coherent project and that “the height and mass of the above-ground ballroom are crucial to shield the planned underground military installation from kinetic impacts.”

So part of it is on that, but yes, most of it is on aesthetic standing and the idea that the plaintiffs are unlikely to succeed on the Article 3 standing issue, and so the courts shouldn't be hearing this and intervening in this.

Benjamin Wittes: But I, I'm confused. Why does the government's rationale for any of it matter at all if the plaintiff doesn't have standing? Right? I mean, if, if, if you're just a, a, a, a nasty woman walking a dog and you don't like this building and that's your claim to standing, as the president claims of the plaintiff, falsely, by the way, but what does it matter if the government has a fully integrated complex unit that is vital for national security of the United States or merely just a schlocky, kaputched ballroom. You don't have standing, right? Why, why, why does it matter, why does any of this argument matter if the thing boils down to aesthetic standing?

Molly Roberts: Yeah, I think it's a good question. They have the section on the aesthetic standing, then they move to another section, and they just say that the government has also established that it will likely suffer irreparable harm and that the balance of equities tips in its favor. So they're just, they're just ticking through the kind of “even if we were wrong about the standing thing” part of the argument.

But their argument about the irreparable harm is pretty intertwined in the standing argument because they're saying that the district court has exceeded its Article 3 authority to enjoin the activities of a coordinate branch of government, and then they're saying, "And in fact, here the executive has, you know, we're, we're granting particular deference, or we should grant particular deference, because this is a national security issue."

And I think in some standing cases in, in the past, and they don't cite them, but I think the Supreme Court has sort of raised the possibility, or at least in some concurrence by Justice Kennedy in a th- case I think called Clapper, the possibility is raised that perhaps in matters of standing, there should be afforded more deference to the executive when it's a national security case.

Benjamin Wittes: Interesting Roger, how do you spell aesthetic?

Roger Parloff: I think the preferred spelling is with an “a” at the beginning. That's apparently the, the British and even the preferred American. But no “a” is permissible apparently in, in American, and I think it's actually preferred by the skincare professionals of America, like the schools of estheti-

Benjamin Wittes: Did they file an amicus brief?

Roger Parloff: No, but the, the schools of aesthetology, I think you'll find it's usually spelled with an “e”. That might be a mistake, but it's it's I think it's the preferred for those professionals, and also for Justice Scalia.

Benjamin Wittes: And also for Justice Scalia. So okay, there seems to be a division on the Supreme Court about how to spell “aesthetic” Nobody is criticizing each other about it. Nobody, they're not, like, dissenting "I join the majority's opinion, except that I would spell aesthetic with an ‘a.’" But they-

Roger Parloff: Respectfully.

Benjamin Wittes: Respectfully right. But they do seem to, like, they don't seem to have a unified style on this. Who's on what side of the issue?

Roger Parloff: Molly, did you wanna take that one?

Molly Roberts: No, you seem, like, very read in on this. If, if- I, I was, I was going to say that it wasn't clear to me that there was a division on the current court, but that it was fairly clear to me that there was a division on past courts where precedent on aesthetic standing was established, and that Justice Scalia really likes the one “e” version. And I was going back to some cases in the 2000s where if he writes it, it's with an “e,” but, you know, then in between two Scalia opinions, you have a Ginsburg opinion, and she writes it “ae.”

And so often when it appears in the cases now with an “e,” it's when Scalia's being quoted. Regardless of who's writing the opinion-

Roger Parloff: I think so.

Molly Roberts: Thet don't then overrule Scalia's spelling. They let him have his spelling. They just do it in quotation marks.

Benjamin Wittes: Interesting. Okay, I'm not sure I fully understood that, that the, the, the dispute is between all justices and Justice Scalia, not between, among the current justices, but we do still quote Scalia, so it shows up. That's interesting. Okay.

Molly Roberts: I would have to do a more comprehensive analysis to determine whether there are any justices who agree with Scalia on this point, but from what I could tell, he was the preeminent champion of the spelling of aesthetic with one “e,” or sorry, with, well, no “a.”

Benjamin Wittes: All right. So is aesthetic standing dead, or is this just the- I mean, one, one thing you could say in defense of, of this approach by the majority is that aesthetic standing is actually a very aggressive standing theory and that, you know, the fact that you don't like something is different from injury in fact. And if you're, you know, if you don't like government policy, you don't get to choose, you know, to sue on the basis that you don't think your tax dollars should be spent that way. So if you don't like government architecture, why do you have any more standing than if you don't like government policy, right?

But that is not the Supreme Court's historical doctrine. And so, should we un- well, first of all, what is that doctrine historically? And secondly, to the extent that they are now doing something else, should we interpret that as conservative reversion to the mean? That is, this is kind of what you would expect the Sam Alitos and conservatives to believe? Or should we understand this as simple hypocrisy that, you know, if the shoe was on the other foot, they would find aesthetic standing was adequate here? How do you understand what they're doing here?

Molly Roberts: So I guess there are kind of two parts to that question, and one of them just is what's the doctrine here? And I think the best way to answer that is the Supreme Court has a lot of precedent on aesthetic standing, but it regards environmental cases.

And so these environmental cases don't have to do, though, with harm to the environment. You know, there was actually sort of a dispute when all this came up originally where Justice Douglas wrote this dissent saying that trees should have standing, rivers should have standing. But that's not what the court thought. They said it's about the plaintiff, it's about the plaintiff's injury specific to his or her human self, and kind of as they moved on with this, they said that environment, harm to the environment doesn't even matter so long as there's harm to a plaintiff for whom an area, an affected area's value will be lessened by a challenged activity. But that could be looking at an elephant or swimming in a river. So sort of exactly what it meant, how much you had to really use the thing wasn't clear. It seemed that a lot of things qualified as use.

So there's, there's loads of precedent on that. Even as the Supreme Court, you could argue, has tightened its view of standing when it comes to is an injury sufficiently concrete and particularized, they never came back and said, "Well, aesthetic injuries aren't sufficiently complete and particularized."

But they also, again, these are environmental cases. What they haven't done was ruled on cases of aesthetic harms in other contexts, like historical or cultural contexts. Lower courts, including the D.C. Circuit, had done that. They had read the environmental standing precedent to extend to historic battlefields or, say, a Native American tribal site. They had said it's pretty clear, or, you know, certainly no distinction had been established.

So, you could imagine the Supreme Court here establishing a distinction and saying a reason that the historic sites are different. But they don't really. Or you could imagine them saying something like, “Well this injury isn't concrete or particularized” for a specific reason. Instead, they just sort of say, "Because I said so." And they say, "Well, you know, this is different because it's just mere offense." And you say, "Why is it mere offense?" And they say, "It's not concrete and particularized." And you say, "Why is it not concrete and particularized?" And they say, "Well, it's just because it's mere offense."

So where does that leave you? Which was your second question. I'm not totally sure. One place it could leave you, the most dramatic place it could leave you, is aesthetic standing is dead or going to be dead, and that includes the environmental cases. N- doesn't look like that's what's happening because they cite the environmental cases favorably.

The next place it could leave you is aesthetic standing has been cabined to environmental cases. In that case, they haven't explained why, so it would be sort of difficult going forward to figure out, you know, is it just environmental? Is there any other interest? What is the distinction? They haven't provided one. Maybe they do that down the line.

And then the third would be nothing has really changed. They didn't wanna reach the merits, so they came up with an excuse not to reach the merits, and they'll call it offense when they wanna call it offense, and they'll call it aesthetic harm when they wanna call it aesthetic harm and reach the merits.

And I think it's just really hard to say. It's definitely true that there is and has been a tension in standing doctrine, a tension with the aesthetic standing generally where it seems like a lot of this is just distaste and disagreement, and it hasn't been clear why. And the court has been prodded in cases like the abortion case, the FDA versus Alliance for Hippocratic Medicine, to confront why the offense there wasn't aesthetic standing, and they kind of dodged it. So it seems like there's at least a lack of interest in getting rid of these environmental cases, but whether there's going to be interest in saying only environmental cases, I don't know. I-- They'll have to explain why.

The Chief Justice Roberts in the dissent is not convinced. You know, he says, "What is the difference between I want to look at a crocodile and I want to look at the White House as long as you have a concrete and particularized reason that that hurts you?" Which he argues that Allison Hoagland does. The majority doesn't spend much time arguing why she doesn't, and so then, you know, he asks the question, "If a standalone concrete and particularized aesthetic injury can be recast as mere offense, why are environmental plaintiffs' aesthetic injuries saved from being classed as mere distaste for the actions of government or private industry?" That's the key question.

Benjamin Wittes: Roger, the pattern of Roberts dissenting with the three Democratic appointees is not a typical one. Usually, when Roberts flips, somebody else flips with him, usually Amy Coney Barrett or sometimes Brett Kavanaugh, but you don't usually see the chief in dissent. How do you understand this? Is it, is it that he's just what are, like, more offended by, you know, bulldozing the White House than the others are? Is he, is this a doctrinal dis- difference that we shouldn't really look beyond the words on the page about what's going on in the conservative, among the conservative judge- justices about? How do you understand this divide?

Roger Parloff: Well, course, I'm not an expert on Roberts or the Supreme Court. I, I mean, I, I, I observe, I, I read but I but I will do the best I can.

Benjamin Wittes: Nobody is. He's sphinx-like. I mean, I've known him for 35 years, 30 years, and I, like, and I'm asking this question naively.

Roger Parloff: Okay. I, I think part of it, you're right. I think he was more offended by the destruction of the East Wing. I don't think his doctrinal view is that different from the other conservatives, and I don't think that the position of the conservatives in this case is that shocking either. It was not a clear, strong standing case. You know, the, the woman did not, even though she was an expert and a, a, a architectural historian, she did not pass by, you know, she didn't live very near. She passed by maybe once a month, and it would offend her.

So what Roberts tries to do is two things. First of all, I think he almost looks at it, he never says this explicitly, but he seems to see that there's a sliding scale here, that he begins with the fact that this is clearly illegal. And remember, none of the nine justices here say this is legal. Y- and, I, I should say probably illegal, likely illegal because of the postural, the procedural posture a preliminary injunction below. But he's very cutting about the arguments for the legality of this. I mean, he's, it's very back of the hand. In fact, it's very cathartic to read him on the right side again, you know, and, and really dismiss it.

Benjamin Wittes: And for those who don't, John Roberts is an extremely skilled writer in a way that on this court, I think only Elena Kagan is in his class just as a prose stylist. And when he, when he gives something the back of the hand, it stings.

Roger Parloff: Yeah.

Benjamin Wittes: He, he's j- he's just an excellent constructor of sentences.

Roger Parloff: Yeah. In fact, if you want one he's saying, you know, he begins, "That construction is likely unlawful." Very short sentences. He says "Congress has explicitly prohibited the construction of any building or structure on any reservation park or public grounds." One of the arguments was, that Trump gave, was that the, there, you know, Congress had appropriated 2.475 million for maintenance. And he says, "The appropriation of a couple million dollars for ordinary executive residence maintenance and repairs likely does not authorize the president to use hundreds of millions of dollars in private donations to tear down the East Wing and construct a ballroom in its stead." You know, it, it's,

Molly Roberts: Yeah.

Roger Parloff: It's really, I-

Molly Roberts: I, the other authority is very good, too. I just wanna read the other one. The way he dismantles that is very good, too, which the other provision that they call on is one that tasks the National Park Service with “managing national park land in a manner that conserves the historic objects on that land This is likely not express authorization to raise the East Wing and replace it with a ballroom.”

Roger Parloff: Yeah. The, the other thing that he does, and it's very like him too, 'cause he's a, a appellate, he was the ultimate appellate advocate of, of his day. And, you know, very often the appellate advocates are called upon to articulate a limiting principle. You know, the judge, judge how, and here the, the majority is saying, "Look, if we let this woman sue," I mean, it's really the Na- National Trust, but National Trust for Historic Preservation. But it's one member has filed a, a declaration that's the basis for standing. And if we let this woman sue, how, how can we prevent anyone from suing for simple annoyance or disagreement aesthetic?

And so he's very good with constructing a limiting principle, and here for him, it's the uniqueness of the White House, its historical i- importance. He calls it “the people's house.” He quotes from Theodore Roosevelt talking about the W- the White House and its simplicity. And then the woman also is this architectural historian who's basically devoted her life, an academic, has written books on this subject. So he tries to construct a limiting pr- principle. It doesn't quite carry the day, but it's, it's, it's sort of neat to watch him doing his thing.

And that's, that's where he's, I think he's coming from. But I, I do think why does he split away? I- i- it sounded like he really was offended by the destruction. And of course, looking ahead, it's not just, it's the destruction of Washington, D.C. if there's no way to stop this guy. 'Cause, you know, next, how are we gonna stop this triumphal arch at this point? Who's gonna have standing? So i- i- it and, and the Garden of Heroes and, and God knows what else.

Benjamin Wittes: Yeah, so let's talk about that. So under this ruling, who does have standing? I was trying to make a list of people who could have standing under this, and it seemed, I could come up with two yesterday. One is a contractor who was denied a s- denied the ability to bid in an open process on building the bunker or building the ballroom.

The second was if you build a really big ballroom, it's gonna cast shade on somebody. And so maybe if your window never sees the sun 'cause of a big ballroom now, although it's far enough from anything else that I think there may, that may be a case of a null set. But do either of you have thoughts on who the plaintiff is who does not have a problem getting standing here?

Molly Roberts: I don't think it's easy. What you're doing with the shade thing is creating an environmental injury because presumably no aesthetic injury that isn't environmental qualifies, and I think that that's kind of the right way to read it. The contractor thing makes sense to me. Some people say Congress would have standing. I don't know enough about that, but I believe it's at the very least in dispute.

Benjamin Wittes: Yeah, Congress never has standing.

Molly Roberts: Right.

Benjamin Wittes: It’s always, it's always hypothesized, but I can't think of, I, I mean, Congress has the ability to prevent him from spending money, but that's in its l- in its appropriations role. As a litigant, it's, that, that's not gonna be successful.

Roger Parloff: I don't think the contractor necessarily does because he's not challenging here the bidding process. They're trying to challenge the fact that Congress wasn't consulted. So, and then, like you say, I don't think anyone lives close enough to be in, in, in shade from it or constantly exposed to it.

I do think that the Congress i- if, if a whole chamber, if the whole House, you know, changes hands, I do think it's possible that the House would have standing or, or the Senate chamber if that if that's how it, but like you say, that's very, that's a very murky area, and I'm not an expert. Again it's a, it's pretty good bet I'm not an expert, whatever the area is. But, I'm a journalist. But anyway, th- that's my that's my impression.

Benjamin Wittes: All right. Dissenting from Roger's disclaimer of expertise. Let us turn briefly before we go to a completely different subject. Let's turn briefly to the Triumphal Arch 'cause the Triumphal Arch, it seems to me it's gonna be even harder than this 'cause you're not destroying anything, right? I mean, you don't have the, well-

Roger Parloff: Oh, you're blocking views.

Benjamin Wittes: I guess. Right.

Roger Parloff: You're, you're blocking views in both directions. Importantly, you might be blocking pathways to Reagan National Airport. That might be the basis of, it's not currently a basis, but somebody, you know,

Benjamin Wittes: It's true, although it's hard to imagine that any airline is going to have the, the gumption to bring that suit.

Roger Parloff: There might be helicopter, you know, private users. I don't know.

Molly Roberts: But it's veterans groups now who have a problem with it? For, for that, it seems like it would run into exactly the same issue. And, you know, I could have easily imagined the D.C. Circuit, if this hadn't happened at the Supreme Court, saying that that was quite similar to, say, the tribal interests in not disturbing these sacred stones or, you know, the hypothetical that Judge Millett brought up in the hearing about the Statue of Liberty and someone whose ancestors came to Ellis Island and tearing that down. But I, I just don't see how after this you draw the distinction between-

Benjamin Wittes: What about the family of Abraham Lincoln? You know, this would loom over the Lincoln Memorial and interrupt the sight line between the Lincoln Memorial and the Robert E. Lee house, which is, of course, probably the most symbolic spot in Washington, D.C., where Lincoln's back is to Lee across the bodies of the dead at Arlington Cemetery, over the border of the Union and the Confederacy, and you're going to build a giant arch. And I could see the argument that, "Hey, I am the great, great-grandnephew of this man, and Congress built a, a, a, a, a monument to him, and that was done by law, and this does violence to the memory that Congress created f- of my ancestor illegally.” It, that seems to me to be a little bit more than aesthetic standing.

Molly Roberts: Well, I guess my issue with that is I agree that that seems more particularized than what Alison Hoagland put forth in this case. But the Supreme Court doesn't make any effort to explain actually why hers isn't particularized enough. It doesn't say something like, "Oh yeah, she says she's an architectural history professor, but really she's just walking her dog by a few times, and when she does those dog walks, it doesn't really have to do with architectural history." And, you know, Naomi, Na- Naomi Rao, Judge Rao went closer in the D.C. Circuit to saying, "This is generalized. She's not a special person." But the Supreme Court didn't really mess with that much.

So if they were actually drawing these distinctions about concreteness and particularization, I would say, sure, that's a better argument. But they didn't do it. They just declared it a fence and essentially said that that's different from environmental sites, and this is a fence. So is there room for them to say in the case you're presenting, "This isn't just a fence, this is aesthetic standing"? I mean, I guess, but that kind of just gets back to the same question we were at the start, which was, has the doctrine really changed here, or are they just using this 'cause they don't like this case?

Benjamin Wittes: Okay, so let me pose one other possible standing argument that could affect the Triumphal Arch but not the White House. So the White House is a compound that you can't access, and therefore you can't engage in civil disobedience. But it seems to me the Triumphal Arch is different. You can walk right up to that site.

And so somebody who did, say, a creative protest and got arrested, maybe for peeling paint off the Triumphal Arch or for, I don't know, projecting no Triumphal Arch on the arch got arrested and would have an argument in defense in the, in against whatever misdemeanor he or she was charged with, or in the case of peeling paint, of course, you'd be charged with a felony, a 20-year felony. You might have the argument, "Hey, this con- the entire construction is illegal, and therefore I am peeling paint that wasn't lawfully there to begin with." So, this now proceeds not in a civil lawsuit, but in a motion to dismiss. What do you think?

Molly Roberts: Well, that one's actually different.

Benjamin Wittes: It's genuinely different. You can't do it with the, with the East Wing because of course, the East Wing you can't go peel the paint off of. But I think you will be able to go up to the Triumphal Arch and, you know, scratch into it, you know, "Wittes was here" or something, and then when you get accused of vandalism, you say, "Wait a minute, I'm just writing on a wall you weren't allowed to build at all."

Roger Parloff: I wouldn't wanna be the defense lawyer there.

Molly Roberts: I was gonna say, I'm not gonna try it.

Roger Parloff: I also I think where, where most people are trying to prevent this thing from being constructed rather than allowing it to be constructed and then, and then writing graffiti on it.

Benjamin Wittes: And then defacing it.

Roger Parloff: Yeah.

Molly Roberts: Well, 'cause yeah, I guess the relief there is your case gets dismissed, but that isn't, you know, we still have the giant Triumphal Arch there, so you haven't accomplished anything other than pointing out that it was illegal.

Roger Parloff: I do think your, you know, a member of the Lincoln family would be distinguishing and, and would be narrow and be particularized. I also think we'll get, you could get cases of the families of war heroes who are going to Arlington every, every Sunday-

Benjamin Wittes: Right.

Roger Parloff: Saying, a- a- a- and it's still a big hurdle, this but I think you could get some really wrenching stories that might push over the finish line.

Benjamin Wittes: It would be really cool if you could have a caption on this
“Lincoln v. Trump” rather than National Park for Historic Preservation v. National Park Service. I, I think Lincoln v. Trump-

Molly Roberts: Well, if Ju- if Justice Douglas had had his way, it would be Lincoln Memorial v. Trump.

Benjamin Wittes: Yeah, exactly.

Roger Parloff: There is a distinction here w- with the Kennedy Center. The, the, the plaintiff, Representative Beatty, is a trustee. It's, she's a, I forget the but by statute, certain people are, are trustees, and so she has a different type of standing, so I'm not worried about the Kennedy Center. But these other places I don't know where we are now.

Benjamin Wittes: All right. Before we wrap, Molly, let's talk a little bit about a completely different issue, which is the United States Postal Service and a whistleblower report that was released this morning by Senator Blumenthal on one of your other areas of, I would say eccentric, except that they're turning it they, with remarkable consistency, they turn into matters of national controversy, which is the use of the Postal Service to try to rein in the use of mail ballots. So, give people a little bit of a reminder of what it is we're talking about here and what does the whistleblower allege?

Molly Roberts: Sure. So, there's an ongoing legal battle over an executive order that President Trump issued this spring that sought effectively to curtail mail-in voting by demanding that states submit lists of the people to whom they intend to transmit mail-in ballots to the Postal Service, and then that the Postal Service only transmit ballots to people on those lists. So that's effectively what the USPS component of the order did.

It was enjoined, then the Supreme Court vacated the injunction, or I suppose it stayed it. Then the injunction came back effectively because the Supreme Court did that on the basis of the matter not being ripe, but then the Postal Service published its final rule. In fact, the Postal Service had already published its final rule when the Supreme Court did that opinion, but didn't seem to matter.

So, where we are right now is there's a new injunction in place. It's going to get litigated later this week in Boston, where Judge Indira Talwani is. That will likely end up with the First Circuit, and that will likely end up with the Supreme Court, and the Supreme Court will, one imagines, have to acknowledge that it's ripe now and address the merits. But in the meantime, the Postal Service, again, had issued this final rule and has been developing this portal that is going to enable the Postal Service to check whether the state's actual mailings match the lists that they're mandated to submit. So that's kind of where we are.

There was this weirdness of the portal supposed to presumably come up soon because this is happening now. It's within the next few days, states are going to start mailing out these mail-in ballots. The Postal Service is claiming we're gonna have this portal. The portal's nowhere to be found. The Postal Service is unable to tell plaintiffs in at least one of the cases when the portal will finally appear.

So what this whistleblower has revealed is that the portal has been under-

Benjamin Wittes: And, and just, and just to be clear, what does it mean for the Postal Service to have a portal? Is it like a web portal? Is it a portal that all the mail has to go through and emerge in a different dimension?

Molly Roberts: Yeah, Doctor Strange-style portal. I think that-

Benjamin Wittes: Yeah, I mean, like, what does it mean when the Postal Service creates a portal?

Molly Roberts: It's a very good question. It is a web portal. Exactly how states are going to use it remains pretty unclear, but it is an, it is an IT system portal, effectively. And what would happen was state election officials would enter information into the portal for each of their registered voters. Then they would receive a mail-in ballot, and then they would need, it's so technically complicated, but then they would need to upload a manifest into a parallel system for each batch of ballots that they want to be mailed, and then you would sort of check those against each other.

And so, what this whistleblower is alleging is two main things. One, the development of this portal has been sloppy, haphazard, a quote-unquote "shit show." And that is particularly concerning because this portal or the verification system that the Postal Service is going to use when it says, "Hey, does what a state's actually mailing match the list it submitted?" Is going to have a 0% tolerated failure rate, such that if a state submits a whole batch of ballots and they run it through and they say, "Oh, one of these doesn't match," the whole batch will be rejected and sent back to the state to correct.

And they're saying, considering, that would be a problem even if this were a pretty smoothly functioning system, considering it's been so slapdash, haphazard, that's even more of a problem. There are likely to be errors in the verification. So that would be the kind of first bucket of what they're alleging, and I would say that people were already worried about batches being rejected, and the failure rate is what really sticks out here as new information.

Then the second main thing that they're alleging, that this whistleblower is alleging, is that the Postal Service was violating the court order in continuing to develop this portal when the implementation of the president's executive order had been enjoined. And I think it's not as clear-cut as it might seem initially. I think that there are kind of ways that they can argue that, "Oh, well, you know, we want to have this eventually. We might use it in a future election." It's certainly originally the, the order had only been enjoined as regarded the midterm elections and not for future elections. So, they could argue that that's what they were developing it for. I don't think it's that, that clear-cut, like from a kind of legal point of view.

But the spirit of the thing and the fact that they stopped, and this is revealed in the whistleblower's complaint too, they stopped developing the portal because of the court order for a while, and then they said, "Oh, no, no, never mind. Gotta start up again." And it, it's fairly clear that that was because there was pressure to have this thing ready to go by September 1st for the midterms.

So, you know, where does that leave us? I think it's a good question. I think it's gonna be relevant to the litigation because I think that it shows that the order as it will be implemented and that, that the implementation of the rule, you know, the Postal Service had said, "Ah, well, the way we're implementing this isn't exactly what the order said and may be more permissible." I think it, it makes it even clearer that it should be impermissible as implemented because it seems fairly obvious that there are gonna be these false positives, and that even if a positive isn't false, lots of other ballots are gonna be rejected, and so, you know, these people ability to vote is going to be curtailed. So I think that that'll be pretty important going forward.

Benjamin Wittes: The state of it right now is that it is all before Judge Talwani, who will presumably be at least inquisitive about whether her order is being violated. Is that-

Molly Roberts: Yeah.

Benjamin Wittes: Where we are?

Molly Roberts: Yeah, I think so. I think so. You know, again, when they issued this final rule at 9:00 p.m. on a Friday, before the Supreme Court had said that the injunction wouldn't stand, you could've argued that they weren't complying with her court order by doing that already. And they had filed for another injunction because of that, and it's all developed in sort of a different way, and there wasn't, you know, a motion to enforce, a motion to compel enforcement. But yes, I think so, and I think, again, that the facts of this are relevant not only as to whether they failed to comply with her order, but also as to the legality of the implementation of the order.

Benjamin Wittes: All right. Folks, we are going to leave it there. We will be back if there is any developing news related to the ballroom, the Triumphal Arch, Postal Service.

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