Lawfare Daily: Trials of the Trump Administration, June 20

[Intro]

Scott R. Anderson: We have to bear in mind something that is a reality on the ground now more than when Judge Breyer initially ordered a TRO in play is that it is not just California National Guard personnel involved in these operations, it is U.S. Marines, active duty militaries.

Natalie Orpett: It's the Lawfare Podcast. I'm Natalie Orpett, executive editor of Lawfare with Lawfare Senior Editors Scott Anderson, Anna Bower, and Roger Parloff and Legal Fellow James Pearce.

In the June 20th episode of the Trials of the Trump Administration, we discussed the litigation over President Trump's federalizing the California National Guard, the order for the release of Mahmoud Khalil, the legal challenges to President Trump's IIEPA tariffs, and so much more.

Scott R. Anderson: And so when the, the judge says Posse Comitatus Act, I think what he's actually saying is the actual operations happening on the ground, not just the calling up the federal troops.

Natalie Orpett: Hello everyone and welcome to Lawfare Live. I'm Natalie Orpett, your guest host in for Benjamin Wittes. I am joined by the regular crew: James Pearce legal fellow, Anna Bower senior editor, Roger Parloff senior editor, and Scott Anderson, also senior editor. So thanks everyone for joining us. We will do our regular rapid as we can, but oh my gosh, there's so much to talk about, roundup.

So let us begin promptly. We have some very interesting things that happened this week in the immigration space, starting with an interesting matter before the Ninth Circuit. So James, let me come to you first to tell us about the oral argument and decision in Newsom v. Trump, and what is it that the Trump administration is allowed to do with respect to military deployments, to Los Angeles protests?

James Pearce: Yeah, thanks Natalie. And, and folks, regular listeners will, will, will surely remember, but just so we're all on the same page. This is of course the case involving the proclamation by President Trump on June 7th that involves sending National Guard and then later Marines to Los Angeles in theory to respond to, to protest and, and riot type activity there in connection with immigration, customs enforcement, ice enforcement actions, and then kind of protests of that.

At the end of last week, we talked and about Judge Breyer who had issued the temporary restraining order that agreed with California's challenge. The, the administration had had invoked or had used 10 U.S.C. 12406. As, as we've talked about and as will be relevant in, in talking through what the Ninth Circuit has done, that has kind of three sort of triggering conditions that allows the, the president to, to federalize the, the National Guard.

One is an invasion, that's not in play here. The next is a rebellion that is, that was sort of in play in the government's briefing, but, but as we'll talk about really fell out at, at this stage in the case. And then finally, the one that's really mattered the most is where the president is unable with through, through use of the regular forces to execute the law. That's the third and, and the one that got the, the most attention.

So California challenged and said both that substantively none of those conditions were met. And that procedurally the way that the Trump administration and the executive branch went about actually trying to implement it, namely essentially sending a notification to the adjutant general, not to the governor himself, writing on the top of the order. This happened through the governor, which is what the statute requires was, was substantively, excuse me, was procedurally in, insufficient.

So those were the issues teed up in front of Judge Breyer. As we talked about at the end of last week, Judge Breyer agreed with the challengers, that is with California. Both finding that there was, there was on the substantive piece, no rebellion and that there was not, in fact the, the sort of the factual predicate to show that the president could not, with regular forces execute the law. And that the, the sort of the mechanism that the, the administration had used going through the adjutant general was not procedurally didn't comply procedurally with what the statute required.

Then that gets us to, to what happened this week in front of the Ninth Circuit. They had a busy week. The, the administration admit they had put an administrative stay on quite, quite quickly and then held oral argument on Tuesday.

The advocate for the government was the same advocate who had appeared in front of Judge Breyer, Brett Shumate, or Shumate, I'm not sure exactly how it's pronounced, former Jones Day attorney.  He was in front of a panel of two Trump judges, Judge Bennett and Judge Miller, and then one judge appointed by President Biden, Judge Sung.

The government's position somewhat similar to take taken in the district court was to take pretty extreme position. So some of the questions were, you know, could, could a court review this at all? The sort of questions of justiciability, was there any role for courts to play? And then if the courts could play some role how deferential should they did? Did they need to be in the government? You know, top line position was no, no place for the courts here at all. No, no reviewability, no justiciability.

But if the courts could review, it had to be highly deferential. The, the government advocate got pushed on things like. Well, even if the, what if the president said like, I'm going to federalize this and give no reason whatsoever. And by the way, imagine some hypothetical future president that you current administration don't like. Same answer. And the government stuck to its guns. And that was the answer that it, it was going to live or die by.

The, I have to say that, that the panel I thought was sort of pressing both sides, certainly pressing the government, had some trouble with some aspects of, of Judge Breyer's order. One of the questions that came up and, and certainly comes through in the opinion that the court ultimately issued later in the week, yesterday in fact, was on the question of the compliance with the law or execution of the law.

Remember it is the president cannot, with regular forces execute the law well, how much, right? I mean, just a, is it a little bit of, of an interruption executing the law enough to do this? Does it have to be 50%, 20%? Judge, Judge Bennett was kind of pressing the government on this and pressing California as well.

And, and the advocate for California, I think it was a, a, either a deputy attorney general or deputy solicitor general, I thought did the best that he could. One of the things that came up quite extensively, both in the oral argument and the, as in the opinion that we'll discuss, we talked about it last week, was the Supreme Court's decision in Martin v. Mott.

This is the case as, as folks may remember, who've been following this or who listened last week, older Supreme Court case, essentially involving a militia member who, when sort of pressed into service by the president sort of said, no, I, no thanks. You know, I, I'd rather not show up. And the court, the Supreme Court said, you know, you know, you, no, you individual militia member don't, don't get to make that call.

When so Jack Goldsmith, as we talked about last week, has written and said, look, this could be a real problem for California. And, and Judge Breyer really didn't sort of do enough to explain why this, I, why Martin v. Mott doesn't really gonna color the, the, the result here or, or influence the result here.

The advocate for California has tried to distinguish it by saying, well, this was a case involving a foreign invasion. So the call up of the militia was in response, I think in the War of 1812 to kind of, foreign military incursion. So that's a difference. And that it also had to do with the, the chain of command. And that, that, if, you know, if it's, if it's one person, you know, if it's somebody within the, the chain of command that's not reviewable and it's different, California argued from what we've got here.

So that's kind of where things stood at the end of argument, it was tough to kind of predict. Certainly the, the panel had a lot of events, a lot of skepticism about Judge Breyer's ruling but also seemed to be pretty skeptical of the government's quite extreme position saying, you know, no role for courts at all. And, and you've gotta be highly deferential when you review it.

So lo and behold, when we get the, the opinion that dropped yesterday evening, the, the Ninth Circuit, granted the government's stay pending appeal. Didn't address the rebellion question at all, went straight to, to execution of laws.

First said we, we disagree that this is nonjusticiable. There is a role for courts to play here. The political question doctrine, the Ninth Circuit said has never been applied to a question of interpreting a statute. It's arisen in kind of constitutional questions. So, you know, it has, there's nothing here that, that re, requires or precludes a, a court review.

But it did, the Ninth Circuit did ultimately conclude that any review had to be highly deferential. As it said that on, on the one side, on the other side, it was very careful to say we don't agree, however, that this is limitless. And the particular language that they use was that the courts can make sure to review, see if I can, I can find it something like where it's obviously wrong or taken in, in bad faith.

I'm, I'm, I'm can't find the precise language right now, but clearly responding to this notion, we talked about this in the Lawfare Live last week. You know, if, if an executive order had said something like, where is the moon is made of green cheese, I hereby federalized the, the, you know, National Guard, you know, that would be preposterous. And, and the Ninth Circuit the, the sort of the standard that they devised I think was designed to speak to that.

But then they say wherever that standard might kick out, we, we don't have you know, an obviously incorrect or in bad faith, or obviously absurd or in bad faith proclamation here. And so it, it ultimately landed on substantively thinking that the government would be more likely to then not to succeed.

Procedurally, it, it also kind of found that the adjutant general could, could serve as the agent of the governor of California. And thus notice to that adjutant general was sufficient to procedurally comply with, with whatever procedures that the, the statute put in place. And, and frankly, the, the statute isn't particularly clear on procedures. It just says it has to happen through the governor.

Last point, and then I'm sure folks may, may who listened or who've been following this, wanna, wanna jump in. Another issue that, that has come up through this been plenty of them, but one that's worth pausing on for a moment is the Posse Comitatus Act.

That was another basis for so, so part of, of California's concern or, or claim. They didn't actually press it in their, in their litigation. And the way the Ninth Circuit kind of dealt with that is to say, look, all that the federalized forces here are doing, the National Guard is protecting property.

And so that's, we don't have to then kind of worry about whether there is something, you know, that, that those, those forces are doing something that could implicate Posse Comitatus concerns. And, and neither party, neither the government or California, neither the federal government or California had, had put that into play.

So, there's a lot more that that could be said on it. But the long and short of it is that this is now stayed pending appeal. I know Anna listened in on a very quick hearing today, but I don't know if, if any folks wanna jump in with other comments on either the argument or the opinion that we saw last night.

Natalie Orpett: I'm curious, James, for your view on the sort of flurry of coverage of this of course, the, the focus is on the fact that the order has stayed. But based on the opinion and the oral argument that you heard, where would you put it on the spectrum of, we're issuing an administrative stay because these are novel and complicated legal issues and more briefing is warranted full stop to we are telescoping how we might find on this once we get to the merit stage?

James Pearce: So I definitely think they put the administrative stay on for the first reason of getting more briefing. But, but now it's not an administrative stay. It is a stay pending appeal. And so that's gonna, gonna last while whatever else continues to happen in the district court and whatever briefing happens.

You know, query, by the way, I should have mentioned there was a short section on appellate jurisdiction. We, we've talked about whether, you know, appealing a TRO actually is appealable in any meaningful way. The court said, you know, we don't quite have to decide that because this isn't actually an appeal of a TRO, it's a stay pending appeal.

Though they also said you know, where a TRO sort of bears the characteristic or resembles a PI it, it would be appealable in the same way, including citing the same thing that the Supreme Court had done earlier and on its emergency docket earlier this year. So I don't think that's gonna end up sort of imposing much of a, of an obstacle.

But I think that, that the court's reasoning, and again, I, I'll be very curious to see if, if others have other views. I think it probably closely tracks where they're gonna come down. I, I mean, I think we talked about this last, last week. It's, I think a really genuinely challenging question between how much deference or, you know, even whether there's a role for courts to play at all.

And then, how you then map that on to a situation like we have here where there's clearly very different views about the facts on the ground and whether it is a fair invocation of subsection three of, of the statute. So I tend to think that this this ruling is, is a, is a kind of a pretty accurate sense of where the court will ultimately land, but others may have other views.

Scott R. Anderson: I, I agree with that, although I do think there's a note of caution here. I believe this is still was still an emergency motion for stay, so I don't know exactly how the Ninth Circuit handles it, but I think it's akin to what we see in the D.C. Circuit where it goes to a temporary panel for emergency motions.

So it may not actually be the same panel that I think gets the ultimate appeal when the district court issues what it considers a preliminary injunction, a self named preliminary injunction and that gets appealed. So it, it's hard to know, and it's hard to know how reflective this three-judge panel is of, is of the broader Ninth Circuit.

A much a bigger body on which Trump has a number of appointees. Like this isn't the Ninth Circuit of 10 years ago. Like it's not as left leaning as people used to think it is. Although it certainly has some precedents that help in that direction. And so, it's hard to know exactly how this panel lines up with the broader court, at least in my mind, and it's gonna be a different panel I think that actually hears this issue once we see the full appeal.

The, correct me if I'm wrong on that, James. I'm pretty sure that's the case.

James Pearce: Yeah, so on that procedural point, certainly I'm not positive. We've certainly seen the D.C. Circuit constitute itself as an emergency panel and then hold onto some of these for the, for the merits. That could happen here. I, I don't know that the, the, the Ninth Circuit's typical practice and whether now that they have this group of judges has resolved it as a on an emergency basis, whether it would go to a different group.

I will just make one brief comment, which is, so the panel had two Trump judges, Trump appointed judges, and, and as I mentioned, one Biden appointed judge at the oral argument. I, I actually took the Biden appointed judge to be, in some cases, the most skeptical of the government's position.

You know, it was, it was interesting. It's maybe not what one would've thought kind of coming in, but, you know, certainly was not kind of pressing the government. I, I actually think maybe didn't even ask any questions to the government at all the, the federal government, and then had some questions to California particularly about, I don't, I don't follow your reading of Martin v. Mott.

So, you know, it might scramble some of the ideological alignments that that one, one might otherwise kind of attribute to, to the judges. But, but yeah, it'll, it'll be interesting to see.

Scott R. Anderson: And one note on that point I think is worth flagging as well, is that, you know, this motion, what we saw, political appointee argue it, Mr. Shumate’s who's done it before. The briefing was done by career civil appellate attorneys Sharon Swingle being the lead one who's like been in civil appellate for like two decades now, longer maybe. A very experienced person.

The briefing was actually like quite good and a step up, good step above I think we saw in the district court, although in the district court lawyers defense, they'd had to do it very quickly.

And I think these are the sort of arguments you would see from the executive branch in the ordinary course from an quote unquote ordinary executive branch. Different administrations may lean on different arguments, particularly the kind of political question doctrine, absolute deference on the standards of 12406 differently, you know, maybe this administration leans a little more on that than other administrations might. But generally I think this is in kind of the spectrum of how we would see the executive branch argue this under, under most presidents.

And I think this outcome, particularly on Martin v. Mott is kind of what most people who have studied law in this area kind of expect most courts to lean towards because there has been such strong deference in similar circumstances where there's this national security nexus. There is this military nexus. No, it's not foreign affairs strictly. But you do have this strong precedent of deference.

So, I'll say, you know, I think this might be more indicative than you might think of how the broader Ninth Circuit will view it. 'cause I don't think this actually is as ideologically stricken in a case as it may seem. It's a much more just kind of conventional judicial approach to a hard set of issues.

Natalie Orpett: Anna, I wanna come to you on, now that the district court has its marching orders, what happened today?

Anna Bower: Yeah, so today was supposed to be a hearing that was an order to show cause why a preliminary injunction should not be issued. As James mentioned that initial order that was entered by Judge Breyer was a temporary restraining order. Typically those aren't appealable, but as James mentioned, the Ninth Circuit when they issued this order, one of the things that they did was say you know, this has the qualities of a preliminary injunction.

So they kind of, you know, construed Judge Breyer's order as a preliminary injunction. So then we get to, you know, 12 hours later, they're supposed to be a preliminary injunction hearing. It, it started about an hour late. But then when it did start, it was very clear that you know, we weren't actually gonna be hearing any substance of those arguments on the motion for preliminary injunction.

Instead what we got was a very brief kind of status conference in which Judge Breyer said, you know, I, I have had a, you know, read the Ninth Circuit opinion. I'm sure that all of you have been up late reading it as well, and, and working on these issues. Clearly we're not gonna have a preliminary injunction hearing today because I must follow the Ninth Circuit's order.

But I, I do need some guidance on how to move forward because, and then he explains that, as James mentioned one of the issues that was kind of percolating at that initial TRO hearing was this question of whether or not the members of the National Guard were, were violating or would imminently violate the Posse Act, which prohibits the use of military forces in in law enforcement in the domestic sphere.

And, and so although that wasn't really pressed and ultimately the district court, Judge Breyer didn't really reach that issue because he felt it wasn't ripe yet. It it, and then it as a result was not, you know, reached by the Ninth Circuit in this preliminary injunction briefing. The state has been arguing while the Ninth Circuit litigation was going on that Yeah. Now they actually are violating the Posse Comitatus Act, and we want in the injunction to include, you know, barring federal forces from you know, carrying out law enforcement functions in violation of the Posse Comitatus Act.

So there's this lingering question then of, does Judge Breyer still have jurisdiction to enter you know, a preliminary injunction that it relates to the Posse Comitatus Act? Because he never reached it previously, the Ninth Circuit didn't reach it as a result. So what, what authority does he retain to even address that issue?

That's what he brought up today. Obviously he wasn't ready to hear argument on it because he didn't know the answer to the question. And what he did instead was direct the parties to brief the issue on what jurisdiction he retains on that question. The briefing, I believe, is due June 23rd. So sometime in, within the next few days. And then he's gonna decide what to do after that. Maybe there's further briefing, maybe there's a, a hearing on those arguments.

The other thing that was raised by counsel for California as well, in addition to that issue was this question of timing. You know, when does the federalization of the guard end I, I, is it indefinite? You know, what, to what extent is the kind of, you know, time limits on this kind of thing? And, and Judge Breyer said, okay, you can, you know, brief to the extent that you, you need to, you can brief that issue too.

So we will see some briefing in the next few days on those issues and, and then we'll see where Judge Breyer goes from there.

Scott R. Anderson: Just one thought. And to add on that, which I think is worth contextualizing what I think Breyer was getting at, people were getting at with the shorthand of the Posse Comitatus Act violations. We have to bear in mind something that is a reality on the ground now more than when Judge Breyer initially ordered his TRO in play is that it is not just California National Guard personnel involved in these operations is U.S. Marines, active duty militaries, for whom section 12406, which has been the only subject of the TRO that was subject to appeal to the Ninth Circuit that's only focused on 12406.

That's completely irrelevant to the U.S. Marines. You do not need them to federalize anyone 'cause they're already federalized. They're now on the ground doing these sorts of operations. And so when the, the judge says Posse Comitatus Act, I think what he's actually saying is the actual operations happening on the ground, not just the calling up the federal troops.

And there the argument wasn't just tension with the Posse Comitatus Act, it's also the scope of what the president's allowed to authorize the soldiers to do. While he doesn't, they don't actually say it in briefing in the case, the theory that they're relying on, which is this inherent capacity to protect federal personnel and property is often referred to as the protective power.

It's this idea of an inherent constitutional, to some extent, implied statutory authority that the president has to defend federal personnel and property that is essential to doing its mission of enforcing the law 'cause otherwise, if you didn't, couldn't defend federal personnel, you couldn't abide by obligation to take care of the law, be faithfully executed.

And so, but there's a big question that the Justice Department has carved out in its several opinions were relied on this in regards to protests, particularly in the Vietnam era. They always were really careful to draw a line between, yes, we can use this to defend federal personnel and property. And sometimes that can even mean things like clearing traffic obstructions and making people can get to their office.

But it's really different when you're doing things like suppressing protests or proactively engaging things. There has to be this nexus. So there's a real question with how the Trump administration is using this personnel saying, how consistent is this with this protective principle? Part of that is about tension with the Posse Comitatus Act because there is this question as to whether this is actually an exception to that.

But part of it's also about the actual scope of the protective power. What is that inherent power of the president? The really fact specific context, specific line of argument. That's probably where this is gonna go next, and I suspect Breyer is gonna find that he has jurisdiction to issue preliminary junctions 'cause he hasn't touched on this topic yet. He's specifically reserved it and they are very much live topics now.

And frankly, California, the one issue you may have is, well, is there a standing issue here? How can it argue it's affected by its citizens who might be affected by, you know, overly aggressive use of personnel? I suspect they would have standing. But you could see a tension there.

But then you might see litigation come from another perspective, which is the people actually being affected by this on the ground, whether they're subject to enforcement activity, whether they're advocates who feel like their First Amendment rights or other rights are being chilled.

In short, we haven't seen the end of this litigation on this. There's gonna be a lot more litigation on this going forward, and I suspect it's gonna shift away from 12406 to this much harder set of questions about what is it the president can actually do on the ground. And that's in some ways an even more fundamental question that bears to the heart of how the president can use the military domestically in a variety of context.

Natalie Orpett: And that issue has come up in other contexts as well. So it will be I think the first time that it's really squarely before a court.  I'll take a minute here to just say that we have published some truly excellent work by Chris Mirasola digging into these legal authorities. So anyone who is interested in digging in some more you can find all of that on our website.

So Scott, I wanna come back to you because DOD just announced that it is sending yet more personnel to assist with ICE operations. What happened there?

Scott R. Anderson: Yeah, so this is like communism, a bit of a red herring. So I would not get too spun up about this particular development. The Defense Department announced, I think, day before yesterday that they're sending DOD personnel to, I think it's Florida, Louisiana, and Texas, to assist with administrative tasks and logistics support around the processing of individuals at ICE detention centers.

This is not the same sort of thing that's happening in California. There are a variety of statutory authorities in place to which the military can provide various types of logistics support to law enforcement personnel, particularly in relation to immigration and border enforcement but also through a variety of interagency agreements.

And that sort of activity actually there's pretty well established precedent for it in a lot of different contexts. Not necessarily exactly what they're doing, but for something similar. And particularly if they're not involved with like actually detaining people or arresting people or confronting civilians, which the statutory authorities authorizing for many of these types of support actually expressly prohibit.

In other words, it's not a carve out to the Posse Comitatus Act that actually reinforces it. You, you're not gonna see them being used in the same ways that raises the same legal questions. So I suspect this is a story that got a lot of pickup because it looks, it sounds a lot like the president is expanding what he's doing in California.

I thought that as well 'cause of course the president's June 7th memorandum authorizing all of this is not California specific. He says, you can do this all across the country, secretary of defense, secretary of homeland security. But I does don't believe that's actually what's happening.

Instead, we're seeing a much more conventional interagency support being used by DOD personnel. Doesn't mean it's not objectionable, it doesn't mean it's not potentially raise other legal issues, but it's not gonna be the sort of thing we're seeing in California, at least not as authorized and as described by the Defense Department so far.

Natalie Orpett: Yeah, I think that's right though. I would caution that. I think it has a great deal to do with some of the concerning stuff we've been seeing around Alien Enemies Act cases and the involvement of military there. So, it is definitely something to watch to say nothing of the fact that, I mean, you're, you're correct that there are legal authorities for DOD to assist with DHS and other agency personnel and their variety of ways in which that could happen, all of which require specific parameters and limits on, on what that authority looks like.

So it's definitely going to be something to track, given that we just have more people than ever before being deployed for what are effectively law enforcement purposes, if only to support them. It's quite different from what the military is otherwise used for.

Switching gears. Roger, I wanna come to you to talk about a different immigration matter we've been covering for quite a while now, which is the case of Mahmoud Khalil, the Columbia University graduate student who is detained. Tell us what's going on with him.

Roger Parloff: Yeah. So, spoiler alert, we had some news today and Judge Farbiarz has ordered the release of Mahmud Khalil today. And we'll have to see if it really happens, but Judge Farbiarz really wants it to happen and wants it to happen today. We have talked a bit about him, so I, I won't try to do the whole put you through the whole thing.

But this is the, this is a Columbia graduate student, lawful permanent resident no criminal record, Palestinian. He participated in the Columbia University protests. And he was really the first to be arrested, I think on March 8th. He was arrested. He has a, in front of his wife who's a US citizen, and they, she's eight months pregnant. And it was clear that they were sending a message. They used that language, they were sending a message. One official called him the blueprint that they were going to get rid of, and they, they actually.

Anyway, so the, he, he sues, he, he brings the habeas corpus the next day, March 9th. And the cr, crux of it is obviously retaliation for First Amendment protected speech. His, his involvement in the protest. He finds out after about three days that the, the basis for removing him is that Rubio you know, that provision from the fifties that Rubio invoked about, Secretary Rubio about that his presence in the United States would have an adverse effect on foreign policy.

A few days after that, they brought a second charge, which Khalil’s lawyers call the post hoc charge, and it claims that he made misrepresentations on his application for a green card in March 2024. So in March 20th, he moved for bail, and that was never acted upon until today. And so there, that's sort of a subject matter in itself. So he's been in jail for 104 days.

Meanwhile, others in this wave, at least five others, have been all charged and released because of first, of the theory that the, their detention was part of a first, retaliation for First Amendment protective speech. Anyway things go along and finally, in toward the end of May Judge Farbiarz did not rule on the First Amendment question. He ruled that the Rubio charge was void for vagueness as applied to, to, to Khalil.

And then on June 11th, he enjoined implementation of the Rubio charge. But that left the other charge and which Khalil's lawyers had re, always regarded as well that's the post hoc charge. That's just something they added on as part of the retaliatory course of action. But of course Judge Farbiarz had never ruled on the First Amendment issue.

So, but what, but what Farbiarz did say is that it's highly unlikely that DHS would try to detain him on that because Khalil had entered declarations saying nobody is detained for misrepresentations or really omissions on a, on an application form. And they had three rock crusher declarations, one from a scholar, one from a practitioner, one from a former ICE general counsel basically.

And but regardless of what Farbiarz predicted. They did keep him on the, on the post ho charge. And so today Judge Farbiarz held the bail hearing and decided to order his release. And apparently for this sort of thing, you would need your, the, the precedent show you need to show extraordinary circumstances beyond not just that he's a no risk of flight and not, and no danger to the community.

And so what he said was that, keeping him in jail is chilling him. We know that he is an activist and you are chilling his speech right now, he can't participate in protest. In addition, he's shown at least a substantial claim that there is a, a that there's a due process, violative effort to punish him. So, so he's finally getting out.

There was disturbing, there was a disturbing thing during the hearing. There's a parallel proceedings going on in front of an immigration judge, and so during the hearing, his lawyer at the one who was speaking for him, he has a lot of lawyers you know, pro bono, I, I imagine from Alina Das of NYU's immigrants Rights Clinic finally got word back about what was going, whether the immigration judge had scheduled her own bail hearing.

And what she learned was that she was denying a bail hearing and she was ordering removal both on the Rubio charge that Judge Farbiarz had enjoined, you know, on June 11th and also on this post hoc charge. And both were surprising because there had been a hearing for before her on the post-talk charge, and it had crumbled.

It was, I mean, one charge was that it was so bad she dismissed it before at the out, the out outcome of the hearing. It was that he supposedly hadn't disclosed that he was still working at the British Embassy when, when he filed his application. And, and it, it was easy to show that he wasn't, he, he left the British Embassy in 2022.

And why would somebody, you know, withhold that information with an intent to deceive as you. Anyway, all of it was crazy. And this judge would have kept him in and, and did rule that he's removable on both charges.

The, the, the immigration judges in Louisiana. So I'm totally speculating here. Perhaps she's thinking that the injunction doesn't reach her in Jena, Louisiana. I, I have no idea. We didn't go into that. But anyway, that's the, that's ba the basics of what happened.

Natalie Orpett: So is your sense then that the immigration judges order will be appealed and will just continue as a parallel proceeding?

Roger Parloff: I think so. Well, yeah. I think so, but I think he will be out. At least I, I don't, you know, I think they, the, the DOJ when, when it became clear that Farbiarz was going to release him, they asked for a seven day stay. And obviously they were going to appeal Farbiarz’s release order but he denied that.

So I they may appeal his detention ruling and they're gonna probably gonna appeal his preliminary injunction against the Rubio order as well. So, perhaps this will be continuing at, at, at both levels. I, I just don't know enough about, you know, about how the immigration procedure will go given that the habeas is still sort of ongoing.

Natalie Orpett: Yeah. Okay, let's switch gears to a different immigration case. But Roger, I'm staying with you on one of the Alien Enemies Act cases we've been following. Unfortunate acronym yet again, W.J.C.C. which is hard to keep track of. Roger, which one is this, please?

Roger Parloff: Well, it's actually one I don't think I've mentioned before.

It's a, it's an individual case in the Western District of Pennsylvania. It's before Stephanie Haines, which who I have mentioned before. She's the judge who handled A.S.R. And so she is one of the two judges who have found that the AEA, the Alien Enemies Act proclamation is valid. But even though she found in A.S.R. that it was valid, she also found that the agent should get the agent, the alien should get at least 20 days, 21 days notice before he can be you know, taken to CECOT. He, he needs to be able to have an opportunity to, to challenge whether he's really a member of Tren de Aragua and so on.

And the thing that came up in W.J.C.C. was all the same issues, but the reason it's of interest is that in the meantime, in the, sorry about this, but in the W.M.M. case, the, the, the, the government has finally come up with, a, a, its own due process proposal. And they're now saying they will offer seven days notice before shipping somebody out.

And they will also actually in that notice, they will advise that the alien has a right to bring a habeas, and they'll, this is supposed to be read to them in their language. And and they will also advise that if they want, they, they have a list of attorneys they can try to reach.

So it's the first sort of something that, that looks anything like due process. And so she's, the government said, look, we now offer seven days. That's sufficient. You don't need this 21 days. And she said, no seven days is still insufficient. And this is a judge that Trump appointed. She said 21 days is necessary when you consider they're incarcerated, that, you know, you, often DHS or ICE moves them from, from facility to facility. So, I think you still need 21 days.

And, and while I'm at it, the W.M.M. case is, is the big one. It's the one that's gonna be argued in the Fifth Circuit on June 30th. That's the case in which the government presented its new seven day policy and the ACLU men-, you mentioned some of the same things that that Judge, Judge Haines made about, mentioned about why that's inadequate. The ACLU is asking for 30 days.

But they also point out that yeah, it's nice to give them this list of attorneys and hopefully they're, you know, it's for real. But you're not entitled, you know, you can, you might be appointed an attorney, but they, they don't get paid. It's pro se still. And so, you know, as you get more and more of these people being sent out, it's gonna be harder and harder to find attorneys. And that's an additional reason that they're gonna argue that seven days is insufficient.

Natalie Orpett: Specifics of due process law being made as we speak, district courts all over the United States. Okay, a different immigration case that is a little bit easier to remember because it has to do with frog embryos. John Hawkinson, friend of Lawfare was at a hearing for Kseniia Petrova. Tell us what happened, John.

John Hawkinson: Thanks Natalie. Do you need any background on this case before we talk about this week's hearing?

Natalie Orpett: Just a reminder who she is and what she is.

John Hawkinson: Okay, so she's the Harvard frog, well, the Harvard computational biologist who attempted to bring in frog embryos from France in February, and she was detained by Customs and they tried to send her to her home country, which was Russia. And she expressed a fear of that.

And then they took her into immigration custody. And then she sat in Louisiana for three months. Then her habeas in Vermont came up in Vermont because she went to Vermont on the way to Louisiana, and that's where her attorneys caught up with her. Her habeas granted her bail, which would've been great except that apparently shortly after the government saw which way the habeas might be going they brought criminal charges against her.

And so she was then in criminal custody and she was released from criminal custody on bail when she finally came to Massachusetts last week. And at that hearing, they put off the probable cause hearing, which then took place this week. And I, I'm not the best on criminal procedure, but usually probable cause hearings are waived because you, it's a very low bar that the government has to show that there's probable cause in order for criminal procedure, criminal proceedings to go forward.

So this hearing on Wednesday, I thought was pretty crazy. There wa-, it lasted about two hours. There was one witness from the government who was the agent who swore out the affidavit who had no direct personal knowledge of anything that happened. But he had talked to CBP and other agents and he reviewed the videotapes of Petrova and her interviews.

And I guess the most striking thing was he could not define what biological materials are which is, you know, kind of relevant when the claim is that biological materials are the things she brought in and must have declared. Although the government's position is they have to declare everything. And she's charged under the smuggling statute, which requires you to be bringing in merchandise that should have been invoiced.

And he was also unable to define what merchandise meant. And it seems somewhat of a stretch to suggest that you know, frog embryos and microscope slides and vials that have no commercial value are really merchandise. But maybe, but there was really no the, so much of the hearing was, was just crazy like that.

And it ultimately ended with the judge taking it under advisement, but asking for briefing on really what the law was here, you know, whe, whether it's merchandise and whether the fact that, it, it may not be biological materials because the CFR defines biological materials essentially as viruses and antibodies and things like that, and not inert samples that are fixed in formaldehyde.

So whether those questions matter and that briefing will take place over the next two weeks on Wednesday and Wednesday, which is right about the time the Speedy Trial Act clock runs out for her to get a grand jury indictment. Although I think that might be delayed further. Excludable delay is a funny thing.

Natalie Orpett: This is really becoming one of my favorite examples of litigation takes all sorts of twists and turns. And one day you think you're talking about immigration law and the next you're talking about biological materials and merchandise. So thanks for that update, John.

I wanna stay with you though we are going to switch gears to our category that I think we are affectionately calling attacks on institutions in the United States. So John, you were at a hearing earlier this week in the case regarding President Trump's executive order against Harvard relating to its foreign students. Tell us about what happened at that hearing.

John Hawkinson: That's correct. So this is Harvard v. DHS. It's the second of two Harvard cases that are before Judge Allison Burroughs in Massachusetts.

And this is the second preliminary injunction hearing after the second TRO. The first, the case was filed on May 23rd, and there was an initial PI hearing on May 29th. But the government decided, you know, we're going to go and follow the procedures like Harvard asked us to. They essentially said that, which seemed a strange admission. And so the hearing did not go forward although there was a TRO that had been granted the day the complaint was filed.

So flash forward then to June 5th, where the Trump administration has decided to persecute Harvard a little more strongly. And not only are they removing them from the Student Exchange Visitor Program, but they're gonna deny visas to students and. So there was a second TRO from Harvard on June 5th, also granted the same day. And then we had the PI hearing on that this Monday, the 16th.

So at, at this hearing was a substantive hearing. And, and really the question, you know, Harvard characterizes itself as a citizen of the, of the United States, which is a little funny but I guess fair enough. And they claim that this is a retaliatory action against Harvard, which I think it clearly is. But therefore they frame it not really as a suspension of entry which the government says.

The government says, oh, we can suspend the entry of whomever we want. We have extremely broad powers under 8 U.S.C.1182(f), which they do. And there's this thing called consular non reviewability, which is to say that the decisions that are made by the consulates in the U.S. consulates in foreign countries are generally not reviewable in the U.S. courts.

But Harvard says, well, look, this is clearly targeted at us. It's targeted at Harvard, at our First Amendment rights, and it's retaliatory, retaliatory. And so, you know, that's really, that's where they are. And I think that's the crux of the question. Who is the target? Judge Burroughs granted the preliminary injunction this afternoon at 2:50 PM, however it expired today.

There was some question as to whether she was being allowed, whether the government would consent to a further extension orally the government waffled and said she could have till Monday. But she granted that today, but it was just a three page order. You know, the injunction itself with no opinion. Presumably, the opinion is to follow, I don't know whether that's gonna be today or next week, or who knows. No appeal yet.

Natalie Orpett: Alright John, thank you very much.

James, I'm coming to you next. So everyone I'm sure remembers though maybe not in as much granularity as James and I who wrote a piece about the executive orders against law firms that there were in fact executive orders against law firms and a number of firms chose to settle in an apparent or effort to avoid those executive orders. But we had sort of a new angle come out of this earlier this week, James, in the form of a new lawsuit. So tell us about that.

James Pearce: Yeah, if this, if this segment of our discussion is the attacks on institutions, and this particular bit is the institutions fighting back. This was a lawsuit filed in the District of Columbia by the American Bar Association, the, the largest entity I believe that represents lawyers across the United States.

Very long complaint, very, very comprehensive. And as you mentioned, Natalie really tries to set out kind of the whole history of the Trump administration's efforts to really go after law firms, which you know, I won't, won't kind of walk through, but, but in essence captures the things that you mentioned, the, the executive orders against certain firms. The, the story of Paul, Weiss that had an executive order, then negotiated, then had to rescinded and then a number of the firms that, that settled.

And so this is a a, an effort to seek essentially injunctive and declaratory relief on behalf of, of really all attorneys. And you can see running through the complaint a sense of trying to, to be very bipartisan. So one of the opening few paragraphs talks about the ABA as in its time on the one hand opposing efforts by FDR to pack the courts and opposing Nixon in the Watergate era, to, to take various actions the sort of overstepping, the, the authority of the executive branch.

And then the bulk of the complaint is really just walking through the, the history that Natalie, as you mentioned, our piece describes in some detail. For anybody who's been following this, the complaint alone is worth, is worth reading just to kind of understand it's not only the executive orders, it's not only the settling. It's efforts to use the Equal Opportunity Employment Commission to try to kind of compel law firms to provide information about their hiring and promotion practices.

Its memos within the executive branch that are trying to implement these clearly retaliatory or discriminatory policies. None of that really is new in the sense that, that, that anybody who's been following that will have been aware of it. But it's a, it's a, it's a sort of nice single place to kind of get the full writeup. The, the complaint then identifies a handful of specific attorneys and how these actions have harmed them and chilled them. And again, it's, it's sort of drawing from larger law firms, smaller law firms is sort of solo practice.

And then the, the, the claims are not actually so different from, from some that we have seen from the four law firms law firms we've talked about here that are, that are challenging. Executive orders and have had you know, quite a lot of success in, in the district courts firms like Jenner & Block, WilmerHale, Susman Godfrey. And one more that I have just forgotten, but somebody will, will probably remember.

Natalie Orpett Perkins.

James Pearce: Perkins Coie. Thank you.

So, the, the, the the complaint itself has a series of First Amendment counts. And it's, it's, talks about retaliation and suppression and viewpoint discrimination. It then has at the end to me at least a somewhat peculiar count. It's sort of a ultra vires separation of powers. We've seen a lot of these in, in litigation in different areas, but it's almost like a, a hodgepodge of all sorts of the other things that are wrong.

So, it mentions things like Youngstown, like the executive branch is doing this without any kind of congressional support. The Anti-Deficiency Act, in other words, that at least as I understand the complaint efforts to get attorneys to provide pro bono services, could, could, they could be operating in a way that's inconsistent with the way the, the government needs to fund itself through the appropriations process.

It actually mentions Natalie something you and I talked about 18 U.S.C.201, the federal bribery statute, and that that could be implicated by some of the settlements that law firms have, have, entered into.  So again, a real hodgepodge, but I don't know whether that that particular count will end up going anywhere, but it's a very effective way of kind of flagging a lot of the risks, which again, our piece tried to do as well.

Among the things that the complaint, the relief that it seeks are declaring unconstitutional, the security clearance terminations, the access to federal buildings, a lot of the things that, that we've seen that the executive orders try to do. So, it will be interesting to see how that plays out, whether the, how the government responds, whether there'll be kind of standing type responses.

The case has been a sub assigned to Judge Amir Ali. A, a Biden appointee in the District of Columbia doesn't look like there's been either a motion for a TRO or a preliminary injunction. So it looks like we've just got the complaint, which was filed earlier this week, but we'll certainly keep an eye on it and, and see how it develops.

Natalie Orpett: Great. And I'll just note actually, the attorneys representing the American Bar Association here are Susman Godfrey, which was one of the firms that an order was issued against and chose to fight back.

So, and Roger coming to you, speaking of law firms fighting back tell us about this new organization.

Roger Parloff: Yeah. And I did, I actually, I'd like to ask James a question 'cause and, and a sort of a, a, a viewer or a reader asked me to ask the question also, but, you know, I, I, I, I thought this was a, the, the complaint was very useful on a factual basis, putting everything in there and, and there's what happened to member A and member B and member C and member D. There's some very concrete evidence of how this thing is impacting people in bad ways.

But as far as this notion of, of going further than that and prospectively enjoining something that hasn't happened yet you know, that seemed a little I don't know if it's a ripeness issue, but I, it seemed a, a little out there as a legal proposition. Did it, did that strike you at all?

James Pearce: It did, and I think I made a, a brief mention just of, of, we, we don't know how the government will defend against it, but whether it is standing ripeness, I, I do have this sense that that. Although the complaint made the effort that you flagged, and I briefly mentioned about the lawyer A, B, and C and trying to talk about the ways in which this has harmed and chilled them, that it, it, it certainly is not the type of concrete dispute that you had with the law firms that were targeted, right?

Yeah. And so I don't know exactly how that will, will play out. I don't know the set of procedural or kind of threshold arguments that the government will raise, but it would shock me if we don't see them in the case.

Roger Parloff: Yeah, I think the, the complaint does mention this group, Law Firm Partners United, which I just thought was interesting to flag. This, this now, how it has 872 partners and they are all partners of what are called Am Law 200 firms. So those are that means American Lawyer 200. So these are the firms that have the most revenues, highest revenues. And, and so that overlaps with the firms that have the most lawyers. And to some extent it overlaps with quality too.

But and, and this was formed after, it became apparent that I, I can't speak to the whether this is the cause, but that not many Am Law 200 firms were signing the amicus briefs that were supporting the firms that were getting these executive orders. By my count there's about 17, so less than 10%.

And of course, five of those are, are firms that got, that were hit with executive orders. I'm counting Covington, which was hit with a proclamation, a narrower, but something bad too. So anyway, 872 partners so far, and if you want to join, you can, and, and you're in an Am Law 200 firm and you're a partner, you can go to LinkedIn.

And they have now submitted amicus briefs in the Susman Godfrey case. I think another of the lawyer case executive order cases, and also the Mark Zaid case. Mark Zaid is a very prominent national security attorney, and he had his national, he had his security clearance taken away, which really sort of comes close to putting him out of business.

And that's a very interesting case. But anyway this was started by Neel Chatterjee of Goodwin Proctor and I, I thought it was an interesting development in itself.

Natalie Orpett: Yeah, absolutely. Will be interesting to see where they got involved.

Roger, let's stay with you actually now to talk about AAUP v. DOJ, the, the case relating to grants to universities.

Roger Parloff: Yeah. AAUP is the American Association of University Professors they filed suits both relating to Columbia and to Harvard. This one relates to Columbia. They, and also the American Federation of Teachers which is a union. The problem with the AAUP case, I mean the Columbia case from the start was that Columbia didn't join it.

You know, and, and so you have, they're trying to stop. They want a preliminary injunction to restore $400 million in grants and contracts that the Trump administration cut off after Trump issued the one, his executive order about combating semi antisemitism. And so there was always an issue about, standing here you know, if, if the, the contracts are with Columbia.

So the theory is that the AAUP has members and who were beneficiaries of those contracts. And even though Columbia isn't su-, isn't suing Columbia's trying to negotiate with the government that they would have a separate claim. So that was always an issue, there was a standing. Also, whether their injuries were traceable to, to the defendants. But, and so it is dismissed with prejudice on those grounds.

But it is written by, it's a Southern District of New York case, Judge Mary Kay Vyskocil. And she is a Trump appointee. And this is a very hostile ruling. It's reads like it was written by Elise Stefanik or somebody. You know, it, it, it goes out of its way to derive the notion that any First Amendment issues were at play here. And I I can give you it takes a knock at Democracy Forward, you know, saying, how can, without a sense of irony, they want me to, to, to enjoin the acts of an elected president.

And, and I'll give you a feel for the, the frequently call it the elite university. On the traceability issue, she says, plaintiffs have not demonstrated that it makes a difference to their members whether their funding for research comes from American taxpayers or non-party Columbia's multi-billion dollar endowment, or the large of Columbia's donors, or the eye-popping tuition bills paid by Columbia students, including the Jewish students who apparently paid for the privilege of being threatened with violence on their way to class.

So you see this is not just the facts ma'am, sort of ruling. But anyway, that's, that's what that one's about.

Natalie Orpett: Sounds like quite a read. All right.

Let us switch gears to this one is not quite as much of a what are we talking about as the frog embryos. But I will say that tariffs don't, facially seem like they have to be in Lawfare’s issue space, but when they are based on the premise that there is an emergency going on, they become Lawfare’s area. So, Scott, tell us about the IEPA tariffs.

Scott R. Anderson: Sure. Well, folks may remember a few weeks ago the president suffered two almost simultaneous setbacks to the incredibly broad worldwide tariffs he has, he has applied using power delegated by Congress under the International Emergency Economic Powers Act Law, most commonly used, most kind of notoriously used to impose economic sanctions that Trump is instead using to impose tariffs.

We saw the Court of International Trade rule against Trump on one theory that the statute does allow the imposition of tariffs, but for various reasons, the tariffs that Trump imposed were invalid. And then we saw the Federal District Court in Washington D.C. rule against Trump on another basis for another plaintiff saying that, nope, the statute just straight up doesn't authorize tariffs in the first place. So two kind of mutually contradictory conclusions as to why what Trump was doing with these tariffs is wrong that are both on the appellate track now.

This past week, we saw the plaintiffs in the D.C. federal district court case actually try and jump the queue a little bit. They had been pending a decision in the D.C. Circuit or appeal to the D.C. Circuit processing that and considering that. But instead, they decided and is Learning Resources, Incorporated should say, is the name of the plaintiff.

They opted to go directly to the Supreme Court, basically petitioning for cert without going to appeal and essentially asking, hey, Supreme Court, this is a really important issue. You're gonna have to resolve it. And why don't we just skip over all these intermediate steps where we spend months and months litigating this, which by the way benefits the government because the decision in the plaintiff's favor has stayed. And so the Trump administration will be able to maintain its policies in the interim period.

They say Supreme Court, just resolve this sooner rather than later so we can all move on with our lives and we can get a resolution of this issue. There's some intuitive sense to that, of course, especially here where you have a straight circuit split that has mutually exclusive jurisdictional consequences like between these two cases. Like literally both courts cannot be right, so the Supreme Court will have to resolve it.

But except of course if the intermediate appellate court reaches a contrary conclusion and resolves it and finds some sort of resolution first. And this is of course a very important national issue and so you have an argument there. But it's still an extraordinary request to jump over the appellate court to the Supreme Court.

And in some ways I think this is kind of the Supreme Court's chickens coming home to roost 'cause of course we've seen a very prominent debate in the context of habeas cases of the Alien Enemies Act, where you've seen a number of justice, like Justice Brett Kavanaugh say, yeah, why don't we just go ahead and reap the merits of this? Let's just resolve this issue and get it outta the way so we can all move on with our lives.

This is the, the other side of the sword, if you will, of that particular argument, which is now the Supreme Court, I suspect, is gonna see more and more of these arguments by private plaintiffs saying, but our issue is really important too. Why don't you decide on that and, and skip over this whole intermediate appellate mishigas that we all don't, don't wanna have to deal with.

Not surprisingly, the Supreme Court was not enthused about this. They denied cert the Petition for cert earlier today, but notably, it was not, cause was not entirely lost for the plaintiffs. They were granted a motion to expedite their appeal in the D.C. Circuit. Something that was pending at the time they petitioned for cert. So maybe they were able to bring a little pressure to bear on the D.C. Circuit to move things a little bit faster.

But regardless, we are now waiting on the Federal Circuit for the Court of International Trade case, VOS Selections and the D.C. Circuit in this case to tell us what the next holding will be and whether this circuit split coming outta the district, courts will stay put or not.

Natalie Orpett: Okay. Yeah. You start letting TROs get appealed and look what happens.

Scott R. Anderson: There you go.

Natalie Orpett: All right. Yet another in our train of things that don't seem like they have anything to do with national security, the Institute of Museum and Library Services. James coming to you, there was an interesting GAO opinion that came out this week. Tell us about that.

James Pearce: Yeah. And, and for the record, this is not the first time that we have talked about, I think it's actually the Institute of Museum and Library Sciences, but maybe I've got that wrong.

Natalie Orpett: Apologies. I'm sure they serve everyone well though, too.

James Pearce: I, I, I would imagine so.

So, so we, we actually talked about this agency along with a few others, maybe a month or so ago in the context that this was one of the many agencies that the administration has essentially sought to, you know, depending on your perspective, either dismantle or stripped down to the sort of the bare minimum that it could function with.

And so there, there have been challenges filed both in the District of Columbia and in the District of Massachusetts along lines that, that we've talked about in, in other cases, bringing challenges under the Administrative Procedures Act and, and otherwise essentially arguing that the administration doesn't, the executive branch doesn't have the power to take the steps that it is taking to dismantle the agency.

And those arguments got a bit of an assist this week as you say, Natalie, in an opinion from the Government Accountability Office the GAO, which is not a court, it is a part of, of Congress. And sort of helps Congress fulfill its obligations to make appropriations and, and keep track of appropriations law.

And the long and short of, of the GAO opinion, was that the effort by the Institute of Museum and Library Sciences under the new acting director, an acting director who was put in place under this administration to cut quite a significant amount of its funding was inconsistent with the understanding that when Congress appropriates law and when that law doesn't build in any form of discretion as the GAO, GAO concluded was the case here then the executive branch role is to expend those appropriated funds for the manner and in the manner that Congress has, has so designated.

So, it kind of walks through the Impoundment Control Act of 1974 and the, the various bases on which one could a president could lawfully choose to and by, by choose, I should say, can lawfully ppt not to to fund and then to explain to Congress why it is that he has, has not funded a particular agency.

Maybe he's got a better deal. He can buy some sort of, you know, weapon system or something for a better price than it was appropriate for. Clearly, you know, not spending all the money there is not going to cause a problem. But not spending the appropriated funds here for the Institute of Museum and Library Sciences. There was no such argument. And, and frankly, in litigation, the administration has not advanced any, any such argument.

So, last point to make, which is the GAO, as I mentioned, not not a court. And so it's not gonna bind any courts either, but it certainly will be, I think, persuasive authority that the challengers will, will make sure that the courts are aware of and may help them in their, in their efforts to, to sort of stop the dismantling efforts that the administration has undertaken.

Natalie Orpett: The GAO is one of my favorite examples of how courts are not the only entities that get to say what the law is. James, sticking with you we have a case that was challenging the executive order that President Trump issued earlier this year on election integrity. What happened in that case?

This is,

James Pearce: Yeah, so this is-

Natalie Orpett: I'm sorry, go ahead.

James Pearce: No, just to, to provide a bit, bit more background. So this is another of, of another challenge as you say, Natalie, to the “Election Integrity” executive order, which in essence was an effort by the administration to direct how voters, sort of require voters to have documentary proof to be able to vote. And specifically to direct an entity that was created in the early two thousands called the Election Assistance Commission, the EAC which was which was created in the aftermath of the Bush v. Gore election in efforts to try to ensure kind of cleaner and more, more public confidence in elections.

The EO sought to, as I said, require documentary proof. It it also had a provision that directed the Defense Department to require documentary proof for overseas voting. And then it had certain sections that were also directing states that they, they could no longer have laws that would allow for ballots to be mailed by election day, but then counted afterwards.

And then, and then a sort of a funding piece of it as well, which is if if states continue to have, have that, then the EAC should no longer give them the kinds of funds that they would otherwise be entitled to under federal law.

There was a challenge to this in the District of Columbia where there was a preliminary injunction granted to some non-state plaintiff's, various kind of advocacy organizations. In that case, the judge preliminary, preliminarily enjoin the documentary proof requirements but did not enjoin the state focused requirements in part because there were no state plaintiffs.

This kind of closes that gap in the sense that this is, this was litigation or is litigation brought, I think it's 13 states. California is the lead plaintiff. All of these states have the kind of laws that the EO targets in I think Section Seven, which says basically like if, you know, if you if the vote, if the ballot is, is cast and, and, and mailed, excuse me, by election day, but counted after under these state's laws, that that would be a permissively cast ballot, under the EO it would not.

And so using a lot of the, the reasoning that the, the judge in D.C. did, I think it was Kollar-Kotelly, the long and short of it is basically, look, there's an Elections Clause in the Constitution. The Elections Clause in the first instance allows states to set up how elections operate then next defaults to Congress when there's some reason for federal intervention.

But in neither of those guises is, is there a role for the executive branch to play. And so that is as true with respect to documentary proof requirements domestically as it was with doing it for overseas voting, which is governed by a, a different statute created in the 1980s.

And similarly, that does not allow the, the executive branch operating through the EAC, the Election Assistance Commission, to tell states how they have to operate their laws or condition funding on states complying with the, the both the, the executive order and then efforts to try to, to implement that through other federal regulation.

So preliminary injunction doesn't look like the government has sought an appeal yet in this case as they have not in the District of Columbia. So a, a victory for the challengers there at least on the, you know, in the, in the, at the preliminary injunction stage.

Natalie Orpett: Okay, thanks. I wanna come to Scott next on another funding matter, which is relating to Voice of America, which we've been following for a while. A reminder before I do that, that if you have any questions, please drop them in the Q&A a and we will get to them shortly.

Scott, go ahead please.

Scott R. Anderson: Absolutely. Well, it, the big news today is that Voice of America personnel about I think three quarters or more of the ones that are remaining are reportedly receiving layoff notices I'm sure I, I'm guessing, reductions in force and terminations of contracts for contractors today.

This is really notable for a variety of reasons that intersect with the litigation, which we've been closely following here at Lawfare, in part because the Voice of America litigation has become kind of the tip of the spear for the litigation, particularly in the D.C. Circuit around the dismantling of federal agencies.

A number kind of related VOA cases have been consolidated at various points, intersect at various points, but they've primarily been addressed under the category or primarily under the caption Widakuswara v. Lake, named after Patsy Widakuswara, one of the lead plaintiffs who is a, I believe, a former White House reporter for the Voice of America.

This case I wrote a piece on about two weeks ago entitled “The D.C. Circuit Has Quietly Set the Rules for Dismantling Government,” which goes into this more, more detail. But I think the essential point is that, that we saw the D.C. Circuit en banc step in and essentially adjust a stay that a panel had given on a fairly broad injunction the district court had issued preventing the dismantling of VOA, including the termination of personnel and the cancellation of various grants.

The D.C. Circuit took the step, en banc, I should say after the panel essentially stayed all elements of the preliminary injunction, or at least those two ones–one were getting to employment, one relating to funding and grants. Basically said we are going to hear additional argument on the funding for grants one. We are going to let the preliminary injunction stay on that one. So they stayed the stay, if you will and kept that in place.

But we are going to allow the panels lifting of the stay on termination of employee, employees to go into place. Three weeks ago, a lot of people thought that was a sign that the government was going to be open to firing personnel and that any claims were going to have to be channeled through the Merit Service, Systems Protection Board and other specialized channels that were anticipated to take a good amount of time, didn't allow for this sort of injunctive relief.

Long story short, it seemed like that was a sign that the personnel were going to both at VOA and potentially every other federal agency, at least if the D.C. Circuits hearing the challenges, weren't gonna be able to get the sort of injunctive relief that's kept a lot of those federal employees from being terminated these last few months.

That said, we saw the en banc D.C. Circuit do something pretty extraordinary a few days after it refused to lift the stay issued by the panel opinion. They pointed out, hey, look, you're right. We are not gonna let the injunction categorically prohibiting the termination of employees remain in place. That's too overly broad as the implication. They didn't quite say it like that.

But they pointed out nobody's contested the part of their injunction that directs the Voice of America to actually comply with its statutory mandate, which is to provide a variety of credible news surface, sources, sources and services in different corners of the world.

And in so far as terminating personnel runs up against that statutory mandate, and the district court thinks that it will make it impossible for the agency to meet the statutory mandate. It can still enjoin the termination of personnel. It just can't do it categorically. It has to be that tie to the statutory mandate that the en banc D.C. Circuit found persuasive.

Widakuswara is still being litigated at the appellate level. We're also still seeing ongoing proceedings at the district court level. In particular after this hearing, you've seen a number of the original plaintiffs seek a motion to enforce the remaining parts of the preliminary injunction, specifically about compliance with the statutory mandate against the agency making the point that VOA right now is not meeting its statutory mandate.

The fact that they're only operating in a handful of countries, not around the world. The fact that they're largely planning to re, re-broadcast One America News Network has a good part of its news gathering function just doesn't meet what Congress says VOA is supposed to do. And the plaintiffs were trying to enforce that.

So when you come and you fire three-quarters or four-fifths of the personnel, reduce the agency a lot further. That is a big, big shot across the bow by the agency. So in other words, we're about to see a whole ‘nother round of action, I suspect, coming from VOA around this action.

If you think back to the Consumer Financial Protection Board, Bureau a couple of months ago where we saw something similar happen where essentially the agency took a stay by an appellate panel as a green light to then fire everyone at the agency, only to be then immediately enjoined by the district court and have the panel essentially allow the injunction to be reimposed as opposed to trying to hear a bunch of testimony about whether or not they had actually done an assessment as to whether firing these people could allow them to comply with their statutory mandate.

I think we're about to see the same thing happen again before Judge Lamberth the district court, court judge here in VOA. And how that gets hashed out, I mean, this is the process we may see with lots of federal agencies, at least the D.C. Circuit because this is the process that the en banc D.C. Circuit seems to have signed off on so far.

So I'll have to see where it goes, but it's a really, really significant development on the policy front, for the lives of these people, obviously, for VOA as an institution. I suspect it's gonna have big ramifications in the litigation world as well in the next several weeks to come both in the district court level. And then we're set to hear argument throughout July and into early August at the appellate level in Widakuswara too.

So by the end of the summer, we should have a much clearer picture about what the rules are gonna be. But right now it does not look good for the government's ability to take steps like this, where it just is wiping out federal workforces in ways that clearly are intention with the statutory mandate these agencies have to perform their function.

Natalie Orpett: Yeah, the facts really do change on the ground as the laws being hashed out in court. All right. Let us wrap up with a look at the foreign assistance cases, which we've been tracking since they were some of the very first things to be on the receiving end of executive orders. Scott, tell us what's going on there.

Scott R. Anderson: Yeah, we remember AIDS Vaccine Advocacy Coalition, the very first case to take the rocket docket straight to the Supreme Court after Trump was inaugurated. It's about to be back in business in a big, big way. We are seeing a bunch of litigation there around this issue of impoundments that James has already gotten to in the context of the GAO's most recent opinion.

We are seeing plaintiffs in the AIDs Vaccine Advocacy Coalition case actively pushing the court to enforce its preliminary injunction that's been in place for the last several months, specifically around this question of what is the federal government's plan to actually spend all this money that it's been holding of foreign assistance funds, but so far has not been rescinded by Congress, although they have put in a request for that is still on the books and that much of that money is approaching its expiration date, meaning that the obligation to spend that money is getting closer and closer.

But the Trump administration has been holding a lot of reserves saying we're going to develop a plan but not has actually produced anything. Just as the court's hearing argument for that, we've seen the Trump administration introduce a major briefing really, really long, over a hundred pages to the point that they're actually gonna evidently have to refile it as two separate briefs or a shortened brief cause it was in violation of the court's general orders.

But laying out a whole range of really in-depth arguments about how they're gonna handle the impoundment issue and the Impoundment Control Act questions and appears to be biggest signal we've seen about how the Trump administration is thinking about it, their legal strategy for addressing it.

I'm not gonna go into depth in it here because I had a very, very long in depth and very wonky conversation with Molly Reynolds about it on the Lawfare Daily podcast. That episode is now out today, Friday, June, June 20th. So encourage folks to check that out. We dig into the intersection with AVAC. It also comes up with the National Endowment of Democracy, where we see another strategy for kicking the can down the road.

The Trump administration is rolling out, essentially saying that the continuing resolution is expanded the window, which in which it can spend at least some foreign assistance funds by up to a year. So it can continue to withhold it more even longer.

In short, all these impoundment issues are really, really about to come to a head, and we're gonna see that in the next few weeks. So keep an eye on this space for if people have been following it, and hopefully my podcast with Molly will help tee up a lot of those issues for folks.

Natalie Orpett: And I will unapologetically say that it's really, really excellent. And Molly spotted the impoundments issue on approximately January 20th at 12:01 PM so it's something that we've been paying close attention to and is going to be very important. And when it is, very few people are gonna understand it. So, you know, get ahead of all of them and listen to Scott and Molly's podcast.

Let us turn to questions. So first question from Freida, I apologize if I mispronounced your name. Chris Geidner reporting today indicated there was something important about the feds saying duration of guard call out was 60 days and could be renewed. What mattered about that? Anna I think you're in a good position to answer this one.

Anna Bower: Yeah. So this relates to, I, I think that Chris was also covering the hearing that was held before Judge Breyer earlier today in the district court. And this relates to what I was talking about earlier in our conversation about that hearing with the duration of the federalization of the National Guard.

So the reason that this has come up is that as I, as we discussed there was this question about, you know, what does Judge Breyer still have authority to do at this point? Now that the Ninth Circuit has issued its order, one of the questions is, can he amend his TRO or, or issue a preliminary injunction related to the Posse Comitatus Act?

Then counsel for the California attorney general's office also said, you know, we think that there's this timing question that remains a live issue too. In their preliminary injunction briefing, they had raised this question about Trump's order, whether it's over broad, because it uses language in there that says that the duration of this authorization to deploy the, the National Guard is 60 days or at the discretion of the secretary of defense.

So, you know, even though the Ninth Circuit in its order keeps saying over and over again that these this is, you know, limited to 60 days. In fact the state of California has made this argument that this is a, an indefinite, kind of, deployment because it could be renewed in 60 days time by the secretary of defense. And then therefore, you know, that raises questions about the breadth of the order and that kind of thing.

So, and, and my, I to my memory counsel for the government did say in response to this issue also being raised by California today at the hearing that yes it's his understanding that, you know, 60 days could be renewed at the end of that period, at the discretion of the secretary of defense.

So that's what Judge Breyer then said, okay, you know, you guys can brief this issue as well to, and tell me to what extent I still retain any kind of authority to, to make any kind of order with relation to this argument that the, you know, duration is over broad. So that's what that relates to.

Natalie Orpett: Yeah, very helpful. Thanks Scott. Did you wanna add something?

Scott R. Anderson: Yeah, just one small flag about why this is a significant date as well for policies that may actually have domestic legal or not domestic kind of state legal implications. 60 days tends to be the outer limit of state active-duty deployments for most National Guard personnel under most National Guard systems.

So extensions of over 60 days can cause a variety of like logistical problems, sometimes maybe even state law and funding issues. That's why you send, to see that being as like the outer limit for a lot of deployments. It's probably why they defaulted that timeframe in the initial order, I would suspect. My rough understanding as a non-National Guard member, but that's my understanding from talking folks about.

Natalie Orpett: Okay. Thank you. All right, our next question from Dave P. has anyone brought in action regarding the failure of maxed agent, masked agents to clearly identify themselves as legitimate law enforcement officials? Some criminals seem to be dis-, starting to disguise themselves as ice agents.

So I personally am not aware of any lawsuits on this topic. It is generally an operational issue within law enforcement, but I don't know, has, has anyone heard of a case challenging this?

James Pearce: I also have not. I, I will add though, just to the, the, for very, sort of the last part of that question. I don't believe, at least I'm not familiar with a federal law, but there are many state laws that make impersonating law enforcement itself an offense.

And so, that's, it's obviously separate and apart from questions of actual law enforcement, ICE or otherwise, identifying themselves properly. So there is at least a sort of a legal safeguard or way of a addressing criminality or opportunistic behavior that is trying to take advantage of what I'm sure is a, a great deal of uncertainty when about immigration enforcement actions.

But that aside, I I also have not seen any challenges to the, what I, what I also think are probably policy and operational decisions for ICE and other federal law enforcement agencies.

Natalie Orpett: Okay. Unless anyone else has comments on that, I think our last question is from Andrew. Who asks any thoughts on the Kilmar Abrego Garcia hearing and what evidence the government has been putting in? Not sure if Lawfare has had any recent coverage on that since the post from James. James, anything further on that or anyone else?

James Pearce: Yeah, so I haven't seen a, a transcript of the hearing. I've, I've read some of the reporting about it that's, that certainly suggested the, the government put on one witness that, as I understand it, talked at some length about the underlying incident in, I think it was November, 2022 where Abrego Garcia was, was stopped.

And that forms clearly the basis for the substantive count, one of the two counts that he's facing and, and seems to probably do a lot of the work underlying the conspiracy count as well. I did actually check the docket just before we started recording 'cause I too was curious why there really hasn't been any update.

One of the things I flagged in the post, and I think maybe accounts for why we haven't heard anything from the magistrate judge, is that there are actually challenging threshold questions about whether the government has actually done enough to warrant a detention hearing.

Now of course, the, the magistrate judge did hear evidence and in and in part that could just be an efficiency thing, and that's not unusual for magistrate judges to kind of, all right, look, everybody's here,  let me hear all the legal arguments about whether the government has established the, the threshold question of whether there's a basis for a detention hearing.

And let me hear any evidence that the parties want to, to offer, which again, as I understand it was a single government witness, I think a law enforcement agent. There's no problem with that in terms of you know, by hearsay talking about all of the evidence, not all of it, but at least the evidence the government thought relevant to put forward for detention purposes.

But the long delay that we've had and it is pretty unusual to go this long. It's, it's a week now that we've had the hearing. We don't have a detention decision. That's a lot of times descent, detention decisions are made right at the end of a detention hearing by a magistrate judge. But given the kind of moving parts, and I won't sort of say more about them here, but would, would if you're interested, take a look at the, the post the, that, the article from that I did last week.

Probably the, the magistrate judge is trying to, to figure out: a, you know, should there be a detention hearing? And then B is there enough evidence to warrant actually detaining Gar-, Garcia, Abrego Garcia? And then C if not, what, what does that actually mean if there some immigration consequences too, or, or should he be an immigration detention that is, that is separate and apart from anything in the pretrial or criminal pretrial detention process?

So that's, that's, that's my best guess on why we've got a week without any meaningful updates.

Natalie Orpett: And James, can you remind me what is he currently, what is the current legal authority for his detention? He's, he's in like anticipatory criminal proceedings detention, no longer immigration detention, correct?

James Pearce: It's, it's actually not entirely clear. I think that is, that is right. And I think, you know, also if you know, again, if the court ultimately says, I don't think there's enough here to detain him as a criminal pretrial matter, I think he remains in this kind of immigration detention. But I, I don't know exactly what statute or, or authority is the basis for his, his detention, but it's clearly reported that he is in, in detention. I assume it's for immigration reasons because the court hasn't decided the criminal pretrial detention question.

Anna Bower: I, I also would note, I think that last week we, we did discuss a little bit. It was, I think the hearing was maybe ongoing still while we had the live stream last week. One thing that we did note though is that I believe, if my memory serves correctly, we found out in that hearing that, the investigation actually start, the criminal investigation actually started, was it April 28th or 29th?

James Pearce: I think it was the 28th. Yes.

Anna Bower: Right. And then he was indicted, James, you might, was it, it was very end of May. So about a month after that.

James Pearce May, May 21st

Anna Bower: Yeah the 21st. And I'm curious, James, because, you know, these are serious charges, serious allegations being made that, you know, he's not charged for, for example, the allegation that he was in some way involved in a murder. But, you know, that's something that the government has, has said. He, you know, and then the charges themselves are, are very serious as well.

That's about like three weeks of doing investigative work and presenting to a, a grand jury. I'm just curious, like in your experience as a federal prosecutor. You know, I'm sure it varies, obviously, but is that, you know, does that seem to you like a normal length of time for these types of charges in terms of investigating and then presenting to a grand jury within three weeks?

James Pearce: So, so with the caveat that you mentioned that, that things vary considerably it does strike me as a pretty quick turnaround, particularly because as, as I think you noted the indictment, the first count of the indictment charges a conspiracy that's, that spans 2016 to the present to 2025. You know, I do think three weeks would be enough time to have had conversations whether that means grand jury testimony or interviews with the various either co-conspirators or cooperators identified in the indictment itself.

It may not be a whole lot of time to track down and corroborate things that those individuals have have said. So, for a, a, a case like this, it seems like a pretty quick investigation. And if that investigation is indeed has been quick or rushed and is not thorough you could very much see that start to fall apart as we move forward in the case.

Natalie Orpett: I think that is all the time we have for today. But thank you to James, Anna, Roger, and Scott, and thanks to everyone else for joining us.

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