Lawfare Daily: Trials of the Trump Administration, April 25

[Intro]

Anna Bower: Remember, we're in the middle of this discovery phase in this case where Judge Xinis has ordered the government to, you know, go through this discovery process to fork over documents.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittes, Lawfare's editor in chief. In a live recording on April 25, we discussed the status of the civil litigation against President Trump's executive actions and so much more.

Anna Bower: This joint request for a conference comes in; the parties are having a lot of issues figuring out how to move forward because in the plaintiff's view, the government has not sufficiently responded to their interrogatory and document production request.

[Main podcast]

Benjamin Wittes: Hey folks, welcome to this week's Lawfare Live, coming to you live from the headquarters of the Hewlett Foundation in Palo Alto, California. Thank you to Hewlett for letting me use the conference room. I am here with the estimable Anna Bower, the estimable Preston Marquis, the estimable James Pearce, the estimable Scott Anderson, and the very estimable Roger Parloff.

And guys, we have a really, I think the technical term is a boatload of stuff to go over, so let's just get into it. And let's start with the arrest of a Wisconsin State judge for obstructing justice this morning. James, walk us through it. What do we know about this case and what this judge allegedly did?

James Pearce: Yeah, thanks, Ben. I mean, it, it is, as you've mentioned, a story that's just broken today, so I'm sure we'll get in the following days more facts. But at least based on reporting and the criminal complaint that the government has filed in the Eastern District of Wisconsin, we know the following.

So, Judge Hannah Dugan, who is a Milwaukee County circuit judge up in Wisconsin was arrested today on, on probable violations of both an obstruction statute 18U.S.C§1505, and a statute 18U.S.C§1071 of essentially harboring someone with a known arrest warrant.

The facts according to the criminal complaint are basically that an individual by the name of Eduardo Flores Ruiz was slated to come before Judge Dugan for a, a hearing in a, in a criminal case. So, Flores Ruiz was originally from Mexico; had been removed at some point, I think maybe in 2013 to Mexico; came back into the United States seemingly without permission; and then at some point in March of this year, was arrested in connection with state charges, I think domestic abuse charges.

And so on April 17 just, just a, a week or so ago, he was due to appear before Judge Dugan for some kind of a scheduling proceeding. Federal authorities—in particular, the Immigration and Customs Enforcement, ICE—caught wind of this and either had in place or shortly thereafter secured a a an arrest warrant, administrative arrest and removal warrant and then made plans along with the FBI to execute that arrest in the public courthouse in, in Milwaukee where Judge Dugan was practicing.

I should pause for a moment and say it's actually not all that unusual for federal authorities to carry out arrests in state courthouses. This happens sometimes—in the immigration context happens perhaps more often—for individuals who are facing state charges, but also have federal charges against them.

As the criminal complaint lays out, it's often a place where federal authorities have a pretty good sense that that's where someone is going to be. Individuals have had to usually pass through some sort of security, so there's a way to downplay or at least try to minimize security concerns. And by and large, the federal authorities try to do it without a whole lot of stern and drum, right. They, in fact, here, the criminal complaint identifies that the, the officers, the ICE and FBI officers were in, were in plain clothes kind of waiting outside the.

Somehow Judge Dugan finds out about the existence of these federal authorities—and I should say, just in case it's not clear, everything I'm saying comes from the criminal complaint. So, you know, there hasn't, hasn't been tested in a, in a court. But this is, this is what we know. Judge Dugan learns about this. The complaint says quotes her as saying something like, it is absurd that these federal authorities are here goes out into the hallway where the ICE and the FBI agents are, confronts them, suggest that they don't, that, that they, they aren't permitted to actually be in the courthouse. They say, well, we're in a public place. We're, we're trying to execute an arrest warrant.

Judge Dugan and another judge identified in the complaint only as Judge A essentially escort all but one of the federal authorities down to the chief judge's chambers. The reason that the last one isn't, seems to be that he's not identified or he, or she, I'm not sure, is not identified as part of these federal either ICE or FBI agents. Again, they're all in plain clothes. I don't think this last one identifies him or herself, so is able to kind of stay and watch, watch what happens. So the federal officials go down to the chief judge's chambers. The chief judge is, is not there. They get the chief judge on the phone and there's some sort of a back and forth about whether this is proper and whatnot.

While that conversation is happening, according to the, the criminal complaint, chief judge Dugan goes back into her courtroom and essentially quickly moves Flores Ruiz and and his attorney kind of out the back door. They, they don't seem to go through the, the proceeding that was scheduled to, to happen. The criminal complaints suggest that the prosecutor, the state prosecutor, is sort of surprised to see Flores Ruiz’s exit, that exit, happens.

The one individual from the federal authority who was left behind didn't go down to the chief judge's chamber, sort of sees that essentially a bit of a chase ensues because Flores Ruiz and, and his his attorney are, are trying to leave the building fed. The federal authorities learn about this. They go down and they arrest Flores Ruiz, who at some point, according to the criminal complaint, runs off but is, but is caught. And so he is, he is still caught, presumably served with the, the removal warrant. And, and, and that part of the story sort of falls out.

That all happens on, on April 17, as I mentioned, just today following an arrest warrant or a criminal complaint that issued yesterday federal authorities went ahead and arrested Judge Dugan for the two statutes that I mentioned obstruction and harboring a a known person with a known arrest warrant.

As some of the reporting has indicated, the facts in this case, as at least depicted here are pretty closely parallel something that happened in Massachusetts a few years ago and also resulted in the bringing of criminal charges against a state judge there with—-those charges were obstruction charges 1505 and then 1512 (c)(2), which has had its own odyssey for any of you that have followed that case.

So, we don't know exactly where this will go from here federal authorities, under the rules of, of criminal procedure, have 30 days now that the arrest has been executed to decide whether by indictment or information—and these are felonies, so they, they would be absent the, the Judge Dugan's agreement—to go before a grand jury to see if there will be an, an indictment. But, but that is, that is where we stand. And as I said, all of the facts that I have that I have given here stem from that criminal complaint, we have not heard Judge Dugan's side of the story or, or from other witnesses.

Benjamin Wittes: Alright. And of course the reason this story broke so publicly was that FBI Director Kash Patel tweeted about it this morning and then removed the tweet, is that correct? That

James Pearce: That's right. And when asked for, when questioned about it didn't, the FBI had, had nothing to say. So it's a bit of a black box as to, to why that happened, but yes that is I think what, what brought this to, to, to quickly, to, to prominence. A mystery as to why the tweet and why the quick removal of the tweet.

Benjamin Wittes: Alright, so let us move from there. We will obviously return to this subject as it develops and ripens. But for now, let's move on to the Alien Enemies Act cases. Roger, we've had a fair bit going on in them, so give us the rundown. Let's start with AARP which is just to remind everybody, not the American Association of Retired Persons.

Roger Parloff: It's not, and in fact, they've changed the name at the district level court level, but not at the Supreme Court level, so I'm not sure what to call it, let's call it AARP.

There was a, a remarkable order issued by the Supreme Court Saturday morning, and the, the timeline there is really interesting. The, the case was filed Wednesday in the early morning hours by the ACLU. They'd gotten wind that a whole bunch of Venezuelans were being flown to this facility in, Bluebonnet Facility in Northern District of Texas. And as you remember you can't fly out of Southern District anymore because there's a TRO in effect, but it's only district by district. So it looked like they were gonna try to fly them out of the Northern District.

So ACLU rushes into court about 1:00 AM. The judge, Judge James Hendricks, does nothing for over a day. And then at about 2:00 PM on Thursday, he denies the TRO. He says that DOJ is pledging not to deport the two named plaintiffs, and he trusts DOJ or DHS not to deport anyone else without reasonable notice.

A few hours later, they get no, the, the ACLU learns that in fact people at at Bluebonnet are receiving notices that they will be shipped out either that evening or the next morning. ACLU thinks maybe the judge will be interested to know that they misled him, and he, Lee Gelernt leaves a message that evening saying it's an emergency, they're, they're getting notice, they may fly out tonight or tomorrow. And a notice appears on the docket saying if you have an emergency motion, you must file it. And then the government gets 24 hours to respond, and then I'll rule on it.

So, at about—so now we go into the early morning hours of Friday. They file an emergency motion at 12:43. Nothing happens for over 12 hours. And they're panicking at the ACLU. And so, at 12:48 Gelernt asks for an emergency status conference and says, look if you won't rule, we're gonna try to appeal you at 1:30. And and 1:30 passes, and in fact 3:00 comes around, and so they file emergency appeals.

Finally at 5:00 PM Hendricks rules; he says, you only gave me 42 minutes to rule, which is wrong. That was 42 minutes between the status conference request and the 1:30. But he actually had 14 hours and he actually had almost three days. And he also says, by the way, you appealed, so I don't have jurisdiction anymore. I can't help you.  And so they run to Boasberg in D.C. around 5:30. He can't help them. He's, he's very sympathetic. He sees the notice as inadequate. And so nothing is happening.

And finally, the Supreme Court steps in at about 1:00 a.m. on Saturday to stop to stop any, anyone from being shipped out of that district, Northern District of Texas, technically. They can still be shipped out of other districts, and that's where it stands. A few hours after it ruled. The Fifth Circuit also denied any relief. And they repeated the 42 minute thing that the oh 42 minutes wasn't enough, and at the Supreme Court level to Justice Alito writing, dissented repeating the 42 minutes thing.

So, that—now at the Supreme Court, it's been fully briefed. So I, I really don't, I'm not sure what's going to, to happen there. I guess we could get some sort of ruling at, at, at any time. But it's in a, it's in an odd posture 'cause well, it's, it it's in an odd posture and, and you wonder if they're going to, I don't think, I don't think they want to issue a national in injunction right before they're gonna take up the whole issue of national injunctions. But anyway, that's where it sort of stands.

Benjamin Wittes: Just a clarification as some people have noted in the, in the chat, when Roger says Scalia, he means Alito.

Roger Parloff:  I, I do that a lot. I'm sorry.

Benjamin Wittes: I do it too. And and–

Roger Parloff: I can't imagine why.

Benjamin Wittes: Alright, so, we don't really know where—I, I, I mean at, at this stage, what is happening in this case, right? We don't really know the answer to that right now, right?

Roger Parloff: That's right. Yeah, I'm trying to remember, there's so many of these cases.

Benjamin Wittes: The, the Supreme Court puts a hold on it, says you can't go forward with anybody. But you know, now what?

Roger Parloff: Yeah, we have, there are, because of J.G.G, remember the J.G.G case.

Benjamin Wittes: And we are coming to that momentarily.

Roger Parloff: But you know, the Court decided that these had to be brought in habeas, and so you couldn't have you know, that what was—before Boaserrg was an attempt to deal with some of these problems on a nationwide class action basis.

But the habeas have to be brought where the person is confined, and that means one of the 94 districts, and so we have TROs affecting at least three districts now, the Southern District of Texas, Southern District of New York, Western District of Pennsylvania, four districts, the District of Colorado. So, but the others are sort of still fair game. And we're gonna find out, this one is about the Northern District of Texas. So I, I, I think that's it.

Benjamin Wittes: All. So let's talk about J.G.G. James, we had this very powerful pre-con, contempt ruling from Judge Boasberg and then an administrative stay. Bring us up to speed.

James Pearce: Yeah. So, you know, as you, as you note Ben, and we, we talked quite a bit a week ago about Judge Boasberg's probable cause of criminal contempt, not a criminal contempt finding that bottomed out with essentially as, as two potential paths forward, saying the government could start thinking about purging its contempt by belatedly taking efforts to comply, maybe even facilitating efforts to comply with his order, or Judge Boasberg would, would potentially go down the path of seeking either the government to prosecute or more likely appointing a special prosecutor to prosecute a, a criminal contempt case.

That triggered as, as we noted last time, a notice of appeal as well as a motion to stay.  Not a huge amount of news except some procedural jousting at the, at the Court of Appeals, but we have had three filings this week and, and likely to see another one on Monday. The government's motion to stay basically argued look the, the district court here is, is going down two unconstitutional routes, so, so, so, you know, we need relief.

Either the court is going to take away the prosecutorial function from us and unconstitutionally appoint a special prosecutor, or it is going to come in and sort of run the foreign policy of the United States as, as an unelected judge, so, so Court of Appeals, you know, we need you to to get involved. This is a, a, a great constitutional harm and therefore you have jurisdiction.

The, the dis—the, the court of appeals, the emergency panel for this month that we've talked about a couple of times. Judges Pillard, Katsas and Rao, put an administrative stay on the case to allow for some briefing, allow the, allow it some time to kind of figure out what was happening. That, that, that emergency panel directed a go—a response from the, the plaintiff appellee on Wednesday, and then a reply for the government today.

The, the the plaintiffs responded in, in two ways. They first moved to dismiss the appeal for lack of jurisdiction, which is something we, we touched on a little bit last week, which is, it's very hard to see how Judge Boasberg's order is an appealable order. As a quick primer, an appealable order has to be a final determination; absent that such you need to either establish that it is something called a collateral order which has various factors or use bandings, right?

Benjamin Wittes: But, but, but James, isn't everything appealable by the government now? ‘Cause it seems like since Jan. 20 we have a new principle that TROs are appealable, which didn't use to be the case, and now every TRO gets appealed and the Supreme Court doesn't seem to mind. Aren't we, aren't we in a new world where the rule is a, you know, a, a non final order is appealable if the appeals panel doesn't like it enough.

James Pearce: So, you know, I, I think that, I—there is, there is a case to be made that the, the, the way we are proceeding, in fact is starting to carve that world out. I can tell you that's not a world the government is going to like long term because the government itself when, when litigating and trying to sort of beat down attempts by, by you know, litigants on the other side to get an appellate court intervention early is all the time making the types of arguments that we see the, the plaintiff challengers making here, this is a non final order, this burdens unnecessarily appellate courts.

But I think it's a fair point, Ben, and, and certainly in, I mean this, this, at this point, the J.G.G. case is not on appeal from a TRO, but certainly the fact that the, the Supreme Court took the case on a TRO—although some of the, the some justices writing separately to say, this is a, this is a real problem and this is not this is going to create an administrative headache long term—doesn't seem to be something that has paused the court, but.

Nonetheless, the, the, the, the plaintiffs filed their, their motion to dismiss also, opposed the, the government's motion to stay making those, the, the kinds of doctrinal arguments that doesn't, doesn't warrant mandamus relief—not a collateral order, not something that the, that the it's, it's a, it's, it's very much premature for the court of appeals to get involved.

The, the government filed a reply today. It didn't really answer those questions, just kind of said again, these are, these are very grievous constitutional harms. It's, you know, it's either an unconstitutional usurpation of the prosecutorial function or the, the foreign policy function, and thus, court of appeals, you ought to, you ought to, to immediately vacate this order.

The, the, the Court of Appeals, the D.C. Circuit's not gonna act because they have also now given the plaintiff a reply. Remember their filing was, in addition to opposing the stay, was their own independent motion to dismiss. So they now have a reply in support of their motion to dismiss on Monday. And I'd expect that we'd get some kind of action on this next week. That may be an oral argument. We've been seeing a lot of those, or it may be a, a resolution on the papers, obviously. We'll, we'll, we'll come back and report on it, what, what, whatever it is.

Benjamin Wittes: All, Roger, we have also had movement in the D.B.U. case. I can't keep all these three initial four initial cases separate anymore. We've got a D.V.D. case, a D.B.U. case. What, what is the D.B.U. case and what movement do we have in it?

Roger Parloff: The the D.B.U. case is in Colorado. But before I mention that, there is a movement in the J.G.G. case too. Should I—the, at the district court level, the Boasberg level because this morning in the early morning hours, a little after midnight, we got the plaintiffs or the ACLU filed an amended claim complaint, a, a motion for a preliminary injunction and a motion for class certification for two new classes.

One is the class of everybody, or at least 137 people, probably at, at CECOT, the people that were moved despite Judge Boasberg's order under the Alien Enemies Act. And so seven individuals who are there some of whom you might have heard of, like, the the plaintiff, Andry Romero, he's the the gay makeup artist. He, he's there and, and so seven of them are, are moving to, and they're seeking basically to an order facilitating their return. The theory for filing in D.C. goes back to a Guantanamo case called Rasul v. Bush, which allowed Guantanamo prisoners to bring a habeas in D.C. 'cause they couldn't bring it in Guantanamo.

And the other class is sort of, strange. It's the class of people in criminal confinement who are susceptible to this proclamation, the Alien Enemies Act proclamation, and their only plaintiff there is in the district of New Jersey. So their theory—their named plaintiff, there's about 32 wo people believe to be in this situation in various jails across the country—and their theory is they're not, it's not a habeas because they're only asking for notice. They're only asking for that he order before they can be removed, they need to get 30 days notice and opportunity to try to go before an immigration judge.

I think Judge Boasberg will be very reluctant to go there. It's too similar to where he went last time, but that first class is interesting. The other problem is that there are no named plaintiffs in D.C. right now, and so it's a tricky situation.

Benjamin Wittes: Well, so, you know, having spent a lot of quality time over the years with the Guantanamo litigation I will say that jurisdiction in D.C., if they are, in fact in U.S. custody at all, is not going to be a difficult proposition under Rasul. The difficult proposition is that the government will say, these people are in the custody of the government of El Salvador, and you're gonna have to at least make out a, a theory of constructive custody that is, that jurisdiction will then depend on. And it's gonna require the development of certain facts in order to establish the jurisdiction.

Roger Parloff: Yeah.

Benjamin Wittes: Alright.

Roger Parloff: There's actually quite a good record at this point about about them being in at least joint custody that that they've been outsourced.

Benjamin Wittes: Yes.

Roger Parloff: And so that's a pretty good case for that, that class. Shall I go to, I'm sorry–

Benjamin Wittes: Let's do D.B.U.

Roger Parloff: Yeah, this was another one of those, this is one of those district-wide attempts to stop people, the people from being flown out under the Alien Enemies Act proclamation without adequate notice.

The striking thing, and there was a preliminary injunction issued on I guess the 18th. And the striking thing about this one—no, it was, it, it, it I'm sorry it was a TRO and the striking thing about this one is that she actually reached some of the merits. She said in the process of saying that the plaintiffs would have a likelihood of success, which is one of the things you need to find, she said that the AEA doesn't even apply here. She said there's no invasion, no predatory incursion, no foreign government or nation. And, and you might remember a D.C. Circuit Judge Karen Henderson had also found that in a concurrence about invasion and predatory incursion.

So her, there's already been a motion to stay that in front of the Tenth Circuit. And that is moving fairly quickly. The response due tomorrow, Saturday at five. Reply due Sunday at 5:00. So, we'll get some resolution of that quickly.

Benjamin Wittes: Alright, so what about D.V.D.?

Roger Parloff: D.V.D. is not an Alien Enemies Act case. It's an interesting case. It's about people that are sort of in Abrego Garcia’s situation. They have withholding of removal and what the gov that means they're removable. They came here illegally so they can be removed but they can't be removed to where they came from because a judge, an immigration judge has accepted the idea that they will face well-founded they have a well-founded fear of persecution there.

And what the, and, and so in the past, if people, since they are still removable—in the past, if the government wanted to remove them to a third country they would give them notice and let them give them an opportunity to go before a judge and say, I fear persecution in that country too, or, I fear torture or, or whatever. They stopped that policy quietly on Feb, Feb. 18 of this year, the Trump administration did and just began removing people willy-nilly to third countries without letting them raise this issue.

And so this judge issued a TRO in March 28, and extended that to a preliminary injunction on the 18th, and they have appealed that to the First Circuit. This, this, this is going on in, the cases in the District of Massachusetts. The First Circuit is not moving quite as, as quickly on, on that.

And then a remarkable thing is also going on is that apparently despite this order, some people have been removed to third countries. And this came to light, I think yesterday or today, maybe yesterday, when the government conceded there had, the plaintiffs had had objected that there were several instances and apparently what's happened is some, some people were sent to Guantanamo by DHS, and then DOD took over ,and DOD took them to the third country. And DOD, Defense Department is not a defendant, and so they said, well, there was no DHS person on the plane and they claim DHS didn't direct what the Defense Department did.

So that's where that stands at the moment. We haven't, we haven't had a judge's reaction to that. There'll be a status conference Monday.

Benjamin Wittes: It's the kind of thing judges love when you do you know, monkeying with whose custody somebody is in by way of saying that court orders don't apply to you or just coincidentally.

Alright. Anna Bower, this brings us to Kilmar Abrego Garcia himself. And so, give us the lowdown.

Anna Bower: Yeah, it was kind of a, a wild ride of a week with this case. On Monday, there, there was a joint request for a conference that was filed on the docket that was quite interesting, because included in that request was a number of interrogatory responses and responses from the government in response to the plaintiff's requests for document production.

Remember, we're in the middle of this discovery phase in this case where Judge Xinis has ordered the government to you know, go through this discovery process to fork over documents and answer questions regarding what steps it's taken to facilitate the return of Abrego Garcia.

So this joint request for a conference comes in. The parties are having a lot of issues figuring out how to move forward because the plaintiff's view the government has not sufficiently responded to their interrogatory and document production request.

If you read the exhibits, it's very clear that the plaintiffs seem to be in the right because the, the government in its responses provide very, you know, broad objections to questions. They invoke state secrets, attorney-client privilege, deliberate deliberative process privilege—various types of privileges without providing any specific basis for such invocations.

They additionally throughout some of these responses misrepresent the SCOTUS ruling; I think to me the most shocking, part of some of these responses involved this one point when the government says that the defendants object based on the false premise that the United States can or has been ordered to facilitate Abrego Garcia's release from custody in El Salvador.

Now, if people remember and have read that SCOTUS order closely, that is exactly what the Supreme Court says. They, they say that the district court properly ordered the government to facilitate the, his release from custody. And, and then they also, you know, miscite to, or they misattribute scope, saying something that they didn't, they really were quoting Judge Xinis. So it's, it's, you know, kind of very, like, it's a huge misrepresentation.

It, it, they also then seem to have this kind of internal contradiction in which they go on to say, you know, that they, they've quibbled in the past about the meaning of facilitate. Previously as we've discussed, they took the view that all they had to do to facilitate Abrego Garcia's return was to remove any domestic barriers to his return. They now say, oh, well, after the Fourth Circuit's clarification—remember that opinion from Judge Wilkinson, in which he really tried to convince the government to have a come to Jesus moment and, and actually comply with the court's order—they say now oh, well after the Fourth Circuit's clarification, we've changed our mind. We've engaged in what they call appropriate diplomatic discussions, but that those discussions cannot be revealed because it might, you know, interfere and, and, and have a negative impact on the ongoing diplomatic relations.

So they make all these statements and, and of course the plaintiffs say that this is not complying with the court's discovery order. They want a conference. Judge Zinis just goes ahead and rules on it, issues an order in which you can tell she is very mad. She accuses DOJ particularly about that misrepresentation that I noted of the SCOTUS order of a willful misrepresentation. She largely overrules all of the objections. She says, you know, you didn't provide any specific basis for these privilege invocations. And then she gives them 24 hours basically to fork over the rest of the discovery and then also to supplement their invocations of privilege less they waive it.

And so it seems like, you know, we're, we're at this moment where maybe the government is finally gonna have to give up some information and actually talk a little bit about what steps they've taken.

But then the next day comes and the government under seal files a motion to stay Judge Xinis’s order, her discovery order, and the plaintiffs file something also under, under seal and response, and it is styled as a response in opposition. Now, maybe it was opposition in part, or, you know, maybe there were various kind of qualifications to its opposition, but it's styled as a motion in opposition to this request for a stay. 6:00, 8:00 rolls around, and then finally on the docket, there's an order from Judge Xinis and it doesn't provide much information other than to say with the agreement of the parties, the, the discovery has stayed until April 30. And that kind of left all of us thinking, well, what's going on there?

So I'm curious if, if people have thoughts on that. But that's where we are now, Ben, is discovery has stayed until April 30th.

Benjamin Wittes: So let me be provocative and say that if I were Lee Gelernt alert and Scott Michelman and the folks who are or Abrego Garcia's lawyers, there is exactly one thing that would make me agree to staying discovery, which is a representation by the government that they are in negotiations to bring him back. And so my question is, does anybody particularly those of you who litigate things want to argue that there could be something less dramatic than that going on?

Scott R. Anderson: I, I, I'm not one of the people who, who litigates things. My initial thought when this happening is that it very well might be—one possibility is certainly that they've gotten a sign that they're actually trying to resolve the situation will be a reason for both parties to agree; an alternative could be that they've agreed to provide some of the information they were resisting providing to the judge to evaluate ex parte in camera.

And the judge may request a period of time to do that, and that would explain why the plaintiffs would initially object. And then perhaps after talking to the judge and understanding this information's being provided, I need time to review it and rule on whether or not it's subject to state secrets privilege they might be willing to concede for a short delay so the judge can do that, and then the due the, the due date, the new due date would apply presumably after the judge rules on state secrets, and the government has to decide whether to disclose it or appeal or do whatever else they wanna do to try and keep disclosing that.

I'm not sure which is the right answer, but that might be one that's slightly thus dramatic that I think would be consistent with how it's been done in other cases I'm, I'm vaguely aware of, but folk can feel free to correct me.

Benjamin Wittes: Roger?

Roger Parloff: Roger, I, I, I, I sort of doubt they would've agreed to that especially 'cause their invocations of state secret have been so, frivolous in the past. I, the, the only other thing other than what Ben suggested might be a compromise involving getting him to a third country, where where the others, where, you know, if, if his family is so worried about him spending more time in prisons, even even lighter prisons as he apparently is now in El Salvador. Maybe they could agree on a, you know, Guatemala or something. That's–

Benjamin Wittes: Oh wow. They sometimes take, used to take Guantanamo detainees. I hear it's a nice island paradise.

Roger Parloff: That's the only other thing. But the fact that they agreed to it I thought me that Abrigo Garcia's lawyers agreed to it and given her fury like, like Anna said, you know, and the fact that they, you know, she so wanted to get this done by, by April 30 and now she's delaying everything to, it has to be something big.

Benjamin Wittes: Alright. Roger, we have another three letter initials for you to describe who is J.O.P.

Roger Parloff: J.O.P. is new and it's an interesting case. J.O.P. is probably a, a mother or a wife of some of, of the person whose name is Christian or Chris—I don't know how that would be in Spanish.

So this is a weird case that goes back to 2019. It's District of Maryland. It's a before a a Trump appointee, Stephanie Gallagher, and the remarkable thing is that this is the, the, this has become the second case where a judge has ordered somebody ordered the government to facilitate the return of somebody that's in CECOT and in El Salvador.

And so, the case was a class action on behalf of AUCs—no, UACs—which is unaccompanied alien children that came in and applying for asylum. And what it sought was that they would get a chance to litigate their asylum claims to a final judgment before they were removed. And so it, it, it, it, there was much negotiation and there was a settlement reached, and the settlement was approved in November, 2024 when a, when some other important things happened.

And then on March 15 Christian, who was now 20 years old was—I, I forget why he, how they detained him, but he was removed to CECOT. And the government argues that, says he, he is, they try, they moved him within the AEA proclamation, the Alien Enemies Act proclamation.

And so the judge was saying, you violated the class action agreement. And they said, well, first of all, he has to bring this in a habeas, and she says, no, it's not a habeas, it's a contract dispute. You know, we have a settlement. You violated it. And the other argument was the AEA changes everything, it, you know, it, it trumps everything, and, and the, and, and the judge said, no, it, no, it doesn't.

And she actually—and, and Anna can correct me on this if I'm wrong, or maybe other people—but I think she actually goes a step beyond what even Judge Xinis has said. And she says that the defendants must facilitate his return. And they, and she says facilitating his return includes, but is not limited to defendants making a good faith request to the government of El Salvador to release him to U.S. custody for transport back to the US to await the adjudication of his asylum application.

And I don't think she's gone quite that, I don't think Xinis has gone quite that far and says, you must ask El Salvador to release him, even though it seems painfully obvious. I I, I don't think–

Anna Bower: I think Xinis didn't wanna go that far. Yeah. Because she's worried about what the Supreme Court would do with that. I, I, you know.

Roger Parloff: Yeah, I agree. So I was a little surprised that she, she seems to go a step further. But anyway it's a it's a quite an interesting development and like I said, it's a Trump appointee.

Benjamin Wittes: Alright Preston Marquis, we have another four letter acronym, but this one is not an initials. What is AAUP v. Rubio?

Preston Marquis: Certainly. So AAUP, not AARP, but AAUP. It's the American Association of University Professors v. Rubio. This is the lawsuit being brought by the Knight Institute to challenge the Trump administration's recent practice of revoking the visas of students who have been associated with pro-Palestinian advocacy, detaining them and then deporting them. So non-citizens, students and faculty you know, espouse in some in some manner. You know, a degree of pro-Palestinian ideology and the Trump administration has been moving aggressively to to find those individuals and to revoke their student visas. That's the, the conduct at issue in this, in this lawsuit.

A couple of days ago on April 23 we had an initial hearing in the District of Massachusetts. The Knight Institute has filed for a preliminary injunction, and it went before Judge Young who had held quite a hearing. For those who listened in you, you, you might recall, but I'll describe it briefly here.

So it, it it started as a, as a pretty routine hearing where Judge Young sort of brings all the parties together. But he, he very quickly—you, you can tell that Judge Young is I think a little concerned about sort of the ability of the court to to to apply the relief that the plaintiffs are seeking, which is, you know, a broad injunction, sort of enjoining the Trump administration from enforcing this this practice.

And Judge Young is clearly trying to grapple with sort of how much equitable relief, you know, he can, he can bring in this circumstance in no small part because a lot of the, a lot of what the government is claiming in opposition to this, and a lot of what Judge Young has to, to grapple with is sort of what is, is what exactly constitutes the contours of this policy.

The Knight Institute is, is largely referencing the executive order and public statements being made by senior Trump administration officials that indicate that the Trump administration is, is sort of affirmatively going after these student non citizen students and faculty on the basis of their views, but if you listen to the government, it's it's, it's more of a broad pattern of, pattern of enforcement and not necessarily a, a a per se policy.

And so there's a little bit of there's a little bit of a shell game going on here. And, and so there’s a little bit of a shell game going on, and the question is, is like, you know, which, which side is going to be able to convince Judge Young that there is in fact you know, a, a, a policy in place here that is sort of underlining these ideologically motivated deportations?

You know, what, what I would also point out here is the, the Knight Institute bringing this lawsuit has to be particularly scrupulous to meet the, the standing requirements to survive, you know, jurisdictional attacks by the government. So the Knight Institute in, in essence is bringing a listener's right case here. They are saying that it's the it's sort of the, the second and third order effects of these deportations and their impact on on, on free speech on these campuses, on the associations themselves. You know, it's having a chilling effect on and, and, and ultimately preventing sort of the American Association of University Professors specifically, but also campuses broadly from benefiting from a more robust sort of speech and, and, and debate on campus on, on some of these issues.

And so, just moving forward with, with Wednesday's hearing Judge Young was, was initially inclined to very, a very quickly sort of flip what was a hearing for a, a preliminary injunction into a full blown trial on the merits, invoking his authority under FRCP (65)(a), I believe. And you know, I think from Judge Young's view, you know, he's really trying to test the sufficiency of the evidence that the Knight Institute is bringing. How much can the public statements that are, you know, very out in the open for, for those of us in the world be translated in a court perspective into suggesting that there's actually a policy here that, that the court couldn't enjoin.

 And so moving through the hearing, there was a, a bit of back and forth, you know, Judge Young was grappling with that; ultimately it became clear that both sides were actually ready to argue argue the PI as a, as a potential motion to dismiss. The government was clearly, you know, if you read the government's brief, you know, a lot of their legal arguments really favored dismissal of the, of the entire lawsuit, and, and Judge Young was willing to sort of flip the hearing from a p from a hearing for a preliminary injunction into a a, an actual full hearing for a motion to dismiss. And so he called a small recess and then the litigants came back and, and, and laid out some of their arguments there.

I, I won't go through the full thing, but I think it's just worthwhile to summarize that the government's primary attacks, as I mentioned, are largely jurisdictional. So the government is, is, is trying to claim that the, the district court doesn't have jurisdiction over this based on how the Immigration and Naturalization Act, the INA sort of specifies a very specific practice for for ruling on immigration procedures.

The government also again, tried to target these redressability concerns and, and, and tried to knock the Knight Institute out on, on several theories related to defective standing. And then also the government also attacked some of the, the claims on the merits, and, and pointed to how, at least from the government's perspective, even if you accept that there is a policy which the government doesn't ultimately there's a lawful core here, which is the government saying that the government is actually targeting unlawful behavior and not targeting speech itself.

The Knight Institute in, in re, refuting those, those claims in, in the motion to dismiss context pointed out that they are that again, this is not. A case being brought on behalf of the non-citizens themselves is actually not subject to the INA because again, the, the AAUP is, is bringing the listeners' rights lawsuit on behalf of the U.S. citizen members and association, so some of the jurisdictional attacks that the government is bringing a don't actually apply from, from the Knight Institute’s standpoint.

And then I think, you know, if, if, just sort of going back to the, the First Amendment, ultimately, you know, if you can, if, if the Knight Institute is successful in sort of brushing the government's jurisdictional claims away, this is ultimately going to get to a, a, a case about the fir, the First Amendment, and sort of how, how much can the government very explicitly you know, go after indi non-citizen individuals on the basis of, of some of their views and, and, and use that as the basis for, for deportations.

Benjamin Wittes: All right. So, Scott let's talk about the Student and Exchange Visitor Information System case. We we mentioned this briefly last week, but there's been a kind of a dramatic development in it, so bring us up to speed.

Scott R. Anderson: Absolutely. Just really earlier today, just in the last few hours, we've seen a lot of reporting break on this. Essentially the government has indicated that the revocations that had implemented earlier this month of several files from the SEVIS system—a system that's used to coordinate the status of students here on student visas between the government and universities in various regards—were going to be restored.

These were deleted earlier this month a, an act that was done apparently on the basis of the fact that the people whose records were deleted, it had some sort of run-ins with the law, but not of a severity that would normally be considered sufficient to actually put their student visa status in danger.

This actually caused widespread confusion because usually just deleting from SEVIS wasn't really clear what that meant to a lot of universities. You had cases where some students were allowed to go about their business normally pending clarification. Others were told don't stop attending classes, or some others were under the impression that they had to leave the country that it meant their visa had been revoked, although that's actually a separate administrative step.

There was actually more than a hundred cases filed evidently over this in more than 23 states resulting in as many as 50 TROs or other sorts of relief over the past few weeks indicating the government had to unwind this. So in the wave, face of this sort of wave of action that seemed to clearly signal courts pretty consistently saw a big problem with what the government had done, it appears they've at least temporarily walked back this step. That said, they've also indicated in statements to reporters that this is just a measure while DHS develops a procedure and process for handling SEVIS records in the event of law enforcement encounters of this sort.

So presumably they're going to implement a policy and explain the consequences of it and, and perhaps implement it in the near future, which may lead to a similar event, hopefully with a little more coordination, less chaos in the next few weeks or months to come. Or perhaps not, they may just let it lie. For the time being all those students appear to be back in the regular status and they're including in the SEVIS system, which hopefully should resolve the attendant confusion.

Benjamin Wittes: Alright, so, we are in the, I think, unprecedented situation of having the reporter who broke this story in the audience today. And so I thought I would ask John Hawkinson—who's was at the hearing this morning and who made this this SEVIS case public—just ask if you had any thoughts or additions to what Scott has said.

John Hawkinson: Thanks, Ben. So I don't have a lot. I will say I was aware of these cases, but because they're immigration cases, they're a little hard to track. You can't just download the documents like you can in usual cases. And so I, I saw this. I, so I, I. I was following a, a case about a college student seeking, you know, their seven status to be reactivated, of which there are several hundred.

And this morning the AUSA had emailed the judge a statement from ICE, which the judge felt was important enough to read out loud in the case, and and then to docket the email he got, he received from government counsel. And apparently as that was going on, sort of the same thing was playing out in other hearings across the country, including one in Washington, where I, I was not, I was in Boston.

So it, it, I think the general reaction from counsel on these cases is that was losing the TROs, they were getting ts that both required them to preserve the status quo by not removing people, but also ordered them to restore the service records to, to actually take an affirmative action with respect to their database.

And so counsel for these part, I guess they're plaintiffs generally were getting the feeling that the government was just tired of losing the litigation over and over again, and that's why they, they took this action. And I don't know if you want me to read the email or not.

Benjamin Wittes: How much does it add to what you've just said?

John Hawkinson: Well, I mean, it's the government's position so I, I'll just briefly do it. Yeah. ICE is developing a policy that will provide a framework for vis record terminations until such a policy is issued. The vis records per plaintiffs in this case and other similarly situated plaintiffs will remain active or shall be reactivated, if not currently active, and ICE will not modify the record solely based on the NCIC finding that resulted in the recent S record terminations.

ICE maintains the authority to terminate a s record for other reasons, such as if the plaintiff fails to maintain his or her non-immigrant status, blah, blah, blah.

Benjamin Wittes: Interesting. Alright, well thank you for your reporting on this, John.

John Hawkinson: You're welcome. Thanks Ben.

Benjamin Wittes: Alright, so, we have now gone 57 minutes and have just finished the immigration cases alone that are active right now. So we're gonna have to speed through some other stuff. Let's start with the attacks on various institutions. Roger, do we have an update in the law firm cases?

Roger Parloff: Yes. We had hearings in the Perkins Coie and WilmerHale cases. They are—so these are the final hearings. We’ll get the either a permanent injunction or theoretically a dismissal.  It will be a permanent injunction, I'm pretty confident, in both cases.  There was, there were—and we, we had a Lawfare Live afterwards. So I, I won't say much about this, but Beryl Howell at one point used the word shakedown. I think that's a bad sign for the you know, for the government in defending it.

Benjamin Wittes: Yeah, you always, you always you always get a little nervous when the gov when a cha in a challenge to a government policy. The judge refers to the policy as a shakedown.

Roger Parloff: Yeah. So, I think since we have a lot to cover, I'll leave it there. I did, I, I have a story online about the, that sort of, if you missed the Perkins Coie thing, I, there were glitches in the phone line, I emptied my notes onto the, onto the site so you can see what happened there.

Benjamin Wittes: Yeah, nd Roger and I had a separate conversation about these which is available on the YouTube page.

Alright, so meanwhile, the American Bar Association has filed suit. Scott, what is the ABA upset about at the administration?

Scott R. Anderson: Well, like law firms, like universities, they have been targeted by their own set of retributive actions, this time primarily coming from the Justice Department and what they describe as the Blanche memo, a memo from Deputy Attorney General Todd Blanche basically directing Justice Department employees not to engage with ABA in a variety of capacities as members of committees participating in different sorts of official activities, which was quite common obviously for Justice Department attorneys prior to that.

And then this suit ties that, rightly or wrongly, [inaudible] to a related action, which is the cancellation of a number of grants that were going to the ABA primarily related for violence against woman issues from their OOVW, which I think is the Office of Violence Against Women by Action—not sure about that, James, you may know, and you can correct me if I'm not, if I'm wrong.

The, they've essentially filed a lawsuit that bundles a lot of constitutional arguments—I think is one of the more complete sets of constitutional challenges we've seen—from four different angles on the First Amendment to due process, equal protection challenges, spending clause challenges, as well as a good old Administrative Procedure Act challenge to this whole array of actions, the cancellation of grants and those branch limitations, memo limitations.

So we'll see where this goes. This isn't the first time they filed suit. Of course, they were also plaintiffs in the administration pardon in the litigation, challenging the administration's cancellation of a variety of foreign assistance grants earlier in the administration. But this action has been on the books for the few weeks; I think we were expecting a legal challenge, and now it looks like, it looks like we see it, we have it.

Benjamin Wittes: Alright, so this brings us to universities. Harvard has gotten in on the litigation action. James, what's Harvard's beef? It's just like $2 billion. They've got plenty of money.

James Pearce: Yeah. Well, lots of billions lying around. Yeah, yeah, no, this was widely reported earlier this week. Harvard I think is, if, if not the first, certainly one of the first universities to, to really push back and to, to take to take the Trump administration to court.

So they filed a complaint on the 21 of April. The core of the complaint is, is a funding freeze case, and we've talked about those here, and there've been a couple you know, states have filed them, nonprofits have filed them. This is Harvard saying you can't freeze our $2.2 billion—at least $2.2 billion, the, the complaint refers elsewhere to, to other monies that, that may also be frozen or their threats of freezing.

The, the counts in the complaint are, are, are pretty similar to what we've seen in, in other cases with a, with, with the one difference of a, more of a First Amendment emphasis, but the, the mechanism through which the claims are brought are Administrative Procedures Act. They're sort of ultra vires act because this is in the education context there's a, a bit of a, a difference, which is the, the thrust of Harvard's argument is that essentially the administration is using as a pretense the view that Harvard is not doing enough to combat antisemitism on campus and thus is out of compliance with the 1964 Civil Rights Act, and that there is a, a, a a mechanism under that bill to, under that law to kind of, to pull back some of the, the funding. But the administration hasn't actually followed what is the, the, the framework that that statute lays out and is essentially trying to grab funds that have nothing to do with efforts to combat antisemitism.

Plaintiff, the plaintiff, the complaint does a nice job, I think in, in laying out the relevant statutory background, all of the efforts that Harvard has in fact taken to try to combat antisemitism, and how, in addition to the administration's efforts to just try to freeze funds willy nilly, that's essentially like—what the administration is trying to do is, is also get its hands all over Harvard's academic decision making, hiring of, of faculty, influencing admissions decisions, funding of, of student groups.

And so I think the complaint is a, as I said, a very effective job in, in laying this all out, and toward the end, I think it also does a, a nice job in saying, although this particular case is just about the funding freeze Harvard has, has also become the target of other sort of components of the federal government. It, it alludes to congressional investigations, records requests from the Department of Education; and then as has also I think, been fairly widely reported threats that the IRS will try to remove its 501C3 charitable tax exempt status, and that these are all other things hanging out there. They're not formally part of the complaint here, and in fact that, if there is a tax action that that wouldn't be brought—this was brought in the district of Massachusetts—it couldn't be brought here, but, but it's a I think a, a a a a very well done complaint and one worth reading.

No action since then. Interestingly—at least it's happened since we've started—Harvard has not sought a temporary restraining order or preliminary injunction. That, that may be coming, but that is not yet on the docket.

Benjamin Wittes: Alright, Scott, ICC. You know, when I think about the poor beleaguered people oppressed by the Trump administration, the ICC isn't high up on my list, but yet it, maybe it should be.

Scott R. Anderson: Well, you know, they are being sanctioned, so maybe it really genuinely should be. But relatively small number, actually just kind of the head of, or the head prosecutors of the ICC currently.

Regardless we now see two legal challenges to the International Emergency Powers Act based sanctions the Trump administration has imposed against the ICC and specifically the prosecutor, chief prosecutor of the ICC. Both being filed by groups that engage with the ICC in communications in some cases to share evidence or analysis of legal issues. One case is filed by law professors in New York, in the Southern District of New York, New York before Judge Furman. The other is by a pair of human rights investigators and activists represented by the ACLU in the District of Maine.

They make a similar set of arguments, which are fairly interesting—-if you are an IEEPA nerd as I am, and hopefully you are or will be soon—in that it, they launched not just constitutional challenges to First Amendment based actions—the idea that these are speech protections in engaging with the ICC—but that in fact they, it is also a violation of the Berman amendment. This is part of the IEEPA that specifically limits how IEEPA can be applied to informational materials and communications materials.

Slightly awkwardly worded amendment interpreted very narrowly by the government, but applied in a number of contexts by courts to say, well, this is supposed to be protective of the First Amendment, and so we're gonna read it actually in various ways that protect different speech related activities or materials related to speech. And here they essentially argue when we trade briefs, when we trade documentary evidence of, of international crimes, that is speech protected by the Berman Amendment and by the First Amendment. And there's also some due process clauses related to certain ambiguities in the executive order in the New York case.

It's an interesting set of litigation; we've seen similar arguments made before in the material support for terrorism context that led to the Humanitarian Law Project case in 2010 which probably wouldn't, maybe would be an obstacle for some of these claims, but here in the IEEPA context, different statutory basis, you do have the Berman amendment, which is a huge help if the courts actually decide this does fall within the scope of those.

So actually a pretty interesting set of cases here. We'll see where they go. Right now we're only at the stage where we have the complaints for those.

Benjamin Wittes: James, we had a preliminary injunction granted against the president's election integrity EO, which frankly I had forgotten that he had issued. So remind us what the election integrity EO is and then why Judge Colleen Kollar-Kotelly, which is the judge, I'm sorry, guys with the hardest name to pronounce live, just not because there aren't judges with harder names to pronounce, but because it's a tongue twister. And and you trip over your tongue when you say Colleen Kollar-Kotelly, try it five times quickly.

James, what did she do?

James Pearce: Well, I just, I just have to say at least she doesn't sit in Woonasquatucket because I think that would just be asking too much.

Benjamin Wittes: if she were the Yeah. If she were from the district of Lake Chaubunagungamaug, we'd all be screwed.

James Pearce: Yeah. No, you know, I think it's, it's fair to say it's the, the election integrity executive order and this litigation probably hasn't gotten the coverage that it might, in what one might say normal times, just given the, the very steady fire hose stream of, of litigation and executive actions coming our way.

But at the end of March the President Trump issued an executive order that essentially directed something called the Election Assistance Commission which is a federal body, I'll say more of, to take various steps to impose requirements around federal elections, like requiring proof of document, documentary, proof of, of citizenship; not allow for counting of ballots after election day; require certain entities not to distribute federal forms, registration forms unless they were make those, those entities were making assessments about citizenship.

This is all against the backdrop—and, and I should say Judge Kohler Catelli's opinion, which dropped yesterday is a, a another of these magnum opi, I guess 120 pages, and does a, a nice job of laying out some of the background and actually walking through a lot of the stuff that we spend a, a good bit of time talking about these days in terms of, you know, how the, how does the standing and cause of action and you know, the ripeness, how, how, how do all of these play out. So if anybody who's just trying to, to work through that is interested, I, I would commend it to you on that alone.

But the, the sort of concise background is that under the, the Constitution and, and the statute, and, and, and various federal statutes the organization of federal elections is actually committed to the states with Congress as a backdrop and does not provide a role for the president. And so Judge Kollar-Kotelly’s opinion starts by saying, this is ultimately an opinion about the separation of powers, about an effort by the executive branch to reach, its, its hands into an area that is committed elsewhere. And so in that respects, I think shares a lot of similarities with some of the other cases that, that we discuss here and, and issues that we discuss.

The, the challengers here—it's actually two consolidated cases. One set of challengers were nonprofit non-partisan organizations like the League of Women Voters and other groups that carry out registration efforts. Another group is essentially Democratic party affiliates including Hakeem Jeffries and, and Senator Chuck Schumer, who also joined the litigation.

The challenges—I alluded to sort of some of what the executive order did or, or purported to do—the challenges were to, to five different portions of, of the executive order, two of which are now enjoined under Judge Kollar-Kotelly's ruling, and three are not.

The two portions that are enjoined—-one is, as I, as I already mentioned, is essentially an effort that requires the elected Election Assistance Commission to, prove to, to itself require documentary proof of citizenship. And I promised, and I realized I did not fulfill the promise of explaining briefly what the Election Assistance Commission is. It was an entity created under federal statute in the early 1990s to try to kind of improve how federal elections are run. It's another one of these bipartisan, balanced entities that is an independent agency operating independently of, of the executive branch though formally sitting in it. So kind of poses some of the questions and concerns that we have seen when we've talked about the cases, sort of like in the hums Humphreys executor vein.

So, the challenge to the efforts to impose a, a documentary proof of citizenship is enjoined because judge Kollar-Kotelly finds that that is essentially the executive branch trying to step on and add to existing statutory sort of congressional requirements and is is the, the executive branch operating ultra vires.

The other provision that is joined, enjoined, excuse me, is, is a, a provision that directs various federal agencies, which is part of their provision of services are giving out standardized federal forms, which is a way that many people register to vote that essentially conditions the, the, the giving out of those forms on again a citizenship assessment, and the, and the judge finds that, that—for, for sort of similar separation of power reasons—is, is beyond the scope of what the executive branch can do.

The reason the other provisions aren't enjoined—those provisions are things like directing agencies to keep databases or condition funds to states or direct the attorney general to enforce certain laws, and basically, Judge Kollar-Kotelly finds that in those instances it's either the wrong plaintiffs that are suing. In other words, you need to get the states up there to challenge some of, of, of those issues, or it's just a ripeness, a prudential ripeness problem. We are just too early on; it's unclear whether the, the directives are anything other than, than a guidance as opposed to an actual kind of enforceable legislative rule.

So bottom line, we've got some of them some of those provisions enjoined, others not, and so far, again, this only dropped yesterday, but so far the, the government has not yet noticed them.

Benjamin Wittes: All right. So, I do wanna get to the audience questions of which there are five. So let's keep answers on the remaining matters brief.

James, we've had some developments in the transgender military ban. What's that looking like right now?

James Pearce: Yeah. And so, so keeping this, this very brief, these are challenges that are, that, that have come out of the Western district of, of Washington and the District of Columbia to an executive order that issued at the end of January that was banning individuals diagnosed or having gender dysphoria; it is widely described as the transgender ban, but I think that that's an important point because that is what is relevant in the litigation at this point.

In the litigation out of the Western District of Washington the judge granted a preliminary injunction, as did the, the judge in the District of Columbia, Judge Reyes finding that the, the ban likely violated the equal protection rights of transgender military members. The Ninth Circuit denied the government stay pending appeal; the D.C. Circuit heard argument on it this week.

Not much to say, particularly given time constraints here other than the government attorney there announced what then, in fact we see, which is that the government was going back to the Supreme Court. And so the government yesterday sought emergency—again on the emergency docket, the solicitor general seeking Supreme Court intervention in the Ninth Circuit version of this.

The, the brief version of the argument that the government is making is that the courts below have, erred aired in subjecting this executive order to heightened scrutiny, to intermediate scrutiny because really in, in the government's view, this new order is because it's based on gender dysphoria is rooted in a medical condition and is subject to something known as rational basis review—much, much less demanding standard—and the, and the government says there are rational reasons why the secretary of defense would conclude that transgender individuals or individuals who have been diagnosed with gender dysphoria can't serve in the military. So, response to be filed May 1 from the the challengers to the, to the executive order.

Benjamin Wittes: But we have no indication of that from, from either the D.C. circuit or the Supreme Court by how they feel about that argument.

James Pearce: No, you know, it's interesting, it didn't come up much. The different levels of scrutiny really didn't come up much in the argument itself. The point that the government makes in its filing to the Supreme Court filed to yesterday is look Supreme Court. You actually saw a version of this during the first Trump administration in a challenge to a Mattis policy, and you know, it seems like there—though I don't, I'd have to go back and look, I haven't looked—but it seems like there, you thought rational basis review was appropriate, so you should do the same here. There's really no, no distinction.

But, but we'll see if, you know—I'll be interested to see what the opposition comes in and because we've just got the government's characterization of both the relevant procedural history and the arguments at this point.

Benjamin Wittes: Alright, Roger we missed this last week for time reasons, but the dismantling of, of the CSPB continues apace. What's going on in that litigation?

Roger Parloff: So, to get the timeline judge Amy Berman Jackson had issued a preliminary injunction March 28; a, she had found there was dismantling of the agency very much bad faith—they were really just trying to wreck it, I mean, to demolish it, to end it, and the evidence was strong. April 11, a conservative panel of the D.C. circuit—they, the government sought a stay pending appeal and the, the conservative panel granted a partial stay and they said parts of this of the order can, can stay in effect, but parts can't, and they would allow reductions in force RIFs, if they were based on particularized assessment of whether employees were necessary to perform the agency's statutory duties.

Three days later the CFPB announced RIFs that were deeper than the original RIFs, they would take the agency from an original 1700 people or so down to 200. So she held last Friday there was a sort of an enforcement hearing to see whether they were violating the injunction even as it was modified. She found that they were. And and there will be a, Monday, a hearing Monday where she takes more evidence. And I guess, oh, and meanwhile the D.C. circuit, they government has appealed that ruling back to the D.C. circuit, and I believe that's fully briefed and we could get a ruling any moment.

Benjamin Wittes: Finally Scott, two categories of cases one involving tariffs and the other involving the foreign assistance grant terminations. Bring us up to speed, high level of altitude about what this body of stuff looked like this past week.

Scott R. Anderson: Sure at a very high level first on the tariffs issue, we are now seeing by my count seven, at least, although it's my suspicions, are more looking out there cases filed challenging President Trump's imposition of tariffs using the International Emergency Economic Powers Act, IEEPA, the statute I mentioned earlier, usually used for sanctions, also used in this case for tariffs, somewhat unusually and controversially.

Five of those actions appear to be targeting the kind of worldwide tariffs President Trump has imposed. One each is challenging Canada or China specific tariffs, although also often incorporating the worldwide as specifically related to those countries. And the seventh, I should say, I haven't been able to find the docket for, but it's referenced in one of the other cases that's Barnes v. Trump before the Court of International Trade.

All we've really seen happen in this so far is that about half of these actions are in the Court of International Trade, a specialized federal court that handles trade matters and has exclusive jurisdiction over a variety of trade matters. And then half of them have been filed in different district courts around the country.

And this includes cases by California, which is filed in Northern District of California; another matter has been filed by a number of other states, Oregon and a couple of companion states; cases have been filed by toy companies who are importers; a number have been crossed, filed by a number of kind of cross industry groups. And then one notably has been filed by a group of Blackfeet Native Americans that makes very interesting, very unique arguments about how tariffs are affecting them and relates to a certain right that their Native American community has and other Native American communities have and how they're handled under the law. Really interesting case. It's Webber v. Department of Homeland Security.

All that's to say is that so far there's a big debate over whether these all need to be consolidated in the Court of International Trade, and perhaps even as kind of one big matter. I don't know if the latter's gonna take place, but we've seen at least one case, a rule at the urging of the government that it should be transferred from district court to the Court of International Trade. Other courts seem less convinced that this particular matter, actually it's within the exclusive jurisdiction of the Court of International Trade. IEEPA actions normally are not, but they also are not normally used to impose tariffs. So that's part of the confusion in this case.

And then we did see one TRO denied in the one matter that's already before the Court of International Trade. This is VOS Selections v. Donald Trump, that's the one represented by a group headed by Ilya Somin, who wrote a piece on us for it in law Lawfare this past week, if I recall correctly. But the TRO is really, really pretty minimal analysis, not even a memorandum opinion that I saw. Really just focused on the fact that there's not much irreparable harm here because it's mostly collecting taxes, the government can pay back if it loses.

So that's where we are now. It's going to be big litigation and the source of a lot of focus in the weeks and months to come, because this could be a pretty seminal determination about the sustainability of Trump's policies around tariffs and the use of IEEPA moving forward.

The other cases regarding the whole universe of foreign assistance cases we've seen, I will skip most of it, minor developments for most of it. Most notable one we've seen, however, is that. Judge Lamberth in district court here in D.C. in Patsy Widakuswara v. Lake—pardon me, I'm sure I'm mispronouncing that—essentially ruled and issued a preliminary injunction saying that all of the US Agency for Global Media projects that whose funding was cut by the Trump administration should be restored. That means Voice of America, Middle East Broadcasting Network, and Radio Free Asia. Radio Free Europe and another technology related program had actually already had their funding restored. So he, he did not extend the PI to them. There's good news and a big development particularly for VOA and other folks who are working there because it does mean this grant money should be coming back. Trump administration has appealed to the D.C. circuit though, so that's the next step to look out for on that.

Everything else, I think we can hold on till next week.

Benjamin Wittes: All right. Let's go to audience questions. Matt asks this is a question we have batted around internally as well, asking only half in jest. If we take at face value the administration's argument that Tren de Aragua is a state actor conducting a hostile military invasion of another country, do the laws of armed conflict apply to that situation? And, for example, does the use of prisoners for propaganda by members of the U.S. government amount to a war crime?

So let's just say that Matt's question does point out the incoherence of the claim that Tren de Aragua is a state actor at with which we are at war. There is no authorization to use military force against Tren de Aragua, nor has the administration contended that Tren de Aragua fighters are fighters within the meaning of the laws of armed conflict.

But the—so the point is Matt's point should not be taken literally, but it is, I think, a good illustration of the incoherence of the argument, Scott, as one of our law of armed conflict people. Do you have any, anything to add to that?

Scott R. Anderson: All I would say generally, two things: one domestic, one international law to bear in mind here.

First we are interpreting the meaning of these terms for the purposes of a specific statute, the Alien Enemies Act. That doesn't mean they have the same meaning as they might under international law. You might have a predatory incursion or a war and a foreign country even for the purpose of the Alien Enemies Act. That does not mean it would be the same thing under international law. It might be, but they're, they don't necessarily have the same definitions. You'd have to look at the intent of the authors of that statute.

The second point I would make is that also all violations of international law of armed conflict are not necessarily war crimes. So I actually think using individuals for propaganda purposes, I am pretty confident, not a hundred percent, I haven't I don't have this part memorized, but I'm pretty confident that is a violation of the law of armed conflict, but it's actually not a war crime. That is a subset of more severe crimes, usually considered war crimes. For a purpose of U.S. law, war Crimes Act, almost positive it's not a work crime.

Benjamin Wittes: Yeah, I think that's right. Alright, Joyce asks Anna Bauer, would anyone i.e. Anna Bower like to speculate about whether SCOTUS’s Saturday night emergency action was an administrative stay? Or if not what it is and what's next?

Anna Bower: Oh gosh. I mean, it's, I don't know. I, I feel like Roger might have more thoughts on this than I do. I'm not entirely sure. It's kind of a, it feels like it, you can't really classify what they did on Saturday, and I'm just—it is quite interesting.

Benjamin Wittes: Which is kind, which is kind of Justice Alito's complaint. Roger, do you have thoughts on, on whether it's an administrative stay or something else?

Roger Parloff: I don't remember how it was styled, but it, it, it seemed—given that it, it occurred before the Fifth Circuit had ruled, it, it was a very emergency thing. James, do you remember?

James Pearce: Yeah, I mean, I don't think the, the court used the magic words as it sometimes does of saying this is administratively stayed. It in fact, quite clearly said, the government is not to remove any of these individuals pending further order of the court. I mean, as a functional matter, I think it, it operates like an administrative stay, but certainly was, was delivered in in much more direct language, and with all of the kind of interesting procedural complications that we've alluded to and that a lot of reporting has discussed,

Scott R. Anderson: Although administrative stays are usually used to allow for briefing and this was actually briefed by both sides, not like the full usual cycle.

So I actually think it might be more like a, I guess TRO or something to that effect.

Benjamin Wittes: Bottom line, we're not sure, which is sort of the point of the question. Andrew asks, should we abandon hope that Secretary Hegseth will ever face accountability for what appears to be serious national security breaches? Are we going to have to hear the deflection but her emails for the rest of time?

I would just say the answer to that question is very probably yes. But I will note that you know, this administration does not last forever and statutes of limitations are longer than its remaining time in office. However as I have said before, I don't think these are very likely prosecutable breaches in any event. And so I think the likely discipline to the extent you ever see any, would be administrative.

David has a very long question, so I'm gonna read only part of it. As the government starts kidnapping people, one would think that the first thing to happen is that the government has to defend the applicability of the AE, to the, to, to the, of the AEA to the present situation, and that the deportations should stop immediately until they do. So why doesn't our system allow the most natural response to the government's heinous actions, which is to front end the discussion of the legal applicability? Would the same thing happen in other countries?

So, very quickly this is the significance of the ruling in Colorado that I believe Roger talked about earlier. And yes, I think the the reason it has not really come up that much so far is because we've been trying to deal with getting stays and ts and preventing immediate deportation. We haven't been litigating the actual merits of any of these detainees claims as soon as we do. So the applicability of the AEA—another hard one to just say quickly—will come up almost immediately. Finally—do you have something to add to that, Scott?

Scott R. Anderson: Just to note his question is actually framed towards detention, not removal, which may be part of the confusion here. These people actually aren't being detained on the basis of the AEA, although AEA does allow that. If you recall the original challenge before Judge Boasberg actually specifically said, we're not challenging detention, we're challenging our removal under the basis of the AEA or at least the government isn't exclusively relying on the AEA. So the fact they're being detained doesn't necessarily vindicate or rely, use the AEA because it's not exclusively what they're relying on. So if they don't actually get removed, they haven't kind of used the AEA yet in most of these cases, I believe certainly with the initial case that was the, the, the sequencing as I understood it.

Benjamin Wittes: Finally last question, guesses on the first finding of contempt for an administration legal representative—days, weeks, ever. I will just say—I don't know if anybody else has a prediction here—I would, I would think that in order for that to happen, you would have to have a lawyer do something that was outside the bounds of what the courts are expecting from lawyers representing this administration. And you'd actually have you know, this is beyond sanctions. What you're talking about, you'd actually have to have an order that binds the lawyers. Usually the orders are directed at the clients. Does anybody have anything to add to that?

Alright, we are gonna leave it there, folks. Thank you to Anna, to James, to Preston, to Roger, to Scott, and we're gonna be back next week, and you know, the docket will be full. I'm sure. Thank you all for joining us, and remember, if you haven't done so already, go become a material supporter of Lawfare. You know we need your support. If you are using these live streams and finding them valuable become one of the people who makes them possible. You can do that at lawfaremedia.org/support.

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