Lawfare Daily: Trials of the Trump Administration, June 6

[Intro]

Anna Bower: Insofar as we have been discussing examples of things that are just really far outside of what the normal Justice Department actions are, this strikes me as a really good example of that.

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

In the June 6 episode of The Trials of the Trump Administration, we discussed the breaking Supreme Court opinion which blocks discovery against DOGE, the criminal indictment of Kilmar Abrego Garcia, President Trump's recent executive orders targeting Harvard University, and much, much more.

[Main podcast]

Hey folks, welcome to this week's Lawfare Live, The Tribulations and Trials of the Trump Administration. I am here with the estimable James Pearce, Roger Parloff, and Anna Bower. Hi all.

We're gonna jump right in because there is so much going on that just getting through it today is gonna be a challenge. First of all, James, we got breaking news—Kilmar Abrego Garcia is coming back to the United States to face a criminal indictment. This is—I suppose—compliance with Judge Xinis’s order, but in a fashion maximally Steve Miller-y. What do we know? What's he being charged with? And what, what can we say about the indictment?

James Pearce: Yeah, so this, this looks an awful lot like facilitation through extradition. And what, what we have as you said, is an indictment in the Middle District of Tennessee—that's essentially the Nashville area—and it is a two-count indictment that charges Kilmar Abrego Garcia with conspiracy to, to knowingly smuggle aliens, and then one substantive count as well.

And so what, what it appears in the, in the 10-page indictment, that has just been, been made public—according to reporting this the actual indictment happened at some point last month, and then was just recently unsealed. So, so this is apparently, and in fact, at the bottom of the indictment, it says May 21, 2025, so, so that's, that's how long this indictment has been, you know on the book, so to speak.

So, so what the indictment seems to, to lay out: so notably it alleges that Kilmar Abrego Garcia is a member of MS-13. That's not a surprise that it would be alleged, certainly that was what the administration has consistently said. You know, this moves forward to a, to a trial. Perhaps that will be proved or not; it's not an element of the actual offense here but it is certainly something that the the U.S. Attorney's Office, that the government saw fit to put into the indictment.

The thrust of the indictment is, is essentially that Kilmar Abrego Garcia working with others—and I should mention there are five co-conspirators all just named CC 1-5, not unusual in a federal indictment. Some of the reporting, I think from AP, ABC News has identified one individual who perhaps is one of those co-conspirators. I, I don't remember the gentleman's name, but at least according to the reporting, it was someone who himself is serving time for, I think perhaps an illegal reentry and whose car—according to the reporting, I didn't see this in my quick skim of the indictment—Abrego Garcia could have been using.

The indictment alleges a, a conspiracy from 2016 to 2025 and basically says that Abrego Garcia with others picked individuals up in Texas and then transported them throughout the country—again, unlawful individuals—did it as part of his work with MS-13. And these were folks that, that were coming through essentially Central America and Mexico to cross the border unlawfully into the United States.

And again, there's, there's the conspiracy charge that has all the other individuals, and then there's a single substantive count for November of 2022. Interestingly, as I read the kind of the manner and means or sort of the what, what the indictment calls transportation in Tennessee looks like all of the allegations are on that November 2022, not withstanding the much more much broad, much broader alleged conspiracy of 2016 to 2025. So that's the, that's the quick and dirty on, on the few minutes that the indictment has been out.

Benjamin Wittes: Help me out. When I see the word facilitate, I don't usually mentally translate to indict. And on the other hand Judge Xinis did—her order is that they facilitate his return to the United States; this will do that, I suppose. And I assume that the reason that the discovery in that case has been, you know, slowed to a crawl and we haven't had any rulings, right is because they have made her aware that this process was ongoing and that it would presumably satisfy her order once completed. Is that a fair assumption or do you suspect otherwise?

James Pearce: Yeah, and I'll take a crack at answering this, and then perhaps either Anna or Roger who I know have been following kind of the immigration proceedings or the, the mistaken removal proceedings.

I suspect that assumption is correct. We, we don't know—and, and at some point we may or, or we may not—but I do think that it is a fair reading of the order to say that the requirement on the, on the government was to facilitate his return. I don't think this is what he would have expected. But if he is in fact extradited under this criminal indictment, he will, his return to the United States will have been facilitated. Then presumably he will face the same criminal justice process that any indicted defendant in the, in the federal system will.

And so, whether the, the pause or the sort of seemingly from the outside mysterious continual continuing of the deadlines in the matter before Judge Xinis you know, has this to account for it, I would think so. But I, I don't have any inside information, perhaps either Anna or Roger does. But that seems to me the most rational explanation for it.

Benjamin Wittes: Anna, Roger, do either of you have a sense of what role the, this indictment, which has been pending for two weeks now played in the litigation in Baltimore or in in Greenbelt? What, what do we know about the interaction between the civil litigation and the criminal case?

Roger Parloff: We don't know anything, but I think maybe one week of the delay might have related to this investigation, and they want the government wanted more delay. They kept saying that that they were working on something that might solve the problem, so maybe that was it. I think the rest of the delay has been, you know, conventional discovery privileges, state secrets, and that sort of litigation.

Benjamin Wittes: Alright, I wanna ask the question that everybody is thinking about right now, which is how suspicious we should be of this indictment.

On the one hand, the government has said from the beginning, this guy's MS-13 and, you know, it was not an accident that he was rolled up—even though they said it was an accident that he was rolled up—and bad guy. And you know, we've seen this in terrorist contexts where people go from civil liberties victims to oh, you know, the guy that you were holding, the American citizen being held in Saudi Arabia, that the United States wasn't doing a whole lot to get back—turns out we're indicting him for a plot to assassinate President Bush, right?

And so, on the one hand, you know, I hold in the possibility that this is a clever resolution to a sticky problem. On the other hand, let me—you know, maybe this concedes my bias here—I'm not instinctively giving a presumption of regularity to this indictment. I, I look at it and I say, boy, it's really convenient. This guy's been living here for a long time, free man, anytime prosecutors in Tennessee wanted to bring you know, human trafficking case against him, they could have done it. They waited until he was a cause célèbres for being shipped off to the gulag in El Salvador and U.S. senators care about him.

I will wait until this is proven in a court of law and I this is one of those situations where it's worth taking the presumption of innocence very, very seriously. What do you guys think? I, I mean, do you look at this and say, hey, federal prosecutors generally don't bring shit cases. This, you know, he's, like, let's afford a presumption of regularity to the justice system. Or do you look at this and say, yeah, prove it to a jury of 12 people beyond a reasonable doubt, and then we'll talk.

James Pearce: I can jump in here because I, I find myself torn, which is I spent 11 years as a federal prosecutor. I have been in front of many grand juries. You know, notwithstanding the old saw that you could indict a ham sandwich, I think that, that going in front of a grand jury and eliciting your, your evidence and, and building a case is a serious matter and is one that, that serious Justice Department prosecutors take and understand the gravitas of and act accordingly.

That said, it has been very dispiriting to see everything that has happened in the, whatever it is, four months or so, that five months that we have been under the Trump administration. And you know, I think Lawfare has written and others have, have certainly also echoed—I, I think I saw something in the chat that says, look, the presumption of regularity with which we, we typically expect the government to operate really seems not to exist, and courts have pushed back on it and the public has pushed back on it.

And so I think I would put myself in the, in the latter camp of the two, kind of that being the one of I, I'm quite—I don't wanna say suspicious, but it does strike me as all too convenient to have moved to indict this individual at this point, notwithstanding allegations that reach all the way back to 2016.

Benjamin Wittes: What do you think Roger and Anna?

Roger Parloff: Well, I, I, I think I'll take a posture of trust but verify. The, this incident occurred three or four years ago and he was not even given a ticket at the time. And so obviously there's, there's that, but I, I just don't know the facts.

The other, the other thing that, and we're gonna speak to that in a moment, is that, you know, they've been saying we can't get 'em back, we have no control over what they do in El Salvador, and then they get a story that they like or or maybe, I don't know if we have an extradition treaty, but suddenly he's coming back. So, you know, there's that too.

Anna Bower: I mean, look, I'm not gonna say anything that I think others haven't already said. I will say, like, you know, I think—when I was in law school, I planned to be a criminal defense attorney and a public defender before I met Ben Wittes and, and became a legal reporter instead, and so I think that in general, my posture is a little bit more skeptical of prosecutorial power than than maybe, you know, James has as someone who has been a prosecutor.

But I do agree certainly with him that things that we've seen over the past few months—I mean, I, at one point I even posted on something to the effect of throw the presumption of regularity in the trash and as a kind of a, a joke, but but also not because I, I think that, you know, everything that we have seen points to the idea that these presumptions of good faith that we usually place in federal prosecutors in particular really just has kind of gone out the window.

I, I also will add though that this indictment came out right before, you know, we just got our hands on it right before we came into this podcast recording. So I would like to have more time to look at it and study the facts. I just haven't had a chance to do that in, in detail yet. And so we will see. Judgment is out.

Benjamin Wittes: Yeah, I think that is wise.

Roger Parloff: That's a good point.

Benjamin Wittes: It is wise for everybody to keep an open mind. This is something that did have to go through a grand jury. It is something that did have, will have to be proven in court beyond a reasonable doubt.

And I will also say that you know, Mr. Abrego Garcia, there is one actually very good side of this for him, which is, other than not being in El Salvador anymore, but he you know, presumably you will have a prompt bail hearing, and I, I think that is something that has been missing from a bunch of these cases. And one thing, the criminal justice system—unlike the immigration system—has, is a reasonably prompt approach to bail. And I, I do think that is you know, worth something on for him.

Alright let us turn to the other case involving people who were shipped off in violation of a court order to El Salvador and who are unlike Kilmar Abrego Garcia, not coming back to face indictment. This is the J.G.G. case in which we have had substantial developments. Roger what's going on?

Roger Parloff: Yeah, I think this is pretty important. It was a nominal success for the ACLU, but I'm, I'm, I'm concerned about it in the long term.

This was, Judge Boasberg did certify a class of, composed of all of the. People that were sent to CECOT on March 15th under the, Alien Enemies Act proclamation, so that's about 140 people, 137. And he also is going forward with the case in D.C. and he ordered, he found—which is not surprising—that they weren't accorded due process. These people weren't accorded any due process. I mean, they weren't given notice. They weren't told where you're going. You know, they were, they were begging, pleading, crying, praying, and they said, we, we can't, we're not telling you. And they get on the plane and so on. And in fact, that's why he, he frames it with references to Kafka’s the trial.

But we, I thought that if Judge Boasberg went forward with the case, he would find constructive custody. That was the big issue. You can't—you know, this is a habeas corpus, and, and so does anyone in the U.S. still have any custody over the prisoners? And the government was saying, and the government was saying no. And he says that the plaintiff's on balance though it's a close question, they have not shown constructive custody. And he was obviously uncomfortable with that.  

But government had submitted an affidavit, since it goes contrary to a lot of public statements, you know, like Trump saying, I could bring him back with a phone call and but, and all the statements about, you know, a renewable contract and outsourcing and and so on. But a guy named Michael Kozak, a high level State Department guy, put in an affidavit that said, you know, once there—we don't know. It's redacted, heavily redacted but, but Boasberg has seen the whole thing, obviously—it says in essence that once they're over there, it's ultimately his call, it's it's Bukele’s call that we lose, we don't have any.

And, and the best evidence of that was that Bukele had announced the, that he, ostensibly, that he had, he was negotiating a deal with Venezuela where he would send 252 people from CECOT to Venezuela, Venezuelans, and they would send back 252 Salvadorans.

So he said on balance, he had to take, he, even with all the misconduct, he had to take the government's word based on the precedents. And he did say he recognized this might be a ruse and it might be a fraud, and and if it turned out to be, he would not be happy. He would take steps. He also warned the government about the perjury statute, but that's where it is. So, so, and then–

Benjamin Wittes: Explain something to me, Roger 'cause I, I'm mystified by this. If there's no constructive custody, why is there a case at all?

Roger Parloff: Well, that's the next part and that's what makes me uncomfortable. His work around is he says—and, and, and I guess the ACLU must have briefed this too, I can't remember—but we're gonna, he's gonna call it a, this is a case about due process. It's directly under the Fifth, the Fifth Amendment. The federal due process is said to come through through—it comes through the due process clause, the Fifth Amendment. And because the, the defendants are not seeking release, they're seeking process. They're seeking an opportunity to show that they're not Tren de Aragua, and, and they're also trying to show that the proclamation is invalid, but so it doesn't necessarily lead to their releasee.

But, and, and it, it, he makes an argument that's strong in itself. But the problem is that the Supreme Court sort of already rejected an argument that sounded almost identical to that in this case, you know, the last time around. He, he had, he was entertaining a class action on the theory of that it was under the APA, Administrative Procedure Act, and they pretty much said, no, if you're challenging the AEA, you need to do it under habeas. So that's one problem.

The other problem I'm concerned about is the issue of redressability. You know, if you're saying that the government, these defendants don't have constructive custody, then how are you ordering them to do anything? And, and that's sort of a, I think that falls under the standing rubric, or case or controversy rubric, if you're, you know, if you can't do anything to help the person it's sort of an advisory opinion almost.

So I, those are pretty serious problems. And, and then it also impacts all the other people who are trying to get people home from CECOT or from other El Salvador prisons of which there are quite a few now. And I thought it, that would include Abrego Garcia, but it includes Cristian—you know, the guy in the other Maryland court—and there's now two guys outta Georgia. And so, it's a, it's a troubling ruling.

Benjamin Wittes: I take it, it is not at this point appealable, right? 'Cause it's not an order of, it's not dispositive of anything.

Roger Parloff: That sounds right. He, he all, he's done so far—well, no, he, well, I don't know. He ordered the government at this stage to take the first stab at proposing how to provide habeas corpus rights to the people in CECOT, and I anticipate their response being how could we do that? You just said we don't have custody. And where it goes from there. I can't exactly, I can't extrapolate. Maybe somebody else can.

Benjamin Wittes: Alright, we are gonna shift gears from people who were locked up in El Salvador.

Roger Parloff: Oh can we—I, I just wanna give Katherine Faulders a shout out. She's the ABC reporter. That's a pretty big scoop, so we should credit her.

Benjamin Wittes: Excellent. We are going to shift gears from people who are locked up in El Salvador to universities that are locked up in Cambridge, Massachusetts. And I'm gonna turn the moderation duties over to Roger here because the person who's been following this case is me.

Roger Parloff: Yeah, so, I understand there was a new executive order issued this week. Can you tell us a little about it, Ben?

Benjamin Wittes: Yeah, so this, this one came as a bit of a surprise to me. I—and I shouldn't have been surprised by it because I've spent a lot of quality time with the order, with the law that it is issued under, which is 8 U.S.C. 1812(f). Some of you may remember that statute because it's the statute that gave rise to the travel ban in the first Trump administration in its many iterations, and it says that the president can designate any class of aliens and forbid their entry or suspend their entry into the United States. And usually we use this for like, people interdicted on the high seas or people in Russia who are, you know, killing Ukrainians, or people—in the case of the travel ban—people from eight countries that I don't like, right.

But Trump did something really weird and, and a little bit clever with it, which is he defined the class of people not by anything that they had done overseas or that they you know, that were features of who they were or something like that, but according to their desire to attend Harvard University. And he said, you know, okay, you've, you're stopping me from having, giving grants to Harvard, preventing Harvard from getting its grants, you're stopping me from decertify it for foreign students, but you can't force me to admit foreign students to the country. And so he issues this proclamation that says, basically, suspending entry of aliens who are intending to enroll in Harvard University.

And it's a little bit of a puzzle. Harvard went into court and got a very quick temporary restraining order, and it's a, it's a complicated little case, and I have to say, whoever, whichever of the like harass Harvard University team came up with this one, it's kind of—like, I don't approve of your vocation, but this is a, it's a slightly clever one for reasons we can go into,

Anna Bower: Can you tell—I'm curious, Ben, why it's so clever and also I hope it's not another one of my former classmates who is in charge of the destroy Harvard University team.

Benjamin Wittes: I mean, that would be you know, the ultimate way to, to put your middle finger up to your law school would be to prevent it from admitting students.

So the cleverness arises from the fact that Congress has essentially plenary power over admissions of people, and the power of Congress over the border is enormous. And the delegation in 1812(f) is super, super broad. John Roberts in one of the travel ban cases wrote that it exudes deference to the presidents. You know, it's, this is not one of those statutes about which, how much deference they get is debatable. It's, it's an extremely deferential statute.

And so, you know, and moreover, the administration can argue—although I don't think very credibly—that, you know, they didn't really take an action against Harvard University here. They're merely refusing entry to people at the border, which is their prerogative, and something that a court has no authority to review under a 1972 case called Kleindienst v. Mandel, which interestingly involved a guy who wanted to come to the United States to give a lecture at universities, and the plaintiffs were people who wanted to hear his lecture. And so, you know, the Supreme Court said in response, you know, we don't, we're not even gonna consider the First Amendment implications for those people because the consular decision not to admit somebody is unreviewable.

And so there's actually some really good, like pretty strong law on the side of the administration here, and that said, the argument that they're making is exceptionally dangerous because if you, if you accept it, why couldn't the administration say we're issuing a proclamation that's denying—Elon Musk is on the outs now. So anybody who has an H-1B visa to work for SpaceX, no, no entry. Or how about you know, anybody who reads the New York Times?

Roger Parloff: But, but Ben, what somebody could say, I mean, I. I mean the, they aren't really sus the, the law is supposed to, you can suspend somebody's entry if you think they're detrimental to the interest of the U.S., but as you said, they aren't suspending anyone's entry. They can all come in if they go to a different school and, and they aren't even declaring the person detrimental. They're–

Benjamin Wittes: That's right. They're only detrimental, right, and that, and that's the, the counter argument is this is a little too clever by half. Because in fact, the statute says you can restrict the entrance of aliens or a class of aliens, but there, but this actually doesn't do that because all the individual alien has to do in order to circumvent this order is enroll at Columbia.

And and so it may be a completely—you know, Harvard got the TRO right away, and so I'm not, I'm not at all confident that the administration prevails on this and very much hope they don't. But I, I do think unlike some of the other, unlike the law firm cases and some of the other Harvard cases, you know, there is some—the administration has some one very strong statute and one very strong Supreme Court opinion that it's gonna be able to work with in defending this action.

Roger Parloff: Okay, I think I can hand the moderating duties right back to you.

Benjamin Wittes: Alright. Well, James and Anna, the, the other attack on Harvard is on the Law Review. What's going on there?

James Pearce: I, I can jump in and then Anna can, can add, add, or-

Benjamin Wittes: We can go, we can go through this one quickly.

James Pearce: Yeah. It's, it's, it's pretty quick. It was sort of surprising news that dropped I think the beginning of, of this week, which was basically that news came out that the administration is, is undertaking an investigation of the Law Review for discrimination and has a, a essentially someone like a, like a cooperator who, who was on the Harvard Law Review, if I've read the news correctly, and then joined the administration within maybe the past few, certainly the past month, possibly even the past few weeks. The thrust of the allegation–

Benjamin Wittes: Anna.

James Pearce: Yeah, another classmate perhaps, I dunno.

Anna Bower: Yes, but not, not someone that I knew, like wasn't in my-

Benjamin Wittes: Oh, we know who this person is?

Anna Bower: We know who this person is. Oh gosh, why am I blanking on his name?

James Pearce: I think it's Daniel Wasserman?

Anna Bower: Yes, Daniel Wasserman. I was thinking it was Andrew Wasserman, but yes, Daniel Wasserman. He just graduated within the past—Harvard's, HLS just, they just had their graduation in May, and so he just graduated and then now is at the White House working for Stephen Miller.

James Pearce: Yeah. And, and, and from the reporting, it sounded like he graduated and two or three days later, he was on, on staff with, with Stephen Miller and working to bring a, a, a legal action against the Harvard Law Review, which—as, as some folks may know and as reporting is made clear—is actually neither a part of Harvard Law School, nor Harvard University as its own standalone entity.

And it's not quite clear where this stands or where this is going, but it, it was at least extraordinary to me—maybe, maybe it shouldn't be—that the administration is, it sort of among the many tendrils toward Harvard University includes this effort at rooting out discrimination.

So the claim, I, I'm not sure we said that, was that there was discrimination against white males in the selection of, of I think articles and potentially leadership positions within the Law Review. And there was at least some cooperation from the Law Review, though where things stand precisely, was, was not clear though, though Anna may have more information.

Anna Bower: Yeah. Well, one thing that I will just mention that I think is in terms of, in so far as we've discussed the politicization or weaponization of Justice Department functions, you know, what was really remarkable about this whole ordeal to me is that there's this exchange of letters that the Justice Department is sending to the Harvard Law Review about, you know, these, this claim that it's making about discrimination, all that, it has this cooperating witness Daniel Wasserman.

And at, at one point before the HLR apparently knew that this guy was a, you know, a cooperating witness according to the Justice Department, they instigated some kind of disciplinary review process because of it relates to basically someone potentially taking documents and then disseminating them outside of HLR, which apparently was a violation of HLR policies.  That led to a, a revelation according to the New York Times that this cooperating witness had downloaded a bunch of files that apparently you know, was a violation of HLR's policies. He had a reprimand in his file as a result of this kind of review of these actions.

And the Justice Department in a, one of the letters that it sent to HLR said, you know, by the time this guy graduates, you must retract or withdraw any reprimand that you have given this guy, which is such a level of, you know, meddling and micromanaging in this like internal bodies or this external bodies, affairs that it just was re was really remarkable to me that the, this is what the Justice Department was demanding.

I have not reviewed the actual text of these documents because I don't have them; they were just reported on at the time, so I don't know the full context. But you know, in so far as we have been discussing examples of things that are just really far outside of what the normal Justice Department actions are, this strikes me as a really good example of that.

Benjamin Wittes: Yeah. Keeping the world safe for white men at the Harvard Law Review, this is why we have a Justice Department people. Alright—

Roger Parloff: Do you know if the Harvard Law Review gets any federal funds?

Anna Bower: Yeah, so this is a good question, Roger, and this is something I've been meaning to look into and maybe I'll do this this weekend in terms of—'cause like I have a loose sense of what HLR'S relationship is to the university, like there are some ways that the university facilitates things like the HLR competition.

They obviously have a very close relationship with HLR, but I don't know the exact kind of legal status that HLR has in relation to the university and then any funds that the university receives from the federal government. So stay tuned on that folks, because that's something that we certainly intend to look into. And if, if anyone has recommendations or insight on that, then feel free to email me or send me a DM.

Benjamin Wittes: Alright, let us move on to how much of the federal government you can fire. James, give us an update on the personnel cases.

James Pearce: Sure. I think there are two cases we wanted to, to flag for, for people this week.

The first is one that has been kicking around for a while and it, it stems pretty much from a executive order that was issued, I wanna say the 11 of February, that that directed agencies and was subsequently codified I think in a—codified is not quite the right word, but—through an OMB memo, was, was additionally then transmitted to, to several agencies, I think 19 in total, essentially directing those agencies to engage in widespread reductions in force or RIFs.

That led then to a challenge from various plaintiffs, including labor union, state governments, advocacy organizations in the Northern District of California and the district court there first issued a TRO and then a preliminary injunction. The government appealed; there was a little bit of procedural jousting—that's, that's sort of beside the point for our purposes. But the long and short is on an a stay pending appeal after the Ninth Circuit, at the end of last week, denied the government's efforts to stay the the district courts in joining of the RIFs.

The government went, at the beginning of this week, the solicitor General's office went to the Supreme Court and sought the Supreme Court's intervention making arguments that we've seen in some of the other cases, essentially, things like the district court shouldn't actually, there's not a case for the court to rule on either because this matter should be in front of the Merit Systems Protection Board and sort of a different statutory scheme under the Civil Service Reform Act or that there's no viable cause of action, and then by the way, on the merits, the government argues the, the, the president has long had the power to order reductions in force—doesn't actually have to flow from a particular statute, that is inherent in his, in his Article II abilities.

You know, interestingly, at, at least for me the, the government's filing a couple of times cites Nixon v. Fitzgerald, which some folks may remember is the case that held that presidents are immune from civil liability and was much kind of talked about in the, in the case, the Trump immunity case litigated last summer and much of last year. What folks may not remember is that the, the core issue, there was a civilian member of the Air Force who was fired essentially through a reduction in force, and he argued, look, this reduction in force was just an effort to retaliate against me.

So the long and short of that is the government has been citing Nixon v. Fitzgerald and has in addition to citing Nixon v Fitzgerald in a tactic that, that we've seen elsewhere in the government's filing invokes the practice of the Clinton administration in other words, trying to say, look what, what this administration is doing is actually no different than what other past administrations of different political colors have done.

So we'll see—that was filed I think on Monday of this week. Justice Kagan ordered a response June 9, I think that's Monday of next week. But yet again up on the Supreme Court's Emergency Docket is one of these cases involving these mass reductions in force. So that's case number one.

Case number two is, is a little bit different than what we've talked about and was not actually filed within the past year but has a, a, a ruling and reasoning that is quite interesting for cases that, that we have been following. So, this is a case out of the Fourth Circuit that is the Executive Office of Immigration Review v. Owens. Essentially it was a group of immigration judges who were trying to challenge or were challenging a policy that required them to get approval anytime that they wanted to speak in their personal capacity whether it's at a conference or in some kind of public setting.

And so they were challenging and saying, look under the First Amendment we should be able to speak freely. And the government came back and responded this is not, and they had filed that in, in federal district court, I think the Eastern District of Virginia, and the, the judge overseeing it said, well, this isn't actually a claim that should be here in federal district court this really ought to be in front of the Merit Systems Protection Board.  So this all happened in, in, I believe, late 2023, argued in 2024 toward the end of the year I think after the election, but obviously before the new administration had come in.

This week, we got an order from the Fourth Circuit that, that basically said, we think the district court's probably right, that Congress meant for these types of claims to go to the MSPB, but we're concerned that when Congress made that decision, it had in mind an actually functioning operable MSPB system. And what it didn't imagine was something where the Office of Special Counsel would be fired, the MSPB would have members who were removed and thus not have a quorum. And so essentially one of these presumption of regularity issues.

Sent it back for the district court to engage in fact finding, to determine whether in light of all these things that have happened recently this case should nonetheless be required to go through the MSPB proceedings. So we'll see what, what the district court there does with it, but, but very interesting.

And I went back—this was essentially sua sponte by the Fourth Circuit. So there was, they hadn't sought additional briefing on it. They sort of took notice of the public record and then, and then issued this ruling. So, we'll be curious to see, see where it, where it goes. But, but certainly an interesting commentary and the fact that hey, judges live out in the world and are aware of what's happening elsewhere.

Benjamin Wittes: We have breaking news from the Supreme Court. Anna is taking a look at it.

Anna Bower: Yes, come back to me please, because, haven't had a chance to–

Benjamin Wittes: Yes, we'll discuss it at the bottom of the show to give her a little bit of time to familiarize herself with the situation.

Alright while we're on the subject of firing all the workforce of the federal government, let's talk about agency dismantling as well. James, what do we have going on there?

James Pearce: Unmuting myself. A couple of of, of cases in the agency dismantling front—one similar to, to the first of the two of the personnel we just talked about, which is essentially the government going to the Supreme Court. This is in the McMahon v. New York case out of the District of Massachusetts. This was an effort very similar in terms of the reductions in force. What happened here were firings of, I think, nearly 1400 individuals through a reduction in force and, that they, that was then challenged in the district of Massachusetts, which granted a TRO, a preliminary injunction. The, the Fourth—excuse me, the First Circuit upheld that.

The, the government has now gone again to the, the Supreme Court here arguing a, a couple of different things, very similar to the, the arguments that, that we saw in the case out of the Ninth Circuit just discussed, essentially that this should be in the MSPB system, not in front of a federal district court, and that in addition, the types of reductions in force that are reductions in force that the, that have been ordered here are entirely permissible.

One other point, which is maybe sort of a categoric kind of, you know, what, what category or box we put this in—the way the plaintiffs have litigated this case is very much the way we actually just teed it up here, which is an agency dismantling case that in essence, these firings were, were done in a, in a larger effort to try to make the Department of Education go away, which of course, Trump has not been shy in saying that's exactly what he is, what he'd like to do with a sort of tack on to the extent that's permissible under applicable law.

What the government has, has, has argued here is, yes, it's true, there have been nearly 1400 firings, but there still, remember, there still remains some 2000 individuals at the Department of Justice, excuse me, at the Department of Education; that's still consistent with the, the government's view of what is statutorily required to keep an operating Department of Education, and that is also within the, the, the wide discretion of the, of the executive branch and the president in, in deciding how he needs to or, or the, the, the government as a whole needs to operate an Education Department. So that was just filed today and outta the First Circuit. Justice Jackson ordered a response a week from, from today. So, we'll, we'll see a response from the plaintiffs at some point next week.

The, the other case in the agency dismantling realm that's worth a, a quick comment is Aviel v. Gor. This is another case that has been litigating for, for quite a long time. This is the, the firing of the CEO of the Inter-American Foundation. For those who may remember Pete Marocco, I think some of the reporting suggested he was placed in on the board by, by President Trump, and then immediately started firing people, including the CEO Sarah Aviel, who, who then challenged it. Aviel had a successful challenge in the, in the district court.

This went up to the, the D.C. Circuit, and we had an interesting ruling from the D.C. Circuit this week. Interesting in ofar is the panel is one that we've seen I don't think it's any more the motions panel for June, but was for last month may, which is Judges Pillard, Katsas, and Rao. We'd often see the, the more conservative Republican appointed Judges, Katsas and Rao ruling in in favor of the government; that is not what we saw here. We saw judges Pillard and Katsas essentially holding that the, the, the district court was, was correct in you know, both that Marocco didn't have the authority—neither the president nor Morocco had the authority to remove the CEO, and that reinstatement to her position was in fact permissible.

Judge Katsas, you kind of get the sense he was holding his nose to, to, to reach this because he says something like, it's, it's permissible under the OMB en banc court's recent decision three weeks ago in Wilcox from which he dissented. But it, but it, I thought it is sort of an admirable. acknowledgement that he's bound by Circuit I shouldn't say bound by, but in a stay posture.

He said, look, we're, we're determining, we're we're engaged in state litigation here; the en banc court addressed a similar reinstatement question in the stay posture there; we should draw you know, we should, we should weight that heavily in our thinking. So, long story short, the CEO of the Inter-American Foundation lives to fight another day.

Benjamin Wittes: Alright, it is time for the three letter initials lightning round. Let's let's go through a, a whole string of immigration cases, the first one of which, of course does not involve three letter initials, but Alina Habba has a lawsuit against her. James, what's going on in, in the great state of New Jersey?

James Pearce: Yeah, this, this stems out of an in incident we've now talked about a, a couple of different times, and this was the visit by Mayor Ras Baraka, as well as three members of Congress to Delaney Hall, an immigration facility in New Jersey. As some folks may remember, in the immediate aftermath, there was the arrest of Mayor Baraka, then that was dismissed, and then there was—as we've spoken about either last week or the week before—the arrest and now the, the prosecution of one of the, the members of Congress, Representative McIver for allegedly assaulting one of the security officials or one of the, but one of the federal officials who was there at Delaney Hall.

So this is now a, a a, a federal civil suit brought by Mayor Baraka against Alina Habba and I think Ricky Patel, who was the, the special agent in charge of the Department of Homeland Security in, in the relevant region, presumably New York—or excuse, excuse me, New Jersey, maybe New York, whatever other area that that covers—essentially arguing malicious prosecution and a defamation claim against Habba and saying that everything here were just trumped up charges to, to, to go after the mayor.

There's some, some disturbing a allegations in the complaint; of course, a complaint has, is not yet been, been subject to, to testing, but, but essentially suggesting that certainly Habba was just trying to do this in her, the complaint says in her capacity as a political operative, which is an effort I take it to kind of plead around the type of immunity that would otherwise protect a, a, a prosecutor who has both absolute immunity and qualified immunity. I am, I would be shocked if we didn't see motions from both Habba and Patel arguing that they were acting in their capacities as such when they initially kind of had the, the arrest of or directed the arrest of, of Baraka.

But—and so my, my early prediction is that this, this lawsuit probably won't go anywhere, but it's a, a pretty damning indictment in the non-formal sense of the kind of conduct that, that if true that Habba and, and Patel engaged in. The sense was that when Baraka learned that he wasn't allowed to be on the property, he just left and then he was arrested off the property. That is what the, the, the, the sort of, the, the thrust of, of this civil suit says. I don't know how much that aligns with, with the actual facts but if, if true, that would be, that would be quite disturbing.

Benjamin Wittes: Alright, Roger remind us who Arelavo Milan is and what is going on in his case?

Roger Parloff: Yeah. Darwin Antonio Arevalo Millan. This is a Alien Enemies Act putative class action, and John—I think it's a pretty important ruling—John Holcomb, who's a Trump appointee, he becomes the second judge to uphold the Alien Enemies Act proclamation. And it's actually even more deferential than the first one to Trump's, what he puts in the proclamation.

Interestingly, despite that, he does enter a class-wide injunction against removal because of the due process issues. The government would not commit to him basically to anything other than to say we'll, we'll give them more than 24 hours notice, but we won't tell you how much more. And so he, he did enter the classwide injunction. This is the Central District of California, which despite its name, as most of you know, is, is really more like Los Angeles and east of it, the Mojave Desert. This involves a guy in the facility in Desert View.

And the, the thing that's—you know, like the other two of the other Trump judges who, who reached other results is had said you need to, you can't dispute the fact finding in the proclamation, but you can dispute Trump's—the legal conclusions he draws from those. So, for instance, when he says Tren de Aragua is directed by Maduro, you have to accept that, you can't put in affidavits that dispute that, so they accept the idea that Tren de Aragua is the same as Venezuela.

But you still have—the other judges still evaluated, whether this was an invasion or a predatory incursion, he says you can't even do that. It leaves up to the president both the legal conclusions the findings and the factual findings and the legal conclusions. So, I think that's a pretty important decision.

Benjamin Wittes: Yeah. That has zero chance of survival at the Ninth Circuit, but not zero chance of survival at the Supreme Court.

Roger Parloff: Exactly.

Benjamin Wittes: Alright, let's talk about D.V.D. and all its subcomponents. What's going on there?

Roger Parloff: Well, one thing that happened, and I'll, is that yesterday I think one of the, the defendant filed an affidavit. Remember that we have these six very serious criminal aliens that are now sort of stranded in Djibouti. They were headed for East, for South Sudan, and Judge Brian Murphy stopped that, and then he said, look, you need to provide them a reasonable fear interview, make sure they—and, and where you do it is up to you. You know, you can bring them back; you can, you can do it there if you can do it there, and actually there was a lot of back and forth where the ICE guy, you know, he was asking the ICE guy, do you have facilities to do it there, and finally he said, yes, we can do it there. So they're doing it there.

And he, in this affidavit, there's a very sort of nasty thing about, about they're in danger of getting malaria. They're in danger of attacks from Houthis in Yemen. Everyone is getting sick. And and then Chad Mizelle retweets or tweets that out and says, look what the Brian Murphy, Judge Murphy is causing these people to go through. Obviously he isn't causing anything; they could have brought them back in the very beginning.

The other thing is that the-

Anna Bower: Wait, can I, just before you move on, Roger, I just wanted to jump in 'cause I heard you talking about it in the background.

On that affidavit, what's, what is interesting about it is that, you know, when Judge Murphy on May 21 or whatever it was initially ordered this remedy, which was, you know, you've gotta give these reasonable fear interviews, he basically said during the hearing, I don't care where you do it, but the government was the one who suggested, you know, we could do it where there at now—which, you know, they had been kind of sidetracked on their way to South Sudan, and so now they're in Djibouti and, and they're in this shipping, converted shipping container. And as Roger explained, this affidavit explains all the ways that the government is finding it really hard to actually comply with the requirements of the judge's orders that these people be able to meet with counsel, that they have these interviews, all that.

But, but one thing I will add about it that's interesting is that, you know, like this declaration was filed after a status report that the judge had required every seven days had already been filed like two or three days earlier, and it doesn't really have anything to do with the details of what the status reports required by the judge require. You know, it, it has all this extraneous information about how ICE officers are you know, getting sick and they're in close proximity to these people who have been accused of these horrible crimes and all of this stuff, and so it really seems like it is mainly just being used as kind of a PR vehicle as opposed to any, having any like real kind of legal significance to it.

And and it, and it really is interesting because people like Chad Mizelle, who's a top official at the DOJ is going out and tweeting, saying this is the position that the judge put us in, he's risking the lives of ICE agents, but in fact it was Drew Ensign, the government's own lawyer who, who suggested that the most narrowly tailored you know, remedy here would be to allow them to, to do this in the country that they're in. So it was government's own suggestion. I just wanna make sure we got that point across.

Benjamin Wittes: Alright Roger

Roger Parloff: And the, the other tidbit there is that, that one of the name plaintiff, O.C.G., in the original case who had been improperly—he, he had withholding of removal to Guatemala and they just removed him to Mexico with no ability to raise any concerns about persecution or torture, and he had in fact been gang raped in Mexico. He is back in the U.S. We don't know much more than that, but the New York Times has reported.

And, and it was, what I think is they're doing is this case is now at the Supreme Court, and I think they're cleaning up some of the worst stuff in the background so that they can sort of say yeah, that's been taken care of, let's focus on jurisdictional issues. And that's been completely briefed at as Supreme Court, so I'm, I'm actually a little anxious about what happens next there.

Benjamin Wittes: Yeah, although I will say, you know, a few weeks ago we had three people who the Supreme Court had removed or who the administration had removed improperly, and there were orders to bring them back, and there was a question about whether they would be able to be compliance with any of those orders. Two of those people are now back in the United States, and that is actually a, I think, a promising sign from the point of view of compliance with court orders. Although again, the circumstances of Abrego Garcia's return are, shall we say, peculiar.

Alright. Alright. Roger, we're almost through the parade. Jordin Melgar-Salmeron. What's, what's going on there?

Roger Parloff: Yeah. This was one, this was a story that was broken by the Investigative Post out of Buffalo, a guy named J. Dale Shoemaker. And, it's an, this was a guy that had, was, filed a petition back in 1983. And it's actually in front of the Second Circuit. He, he's trying to get—he's a Salvadoran and he did have, he acknowledges some MS-13 associations back then in the El Salvador, and he's tried to escape, he has disavowed, he tried to escape the gang.  And anyway, he was he, he's bringing a CAT claim a, a claim under the Convention against Torture. So he was appealing a adverse administrative ruling to this Second Circuit.

And and the government, this all of a sudden on April 17 said, look if you don't order him if, if the court doesn't order a stay of his removal, we're just gonna remove him on May 8. So, the Second Circuit on May 7 issued a stay of removal so it could, and it issued that at 9:52 AM and 28 minutes later he was removed. And so the court has been trying to get to the bottom of that. The government has acknowledged a confluence of administrative errors, and it does sound like that, it sounds—but I won't go into it. It's a, it's a long, it's pretty interesting story I might try to write more about.

But anyway, the, exactly what the, the, the, his lawyers are asking for a special master to do fact finding. It's a weird thing when you're at the Second Circuit and there's no, there's no district court 'cause it goes directly from the immigration, you know, Bureau of Immigration appeals to the Second Circuit, so we'll have to see what they do.

Benjamin Wittes: Finally J.O.P. our last three letters this week.

Roger Parloff: Yeah. So this is the story about Cristian who was sent to CECOT on March 20, March 15 with everybody else, but in violation, in alleged violation of a consent decree. He was part of a class that had been pending in District of Maryland.

And a couple interesting things here; Judge Gallagher yesterday ordered discovery mainly with an eye to pursuing contempt for a lack of compliance with her other orders about trying to facilitate his return. And she is a Trump appointee—I, I think that actually she was a Democrat before she was a Trump appointee, so I'm not exactly sure how that came down. But she had really laced into them, there's a couple things she had really laced into them on, on May 28. She had said the court finds the, that defendants utterly disregarded the court's order; defendant's untimely responses, the fun, functional equivalent of we haven't done anything and don't intend to.

Anyway, put that aside, then on June 2, there, there was this interesting declaration that said that Rubio, it's it says Rubio personally, he is personally handling negotiations with Bukele. He has a personal relationship with President Bukele that dates back about a decade. He has read and understands the court's order and wants to assure the court that he is committed to making prompt and diligent efforts on behalf of the United States to comply with that order.

You know, I'm not sure given what the Court's, Supreme Court has said, that might be about all you can, can, you know, if he says that, I don't know what you can do, but anyway, that's a possibly important development.

Benjamin Wittes: All right. It is time for Breaking DOGE News, and here it is: there is WITAOD merch people. Anna tell us about the WITAOD merch, which is now available.

Anna Bower: We have merch on, I believe the name is lawfarestore.com.

Benjamin Wittes: thelawfarestore.com.

Anna Bower: Thelawfarestore.com. Is that right? Okay, yeah. thelawfarestore.com. We have our phase one merch drop for the long awaited with toed merch. We have two different types of hats.

Benjamin Wittes: Hang on. We're gonna share the screen so that everybody can see the hats.

Anna Bower: There was a bitter division within the Lawfare team about whether there should be a question mark or multiple question marks, or just one question mark on these WITAOD hats. I know that a lot of people wanted an unhinged level of question marks, and I promise in future merch drops, there will be content that includes multiple question marks, but in this case, for a hat, it was, it was kind of off-centered if you had a bunch of question marks, so.

Benjamin Wittes: I wanna point out that for those who are truly bold there is it doesn't look like it will display it, but you can get these in MAGA colors for those who are truly willing to—oh, did it not share the screen?

Roger Parloff: It did for me.

Benjamin Wittes: Oh, okay. Did it go away?

Anna Bower: No, it's still there.

James Pearce: It's, it's still up.

Benjamin Wittes: Well, I don't know how to turn it off. So, the, you know, for those who are truly bold and who want to be, you know, offend people, go with the ones with the MAGA colors. We will be doing more WITAOD merch, as well as other important offerings very soon.

Alright. Anna, what is the real breaking WITAOD news in the Supreme Court?

Anna Bower: Yeah. So the real breaking news, we, we've talked before about CREW’s suit against DOGE trying to argue that DOGE, or the United States Digital Service, is subject to FOIA. The government has argued that the United States Digital Service is not subject to FOIA because it is a component of the Executive Office of the President, and that it is merely just an advisory body, and, and traditionally a advisors of the president or advisory bodies within the Executive Office of the President would not be subject to FOIA. But that question hinges on this factor of, you know, determining whether or not DOGE or the United States Digital Service exercises substantial, independent authority apart from, separate from the president.

And so in this suit at one point, Judge Cooper—Judge Christopher Cooper in the district court in D.C.—issued a discovery order, granting discovery to CREW on a number of preliminary questions around this, these factual issues about whether or not the United States DOGE Service actually does wield substantial independent authority. One of the things in that discovery order related to requiring the United States DOGE service to respond with any recommendations that it has made to federal agencies and whether or not those recommendations were followed.

The reason that the plaintiffs wanted this and that the judge granted it is because of course there's this kind of debate about whether or not DOGE really is advising or if it's directing, and Judge Cooper recognized that there's a very fine line between recommendations and directions, and so this is one reason why he granted this request.

This discovery order also would, would require Amy Gleason, the alleged acting administrator of DOGE, to sit for a deposition, and it would, would require some other things.

The government appealed; they argued that this is a separation of powers issue. They argued that there is—they shouldn't have to disclose these recommendations because, you know, a recommendation doesn't necessarily have to be followed. The D.C. Circuit said nope, we're not gonna stay, eventually said, nope, we're not gonna stay this after after there was an administrative stay, the reason being that the government did not object on the separation of powers, grounds that that it eventually brought when it appealed or sought a writ of mandamus, so basically they had waived that objection.

Then it went up to the Supreme Court and the Court issued an administrative stay, and then now the breaking news this afternoon is that the court in an apparent 6-3 decision has granted the government's application to stay the discovery order. Then they, they found the—and the three justices who dissent are the liberal justices—but the court finds in this order that the case should be remanded back to the Court of Appeals for further for, for, for further for a further look.

It says that the portions of the district court's April 15 discovery order that require the government to disclose the content of intra-executive branch USDS recommendations and whether those recommendations were followed are not appropriate, tailored appropriately tailored. The reason why the Court says is because whether an entity is an agency for the purposes of the Freedom of Information Act can't turn on an entity's ability to persuade. Furthermore, separation of powers concerns counsel judicial deference and restraint in the context of discovery regarding internal executive branch communications. So, so now this is supposed to go back to the lower courts.

I, I need to look at this a little bit more and compare it to the, the original discovery order, but it seems to me that because the focus is primarily on the part of the discovery order that relates to the disclosure of these recommendations, that once it's sent back down, there are still maybe things related to discovery that can still go ahead that were included in Judge Cooper's order.

I also have some questions here about how this will play out because the Court is talking specifically about the United States DOGE service, which is in the Executive Office of the President, but if you look back at Judge Cooper's order, it had requirements about not just the United States DOGE service, but any DOGE team members who are embedded in agencies and what recommendations they made to their own agency, and of course, the government's line has been, in other cases, that those DOGE team members are not actually a part of the United States DOGE service, they are apparently a part of the agencies themselves.

So it, it's, there's a lot of different, you know, nuances that may be worked out as it goes back to the lower courts, but for now, Amy Gleason's deposition apparently will not go ahead.

Benjamin Wittes: Alright. We have another Supreme Court DOGE ruling as well, right?

Anna Bower: I have been focusing on this Supreme Court DOGE ruling, so unfortunately I have not gotten through the other Supreme Court DOGE ruling. I do believe that it relates to the Social Security Administration case, but I'm not sure if James or Roger have had a chance to look at that. If we are able to come back to it in a few minutes though, I can give an update.

Benjamin Wittes: It’s okay. Have either of you taken a look at this?

James Pearce: I have not yet. I was looking at the one Anna was looking at as well.

Benjamin Wittes: Alright no worries. We will, we'll talk about it next week. If, if there's a Supreme Court memo to the Supreme Court, stop dropping these while we're ruling, while we're working on these things.

Anna Bower: I—but if Roger and James, if you have anything to add on what I mentioned in terms of the–

Benjamin Wittes: Actually, even if they do we need to move on–

Anna Bower: Oh, okay.

Benjamin Wittes: –because we're running out of time and we would not be it would not be sporting of us to leave the Trump-Musk feud without asking Anna Bower, Anna, can we now exclude Elon Musk as the administrator of DOGE as a suspect?

Anna Bower: I, I think we can, unless you are one of the people who adheres to the galaxy brain theory that this is all a ruse and that it's a fake fight, a way to throw the courts and also maybe me off the scent of who really is the administrator of DOGE.

Benjamin Wittes: I think we're gonna, we're gonna call that a yes.

Alright, we're gonna go to audience questions. Josh asks, what is the status of the two E. Jean Carroll v. DJT cases. If one of us is gonna know that it's gonna be Roger; I do not, I haven't kept up with it the last few weeks. Roger, do you do you have any information on that?

Roger Parloff: One was upheld by the Second Circuit. It was unanimous. I don't know if they're trying en banc or not, that would be. But the other one is

Benjamin Wittes: Which is the the big one.

Roger Parloff: Yeah, the big verdict. They raised belatedly—it's, it's hinging on either I think on either a late presidential immunity ruling whether that was decided or yes, I, I think there was a late presidential immunity claim and they, they need to litigate that now. And, I'm sorry. It is a blur.

Benjamin Wittes: Alright. Mike asks, aside from the question of Abrego Garcia's guilt under the indictment, what is the possibility that Judge Xinis will make one or more findings of contempt?

So there is obviously a contempt question, but it is much harder to argue that somebody is in contempt when he has been returned to the country, and there is a notification of compliance, which I understand has just been filed. And so the question would—you know, there was no specific deadline for his return, and the government does seem to have complied in the sense that he's back in the country or he will be, assuming they get him from El Salvador. So I, I don't know what the basis for contempt would be unless there are specific interstitial rulings that were not complied with.

Generally speaking you know, Judge Xinis can probably congratulate herself for having effectuated one way or another, for good or for bad, Abrego Garcia's return to the United States. And I, I doubt you will see a contempt finding. It's not like Judge Boasberg where in the broad scheme of things, her order was defied. Her order was foot-draggingly and weirdly complied with. Do any of the three of you disagree with that?

Roger Parloff: My silence is not—no noted dissent.

Benjamin Wittes: Well put, I, I mean, I don't—look, I don't say that with any sense that the, the government has not shrouded itself with glory in this case. But if you’re Judge Xinis and you look at it and you say, which of my orders was defied, the big one was, you gotta do what you can to bring him back, and they did something and they kind of brought him back—belatedly, foot-draggingly, resentfully, and with a lot of really contumacious behavior, including by the president—but at the end of the day, the order didn't say the president can't be a flamboyant asshole in the, in the White House.

Alright, Catherine Watkins asks what does James think about Judge Dugan's motion to dismiss based on her immunity for official acts in her courtroom, which she says is similar to the immunity that SCOTUS gave to Trump. So James has addressed this before but let's turn it over to him again.

James Pearce: I wrote a short piece for, for Lawfare on this. I also spoke about it a few weeks ago when, when we sort of first saw the motion and then wrote, wrote a piece where basically I said I, I don't think very much of it. I, I don't think courts have recognized any kind of an immunity from judicial, from, from criminal prosecution for, for judges. The sole outlier that I am aware of was a, a district court case from a prosecution actually involving among other people, Charlie Chaplin, which is sort of an interesting historical anecdote, but the, the upshot of the court's analysis, the district court's analysis there was a lot of skepticism about the prosecution, and the merits of bringing a prosecution seemed to bleed over into the judge's thinking about the, the immunity issue, which I thought was mistaken.

All, all of that said, I did note that at some point last week—so, so I, I, when I wrote the piece and, and when we spoke about this last on Lawfare Live, Dugan had, had filed like a seven or eight page message to dismiss. She since—her lawyers have since filed a, a much more comprehensive, about 30 or 35 page motion, that makes a slightly more sophisticated argument and relies, as I think the question suggests, much more heavily in kind of the, the, the Trump v. United States methodology and, and says, well, for, for official acts in my official capacity I should have immunity, and tries to distinguish away a handful of cases where judges engaged in, in bribery or corruption for official acts, right, so they took bribes to issue reduced sentences or to decide cases in certain ways.

So, I think that's a, a, a better effort to articulate from kind of relying on Trump. I, I think Trump was, was wrongly decided. I also think even if you don't agree with me it was very much this is a a free pass for, for presidents, but nothing to suggest it should more broadly apply outside of that to, to judges or to others.

So, I, I may do a sort of a follow up piece on what I think is a better articulation of Dugan's argument in, in her longer motion to dismiss. But I still come down where I did in the, in the shorter piece and, and in speaking about it before, which is it's not one the courts have recognized and I think for good reason.

Benjamin Wittes: All right, last question from Andrew. Enrique Tarrio and a handful of other proud boys, including one John Doe brought a Bivens action this afternoon in the middle district of Florida, seeking $100 million dollars in punitive damages. This case can't be very likely to prevail, but could we see a settlement akin to the one we saw with Ashley Babbitt's family for $5 million? Also, the attorney who signed the complaint is named Augustus Sol Invictus and he is recent, a recently convicted felon in Virginia.

So just to be clear, I know nothing about Augustus Sol Invictus and whatever criminal record he may or may not have, although I do love the name Augustus. Sol Invictus, Augustus being of course a reference to Caesar Augustus and Sol Invictus being a reference to the God of the unconquered son, but–

Anna Bower: Okay, but to be clear, his real name is like Andrew Gillespie or something. 

Benjamin Wittes: Yeah, but I think we gotta get, you know, when someone's gonna show up on our show named Augustus Sol Invictus, we, we gotta spend a moment with that because that's kind of awesome. Look–

Anna Bower: And his law firm is named the Invictus Law Firm. Of course. Of course.

Benjamin Wittes: That’s great. That's great. Well, good old Sol Invictus. You know, look, this is a good scheme honestly, because in fact the government has unrestricted authority to settle cases. The case against Ashley Babbitt is, you know, there was, there was no plausible way she was going to prevail in that case, nor was that case worth $5 million to settle to the government, unless the goal was to reward, you know, reward the family of, of somebody in Jan. 6, just as pardons were benefiting families, people involved in Jan. 6.

And so the question is, if the Justice Department decides under its new anti weaponization leadership Eagle Ed Martin, that it wants to put money in the hands of, of Enrique Tarrio's family, individual as well, it can settle the case on whatever basis it wants.

And so, you know, look, if you have, if you're a MAGA person, their slogan right now is no MAGA left behind, that's what Ed Martin literally says. And so if you have a, you know, even a ridiculous claim represented by Augustus Sol Invictus against the federal government on behalf of criminal activity that you engaged in for Donald Trump, it's a good time to stake your claim. I mean, it's like a kind of homesteading, I think. What do you guys think?

Roger Parloff: I agree. There's no, there's no punitive damages in a federal tort claim act, and there's no pre-judgment interest. So in a real life case, it's, it's, it's very hard to get much money, but if Ashley Babbit is getting $5 million, then there's, there's no, you know, this seems like a collusive suit and that, I guess they just have to make a judgment about if, if they give him a big, those guys a big reward. Where does it stop? You, how much do you give the 1500, 1600 others?

Benjamin Wittes: No, I think that's right. But I think you will start to see, I mean, they're gonna have to make a threshold judgment. Do they want to, and he's sometimes talked about, you know, compensating, right? Do they want to do that? And if they do, there's really very little to stop them. I mean, Congress cannot—I don't think you'll see congress pass a 9/11 compensation like scheme for i, so you have to do it through individual settlements, but you can. And you know, I think some of them are you know, I, I—the, the restraint on this is that it's not likely to be particularly politically popular, and, you know. It's one thing to pardon criminals, it's another thing to pay them.

Roger Parloff: Oh, the other thing is, I, I see somebody mentioning that this Bivens action, I, I don't think you know anyone has won a Bivens action outside of Fourth Amendment claims in–

Benjamin Wittes: Since Bivens.

Roger Parloff: Yeah. Yeah.

Benjamin Wittes: Alright, we are gonna leave it there. We're gonna end on time. Buy your WITAOD hats, tweet your WITAOD hats, or Bluesky your WITAOD hats @Anna Bower. Make her regret that we ever did this. We're gonna be back next week.

A quick programming announcement in response to a lot of comments from you guys: we have, we think a new concept or a concept for how we're gonna refine this Lawfare Live, which is generally speaking, we're gonna keep things as they are. We are going to, when we need surge capacity and we have too much stuff to do in a single week, we're gonna do an extra episode on Tuesdays. We may not do them on any given week, but when we surge, we will surge on Tuesdays if we possibly can.  All episodes will go on the podcast feed. We are gonna restrict questions in the regular episodes to four. And we are going to have monthly AMA episodes like the ones we had this week that will be purely devoted to questions. And as to what time on Tuesday, we don't know yet. We haven't decided that.

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

Please rate and review us wherever you get your podcasts. Look out for our other podcasts, including Rational Security, Allies, The Aftermath, and Escalation, our latest Lawfare Presents podcast series about the war in Ukraine. Check out our written work at lawfaremedia.org.

The podcast is edited by Jen Patja and our audio engineer this episode was Ian Enright of Goat Rodeo. Our theme music is from Alibi Music. As always, thank you for listening.