Lawfare Daily: Trials of the Trump Administration, April 11

[Intro]

Quinta Jurecic: But the long and the short of it is that the Supreme Court did unanimously come down and say the administration does need to work to get this person back.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittes, Lawfare's editor in chief, here with Lawfare senior editors Anna Bower, Quinta Jurecic, and Roger Parloff; legal fellow James Pearce; and contributing editor Bob Bauer.

In a live recording on April 11, we discussed the status of the civil litigation against President Trump's executive actions, including the Supreme Court's decision in Abrego Garcia's case, the Alien Enemies Act case, the attacks on law firms, and so much more.

Bob Bauer: So I think there's something developing here that we need to take seriously, not that the administration necessarily will.

[Main podcast]

Benjamin Wittes: Welcome, folks to this week's Lawfare Live. I'm Benjamin Wittes, editor-in-chief of Lawfare, and I'm here with Roger Parloff, Lawfare senior editor; fellow extraordinaire James Pierce; senior editor Quinta Jurecic; senior editor Anna Bower; and Lawfare special guest, Bob Bauer, contributing editor—and you know, scholar gentleman, street fighting lawyer, professor at NYU and man about town. Hello, Bob.

Bob Bauer: Hello. I'm sorry. He who was man about town was struggling a little bit with the technology, so I apologize if I'm a few seconds behind.

Benjamin Wittes: You are right on time, and since by definition the show doesn't start until you show up we can get started now.

Guys, we have our first kind of unambiguous Supreme Court decision saying something almost like the Trump administration loses, and—although not quite, and not quite—not quite unambiguous and not quite the Trump administration loses—but let's run with it.

So, in Abrego Garcia last night or yesterday, late afternoon, the Supreme Court mostly said that the district court was not wrong to require the administration to take steps to bring back this gentleman that they had—I don't think the word is too strong—rendered to El Salvador. And, today there is, was a hearing in the district court on the subject.

So, Quinta, get us started with the Supreme Court. What did they do last night? What's the background, and what is the—to the extent there's a division among the justices on the subject, what is the nature of the division? And then we will have Anna, who's fresh out of court, give us an update on what happened in Greenbelt, Maryland.

Quinta Jurecic: Thanks, Ben. So I'm gonna start with a little bit of background on the case because I think it's important to distinguish this case—the Abrego Garcia case—from the other case involving people who are stuck in this Salvadoran prison, the Center for Terrorism Confinement, or CECOT in the Spanish acronym.

So the Alien Enemies Act case—the case title is Trump v. J.G.G.—that is the one that has gotten a lot of attention previously that involves these Venezuelan men who were identified by the Trump administration on the basis of it seems very thin evidence as members of this gang Tren de Aragua and removed under the Alien Enemies Act to CECOT. And there is a, a question of the legality of the administration's use of the statute, what kind of avenue legal avenues are available for challenging one's detention and removal under that statute, and then the question of what will happen to the, I believe about 150 or so, people who are currently incarcerated at CECOT under those conditions.

That is not this case. Abrego Garcia—

Benjamin Wittes: We're gonna come to that case next. That's, that’s second on the agenda.

Quinta Jurecic: Exactly. I think it's important to distinguish them because I think they, they have been sort of, merged a little bit in the public discourse.

So this case, this is, it does involve CECOT, it involves someone who was shipped there sort of in the, in the dark of night by the administration with minimal legal process, but it does not involve the Alien Enemies Act.

So this, as you say, is the case of Kilmar Abrego Garcia who is not Venezuelan. He is a Salvadoran citizen. He was in the United States. He had been in immigration court, had a what's called under the INA final order of removal, but was granted a withholding of removal to, which essentially means he could not be deported to El Salvador specifically because a judge found that he would likely be persecuted by gangs in El Salvador if he were to return.

Importantly, there's, at one point in this case or other, there's a sort of very confusing instance in which he is identified by someone as maybe a member of the gang, MS-13. It doesn't, seems like there's a huge amount of evidence behind that, but the administration does keep harping on it, so I will note it.

At any rate, Mr. Abrego Garcia was—ended up being picked up by DHS. He was put in a detention center and ended up somehow being removed to El Salvador, along with all of the people who were removed under the Alien Enemies Act and placed in CECOT, even though he had this withholding of removal to El Salvador. And the administration admitted in the lower court that his removal was the result of an error. So they were upfront—at least initially—saying they were wrong to have put him there.

So then we, we get to this point where the lower court, the district court judge Paula—I'm not sure quite how to pronounce her name—Xinis?

Benjamin Wittes: Probably Xinis.

Quinta Jurecic: Xinis. okay. Let's go with that.

Benjamin Wittes: But I, but I don't know.

Quinta Jurecic: It's X-I-N-I-S. If you know how to pronounce it, please let me know. She ordered essentially that the government had to go and figure out how to bring this guy back.  The administration very quickly appealed it. We got to the Fourth Circuit. There was a unanimous panel, including a very conservative judge, Harvey Wilkinson, who said, you really do have to go get this guy back.

Wilkinson had some language there though, saying we need to be conscious of the fact that this could potentially intrude on the executive's power to conduct foreign affairs. So he had this suggestion that the judge should, should want the administration to facilitate the return of Abrego Garcia rather than demanding that it effectuate his return.

And then we, we get to the Supreme Court. We had—there had been a stay of this order demanding his immediate return. A few days went by. I think there was definitely some anxiety certainly on my part about what the court would do. And we ended up with this order that basically took the Wilkinson approach, I think it's fair to say. Indicated that the administration does need to take steps toward getting this person back from El Salvador where he was improperly sent, but that the, the court needed to do so—and I'll just read from the, the ruling here—with due regard for the deference owed to the executive branch in the conduct of foreign affairs.

Now this is a, it's an unsigned order. There are no dissents. I will leave to the, the scholars among us whether that means that it is technically unanimous or whether we can just say there are no dissents. But I do think that is notable. And then there is also a concurrence from Justice Sotomayor joined by Justices Kagan and Jackson, essentially saying, you know, we, we think that we could be a little bit stronger in the wording here, essentially.

But the long and the short of it is that the Supreme Court did as far as we can tell, unanimously come down and say the administration does need to work to get this person back. And that importantly also—and I'll read this language again—the government should be prepared to share what it can concerning the steps it has taken regarding the return of Abrego Garcia and the prospect of further steps.

So that is where we were as of last night. I think I, what I would say is this is essentially the, the Supreme Court sort of giving the administration some wiggle room. We can call it a presumption of regularity if we like, to say, you know, we're gonna give you some flexibility here and we're not gonna tell you, you have to call up Nayib Bukele and tell him, give us this guy back, but it is an indication that the court is not going to just let this person rot in CEOT.

Then that is going to lead us into the events of this morning and the early afternoon where I think we saw just how this presumption of regularity actually played out in practice.

Benjamin Wittes: Well, so let's so before we do, I think there's, there's one more thing that I think is important to say about the Supreme Court decision.

It's not just a question of how much wiggle room it gives the government. It's, it's a recognition that, you know, you, the, the courts actually can't exercise the tools of the foreign policy authority. And so to say you must retrieve him assumes that something's possible that actually requires diplomacy to get done.

So does anybody—Bob, James—before we, Roger, before we turn to Anna for the, the I don't know, the post game show or the, the district court game show do you guys have thoughts on the Supreme Court handling of the matter?

Bob Bauer: I can say in a sentence. I know there are some who've argued that it's a partial win for the administration or a split decision—I don't see it that way. Now I do think we have to see how it plays out, but when we get to it, I think we should pair this with another no dissent noted decision, and that was in the Venezuelan deportation case where there were certain due process principles that were emphasized again, apparently on a unanimous basis.

So I think there's something developing here that we need to take seriously. Not that the administration necessarily will. We'll hear from Anna on that score.

Benjamin Wittes: James, Roger, do you have anything to add on this?

James Pearce: No, I mean, I, I guess, well, yeah, one, one point, which I think Quinta alluded to and, and I think is, is worth emphasizing, which is I think the court is trying to balance the idea that the administration, you know, its role, and the court's role is circumscribed. And it is operating with the court is operating with an idea that it has a good faith administration. And I think for those of us following in the, in, in the, in the, out in the world, there is lots, in lots of evidence to the contrary.

And, and I think Anna will probably talk about that in just a moment. But it's hard to imagine what else the court could be doing. And I think that's what its institutional role is. And I do think that's, that's what is to be made of the nature of the, the, the short unsigned opinion. It's saying, look I, I think you have to read between the lines that the court, just like Judge Wilkinson, like all of the judges that have seen this, thinks this is just really atrocious behavior, but it can't come out and say that. It's gotta say, and I think it, and, and fairness needs to recognize—as I think your intervention suggested as well, Ben—that it's not the court's role to go out and, and be doing what the administration ought to be doing.

So I think it's, it's a very interesting to see kind of how long we're going to get that that sort of resigned or, or sort of the tone from the court. I mean, I, I think that is chief, chief justice in his most institutionalist mode, and that is his inclination throughout. At some point we might hit something where that, that that tone and that deference goes away, but I, we're, we're still squarely in that, in that ballpark.

Benjamin Wittes: Alright, so fast forward now about an hour after the Supreme Court decision comes out. Judge Xinis issues an order of her own. Anna, take it from here. What happened? And take us right up through the hearing you went to today?

Anna Bower: Yeah, so Judge Xinis entered this order following the Supreme Court's decision last night. And it directed the defendants with the government to quote, take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible. Keep in mind that this is an amended order that changes the language from effectuate—which the Supreme Court seemed to take issue with and said that it, it might overstep the court's jurisdiction—to changing it now to facilitate the return of Garcia to the United States.

And along with this amended order, she also included a directive in which she required they file by 9:30 a.m. this morning three different types of information. One is the current physical location and custodial status of Abrego Garcia, and she wanted this to be from someone with relevant personal knowledge within the administration.

The second category of information beyond his current custodial and physical status was what steps the government has taken up to now to facilitate his return to the United States. Keep in mind that at this point—at the point when the Supreme Court entered an administrative stay of her original order requiring the effectuation of his return, the order had been in effect for like three days. And I think it was the very day that he was due to be returned to the United States in compliance with the order that the Supreme Court actually stayed, that original order. So there was a significant period of time that you would suspect that the government, if it you know, suspected that there might be that they might have to comply, that they would've taken some type of steps. So she wanted to know up to this point, what has the government done to facilitate the return.

And then finally, in the third category, she wanted to know what potential steps might be taken in the future to facilitate Garcia's return to the United States from El Salvador. So she asked for those three categories of information by 9:30 a.m. this morning. Around—I wanna say it was about an hour before that deadline, the government filed an extension, a request for an extension, saying that it wasn't practical, practical for them to be able to provide that information. They, you know, complained that it was 30 minutes into the business day and you know, it was basically too, too short of a time period for them to be able to reveal that. They wanted the judge, I believe it was by Tuesday, to extend the deadline. But the judge ended up coming back and saying, no, I'll give you until 11:30.

So 11:30 rolls around and we're all sitting there doing what we do at Lawfare, which is refresh the docket. And there was no order or excuse me, there's no filing, filing.

Benjamin Wittes: We do more than refresh the docket. We also chat on Slack while refreshing the docket. It's, it's serious multitasking going on.

Anna Bower: Yeah, we send updates—

Quinta Jurecic: Pennies were paid to the federal judiciary while we refresh.

Anna Bower: Yeah, we figure out who is on PACER and who's on CourtListener, and and who is, you know, the designated refresher of the docket.

But, so I'm sitting there refreshing the docket and there's nothing. And about 45 minutes after the deadline—and we're all thinking, oh, maybe they filed under seal, maybe there's some local rules in Maryland that we're not aware of and sometimes, you know, motions to file under seal could, can be delayed getting onto the docket. But sure enough, no, it, it wasn't that the government tried to file under seal. They filed about 45 minutes after the 11:30 a.m. deadline.

And in the filing that they submitted, they essentially revealed no information. And they say that they are not prepared to respond to the court's requests for information and they're still evaluating the Supreme Court's two page order—essentially two pages, I believe maybe it was four—but not a very long order, and they say they're still evaluating it.

They, they claim that they're, you know—this is delicate foreign policy matters. They, they say that Abrego Garcia is in the custody of a foreign sovereign. And so, you know, they're gonna have to evaluate things before they can figure out what they're gonna reveal essentially. So they give her nothing basically.

And then the hearing rolls around at 1:00 p.m. and it is a quite a wild ride of hearing, Ben. Drew Ensign who previously was representing the government in the J.G.G. case before Judge Boasberg showed up on behalf of the government, because—as folks might remember from news reports over the weekend—two of the career attorneys who previously had been working on this case were put on administrative leave.

So Drew Ensign apparently was assigned to work on the case, going forward. He showed up on behalf of the government.

Benjamin Wittes: He's now gonna represent the government in all cases 'cause they've fired all the other lawyers.

Anna Bower: Yeah, they've, they've fired a lot of people where a lot of people have left. So Drew Ensign is there on behalf of the government and Judge Xinis starts the hearing, explaining while why we're there, says the Supreme Court ruled; I amended my order; you've now got this new order that requires you to facilitate the release; I ordered this information and, and you've given me nothing in the written filing that you submitted, so I'm gonna ask you these questions one by one and go down the list.

So she proceeds to then go through the questions. The first being what is the current physical location and custodial status of Abrego Garcia? Drew Ensign cannot answer her questions on this point and it was really remarkable in that, keep in mind the pre, the filing they submitted earlier that day said he is in the custody of a foreign sovereign. So they admitted that they—or at least implied—that they know what, what his custodial situation is.

Then when he, Drew Ensign, is directly asked, where is he by the judge, he says, I don't have that information. And then he says, you know, what I can say is the plaintiffs have represented that his last known whereabouts were in a, you know, in a prison in El Salvador, and there’s not any information contradicts that. So a very, you know, lawyered statement in which he will not just come out and say, you know, we believe that he is in El Salvador, which is where his last known location was. And again, they already said earlier that day, he's in the custody of a foreign sovereign.

So the, the judge is very frustrated by this, says it's extremely troubling. You know, at one point she even says to, to Ensign, you know, I, I'm troubled because you have, you're not giving me anything that your client has relayed to you or communicated to you about these facts, this information that I've requested, it doesn't really suggest that you have a full and effective relationship with the client. And it means that there's no evidence in the record. So, I want you to communicate to your client basically, that if they wanna combat the situation, then the best thing they can do is communicate information to you.

So then we go on to the second question. Again, Ensign says that he does not know what the government has done over the course of the last several days to facilitate the return of Garcia. He—it's kind of like a broken record at this point where he is again and again saying, you know, I don't know, I don't have that information. He does in terms of any kind of substantive argument, make the argument to the judge that in their view, the Supreme Court's ruling means that before the judge, there should be some kind of briefing about, you know, due regard to the executive, because that's one of the phrases that the Supreme Court used, in which it said that the judge could amend her order with due regard to the executive branch.

And then finally, last subject: potential steps the government might take to facilitate release. Again, Drew Ensign has absolutely no answers for the judge and says all the things about, you know, we need to evaluate we need to evaluate exactly what this order means. And, you know, there, there's three branches that are involved in this and foreign policy and all of those reasons he repeats again.

The judge is really not having it and is upset that Drew Ensign is suggesting that they put things off in terms of any kind of further information or further briefing until Tuesday of this coming week. You know, she says, meanwhile, all of the irreparable harm is going to continue; this guy's gonna continue being held in a place that he was wrongly sent.

And so she de, decides that she's gonna require the government to give daily status updates on, on exactly what it is that it's been doing to facilitate his return. And then once it finally is prepared to provide the information requested in her directive, then she's gonna hold a hearing the next day. She also directed the plaintiffs, you know, to respond accordingly insofar as what relief or remedies, if any, she should grant if the government does not comply.

Benjamin Wittes: Alright. Thank you for that very thorough account. That's super helpful. So, I wanna, before we go on to J.G.G., so we're looking at like the next report is due tomorrow, right?

Anna Bower: Yeah. That's my understanding. I last, I checked before we, we got on the live. I don't believe that her written order is out yet, but she mentioned at the end of the hearing something to the effect of, I hope you can tell me to answer these questions by tomorrow at 5:00. So, I, I suspect that by tomorrow at 5:00 is the first daily report that will be due.

Benjamin Wittes: Let us move on to J.G.G., which is less obviously a victory for people deported to El Salvador. And in fact, there's been kind of a bit of a tension in the debate, a bit of a debate about how to understand it.

Some people see more in the fact that there are nine justices who say there has to be due process. Some people see more in the fact that they don't see, you know, nine justices agreeing on the modality of the review or that the, you know, it's gonna be, it's more obviously gonna be available to people who haven't been deported yet than people who have already been deported.

So, Bob, I'm interested you, you took a very sunny view of—with which I agree by the way—of the, the decision last night in Abrego Garcia, do you take a similarly sunny view of J.G.G., or is that one more complicated from your point of view?

Bob Bauer: I wouldn't characterize my view in either instance as entirely sunny because I, I don't know how the weather's gonna play out over time. I don't know where all of this is going to end up, and of course, the court's pronouncements so far have been on the emergency docket, but to the extent that you can draw some conclusion about what's going on here—or, let's put it this way, a preliminary conclusion about what's going on here—I do tend to view the two orders here in which there were no noted dissents on fundamental due process issues as an encouraging sign. And bearing in mind we have nine justices, widely divergent within within their jurisprudential perspectives, even within the so-called conservative members of the court, widely divergent in their institutional sensibilities and their conservative perspectives.

And yet I do think that this administration for a number of reasons, and we can talk about the component parts this administration is driving so hard on arguments that push against fundamental intuitions about our system of justice in the United States and constitutional safeguards for individual citizens, that they're going, I think, to meet with real grief.

Now, it, it does not mean that horrible injustices will not occur in the meantime. It does not mean that the sort of foot dragging non-compliance that Anna so effectively described here won't be a continued problem that the courts will have to deal with. But I think there are some markers being laid down here. And what's really interesting is I don't know that the administration cares. I don't know how much it actually cares.

Benjamin Wittes:  And that is most visible by the way, I think in the not in these cases, but in the attorney and the law firm cases for reasons I will go into when we treat them there. But I agree that that's a big question. You know, it's, does the administration care? And if not how effective can the courts be in this iterative conversation that they're having with the executive over ten different compliance issues? And this would be a good example of that.

So, so tell me how—and I'm gonna ask Quinta and James the same question—how do you read J.G.G. when, when you look at J.G.G., if, if somebody said it, you know, I'm a—you know, you're standing in front of a group of smart college seniors and you have to explain J.G.G.. What, what did the court require and why do we care?

Bob Bauer: You know, I think I probably said what I can say about it at this point, which is that, you know, fundamentally there was a ruling on habeas that was, of course, disappointing to some, that the case has now been moved away from Judge Boasberg and heading south—maybe literally as well as figuratively or figuratively as well as literally.

But at the same time, I did think that what they put forward in, in the way of an insistence on fundamental due process—while again, I think it's too early to see how all that would play out—I would describe it again, if I'm talking to this audience that you described, I would describe it as a victory for the plaintiffs. Not a hundred percent victory, but a meaningful victory for the plaintiffs. Now, I don't know if I'm answering your question. I hope that I am.

Benjamin Wittes: No, fair enough, Quinta, I think you're more anxious about it than that.

Quinta Jurecic: Is that fair? Well, I, I have a major advantage here, which is that I, I wrote a quick piece for The Atlantic, which I think that the, the readership of the Atlantic probably includes some bright high schoolers, but it's certainly less technical than a lot of our, our listeners here.

And the argument that I made then, and I'll just read what I wrote to take advantage of the work that my past self did was that the decision is strangely antiseptic. It marks a major loss for Donald Trump in its refusal to allow him to snatch people away in the middle of the night, but it also exhibits a disturbing willingness to ignore the brute facts of Trump's actions and their human cost in favor of remaining within the more comfortable world of high-minded detachment.

And what I mean by that is that yes, as Bob says, absolutely we had a commitment to some level of due process here; I think I was disturbed by the absence of attention given in the per curiam ruling to the way that forcing these people to go through habeas significantly restricts what kind of relief might be available to them, particularly in the fact that, you know, they, they will probably have to go through the Fifth Circuit. There's been a really disturbing trend of ICE sort of moving people around in a way that makes it more difficult for them to access counsel and file a habeas claim in the district of confinement.

And then also just the fact that the per curiam ruling didn't address the people who are stuck at CECOT. It was, if you read only the per curiam, you would've had no idea that there were roughly 150 people under the Alien Enemies Act—more, more, I think about 260 in total, but about 150 in the Alien Enemies Act—who were in a Salvadoran prison with no process possibly for the rest of their life. And that, I think, worries me because I think it speaks to a lack of urgency on the part of the court to address these matters.

I will say I feel a lot better about the J.G.G. ruling now that we have some indication in the Abrego Garcia ruling that there is, you know, a recognition that it is possible for a court to require some level of effort on the part of the executive to get somebody back. Obviously, as we've discussed, the circumstances are very different. I do think that that was encouraging. I was very worried that Abrego Garcia, the, the ruling was really gonna foreclose any kind of relief to other people at CECOT.

But I do just think that, you know, there is a, a posture in the Court as a whole, or at least, you know, as expressed in the per curiam that is not treating this situation more broadly as the emergency that it is. And I think that that is reflected in a variety of ways. I worry in the, in Abrego Garcia, for example, that it sort of was seeking a delay of a confrontation between the administration and a judiciary without really recognizing that delay does not forestall it altogether.

Benjamin Wittes: James, what do you think is there, do you have, is the court's calculation here? Not much we can do for the 260 who've been shipped out already, so, let's be bloodless about that and, you know, not rent our garments over it, but but make sure that there's process going forward or is, or do you think there's something else going on here?

James Pearce: I, I tend to so I read the decision initially with a, with a good deal of, of pessimism, and without ascribing to the court, it's it's view on those individuals who are already in CECOT, I tend to think that the court concluded there was not much it could do. Maybe some on the court rent their garments over that, and some of them thought gosh, this administration is really acting improperly, but that is what the voters elected them to do and there's nothing we can do about it.

 You know, the language from Abrego Garcia more recently I think tends to bear that out, which is it, the, the court is at least saying the government, we expect the governments to facilitate—sort of the point I made up a, a little earlier act in good faith despite what I think are a lot of indications that we're not getting good faith from the government.

I would say that, you know, and I agree with, with, with Bob's view and, and Quinta as well—and I think you said this too, Ben–which is, I, you know, I, I am heartened by language in J.G.G. that there needs to be a, a review through the habeas mechanism. And, and I'm further heartened by the fact that judges, district court judges appear to have picked up and run with that in the Southern District of New York and in the Southern District of Texas. So I do think that those are signs that the court, the courts that the, that following for the Supreme Court's lead are going to put some real teeth into this analysis.

It will be interesting to see how much those courts and ultimately the Supreme Court will on the Alien Enemies Act, get into the kind of analysis that Judge Henderson did in the, the Court of Appeals, which is, you know, is Tren de Aragua really the government of Venezuela? Was there really an invasion or a predatory incursion? I suspect the government's gonna come back and say—'cause I think it's said this already—things like, yeah, that's, that's, those are determinations for the president and not subject to, to judicial review. It'll be interesting to see how, how the courts and ultimately the Supreme Court—'cause I think this is headed back to them on that type of question—handles that

So I hope there's teeth in that because I find those I find the likelihood that the government could plausibly satisfy that to be very low. But we'll see again, how much the Supreme Court—with the lower courts obviously acting first—requires the, the government to, to prove those things up.

Benjamin Wittes: Alright, so, this brings us to Roger. Roger, you've been following the descendant cases that have emerged from G.G.G., J.G.G., sorry.

So bring us up to speed. The Supreme Court's spawns a bunch of habeas cases in different locations. Tell us about the spawning.

Roger Parloff: Yeah, yeah. Well, it begins first first with J.G.G. itself. Like what happens to J.G.G. in the evening after the ruling, DOJ files—so apparently they do work after hours on certain cases at DOJ even in the immigration department—they, they filed a petition to dismiss the case and to dissolve the order to show cause that was pending in front of Judge Boasberg. That's basically an order to show cause why—that was about whether the government had defied his orders.

The next day, the, Judge Boasberg issued an interesting order. He vacated the preliminary injunction, obviously, but then he said plaintiff shall file by April 16 indicating if they still have a basis for proceeding on a preliminary injunction motion in this court, and if so, proposing a briefing schedule. So I, I thought that was interesting. I, I, I would've thought there might be a joint, you know, submit a joint status report. There's nothing here about—well, I thought it was interesting 'cause obviously the court has just said this was filed in the wrong jurisdiction. D.C. shouldn't have it. This is a habeas case; It has to go to where the people were confined, which at that time was Texas. But he doesn't, and so, he, he, he may think there's a way for him to continue.

And one thing I, maybe I'm maybe other people disagree, but the, the, the order of the Supreme Court does not explicitly dissolve the class certification. It, it specifically dissolves the TROs. And of course, the class includes the people that are now in El Salvador. So the question is, is there a way to—and some of those people who are now in El Salvador, they have submitted declarations through their attorneys or through on their behalf by family members—so I don't know if there's a way they can be turned into named plaintiffs and remain in D.C. because there is this some case law which Quinta and, and Ben and or Natalie have, have talked about in their piece, some Guantanamo prisoners were permitted to bring habeas in D.C. even though they were out outside of the country. So J.G.G. isn't completely dead.

The other piece of it is of course that whether there can be, whether he can go forward with the contempt proceeding. It's not literally a contempt proceeding yet, but it's going in that direction. And he didn't say anything about that either in his order, Judge Boasberg, maybe 'cause it was obvious to him that he can't maybe, 'cause it's obvious to him that he can't. So that case is not completely dead yet.

Meanwhile, all five named plaintiffs have filed their own class actions in other places. Three of them were in, were in, the Southern District of Texas where they were confined, and so they've, these are little class action habeas. One includes the El Valle Detention Center down there, which is a very important detention center where most of these people were. It's near Harlingen where they took off from. Two of them are in Orange County, which is in Southern District of New York, so they have a little class action.

But as—I, I'm forgetting now, I think Quinta or, or James mentioned—you know, that part of the ruling that did decide to make this a habeas, that part of the J.G.G. Supreme Court ruling that said, no, this has to be brought as habeas is—you know, I can't think of any policy reason that's, that's positive for doing that. You know, I could, you know, you could argue, oh, my hands are tied. The, the precedents say that they didn't say that, you know, the precedents weren't so clear. But they really do hobble providing meaningful relief and and they sort of ensure that people, especially indigent people who speak other languages, will fall through the cracks.

The other case—isn't really a spinoff, but I, I, I think it's an interesting case—I'd like to mention is D.V.D. versus Department of Homeland Security. It's in the district of Massachusetts. It's actually, we, we, we, we've been unaware of it. It's just been under our radar until recently. It is a class action and, and a TRO.

It's, it's for—and, and if you remember in J.G.G.—there was, there was a third plane, the 137 who are in El Salvador under the Alien Enemies Act, ostensibly are the first two planes. The third plane, which leaves after Judge Boasberg’s written order. The, the IRS, I mean the IS the INS, the the government says, don't worry that those weren't, those weren't Alien Enemy Act people. That was all people with final orders under Title 8 conventional immigration procedures.

And all of the immigration lawyers were saying, well, wait a minute. A removal order has to designate the country. And very, very few Venezuelans are gonna be designated to go to El Salvador. How can this be? This is very implausible.

And it's developing in this, that a, a policy change has occurred sort of quietly, and it seems to have occurred on Feb. 18. And the practice was, you have a lot of people that like Abrego Garcia, who is removable but not to his own country, and what they do is they usually release them on parole if they aren't dangerous and they have regular check-ins. And, and then if somebody's gonna try to move them to some third country, they get notice, they get a warrant, they have a chance to say, oh, that third country is dangerous for me too, here's why. On Feb. 18, apparently they eliminated that policy and they say, no, we're not gonna do that anymore.

And so this class action is a bunch of people—a Cuban, a Honduran, a Guatemalan, an Ecuadorian—who are in that situation. And one of them is confined, but the others aren't, which is why it's not a habeas. And it's a very interesting case and we're learning more about through it, about what the Trump administration has done here.

Benjamin Wittes: I wanna start by reading the opening two paragraphs of Pam Bondi's and Russell Vought's memo in response to the district court's TRO a against the executive order concerning Jenner & Block the law firm.

She writes: on March 28, 2025, an unelected district Court, yet again invaded the policymaking and free speech prerogatives of the executive branch, including by requiring the Attorney General and the OMB director to pen a letter to the head of every executive department and agency. Local district judges lack this authority and the Supreme Court should swiftly constrain these judges blatant overstepping of the judicial power. In this particular case, a local district judge has mandated that the Attorney General and OMB Director personally send the below notification about Jenner & Block LLP, a law firm committed to the weaponization of justice, discrimination on the basis of race, radical gender ideology, and other anti-American pursuits. Of course, as noted in the court order, agencies are permitted to carry on their ordinary course of business, which carries with it the authority to decide with whom to work.

So this is a memo notifying the agencies that they have a TRO and they're not allowed to target Jenner & Block.

Bob, you have been the White House counsel, and you have studied the White House counsel's office as very few people have. Have you ever heard of the attorney general, you know, writing a kind of sneering stick your middle finger up at a district court memo by way of complying with a court's order? I was just trying to think if I've ever seen anything like that as a comp, you know, as a, as a means of complying with an order, and I can't think of anything in the same ballpark. Am I missing something?

Bob Bauer: I, I don't think you are. I, you know, what came to mind? I was trying to think what's a fair answer to that question.

I was thinking of some remarkable statements that not long before he was imprisoned in connection with the Watergate matter, Attorney General John Mitchell, under Richard Nixon said about the law; very specifically, he was picked up on tape in a conversation with Henry Kissinger and Richard Nixon talking about a weapons ban involving Pakistan, and in effect saying, there's no legal authority for us to do what we're going to do here; we're just not gonna be picked up on it. In other words, nobody's gonna notice.  That's pretty shocking. But he said it behind closed doors, and I don't expect that he thought that it was gonna come to the light of day.  

This is all out in the open, confrontational, and I noticed the last sentence of what you read there. There's not only this attack on the court, but then there's the clear cut statement—I mean, I wouldn't even characterize it as a suggestion—you really can't do anything about what we're planning to do here. It's, you've issued a TRO and it doesn't mean anything.

Benjamin Wittes: That's right. You issued your order. We'll formally comply.

Bob Bauer: Correct, correct.

Benjamin Wittes: You can't make us do business.

Bob Bauer: Yeah, we don't wanna do business with Jenner & Block, we don't want engage with any of their employees. We don't want to issue security clearances to any of their personnel. That's our call, and that has nothing to do with your TRO and it doesn't reflect in any way in our compliance with it.

Now, I have thought, and I hope I'm not wrong, that this behavior, the rhetoric, the defiance via those sorts of mechanisms or slow walking, are gonna serve this administration ultimately very poorly in the courts. I think this is ultimately going to be very damaging to them. In the short term, they may not care. They may think they're racking up wins that are pleasing to their constituency. In the long term, I think it's very damaging.

But to answer your question directly, it is very difficult to see the hand of lawyering—I won't say lawyers, I don't know who to call out for this. I I, maybe there's some lawyers who were howling into the wind in the administration saying all the right things and being ignored. But these are not lawyered actions and it is hard to imagine that the White House counsel at his desk can feel at all comfortable with actions that at the end of the day, he's going to be associated with, right. In one way or another, you know, the lawyers who are there are going to be tainted by the behavior of an administration conducting itself in this fashion.

Roger Parloff: Can I ask Bob a question? Yes. Because he, he spoke earlier about, you know, people are gonna, something to the effect that people are g gonna come to grief because of this sort of conduct, and we're seeing contempt like conduct in a lot of different contexts.

Bob Bauer: Yes.

Roger Parloff:  But what does contempt look like against the attorney general of the United States? What? What can you do? You can't put them in jail? What, what does it look like?

Bob Bauer: I'm not looking at imprisonment. What I meant to be clear, I mean, courts can find hold in contempt and they can assess fines against recalcitrant executive branch officials.

What I really had in mind is the way in which—and it's gonna be very difficult to actually trace it, but we may be able to see glimmers of it now—that this sort of behavior is going to affect their ability to win arguments about things that they actually care about, because they will have absolutely no credibility, including with judges that would normally be sympathetic with the administration's policy goals.

I mean, I just think they're miscalculating here. Now again, they may not care. This may be very constituency focused. This may be very boss focused. This is what Donald Trump wants. And as you can see—this is the other thing that would horrify any White House counsel that I'm aware of from past, and at least the ones I've known and the ones I've studied—some of the language in these executive orders appear to have been dictated by Donald Trump, or alternatively by somebody who's good at mimicking his rhetoric. I mean, this is a bad, bad look both in form rhetoric and in substance. We'll see.

But the answer to Ben's question is no. I, I, I, it's an extraordinary sentence. The last sentence that you read, the first part of it is really lamentable. But the last sentence that you read there, I, I think is so damning.

Benjamin Wittes: I, I found it, I found it astonishing.

Bob Bauer: Yeah.

Benjamin Wittes: It only came to my attention yesterday, though it's, it's somewhat older than that.

James, you have, you know been a, pretty recently been a lawyer for the government. And some poor soul, probably Drew Ensign, is gonna have to walk in—I mean, maybe not—but is gonna, has to walk into court and talk about this document as a, as, as a act of compliance with the court's order. And it's already been introduced to the court.

And so I just wanna ask you, what do you like, what do you do if you're the lawyer? I mean it, I guess it formally complies, right? It notifies them of the thing. It also has this line, as Bob points out, that says, and by the way, we're gonna violate it and you can't stop us. What do you do if you're the Justice Department lawyer who has to like walk in and pour gasoline on, on himself and set it on fire in front of whichever—I don't know which judge this is in front of—but which whoever has the Jenner & Block case.

James Pearce: Is, I don't know if hiding under the table is a, is a possible answer to this question, but, but something along those lines.

I, I, I wanna answer your question a bit more seriously, but I have to just, one other thing that you noted that I think further emphasizes Bob's point, that there's no way this went in front of a lawyer, is one line that caught my ear was the free speech prerogatives of the executive branch. By the way, the executive branch doesn't have First Amendment right. It's, that is a, that is a, a law that safeguards, you know, citizens from government intrusion. It's not a sword that the government can use.

But you know, I think Ben, your, your question gets to something that's gotten a lot of discussion recently, also in connection with the Abrego Garcia and the, the departments put placing on administrative leave of the attorney who was candid with the court in, in responding to say basically like, I don't have information that's responsive to that, I've been frustrated and, and unsatisfied.

You know, to, to, again, emphasize Bob's point about losing credibility—I just don't see what a government attorney can, can do here to try to, to revive what is already lost credibility. I mean, you know, the, the, the, the order just speaks for itself and I think an attorney is basically just relegated to what Drew Ensign was doing today in front of Judge Xinis, which is, I don't know, I don't have information about that. You know, my, my client, like I'm only authorized to represent you know, what's here and, and nothing more.

And that is going to be highly unsatisfactory to a judge. It's going to be nonresponsive. And it's ultimately going to harm the government's, not only their, their credibility, but their ability to actually prevail on the merits in a lot of these arguments.

Benjamin Wittes: So, the Greek chorus informs me that the Jenner case is in front of John Bates, who is one of the most serious and scholarly and temperamentally conservative judges on the bench. He's an extremely serious guy, and nothing that we are saying amongst ourselves here will not leap out at the, on, at him, on the page.

Quinta Jurecic: I should, I should note the—

Anna Bower: Can I, can I–

Quinta Jurecic: Sorry, go ahead, Anna. Go ahead.

Anna Bower: No, go ahead, Quinta.

Quinta Jurecic: Yeah, I mean, as Jamie Santos—hi Jamie—points out, he was also, Judge Bates was also not amused during the course of the hearing. I mean, he, he gave the advocate for the Justice Department, Richard Lawson, I think a, a fair shake and didn't, you know, go after him or anything like that.

But at one point, I believe, if I was hearing correctly, he referred to the, the language at the beginning of the order as reprehensible—I think that's right—and was not at all amused as Jamie points out when Lawson tried to crack a joke about why he, as a political appointee was running around representing the administration in so many cases. So I think from that hearing at least, Judge Bates was, you know, careful, measured, but seemed very conscious of the aberrant nature of what was going on.

Anna Bower: Can I, can I add something to this too, which is that you know, it's not just that they sent this stat this notification out and it had this language in it. They also like were really dragging their feet on it.

Judge Bates issued his order on March 28. They, I think, were first required to submit a status report on it on March 31. They claimed in the status report that they had not been able to send the notification out of the judge's order to all agencies who were affected by the executive order because of logistical difficulties without specifying exactly what those logistical difficulties be. Seems to be something as simple as just sending an email to the agencies.

Jenner & Block, in their summary judgment motion, also noted in a footnote that they had tried to confer with multiple times with the government about whether or not the notification had gone out and, and were unable to get an answer. And then finally the government did, you know, file a notification that they'd sent it out.

We also had a report this week that I wrote about regarding, you know, more than a week after the court's order, the Department of Energy sent out a request for employees to seek disclosure from their government contractors about any business dealings that they have with Jenner & Block and Wilmer Hale and Perkins Coie and all those law firms that already had sought TROs and successfully received them. And, and so it seems like a likely violation of the court's order. Of course, that email was then rescinded a few days later.

But there's a lot more to this than just the language. It's, there's a lot of you know, seemingly bad faith conduct surrounding it as well.

Benjamin Wittes: Yeah. And that's, I, I think a really important feature of it, and Anna didn't mention that she broke the story of DOA’s emails on this subject—DOE, sorry. But, you know, you have these, this situation where the notification is delayed and then is in this really inappropriate language that sort of teases the desire to violate the order. And then of course you have agencies that are actually not complying with the order.

Alright, we are gonna lose Bob Bauer who has to drop off. But before we do, Bob, I just wanted to ask you whether you had any thoughts on the extension of the going after law firms principle to going after individuals, what we might call executive orders of attainder?

Bob Bauer: You mean the, the risks of particular, you know, individual leakers? That, that, that, that executive order that popped up?

Benjamin Wittes: Yes. You know, we're going to have an executive order denouncing Chris Krebs and or Miles Taylor.

Bob Bauer: Yes. Yeah. So if I could, let me say something briefly about that and then just go back, if I may, just to one point about law firms, I, I don't want to miss here because there was some other news in that space, and I think it's relevant.

But on the first, of course this is an example again of how is it that anybody you could imagine in the White House would advise the senior staff—and that's to say any White House counsel, any lawyers—would advise the senior staff that this is the appropriate subject for an executive order.

Now, I haven't studied these very closely. I don't know that I really need to spend an awful lot of time honing in on the nuances of what they did here. But it's this bullying, personal vendetta, vindictiveness wrapped up into what, at least the administration's claim would be a lawful, quote unquote, exercise of executive authority. And I think it's extraordinarily dangerous, but I think also, I hope this is true self-defeating.

Very quickly—and I, I really have enjoyed this conversation, so thank you for inviting me—I just wanted to add one more thing in the middle of all that we've discussed about the way the administration is dealing with law firms and the legal profession. The president bragging, Steven Miller bragging that he now has pro bono commitments for administration initiatives, almost up to a billion dollars; the president bragging that he might force somehow these firms to undertake as part of their pro bono commitments, assistance to him in his trade deals or in the representation of coal interests, coal mine, coal industry interests.

In the middle of all of this, some of the biggest law firms in the United States are continuing to negotiate and reach deals with the administration. You took a look at the entire picture of this, the executive orders, the way this whole thing has played out, up through all the points that you just made about non-compliance, and we find out Latham & Watkins, Simpson Thacher, others

Benjamin Wittes: Big, bad, Skadden Arps,

Bob Bauer: Big bad Skadden, Arps, Paul Weiss—I, I'm, I'm missing one of them, that just in the last 24 hours was part of that last set that we know of that cut a deal just now announced—

Roger Parloff: Shearman.

Bob Bauer: Pardon me?

Benjamin Wittes: Shearmen.

Bob Bauer: Exactly. Exactly. And there are rumors of others, Kirkland & Ellis, these firms have concluded that it is appropriate for them to continue to do business with this administration around these kinds of rule of law issues in the role of the legal profession in the United States. And it's completely and totally disgraceful.

Benjamin Wittes: I will just say on on that note before Bob goes, the bully never takes your lunch money only once. You know, if you give it to him, he's coming back, guys, You think you're escaping Paul Weiss and you, you know, you are just gonna do pro bono work that you would've done anyway.

Bob Bauer: Yes.

Benjamin Wittes: It never happens that way.

Bob Bauer: Well, and we also saying, that's right, and his reading already of these agreements has been different from the reading that the firms have provided publicly. I mean. There's no secret about the way he does business. It's the way he did business in New York, and it's the way he did business in his first term. Anyway, thank you again. I really appreciate it.

Benjamin Wittes: Thank you, Bob.

Benjamin Wittes: And with that, Roger, let's turn to the law firm litigations, because there are these law firms who have actually litigated the thing and they get their TROs in preliminary injunctions in matters of hours. So what's going on with the, how many law firms? Is it like four that have actually litigated it?

Roger Parloff: Three are litigating. I imagine Susman Godfrey, which was recently hit with one of these, will litigate too. It's not hard, you know, they get the TRO within 24 hours after they file. It's done, you know, it's root and branch unconstitutional.

So, but this is one place where the government has not been trying to appeal quickly. They're in no hurry 'cause like you say, it doesn't really matter if you enter these TROs, they can violate them with impunity. You know, if you are, if you lack integrity., you can continue, you have a lot of leeway.

So, you know, they plug along, they're going to go to a, a preliminary injunction hearing the week of April 21, I think all three of them that have been filed. And so we'll see the.

As Bob said, meanwhile, the treasure chest that Trump claim believes he has acquired here is about $840 million, which is—

Benjamin Wittes: It just went up because the Wall Street Journal is now reporting a new batch of firms, elite firms that have settled. I have not read the story yet, but it was literally texted to me seconds ago.

Roger Parloff: Oh, okay. So, so, and like Bob says and well, you all say, we don't know. I mean, the way Karoline Levitt describes these things, it's not just the pro bono that they would've been doing otherwise. So we really have to see what this turns out to mean.

But the main event does not seem to be in court 'cause you know, it's, it's nice to see people like who, who is fighting and people like Paul Clement being, you know, representing Wilmer Hale and people stepping up. But I don't see it making a difference.

Benjamin Wittes: Yeah. As one, as one law firm person said to me, you know, the message from the White House is you know, good luck getting, getting meetings with anybody and no court's gonna prevent us from, you know, from choosing who we give meetings to or not. And you know, go ahead, sue us.

Roger Parloff: There, there was a report in Bulwark today that maybe 500 associates at Allen and Overy, Shearman and Sterling, tried to convince their leadership not to do this, but obviously it didn't work. And anyway.

Benjamin Wittes: Quinta,

Quinta Jurecic: Yeah. Just a question: when you have a billion dollars of pro bono work. What does that actually get you? Is the administration going to run out of work to do, a and in what context are they actually performing that work?

Because I think that, I think that like, there, there is a degree to which Trump has this habit where once he finds a new button that he can press, he just presses it as much as he can. And you see that, you see that with tariffs; you see that with these visa revocations of international students; you see it with pardons—like he's just gonna keep mashing the button. And I, I wonder at a certain point about the economics of this and what it actually looks like.

Benjamin Wittes: So we don't know the answer to that question. If you look at the firm's statement, they just say they've agreed to do, you know, X amount of pro bono work, which they all say we were gonna do anyway, that are in areas of mutual concern and that they're not, the White House isn't assigning us work. If you hear the way Trump talks about, he's gonna put them to work on trade deals, on, you know, reviving the coal industry.

And so, you know, I I, there's some of it, you're gonna have to wait and see, but you know, again, Trump holds all the cards here because he can, these orders, these settlements aren't legally binding or anything. And so if he, you know, doesn't like the way Paul Weiss is behaving, he can just slap that order back on them. And, and so I think, you know, the, the, the, the, the pig will come back to the trough.

Roger Parloff: One, one other thing, one other change. I'm sorry, did I interrupt?

Benjamin Wittes: No, no, no, go ahead.

Roger Parloff: One other sort of morphing is that you know, the first ones were really in they were really these executive order bills of attainder where there would be you know, we're gonna defame Mark Pomerantz and we're gonna punish everybody, whoever touched Mark Pomerantz. And we're gonna defame Marc Elias, and that.

But when you get to Simpson, Thacher, and Kirkland and Ellis I don't know if there is, and, and you know, you're Sherman and Sterling—I don't know if there are people that are, and even enemies in particular. You know, a firm with 4,000 lawyers, somebody must have rubbed you the wrong way, but at this point it's just sort of a protection racket. It's just something, you know, and, and—

Benjamin Wittes: It's, it's just a shakedown.

Roger Parloff: And it gets higher and higher. You know, it was $40 million for Paul Weiss. Oh, $100 million for Skadden, 125 this time. And the longer you wait, the higher it's gonna be. You know, this is where we are now.

James Pearce: Yeah. Can I, can I jump in with just. I mean, I, I hesitate in some ways to suggest this, and it's not really plausible, I think, but you want the, the kind of, the height of perversity imagine a world where the pro bono work—and this gets to the question you asked me a little while ago, Ben—the pro bono work of the firms that have signed on is to go into court deputized as government attorneys and to defend against the TR, you know, the litigation brought by the Jenner, the Wilmers and the Perkins Coie.

Benjamin Wittes: To do the things that AUSAs won't do.

James Pearce: Exactly. Exactly. That's, that's, that's what you will see now.

Benjamin Wittes: No, I think that's exactly right.

Alright, so we did get in the executive orders targeting companies a, a good outcome this week related to the press, a preliminary injunction in the AP case. Give us a little bit of a sense of that.

Roger Parloff: Yeah. And this was Judge Trevor McFadden, who is a Trump appointee. It's a good read. It's interesting. You know, he was very careful. He didn't grant a TRO.

The central hurdle with this is obviously there are small spaces like the Oval Office or, or Air Force One, where you have a very small number of pool reporters and who gets to be one does involve a choice, but he had to develop a record to make it super, super obvious. And, and he did. You know, it's, it just.

And the issue here was the, basically it seems it's the AP style book, which everyone else uses, still says that recommends calling it Gulf of Mexico, calling the Gulf of Mexico the Gulf of Mexico. And he's upset about that. The problem, of course

Benjamin Wittes: The Lawfare style book, by the way, we call it the Gulf of Grenada. I don't, you know, I don't, I don't know why Grenada's sovereignty is being ignored in, in this conversation, but, you know, it's the Gulf of Grenada to us.

Roger Parloff: The problem will be what we've just been discussing is how to enforce it. They, you know, you finally, after all that, you get a preliminary injunction and it says, you know, it orders you to rescind the denial of the aps access to certain places based on AP’s viewpoint. You, you could still deny them access for other reasons, like for misbehavior or, or, you know, so now you need to start over with making a record about violations of this. Meanwhile, they've appealed.

So, you know, we will probably get an enforceable order around the time if there's another administration when it, when it comes in. It's a, it's a very frustrating thing when the administration seems to very comfortable, with contemptuous, in all its meaning, behavior.

Benjamin Wittes: Still I do think the fact of the opinion is important and the fact of the opinion that it's by Trevor McFadden is important.

Alright. Let's fire some federal employees. James—independent agencies, bring us up to date.

James Pearce: Sure. When, when we spoke about this a week ago the, the two principal cases, the Merit Systems Protection Board, Kathy Harris, and Gwen Wilcox from the National Labor Relations Board, after having had success—they were fired—having success in the district court and getting permanent injunctions and being reinstated, as of a week ago, an emergency panel had granted a stay to the government, which meant that they were essentially fired again and out of their positions.

We're back, we're we're back there again, back actually. But we've had a, a sort of a turn one way and a turn back. In, in this week, the, the week began with the en banc D.C. Circuit overturning the stay that the emergency motions panel had put in place. That same, same panel that had ruled on J.G.G. of Henderson. And Walker. That was a split panel that we, that we talked about last time. That en banc decision meant that, again, Harris and Wilcox were reinstated. The government had asked for time to, to file a stay in front of the Supreme Court. The en banc panel in a, in a, even a sort of a closer division didn't grant that time. And so Harris and, and Wilcox were back in place.

The government this week nonetheless went to the Supreme Court, sought a stay saw, asked for an administrative stay, and also took the somewhat unusual step of asking the Supreme Court to treat their stay application as a petition for certiorari before judges—in other words, get this up to the Supreme Court on the merits as quickly as possible.

The Supreme Court or, or actually the Chief Justice, who's the circuit justice for the D.C. Circuit, granted the first part of relief there, put in place an administrative stay, which means Harris and Wilcox are fired again. For those keeping track back home, I think that's the, the fifth reversal going back and forth and back and forth.

And the Chief Justice’s order asked, or required a, a, a response to the stay application from Harris and Wilcox by Tuesday of next week. So that's—I expect we'll see something by then, if not before then. It will be very interesting to see ultimately whether the Supreme Court—where I think all watchers, including myself, believe this is ultimately headed—will go ahead and accelerate this, take this on certiorari before judgment, or will leave it for the D.C. Circuit to resolve.

Meanwhile, I should say, in the D.C. Circuit, merits briefing has continued I think by today the reply brief from the government who is the appellant here is due, and so it will be fully briefed up. I have a hard time imagining that this ends up staying in the D.C. Circuit, though it would take the rather unusual step of, of certiorari before judgment.

But given, ot only these cases, but a challenge from current FTC members who, who were fired as well as other similar litigation in, in other kind of other similarly situated challengers, I think it's not unlikely the Court will end up getting this on their merits docket, even before the end of their term, which would require hearing argument on it, essentially within the next month.

Benjamin Wittes: And what about probationary employees? This was an area where the Supreme Court actually also gave the administration a little bit of a victory this week.

James Pearce: Yeah, that, that's right. So, earlier this week in a stay application, in a case arising, arising from Judge Alsup in the Northern District of California, who folks may remember, had ordered, sort of overturned the, the firing of, I think it was maybe 16,000 probationary federal employees. In, in that case there were a number of organizations, I think it was four labor unions and some nonprofit organizations that had sued on behalf of the employees. The employees have to go through a separate track, not through the court systems. They have to go to that, to the Merit Systems Protection Board.

Judge Alsup had entered a preliminary injunction; the Ninth Circuit had affirmed that, or at least had, had denied the government's efforts to have it undone.The Supreme Court I think on Tuesday of this week in a seven to two ruling, very, very brief, just a paragraph on the, on the docket, concluded that the challengers there would not have standing. Interestingly, they call them all nonprofit organizations, which is somewhat not—so, so some of the, there were labor unions and now there's actually a state, the state of Washington. So it's unclear what that will mean when it goes back. There hasn't been any movement in the district court docket since the Supreme Court's ruling.

But to your point, Ben, yes, it was a, a, a victory for the government insofar as the the preliminary injunction is now stayed. And we'll see what then develops on the district court docket.

You are, you're muted, Ben.

Benjamin Wittes: Alright, all of which brings us to our weekly question with which we are gonna close today, save for audience questions. Anna Bower, who is the administrator of DOGE this week.

Anna Bower: The administrator, well, we learned this week from reporting by the San Francisco Chronicle that DOGE is not one but three, or maybe it is three, and yet one.

Benjamin Wittes: The DOGEian trinity.

Anna Bower: The DOGEian Trinity. The father, the Son, and the Holy Doge.

The reason that I mentioned this is because the, there was reporting that Amy Gleason, the alleged acting administrator of DOGE at least in a formal capacity, had some messages that she was sending to a healthcare group chat in which she defended herself and, and said that she was not the one responsible for the mass firings and various other things that people have attributed to DOGE.

She explained that there is the United States DOGE service created under the executive order, which she is in charge of. And then she said that's completely separate from the DOGE teams that are hired directly into each agency. And then that's also completely separate from the larger DOGE policy agenda that Elon Musk is advising the president on.

So DOGE is everywhere and yet nowhere. DOGE is three and yet one. DOGE is there is an administrator and there's not, I don't know, maybe there's three, maybe there's one. No answers, Ben.

Benjamin Wittes: Alright, excellent. We're gonna speed through questions. I'm gonna identify, I'm gonna direct them to somebody and keep answers short.

What do we know about the statutory and fiscal basis for the agreement to house detainees in El Salvador? Quinta.

Quinta Jurecic: I have been obsessed with this question. The answer is nothing. We know nothing. The administration has said nothing.

I am hopeful that in the Abrego Garcia case, we might actually start getting some more information about what is going on here, if the administration doesn't just invoke state secrets about everything. But it's a, it's a huge question and I think a lot depends on it because whether or not the J.G.G. class petitioners who are still stuck in El Salvador are able to sue for habeas in the sense of being in constructive U.S. custody, I think really depends on the terms of that agreement.

Benjamin Wittes: Alright.

Roger Parloff: There is a AP article the plaintiffs have sometimes relied on. They, they claim to have, they, they say they have seen, AP—or no Reuters, I'm sorry, it's, it's one of them—that a memo from Bukele that says it's $6 million for one year and then they will reassess it. And the other, the other piece of evidence that the plaintiffs use is, is Kristie Noem’s tweets where she says it's one tool in our toolbox, implying it is a federal program of some sort.

Benjamin Wittes: Alright. In the Abrego Garcia case, the Trump administration could have delayed further by requesting on banc review at the D.C. Circuit instead of a direct appeal to SCOTUS. Why didn't they? Too much confidence in the conservative majority on the court?

No, there's a very simple answer to this question, which was there was no stay on the order at the district court and the clock was ticking. They needed somebody to step in and stay the order, and they were not gonna get an a stay from the en banc D.C. Circuit. They could only get that at the Supreme Court.

James Pearce: Just one clarification. It was the Fourth, Fourth circuit, not, not D.C., but otherwise I agree with that.

Benjamin Wittes: Right. And, sorry, my apologies. If you don't have Jay Wilkinson at the Fourth Circuit, you are not getting, and there's no conservative majority anymore at the Fourth Circuit.

Fully acknowledging that in this climate it is a mere pipe dream, might Trump's. “this is a great time to buy” post coming less than four hours before announcing a tariff pause constitute a public record in the context of Justice Roberts footnote three in the immunity case? Could this constitute a public record of market manipulation that could be admissible in trying to hold Trump or anyone criminally responsible for this official act? James what do you think?

James Pearce: I think anybody who has, who's any under any understanding what footnote three means should get a, a, a prize of, of some sort. Otherwise I think the, the likelihood here is if there's something below zero, that.

Benjamin Wittes: How is what they've done different from the extraordinary rendition after 9/11 that W. did on the theory that people were terrorists. I know there were fewer people, but.

So the answer is it's much worse than what W. did in extraordinary renditions. The extraordinary renditions, you know, people are, have mixed views of them, but they involve people who were genuinely believed to be terrorists who were being rendered to countries who had outstanding legal process for them, or sometimes, in a small number of cases to a black site.

These were you know high value Al-Qaeda people, or at least believed to be in the vast majority of cases. There were, there were, there were a few mistakes some of them very tragic by the way and this, but they, but they were not in the United States. They were not you know, people who had, who you owed due process to under the U.S. Constitution in immigration law.

They weren't in violation of court orders, and you weren't deporting people who were not really individually suspected of anything to indefinite confinement by authoritarian governments for no strategic purpose. And so I actually think it is much, much worse than the extraordinary renditions, which are themselves a complicated subject.

Can the Eighth Amendment's prohibition of cruel and unusual punishment come into play with respect to the detainees, deportees and El Salvador? If so, how would that work? If not, why not?

Answer: you know, look, it gets back to that constructive custody question. If they're, if we're subcontracting mistreating people to the Salvadorans, you get all kinds of possibilities. You still have a jurisdictional question. Who has jurisdiction to look at it?

Two more to go. What do we know about the statute? We already answered this question. Ensign stated that the government might assert privilege over some of the information—Anna Bower—presumably the state secret's privilege. What would the basis for that claim of privilege possibly be and how could it be challenged? And did Ben and Natalie have a bet about this question, whether it would come up at today's hearing and who won that bet?

Anna Bower: Okay. So there, there, yeah, alright, well let me start with, yes, he did say privileges, but I, he didn't say which ones. So it could be—

Benjamin Wittes: Did he assert any privilege?

Anna Bower: No, he didn't assert any privileges. He said something to the effect of, you know, your honor, we, we might invoke some privileges, but I don't know which ones yet.

Benjamin Wittes: Did, did Natalie assert confidently that he was gonna assert the privilege, the state

Anna Bower: Natalie—

Quinta Jurecic: Natalie, I think, she's not here to defend herself. We're gonna table this.

Anna Bower: But, but there was, I mean, I will say with respect to myself, I did think that they might today go into this hearing and invoke state secrets because they've done that in J.G.G. We've talked before about there doesn't seem to be a lawful basis to do so, because typically that is invoked with respect to classified information. I, it's unclear to me exactly though what they might be. You know what basis factually they might have to invoke that.

Benjamin Wittes: And did, did anybody in the Lawfare ecosystem say confidently they would not invoke the state secrets?

Anna Bower: You, yes, Ben, you are correct. You did say they would not.

Benjamin Wittes: We're gonna end it right there.

Anna Bower: Yeah.

Benjamin Wittes: Look, folks, we're three minute, four minutes over. We got through all the questions this week.

Thank you to our special guest, Bob Bauer. Thanks to senior editors, Roger Parloff, Quinta Jurecic, Anna Bower. Thanks to James Pearce who's a extraordinary fellow—that's like to go with extraordinary renditions—at Lawfare. And thank you to the estimable long suffering, Anna Hickey who makes this all possible every week. We will see you next week.

Natalie Orpett: The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad-free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter at our website, lawfaremedia.org/support. You'll also get access to special events and other content available only to our supporters.

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