Lawfare Daily: Trials of the Trump Administration, July 25

[Intro]

Benjamin Wittes: It is the Lawfare Podcast. I'm Benjamin Wittes, editor in chief of Lawfare with Lawfare Senior Editors Scott R. Anderson and Roger Parloff and Lawfare Legal Fellow James Pearce.  

James Pearce: It kind of starts with quite strong language once again. This court uses its emergency docket to destroy the independence of an independent agency as established by Congress.

Benjamin Wittes: In the July 25th episode of the Trials of the Trump Administration, we discussed the Supreme Court's rulings allowing the removal of executive officials of independent agencies. We talked about ongoing agency dismantling, developments in the Kilmar Abrego Garcia case, and much, much more.

[Main Podcast]

It is Friday the 25th of July. It is 4:00 PM Eastern Time, and this is Lawfare Live, the Trials and Tribulations of the Trump Administration. I'm Benjamin Wittes, editor in chief of Lawfare, and I'm here with Lawfare Senior Editors Scott R. Anderson. Hello, Scott.

Scott Anderson: Hello

Benjamin Wittes: Roger Parloff joining us from France.

Roger Parloff: Hey Ben.

Benjamin Wittes: Are we doing this in French or in English?

Roger Parloff: We'll do French tonight.

Benjamin Wittes: Okay.

Roger Parloff: Maybe, I'm sorry

Benjamin Wittes: English tonight? All right. And James, who could do this in German or Arabic or Spanish, is that right, James?

James Pearce: That, that might be testing my abilities, but that maybe that'd be, make it amusing if, you know, Roger does it in French, I'll do it in Arabic and we'll just keep this very lively this evening or this afternoon.

Benjamin Wittes: Yeah, and, and very comprehensible. And, and, and Scott could do it in Arabic too, at least he could a few years ago.

Scott Anderson: Well, a little bit.

Benjamin Wittes: I, who cannot speak German, French, or Arabic will do my part in broken Ukrainian.

Look, we got a lot of ground to cover today, so let's get into it. And let's start with the Supreme Court, which as Justice Jackson would want us to remind you is not infallible because it's final. It is. Sorry, is not final because it's infallible, it's infallible because it's final.

And James, the Supreme Court this week allowed on an interim basis the dismemberment of the consumer financial, the Consumer Product Safety Commission. I wanna start with the question: What is interim dismemberment?

James Pearce: Yeah, great, great question. I think it's an outgrowth of all of the interim work that the Supreme Court is doing. I mean, one might pause to ask, here we are toward the end of July, and how is it that we are actually still talking about things that the Supreme Court is doing. Longtime watchers of the Court will know that the, the justice usually, justices usually hasten to get everything done by the end of June, beginning of July, so they can go out and teach sort of boondoggle courses in, in nice places across the world.

And as, as, as the Chief Justicesaid once when he was in government, something like only the Supreme Court and, and school children are expected to and do take the summer off. So, that does not seem to be the case for this summer. And as you said, Ben, what we got this week was a, a decision in a case called Boyle, which, which as you said, involved a removal of three members of the Consumer Products Safety Commission. They all challenged, I'm sorry, I don't know if folks can hear a clock in the background, I'm in a different location, but if not, you can ignore it. They all challenged their, their removal. They were successful in, in the district court.

The government then sought a stay to, to, to stay their removal both in the district court and in front of the relevant court of appeals, the Fourth Circuit, was not successful in either location, and then the government went to the Supreme Court which in fact provided the relief the government sought.

I'd have to say for, for those following this closely, not really much of a surprise. The way, it's a very brief decision, just a, a sort of a couple of paragraphs in the brief majority, and then a concurrence from Justice Kavanaugh and dissent from Justice Kagan, the whole thing, not more than five pages. The, the main decision basically says, hey, District Court, you remember that, that decision that we issued in in Wilcox and Harris, that's the case we've talked about a number of times, the removal of both the member from the Merit Systems Protection Board and the National Labor Relations Board. And basically seeming to signal that the exception carved out or the, the recognition in, in the 1935 case Humphrey's Executor that limited the president's ability to remove executive branch officers when the, the relevant agency was a multi-member partisan balanced independent agency.

The court stayed in, in that case a decision from the D.C. Circuit that had allowed those, those individuals, those removed officers to be reinstated. The Supreme Court did the same thing here, and, and as I mentioned, basically just said, our, the reasoning such as it is on, on interim or emergency docket cases in Wilcox controls here, the Consumer Product Safety Commission has no material difference from the NLRB, one of the cases that, one of the cases that issue in Wilcox, in and Harris, the Wilcox case and so that was pretty much that.

Justice Kavanaugh wrote an interesting concurrence, I think very much in line with the concurrence he had written in in the CASA birthright, birthright citizenship, universal injunctions, where he basically said just like I'd said in, in Wilcox, I again think we should, we, the Supreme Court should grant cert and decide this thing. There are some issues where kind of further percolation of, of an issue in courts of appeals and, and lower courts is useful to kind of get differing perspectives and, and, and then the court, the Supreme Court can kindly, can, can, can come in and, and have the final word.

But he makes the point, and I think he's right on this when the real question is the, the continuing validity or not of a Supreme Court decision here, Humphrey's Executor, no lower court has under our vertical sort of system of stare decisis the ability to overrule the Supreme Court. And so if the court's gonna do it, the court should, should do it or not, but it really makes no sense for this to kind of kick, keep kicking around in, in lower courts. Justice Kagan has a dissent joined by Justices Sotomayor and Jackson. I'll, I'll, I'll say just for the, for clarification, you started Ben with a, with one of my favorite Justice Jackson quotations.

That is not Justice Ketanji Brown Jackson. That is Justice Robert Jackson, but sage wisdom I think on, on his part. The Justice Kagan dissent very short basically says kind of starts with quite strong language once again. This court uses its emergency docket to destroy the independence of an independent agency as established by Congress criticizes the court for, for doing this on the, on the emergency or shadow or interim relief docket sort of criticizes the, the absence of, of any kind of briefing.

And sort of, I think observes accurately that the court is all but overturned Humphrey's Executor even though it has not reached this on, on the merits. So another victory for the government and I think more bad news for so-called independent agencies whose independence seems to be evap, evaporating in under this administration and, and, and with the decisions of the Supreme Court.

Benjamin Wittes: And today we had a lawsuit brought by several of your former colleagues at the Justice Department, basically saying that though they haven't contested their firings at the Merit Systems Protection Board the reason they haven't done so is that the administration has disabled the Merit Systems Protection Board by an action, more or less, the same as the one that the Supreme Court just allowed to take place at the Consumer Product Safety Commission.

So my question is first of all, let's talk a little bit about that suit. And secondly is the administration and the Supreme Court buying for the administration a bunch of trouble by disabling these agencies, depriving them of a quorum all in the name of presidential control, but the result is that they, you know, can't do things anymore and thus that people are maybe entitled to other remedies that they wouldn't otherwise be entitled to.

James Pearce: Yeah, good, good questions both of them. I'll, I'll start with a, just a little more background on, on the, the suit and then address I think what our, what, what also jumps out to me is the, the hardest question, which is this question of, of bringing this in the first instance in the, in the district court and, and essentially arguing that the Merit Systems Protection Board is, is no longer a viable avenue given you know, developments over the last six months, many of them driven by the administration.

So the lawsuit I think, was filed yesterday actually has, has only one former January 6th prosecutor. It's interesting, it's three former Justice Department officials. The lead plaintiff is Mike Gordon, he, he was one of the three January 6th prosecutors filed, fired just at the end of, of last month.

Great prosecutor, I, I've worked with him in, in my time also handling January 6th cases. The, the next plaintiff is Patricia Harmon, Patty Hartman, excuse me a public affairs specialist at the Justice Department. And then finally, the, the last plaintiff is a, is a lawyer named Joseph Tirrell.

I believe I don't, don't know either Ms. Hartman or Mr. Tirrell personally, but Mr, Mr. Tirrell was in the news earlier this month head of the ethics department and reporting suggested fired by the attorney general. So tho those were the three plaintiffs in, in the case, brought the case.

As you know, as we've said in in district court, it's been assigned D.C. District Court to a relatively new judge on the district court bench, Judge Jia Cobb a Biden appointee who's probably had two, two or so, maybe three years on the bench at this point. So yeah, why bring it in in district court, right? I mean, the, the complaint itself does spell out a little bit of this argument, and I think it largely tries to track reasoning that we saw in a case that we discussed on Lawfare Live.

Some point in the next couple of past couple of months of a Fourth Circuit decision that involves challenge by immigration judges where the district court had said, you, you gotta take this before the MSPB and the Fourth Circuit, interestingly, with no supplemental briefing or arguments from the parties essentially sua sponte said, well, you know, we agree that, that in your typical mine run case, this type of challenge would need to go in front of the Merit Systems Protection Board.

But given, sort of taking judicial notice of, given all of the things that have happened over the past months, the removal of Kathy Harris from the Merit Systems Protection Board the, the, I, I think the, the opinion says things like the administration's efforts to try to really centralized control over these agencies in the, in the executive branch, the Fourth Circuit sent it back to the district court in, I think it was the Eastern District of Virginia, to sort of figure whether the, the typical analysis, the Thunder Basin analysis for those kind of following this doctrinally, which is a question of, look, if Congress has committed the, the jurisdiction or the authority to decide certain matters to some entity other than courts you know, you know, has Congress done that in a particular instance? And, and have they done it with the immigration judge case?

That's gonna be the question for the district court here. First is, you know, has, and I think the answer to the question of has, you know, Congress committed this to the MSPB with an appeal to the court of the Federal Circuit, that will be clear.

What will then be interesting is this question, hey, you know, what do we make of as you've said, Ben, efforts to remove someone from the MSPB, keep it from having a quorum and, and generally undermining claims that are before that. I, I have to be, I'll be candid here, I have a little skepticism about the likely success of that claim. It's not clear to me that although certainly the administration has, has removed someone from the MSPB I, I believe they've nominated some, someone else to try to get on there. And so there's an argument that, yeah, okay, they've taken someone off, but it's not clear they're just doing it to try to swamp the MSPB or otherwise keep cases from, from getting there.

And you know, as I mentioned, the Fourth Circuit case, that, that, it seems to be the only case that I've seen ha hasn't really been, you know, it, it was not the product of, of, of, of briefing an argument on this. And I read the sort of the thrust of this lawsuit that we see here to be and, and I have sympathy with this claim here, and it for full disclosure also impa, you know, impacts my situation, which is you know, whatever one thinks of the president's or ability to remove principal officers from independent agencies that power, that Article II removal power doesn't extend down to reach civil servants.

And the, the argument that, that I think the complaint is starting to, to, to sort of suss out is, well, look, the MSPB can't really, can't really adjudicate that, that's really a question that that district courts have to have to make. I'm not entirely sure that's right. I think the MSPB generally doesn't try to kind of weigh into meaty constitutional questions, but I think that's more of a, a matter of practice than it is of some kind of commitment by, by statute.

And then ultimately there is the opportunity to go in front of a federal court, the Court of the Federal Circuit on appeal. So I do think this, this could be a challenging road to hoe for the, the plaintiff.

Benjamin Wittes: There has to be some, there has to be some point at which if you disable the MSPB and it can't do its job, people don't have to wait forever, right?

James Pearce: So I, I agree there probably is some point. I mean, this idea of not having to wait forever, you know, I think it's one thing if. You could point to and, and, and maybe the evidence is better than, than, than I'm setting it out to be. And I won't, I won't pretend that I'm kind of deep involved in this, but like, you know, if you had an, an administration saying, not only are we removing the MSPB, so it has no quorum, but we have made a, a, a determined issue that we are no longer going to put anybody on the MSPB.

We are saying right here and now in the first year of our administration, we are gonna keep the MSPB without a quorum for its entire existence. Yeah, I think if you started to get facts like that, then I think the case becomes a lot stronger. But look, I mean, there've been you know, immigration matters, sitting in front of board of immigration courts and, and, and immigration judges for years and years and years now, the dynamic there is often quite different, right?

Folks in immigration courts are actually sometimes happy to have that matter, sit forever while they, you know, assuming they're not in detention, they're out living their life here. So, you know, I do agree there's probably some point where that argument, the argument that the MSPB has been fatally undermined, has bite, I just, I just don't know if, if we've hit that here.

Benjamin Wittes: All right. Scott, you are our contestant this week on who wants to dismantle a federal agency. Our regular weekly game show portion of the, the segment of the show. And we look, looks like you are dismantling a lot of federal agencies today. So give us the rundown what's going on at OMB?

Scott Anderson: So, it's been a mixed bag, but a pretty busy bag this last week or week and a half or so, since we checked in a lot of these cases as I was out last week, we had a fairly significant decision in CREW v. OMB that is the Citizens For Responsibility and Ethics in Washington, advocacy group here in D.C. in the, in D.C. District Court, where they successfully secured a preliminary injunction compelling, well, that will compel if it's put back in place, which we'll get to in a second.

The Office of Management and Budget to restore its, to restore its, website that it uses to record and publicly disclose apportionments. Apportionments is a process used that basically allocates where appropriated funds and how appropriated funds will be used in different

Benjamin Wittes: And just to be clear, for those of you who find the use of the word apportionment in this context confusing, it has nothing to do with apportionment of congressional seats, which is the only other context in the world in which apportionment gets used. That's the census and reapportionment that happens once every 10 years, redistricting. This has nothing to do with that.

Scott Anderson: No, this is about apportionment of appropriated funds. It's a very, very technical process, technically, legally binding that in that is this way that the executive branch and the Congress have kind of come to understand the how to enforce the obligations of appropriated funds after Congress' enactment of the Impoundment Control Act in the 1970s.

The Trump administration pulled this website down in March has basically saying, yeah, the statute may compel us to do this, but this is an infringement upon executive power. The president has exclusive presidential authority to control how appropriated funds are spent, and Congress can't interfere with that by compelling transparency.

And the district court here says, are you crazy? Of course, that, of course they can actually require you to disclose things. They're not requiring you to do anything specific in regards to your these funds. They are just saying you have to disclose it publicly. And by the way, this apportionment process is something that's closely related to statutory obligations that they can impose.

So, they, one in the district court quickly, the government went to the D.C. Circuit and secured a temporary administrative stay of this plan injunction, which is currently being reviewed by the D.C. Circuit. Briefing for that is due in on the 28th, which I believe is Tuesday or Monday, excuse me.

So we'll probably have a decision pretty shortly after that, at least on the administrative stay as to whether this will hap, website will have to be restored. Barring further appeal, not only this one be before Judges Pillard, Millet, and Rao as the motions panel for this month in the D.C. Circuit, I believe that, that, that's the motions panel. I haven't actually checked, but I believe that's right. So a slightly friendlier panel, at least compared to a lot of the motions panels we've seen on the D.C. Circuit recently. To the plaintiffs, I should say, not to the government.

Benjamin Wittes: Alright. So, we have movement on foreign assistance cases also at the D.C. Circuit, what's going on in AIDS Vaccine Advocacy Coalition.

Scott Anderson: So there's two different tracks that this case is proceeding on. One, we have an appeal pending in the D.C. Circuit. It was fully argued two weeks ago or so. This is to the preliminary injunction that Judge Amir Ali issued in this case, way back in March or April. That is still, we're still waiting a decision on that.

Meanwhile, we've seen a lot of action happening in the district court the, within the district court we have seen an effort by the plaintiffs to get the court to require the enforcement of its original preliminary injunction. They have essentially argued, look, the original injunction said you can't ignore the app, the appropriated funds, you have to spend down funds appropriated for foreign assistance purposes. And they're not doing this.

And the plaintiffs argued the government is not doing this, and specifically they point out a lot of these funds and dispute expire in September 20, 20, 20, 2025 at the end of the month. They have no plan for doing this about how they're gonna spend this out. And they also noted that they've held up spending on some funds that they say the original cancellation prior to February 13th, that's a period where the court ruled all, any act, work done prior to February 13th has to be paid out under these grants, some of the cancellations were retroactively verify that they were trying to withhold funding from.

The court, rejected the withholding of funding from the retroactively verified cancellations they reit, reiterated, no, you actually do have to pay these funds out, but the court declined to actually reach this apportionment clause issue pardon me, the impoundments issue or this question of a related question regarding pocket rescissions which I'll get to in a second.

On the essential logic that they said, look, the government came and you actually consented to before the D.C. Circuit, that we need an opinion by August 15th because the understanding is August 15th is the date by which you have to start apportioning or obligating funds to get them paid out by September 30th.

So that's the drop dead date. So I'm not gonna get ahead of that date. But the plaintiffs correctly, I think pointed out yes, but that's also the date, 45 days out from the expiration of these funds, which is the exact window in which some people in the executive branch has suggested a pocket rescission is possible.

This is a theory that Russ Vought and Mark Pauletta and other people in OMB have put forward saying, well, look, if we put forward a rescissions request within 45 days of the expiration of funds, that money automatically expires because the rescissions request they have 45 days for the, for Congress to kind of reject it or verify it and that therefore those funds should expire.

It's a theory that no court has ever ratified that a lot of people had to take issue with but that a lot of people suspect the Trump administration may ultimately rely on here. But the court wasn't willing to bite on this. The court really said, hey, look, I'm gonna wait till August 15th and then we're gonna deal with this.

The government has said a million times to me and to the D.C. Circuit, we will pay out these funds if we can adverse judgments against us, on or on, or before August 15th. We understand that that is a drop dead date and we're gonna start processing these funds exactly then. And he says, I'm gonna give the government the benefit of the doubt on this. This is the lingering effects of the presumption of normalcy for the executive branch in this regard.

And that's notable from Judge Ali 'cause again, he has been at the front of the bleeding edge of misrepresentations by this administration. If you, remember the first couple weeks of this litigation and some of the stories that were being told in court about what was being done with some of these foreign assistance funds. That's it. The government has been more of a straight player the last few months. I think it's fair to say they've been pretty candid about their plans.

They haven't come forward with any plan about how they're gonna spend these money down before September 30th. Not clear why, but he hasn't compelled them to do more in details. And notably, the, the lapse, the lapse of the apportionment website feeds into this because the apportionment website would give a sense about how some of these funds may be played or maybe paid down otherwise, the plan, the administration has, but because they pulled it down, you don't have that degree of public visibility.

And so the plaintiffs can't really rely on that information. Long story short, it's setting up a very big fight for August 15th, and this is gonna be the first big case to break on the impoundments question. I think this is the case we're going to have that have that big constitutional fight fought on the first time around.

So keep an eye on the space with D.C. Circuit and DDC is gonna really quickly come to the head as we get to the middle of next month. And I think we're gonna see potentially a very angry district court judge when the government does not stick to its word on this particular obligation, but we'll wait and see.

Benjamin Wittes: So it's 21 days from now, is that right?

Scott Anderson: That is correct. That is the date by which both parties agreed. The D.C. Circuit has to issue an opinion if we're gonna get these funds obligated by September 30th. That's not all the funds, but a, a big chunk of the funds at issue are September 30th. And notably, they were not rescinded by the recissions package that Congress enacted recently, so they're still live.

Benjamin Wittes: Well, I have only one thing to say on this subject, which is tick, tick, tick, tick, tick. All right, let's talk about Judge Carl Nichols decision in AFGE v. Trump, which is a chal, one of the challenges to the USAID dismantling. Take it, it's, he dismissed it today or yesterday. I take it, it's not a big surprise at this point.

Scott Anderson: Not particularly. You know, this is a case that, if you recall, it was actually the, I believe the very first legal challenge filed after dismantling of USAID started. And it is a broad challenge to the dismantling of USAID. The plaintiffs are essentially arguing, look, this whole bundle of, of interrelated actions the Trump administration has taken including terminating personnel, terminating grants, all these other things, all amounts to dismantling the USAID.

But because the main plaintiffs were two sort of labor groups, labor union, and a association of PSCs that I, I don't think it's technically a union, but it's kind of a representative group as well as Oxfam a, a group that doesn't actually directly get a lot of grants, but essentially was arguing that because it benefits from a lot of direct grantees of State Department money, it had standing to challenge this dismantle of USAID.

They kind of came together in a coalition to launch this lawsuit. But it's always been at a higher level and a little less specific than like the AIDS Vaccine Advocacy Coalition case we just discussed, which very specifically targets specific grants and cancellations. In this case, Judge Nichols denied a preliminary injunction way back in February or March, I believe, on similar grounds that he ruled on today.

Today, he basically said, look, the labor union representing USAID employees, all those are employment claims that have to go through the MSPB process, I don't have jurisdiction over those. For the PSC Association claims I, I don't, can't say confident, these have to go through the MSBP process that I can deny that we have jurisdiction, but I think there may be jurisdictional issues and so I'm gonna deny a preliminary injunction, but did not actually dismiss those claims. There's gonna be additional litigation on those claims presumably, sorts through. Okay, do I think I have jurisdiction or not? How do these relate to this statutory regimes for resolving different sorts of claims?

And in regard to Oxfam, he essentially denied that. They had standing said, you can't stand in for direct USAID grantees to assert and challenge these actions. The only thing I think is, is, is notable here, is that it is notable. I mean, this is a big defeat for people who are combating the dismantling of USAID.

But I don't think it's a surprise. Judge Nichols came out where he did because of the PI. What is notable here that I think is a bit of a mistake or a problem for Judge Nichols potentially, although wait and see, is that he relied in part on Widakuswara. This is a case that we've been following for a couple weeks here where the D.C. Circuit en banc correctly, he notice this correctly, did essentially allow, allow a stay of a preliminary injunction on barring, terminating employees for Voice of America and U.S. Agency of Global Media injunction to remain state basically said, hey, we're not sure the district court has the authority to bar the government from firing these people at this point.

And that's part of the reason he said, hey, you don't, I, I don't, not sure I have jurisdiction over this. As in Widakuswara, they basically strongly implied this all has to go into MSPP and related sort of processes. What he misses though is the issue I wrote about in Lawfare a month or two ago and I think is really central, which is that the D.C. Circuit en banc went the extra step to say, but if the termination of people interferes with your ability to meet your statutory duties, that can still be enjoined by the district court.

And as far as I can tell and I won't say I, I went through the opinion with a fine tooth comb, but I actually read it cover to cover 'cause I was looking for this, it doesn't look like you really dealt with that part of that opinion or really an analyze the extent to which the termination of USAID personnel actually interfered with its statutory duties.

And that's actually the basis USAID, or the D.C. Circuit en banc, at least by my reading, has drawing suggested it's gonna look at these cases. So there may be a narrow little sliver basis for appeal that people may be able to pursue in this case, but we'll, we'll have to wait and see. And it's possible I'm not reading the cases correctly, so I could be wrong in that regard.

Benjamin Wittes: Alright, let us move on. Speaking of Widakuswara to, Widakuswara v. Lake and the Lake, of course, in Widakuswara v. Lake is one Kari Lake who has been installed at the head of USAGM, which is the parent company of organizations like the Voice of America and Radio Free Europe. We got a big fight in front of us, what's going on in Widakuswara, which is the coolest named case in our repertoire, we've all learned to pronounce it. What, what's going on? What's the big fight?

Scott Anderson: I would like to re motion to rename this Patsy's case 'cause of course it is named after the plaintiff Patsy Widakuswara which is a little easier to say but I, I, I like saying it. I think I've got it right now so I'm gonna stick with the original caption. So this is another case to watch closely, like AIDS Vaccine Advocacy Coalition.

We have still have a D.C. Circuit appeal that's not gonna get resolved until September the briefing lasts through then. But meanwhile, the district court is still wrestling with this exact question we just had, which is that the Voice of America has briefly tried to fire most VOA employees has terminated a bunch of contracts, or they actually had to repeal most of the RIFs they issued for evidently some unrelated administrative reason that they have not corrected them yet and I understand most of them have not been reissued since they were initially rescinded a few weeks ago.

But regardless, it's been very clear they intend to terminate everybody, almost everybody at VOA, and have dramatically wound down their activities reducing them to basically rebroadcasting one America News Network and really, really limited bandwidth of activities in certain markets. And we saw this exchange where the plaintiffs were arguing, hey judge, the agency here is not doing what the D.C. Circuit strongly suggested. It still has to do, which your preliminary junction still stands. It still obligates to do, which is to meet its minimum statutory duties because if it's terminating these people, it's terminating this program it's bringing it way below its statutory duties.

They filed a motion to enforce the preliminary injunction a few weeks ago. The judge said, you know what? You're raising some really good questions here. I can't rule for you yet 'cause I need more information, but government, here's a list of questions for you I really need more information on, very pointed questions about very specific parts of Voice of America's operations. The government came back with a response to that this week, and I have to say it was remarkably lackluster.

There's an eight page statement by Kari Lake basically saying, yeah, no, we did exactly what we said. We shrunk everything down, we don't think we're obligated doing this. We have no broadcasting in Africa. We have one to two people for each continent, one to two people in studio production, we have 28 people working on Persian news that change from the last time we had these filings. 'cause we bombed around in the interim as they staffed back up their Persian language news program, but other than that, it's reduced to almost nothing. And they very clearly say we think this is beyond our statutory duty.

The long and short of it is, is that this is just directly pitting up the hardest question that this judge is gonna have to address, which is to say what is actually necessary to meet these variety of statutory duties that are put on U.S. Agency for Global Media and the Voice of America. How much deference do I need to give them in their interpretation of those statutes and what it means to be the statutory minimum, particularly 'cause a lot of the stature obligations are there for the agencies, but they're a little broadly worded. They're kind of mission statementy sort of obligations.

It's a really, really hard position for a judge to be put in. It is where, at least in the D.C. Circuit, a lot of these agency dismailing cases are headed. If I'm reading Widakuswara right, and where the court seems to be, and this is the place we're gonna see it first. At this point it's fully briefed, it's up to the district court judge to say, am I gonna try enforce my preliminary injunction in additional ways here? So again, there's another case to keep your eye on. I think this is gonna be the front of a very big legal fight and the tip of the spear probably in the next two weeks.

Benjamin Wittes: All right. Finally, I don't know if it counts as a federal agency.

Scott Anderson: Evidently

Benjamin Wittes: Part of the argument in the case is whether it is a federal agency, but the control of USIP keeps shifting hands. First, it was ripped away from the fabulously named President George Moose. Then it was, the keys were handed back to Ambassador Moose and the, that's really his name, and his and the USIP staff came back and then in response to a D.C. Circuit ruling, the keys were once again torn from the hands of Ambassador Moose and the staff was, I believe, kicked out of the building again.

And it is, I wanna say the best building for a think tank in Washington. And if, I, I support the staff of USIP and their struggle for control over it, but if, by the way, the government wins, I want that building for Lawfare. Scott, what's going on with USIP, who's in control this week?

Scott Anderson: Well, sadly for USIP and its employees, I think we've reached probably the end of the road for the USIP fight, potentially, at least for a while. We had a case where a panel of the D.C. Circuit did in fact reverse or stay, I should say, the preliminary junction issued by the district court judge that had briefly returned control of USIP, back to its original leadership and to its employees.

And they stated on the basis, not in a written opinion interestingly, but in a somewhat lengthy kind of two page order where they basically said look USIP is a federal agency, it's not a nonprofit corporation. That's the best way to understand it and that it engages in foreign affairs functions and those are so central to the president that any sort of restrictions that Congress may put on it are unconstitutional on the removal of its board members, and therefore the president can remove its board members or at least likely can. Again, those all still preliminary. It's not any sort of final conclusion.

And then they said Trump v. Wilcox, Supreme Court's earlier decision about Appointments Clause issues, said essentially, you know, the government suffers immense harm when it can't control its own appointees and control its own agencies, so that when we're debate of weighing these preliminary remedies, the government's harm should generally weigh quite heavily in these cases.

And on that basis, the panel opinion said, hey, you know, we are not going, we're not gonna let this preliminary injunction rest, we're gonna stay it, you can take back control of USIP while we're resolving these, merit, the merits of these decisions. Trump administration USIP immediately appealed to an en banc D.C. circuit and en banc D.C. Circuit came back this week and said, no, we're not gonna vacate or reverse the panel opinion, the panel opinion stays. I think this is really unfortunate.

And I think this is wrongly decided kind of separately from the actual merits. Because in my mind, what you see happening here is you actually see the D.C. Circuit getting ahead of the Supreme Court and recrafting the scope of the Apportionments Clause pardon me, the Appointments Clause, which is not what they are really supposed to be doing.

We have a lot of established precedent, not to mention years and years of activity of USIP being a valid allocation of potential removal restrictions, I mean, able to operate this way. We have plenty of case law that says that seemed okay with a lot of these removal restrictions for a long time.

It's obviously being disrupted, there's obviously lines being drawn, but the Supreme Court hasn't reached this sort of case yet. It strikes me as odd and not a great posture to start getting ahead of it and start guessing, well, how far does it gonna go? Particularly in an area like here where you're saying, oh, because this touches on foreign affairs, even though this looks a lot like it might be a nonprofit company or organization as opposed to a federal agency, we are gonna go ahead and say, this touches on foreign affairs, this has to be presidential 'cause Congress can do lots of things related to foreign affairs, including foreign assistance and lots of things like that which by the way, much more like what USIP actually does—they sort of diplomacy or the sorts of things that you know, it were pointed to by the court in its opinion.

I think it's really unfortunate I suspect the en banc D.C. Circuit had more reservations than are advertised, but they don't like going en banc. It's not something the D.C. Circuit likes to do, they've done it a fair amount recently. And my guess is they said this one's close enough to the line that we're gonna defer to the panel on this. And it was a fairly unfriendly panel, but it's the sort of luck of the draw that's really, really tragic for USIP and USIP employees and by the way, the weighing of harms is absurd in this case 'cause USIP does if we were to continue operating, it would do absolutely nothing to interfere with the president's conduct of foreign affairs and the fact that the courts are satisfied by simply referring to that without accepting the fact that that was a decision in one institutional context regarding one weighing equities and they're not doing the work to weigh other equities, it's a little embarrassing.

This is a very bad opinion and a bad outcome, but unfortunately I think it is a final one unless they appeal to the Supreme Court and I think they should 'cause I think they should get a final decision on where the exactly the line lies around these sorts of agencies.

But it's not clear to me that the Supreme Court actually disagrees. And they may end up denying certain, in which case this is where it's gonna rest until the actual merits decision comes up through through the

Benjamin Wittes: Two years from now.

Scott Anderson: Appeal process. Two years from now. Yeah, maybe longer.

Benjamin Wittes: Alright, well, to Ambassador Moose and our other friends at USIP: godspeed. And you know, we are jokes about names aside, and you're building aside, it's a freaking crime what has been done to USIP and you know, we try to keep things lighthearted in this, but that's a building full of people that does good work on hard issues, including all kinds of conflict management stuff in parts of the world that lots of people don't care about, including in the rest of the U.S. federal government.

And there are a lot of, a lot of people who've done a lot of good work at USIP over the years, including my wife who was, was worked there on Middle East conflict stuff for a number of years it’s before coming to Brookings years ago. It's a, I mean, it's a crazy thing to wanna dismantle USIP, but also the way it was done was really obnoxious to a lot of hardworking people, which doesn't separate it from where, where the way a lot of things have been done over the last six months.

Alright, speaking of things that are being done in obnoxious ways let's talk about the ICC sanctions case Smith v Trump, which is being litigated in of all places, the District of Maine, and we saw a preliminary injunction granted this week. Scott, what's going on there?

Scott Anderson: Yeah, I feel like one, there's one really, really happy district court clerk in the District of Maine who like took national security law, international law and finally gets the case, the one case coming through that district on these issues. There's a case brought by two human rights 

Benjamin Wittes: Yeah, there was a, there were a couple material support cases in that district.

Scott Anderson: Not every year, though. The clerks are only there for a year or two. You gotta get the one. You got 'em while, get 'em while you can get 'em. Yeah. I say from experience and, and this is a case where we had two human rights advocates suing, who regularly coordinate with the office of the prosecutor in particular, as well as other elements of the ICC, which has been targeted by the Trump administration, by pretty comprehensive sanction for c pretty comprehensive sanctions.

And they basically said, look, this goes overly broad in infringing upon what we argue is our First Amendment rights. We have a right to engage with you know, express our views to take very activities related to advocacy and implementing our views and then, then to share that information with the ICC. They also made a lot more, more specific arguments about the International Emergency Economic Powers Act or IEEPA, where specifically they pointed out, look, a lot of what we're doing is like sending,

Benjamin Wittes: Did you pronounce that correctly, Scott?

Scott Anderson: IEEPA? IEEPA, IEEPA

Benjamin Wittes: IEEPAAAAA

Scott Anderson: It's a great acronym and one we'll hear a lot more of 'cause it's also what they are using for the tariffs currently in the Trump administration. But in this case, it's being used for sanctions one of its more kind of common well established uses. And that has something called the Berman Amendment in it, which for a variety of kind of speech protective reasons, Congress carved out informational materials in related categories from IEEPA restrictions.

Basically, the president can't regulate those using IEEPA. And in this case the, the plaintiffs argue, well, that's basically what we're doing we're giving information to the ICC in a lot of cases, you can't really restrict that in this sort of context. It's not like we're transferring the money, we're transferring them information about cases.

So, you know, long story short in this case, the court found this persuasive and basically said, hey, you know, I think you're right, I'm not gonna reach the Berman Amendment question. I'm not gonna reach questions of whether this is kind of like facially overly broad in regards to the First Amendment.

Generally, these restrictions in this executive order are not nearly tailored enough to the state interest to avoid unduly infringing upon your First Amendment rights and therefore I'm going to invalidate it as it applies to those scopes of activities. I will note, I think the my vague recollection is that the First Circuit has actually fairly friendly First Amendment jurisprudence in this is probably why this case may have been brought there which may be leaning into this 'cause they're citing a lot of First Circuit precedents, particularly around questions of kind of ripeness and scope of, of the effect of the chilling effect on the First Amendment.

More fundamentally in this case, it doesn't wrap very much with Humanitarian Law Project that Supreme Court opinion from 15 years ago in a separate kind of related sanctions context is about the FTO regime, which basically said, hey, look, if you're coordinating with a designated terrorist organization because all money is fungible, you are essentially subsidizing their activities and therefore the government's free to prohibit that if it thinks it's an enemy organization. That's very clearly the logic the Trump administration's invoking here.

Maybe there's reason to think that doesn't apply outside the terrorism context, or a better argument may be because I, you know, Congress did not pass judgment on this particular executive order just on IEEPA generally, which has nothing to do with the ICC in of itself, that the kind of joint branch difference that Humanitarian Law Project invoked doesn't extend to this case. There are ways you can distinguish it, but the district court judge didn't really seem to wrestle with it at all. I suspect that's gonna be an issue the government's gonna bring up on appeal, and they almost certainly will appeal this.

Regardless, it's a victory for folks wrestling who deal with the ICC, the International Criminal Court in this context, and a blow to the sanctions that the Trump administration has opposed against the office of the prosecutor. And notably they amended their complaint since this decision was issued. I think to address the fact the ICC sanctions have been somewhat broadened as, as well I don't think it actually affects the underlying outcome and they haven't actually requested for an adjustment to the preliminary injunction yet, but we'll have to wait and see if there may be a little bit more to percolate even at the district court level before, if and when this goes up on appeal.

Benjamin Wittes: All right, Roger, let's talk about Kilmar Abrego Garcia. We had big wins for him: He's gotta be released and he is gotta be returned to Maryland according to two different district judges one in his criminal case and one in his civil case. Is he a free man walking the streets of Baltimore, soaking in the sun?

Roger Parloff: Not, not just yet. But we, we did agree, James was gonna take the lead on this, and then if I have tweaks afterwards I will pipe in.

Benjamin Wittes: Alright, James, is he walking around the streets of Baltimore soaking in the sun?

James Pearce: I fear that, that he's not, although with the, the, the way the sun is pounding down, you know, maybe that's not the place he'd wanna be, but no, I don't, don't wanna make, make light of the situation.

He certainly did have a successful week in both the criminal case in the middle district of Tennessee and Nashville where top line, the district court judge found that the government could, could not, had not established a basis to detain him although on slightly different grounds than the magistrate judge had, which I'll, which I'll discuss in just a second.

And then in the civil immigration, or really habeas matter in the District of Maryland where Judge Xinis ruled on the emergency motion that, that he had filed, it was a, a, I thought, a pretty aggressive ask and to say I'd like an order that the government can't remove me at all that they, they can't hold me in ICE custody that I have to be returned to Maryland, and, and the district court there gave him quite a bit, I think, of what he wanted, though, not, not quite all of it.

Benjamin Wittes: You've gotta be careful where he walks, basically. Yeah. So, so what are the rules? Un, under what circumstances are the, is the government not allowed to take him into immigration custody?

James Pearce: Well, so, and I should preface this by saying, as far as we know, he is currently in U.S. Marshal custody in Nashville. And that is at his, at his, on his own motion that the government did not contest. And that is because after he won, or at least after the, the, the district court judge in the criminal case found that he, that the government couldn't detain him, that, that judge sent it back to the magistrate judge who entered the order Abrego's own order to, to stay in custody. I think he had filed that order because he was worried based on statements government attorneys had made both in public or the government had made in public government attorneys in front of Judge Xinis that he would, that the government would remove him.

Benjamin Wittes: Okay, so lemme, lemme just get this straight. This guy. I'm not, this is not a joke, this is literally the case. Moved a United States District Court to keep him in criminal custody to protect him from ICE.

James Pearce: I think that is in fact an accurate statement of,

Benjamin Wittes: That's, that's literally accurate, right?

James Pearce: Yes. That, that's, that is, that is how

Benjamin Wittes: That scene, that scene where Charlie Chaplin gets released from jail and it's in one of the silent things and he, he says, plantiffly, can't I stay here a little longer? That's actually Kilmar Abrego Garcia.

James Pearce: I, I think that is, that is very much, very much true. And what will be interesting to see is whether Abrego and his attorneys move to dissolve his request to stay in Marshall custody in light of what the District of of Maryland Judge Xinis, judge did in a ruling the same day also on Wednesday. So I think it's worth kind of spelling that out a little bit, bit.

Benjamin Wittes: So let's talk about Judge Xinis.

James Pearce: Yeah. So, so as I mentioned, the, the motion that Abrego filed was to try and get relief, including government, you can't, you can't remove me at all. That was the sort of the biggest ask. And then the, the sort of other asks, including they cannot, ICE can't take me into custody, I have to be returned to Maryland. And the, the court did not say and addressed just in a footnote toward the end that it was entering an order that precluded or prevented the government from ultimately removing Abrego, and in fact, at one particular point said, look. As long as the government files the fol, follows the rules, excuse me.

And, and I'll explain what the rules that the court sets out are and, and, and moves to remove Abrego to a country other than El Salvador and provides him with adequate notice in so doing, like, I think, I think the order says something like the court has nothing to say about that. So it was quite, quite clear on that point.

But what the order does require is that the government cannot put Abrego into ICE custody in Tennessee that he does need to be returned to Maryland where he will be not in ICE custody, but under ICE supervision, which was, and I maybe should have started with this, but all in service of restoring the status quo ante the status quo before his unlawful and improper removal to El Salvador.

So, so those protections would in theory mean that should Abrego leave U.S. marshal custody in in Tennessee, he, he should be able to return to Maryland he again will have to check in with ICE as he was doing before he was ever, ever removed and, and, and thus also cannot be placed into ICE custody.

The other part of Judge Xinis’s order is to require the government to provide a 72 hour notice to Abrego if the government decides to initiate removal proceedings, that notice has to a, say we're initiating removal proceedings, and b, let Abrego know to what country he is being removed as, as already mentioned and as those who have followed the along know there is withholding of removal to El Salvador, but in, in theory, he could be removed to any other country that will agree to take him. So that just puts Abrego in an interesting position. I mean, he's gotta kind of game through a couple of things.

One, how likely is Judge Xinis’s order to, to stand up the government? When I last checked the docket had not appealed, but, but they might. And even if the terms of the orders stand up, how likely is it that he shows up in the District of Maryland and he promptly gets a notice that says in 72 hours, we are consider considering shipping you to South Sudan. If you've got any problems with that, you know, you better, you better get yourself a litigating. So, that is kind of where, where he stands.

There's one other kind of updates to be, to be aware of here which is back in the criminal case in Tennessee all of what I've just described, all of those decisions were Wednesday, so two days ago, perhaps unsurprisingly though, as a former government attorney, somewhat depressingly the, I think mostly officials from the Department of Homeland Security went on various sort of social media outrage tours, calling the, the various rulings on hinged or lawless or whatnot and that led Abrego to file in front of Judge Crenshaw, this is the district court judge in Tennessee, essentially a motion to gag the government as in violation of, of commenting on an ongoing criminal case, which they shouldn't be doing and, and hopefully Judge Crenshaw will find a way to put a stop to that.

 So collateral to kind of some of these harder decisions for Abrego and what is going on, but I think very much illustrative of the government co government's conduct through, in both the criminal and civil versions of Abrego’s cases.

Benjamin Wittes: All right. Speaking of misconduct by the Justice Department. Let's talk about the politicization of the Justice Department, which proceeds a pace on many fronts. We have a new whistleblower in re, the matter of Emile Bove, but we don't know the person's name and we don't know the person's allegations. Is that right, James?

James Pearce: I think that is, this is relatively recent news that's, that's come out I think very much in connection with the pending and potentially very soon vote on Emil Bove’s ascension to a Third Circuit judgeship, and as I understand it, and, and there may be others including Roger, who've, who've seen additional information, but we've learned that there is an additional whistleblower from the Justice Department that can corroborate Erez Reuveni’s statements in his whistleblower complaint and of course, many will remember the, the statements that that Bove said things like, “fuck you” to the court, or “we will need to say, fuck you to the courts,” to, to kind of, implement the immigration agenda that we want.

The particular news that I saw suggested that the, this whistleblower, in addition to corroborating what Reuveni has already said would, would lend additional support to the claim that Bove was not truthful during his confirmation hearings, but I haven't seen any reporting on precisely the, the point that the whistleblower's allegation or set of points would, which tends to, to call into question from Bove’s testimony, but that's I think what we know.

Benjamin Wittes: I have seen, however, that the whistleblower has been trying for some days or weeks to get in touch with Republican congressional Senate leadership/judiciary committee leadership and has been ignored. Is that, is that a fair summary of the matter?

James Pearce: I, I think it is. And I see Roger may have additional things, but, but I think that that additional point is, is what I've also seen in reporting.

Roger Parloff: Yeah, that's, that's what I read. I heard as well read as well. Well,

Benjamin Wittes: I believe the vote is scheduled for next week. And so, if anybody on the Republican Senatorial side cares whether Bove told the truth before the Senate Judiciary Committee, and I would just like to remind everybody that he, said he had no memory of a meeting or did not recall a meeting at which he reportedly said that they might have to tell the courts to go fuck themselves, which is not the kind of thing when I say that sort of things about courts in meetings with lots of people, I do tend to remember it having done it that often, but I do tend to remember having done it, but Mr. Bove doesn't remember that sort of thing. And so, you know, if members want to have a opportunity to resolve their own doubts that they may have, as to the veracity of Mr. Bove’s testimony, tick, tick, tick, tick, tick, tick, tick

Roger Parloff: One other thing that, that guy, the new whistleblower, it, it sounds like if he's corroborating Reuveni this also reflects on Blanche, Todd Blanche, who, who is the first one to come to Bove’s defense on Twitter and to say, I was at that meeting and it's utter falsehoods what he's saying, and everyone else at that meeting will denies that this occurred.

And it, it has developed that apparently he wasn't at the meeting, he popped his head in, he said something, or at least according to Reuveni, he whispered something into Bove’s ear and then left and wasn't there for most of the meeting, and the, this reflects poorly on him as well, if it's true.

Benjamin Wittes: Yes. All right. Let's talk about the saga of Alina Habba a woman about whom ballads will be written. The, the ballad of Alina Habba. She was the act, the interim U.S. attorney. She's removed. She's now the acting U.S. Attorney in New Jersey. I can't keep up with it. What's going on, James?

James Pearce: Yeah. This, this is more, more shenanigans about interim and acting U.S. attorneys I think on, on last week's Lawfare Live, talked a little bit about what was happening and, and ultimately happened with the U.S. attorney position in the Northern District of New York.

And, and, and we, I think at that point we started to see some initial. Questions about what was happening with Alina Habba in New Jersey. But here, here is, here's my understanding of, of, of where things are. So of course she was put in as the interim U.S. attorney and held, held that position and consistent with the statute, I think it's 28 U.S.C 546, was coming to the end of her term. And at that point it is up to the district courts to name assuming that of course a U.S. attorney has not been, not confirmed by the Senate to name a, a replacement.

Now some people have argued that that process is inconsistent with the Appointments Clause. It is consistent with the appointments clause on the government's long view that U.S. attorneys are not principle, but are in fact inferior officers. That's the position that the government has taken in, in Office of Legal Counsel memos, it's a position that a couple of courts of appeals have, have reached. That distinction is important because for inferior officers, unlike principal officers courts of law in addition to the present and certain department heads can name sort of replacements for for, for those inferior officers like a, like a U.S. attorney. So, Alina Habba is coming to the end of her, her time.

It's up to the, to the U.S. District Courts to decide ssentially whether to keep her in her role. And I will say that it, the typical, I would say more often than not, much more often than not, frankly, a thing that district courts do is that, that the, the Attorney General has named an interim U.S. attorney, or the president is named an interim U.S. attorney, they hit the end of their time and the, and the U.S. District courts think, okay, this person has done, you know, a, a fine job, we've kind of kept the, the, the, the ship moving forward, done things in the, in the normal range of, of federal prosecutorial investigative activities, you know, signed that person on for essentially until the confirmation of the actual named position.

But we've seen both when we discussed last week, the Northern District of New York, we saw again here the district court bench, which is not a rubber stamp, basically saying, you know, we don't, I mean, they don't, they don't, they don't, I'm, I'm glossing a little bit and adding some editorializing 'cause they don't, they don't actually say, we've decided, we, here are the reasons why we have not re-upped Alina Habba or the, the Northern District of New York individual, but they say through their, through appointing someone else that they don't have faith in her. So they do that the middle of this week and that promptly gets responses, I think both from the Attorney General Pam Bondi and possibly Blanche.

A lot of this rhetoric, like we're not gonna stand for lawless or interfering judges, of course statements that are, that, that seem totally oblivious to the actual statutory framework, which has the district court judge doing, Judge is doing exactly what they did, which is appoint someone and gives them that the independent opportunity to appoint someone if they don't have faith in the, the acting individual or the interim individual. So then what the, what the, what the government does in response or, or the executive branch does in response is, is two things.

One is, and I should have said this by way of background, that many folks will probably already know this. Alina Habba, in addition to serving in the, in the interim role, was also the nominee for the permanent role. And in that position, she would not be able, if you, if you switch statutory frameworks and started acting under the Federal Vacancies Reform Act to come in as an acting, so what the administration did today was withdraw her nomination for the permanent role.

Then I think she was a appointed as, as the first assistant and then named as the acting. I think the real collateral damage here is from, from someone who was, by all accounts, a, a, a good, accomplished prosecutor that the district court bench had named as Habba’s replacement. And it appears from reporting that she's been removed not only from that, the role as the, the, the sort of acting U.S. attorney, but fired from the department. I, I haven't gotten full confirmation of that from the reporting, but eith, either way, I think it's, it's a consequence that would, that she did not deserve.

And the, the, the sort of upshot of all of this is that Alina Habba now has under the Federal Vacancies Reform Act, different statutory scheme, 210 days to serve as an acting US attorney, not to be confused with the interim U.S. attorney, which she was before. I believe though that will not enable her to get a nomination or at least a kind of a continuous period, a nomination to serve as the permanent U.S.

Benjamin Wittes: Correct.

James Pearce: You know, ultimately Senate confirmed.

Benjamin Wittes: Alright. But I wanna, I'm, I'm now a pissed off district judge at, in New Jersey, and it seems to me that if you're a district judge, maybe the chief judge of the relevant district, you might say, wait a minute, the statute says that we get to appoint the person. We did not have confidence in this woman.

Can't imagine why. And we appointed somebody else. That person has now been fired and this person has been in, you know, gone through ma, the president has gone through machinations, or the attorney general has gone through machinations to install her. Do you have any doubt as to whether her appointment is lawful and might a district judge in that jurisdiction just say strike an indictment that her name is signed to. What, why is the government confident that she can be the acting U.S. attorney under these circumstances?

James Pearce: Yeah, I mean, it's a good question. Of course like a, a district court judge there should not sue a sponte take that action, but I did see some reporting that suggested

Benjamin Wittes: Oh but it’s, but it's a free card for any defendant to play.

James Pearce: Oh, yeah. I think, I think defendants will be, will be filing these challenges and, and I did see a reporting suggesting that the, the U.S. Attorney's Office for the District of New Jersey decided to, to not have, not seek grand jury indictments or other filings that would require the US attorney's signature or informa in these last couple of days.

So as to avoid potential challenges during that period. You know, I, I do think we'll see those challenges. You know, the, the kind of realpolitik question of whether judges being pissed off that their authority has been thwarted, should, would play into how they assess the legal merits of those challenges.

You know, I'd like to think that's not true, but, but, but it might. I, I do think that these, these machinations, as you put it, are shenanigans, like I, I'm not an appointments clause expert, but I do think they are lawful, but you know, I think there are non-trivial arguments on the other side. But see the bottom line, I mean, it, it just, it seems just as though, and this is very much on brand, that the administration is just looking for fights and looking to try to, you know, see themselves as fighting the judiciary and, and fighting judges and, you know, you can add whatever adjectives you think the administration wants—rogue, unhinged, lawless—and so for the administration, the sort of potential legal challenges are less important than the public relations battle is kind of my read on the situation.

Benjamin Wittes: All of which would be merely juvenile if the fight were on the basis of somebody whose qualifications were a little bit more elevated than Alina Habba’s. Alright, meanwhile speaking of suing, of, of lawless reckless out of control judges, the, the executive branch has been suing the court in Maryland because, why not? And the court responded, I believe in Tennessee or West Virginia, which, what state is this being litigated in?

James Pearce: So it's still in one of the district courts in the, in the Fourth Circuit. It is in the Western District of Virginia. Not to be confused with any of the judicial districts in West Virginia. And it is it is still captioned as though it is in the district of Maryland, but, but all of the judges, all of whom have been sued, have, have recused, and it's in front of a, I think Judge Cullen is the judge who's presiding there. And yeah, what we got this week was a response filed by, by the judges. It was a res, it was two things: it was both a response to the government's motion for a preliminary injunction, as well as an independent motion to dismiss the prosecution. This was done by, by Paul Clement and Aaron Murphy's Law Firm.

Obviously you know, extremely talented, capable attorneys and in my view, make a, make a pretty compelling case both on kind of practical grounds and on doctrinal grounds as to why this case has no business being in court at, at, at all. Sort of as a practical matter, they do a nice job in likening, and I should may maybe by way, very brief background, the, the suit is over essentially a standing order that in certain in immigration, habeas petitions puts in place an automatic day and a half or business day and a half short stay so that, you know, the courts can actually get their arms around what the issue is in front of them before the government moves to remove someone.

And of course, in the context of the last few months things that, that, you know, the importance of, of, of that type of, of protection is quite important and something that even that the Supreme Court has, has recognized you know, there some of their later pronouncements notwithstanding. But, but certainly in the case I think originally known as AARP and now maybe WMM said something like, you know, don't, don't remove anybody pending further order of the court. So the filing just does an effective job of saying, look, this is, this is a basic functionally and administrative stay that gives courts the chance to, to take the actions that courts need to take to ensure that all rights are protected.

And look, if there's not a viable challenge then quickly the, you know, the government will be able to remove folks and, and the filing that the, the Clement filing does a nice job in really challenging the kind of heavens are falling type of claims that the government is making like, oh, this is fundamentally interfered with and undermined our removal agenda, saying, look, it's put a, a few days pause on some of these cases, but when it is, you know, courts get, they quickly get to the matter and if, if it's not meritorious, then removal proceedings can happen in turn. So that's sort of the practical point. Sort of doctrinally, there are, I think, pretty compelling arguments that, that the case is not justiciable, there's, there's no, there's no cause of action.

I mean, the government's complaint kind of relies on, on equity and maybe the, you know, the All Writs Act, but certainly isn't clear, and the filing does, I think, an effective job in, in pointing that out. It talks about how you know, even if you got to, to the, the merits, there, there are other ways that the government should have challenged: you could have challenged them in individual cases, you actually could have filed a challenge to the judicial council for the Fourth Circuit.

By the way, there's sovereign immunity protections that don't allow you to su, to sue the whole court. Their judicial immunity now we talked about that with, with, you know, the Judge Duggan case in Milwaukee. That's a criminal case, no judicial immunity. This is you know, a, a civil matter judicial immunity would apply and certainly a kind of standing order is, is fully within the, the scope of, of judicial acts.

So, it'll be interesting to see what the government comes back with in response. But, but to my mind I think it's a pretty compelling case, again, both practically and, and legally as to why this this case should, should, should be quickly disposed of and we should move on with our lives.

Benjamin Wittes: Alright so Tulsi Gabbard last Friday released a bunch of documents that didn't do anything like what she said they did, but she said they showed a treasonous conspiracy on the part of the Obama administration. The one who has written about this and, and about Pam Bondi's response and the investigation she didn't order up is me. So, but it feels awkward to ask myself about it, so if either of you guys wants to ask me about this, I'm happy to talk about it.

Roger Parloff: Ben, could you tell us a little about, catch us up on what Tulsi Gabbard did and how Pam Bondi responded?

Benjamin Wittes: Why, sure, Roger, I'd be happy to.

Roger Parloff: That's why. I'm sorry. Go ahead,

Benjamin Wittes: Tulsi. Yeah, asking the tough questions here. Roger Parloff. So, look, this is basically a document dump of material that shows what, that the government and the intelligence community in 2016 didn't believe the Russians were hacking election equipment or count tabulation software or hardware, which of course, the intelligence community assessment in 2016 was very clear about.

What it said was that the Russians interfered with the election by hacking servers and dumping emails, the so-called hack and dump operation and by engaging in social media manipulation through the internet research agency and other means. And so what Tulsi Gabbard has released is a highly deceptive set of claims that in no way contradicts the so-called IAC.

And she knows that she is, I think it is fair to say lying much the way, the CIA director in his earlier referral was lying. And so she dumped this material in public, the president was very pleased with it. There's a kind of good New York Times story today about the background to this, but it was kind of obvious from his reaction.

And this put Pam Bondi in a sticky little situation because you gotta investigate it 'cause the president is thrilled and wants and announce that he wants Barack Obama to be gone after and go to jail, and he is, you know, committed treason and he's guilty. But you know, you can't just open an investigation of anything, you actually need a predicate to open an investigation, you need to be able to write down what you're investigating. And so, Pam Bondi issued a statement, I believe two days ago, that announced that basically they were putting to, they were putting together a strike force. But it actually didn't say they were conducting an investigation because psst they're not, and it really doesn't say more than that they're reading the documents that the DNI sent over.

And so I wrote a little thing just kind of outlining, dissecting what she does and doesn't say in this statement and I think if you read the statement carefully, you will agree with me that she does not announce an investigation. She announces that she's put together a strike force to read some paper presumably in electronic form, but and so that is what's going on, and I don't think it warrants more time than that.

James Pearce: Can, can I ask you one very quick follow up, though, of course, which is I think, you know, po, point taken, and, and I think there's a compelling case which you make, that there is in fact no investigation, but let's just assume that, that there were an investigation.

Do you have any thoughts on what potential charges might come into play and in, and in answering the question, I'd be curious if I don't know, concepts like presidential immunity or the statute of limitations seem like they might have anything to say under these circumstances.

Benjamin Wittes: Well, so let's deal with Barack Obama first, which is that, you know, if the concept of presidential immunity as articulated in Trump has any application to presidents of the other party, which I assume, at least for some justices it does, I wouldn't necessarily say that it does for all of the six members, but for some of them there's a neutral principle here. These are clearly immune acts, right? Ordering the intelligence community to issue an assessment, to look at certain questions to think about, and these are core executive functions.

And so I think Barack Obama has nothing to worry about here. Now, for the intelligence community leadership there are a few, few considerations. So first of all, to the extent that there's, that, the issue is most felonies. You could imagine having possible application here, the statute of limitations will have run.

Certainly, you know, any testimonies to Congress, right? Any, these are five year statutes of limitations, we're eight years after the fact. So you need something that's gonna extend, if you're serious about this, they're not, but if you were serious about it, you need something that's gonna extend. The statute of limitations.

So one of, one possibility would be espionage or the, the espionage act, some, some sort of leaks or something, disclosures. I haven't seen a whiff of a suggestion that there was any conduct like that going on, but that would get you around the statute of limitations problem just 'cause those are much longer in those cases. The more plausible strategy would be to use conspiracy law because with a conspiracy, you can run the statute of limitations from the last overt act of the conspiracy, right, and you could say the conspiracy continued through 2020 or 2024 or you could if you're in the business of inventing a conspiracy, you can have it run as long as you like.

The problem is that the people that they're most interested in, i.e. Jim Comey, John Brennan, James Clapper, were all out of government by 2015, so, or 2017. So what exactly is the conspiracy that they could still be involved in that could still be going on by five years ago? So I think if you think about this in a, in a logical way, like a normal prosecutor or a normal FBI agent, this is in the land of fantastical and silly, and it's not in the land of, by the way, there's zero evidence that any of these people conspired to do anything illegal. The evidence is overwhelming that they conspired to find a, you know, to, to follow the president's direction and figure out whether the Russians had interfered in the United States election. They discovered and reported on accurately.

By the way, no one's really contradicted the IAC and that they did their jobs as requested. And so I, there's no, you know, even if you use the word conspiracy, you have to be conspiring to do something illegal. You can't conspire to follow a lawful request from the president to produce intelligence product.

And so I, I don't think there's anything serious to talk about here at all. I do think the thing that is worth talking about here is the abuse of the intelligence community and the abuse of the Justice Department. But I don't believe there's a real investigation, there may or may not be a far sickly predicated investigation, but note still, nobody has explained to me what there is to investigate.

All right, we got a couple more things to go over and then I want to go to audience questions. So, Roger, we've had two major developments in university matters. One at Harvard and one in Columbia. Let's talk about the Harvard hearing. What happened at this hearing?

Roger Parloff: Yeah, this was Monday and it was before Alison Burrows, who's an Obama appointee in Boston. The this is the first of the Harvard cases, if you remember. And it began when it, it, it had to do with a list of grievances that Trump had some relating to the way it handled the Gaza protests and also some just relating to belief in that the faculty and students are two leftist and words also like, woke idiots and so on.

So in April 11th and of course the, the, the treatment of the way they handled the, protests was called antisemitism. And so on April 11th they, they presented Harvard with a list of conditions that they needed to agree to in order to continue to get funding. And one was hiring a third party conduct to conduct an audit of viewpoints of Harvard student body faculty and staff.

And then, depending on the audit results, they would have to hire a critical mass of new faculty and admit a critical mass of new students to achieve “viewpoint diversity,” “in each department field or teaching unit.” So three days later, the president of Harvard, Alan Garber declined, he politely declined. And a few hours later they froze 2.2 billion in funds, about 950 projects, federal funds. Harvard sued April 21st. So, and then the more punitive action continued after that. McMahon the Secretary McMahon issued a, a letter known as the, the ‘No more Harvard Ever’ letter which say they would get no more funding that would take, eventually lose 9 billion. At one point, Trump said in an interview, every time they fight, referring to Harvard, every time they fight, they lose another 250 million.

So, so the, the, the claims are First Amendment violations un, unconstitutional conditions on funding, retaliation for protected speech, and viewpoint discrimination. Title VI, because the title VI is of the Civil Rights Act, which gives you which does give the government a way to, to punish universities for race discrimination or antisemitism, but it, it, you know, you follow procedures and it's limited to you would, you would retract funding from things that are related to people who committed these offenses and, and you would, and the person would get due process.

And also the APA, which is arbitrary and capricious action. And, the as Steven Lehotsky was the main lawyer for Harvard, there were also AAUP as a party and, and, and so is the UAW, which is a bigger union than just automobiles at this point. But I don't think she's really gonna rule on, they were present and they argued, I, I think she's gonna rule on the Harvard case first because it's urgent. And

Benjamin Wittes: And, and Harvard did not seek a, a TRO here, they just were like, let's litigate this thing on the merits.

Roger Parloff: That's right.

Benjamin Wittes: Rather than, rather than try to get temporary relief, right?

Roger Parloff: That's right. But as a result, there is now an urgency because the, the, the way they do the funding cutoff and it's bureaucratic, and I don't understand the process, but it, it, there's a paperwork closeout that is supposed to begin, like, no, no, September 3 after which the, the funding freeze would become irreversible. So, she knows she has to get a ruling out before September 3. And so the, the, the, the, the, the gist of, of the argument was Steven Lehotsky was their main lawyer, pronouncing it phonetically, it's the, it's the constitutional third rail, or should be demanding that a university develop a critical mass of faculty or students who share the ideology of a particular administration.

The government's position and government was represented by Michael Velchik, who's a political appointee, he was Josh Hawley's senior council and legislative director, and he was also in the White House Council during Trump's first administration. Their position is that this is not about academic freedom, it's about money and there were these anti-semitic abuses and the government wants to invoke a provision of the CFR relating to how to terminate federal contracts and it says they can do it if an award no longer effectuates the program goals or agency priorities. So they, they eliminate $9 billion with that provision with no due process.

And that's their theory. The bigger theory, the more important theory, is because this is about money and because it's allegedly about contracts, it should have been filed in the court of federal claims. And that's a more serious question. And that's where I, I think the rub will be here, but she did talk a lot about just, she, she did not regard that as a hard question for her, in part because the first circuit ruled on Friday, you know, three days before the hearing in a different case. The, the NIH case, The American Public Health Administration v. NIH. 34-page ruling, it was a stay order, but you know, not a and it wasn't a one p, you know, one paragraph ruling it, it was thought out and they upheld this. But obviously it was the First Circuit that the court, Supreme Court stayed a while ago, if couple months ago in Depa, Department of Education v. California precisely on this issue.

And the, the government is taking the position, they're so sure that that that was a, you know, a shadow docket ruling, but they are taking that as they're so sure that that is now the law that a, according to the First Circuit, they didn't even cite the leading, dis decision on the merits of the Supreme Court on this issue: Massachusetts, Bo, Bo v. Bowen from 1988. So, that is the government's position. As far as the sort of the merits, her attitude to give, to give a feel for Judge Burrows, she said, you know, hold on a second. I am both Jewish and an American, so I hear what you're saying about antisemitism, but what is the relationship between cutting off funding for things like cancer research and Parkinson's and Alzheimer's and all, and all of that to combat, to combating antisemitism?

It, she also said it sounds to me like you're saying you can terminate the contract for any and all reasons including if the reason you're giving is a violation of the Constitution, and Velchik, more or less said that that was right. She, he said so the court should start by interpreting the terms of the contract these all include terminations for any policy reason, referring to that agent that CFR provision I'm talking about, and that was met.

 So anyway that's how it went. I, I, oh, and, and she finished by saying, and as a Jew, I'm going to say particularly, this is close to home for me, but I think the issue is whether there's a legitimate relationship between our distaste for discrimination and the approach that the administration is taking to the funding and to discouraging that sort of behavior and whether there's any sort of re, relationship between the two, I haven't prejudged it. So anyway, I, I think it's clear how she'll come out, but I don't know what the Supreme Court will do when this gets up to them on the port of federal claims issue.

Benjamin Wittes: Alright. So a different university took a very different approach this week. Roger tell us about Columbia.

Roger Parloff: Yeah. And I, I think administrators in universities seems a little split. It, it, they, they agreed to pay $221 million to actually, I'm not sure to whom, to the administration, and I don't know who that money goes to. They made a bunch of pledges which are sort of vague. And not in themselves, you know, offensive. The, the, the university asserts and claims that it has not they have not agreed to allow any influence on faculty hiring or firing or on admissions decisions or on the content of academic speech. There will be, it, it's not a consent decree, but there will be a resolution monitor who will see whether they are complying with the, the rules.

So it, it could have been worse, I guess, is the attitude that many academics are taking. And it, and, and they think that it might become you know, a template although the amount that, if Harvard wants to go that route, the, the amount would presumably, and I'm relying on reporting from the New York Times and the Wall Street Journal but presumably, you know, if, if Harvard wanted to go that route, they would have to pay a much steeper price. They they're talking about at least five more schools. New York Times names Brown, Cornell, Northwestern, Princeton, and I, Wall Street Journal mentioned Duke, so, I guess that's, that's where we are. Penn already made a deal that related to transgender athletes. I don't think there was, I don't, I don't, I don't, I don't know how much more was involved than that.

Benjamin Wittes: Alright, finally, one last issue before we go to audience questions. James, the Ninth Circuit responds to the Supreme Court's reigning in universal injunctions on birthright citizenship by issuing a universal injunction on birthright citizenship. I take it this is an unsurprising exploitation of the loophole the Supreme Court left for class action matters. Is that right?

James Pearce: No, not quite actually. So the, the class action piece comes into play, but it's a little bit different than that. So this is a case involving both state plaintiffs and individual expectant mothers. The individual expectant mothers were part of a class that had already been certified under the, the decision in the district of, of New Hampshire and so the Ninth Circuit actually found that they had had no standing and, and kind of booted them from the case. T

his was about the states and so the question that was left behind, or one of the questions left behind in the Supreme Court's ruling was kind of, is it possible that the only way to provide states with the type of remedy that they need would be a universal injunction as to the states? And that is in essence what the Ninth Circuit held.

Benjamin Wittes: On the theory that the states have, have equities that you cannot satisfy merely by saying you know, if you, anybody born in California or in x-state has to be given birthright, citizenship because some people born in other states are gonna move there and the state has to deal with them and figure out whether they're citizens. Yeah?

James Pearce: Yeah, that's, that's basically right. So, so clearly that they will need to do this for everyone that's, that is in Calif, California or Washington or, or some of, some of the various states. But, but as you say, the obvious fact of mobility and people coming in and out and the states need to establish systems and have sort of programs in place for, for people that is based on citizenship, means that the only type of relief appropriate is universal in, injunction.

The one interesting thing here, there's a lot, but, but, but, but there, there's a fight between the two judges in the majority, or sorry, a disagreement on a question of state standing, which is where I think the next big fight will be. So, the, the majority obviously holds the states have, have, have standing because their, their, their funds are at issue and they have to build systems to kind of, apply the and, and give out services.

The dissent written by Judge Bumatay, a Trump appointee, makes a an extended argument that the, the pecuniary harms and the sovereign harms that the states articulate aren't sufficient. I think really drawing from Justice Alitos. Concurrence in the birthright citizenship case. And, and, and at one point sort of explicitly says something like, we can't just tighten up relief on the one end only to loosen it on the back end.

In other words, tighten up this idea that universal injunctions are no longer available, only to now just open up standing in a way that you can kind of get, get around it. So, I think that that question of, of third party standing, associational standing will be another big fight that we will see.

And it wouldn't surprise me, honestly, if the government takes up the, this question—not on the merits, the, the majority has a long discussion of, of all the reasons on the merits why birthright citizenship is, is unconstitutional. The dissenting judge has nothing to say about that. I bet you the government will actually seek again to get the Supreme Court involved and make it all about the standing issue that the dissenting judge relied on here, but we'll see.

Benjamin Wittes: Alright, we have four audience questions. We're gonna deal with them quickly. Freda asks, and I have no idea what the answer to this question is, I have not looked at the, this executive order: the latest executive order, about the possibility of having civil commitment of homeless people considered a danger to themselves and others, and end housing first policy. What would need to happen to stop this EO, especially in states with Republican AGs? Have either of you looked at this executive order at all?

James Pearce: No, I have not, unfortunately.

Roger Parloff: No. Me neither.

Benjamin Wittes: We're gonna have, there's a little outside our area. We don't really do home, housing policy. But in any event, none of us is in a position to address this today.

The anonymous attendee asks, I know it's a borderline cynical framing, but does Congress have any power left with respect to the executive short of impeachment? And I'm not talking about the power this Congress has been willingly relinquishing? Answer: absolutely. Congress has enormous power, starting with the power of confirmation. We've just been talking about Emil Bove, but you know, the power to confirm is also the power, not to confirm. Congress has extraordinary spending powers and, you know, Congress and Judge Justice Scalia used to say, I think very wisely that Congress has all of the power if it can get up the energy to use it.

And, you know, if you simply said to the President, we are not authorizing funds for the White House helicopter to tell, take you to Mar-a-Lago, Congress has a lot of leverage over a lot of things and even the most extreme you know, Panetta and Russ Voughts do not contend that the president can spend money that Congress has forbidden the expenditure of, or that has not been appropriated. And so, you know, Congress has a lot of power, that's before you get to any lawmaking power.

David asks, any chance we'll see a case based on attainder make it to the courts? Mark Zaids seems to me will get dismissed on standing before it gets to raise substantive issues. Just Roger, do you have thoughts on this?

Roger Parloff: Yeah, I think, I think Zaid is the best chance. I, I'm not expecting it to be dismissed on standing. I, I do think there's a hurdle with just the, the substantive law in that area. It's very difficult to, to you know, the, the, the executive, it does have non-viewable power to not give security clearances as long as procedures are followed.

So, but, his is a good chance he did not ask for it at the preliminary injunction stage, but did plan to argue with that at the merit stage. So I think that's the best, the, the yeah.

Benjamin Wittes: But even that, I doubt if, if you got past the substantive law problems, which are the intense deference that the president gets on security clearance things it would be resolved on First Amendment grounds, on retaliation before you got to the attainder issues, right?

Roger Parloff: That would be the easier that and in fact, he was pushing due process. His lawyer, Abby Lowell, was pushing due process as his best as his best read.

Benjamin Wittes: Alright, finally, the anonymous attendee, maybe the same anonymous attendee, maybe a different one, asks, how long can Trump stall his Wall Street Journal suit before he has to drop it in order to avoid discovery? The answer, this one's easy: as long as he can avoid a motion to dismiss. Discovery starts after a motion to dismiss fails. And so you can go through the entire motion to dismiss briefing without, without any discovery, but then when you lose, if you prevail on the motion to dismiss as the, the plaintiff, which is if you survive it, you go into discovery and he's not gonna wanna go into discovery, in my view.

Roger Parloff: I, I, the question I have about that case is why he didn't file in Amarillo.

Benjamin Wittes: Yeah, it's an interesting question. Maybe because he was hoping for Judge Eileen Cannon we're gonna leave.

Roger Parloff: Yeah, he filed in Mi, Miami, so, I don't think, I don't think she would be in

Benjamin Wittes: The, the wheel for that.

James Pearce: She, she is on the wheel for Miami.

Roger Parloff: Oh, okay.

Benjamin Wittes: Well, we are gonna leave it there. James, who knows something about Judge Eileen Cannon. If you look on Lawfare, the first reference to James Pearce, I believe, is a headline by one Anna Bower: Pearce argues in Fort Pierce. And it is a story about James Pearce appearing in front of Eileen Cannon. We're gonna leave it there, folks, but we're gonna be back next week. Don't fret. We're gonna be back. There's gonna be a lot of stuff to talk about and it'll be a blast. Take it easy.

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.

Please rate and review us wherever you get your podcasts. Look out for our other podcasts, including Rational Security, Allies, the Aftermath, and Escalation, our latest Lawfare Presents podcast series about the war in Ukraine. Check out our written work at lawfaremedia.org. The podcast is edited by Jen Patja and our audio engineer. Our theme song is from Alibi Music. As always, thanks for listening.