Lawfare Daily: Trials of the Trump Administration, May 2

[Intro]

Anna Bower: Who is the administrator of DOGE? You'll be shocked to learn that we still don't know.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittes, editor in chief of Lawfare, with Lawfare senior editors, Anna Bower, Scott R. Anderson, and Roger Parloff, and Legal Fellow James Pearce.

Anna Bower: Really wild story when you read the whole thing through and you understand, start to understand what is going on

Benjamin Wittes: In a live recording on May 2, we discuss the status of the many civil litigations against President Trump's executive actions, including the release of Mohsen Mahdawi, updates in the many Alien Enemy Act removal cases, and challenges to the dismantling of agencies across the executive branch.

[Main podcast]

Hey folks, welcome to this week's Lawfare Live. It is Friday, May 2, 2025, 4:00 PM in Washington, D.C. Roger Parloff joins us from the Sconce Studio. Hey Roger.

Roger Parloff: Hello

Benjamin Wittes: Scott Anderson joins us from the blurred background studio where we can't really see anything, and James Pearce joins us from the—I don't know, what, what's the name of your studio, James?

James Pearce: You know, I spent so much time trying to figure out the name of my title that I haven't got around to the name of my studio, but I, but I'm sure by next week I'll, I'll come up with something.

Benjamin Wittes: I think it's the stained glass studio, 'cause it's the only studio in our, in the broader Lawfare cinematic universe that has a stained glass background.

Alright. It's another busy week guys, and we are, we've got a lot going on in litigation, and we're gonna go through a whole lot of it rather quickly. But obviously the big things that we wanna focus on this week are two of the immigration cases both of which, Mohsen Mahdawi in Vermont and J.A.V. in the Southern District of Texas—not usually the place you go for friendly immigration decisions—have put a serious dent in the president's ambitions to deport large numbers of people for political reasons or under the Alien Enemies Act.

So Roger, get us started. Let's deal with the political deportations first. What happened in Mahdawi in Vermont, and how big a deal do you think it is?

Roger Parloff: Well this was earlier this week, you probably saw it on TV or read about it. Mohsen Mahdawi, who had been one of the protestors at Columbia, he's 34 years old, he's a, got a green card, he's a legal permanent resident. And this was the guy who was arrested—he had, he had come to his final citizenship interview and he actually went through the interview and he signed the paper saying you know, he would take the oath of allegiance, and then the interviewer said, I need to leave the room for a second, and then three guys came in and arrested him and handcuffed him and took him away.

So, it was very—he's been here nine years—very sympathetic facts. He had 135 letters on his behalf from—many of them, from Jews, professors at Columbia and so on. And the judge was very sympathetic.

The thing, the reason I hesitate, I don't know how important it is 'cause it's not a merits determination; it's really a, it's sort of a bail hearing. And the judge to, there, there are a bunch of—and, and this is true of all the immi, a lot of the immigration cases we discuss—there are a lot of what are called jurisdiction stripping provisions in the statutes, where at various times Congress decided, we don't want courts interfering and/or we don't want them issuing injunctions, we don't want this or that, and so and they aren't easy to understand. Judges don't like them, so they've made narrow distinctions. And so a lot of this ruling is sort of a grand slalom past four of these jurisdiction stripping provisions.

And eventually he gets to—he doesn't really get, you know, if you remember, he was one of the ones where Secretary Rubio makes a finding, and I don't have the words in front of me, something to the effect that there's a reasonable likelihood he'll have an adverse effect on our foreign affairs policy.

And he doesn't really do an analysis of that. He says that to get released, you have to show something extraordinary. And he says that in this case, in this context, where we're in sort of a, a Red Scare, sort of Palmer raids sort of, ambience, detaining him would ratify the government's attempt to chill protected speech. So that's some remarkable language. And it's immediately been appealed–even though, like I say, it's only a bail hearing—it's to the, this will be to the Second Circuit because this is Vermont, Judge Geoffrey Crawford.

So I don't know as this goes up where, whether judges will agree that all four of these jurisdictions stripping provisions don't apply. And of course they might, he has a good chance of surviving this first appeal. 'cause I don't even know if this is appealable. But anyway, that's, that's really the Mahdawi case.

Benjamin Wittes: Just within the last hour or so. The Second Circuit appears to have, or the, the First Circuit, sorry, appears to have consolidated the case with Öztürk. Is that right?

Roger Parloff: I didn’t know that. I, I thought Öztürk was also in Vermont. Is it not? Maybe, maybe it's not. Oh, sorry, the or–

Benjamin Wittes: It should be the Second Circuit in Vermont.

Roger Parloff: Unless it was Rhode Island. I, I'm mixed up. 

Benjamin Wittes: No no, these are both Vermont and I think they are.

Roger Parloff: So that would be Second–

James Pearce: Yeah, Vermont's in the Second Circuit.

Benjamin Wittes: Yeah. So I think they have now been consolidated. Let me actually, if I may, let me bring on John Hawkinson who follows these cases with extreme care. And, and I believe it was his message in the chat that made me aware that they had been consolidated. So, John, what do you know about the consolidation of Öztürk and, and Mahdawi?

John Hawkinson: Thanks Ben. So it is a little bit tricky. Technically, the motion to consolidate is referred to the motions panel that is hearing the Ozturk case on Tuesday. But the motion for an administrative stay that is to revoke Mahdawi's release is denied.

And the motion for well, and the, the motion practice for stay pending appeal is referred to the Öztürk panel. So I guess it's possible they could deny consolidation on Tuesday and say these are really separate cases, but at, at the moment, they're going to both go and have whatever they have on Tuesday together.

Benjamin Wittes: They really do present the same issue, right, which is quite apart from the merits of whether Marco Rubio gets to declare you a threat to foreign policy and deport you on that basis, whether—having declared you that, and with no basis other than that declaration to think you present a threat to society—they get to lock you up while disposing of that question. Is that fair?

John Hawkinson: Well, yes and no. I think that's the ultimate issue. It's not clear that that's the issue on appeal. I think if we looked at Ozturk, we'd say the issue on immediate appeal is whether the Vermont judge has the authority to transfer her from Louisiana to Vermont for purposes of then considering those questions. And so that, that's a little bit different. So that's the ultimate issue, but I'm not sure it's the issue immediately.

Benjamin Wittes: Right. So you could end up getting to the Second Circuit and having them say, hey, these cases are differently postured at this stage. Let's not consolidate them, but treat Ozturk as dealing with, can you move her from—can, can the judge ordered her, order her moved to Vermont and deal with Mahdawi as presenting that question squarely?

John Hawkinson: That's right.

Benjamin Wittes: Alright. Thank you John.

Roger, so, meanwhile you have another case in the Southern District of Texas that is, that really presents the Alien Enemy Act legal theory in its full glory and treats it for the first time. Walk us up to speed, get us up to speed on J.A.V. And a reminder to everybody that all of the captions in this area, in the Alien Enemies Act case anyway, are gonna be initials, and so we will be making jokes about that over the course of the next you know, 70 minutes or so.

Roger Parloff: So, yeah. So this is—J.A.V. is one of the sort of J.G.G. spinoff cases. So, originally these started out in Boasberg's court in D.C. but the Supreme Court said, no, these have to be brought as habeas, and so they have to be brought where you are confined, so three of the original five were confined in Texas and two of them up in Southern District of New York.

So, these guys were in Southern District of Texas in front of Fernando Rodriguez, who is a Trump appointee I think from the first—well, yeah, from the first term. So yesterday he granted a permanent injunction. This was a final judgment; it's not a TRO, it's a permanent injunction. And he decided that the Alien Enemies Act does not apply to this situation. The proclamation, Trump's proclamation was invalid; the words invasion and predator, predatory incursion in context and historically, you know, structurally in the statute and also historically had referred to military activities, not not this sort of thing.

And so that is big. I think I would put an asterisk—everyone is saying this is the first one to reach that substantive question, I would put an asterisk there. The, there's another one of these district-wide class action habeas in Colorado, and on April 22 the judge there, Charlotte Sweeney, entered a TRO and she too found that invasion and predatory incursion did not apply here. Now since that's a TRO, I guess that you could say

Benjamin Wittes: Yeah, she found that they probably didn't apply here, that there was a likelihood they didn’t apply.

Roger Parloff: Exactly, the likelihood that they didn’t apply. Yeah. So I guess it's like a, a little asterisk. And that has, they already sought a stay from the Tenth Circuit that was denied, unanimously denied not reaching, not reaching, you know, the, you know, the key issue. Just, you don't have a, a appeal of a TRO and so, no, that was a that's a, a huge ruling.

I haven't seen—usually they go immediately to the Court of Appeals—I haven't seen the Fifth Circuit appeal lodged yet, could be because things are going on in the Northern District, which we can talk about later.

Benjamin Wittes: Yeah. So let's I, I mean, it seems to me if you are losing district court judges in Texas—and let's, you know, Trump appointed district court judges in South Texas—there is, that is not a good sign for your vitality in the Supreme Court. Is that, just if we're reading tea leaves here?

Roger Parloff: That's how it hits my—I'm not a Supreme Court expert, but that's, that's how it hits me.

Benjamin Wittes: I think, yeah, I think district court judges in Colorado are one thing, but you know, if you cannot persuade a district, a district court judge in Texas, and you are going to the Fifth Circuit asking them to you know—that, that's a pretty striking failure.

Roger Parloff: Yeah. And by the way, I might have mispronounced his first name. It's Fernando Rodriguez. I don't know if I got that wrong the first time.

Benjamin Wittes: Alright. Meanwhile, Judge Royce Lamberth—so we're gonna move away from the immigration cases, cases.

James Pearce: Can we do, before we do that, can I just make one comment about the J.A.V., just, just briefly, that I think is, is worth an observation about the ruling itself, which is one thing I found interesting. I didn’t read it as closely as, as I would've liked, but as I read that opinion, a lot of it, a lot of ink was spilled on the political question doctrine, and the extent to which the court itself could in fact rule on a matter and courts as a general matter could rule on something where the Alien Enemies Act seems, at least in some part, to commit to the discretion of the executive branch and the presidency—and the president, rather—of this determination of whether there have been things like an invasion and a predatory incursion.

And, you know, as I read it—and I'd be curious if others had different reactions—it was almost as though there was like a failure to state a claim in the proclamation without going into the specific facts. In other words, saying, here's how as a, as a, as a matter of first principles, we define these terms and then looking at the proclamation, it doesn't look like it actually adequately sets out that there has been a predatory incursion, an invasion.

Which to me raises this interesting question of does that mean that the, the, the Trump administration could go back and kind of reissue a proclamation to clean up kind of what's you know, what, what they, they thereby proclaim and, and then they have avoided this problem, in which case it's, it's not in fact reachable by the courts or not.I, I don't think that's right. But it was something that I found sort of curious, and as I said, I'm, I don't know whether Roger or anybody else had reactions in, in reading the decision itself.

Benjamin Wittes: Yeah. Can I just point out that I've always thought the premise of this argument that you're right, you hear a lot of people make on behalf of the administration, but I actually think the premise of it is wrong and the statute does not, in fact, commit this judgment to the president.

What the statute says is whenever there is a declared war between the United States and any foreign nation or government or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government. So that is an objective condition, not dependent on the president's proclamation. That's clause one. And here's clause two: the president makes public proclamation of the event. That is the, those are the two necessary conditions.

So one of them is a presidential proclamation of the event; the other is a factual matter that there is an event to, to to proclaim. And so I don't really think there's, I actually think if you look at it's, it's not like, you know, some of the immigration statutes when the president finds that blank and blank and blank, when the president declares a national emergency, blank, blank, blank—you know, that really commits the substantive judgment to the president. Here, the substantive judgment is actually treated as a matter of fact, not, you know, so the two conditions necessary are that the, there has to be a factual predicate and the president has to reclaim that it's the case. And so I actually, I I've never understood the sort of Stephen Miller this is committed to the president's discretion thing. What am I missing, James?

James Pearce: Well, so I, I think that's, you know, a colorable argument. I guess the point I was making is that's not exactly how I read the district court itself to have ruled here. I thought the district court was taking the position that in fact, these factual determinations are committed to the, the president's discretion, the executive branch's discretion.

And it, there were many places in the opinion, I don't, I don't have it up on my screen in front of me, where it was sort of saying things like, you know, I'm not looking to encroach on the, on the executive branch, but the, here, the particular facts in the proclamation just don't establish either a predatory incursion or an invasion, which to me, again, raises this question.

You know, I, I'll be very curious to see as this moves up, as I'm sure it will, to the Fifth Circuit and probably back to the Supreme Court where, where, where we have a Court that—by the Court, the, the Supreme Court—still kind of, I think working out, particularly in this immigration context, how much is committed to immigration enforcement to the executive branch; how much is committed in, in an abstract sense; and then how much they want this administration actually operating immigration policy and kind of trying to strike a balance.

I think that the more and more we see the Supreme Court skeptical of this administration's initiatives, the more compelling or inviting the, the, the, the sort of interpretive, interpretive path you've laid out becomes for the Court. So I, I think that will be interesting to watch.

Benjamin Wittes: Alright, before we move on, Scott and Roger, do you have any thoughts on what the right interpretation of this statute is? Is it a lot of deference to the president's proclamation? Is it the way the court interpreted it, or is it the way I interpret it, which is you don't need to defer to the president here.

Roger Parloff: I—in J.G.G., I noticed that they, when they quote from Ludecke, the post World War II decision, they, they mention that what's judicially reviewable is not just constitutionality, but interpretation of the statute, interpretation and constitutionality. And if you're interpreting the statute, I think that's gonna give you room to say invasion. What does that mean and does it apply here? I, I, I—you know, it, it's close, but I, I think, I think it's reviewable.

Benjamin Wittes: Scott, what do you think?

Scott R. Anderson: Yeah I, I'm—you know, look, the general posture is the executive branch gets a ton of deference in interpreting a statute like this in these circumstances, and that is what every lawyer who'd grown up in the post 9/11 era—and frankly a few who are around before that—will tell you instinctually it's very unlikely the executive branch is gonna get knocked down interpreting a statute that's even remotely plausibly applies to sort situation.

The problem is this does only barely plausibly applies to this situation. They really have pushed every single dimension of the statute to its limits. The idea of Tren de Araguas as a foreign government, the idea that this is a predatory incursion—everything about it.

And another factor here that I think is worth bearing in mind that doesn't get enough talk is that there premise this all on the idea that TdA is a foreign terrorist organization. Congress enacted an entirely different statute that provides express and direct removal procedures for FTO members, 200 years after this statute. So I think usually in the context of statutory interpretation, you would say, well, maybe that's a sign that Congress intended that law to apply, not this other law from 200 years prior.

That said, are, is all those usual indicators of statutory interpretation enough to outweigh the deference that the court is gonna be inclined to give to this, to the executive branch on a question like this? My guess it, it is before all the district courts and lower courts; I don't think any of them are gonna side with the government on this. The Supreme Court, I think it's probably a closer call. If I had to say, I would say government loses, but I think it's by narrow provision. I think it will be in part because there's already a way to do what they wanna do to get these people outta the country as through separate procedures.

Benjamin Wittes: I don't think—I'm just gonna say this right now—I do not believe there are five votes on the Supreme Court for the idea that the government of Venezuela is Tren de Aragua, and by the way, it is at war and invading the United States. I, I know, I, I can count two votes for that, maybe add one for the idea that this seems ridiculous to me, but I'm constrained to defer to the President, but I don't think on, on a matter of foreign policy—I don't think you're getting to five on that.

James Pearce: And,and I would just have to say at a time when I was a listener to Lawfare and not a participant, I think I remember Ben Wittes saying he couldn't count to five votes that the Supreme Court could imagine that a former president would have immunity from criminal prosecution for acts while in office. Just putting that out.

Benjamin Wittes: I did say—I just, I just wanna say my my inability to count to five votes does not control the United States Supreme Court. I will also point out, however, and turn the question around on you, James, at that time when you were working for the Special Counsel's office, could you count to five votes on the Supreme Court for, for that proposition?

James Pearce: How to answer this.

Benjamin Wittes: You brought it up, dude.

James Pearce: There were those who, who thought the idea that you could even count to a few votes was preposterous. There were others who thought this was going to be awfully close, and awfully close it was.

Benjamin Wittes: And, and are we saying which camp were in, you were in on that?

James Pearce: I had concerns but, I thought we, we would prevail. And then, and then we had arguments and then I didn't think that anymore.

Benjamin Wittes: Alright. Roger, sorry, go ahead.

Roger Parloff: Just one final thing, and we've spent a lot of time on this, but on the principle that at Lawfare we never lose an opportunity to mispronounce a Latin phrase that, and they, this case was decided partly on the basis of noscitur a sociis. It's a phrase that James knows very well. It's one of Chief Justice Robert's favorites.

It was the idea that roughly speaking a word is known by the company it keeps. And so these words invasion and predatory incursion were very near references to warfare, and, and so it probably means military incursion or warfare. This obviously, this was a phrase that came up in the Fischer case as well.

Benjamin Wittes: Of course it also came up—and the other important point here is context—this was passed during the quasi war with France which was of course contemplated to be preparatory to an actual war., and this was imagined in that context.

Alright, James, let's talk about Royce Lamberth, the judge that you least want to confront on the district bench as a government lawyer who did not seem very sympathetic with the government's efforts to withhold money from the from Radio Free Europe/Radio Free Lib, Radio Liberty.

James Pearce: Yeah, that, that's exactly right. This week on Wednesday former chief judge Royce Lamberth entered a TRO and required that the government in fact pay out the, about $12 million—not, not huge princely sums of money at issue here, as there are in other cases, other funding freeze cases, but this amount was, was vital, is vital to the ongoing operation and existence of, of Radio Free Europe.

You know, not, not much different in, on the analysis here, although with one, one point that I'll make, but, but sort of by way of, of background the agency, the U.S. agency that, that oversees this is the U.S. Agency for Global Media. They had had a long lasting kind of, mutual agreement with Radio Free Europe; Congress appropriated money, there was some negotiation between the U.S. Agency for Global Media and Radio Free Europe, but basically money was, was passed along to the broadcasters, journalists and others who, who worked on, on, on getting out sort of the message of Radio Free Europe for years, and then when the new administration came in, that put a pause on this.

You know, I, I, I don't really wanna spend time on the doctrinal piece—it’s as I said, very similar—but one, one thing that does make this case somewhat different and interesting is on March 15 of this year, Congress passed and President Trump signed a continuing resolution that itself provided for ongoing funding for Radio Free Europe. So in the midst of this litigation, in fact you know, you actually have a, a bipartisan bill signed by the president that, that continues to fund this entity that at the same time, the executive agency, the relevant executive agency is trying to short Radio Free Europe on. And, and I think Judge Lamberth does a nice job—it's not actually really doctrinally relevant to his decision—but at the end he has kind of a, a long conclusion in which he points that out.

The other thing that he points out—and I just wanted to read language that, that you know, I don't quite put this in the Judge Wilkinson category, but I think it's, it's another one of these kind of markers of where judges are in all of this.

So he says at the, sort of toward the end of his opinion, by enjoining the defendant's efforts to dismantle the plaintiff network’s actions, which I perceive to be contrary to the law, I am humbly fulfilling my small part in this very constitutional paradigm, a framework that has propelled the United States to heights of greatness, liberty and prosperity unparalleled in the history of the world for nearly 250 years. If our nation is to thrive for another 250 years, each co-equal branch of government must be willing to courageously exert the authority entrusted to it by our founders. So that is Royce Lamberth getting up kind of on a soapbox in the midst of a, a funding freeze case, and, and I think delivering some, some powerful words.

Last thing I'll say on this case: some people may have noticed, which is that for those of you familiar with, with R.E.M., they have jumped into the fray. One of their early hits from the 1980s—indeed, Radio Free Europe—they have sort of remixed and reissued with all proceeds going to try to support the actual Radio Free Europe as it, as it continues to try to fight for its existence.

Benjamin Wittes: Yeah.

Scott R. Anderson: Just, just wait till they do ‘It's the End of the World as We Know It’ as a fundraising song.

Benjamin Wittes: Yeah. Who are the, who are gonna be the pro, who are the proceeds for that gonna be for? For the asteroid?

You know, just a note on Royce Lamberth; this is the second time at least he has gotten up on his, on this particular soapbox during—he made a lot of news last year during the sentencing of one of the Jan. 6 perpetrators for his full throated, I would say, defense of the importance of the cases and criticism of the disinformation campaign that has been waged on behalf of the Jan. 6 perpetrators and you know, I think spoke for a lot of the district court bench in that speech. You know, obviously all district court judges are their own masters, but I think he really did capture something that a bunch of them were thinking and feeling at the time.

Alright, James, while we've got you, let's talk about the latest bizarre case of seeming politicization of, of DOJ prosecution authority. This one is not in litigation, at least not yet, but it does seem to have been before a couple of magistrates and judges. So, courtesy of the New York Times, what do we know?

James Pearce: Yeah, so this is a story that just broke yesterday, though, referring to events that happened a bit earlier this year. And, and as you say, Ben, very much focus on still more kind of internal looks at what the current Justice Department looks like and the relationship between the political appointees and the department and a lot of the, the career staff that has been working there.

So, background to the story: in late February, I think it was the 26th, there was a, a pro-Palestinian group that staged a sit-in on Barnard College, part of, of Columbia. And shortly thereafter, according to the New York Times report, the Emil Bove—who I, I, I don't recall whether he was still the acting deputy attorney general at that point, or he was the number two, which is the principal associate deputy attorney general, but in either case a, a very high up member of the Justice Department and one I think whose name we all know from both his time representing now, now President Trump, as well as when he was the acting Deputy attorney general and was very much involved in the the Eric Adams dismissal case.

So, so Bove according to the reporting, essentially quickly moved to try to get this matter investigated criminally, not using, interestingly—and this becomes relevant a bit a bit later—his former office, the Southern District of New York, U.S. Attorney's Office, but in fact Civil Rights Attorneys out of, out of Main Justice. Sort of, directs them first to try to get some kind of a membership list of a group called Columbia University Apartheid Divest. It's actually not clear from the reporting that was the group, may, maybe it was maybe somebody else has seen that, but that was certainly the group that Bove was, was interested in, in getting information about.

He, he then wanted to, to get a search warrant for some kind of Instagram page, and there was a lot of pushback from the, the civil rights folks who felt that it was either a, a, a First Amendment problem or a practical problem to actually get this information. Then the, the, the, the article reports—and it's not clear to me if it's the same search warrant or a different one—but there is an effort to ob obtain a search warrant. Again, it may have been for this Instagram page, you know, so non-public information kept and stored by Instagram.

The, the, the, the government goes to try to get a warrant from a, a magistrate judge who rejects them and says, you, you haven't established probable cause of a, a, a criminal violation to entitle you to carry out the search. Then according to reporting, the government appeals; that is somewhat unusual. I will have to say. For folks, folks who don't, don't know, often the, the interplay with search warrants is, is actually, rather than, than going quickly to appeal to a district court judge, a magistrate judge will not infrequently sort of signal look, you know, you've got to, to get probable cause of this offense, you gotta establish this, this, and this. I see probable cause for elements one and two, but you haven't set it out for three here. What is it? And so then the agents and the prosecutor go back and work it up, and you go back to the magistrate judge.

That kind of iterative process is actually not so unusual. I, I don't know whether folks know that or not, but it's, it's not so unusual. Seeking an appeal is somewhat unusual. So, you go to a magistrate judge first, it's appealed to a district court according to the reporting; the district court judge ordered that the the, the chief magistrate there reconsider the warrant application. According to reporting, the chief magistrate comes back and gives a, a, an even more damning assessment and says, no, you definitely don't have a PC to get your search warrant here, and by the way, if, government, you are ever inclined to try to seek to get a search warrant in the future, you need to include in your sort of packet of information that goes to whichever magistrate you're then asking for the warrant from a transcript of this sealed hearing, where presumably the chief magistrate has spelled out all of her concerns with the warrant. That's very unusual, not entirely sure the chief magistrate can require the government to do that, but nonetheless, it's a pretty powerful signal of her, her views on the propriety of, of seeking the, the warrant here.

One other detail that I, that certainly stuck out to me and perhaps others who saw this, is that according to reporting as well Bove at one point directed or, or instructed FBI agents to put on riot gear and essentially sort of stand near protesters to try to, to intimidate them. The reporting suggests that that did not in in fact happen, but, you know, again, another kind of marker or signal of, of the way that the, the political folks, the kind of the newer folks into the Justice Department have been operating.

Last point that I'll just make to kind of round this out, and I alluded to it earlier—I think the article says quite a bit about the, the tensions between Bove and the political folks and, and the career. So sort of two entities, both the career folks at Main Justice and the Civil Rights division, although I think there's been some reportings recently suggesting that Civil Rights division at Main Justice is, is getting a bit of a, a makeover at this point and a lot of folks have left.

But also the relationship between Main Justice and Bove’s former office, and Todd Blanche's former office, the Southern District of New York. Apparently one of the criticisms the chief magistrate judge made when, when she got the warrant package again, was to sort of raise her eyebrows as to why there was not more involvement or any involvement from the, the local prosecutors, the federal U.S. Attorney's Office for the Southern District of New York. So, you know, yet, yet another kind of bellwether of, of what is happening.

One, one remarkable thing—I, I think I said this would be the last thing I'll promise this will be the last thing I say about it—but is, is kind of how much, how much reporting there is about this and, and how much people are willing to talk. I mean, the career staff at, at the Justice Department are not themselves typically running to media. So I think this itself is a signal of, of kind of how tumultuous things are inside the Department.

Benjamin Wittes: Well, I will just say that for those who want to understand where this information is coming from, I wrote a piece a while back about eight rules for decoding sourcing during the Mueller investigation and it has application to all such federal investigations, and I refer you to it.

I will just say that, you know, an appalled magistrate judge, an appalled district judge, and appalled Southern District of New York prosecutors—having been whispered in the ear by the people that they circum were circumvented by—can be a powerful combination.

Alright. Let us turn to attacks on law firms. Roger, we had an argument in the Jenner & Block case this week. I don't take it, it went very differently from any of the other ones. Is that right?

Roger Parloff: I don't think so. I mean, I think I agree with you. I, I don't think it went differently. There's a li, I think there was a stylistic difference. This was before John D. Bates, and he, I think he plays a little bit more of a devil's advocate role in during arguments for both sides. So I think he peppered the plaintiff's lawyer a little more than the other plaintiff's lawyers have been peppered.

I think it's gonna come out the same way. I think the, the only issue is do you strike down the entire thing or do you, are there single provisions that might survive? And the reason is it, it's set out in five sections I think we've described. The first is the defamation section where Trump defames the firm and criticizes certain people who once worked there or, or who, who and or, or representations that the firm engaged in, especially if they were successful. And then the next five, four are the operational sections that impose punishments on those First Amendment protected activities that, that contained in the first section.

So, you know, so he wanted to know, for instance, well if, if only section one existed, the, the sort of defamation section that doesn't do anything to you, I, I couldn't strike that down, could I? I mean, I mean, so can I strike it down in this context? And, and so you get questions like that. And I think the, the answer—and I I, we should say this, they were represented by Cooley, Michael Attanasio. You know, the people representing these firms need to get credit 'cause this, you know, we're at a stage where it's risky to, to represent them. And anyway, I, I think he got across the idea that you have to strike down even that phrase, because otherwise the, the government agencies might still operationalize these punishments on the base—you have to say, the, the, the direction is to the agencies you cannot rely on the paragraph one in order to punish these firms.

One other small thing that happened in this realm; we have one left. Sussman Godfrey has not yet had its hearing. We've had the two others: Perkins Coie and WilmerHale. And Perkins Coie, there was an issue that arose. It's actually in all of these cases. When it comes to the injunction the government was saying, well, the only ones that can be, subject to the injunction are the named defendants. And, and Perkins had tried to, and there's only like eight named defendants. And so Perkins had tried to say, had added United States as a defendant, so that means all of the federal agencies. And they said, no, no, it has to be. And so, they, they amended their complaint and added 300 additional defendants and federal agencies. And the caption is now 40 pages long, so.

Benjamin Wittes: Well, I oppose 40 page long captions, irrespective of whether they're justified. It's like it shouldn't ever happen. James, speaking of developments related to going after law firms, we have a new executive order to unleash law enforcement. What does that have to do with this?

James Pearce: Yeah, you would think it, it would've nothing to do with it. And the thrust of the executive order that dropped on Monday was to kind of strengthen local, state, and to some extent federal law enforcement generally to, to kind of go after criminals, sort of the language that that, that, that we have heard from the, the Trump administration.

But relevant to this discussion is, is an interesting section that bears on a lot of the conversations we've had about or, or, or that's been widely reported about the law firms that have settled with the Trump administration and in so doing, offered to provide some amount of money—I think with Paul Weiss it's $40 million and for many of the others it's somewhere between a $100-125 million—of pro bono legal services.

So section two of this new executive order directs the attorney general to provide legal resources and an indemnification to law enforcement officers who quote unjustly incur expenses and liabilities for actions taken during the performance of their official duties, and then further says that this you know, sort of the, this provision of, of legal resources shall include the use of private sector, pro bono assistance for such law enforcement officers.

So what I, I think that is saying, in essence, is that one view that the president, or that the administration or, or broadly has about the kind of, of pro bono legal services, it will get from the, I think it is eight law firms that have settled with it will be representation in cases like 1983 matters, where officers have been sued for excessive force or things of, of that ilk. So it's interesting to see. You know, there's also been reporting suggesting it's not really clear whether the law firms and, and, and, and Trump or the Trump administration have had a meeting of the minds and, and on what, what pro bono services would be, and hard to imagine that a lot of the law firms had this in mind when they were signing up.  But certainly you know, the, what we get from the executive order suggests this is very much forefront in the mind of the Trump administration.

Benjamin Wittes: So, in other words, let me just get this straight. The executive order says go ahead and rough people up—it doesn't say it in those words, but—and if you get in trouble, the law firms I've been extorting ha, are ordered hereby to provide pro bono services to you.

James Pearce: I, I certainly think that that is a pretty concise way to read it. Query for a moment what happens if the law firms were on the other side of that, representing any of the plaintiffs who had been roughed up, you know, that's yet another set of problems. But but, but yeah, I think that's a, that is a, a fair way to, to read the executive order

Benjamin Wittes: Alright. Let's shift gears and talk about the transgender military service ban case which has seen some development this week as well. 

James Pearce: Yeah, we talked about this a little bit last week. This is now up at the, the Supreme Court. There were three cases, three chall—well, I'll, I'll back up just so we're all on the same page.

There was an executive order in the early days of the administration that essentially purported to ban the accession that is the sort of adjoining and the, and the retaining in the military, in the armed forces of individuals who are, who are transgender, who identify as transgender. The executive order, as we talked about a little bit last week, uses the term gender dysphoria in one, in one place, but then also has quite a lot of, of pretty, sort of, hostile language about sort of the, the individuals who are transgender.

So there were challenges to the executive order as well as the policy that the Secretary of Defense Pete Hegseth put in place in a couple of different places, in DDC and in the Western District of Washington and New Jersey. Some of those moved up; the, the plaintiffs, the challengers prevailed both in the to get injunctive relief in, in the district courts in, in two of those places; the New Jersey one was put on a TRO and then once there was a universal injunction, sort of paused that case altogether.

As we talked about last week after—this is out of the, the Ninth Circuit, one that started in the Western District of Washington—the, the government filed and sought the intervention from the Supreme Court and basically kind of tried to make two arguments. One was look, the policy here under this executive order and this secretary of defense is very similar to a policy that former Secretary of Defense Jim Mattis put in place back during the first Trump administration, and by the way, when that came up to you before Supreme Court you stayed its enforcement, you applied rational basis review, you should do all the same things again here.

We got a filing yesterday from the challengers, the respondents at the Supreme Court and they basically say, no, that's, that's not right. First of all, the the ban here is far more extensive and pervasive than anything that the Mattis policy had tried to put in place. The Court, the Supreme Court never actually weighed in on whether as we talked about last week, what, what level of scrutiny applies to this, whether it should be some sort of heightened scrutiny like, like an intermediate scrutiny as opposed to rational basis review. And, and then the the respondents make arguments that this is sex-based motivated by animus and thus entitled to, to heightened scrutiny, and that the, the, the ban cannot survive that, that review.

So, I assume the government will file a reply somewhat quickly and then it will be among the handful of things that, that we're watching still on the, the Supreme Court docket. But, but I would think, well, hopefully the Supreme Court will, will rule on that soon. But it'll be interesting to see what the government comes back in and reply and what the Court ultimately does with it.

Benjamin Wittes: Alright. We've come to the Scott Anderson portion of the show which begins, which is gonna cover a wide range of subjects, but begins with something we actually haven't seen a lot of from the second Trump administration, which is the administration as plaintiff. The administration has taken a lot of actions, executive actions, that have prompted other people to sue it, but it hasn't done a whole lot of suing people until this week. Scott, who were they suing and what's the theory?

Scott R. Anderson: Well, it's an unusual set of cases for a lot of different reasons, not just that the second Trump administration is now acting as plaintiff but 'cause of the posture of the cases, who's litigating, what they're litigating over. In a series of four cases—and I should note these are the four we've, I've seen so far that have been filed over the last two days, there maybe one or two other ones looking out, there are more to come along these lines—we've seen the Environmental Protection Agency and the Justice Department through its Environmental and National Resources Division, ENRD, affirmatively filing as a plaintiff against a number of states over their environmental policies.

In two cases regarding Michigan and Hawaii in district courts, in those states, the federal government sued them to preempt them from filing a lawsuit that press reports indicated they intended to file against fossil fuel companies over the potential harms of fossil fuel companies, and particularly their extraction processes and the use of their products within their jurisdiction to those states.

Benjamin Wittes: Alright, now hang on right there because I'm already confused. I'm, you know, just a caveman and I never went to law school, but I thought that you had to actually, if, if I'm gonna sue you, Roger doesn't get to sue me in advance to say you're not allowed to sue Scott. Isn't this lawsuit between me and you, you know, between me and you, and by the way, doesn't it not exist until I file it?

Scott R. Anderson: I think that is generally the accepted wisdom of this. You know, the traditional understanding is that our Constitution does not allow the federal courts to engage in strictly advisory opinions. You need a case or controversy. This is actually a point that has been drilled down in particular by conservative legal figures really aggressively over the last 50 years, including several Supreme Court justices. This is the idea of standing. You need to actually suffer actual harm, injury, in fact, that's, that's can be causally linked to an action against by the defendant, and that has can be redressed by addressing the underlying cause of that by some action the court can address and direct.

These lack, most of those conditions by most conventional standards. 'cause there's no harm being inflicted yet 'cause nothing's actually happened. In theory, if there were like really clear imminent basis for enforcement action, maybe you could have standing to pursue. That, that has happened in certain circumstances; it's not clear, clear to me that that's here, and usually that would be done by somebody who's worried about being the subject of enforcement action.

The federal government here says we are injured; they actually assert parens patriae theory, another abused Latin term. That essentially means they are stepping into the feet of these fossil fuel companies and protecting their interests because the federal government has an interest in protecting their interests. I mean, that's a little controversial in and of itself in some regards, but also saying that, well, these are intruding on federal policies. They are saying that these potential lawsuits would intrude on the foreign affairs power.

It would intrude upon the inter, the interstate commerce clause and on the regulation of foreign commerce, as well as on a number of federal pieces of legislation like the Clean Air Act that Congress has enacted. These are a range of what are known as preemption arguments, essentially saying, look, the federal government has occupied the field here; these are issues subject to federal regulation, at least in the first order, to the extent that the federal government chooses to do so and they've done so and states can't do anything here.

Maybe those are valid arguments against a lawsuit like this; I have my doubts, but maybe they are. But the posture of this case is, which makes it particularly strange, because again, there is no lawsuit, and normally what you would expect the government to do if they wanna make these arguments, I believe, is that you would expect a person or a corporation subject to the enforcement action to challenge it using the legal arguments that the federal government has deployed here, and for the federal government to step in then and perhaps win in their favor. But that's not what happening here. Instead, the federal government's doing it proactively essentially taking on the burdens and costs of pursuing those legal arguments on behalf of the fossil fuel companies.

And that's not the only places they're doing it. In Vermont and New York more recently, just yesterday we saw other similar complaints by the same government offices, challenging more specifically superfund laws. These are laws they have set up relatively recently that so far I don't believe have actually been implemented yet in terms of applying penalties, but that would try and oppose a number of penalties and other costs and liability on fossil fuel companies, then collect that money into a public fund, a similar instrument, but instead of through a lawsuit, it's through a legislative measure. And we're seeing a similar set of challenges against those laws here.

But again, we normally wouldn't expect to see that until there was actually enforcement activity under these laws, and only then we would expect usually it to be the defendants, the people who are actually suffering this to file a challenge and then maybe the government would intervene on their behalf or not.

All around it is a very weird posture of cases and an incredibly aggressive, lean forward action that I, I think mostly reads as symbolic because I think these are likely to fall on standing grounds. But nonetheless, it's a pretty notable development by the court, or pardon me, by the Trump administration pursuing these actions that, that to send a, some signal and a message to somebody certainly.

Benjamin Wittes: Alright, so, we are joined by the estimable Anna Bower who is in a, a room in her palatial mansion that I have not seen before. Anna, what room is that?

Anna Bower: This is the Legal Eagle Study Studio in my palatial mansion.

Benjamin Wittes: I see. So have you been doing a Legal Eagle recording?

Anna Bower: I have, yes. Stay tuned!

Benjamin Wittes: There we go. Well, I, you look, you look like a federal judge in that–

Anna Bower: I feel like this, this background and this cam, this is like a amazing, like very professional camera. I like, it makes me feel very like I could sign some executive orders targeting law firms here or something, you know.

Benjamin Wittes: And you could also be the representative, the managing partner of said law firm.

James Pearce: Get her a Sharpie.

Benjamin Wittes: Yeah. So we're gonna come back to Anna and

Anna Bower: I feel like I could be the administrator of DOGE from here. Yeah.

Benjamin Wittes: Oh, you blew it. Anna, we were gonna come back to you in a minute about the administrator of DOGE, but you had to pull the ripcord.

Anna Bower: Sorry.

Benjamin Wittes: Alright, we're gonna come back to Anna 'cause Anna had actually a very interesting DOGE story this week, but we're still in Scott time right now, and Scott, there is movement in a variety of federal personnel cases. Bring us up to speed.

Scott R. Anderson: Yeah, we're essentially seeing kind of two new actions or reactions to two new actions relating to federal personnel and federal agencies. The more notable one of these, I think this week, is American Federation of Government Employees v Trump. That's just the lead plaintiff; that is actually a lawsuit being pursued by a very, very broad coalition of labor unions, primarily representing federal employees, almost entirely representing federal employees, in the Northern District of California.

It is a super, super comprehensive effort challenging the federal government's part—specifically President Trump's—dismantling of federal agencies kind of across the board. It is an incredibly broad scoped legal challenge, hitting on a number of agencies, hitting on APA arguments, primarily APA arguments, some ultra vires arguments, a whole range of different claims, and is really kind of think the most comprehensive set of legal arguments we've seen challenging what Trump has done in regards to federal agencies as unlawful and beyond his statutory authority and intrusion on the authority of Congress and beyond the scope of the APA. We've seen a lot of these arguments or threads of these arguments brought forward in other litigation across the country, but again, this really ties them together in a very notable way.

We'll see if they're able to all hold together. We've already seen the court begin to push back a little bit on well aren't some of these issues being litigated elsewhere. But I don't I, I, I cannot imagine this is not something that's occurred to the lawyers pursuing this I, I'm sure they have a, a strong argument as to why this is a kind of unique freestanding case that they're pursuing in the Northern District of California. So something to keep an eye on there. There's a motion for the TRO they're seeking next Friday, I believe, on the 9th, at 10:30 AM Pacific Time, and there's gonna be a series of briefing leading up to that.

The second case, National Treasury Employees Union v. Trump is in a, this is a case where we saw a preliminary injunction in joining the recission of collective bargaining rights earlier this week, towards the end of last week, I, I, I don't recall exactly when it came down. That has now been appealed to the D.C. Circuit; we’re essentially waiting for the potential that the D.C. Circuit will intervene. It's been holding onto the issue for two days. They've been, the government has been urging them to, to provide an immediate administrative stay of that order. They haven't moved on it yet, but we will wait and see.

We know that now there's a new motions panel before the D.C. Circuit; actually don't know which one got this, 'cause I think it would've been filed like in very late on the 30, on the prior motions panel, so they may still have it. But we'll have to, I'm not sure exactly where cases that fall right on the line end up falling in terms of when they're filed. I think that's all I've got on those.

Benjamin Wittes: Alright. James, do you have updates for us on those Article II removal power cases that are kind of Appointments Clause?

James Pearce: Yeah, I mean, the first update is that there's surprisingly not much of an update, which is in the Merit System Protections Board and National Labor Relations Board cases that have been sitting at the Supreme Court for, for about two weeks now. And I think many people have thought the Court would, would have moved more quickly on it. So, so no action at the Supreme Court, and I would say the longer that the court sits on it, the less and less likely it is that they would decide to act on the government's invitation to take cert before judgment, and at least put it in the current term.

Now, they could take cert before judgment and schedule it for October term 2025, which means they wouldn't hear argument until the earliest October of, of this year. But as we all know, the birthright citizenship case, they, they placed unusually outside of their oral argument calendar, but, but no action there. Though the case continues to move towards expedited brief, expedited hearing at the D.C. Circuit; that argument is scheduled for May 16th.

So, there is another case that we just wanted to alert folks about that kind of falls in this same category of removal of individuals from independent agencies. I can't recall whether we've talked about this case yet here, although it's a case that was filed first in late February. It is a removal of certain individuals from the Privacy and Civil Liberties Oversight Board, which we affectionately know as PCLOB, something set up in, in 2004 after 9/11 to kind of keep tabs on the government's use of surveillance and counter-terrorism activities.

And so, President Trump in the early days of the administration, late January, fired three Democratic members. It's another one of these partisan balanced, sits in the executive branch agencies seemingly mostly providing advice, but question about whether it wields any executive power. This week we had a hearing in front of Judge Walton on a preliminary injunction motion that the challengers had filed.

The case presents somewhat differently than the, the MSPB and NLRB cases because unlike in those cases, the PCLOB members don't have explicit removal protections the way that the others do. And so there was a lot of fighting in the hearing about a case called Severino, which involved something called the Administrative Conference of the United States where, and I think it was 2023, the D.C. Circuit upheld the removal of somebody from that independent agency on the theory that look if if there's no removal protection, we assume at will removal, and the president can just do that.

The, the, the challengers made some arguments kind of looking to statutory history, legislative history to say there actually are kind of implicit removal protections here, and by the way, if there weren't removal protections, it would undermine the, the, the, the necessary independence for PCLOB members to do what they need to do.

Judge Walton seemed kind of, skeptical of both sides arguments; he hasn't, he hasn't ruled yet, he said he hoped to get a ruling out shortly. But, you know, just I think another mark, sort of indication of how many of these types of cases are in the pipeline. We've talked about already, the the existing FTC cases, the inspector general cases, let alone cases like fired civil servants, so, this is yet another example of that. I would expect we'd get a ruling on the preliminary injunction, hopefully some point in the next week or so.

Benjamin Wittes: Alright folks, it is time for everybody's favorite game segment of Lawfare Live. Let's dismantle some federal agencies. We're gonna take down three agencies today. Anna, you are doing CFPB. Take it down.

Anna Bower: I, well look, I'm in my DOGE lair, so, I, I would love to discuss CFPB except—and I planned to discuss the evidentiary hearing that was supposed to happen earlier this week; of course, that case before Judge Jackson, there was evidentiary hearing scheduled on their motion to enforce Judge Jackson's preliminary injunction to, stop the dismantling of CFPB, which was then substantially narrowed by the D.C. Circuit.

But after the D.C. Circuit said that there can be RIFs that as, or excuse me, that reductions in force so long as there's a particularized assessment, nonetheless CFPB was pretty much dismantled anyway. So the plaintiffs brought a motion to enforce there was supposed to be an evidentiary hearing over this, that Gavin Kliger was set to testify, potentially as was Mark Paoletta, individuals who in the case of Kliger is associated with DOGE.

And then Sunday night, right before the first, day that of the hearing—it, they got moved to Tuesday—but Sunday night the D.C. Circuit intervened because the government had gone to the D.C. Circuit, try to put a stop to the hearing. Please, someone, please correct me if I'm wrong about that because I think that I might be confusing the many motions that have been filed in this case. It might have been the plaintiffs that went to the D.C. Circuit, but I think it was the government government. But and then the D.C. Circuit had a, a surprising move, Ben, in that they essentially said that they're going to reimplement part of the preliminary injunction that they previously kind of scaled back that Judge Jackson set. And it was Judge Katsas joined the majority in, in that opinion.

I will hand it over to Roger to, or excuse me, whoever else is prepared to speak about CFPB, because as you might be able to tell from this response, Ben, I did not know that I was talking about CFPB today. But I hope that I did a, a summary that is at least enough of an overview to get us all the facts.

Roger Parloff: Yeah, that that was great. And let, let's go to, I think James will handle the D.C. Circuit end of it, and if not, then I will.

James Pearce: Yeah, no, there's, there's not much more to say. And, and Anna, you were right. It was, it was the government that sought kind of clarification on particularized assessment, and, and there was a, as you as, as Anna said, a lot of fighting over the scope and extent of the reduction in force.

And, the, the order that the D.C. Circuit dropped did basically say, all right, whatever's happening here is just sort of out of control, let's, let's put a pause on it now. Judge Rao dissented and would, would not have lifted the stay and would've would've allowed the, the sort of everything to go forward. I think the government had also raised questions about whether there could actually be judicial review of the, what was happening below.

The, the order, in addition to kind of reimposing relief pretty much along the lines that Judge Amy Berman Jackson had put in place, also emphasize that, look, we've set this for expedited briefing and argument. In fact, May 16 will be a very busy day at the D.C. circuit; there's argument in the morning on the independent agency removal cases, and then there's argument in the afternoon on dismantling CFPB. So, I think the idea is for the, the D.C. Circuit to try to move to this quickly on, on the merits, but otherwise keep the, the parties below from still fighting over the scope and extent of these reduction in forces.

Anna Bower: James, thank you. That was much better than–

Roger Parloff: Could I just say that and, and what was odd about the ruling is on the one hand, it's a big victory for the people that were in danger of getting RIFed, so it, because they reinstated the bar. On the other hand, they sort of bailed out the government 'cause this hearing was gonna be a bloodbath in terms of revealing bad faith. And, and it, it was certainly headed in that direction. It, it, it's a weird ruling the way it worked out.

Anna Bower: Yeah, and I, and I think too, I mean, it, I would note that the order specifically noted putting a stop to collateral litigation, and so, you know, even if there was maybe some some reason to go forward with the hearing, it, it was a, seemed to be a very pointed remark of, you know, that that left no option other than vacating the hearing that was, that was set to go forward earlier in the week.

Benjamin Wittes: Alright, Scott. It's your turn. You, your job is to dismantle the Corporation for Public Broadcasting. Go.

Scott R. Anderson: Well, at least one set of plaintiffs would like to stop me from doing that. It's kind of an interesting case timing wise particularly for those who've been watching the news. Folks watching may have noticed yesterday, President Trump issued an executive order directing the Corporation for Public Broadcasting to end funding for NPR and PBS among a couple of other steps.

Prior to that, we had this lawsuit get filed a few days prior to this, which essentially challenged the action that would've made that executive order possible, which is the removal of board members from the Corporation for Public Broadcasting, and the president taking replacing them and being able to, or through the other board members, direct the conduct and activities of the Corporation for Public Broadcasting.

So even though this isn't actually a direct challenge to the rescission of those funds—that may still be yet be coming from NPR and PBS, we'll have to wait and see—this is a, something very close to that, which is this a challenge by the people removed from the board saying and, and on behalf of the CPB itself, look, we, you have actually not complied with the statutory requirements regarding the removal of our board members and also the conduct of our activities.

They raised the point that the statute for the CPB among other things says specifically, you're not supposed to be able to change our priorities or activities except through noticed and common procedures, which you haven't done here. So there's a whole range of statutory requirements built into the CPPs foundational statutory authorization that the party plaintiffs here argue is not being complied with, and if they are right about that, then the executive order. President Trump issued, I believe would more or less be rendered ineffective. So a, a, a kind of backdoor challenge to that as opposed to a more direct challenge to the actual rescission of funding, but again, that could come separately through separate action.

Another case here that's worth mentioning because there's been a lot of media attention to the dismantling of AmeriCorps. This is a step being taken in relation to Corporation for National and Community Service AmeriCorps program that employees, Americans doing all sorts of important things in all sorts of parts of the country, including serving as teachers and different public health workers and other people, and particularly in parts, many, many of them in red states where a lot of these programs are very popular, supported by Republican state legislatures, state offices.

We have seen a lot of comments from Republicans, statewide officials, Republican members of Congress criticizing the cutback of these programs, particularly as they specifically relate to their home constituencies and their home states and districts, but we now have a legal action being filed by a broad, broad coalition, almost entirely of what you would consider blue states, or at least states that have blue attorneys general challenging this action on a variety of a APA and funding challenges grounds, all the similar grounds we see for other sort of cuts of agencies and activities.

A particular note here I think is interesting—it will be an interesting outcome if we see what has happened in the District of Maryland was being filed in other contexts, particularly in the context of probationary employees. There. You may remember district court judges in a reaction to the Trump's hostile posture towards nationwide injunctions have actually in at least the probationary employees context and I believe one other case trimmed what were originally in nationwide injunctions to just affect the states actually serving as plaintiffs. So if that's the, the posture they pursue here, that means that if they get a TRO or preliminary injunction, it might only apply in the blue states that are suing here, not in the red states, many of whom are very vocally complaining about the cut of this program.

We'll have to wait and see on that. Notably, there is actually one red state here, conventional red state, that is the state of Kentucky. Governor Beshear who's, of course a Democrat is suing, but not through the attorney general; he's suing through his own general counsel in the governor's office, the attorney general, a Republican, not participating.

So just interesting politics around what is otherwise a pretty conventional case here that could have interesting outcomes in a couple of weeks when we get an opinion.

Benjamin Wittes: Alright Anna, it's time. Who is the administrator of DOGE?

Anna Bower: Who is the administrator of DOGE? You'll be shocked to learn that we still don't know.

So, look, this week in DOGE world, there was an interesting filing that I wrote about, and we published a piece on, on Sunday. It is called “DOGE, Directives and DOJ,” and I encourage people to read it because it actually is a really wild story when you read the whole thing through and you understand, start to understand what is going on, but it's a detailed story.

I was looking at Courtlistener, you know, on Thursday night, and I saw that an administrative record had been filed in a case that, to be honest, I was kind of following, but not really. Is a case about the elimination or the cancellation of grant funding for legal aid services that provide services to non-citizens and unaccompanied minor children. There's a long kind of history to the litigation involving a memo issued by Pam Bondi that seemed like it was going to result in the cancellation of these grants, and then, you know, there was a series of efforts by the administration to cancel 'em and then un cancel them and then cancel them again.

But we, it all got to a point where in April, finally the grants were terminated after, you know, the, all these cancel and then un cancel efforts, the government as a part of this suit that has been ongoing filed its administrative record, and I start looking at the administrative record and it contains all of these internal DOJ emails related to the cancellation of the grants.

And Ben, the reason that I was interested in this is because one of the issues that has arisen in the Appointments Clause cases, for example, or in the litigation over whether DOGE is subject to FOIA, is this question of whether DOGE is an advisory kind of organization. Do they just advise on which cuts to make? Is Elon Musk just a senior advisor to the president advising rather than, you know, directing?

And with that in mind, I start reading this and I realize that this might be one of the first examples of a direct chain of events that seemed to suggest that the White House DOGE was communicating with and instructing the DOGE team members within an agency—this agency being DOJ—to, to cancel grants you know, without really going through the channels of official approval and all of that.

And, and it's kind of hard to explain because I, I, again, it's very detailed and I, and I suggest that people read it, but the kind of general thrust of the piece is that, you know, DOGE contacted the Justice Management Division within DOJ and quote, instructed them to terminate the Acacia Center's contracts. The Acacia Center was the contract holder for these legal services contracts.

Later that evening, a DOGE associate embedded at the Justice Management Division then directed senior Justice Department officials to immediately terminate the contracts, and then when they didn't do so immediately, the records suggest that he took matters into his own hands and solicited a contract officer to directly send the termination notice without waiting for the senior officials to approve it. And then, and then finally that was rescinded, the contracts were canceled again.

But I, I think that one reason why this is different from what we've seen before in some of the other documents in cases like the CFPB case or the USAID case, which is, involves a lot of the DOGE team members who are hired directly into an agency doing things, but the argument in those cases is that, oh, well they're, you know, agency employees, so, you know, they have authority to do these things. But in this case, it seems like there is a chain of, you know, White House instructions to terminate something that's going to a DOGE team member who's then instructing officials within the agency and, and seems to be circumventing, you know, some of the official channels that you would usually go through for a chain of command. So it's really interesting.

Otherwise, in other DOGE news there's also Elon Musk; they had a little goodbye party at the cabinet meeting for him, it seems, of sorts—yesterday, I believe it was—as he prepares to exit his role. I will just say that it kind of made me feel a little bit crazy because he's sitting there being asked by reporters, who is going to lead DOGE after you leave? And this is, and he's saying, oh, well, like, it's like Buddhism, you know, that you can't you, you can't replace the Buddha or something to that effect. Meanwhile, he's not supposed to be the leader of DOGE. So it's, it's I suggest if you want to have DOGE induced madness, then watch that video. But that's all in the world of WITAOD.

Benjamin Wittes: Well, it's not quite all because James, we have some. Widowed litigation, what's going on at the Social Security Administration?

James Pearce: Yeah, and this, this actually is the breaking news segment of our Lawfare Live because to, to, not to bury the lead, we've got the Solicitor General's office yet again coming in. They have filed within the last, since we've started recording, so certainly I think within the last hour or so.

But to back up, this is a case out of the District of Maryland in the Fourth Circuit. It is a challenge by various labor and membership organizations to DOGE getting PII, personal identifying information, from the Social Security Administration. The district court had granted a preliminary injunction to the plaintiffs, the Fourth Circuit, and, and the government had sought a stay pending appeal. The panel in the Fourth Circuit had initially granted the government's motion, but then in a somewhat unusual move, although we did see this also in the D.C. Circuit, in the Humphrey's Executor cases, the Fourth Circuit went on banc and overruled the stay or, or vacated that stay.

And so now just shortly, as I said, within the last hour or so, the government has yet again gone to the Supreme Court seeking a stay pending appeal in this case involving access by DOGE to so, so information held by the Social Security information, Social Security Administration—lots of sensitive records, medical records, records of children, that kind of thing. So we will see what the Supreme Court does with that.

Benjamin Wittes: Finally, before we go to audience questions—of which there are, I mercifully only two today, so we're gonna actually be able to finish this comfortably—Roger, I wanna ask you to give us a quick tour through the immigration matters, almost all of which have three letter initials that we have not already talked about.

Roger Parloff: Okay. Lightning round. This is A.S.R.; it's another one of these class actions habeas. It's in the Western District of Pennsylvania. We have a TRO in place. We have a preliminary injunction hearing Monday.

J.G.G., what's left of it—part of it is at the D.C. Circuit. We have the appeal of Judge Boasberg's contempt or sort of finding of probable cause of contempt that is fully briefed now and as far as I know, has not been ruled on. It's before a conservative panel; I am bracing for that. Below we have a piece of it ongoing at the district court in front of Judge Boasberg; the ACLU is trying to go forward with two class actions, and the most interesting is the one that is on behalf of the 137 or so people already in CECOT under the Alien Enemies Act proclamation. And the government, the, the question there is there's a motion for preliminary injunction and for class certification, government is opposing that saying there's no constructive custody, the, you know, Bukele is in control, so you can't bring a habeas. They are also saying, well, there, there's a, a lot of things, a lot of defenses going on there.

The A.A.R.P. case, which is also at the district court is now called WMM, because the association for retired people wanted the name change.

And at the Supreme Court, if you remember when they issued the order—the Saturday morning order, which in effect said no more departures from the Northern District of Texas under the Alien, under the Alien Enemies Act for the time being—they also invited the Solicitor General to submit, a brief, he did. The ACLU responded; they've also asked that that be treated as a cert petition. Nothing's happened there; it's sort of in place preventing people from being moved.

And meanwhile, the case is going forward in the district court. Remember, this is before Jimmy Hendrix or James Hendrix in the Northern District. Highly, highly—he, he was, the whole reason this Supreme Court order was necessary was that he was unwilling to enter a TRO for the class, despite a lot of evidence that people were being were, were being loaded onto planes. And of course, the Fifth Circuit affirmed Hendrix eventually, so that is gonna be a tough row to hoe. But the, meanwhile, the Supreme Court ruling remains in effect.

Then, Sanchez Garcia—this is interesting mainly it's a Western District of Texas case, AEA Alien Enemies Act case. It was only for those two individuals. Habeas was granted. It's mainly of interest because he was actually deciding, okay, what's your evidence that they're really Tren de Aragua? And he found their evidence was completely and wholly unsubstantiated. And what's also, it was multiple levels of hearsay. It's a lot like the Abrego Garcia evidence. And there the woman Sanchez Garcia had been married to a Tren de Aragua guy, but separated ten years ago. There was no evidence of her new companion, but the affiliation with her and her affiliation with him combined with complete triple hearsay stuff was their evidence.

And also this had been, this—not only did he give them a habeas, about three weeks earlier, a different federal judge, Leonie Brinkema, had issued a habeas in the same case in the Eastern District of Virginia, saying the declaration was the sorriest statement I've ever seen talking about all the levels of hearsay.

So, Armando, Abrego Garcia—that case has started up again after a mysterious week-long hiatus. As soon as it started up again, the New York Times had an article where three people told him that Trump, Trump administration had sent a diplomatic note to El Salvador to inquire about releasing Abrego Garcia, but Bukele allegedly said no, according to two of the sources. And according to one of them, they said he's staying because he's a citizen. A lot of questions about whether that was just window dressing. I, I'm sort of assuming that that was what the seven day delay was about. The new discovery schedule is supposed to be completed by May 14.

Do I still have time for a couple more? How are we doing?

Benjamin Wittes: Yes. Finish up.

Roger Parloff:  Okay. J.O.P. This is a weird one out of Baltimore. But it's a guy in CECOT, and he was covered by a class action that began in 2019 and the, it was settled in 2024, and he was not supposed to be sent anywhere. He was an unaccompanied—originally, an unaccompanied minor, unaccompanied alien, minor alien child, UAC. And, but he at the age of 20, he was caught up and on March 15, apparently in the third plane, Cristian is his name.

So he, he was a and so she, who is a Trump appointee is ordering, ordered him, ordered the government to facilitate his return. That—she's got a hearing set for May 6, a status conference, and she's gonna discuss there whether to require them to reveal to discuss, to come forward with all the steps they've taken, you know, much like Abrego Garcia to, to try to get him back.

One last one that I think was announced after the day of our last thin but before we could report it that was a, another, I think he's a Trump appointee in Western District of Louisiana. That's the 2-year-old citizen that was deported to Honduras. The government says the mother wanted it was being deported, wanted her to go; the father says, and the guardian dispute that. And she, and that has a hearing on May 16, but the, the, the child is in Honduras.

One last I think is D.V.D., which is a class action, and this involves people who are, either have withholding of removal—they are removable, but they have withholding of removable because they would, removal because they would face persecution in their country—also, some people that just can't be removed because we don't have relations with their company, country like Cuba and Venezuela.

And that it, the, the government had been violating had simply been sending such people to third countries without without any due process. A preliminary injunction was issued to prevent that, require a certain minimum notice, I think 15 days. That is now on appeal to the First Circuit, and it's fully briefed. And I think we're, yeah, I think we're waiting for results there.

Benjamin Wittes: Alright, we have two questions in the queue. We're gonna run a little bit over to address them extremely briefly.

Ian asks, we've established a precedent for indefinitely holding people that the government accuses of being terrorists in Guantanamo. Someone like KSM was detained in a country with common law and a constitutional prohibition on indefinite detention, Pakistan, and over the more than 20 years we've held him, the government hasn't been able to present enough evidence to actually bring him to trial. What's stopping the government from taking the same approach to people like Kilmar Abrego Garcia, someone who the administration insists as a terrorist, but whose evidence seems weak?

So, I think the answer to this question is, first of all, it is not the absence of evidence that has prevented the United States from bringing KSM to trial. It is the craziness of the circumstances of KSM's treatment, which is to say the brutal interrogations to which he was subjected, combined with the difficulty of establishing an entirely new court system.

What would prevent Kilmar, the same thing from happening to Kilmar Abrego Garcia is twofold. The first is that there is no AUMF associated with—you know, though the administration talks about it as a, as a war, there is no authorization to use military force, and thus the military, I think, would not have the authority to hold Abrego Garcia under the law of armed conflict, which is the basis for KSM’s detention.

The second thing is that you, realistically, the United States has no interest in holding Abrego Garcia. He's, they wanna—the goal is to get rid of him, not to hold him for long periods of time. So I think those are the two answers to that question.

The second question from the anonymous attendee or one of them is, what burden does the administration face in court in proving that Harvard or NPR or PBS and others are biased, the basis for withholding funding? Would it be arbitrary and capricious for Trump to take action based on alleged bias without any evidence or finding of that?

So I'm gonna let others address this, but I think the answer to it is the claims are completely different. Harvard's claim is a First Amendment claim, and the administration would have to show that it was taking action based on some reasonable objective criteria that was not viewpoint based, which is, of course flatly contradicted by everything that they've said.

And the case with respect to NPR and PBS, I think falls along the question of whether, whether the government can seize control of the CPB at all and direct the expenditure of its money, but I haven't looked at those cases carefully and like, and so I'm not sure I know the answer in that case.

Does anybody else have thoughts on what the burden would be?

Scott R. Anderson: I think the key issue here is that the basis of them being terminated is not about them being discriminatory or unbiased; it is whether Trump has the discretion to terminate the funding, and so that is the question. And then the question is, is he doing it on a permissible basis consistent with the First Amendment? So wouldn't be a threshold evidentiary showing as to whether they're biased 'cause that's not grounds for terminating them; it's, it's those two other legal questions.

Benjamin Wittes: Alright, we are gonna leave it there. We got through every subject we got through all the audience questions. And we're only five minutes over. Folks, we're gonna be back next week because you know if it's Friday, it's Lawfare Live.

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