Lawfare Daily: Trials of the Trump Administration, June 13

[Intro]

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

Quinta Jurecic: That its role be sort of sharply limited to sort of protecting federal buildings, but instead the judge issued a much broader order. Now he did stay that order until noon today.

Benjamin Wittes: In the June 13th episode of the Trials of the Trump Administration, we discussed the legality of President Trump's federalization of the California National Guard, the pretrial detention hearing of Kilmar Abrego Garcia, updates in Alien Enemies Act cases, and so much more.

[Main Podcast]

Hey folks, Ben Wittes here. It is Friday, June 13, 2025. It is 4:00 PM and you are watching or listening to or otherwise consuming Lawfare Live: The Trials and Tribulations of the Trump Administration. I am here with Quinta Jurecic in the Ansel Adams studio. Hey Quinta.

Quinta Jurecic: Hello, hello.

Benjamin Wittes: We're gonna have a special announcement about Quinta, Quinta Jurecic at the end of the show. James Pearce in the Cathedral Studio. Hey, James.

James Pearce: Hey, how you doing?

Benjamin Wittes: Roger Parloff in the famed Sconce Studio. Roger, it's, this was the original studio with a name.

Roger Parloff: Good to be here, Ben. Thank you.

Benjamin Wittes: And of course, Anna Bower in the blurred background room of her palatial mansion. This room, I think is somewhere in New York, which is odd for a mansion in Georgia.

Look, we, guys have a lot to talk about today, but the first item on the agenda is the court action over the occupation of Los Angeles by the U.S. military. So Quinta, get us started. Charles Breyer sounding exactly like his brother presided over a case yesterday. Give us the background. What do we need to know? And, what did he do and where can people watch the whole thing?

Quinta Jurecic: Yes. So, Judge Charles Breyer, who is the brother of the former Supreme Court justice, is a participant in the cameras in the courtroom pilot program. Which means that the whole thing was live streamed, which was awesome.

Unfortunately or fortunately, as the judge said, there was not a camera on him. So we don't get to, we don't get to see him, but we get to see both the advocates from a somewhat unflattering angle, I must say. They, they might want to tweak that for future arguments and I do not have the link immediately in front of me, but I will drop it in the chat as soon as I have a chance. And you can listen to the recording, which is very, very unusual.

And yes Charles Breyer does sound truly frighteningly like his brother. Like I would have believed that it was Justice Breyer come out of retirement had I not known that that was not the case. I have to say that I thought argument I was not expecting. Oh, I see Anna, Anna has dropped the link in the chat. Thank you Anna Bower. So everybody can, can take a look at that.

I had expected that California would have a kind of a tough argument to make here for a number of reasons. And I have to say it became clear, I think, pretty quickly right out of the gate that the judge was much more critical of the government's argument here.

The government was up first. Judge Breyer almost immediately really started pushing on these questions of, whether or not the Trump administration went through the proper process in using this statutory authority to call up the guard. The statute says that that order has to be issued through the governor. But Governor Newsom was not in the loop, although the, the DOJ did helpfully point out that the memo in question literally says through the Governor of California in all caps.

But Judge Breyer seemed unconvinced that, that that was sufficient and was also really pushing the department on whether or not it was making any arguments about the president's inherent Article Two authority to, to set out this deployment beyond the statutory authority. And interestingly Anna Bower had made this point after arguments, the government really did not want to talk about this issue.

I can't recall the name of the attorney arguing for the Justice Department, but he was really bobbing and weaving and not wanting to, to give a, a straight answer on that. And Judge Breyer was not letting him get away from the question. And I think that really set the tone for the rest of the argument.

Judge Breyer then when, when California, the attorney for California got up to argue, I think was much, much less tough on California in a, to the extent that I think telegraphed pretty clearly what direction he was going to go.

And indeed, I think maybe six or so hours later, we got a temporary restraining order issued by Judge Breyer ordering that the National Guard cease its deployment in Los Angeles. And it was it, which is actually broader than the plaintiffs had asked for. I believe the original request was actually just that the National Guard be, that its role be sort of sharply limited to sort of protecting federal buildings.

But instead the judge issued a much broader order. Now, he did stay that order until noon today. And the government quickly appealed. It went up to the Ninth Circuit which then issued its own stay. And then I believe we're going to have argument before the Ninth Circuit on next Tuesday. So I'm very curious what everybody else thinks.

I will say it's, it struck me as a very well-written opinion. I'm not familiar with Judge Breyer's work, but it's pretty clear the, the argument that he's making is quite straightforward. There are some quirky things like at one point he cites to two Victorian novels in defining what constitutes a rebellion.

And there's also some sort of stirring rhetoric in there. He makes a note, and I'll just read it, the court is troubled by the implication inherent in defendant's argument that protest against the federal government, a core civil liberty protected by the First Amendment, can justify a finding of rebellion.

So I think it was pretty clear that Judge Byer was, you know, disturbed by some of the arguments that the government was making here. But overall the, the ruling is I think, pretty clear and straightforward, though I don't have much of a sense of how it's going to fare at the Ninth Circuit. So that's my high level overview. Anna, James, Roger, I'm curious for all your takes.

Benjamin Wittes: Yeah. So, one group of people who does have a pretty strong sense that this is not going to hold up are various colleagues of ours, Bob Bauer, Jack Goldsmith. I was yesterday with a very esteemed national security law professor who considers this one the president is just gonna win.

And so, James you've read the opinion. What it, what do you make of the question of, it's like from a normal person's reading, you say, is what's going on in Los Angeles plausibly a rebellion? No. And so it seems very reasonable. But from a national security law perspective, you have to start with a whole lot of throat clearing about deference to the president and interpretation of a statute involving the president's commander in chief authority. So how should we game out what this looks like as it goes up the appellate ladder?

James Pearce: Yeah, I think that's a, a challenging question. And in full candor, I say I, I haven't seen yet the, the arguments that Bob Bauer and Jack Goldsmith and, and perhaps others have made. But I do think a, a useful parallel here, and frankly, one that Judge Breyer himself draws is some of the litigation that we've seen, quite a bit of the litigation that we've seen and covered here on the Alien Enemies Act.

And, and Judge Breyer in the, in the early part of his opinion, first on justiciability. In fact, maybe it's the only part on just, justiciability. He also, Judge Breyer has struggles saying it at one point in the hearing, so I feel like I'm in good company.

Benjamin Wittes: It's a hard word to say.

James Pearce: It is. It's, it's more syllables than you think.

Benjamin Wittes: When you put non in front of it and then you end up get saying things like non-just-ish-ish-ish and it's very hard.

James Pearce: Yes. So, I, I agree. So, so Judge Breyer looked to, I think it was Judge Rodriguez in, in one of the AEA cases and, and basically drew this distinction that, that we, we spoke about here, and I still struggle with a little bit, which is the courts. So, so the argument the government was making to, to contextualize this was, look the, the particular provision here basically grants the president carte blanche to decide whether there's been an invasion or a rebellion or the inability of the federal government to execute the law.

And, and the, the response from, from Judge Breyer is no, that's the like it is the job of the law, you know, the, the courts to say what the law is, sort of the, the standard line. And I'm going to take the facts in some sort of objective sense. It's not clear that his reading actually does that.

I mean it, one, I think one of the things that I think is, is, is very challenging here, and I think you put your finger on it, Ben, which is a normal person's, an objective, you know, reasonable person's analysis of the facts on the ground, whether we're talking about a predatory incursion under the AEA or rebellion or the inability of the federal government to execute the law seems just downright preposterous.

And I think Judge Breyer is very much channeling that in that intuition. And I think he does effective job in building that argument out. He does a better job on statutory analysis for what it, for what it's worth. I mean, he's, he's looking at how to define rebellion at the time that this, the provision was first passed in 1903, does better than the parties on all of that.

But where I think the rubber will hit the road and, and why perhaps there's the skepticism from folks who, who think a lot about the national security law implications is, is precisely this distinction of how much leeway or deference do we give the executive brands and the presidents to make these kinds of, of determinations? And if we are giving a lot of, of, of runway or leeway then I do think it becomes a question of why, how is the judge, or how is a judge going in here and getting to second guess the president in matters where, where we typically accord a lot of deference?

That said, just to, to kind of flag a theme that I know we've talked about a lot, at the same time, it is hard to to game out how a court, ultimately, the Supreme Court almost certainly will, on the one hand want to ensure that the president has the, the, the sort of deference to which he or she is entitled, and at the same time, kind of face up to this mismatch between objective reality and the kinds of things that, that this administration is saying.

And that dovetails with our conversations about presumption of regularity. It's frankly, in my mind, at least not entirely unrelated to the way in which government attorneys handle themselves in court in a, in a much more kind of aggressive and unhelpful way. And so, I don't know how that's all gonna cash out.

But I do think that though I agree with Quinta that the order itself is well constructed, I don't think it grapples with the kind of deference issues in the way, certainly the Supreme Court will.

Benjamin Wittes: Right and so imagine that a well constructed order confronts the question. Alright. The, the proclamation, the executive order basically said where, where the moon is made of green cheese, there is a rebellion in Los Angeles and I'm sending in troops, right?

So you have a factual premise that's completely incorrect and a conclusion that does not follow logically from the incorrect premise. Presumably the court would not say well, I mean the we owe great deference to the president, right? And so there, there's some limit to the deference in the face of factual preposterousness.

And I, you know, I think both in the Alien Enemies Act case and in this you have, we have this working assumption that the president never would enter the realm of the factually preposterous, and then he does, but it's not in the realm of so preposterous that no court would ever contemplate deferring to it.

And so you get the question of, you know, how preposterous are you allowed to be? And still, and still be the authoritative interpreter of that. And I have no idea what methodology the courts would apply to answer that question. So-

Quinta Jurecic: Can I make one point, Ben?

Benjamin Wittes: Yeah.

Quinta Jurecic: Sorry. Just I think that along those lines, it is significant that, as James mentioned in constructing this distinction between the factual assertions the president is making and whether or not those factual assertions measure up to the legal standard, that Judge Breyer is drawing on an Alien Enemies Act case, which is, you know, I think the, the sort of most prominent example of, you know, the, as you say, the sort of, whereas the moon is made of green cheese type reasoning, that there's sort of a dialogue going on between judges as they're trying to think this through.

I don't know whether it'll be successful, but I found it striking that Judge Breer was just sort of looking at how other judges were handling the same issue, albeit in a very different case. And I don't think that that the connection at all was briefed. So it, it jumped out at me.

Benjamin Wittes: Right. And it, it goes back to this point that Roger has made several times in the Alien Enemies Act cases, where judges all agree that a certain amount of deference is warranted. But the question is deference to what? Is it deference to the president's assertions of fact? Is it deference to the legal conclusions that you draw from the fact? Is it deference to judgment? Is it all of the above?

Anna Bower: And I think though that, and that goes to the point that I think James was making about how the Justice Department, I think was not helping itself in the hearing or in its briefing really in that like its position is way more extreme than that.

It, they were saying in the hearing that like a court can't even look at the factual basis or evidence that a president might have relied on in coming to a conclusion that there has been a rebellion or that he's unable to execute the laws of the United States, which is the statutory language that the president was supposedly relying on in deploying the, the guard.

And so it, it kind of gets to a point where, yeah, courts do need to find a middle ground, but the Justice Department is being entirely unhelpful in terms of, you know, finding any kind of middle ground because they have such an extreme position that they're taking here.

Benjamin Wittes: And why, and what is the theory that they articulated behind that position when, when you say it's not reviewable, it's in a statute. Right? Why, what's the theory behind which the president's judgment that there's a rebellion going on in in Los Angeles is not reviewable?

Anna Bower: So I, I mean, I think that they re, they've relied on a, a bunch of cases about just–, justiciability. James, I'm also struggling with that word.

And, and but, and I think they also, they, I would need to pull up the statute, but they also point to this, like this language or clause in the statute that is saying, you know, that the president can mobilize the National Guard. They're kind of ignoring the, like, you know, the fact that the statute says whenever, and then it lists the conditions.

But they're, they're basically saying that's a really like express grant of authority that is giving the president this power. And all that matters is just that he finds these, one of these things and that he puts it. Like the, the, the furthest that the Justice Department lawyer Brett Shumate was willing to give is that we might be in a different situation if the president in his me memorandum federalizing, the National Guard, did not actually mention a rebellion or did not actually mention an inability to execute the laws of the United States.

In that case, as long, if he didn't use the magic words, then the Justice Department admits like, yeah, maybe we'd be in a different situation where courts could review that. But beyond that, as long as the president uses the magic words, then, you know, that's all that you you have to do. Roger, do you have any more thoughts on kind of the authority that they're relying on there in terms of justiciability?

Roger Parloff: Well, one of the cases was this 1827 case. It's either Martin v. Mott or Mott v. Martin. And it's, it's pretty distinguishable, but, but I don't think it's a trivial reference. It's to you know, it, it, it, it basically a guy that refused to answer the call to the War of 1812. And, and so, it, they're saying that he can't challenge the judge, the, you know, the, the president's judgment that he should be called up and, and this is an appropriate thing to fight over or something like that. But it actually is, he is interpreting a predecessor of this, of this law. It's a version of one of these Militia Acts and and it, and there is exceedingly broad language in there.

I, I was actually skeptical about judge Breyer's ruling and, and probably for more impressionistic and certainly less weighty basis than whatever Jack is saying, and Jack Goldsmith, and Bob Bauer. But I just think that you know, if you're gonna try to get upheld with this court, you, you wanna play it really straight, sort of like Judge Bates did. You know, the way he writes very crisp, and I found this a little, a little–

Benjamin Wittes: Well, the judge's name is Breyer.

Roger Parloff: –and, and liberal. I, I mean, I'll give you, I'll, I'll give, there are a few bad things in here. Like at one point he says, in fact, it is common sense that President Trump and Secretary Hegseth's unilateral exercise of federal power risks doing more harm than good. Well, I mean, it, it may be common sense to us. It's obviously not common sense to a lot of conservatives and, and is that the way a judge should be deciding these things?

And then there's another one that's I think is worse because it's not just rebellion, remember. There's, they, they rely on two provisions, but, and they did say rebellion in the order, but the, the statute says rebellion or danger of rebellion. And, and so he's trying to get rid of the danger of rebellion, part of it. And, and he writes, defendants do not even explain how the court should determine whether there is a danger of rebellion. Well, in saying that, he's really saying, it's a political question. You know, if a judge has no way of making a decision and a president does, it's the president's call. I think that's a really damning thing.

The, the, the thing also he in the fact that he grants relief that Newsom wasn't seeking is a bad sign. So there were a lot of things and I just found myself and like, like you were saying, Ben, once you're talking about, you know, the danger of rebellion. And the, the other provision is unable with the regular forces to execute the laws of the United States. And, you know, there are some Molotov cocktails. There are cars burning, there are some officers trapped in their cars. You know, you're, you're on a continuum. Obviously historically this would not be considered, you know, and nobody else has used this statute here, but you're on a continuum. And so how do you decide?

And I also keep asking myself, well, what if a Democratic president, you know. What if someday it has a problem in a red state, like, you know, Governor Abbott's Texas, or Governor DeSantis’s Florida, like some county has seceded from the union and, and they won't do anything about it. Does, does, does he have–

Benjamin Wittes: Cliven Bundy?

Roger Parloff: Yeah. Does, does, does the Democratic president have to negotiate with Abbott first and or, or, or DeSantis? And, and and finally that  procedural language through the governors, I don't know what it means. I don't, I, I, I don't know. So anyway, there's a lot of stuff that makes me skeptical.

Benjamin Wittes: Yeah. So let me boil down Roger's skepticism into a compact single sentence question, which is: How many Molotov cocktails and burning Waymo’s before there's enough danger of rebellion that five justices of the Supreme Court will consider that line one that the president not, they should draw? And I think the answer is you don't need a lot of burning Waymo's before, before that's how it's gonna shake out, with a lot of throat clearing about Motts and deference and but that's just my guess. Alright.

Anna Bower: Also I can I just say I think that Roger's point about the, you know, in Republican states is important and also I believe has historical precedent. I think that that was Johnson federalized the National Guard during the Civil Rights. Yeah.

Benjamin Wittes: Well there's also, you know, the Civil War.

Anna Bower: Well yeah, but I'm just saying to protect civil rights protestors that who, you know, the idea being that they needed protection. So anyway, just, just wanted to point out that that's not just hypothetical. It's a very real concern.

Benjamin Wittes: Alright, so let's, so nothing is likely to happen on this case until Tuesday when the Ninth Circuit's going to hear it. Is that right?

James Pearce: We might get some briefs. We there, there's some brief deadline briefing deadlines over the weekend, but it, it, it would be quite surprising if there were an, actually, an order entered on the case before the, the hearing on Tuesday.

Benjamin Wittes: Alright, then let's talk about Mr. Abrego Garcia. You know, when we started talking about Abrego Garcia, he was a, a, a, a poor Maryland man wrongly, accidentally schlepped to a, a, a dungeon.

And now he's an indictee in Tennessee facing charges about human trafficking, and child, and child pornography, but not in the indictment. And he's got an MS-13 thing going. You know what a difference a little bit of fame makes. James talk about the file, the arrest filings, and the and the detention hearing, which I believe took place this morning.

James Pearce: Yeah, it took place and may still be ongoing. There's a, there's a reporter there that's been live, live tweeting or live Blueskying what's going on, although it's hard to tell whether the, that, that hearing has finished, but yeah.

So we, we talked about this, the, the indictment had just become public when we started recording a, a week ago, and, and we kind of briefly touched on it. But where we stand now, as you said, is, is the indictment which was issued by a grand jury back in May, May 21st, but remained under seal, became public a week ago on Friday.

That indictment though, though, though 10 pages worth of allegations ultimately charges Abrego Garcia, Garcia with one count of conspiring to transport non-citizens, and then a substantive count based in November, I think of 2022. And, and there had been some public reporting about that stop even way back before folks were aware of any criminal matters. Potentially, and this is a little bit getting out of ourselves, but probably potentially before there was a federal criminal investigation to come up with an indictment.

So, between when we, when we last spoke about this last week and now we've had a handful of things happen, the government has filed two motions seeking detention, gone a little bit out of order. I had a piece up on, on Lawfare, I think it was yesterday, to try to walk through how pretrial detention would, would would work or might work in the Abrego Garcia case. It's an area of some confusion and in fact courts and, and prosecutors, I can say this, having been one myself, don't always get this right.

But it's essentially a two-step process where the government has to establish that there is a basis to even hold a detention hearing and then needs to prove at a detention hearing that no condition or set of conditions would reasonably assure that the person would appear or, pose a danger to, to the community.

So, Abrego Garcia is in court today for an arraignment, a reading of, of the indictment, and then his, his plea, he has entered a not guilty plea, which is I think what we all would've expected. And then the most recent reporting, I think, suggests that there is still some kind of hearing going on. I, I won't walk through in, in detail, but again, we'll refer folks who are interested in getting into the weeds as to all of the government's arguments as to why a detention hearing is appropriate.

I will pause and say a couple things about the arguments the government has made, sorry, why a detention hearing is appropriate, why detention is itself appropriate, as you said, Ben. A a couple of things came out in their memo that I don't think had been publicly reported until we saw that. Things like that Abrego Garcia committed a murder to be, or at least admitted to a murder to be initiated into MS-13, that he has had orders try sort of, violence committed against his family and, and sort of efforts to restrain that violence may be protective orders entered. And then also a suggestion in the, in the government's detention filings that he has solicited nude videos and images from a minor.

Now, now none of that's a charge in the, in the case it is at least ostensibly relevant for the government in saying if we get our detention hearing, these are all the things that show you that, that he is a, a risk of–I, I mean, I guess I should say something right–the government basically has to prove that he is a, a risk of flight or a risk of obstructing the proceeding. The fact that he is likely to remain in immigration detention makes the idea that he's a, a risk of flight pretty, pretty challenging. And then the question becomes is, is there a risk that he will obstruct the criminal proceeding against him?

The, the government doesn't spin out sort of an argument that relies on anything specific to Abrego Garcia, basically suggests he's a bad guy associated with other bad MS-13 folks. And in, and in fairness, right? I mean, MS-13 does have reach and probably could very much interfere with some of the government witnesses if it can, if it can identify who it is.

But a lot of that turns on this question that, that Roger has, has looked into and written about, which is what really is the nature of Abrego Garcia's association, if any, with MS-13? Hard to tell how much of that is being discussed at the hearing. We may know more, I assume we'll know more as soon as the hearing ends and, and there's some, some reporting of that.

It looked like there was one government witness, maybe a, a law enforcement officer. But beyond that, I, I don't think we know how much, happy to stand corrected if, if someone else knows, but how much MS-13 related or other evidence we are getting from the hearing either just finish or currently still happening in Nashville.

Benjamin Wittes: Roger, you wrote a long piece about what we know about Abrego Garcia back earlier in the civil litigation. Do you, has the government's release of information or allegations in the context of the criminal case surprised you? Has it changed your view of who he likely is or is it just kind of up in the air because how much they can prove and what they can say in a brief are two completely or maybe two completely different things?

Roger Parloff: Well, the MS-13 thing, I think, remains up in the air. Obviously at least one and maybe more of these six cooperating witnesses is gonna say that he's MS-13. I think at least a couple say that. So, these are, we know that one of them is in custody doing 30 months. It's his third reentry. He's been convicted of transporting. So, you know, it's, it's sounding more plausible. But these people have incentives to lie, to get you know, favorable treatment. And so, I would say that part is we don't know.

The you know what the, the stop is, a pretty suspicious, you know, the one stop in Tennessee, the traffic stop, that's a pretty suspicious event. It's not, you know, trafficking alone. I think the, the ordinary, according to the sentencing commission, this was cited in the defendant's papers. It's about 15 months is the ordinary sentence for that.

The guy that seems to be a bigger deal than Abrego Garcia, who's CCs one, the co-conspirator one, he got 18 months for that. He's now doing 30 for, for his third reentry, but illegal reentry. So I, I, I don't know. I mean, I, the MS-13 thing, I, I, and I don't know the quality of the evidence as far as this claim that he, to get into MS-13, he killed somebody. Obviously that would be good to know.

Benjamin Wittes: Sorry, I was muted. You, meanwhile the civil litigation, however, is not over. So we now have this parallel track of civil litigation and criminal litigation, the criminal case being in Tennessee and the civil litigation being before Judge Xinis in Maryland. Now that he's back and he's not in immigration custody anymore, why is there still a habeas petition pending?What is, what are they asking for?

Roger Parloff: So, of course, the, the government is saying what you're saying, let's dismiss it. It's we, we complied with your order. It's all moot. We brought him back. That's what you wanted. And the Abrego Garcia is saying, no, we're gonna finish. We need to now we need to do a contempt hearing about what you've been doing for the past nine 90 days.

And they've compiled quite a record. And, and some of it is redacted. But you know, there was this lengthy period of completely pointless discovery, completely in effect nothing of value was learned. And, and they claimed that that was bad faith. What they would like to do is still obtain the documents because they wanna find out who was making the decisions, the decisions not to cooperate.

They believe that, obviously this show, the fact that he, once they had a, a, a, a story to tell that was pro administration, the, you know, they got an indictment they whistled and, and Bukele sent, sent him back. So it shows that in their view, they did have constructive custody all along. And so they would like to get, they would like to know who was making these decisions and they would like the judge to order that on pain of civil contempt, the imposing fines, which would be imposed personally on the apparently you can do that.

The, at least they cite cases, have the federal officials responsible pay personal fines and have her order that they cannot be reimbursed by the government. And they get pretty it gets pretty improbable. Some of the things they've asked for, they would like her to order that the personal devices of key officials, including Pam Bondi should be turned over for inspection.

I, I doubt that we're gonna see that, but anyway they, they've, so it's not, it's not over. We, we have to see what Judge Xinis says about how much longer she's gonna try to pursue this. And of course, they may appeal and, and try to get it, get it out of her hands.

Benjamin Wittes: Alright, so two items to Lawfare log rolling here.

One related to the last subject we were talking about. Our colleague Scott Anderson had a podcast this morning with the estimable Laura Dickinson and Chris Mirasola on domestic deployments of the military. Everything you could ever want to know about the law of loosing troops in Los Angeles on the Lawfare Podcast feed on Friday morning.

And Roger, you have a new tracker on Lawfare because we haven't been tracking enough things. Tell us about your new tracker.

Roger Parloff: Yes, with the help of Tyler McBrien and Anna Hickey, colleagues, I've tried to put together something so that graphic, a table that, so you can see all these different Alien Enemies Act decisions to date and who has declared it invalid, and which districts and what appoint, judge appointed them and, and who thinks you need 30 days notice and who thinks you don't need any notice and, and things like that.

So, I hope you find that useful and-

Benjamin Wittes: Should we talk about some of those Alien Enemies Act cases?

Roger Parloff: Yeah, yeah. I mean, the big one is A.A.R.P., which is now called W.M.M. And, and by the way unlike other reporters, when, when I, I don't just cover a A.A.R.P., I'm a member, so, and I'm sure A.A.R.P. will appreciate that that plug. Yeah, they so it's now called W.M.M. where-

Benjamin Wittes: Are you a member of that too?

Roger Parloff: And so the big thing is June 30th, we'll have the oral argument in the Fifth Circuit. This is, you know, after the remand from the Supreme Court so that we still have a district-wide in effect an injunction.

We don't, there isn't really a word for what it is. It's an order against removals from the Northern District of Texas. And so the W.M.M., which is ACLU, is the attorneys filed their brief and the government filed its brief two days ago. And the, the big reveal there is that they've now come up with their own this is their third attempt at due process or the second attempt at due process.

The but they've had three policies about notice. The original policy from March 14 was no notice at all when you're removing people. The second policy was 12 hours notice that we're removing you. And you don't tell them more than that. And if they volunteer outta nowhere, I'd like to bring a habeas corpus then you give them another 24 hours.

Now, now they're giving something that looks plausible to I'm sure to the Fifth Circuit. It will look plausible. It's seven days notice. They tell you specifically, you have a right to challenge your tea, your Tren de Aragua designation in a habeas corpus. And they allegedly, they, they give you a list of attorneys and they say that this will be at least read to you in a language you understand.

So, that is something closer to due process than we have seen before. And and that's that's it. I think you're familiar with most of the other arguments back and forth. But that'll be argued June 30th.

Benjamin Wittes: Alright. Meanwhile we've got a Western District of Texas ruling the MAPS case.

Roger Parloff: Yeah. This is a woman, a 33-year-old woman, and it's a class action habeas. The judge is David Briones. He's a Clinton appointee. It's a good ruling. He invalidates the, the law. I think he's the fourth to do that. He invalidates it on some grounds on the, the absence of an invasion, absence of the predatory incursion. At at least three other judges have done that, including one Trump appointee. That's the JAV case, the Rodriguez case that was quoted in Judge Pryor's decision.

He also says that Tren de Aragua is not a foreign nation or government. He's the second judge to say that, but two other judges have said they can't really quarrel with judge. Trump's determination there. And then there are some additional findings which, additional grounds to strike it down. Some of which I think are, are, are which are being briefed in the W.M.M. case by ACLU and I think are sort of non-trivial.

I mean, you know the Alien Enemies Act was 1798. It was last used in World War II, and since then a lot has happened. The Immigration and National, Nationality Act was enacted in 1952, and that provides sort of the main way of dealing with most aliens. And they, and for tho, for certain aliens, it's supposed to be the sole and preclusive way of dealing with them. And then there's 1980, there's an asylum law in 1988. There's a, a Convention Against Terrorism law. And and so the theory is that these preempt not preempt, supersede.

So to the extent that there's some, you know, Trump wants to say, the Alien Enemies Act gets me around all these other things. And they're saying, well, why would that be? No, these are enacted subsequently. So to the extent there's any conflict you now have to follow the later law. So I think those are non-trivial. But anyway, those, oh, and the other thing is he does, he does give ACLU all the due process. It, it asks for 30 days notice. He's the only one to do that. We've had 21 days. We've had 14 days from other judges. So that's new.

Benjamin Wittes: Well, I will just say that the, the original concept, I think of why the INA doesn't supersede the Alien Enemies Act is that the Alien Enemies Act is only triggered by a war. And then, but then if you define a war or predatory invasion as, you know, illegal immigration by Tren de Aragua well then you create a conflict in the statutes where there isn't one. Right?

Roger Parloff: Yeah. And to, to be, to be fair, the INA provision would apply to some aliens that are covered by AEA and not others. So it gets really complicated, but I think it's a non-trivial argument.

Benjamin Wittes: All right, let's talk about JGG. Poor Judge Boasberg gets stayed again.

Roger Parloff: Yeah.

Benjamin Wittes: Guy can't catch a break.

Roger Parloff: Yeah, I mean, it was a panel with three Trump appointees, composed of three Trump appointed. But honestly, if I was on that panel you know, this is the one I think I was talking about last week. He issued this order in June 4th where he certified the class of people that were flown to CECOT under the Alien Enemies Act on March 15th.

And said that, you know, he had jurisdiction over them even though he found that there was not, that the government did not have constructive custody over them. And that's one that I explained last week. I'm not gonna try to explain it again, but a lot of people are gonna have trouble understanding that one.

And the other thing I say is, you know, he decided that June 4th, that was before we found out Abrego Garcia was coming back. And you have to sort of ask yourself, would that have changed his calculus, you know, if he'd known it, would he would that? Because he was wondering, you know, he kept saying, I don't know if this is a ruse, I don't know if this is a fraud, but they're giving me these declarations I can't ignore. I don't know if, if, if like, like that suddenly Abrego was back, Abrego Garcia. Maybe it would've affected the calculus, but it's too late now.

Anna Bower: But isn't the so, and maybe I'm just misunderstanding. Isn't one of the argument from the government then be well, he was brought back under, you know, some sort of extradition agreement as opposed to just a voluntary you know.

Roger Parloff: Yeah. There, there was no extradition agreement. There was, they did say, we have a warrant and, and, and Abrego, and Bukele said oh a warrant that changes everything. I'm, I'm, I'm gonna, I'm gonna give you. And so, you know, and that could be, you know, you know, that could be. Maybe so. Maybe so.

Benjamin Wittes: All right. James let's talk about the indictment of LaMonica McIver. I gotta say this indictment kind of surprised me. I sort of thought this was the, this is the woman who got, got in the way of some ICE officials trying to arrest the mayor of Newark. And they didn't charge the mayor of Newark, but they did charge a woman who kind of put herself in the way and put her hands on one of them. And they kind of really charged her what's going on there?

James Pearce: Yeah, we've talked about this incident a couple of times and the charges themselves flow from a criminal complaint that we saw a few weeks ago. I wanna make one quick, kind of a overarching comment before drilling into the details a little bit.

It might have seemed an odd transition to go from all the focus on the, the immigration cases to the, the charging of Representative McIver. But this is, I think, very much a feature of I can say this, I don't think this is proprietary information, but what in the federal government we used to call crimmigration which is this bleeding together of criminal law and immigration.

Other than it being a kind of sort of nice port portmanteau I think it's, you know, we see that with Abrego Garcia in troubling ways. This is another kind of version of it where you've got a, a, a, a, a member of Congress that will talk about trying to essentially do some legislative oversight into the immigration process and walking out of it and indicted, I guess we would say indicted felon, she's charged with, with, with felony offenses.

So with that kind of throat clearing exercise out of the way, this is again, we've talked about before the incident at Delaney Hall in New Jersey, where three members of Congress as well as Mayor Ras Baraka of Newark, went to kind of go and try to understand what was happening at, at the, at Delaney Hall. Initially Mayor Baraka was charged with trespass. Those, that trespass case was then dismissed.

And then, as we, I think discussed last week on Lawfare, he has filed a civil suit against Alina Habba, the, the acting U.S. Attorney as well as I the, the DHS special agent in charge. Here we have, as we saw a criminal complaint a. a few weeks ago, the criminal indictment of Representative McIver, one of the three members of Congress.

There's a slight difference between the criminal complaint and the indictment. I'm not quite sure what to make of it. In the criminal complaint, she was charged with two violations essentially the federal assault statute forcibly impeding opposing resisting with an add-on, which is she made quote, physical contact with the victim.

One of the alleged victims was an ICE officer. The other was, I think, a federal protective services officer. That add-on takes a what, what, what is otherwise a charge with a one year statute of one year statutory maximum penalty all the way up to an eight year penalty. So she's facing two counts with eight-year penalties.

And then the, the kind of the third count that the indictment adds, I can't make sense of it. It doesn't actually identify specific victims and it charges her with what we call simple assault, which is just a, a one year statutory maximum and says she has impeded or opposed by force ICE and federal protective services. So, you know, maybe that's something to negotiate with on a plea, but I can't quite make, make sense of, of that third count.

Last thing I'll say, and, and I think Ben, that we had a brief discussion of this when we looked at the, the criminal complaint maybe some weeks ago. I will be shocked if we do not see from Representative McIver a motion to dismiss arguing that her speech or debate legislative immunity covers her actions here. I was looking a little bit at the, the appellate law under the Third Circuit, which is what which is where New Jersey falls. I think it's pretty favorable to her. And so I think she will have a pretty interesting, potentially quite compelling argument that the prosecution should just be kicked out at the outset because of legislative speech or debate immunity.

I have checked the, checked the docket. We haven't seen that yet. She was only just indicted within the last couple of days, but I imagine that will be coming pretty soon.

Benjamin Wittes: I will just say I found this indictment shocking. And this strikes me as at most a kind of low-grade scuffle in the context of a political protest.

The idea that you would prosecute a sitting member of Congress over this strikes me as sort of genuinely. I, I did, I did not see this one coming, let's put it that way. And I, and I, it reading the indictment, I expected there to be some aggravating fact that just isn't there. Quinta, and then Roger.

Quinta Jurecic: Just out of curiosity, James, I'm curious, is there any obvious reason in your mind why the government dropped the complaint against Baraka, but then chose to actually pursue and charge by grand jury McIver? I was very puzzled by this. I don't know if there's anything, any distinctions to be drawn between the way that they interacted with the ICE agents. Is there a clear reason?

James Pearce: So a reason I, anything I say will be speculation, but I will give you my speculation. From reading the indictment, criminal complaints again and, and the reporting on, on Baraka and Baraka's civil suit as well.

It strikes me that what happened, at least in Baraka's telling, he shows up at the facility. He's told, you can't be here, you've gotta leave. He says okay. And, and he kind of walks outside of the area that he's permitted to be in. And then he is arrested. And so that as a, as a criminal case, strikes me as exceedingly weak even if you are aggressive in your charging behavior.

And so I suspect that may well have led to a decision, probably the correct one to dismiss it. As you may recall, Quinta and others it also led to some very strong words from the magistrate judge sort of, almost berating the government and saying, look, you've got an obligation to do justice. I'm glad you got to the right place here, but this never should have, have taken the form of a, of a complaint at, at all or any kind of charges at all.

On the on the Representative McIver, although I think Ben is right in that, that's, I read it kind of as a, as a low-grade scuffle. We talked a little bit about this before, frankly, the statute under which she's charged has been litigated and is not particularly clear. It seems like, as long as you've got imposed like impeding by force, although what that exactly means isn't, isn't, isn't clear. It hasn't been well developed in the case law. You've got a triable case, I will say.

One comment I wanted to add, there's been reporting that the public integrity section has been cut out of the process of evaluating these prosecutions between both the potential legislative immunity and what does not strike me as a particularly compelling factual case. I'm not sure that this prosecution would've moved forward when, when there was that kind of consultation requirement in place. Maybe it happened but it would surprise me.

Quinta Jurecic: There's also, she would be tried by a jury of her constituents, I think, which adds a additional weird element to all of this. Yeah, I believe she represents the district.

Benjamin Wittes: I'm gonna go to Roger, but I just wanna say you heard it here first. This case will not end in a conviction. Roger, you're muted.

Roger Parloff: I just wanted to ask James in the January 6th cases, if, if you were charging somebody with impeding you, it was usually a different statute. It was usually 231(a)(3), and here, if you were charging somebody with this statute, it was usually really, even though it uses the word impeding, it was usually really assaulting or battery. It was usually something, a level worse.

Is, are they, is that impeding word interchangeable and, and why aren't they using the impeding statute?

James Pearce: So, so a couple different things. So, so 231(a)(3) requires there to be, I think it's civil disorder. So you had to have the background civil disorder, which was January 6th. Now you, maybe there's some argument that what was happening there could rise to the level of civil disorder, but I think that's a pretty farfetched arguments to make.

And in the January 6th cases, you often saw the pairing of 111, what McIver is charged with here and 231. But you are right Roger, that where 111 was charged, you saw often violent aggressive behavior. 231 would be the type of conduct you would see charged if you were to charge at all McIver engaged in, but you don't have that predicate civil disorder or interfering with officers who are trying to quell a civil disorder.

Benjamin Wittes: Alright. All of which brings us to our weekly check-in on frog embryo lady Kseniia Petrova herself, Anna, she's had a good day.

Anna Bower: Yeah, she's free and she's free wearing a Hakuna Matata shirt, which I, I wholly support Hakuna Matata shirts. That's what she wore when she was coming out of court, as reported by Lawfare listener John Hawkinson. John, I was not able to go to that hearing, but John, who is doing a lot of great work, covering a lot of these immigration proceedings in Massachusetts and Vermont covered for Cambridge Day with, and, and his coverage is available at cambridgeday.com, I believe is the is the website had some great reporting and live posting on Bluesky. So please do check out John Hawkins's reporting there.

But from what has been reported Kseniia Petrova, who is the Harvard researcher who tried to bring frog embryos, I believe it's clawed frog embryos, as we all know now, into the United States after coming back from Europe. Was then detained, kept in ICE custody for several months. Her counsel filed a habeas petition. Ultimately this habeas petition ended up in court in Vermont. After several hearings a judge ordered her released from ICE custody.

But then that day, I believe, or may, or actually maybe it was the hearing before that after a judge declined to dismiss her habeas petition that same day, the Justice Department filed criminal charges against her for smuggling the frog embryos. We've learned more about frog embryos than I ever thought possible. But today she has, she's now been despite being ordered released from ICE custody in respect to her immigration proceedings, she has still been kept in custody as a result of these criminal charges.

There was a proceeding in which it was supposed to be, you know, a probable cause hearing. And then the question about whether or not she should be released the probable cause hearing actually did not, it was put off. But they did address the question of whether she was released. And as, as I know from John's reporting from the hearing, there the government did not oppose her release with conditions, the main condition being that she stay within the state of Massachusetts. Which I think was a little bit of a surprise, honestly that the thing–

Benjamin Wittes: Seeing as how they were trying to throw her out of the country two weeks ago.

Anna Bower: Well, right. And they were, they were, well–

Benjamin Wittes: You can't leave, you must leave. Well, and they, you can't leave the state of Massachusetts. You have to go back to Russia.

Anna Bower: Right.

Benjamin Wittes: Get your stories straight guys.

Anna Bower: Right. And they specifically were trying to send her to Russia where she has a history of being politically persecuted.

And so there there was a lot of, of things here that were, you know, kind of surprising in terms of the government agreeing to her release. They did however, again, I, I'm a little bit interested to see what's gonna happen with this case. I, again, from John's reporting my understanding is that in statements after her release there was some talk from her counsel about how she isn't sure if she wants to stay in the United States ultimately, and that she has job offer offers from other countries.

I also understand that again, they put the probable cause hearing off that was supposed to occur that day. I also believe that she was initially charged by complaint and that there's 30 days, you know, that there's supposed to be an indictment to follow. I, I think she was initially charged around this time last month. And so that window of, of having an indictment it seems to be you know, very much close.

So, so we'll see what happens. I, I don't know if maybe there's a deal that could be forthcoming or if this case maybe results in her leaving the country and the charges dropped, something to that effect.

Benjamin Wittes: I have three words for you. No. True. Bill.

Anna Bower: Bill. That's also the other option is that there's a no true bill. So, so we will see and yeah, that's the update on Petrova. She is free for now.

Benjamin Wittes: Alright, it's time for this week's edition of the game. Let's dismantle a federal agency. Our two contestants today are James and Roger James. You're taking apart the Social Security Administration today.

James Pearce: I, I, this might be a little category bleed. I, you know, I think this is really more a DOGE thing than a taking apart the social security thing. But, you know, it's, it is hard to keep, to keep track of all this stuff. Yeah.

Benjamin Wittes: It's all one game at the end of the day.

James Pearce: Unfortunately, maybe so, so this is the, the Supreme Court emergency docket ruling that came out actually last Friday where we tried on the fly. Anna, Anna covered one. We didn't have a chance to talk about the other. This is a case where basically a bunch of advocacy organizations, labor unions tried to stop DOGE getting access to Social Security Administration information, were successful in the district court getting a preliminary injunction.

There was a stay put on by the Fourth Circuit panel. The Fourth Circuit, somewhat unusually, went en banc and undid the, the stay pending appeal that the panel had put in place. And then the government went to the Supreme Court and the court as I said, just on Friday ruled in favor of the government, essentially enabling DOGE to get access to Social Security information, very short order.

The reasoning such as it can be described as reasoning, basically boils down to a single sentence. After the, after the court sets out the, the stay standard, we're all very familiar with likelihood of success on the merits, irreparable harm balance of the equities. All the court says is, we conclude under the present circumstances, Social Security Administration may proceed to afford members of the SSA, the Social Security Administration DOGE team, access to the agency records in question in order for those members to do their work.

Doesn't, doesn't talk about the merits, doesn't talk about irreparable harm, just sort of says it. Justice Jackson has a, so Justice Jackson joined by Justice Sotomayor has a dissenting opinion. Justice Kagan also would've denied the application, but doesn't, doesn't write or join Justice Jackson's opinion.

What Justice Jackson says, as she had said in a a case another of these emergency docket applications is that the Supreme Court is essentially remaking the stay standard. It's taking irreparable harm entirely outta the analysis and reducing this to essentially just their guesses about their intuitions on the likelihood of success in the merits. And that's having negative consequences for a lot of the parties.

So, I think that's a, a pretty compelling argument. And, and one that I think some commentators, including Steve Vladeck have picked up, which is I think what, what Roger wanted to talk about.

Benjamin Wittes: Yeah. So my notes say, Roger, that you want to do a short aside on some Vladeck stats.

Roger Parloff: That's right.

Benjamin Wittes: Go for it.

Roger Parloff: And before I do that, can I just, there's an expression I think we ought to introduce. I don't know if I've introduced it before. The these DOGE cases where you go into the computers ultra-sensitive information. The reason and the reason that, that the majority might have denied this is that there's this dispute about, do you have standing if somebody is rooting around your material, but they haven't, you haven't, they haven't really pirated it yet. They haven't sold it to, you know, the dark web.

And, and is that a, is that enough for standing? And the, and the, the people saying it is have likened this to a common law tort, which I had never heard of, called intrusion upon seclusion.

Benjamin Wittes: It's one of the, one of the original Brandeisian privacy torts.

Roger Parloff: Oh. Oh, no.

Benjamin Wittes: Intrusion on seclusion tort.

Roger Parloff: Oh. So everyone knows intrusion on seclusion, but me. Okay, nevermind.

Benjamin Wittes: I'm not sure everyone does, but I, it, it's there. Yeah. It's, it's excellent.

Roger Parloff: Anna, you were in a tort class recently, what did, did you learn intrusion upon seclusion or-?

Anna Bower: Roger, I'm the wrong person to ask.

Roger Parloff: Okay, okay.

Anna Bower: Sorry.

Roger Parloff: So I will just give you then what Vladek in his Substack, he had some stats, which I thought were interesting. At this point there have been 12 emergency petitions since Trump took over. And in, in 10 of those, the, the, the government has won at least some relief. One, the 11th was a moot, and the 12th was AARP, where, where, where the other side won.

Of the 10, where the government won eight of them, the three Democrat appointees dissented and only them. And in the other remaining two at least one of the Democratic appointees had a noted dissent. So it's, it, it's extraordinarily divided politically.

Benjamin Wittes:. All right, which let us turn to it's like a, this is our throwback segment to back when we used to do Trump Trials. The Second Circuit Court of Appeals, Anna, heard arguments in the People v Trump or, or the attempt to remove that again under the Westfall Act. What's going on there? Isn't he just a con, a 34 time convict? Can't we leave it at that at this point?

Anna Bower: You would think, but no, this is Trump's criminal case is back in court. For people, very briefly and, and just sticking with a kind of broad stroke summary because there's a long pre procedural history here. Trump's New York criminal case, he initially tried to remove that case that was rejected, or, and by remove, I mean removed a federal court under the federal removal, removal statute that allows people who were indicted for, or related to acts taken under color of federal office and who are able to raise a colorable federal defense to remove their case to federal court before a federal judge and a federal jury.

Tried to do that, was rejected, case goes to trial. Trump is convicted on 34 felony counts. And then, shortly thereafter, the Supreme Court issues its immunity decision in which it, as a part of that opinion includes a part of it that says even if a president is indicted for acts that aren't that are unofficial acts that aren't related to his official duties within, you know, the absolute power of his office, then even then, if there's an effort to bring in evidence of official acts to, you know, prove up that conduct, then that evidence still cannot be admitted. So they came up with this kind of evidentiary rule.

So in the wake of that, because Trump's criminal trial in New York had a lot of evidence in it, that included things like conversations between Trump and White House Communications Director Hope Hicks. It included tweets that Trump made while he was president. It included you know, things that he was do, testimony by a White House administrative official Madeline Westerhout about things Trump was doing while he was in, in office, all of that kind of stuff.

There, there then in the wake of that decision is an effort by Trump's team, like two months after the decision to file a second notice of removal to federal court. They, in that effort to remove, relied on a provision of the statute that says that you can file a second notice so long as good cause is shown. Judge Hellerstein rejected that effort to even file the notice and to get a hearing on it and all that kind of stuff.

And then now after Trump's election and his inauguration, it has gone up to the Second Circuit and the Second Circuit heard argument on it. I think that the Second Circuit, based on, on this oral argument it seems like the Second Circuit thinks that there is kind of maybe some kind of arguable case here for removal. But, but, but they don't seem entirely convinced of it.

Like it's, I I think based on what the kind of questions they were asking, it seems like what they might wanna do is remand back to Judge Hellerstein to hold some kind of further briefing or a hearing on whether or not there is good cause to even file the notice of removal. And so kind of have a further process.

And, and then it might go, you know, back up after that. But it certainly seems to be the case that this panel, which is a three judge panel that includes Roger, correct me if I'm wrong, I think it's two Biden appointees and one Obama appointee. But in any case is all Democratic appointees. But Roger, curious for your thoughts on and your take, 'cause I know that you listened to it and, and James, you as well.

Roger Parloff: I, I thought the same as you. I, I thought that was the most likely. I, I, I don't think they were sure what to do. I think, you know, Hellerstein is, I think 91 years old now. And if you remember that situation, there was this overwhelming sense that Trump and his lawyers were delaying and delaying and delaying at every single opportunity.

And he had had it. And so he devoted just over three pages to this motion to, to denying it. He denied it the day it was filed, and it was a very complex issue. And I, I think that, that they might feel he didn't do justice to it, and it needs to go back.

Benjamin Wittes: Well, I will just say that all of this is a tempest in a teapot because the Supreme Court is gonna overturn this decis, this conviction on the basis of a retroactive application of the immunity decision to it. It's just a question of how many steps we have to go to get there.

And so I say if Trump wants to be in federal court, fine. Let him grease the wheels for him up so that we can all learn that it was illegal to get Hope Hicks testimony. That's my view of the matter having sat through the whole thing and had everybody waste my time as a result of not having the benefit of that decision earlier.

Meanwhile Roger, James, we have a, I think–

Anna Bower: Yeah. Go ahead. Sorry

Benjamin Wittes: –partial stay in AP v. Budowich. Who is, what is AP v. Budowich. And does it have anything to do with Pete Buttigieg?

James Pearce: All right, so the, the, the cost for, for me answering that question is, is me giving two seconds of thoughts on the Second Circuit oral argument first. So it's the price of admission to, to, to, everyone's gonna be on their, their seats about whether Budowich and Buttigieg are in fact the same person.

I just wanted to add, it was to me. So, so two things, one very interesting, how much emphasis was placed on what Jeff Wall, the advocate for Trump was calling the evidentiary immunity which was the portion in the immunity decision that dealt with, well, look, even if there isn't a, a kind of a broad criminal immunity what about some kind of evidentiary component that, that, that could come into play and be used analogizing to other areas of immunity law?

There is an argument that that entire part of the Supreme Court's decision is entirely dicta, right? Like the question was not before them, whether or not they, they, they should or should not create an evidentiary immunity. The court the otherwise 6-3 court seemed to break 5-4 on that.

And so there may be some play in the joints there, even aside from the question, uh uh, that, was kind of that the, that seemed to be kind of kicked around, which is like how important to the overall case was the Hope Hicks conversation which I should say adds a second part of this so-called evidentiary immunity.

Jeff Wall was arguing that, look, this is akin to a structural error. One of the judges, I can't recall which one was like, well, why isn't this kinda like a harmless error argument? We kind of figure out how important this is to the, to the case as a whole.

All of which I think underscores kind of how much this, how, how underdeveloped this doctrine is and how much still needs to be sussed out. Maybe I'm just still gnashing my, my teeth over a bad experience with this whole immunity thing, but I do think that like this kind of very–

Benjamin Wittes: Hey, you won at your level.

James Pearce: That’s right. After that the wheels fell off.

Benjamin Wittes: After that, the Dreeben guy blew it at the Supreme Court.

James Pearce: But, but you know, it, it will be interesting to see in this much more discreet kind of evidentiary quote, immunity question, whether the, whether the Supreme Court, assuming it goes there, as I I tend to think it will, will be as bullish about kind of carving off even that little of a conversation in, in what, in what was otherwise a very different case.

Second thing I would just say is I found it extremely refreshing to to hear a very well argued case by, by advocates who were extremely responsive to the panel. I think Jeff Wall–

Benjamin Wittes: Did a great job.

James Pearce: Former SG, is a terrific advocate and very much showed his, his skills. You know, he wasn't one of these sort of trying to be cagey with judges trying to talk over judges, what, you know, stopped, gave responsive answers. I thought the advocate for, for New York did a great job as well. And as I said in, in this day and age, it was refreshing to hear that.

Benjamin Wittes: Yes. And it helps that there is actually a real issue here. I mean, my, my jokes and frustration about it aside. It's a really, it's actually even an interesting issue, if a somewhat frustrating one. And it helps that you had three judges who were engaged in it seriously, and it was well argued on both sides.

Alright, we gotta go to audience questions, but we would not be fulfilling our duty if Roger, we did not talk about Dunn v. Austin. What is this case about? And it's again, in that throwback s category

Roger Parloff: Yeah, well this is a–

Benjamin Wittes: Oh, good point. We missed Budowich. James, you, you took more than two minutes and you didn't answer my question,

James Pearce: So I did. All right. I’ll keep this crisp, although it’s a fascinating case. This is the, so Budowich is a, I think a Deputy White House press secretary, very different from Pete Buttigieg. But this is the case involving the, the taking away of AP’s press credentials after their style guide refused to describe the Gulf of Mexico as the Gulf of America.

Judge McFadden, a Trump appointee ruled in favor of the AP put, put in place a, a preliminary injunction and basically said the government could not take that, that action, which I, I suppose to its credit, or at least its candor, the government had said, oh yeah, this is very view, this is entirely viewpoint based. If you, you know, if you, if you adopt the, the government's view, we’ll you know, presumably restore your credentials.

The D.C. Circuit granted a stay pending appeal for most of what the government wanted for the Oval Office, for Mar-a-Lago, for sort of private spaces. And a lot of the analysis hinged and I should say by way of background, as folks may well know in the First Amendment, they're sort of all these doctrinal edifices that courts have created over the years to try to help kind of decide First Amendment disputes.

One of them is what kind of forum are we in? Are we in a public forum? Are we in a non-public forum? Are we in a forum designated by the government? And here, the, the two judges that granted the stay Judges Rao and Katsas basically said the, the areas that we're talking about, the Oval Office, Mar-a-Lago is no forum at all. And so the government can in fact engage in viewpoint discrimination there. And, and similarly can in take retaliatory steps.

Judge Pillared sort of strongly pushed back and, and said no court, no case ever has essentially permitted the, the type of approach that the majority takes here. The AP filed an en banc petition I think two days ago or a day ago. It will be interesting to see whether–we know the D.C. Circuit's been active in a couple of different cases, the, the Harris and Wilcox, the Voice of America cases–whether they will intervene here or not, but that's the the quick and dirty on on what is a very interesting First Amendment opinion in AP v. Budowich.

Benjamin Wittes: Alright, back to Harry Dunn, Roger

Roger Parloff: Dunn is a plaintiff, you know. It's Harry Dunn and the other plaintiff is Danny Hodges. These are heroes of the January 6th. Harry Dunn was a U.S. Capitol police officer. Danny Hodges was Metropolitan Police Department. Danny Hodges was the one caught in the door in the lower west, the terrace archway, archway.

And in 2022, a law was passed to hang a plaque in their, in the honor of the police officers who defended the capitol on January 6th. And and the law requires that the plaque be hanged by March 14, 2024. In the interim we, we know what has sort of happened, and with respect to political perspectives on January 6^th.

And apparently on recently the Capitol Architect Thomas Austin was asked why that plaque hasn't been, put up. And I think his answer imp suggested that modifications to the House side of the Capitol are directed by the Office of the Speaker, Mike Johnson. And it, it hasn't happened. So those officers have brought a suit.

It alleges the, the grounds are, are, I don't know, I can't assess the legal merits. I think sometimes suits are brought to be, to serve an educational function. But the part of it is a mandamus proceeding against the architect that's Austin. And part of it is an equal protection claim based on the fact that a plaque honoring two other officers who there was a tragic in incident about them has been, has been installed.

So, that it's an interesting suit and it's being bought by Brandon, Brendan Ballou. And maybe it would be appropriate if Quinta tells us who, who Brendan Ballou is, because we also have something to say about Quinta soon.

Quinta Jurecic: Sure. So Brendan Ballou was a former Justice Department prosecutor, I'm trying to pull up right now the op-ed that he wrote after departing from the Justice Department about having prosecuted some of these January 6 cases. So this, there's kind of, something perhaps interesting here about having prosecuted these cases and now suing on behalf of the police officers who were defending the capitol against the rioters.

Benjamin Wittes: Brendan has also been a guest on the Lawfare chatter podcast if memory serves. All right, let's go to audience questions. Josh asks, should the Donald Trump appeal, should Donald Trump appeal the Second Circuit’s en banc affirmation of its earlier rejection of his appeal of the lower court's judgment in the Eugene Carroll matter how likely is it that the Supreme Court will hear such an appeal of a civil judgment that is not financially significant to the defendant?

I would say that is in and of itself not a cert worthy matter. It's a defamation case worth $5 million. The only thing that might make it cert worthy is that the name of the, it doesn't raise any particular novel issue. The only thing that would make it otherwise is that the name of the defendant is Donald Trump. And some justices might determine that there are some dignitary factors that are important for the presidency.

But I don't think other than that is, it is a cert worthy case. James, Roger, Anna Quinta, do any of you disagree?

Roger Parloff: No, I, I agree. And it, the en banc ruling was eight to two with the two, two Trump appointees dissenting.

Benjamin Wittes: Linda asks, why are we concerned with what Abrego Garcia has for a criminal character? Is it not the point that he did not initially have due process? Shouldn't this be the thing that opens the door for the rest of those who have been disappeared?

So the answer is, for which thing? Right. He is now charged with a crime. You have to evaluate the criminal, the evidence in the criminal case to decide whether he should be convicted of the crime. His case is different from, as to whether his return should open the door for the rest. His case is different from the others in that he was actually deported conceitedly by accident. The government doesn't really only sort of claims the authority to have deported him. It sort of says, oops, but–

Roger Parloff: The others were deported by criminal contempt.

Benjamin Wittes: Right, exactly. So I do think his situation is different and the reason we care about the evidence in the criminal case against him is that he could spend the rest of his life in prison based on that. And so you wanna reassure yourself that if that's, if he's gonna be convicted of some very serious crimes that he's actually guilty of them.

Roger Parloff: I think she's right though. The case was about due process and, and absolutely the original case, and this is the way to, this is a face saving thing.

James Pearce: can I just add, I, I think I alluded to it but didn't say it specifically. And, and I think it is worth noting that one of the things that came out of the detention or appears to have come out of the detention hearing is that no criminal federal criminal investigation in, in other words, with an eye towards charging him with a criminal offense, appears to have arisen until like late April.

In other words, this wasn't something where like this, he was long on the, this is someone we need to investigate and prosecute list. It appears as though this arose after all of the kind of shenanigans around the erroneous removal and the fighting about trying to bring him back.

Benjamin Wittes: Finally.

Quinta Jurecic: In fact, I think that the, the investigation began in, during a period, the period in which discovery was stayed because the government said it was working on facilitating his return.

This thanks to our amazing executive editor, Natalie Orpett, for digging this out. The discovery was stayed from April 23rd through the 30th, and I believe the the investigation according to this agent at the Abrego Garcia’s arraignment began on April 28th.

Anna Bower: Yeah. And can I?

Quinta Jurecic: So that timing is suggestive.

Anna Bower: And can I, I have a question for James? Oh, I guess we don't have time.

Benjamin Wittes: Yeah, we got, we gotta wrap. Finally, Andrew asks, can. And by you here. I think he means I give a rundown of what I think the odds are of the five cases you listed in your Situation post falling apart based on recent developments. So for those who didn't read the column, I mentioned five of these immigration derived criminal cases and said I was predicting that at least two of them would fall apart and not result in in convictions.

So in reverse order of, of in, in order of reverse the reverse order of confidence in the integrity of the prosecution. Number one, I don't believe McIver is gonna be convicted. I don't believe Kseniia Petrova is gonna be convicted. I'm not even confident as we discussed that Kseniia Petrova is gonna be indicted. So those two, I would guess better than 50 50 chance they don't get convicted.

Kilmar Abrego Garcia, I do think will probably result in a conviction because they've thrown so many possible years in prison at him in this indictment that he'll probably have to plead out to something. So that's my, that's my lurking inner defense lawyer instinct about that. Who were the other two?

James Pearce: Huerta is one of them.

Benjamin Wittes: Oh, David Huerta. David Huerta is not gonna be convicted of that. I don't, again, I don't, when it, I don't even believe it'll go to, I'm not even confident a jury would indict that. That statute is used for, for like really serious stuff. What was the last one? I don't remember. So you get four out of five.

James Pearce: Judge Dugan? That, that–

Benjamin Wittes: Oh, Judge Dugan, she may have a problem. I don't know. James is in a better position to evaluate that one than I am. James, what do you think? Chances one, what percent chance do you give of a conviction in the Dugan case?

James Pearce: If she doesn't prevail on immunity, which I don't think she will. I, my, my best bet is that she, she enters a, a guilty plea to the concealment, which is not a felony and does, doesn't do jail time. I don't think she ends up going to trial.

I, the facts a lot will depend on what the facts really are, but if the facts are the way they're laid out in the indictment, it's not a good look for her. No, it's, it's, it's really not. But I, I, so, I, I see that as potentially better than a 50% chance likelihood that she gets convicted.

Benjamin Wittes: Yeah. So I would say three of them I would take even money against a conviction. Two of them. I would take even money on a conviction, but I don't think they'll, you know, they're, I, I doubt they'll get indict, they'll get convicted on the text of the indictment. Right? There'll be some plea out. I don't know. I don't have confidence in these cases.

Alright. This brings us to something that I do have confidence in, and that person's name is Quinta Jurecic. Quinta is leaving us moving on to greener pastures, bigger and better things. And this is going to be, I'm afraid, her very last Lawfare Live, at least until she rejoins us as a guest every week until the end of time. Quinta. You get the last word today.

Quinta Jurecic: Oh my gosh. I, I should have prepared something. I didn't actually prepare it.

Benjamin Wittes: You can say, I'd like to thank my parents and the Academy and,

Quinta Jurecic: No, it's, it's, of course, it's been wonderful. I will, we will have more details soon about what the situation is. But thank you all and keep watching Lawfare Live. I know, I will.

Benjamin Wittes: Folks, we will be back except for Quinta and I will not be back tomorrow, next week because I am going on vacation. In fact, this law live is the last thing I'm doing before I don't do any work for an entire week. I'm gonna have a glass of scotch. I'm gonna get on a plane. I'm not gonna go to a military parade or to protests. Y'all have a, I will see you in two weeks and behave yourselves.