Lawfare Daily: The Trials of the Trump Administration, Aug. 15

[Intro]

Chris Mirasola: Have the deployment of more federal law enforcement personnel throughout D.C.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittes, Editor in Chief of Lawfare with Lawfare Senior Editors Scott R. Anderson, Anna Bower, and Roger Parloff and Lawfare contributor Chris Mirasola.

In the August 15th episode of the trials of the Trump Administration, we discussed D.C.'s lawsuit challenging the Trump administration's attempts to assume control of the D.C. Police Department, litigation over the freezing of federal funds of various sorts, the bench trial in Newsom v Trump in California, and so very much more.

Chris Mirasola: The general framework that we have here is just provides incredible discretion to the  president, particularly when we're thinking about the D.C. National Guard.

[Main Podcast]

Benjamin Wittes: It is Friday, August 15th, 2025. It is 4:00 PM and this is Lawfare Live, the tribulations, the trials of the Trump administration. I am here I guess I should say who I am. I'm Benjamin Wittes, Editor in Chief of Lawfare, and I'm here with, from the Jura, where he is training to be a maquisard, Roger Parloff in the Jura Studio.

Hello, Roger.

Roger Parloff: Hey, Ben.

Benjamin Wittes: Are you are you ready to take on some Nazis?

Roger Parloff: I'm, I'm ready. Thanks.

Benjamin Wittes: All right. Joining us from the Brookings Institution, it is Lawfare Senior Editor Scott R. Anderson. Hello, Scott.

Scott Anderson: Hello.

Benjamin Wittes: And because we are talking about misdeployed troops, corralling of federal law enforcement into running the District of Columbia were joined by our all things domestic deployment of the wrong people for the wrong jobs. Chris Mirasola. Hey, Chris.

Chris Mirasola: It's great to be here as your occasional angel of death.

Benjamin Wittes: Yeah. So Chris, you know, we all have our specialties and Chris, Chris is like the kevorkian of, of Lawfare.

Chris Mirasola: Not a grateful coming at you live from the Milwaukee airport today.

Benjamin Wittes: Wow, alright, so, I am gonna start today with a bit of breaking news that I was personally not so privileged to be involved in a few hours ago.

As some of you know, I planned to go to the Russian Embassy today, and as I have done in the past, dump a whole lot of blue and yellow chalk on the front stoop of the embassy to protest the Alaska Summit. And I found myself as a result of that smack in the middle of a picturesque example of a whole bunch of the things that Chris is going to be talking about today.

Which is to say that not a few minutes after I started and I was live streaming the whole thing. So I have video of it. A rather large number of secret service vehicles with sirens going and lights flashing, pulled up and seemed to be taking the whole thing very seriously. And this rather surprised me because only a year ago I had done exactly this operation and I had walked through a secret service officer with exactly what I intended to do.

And I happened to have that on video as well. So, Ann, I, if you could show us the little walkthrough that I did with a Secret Service Officer of Operation Chalk Dust in front of the Russian Embassy I would appreciate it.

Wait, I'm not getting audio on it.

Can anyone else hear this?

Scott Anderson: No.

Benjamin Wittes: Yeah, so there's Anna. You gotta click the audio when, when you share.

Alright, well, trust me on this. This was a walkthrough and which I told the Secret Service exactly what I intended to do and they had no problem with it a year ago. And. I went ahead and, and did this, and when I planned it today, I thought, okay, I know exactly what is okay with the Secret Service because we did it last year and I showed them exactly what I was gonna do, and they were okay with it.

Well, let's take a look at what happened today when I tried the same operation again.

So again, I'm not sure if there's any audio for anybody else. There isn't for me. But what you'll see is a rather large number of secret Service. Came there were at least five cars and they seemed to take this very seriously as a threat to the embassy. And it took, they were there for maybe half an hour.

And then they told me that and for present purposes, I wanna emphasize this, they told me that there was a D.C. municipal ordinance against even temporarily defacing the public streets or public property. And that if I persisted, they would arrest me. They weren't gonna arrest me because I was cooperative and they were exercising discretion.

So, for present purposes, it seems to me there are two really key, points here. The first is number one, that the that the Secret Service is here enforcing a D.C. municipal ordinance against defacing public property even temporarily. And number two, that the exact same operation that last year I walked through in advance with secret service officers and showed them what I was going to do and they had no problem with it today, they barred.

So it seems to me the substantive standard is different and what federal law enforcement in D.C. is doing is different than it was a year ago. Alright that's enough about me. Chris, I wanna ask you to get us started. How does this gel with the news that you've been reading about? What's going on with federal law enforcement in D.C.

Chris Mirasola: Yeah, so it, it, this was a really interesting video to watch and story to hear you tell because I think it gets at a couple of the different developments that we've seen in D.C. right, since roughly the 10th. Right. So, I think of this in like three different buckets, right?

So we have the deployment of more federal law enforcement personnel throughout D.C. and that's the first thing the president did most straightforward for him to accomplish. Right? Interestingly, I've been wondering whether or I've been wondering the extent to which there had been.

Below the political radar coordination between the MPD and federal law enforcement to deputize federal law enforcement agents as special officers of the MPD, which the MPD often does for the D.C. National Guard when the mayor requests the D.C. National Guard's assistance in D.C. and sometimes there's not always good connection between the D.C. mayor and the MPD about when the MPD is providing that kind of deputation.

So for example, in the early days of the Black Lives Matter protest, there was actually a period of time when the MPD was deputizing National Guard who were being used in D.C. before that ended up being turned off by the mayor because she did not want the D.C. National Guard to be operating in any event, I've been wondering about that. And so your anecdote is actually really interesting to, to, to start to piece together what that coordination did look like and continues to look like.

The second bucket right, is the litigation that I think we're gonna talk about a little bit in, in more depth in a little bit or it's become litigation now about the president's takeover of the MPD pursuant to an emergency authority in the D.C. Home Rule Act, right? And, this is a much more recent development, right? Since roughly the 10th. And again, I think of this in like two different phases. From the 10th until like roughly last night there was a pretty straightforward invocation, even though. Still very controversial and for the first time by anyone's memory that the president asserted this authority provided in the D.C. code.

And it's important to remember that this is all by statute to request services of the mayor of dc. To be performed by the MPD for some kind of federal purpose. And we again, seeing that start on the 10th last night and heading into today, we saw a real escalation in the administration purporting to replace or to, to appoint an emergency chief of police of the MPD.

So again, far beyond the requesting of MPD services through the mayor which is authorized by the text of the statute and also the negation of a number of orders previously issued by the MPDs chief of police. Okay, so that's like a general overview of like what the administration is doing with the MPD.

The third bucket of what they did or, or what they've been doing is the deployment of the D.C. National Guard. And, and this returns to more familiar territory because the statutory framework, which governs the D.C. National Guard not only makes the president, the commander in chief of the D.C. National Guard but provides a really broad mechanism for the president or his delegate, the, the secretary of defense to decide to deploy the D.C. National Guard for law enforcement purposes.

When there's a request either from the D.C. mayor, the director of the National Capital Services, something, something, a position I've not convinced has ever been filled by anyone or the U.S. marshal for D.C. Two of those three people are employees of the of the executive branch and appointed by the president.

So it's never been particularly hard to get a request from one of those two, and the president wants one. And so in any event, right, kind of pursuant to this really broad you know, very old statutory authority the president's also deployed 800 D.C. National Guard to operate in the district.

Benjamin Wittes: Alright, so here's my question. Should I interpret this fundamentally as a reflection of the deployment of federal law enforcement on enforcing D.C. law, which, you know, and crime in D.C. including sort of absurd crimes like you know, drawing with chalk on the sidewalk, or should I interpret this as a a, a change, a sort of crackdown on protests? Or both?

Chris Mirasola: I think both. Right. So, the general framework that we have here is just provides incredible discretion to the president, particularly when we're thinking about the D.C. National Guard, right? But this is also true with respect to, like, again, the, the, the marshal service, for example, has its own special deputation authority and U.S. marshals have the power of a sheriff, right?

Generally enforce the laws, right, that includes federal and state laws. And, it's an incredibly broad delegation to the attorney general that's been delegated down to do that kind of a deputation, right? And so I see this as like the confluence of those two things that you're just talking about, right?

Really broad statutory authorizations with a particular goal in mind, right, to, to, to crack that on these protests.

Benjamin Wittes: Alright? All of which is a 14 minute way of introducing the subject that is gonna dominate today's show. Anna Bower is still in the hearing related to it. We're going, she's going to join us as soon as that hearing is over.

But we have a lot of material to cover, so let's get into it. D.C. v Trump, was filed promptly and is in litigation today. And covers, I think, what aspects of this issue are under challenge in that case,

Chris Mirasola: right? Yeah. So, so the case is directly contesting the executive order, the memorandum issued by the attorney general, I believe last night that accomplished or purported to accomplish a few things, right?

So first, the appointment of this emergency chief of police, the DA, the DEA administrator, right? And empowering him to personally direct the MPD, right? So it's the installation of him as whatever this means, emergency chief police. And my read so far is that there's a lot of uncertainty about what DOJ was trying to achieve by designating him the emergency chief of police.

And then second in that memo canceling a number of MPD standing orders, right, which pre-existed the federalization of the MPD. And so as you said, right, the argument is ongoing, but those are the two big chunks that are being litigated here.

It's not the overall federalization of the MPD that is not what D.C. decided to challenge when that was first done a couple of days ago. This is more what I see as more radical attempt to take direct kind of operational control of the MPD that's happened over the past 24 hours.

Benjamin Wittes: And, you know, there have been a number of reports of federal law enforcement. I don't know if that includes the Secret Service or not or if that's just a, a protest thing at embassies, but, you know, patrolling D.C. in various capacities, what do we know about that side of it? How much of this is about, you know, DEA agents strolling, you know, working as beat cops, and how much of this is about the federal government's takeover of the Metropolitan Police Department?

Chris Mirasola: Yeah, right. So the number of federal law enforcement agents that are being deployed still pales in comparison to the number of MPD officers that you have, right, on any given day. That's not to say that it's a small federal law enforcement presence you know, particularly in high visibility areas of the city.

And so I don't have like exact numbers right, to to substantiate this, but my sense based off the reporting that we've seen is that it's still predominantly MPD that are on the streets, right, enforcing D.C. law with a significant but still much smaller federal law enforcement presence. That's, it appears to me at least to be using much more instrumentally across the city.

Benjamin Wittes: So what is the nature of the district's challenge to this? As I understand it, the president kind of has the right to call out the National Guard and the D.C. government kind of is a creature of Congress anyway, which has plenary power over the district and wrote in these, oh, by the way, the president can take over the MPD if he wants to for 30 days. So what, what is the extent to which this is actually legally controversial, rather than merely politically controversial?

Chris Mirasola: So I think that the D.C. government was actually quite smart to bring this litigation today with respect to the most recent move by the Trump administration, right? So they're not contesting the the calling forth of the D.C. National Guard because you're correct. It's an incredibly broad statute. And that was never gonna get very far in litigation.

They're also not contesting the president's general authority to demand of the mayor MPD services for some kind of federal purpose, right? What they're contesting more particularly is the imposition of the DEA administrator as some kind of an emergency chief of police, which would seem to be like just quite plainly in conflict with other portions of the D.C. code, the D.C. Home Rule Act, which authorized the mayor to appoint, right? The chief of police, right? In a way in a manner.

That is like just totally separate, right, from any power that the president has, right? So that's the first bit. And then second is like the scope of what this emergency authorization provision actually provides, right? So the text of the provision says that the president can demand of the mayor MPD services, right, services for a federal purpose. And so key to this kind of second part of the litigation is whether that means the president can also impose general policies on the MPD, right? Which they purport to do in the second half of the Attorney General's memo.

Benjamin Wittes: Alright, so the thing goes into a hearing today. Roger, you've listened to much of the hearing. We're gonna get an update on it from Anna as soon as Judge Reyes is done. But what do we know so far about the argument that has been taking place?

Roger Parloff: She seemed to be approaching the Pam Bondi directive section by section, the, the first section she was the most skeptical of.

That one in effect makes, that one makes this DEA administrator Tom-, Terry Cole the effective emergency commissioner of the MPD. She it seemed clear that she felt that was beyond his power, her her power, or even the president's power. And she mentioned, and I'm sure this is in the briefing that, in the legislative history of the Home Rule Act.

The, the act that gives Washington home rule from, I guess 1973 about 52 years ago there had been, in the legislative history, there had been versions that would've given the president the power to basically take over the police, and that those were rejected and that a, a narrower passage was put in the next, so it, it looks like that's the, she was most skeptical of that.

The next three sections, two, three, and four, relate to these directives that Chris was talking about, that they want to reverse or vacate or rescind. And she, she definitely felt that at least one of those was legitimate. At least that, that's how I was hearing it, that she felt, for instance.

If, if, if the president wants to say through the mayor you need to, the services I want are I, I want the MPD to help ICE arrest illegal aliens then that's within his power. And, and so that would essentially, and she, she thought the directive and one of those directives was a directive that was sort of in a sanctuary cities mode.

It was a directive that would block the police from helping ICE in certain ways. So the other two she hadn't really she wanted, she was sort of hoping the parties, she was definitely hoping the parties could work out, language they would agree on with respect to sections two, three, and four section five relates, I believe, to like homeless people.

It relate, it's a general instruction that the MPD is supposed to enforce to the maximum extent possible. The laws against occupying public spaces. And so that's the section that she, Anna Reyes had, she, she held a break which began about 9:50. I'm sorry, my time 9:15, I guess about three 15 maybe. And and which was still going on just before we were starting. But she was gonna come back to that. So I don't know where she is on that one. And that's about what I, what I heard.

Scott Anderson: Just add one thing to that too. Part of the problem that Reyes seems to be zooming in on sympathetic to the D.C. city is that two, three and four are framed in terms of rescinding existing D.C. police department policies.

But what she essentially just says is that, well, what you really want the executive branch, what you really want are the Metropolitan Police Department is a service for most of these. You want assistance enforcing immigration law. You want assistance doing X, Y, and Z. These policies may or may not be a barrier there.

There may be ways to be able to get substantial services without rescinding these policies. So she's giving them an opportunity to go back and reframe their request as, at least as I understand this seems like the most, the direction she's hinting at strongly, not, not very subtly reframe your request as a request for services, not as an effort to assert control over this.

And then that can be an interim status instead of having to issue a TRO, which would in enjoin them from executing upon these order. And then we can resolve the merits of, can you actually assert control over this down the line. Essentially saying, I, my expectation outta this is a voluntary holding back by the executive branch on the assertion of control over this body in the interim will reach some sort of agreement on this on how to proceed of a new request instead of a TRO.

And then we'll resolve those issues further down the line. So it's not that we're going to avoid that takeover entirely or addressing it if the executive branch really wants to pursue it. That in the interim, we're gonna reframe these as request for services so we don't have to reach those other issues.

Benjamin Wittes: Alright. Chris, do you have other thoughts on this broad subject before we turn to other subjects and await and a Bowers arrival to return to the subject of the hearing?

Chris Mirasola: No, I think we're, I think we're good to press on.

Scott Anderson: Can I ask a question of Chris actually on this?

Benjamin Wittes: Yeah, by all means.

Scott Anderson: So in, in a phenomenal piece, you wrote for us, I think Monday or Tuesday on this for law fair, you laid out which is still my current operational understanding in a very useful way, that there's two potential statutory provisions on the D.C. code under which the National Guard be mobilized, one of which is contingent upon a request by one of three officials, two of whom appointed by the president.

Although 1 1, 1 is vacant, one is current. That's the U.S. marshal, D.C. marshal U.S., marshal for D.C. I should say the other being the mayor who does not appear to have issued a request, I think we could say with some high level of confidence. The other one being another provision that specifically provides for the commanding general of the National Guard who's appointed by the president to say.

You know, you can call for soldiers for drills, for exercises, and for other duties. And that other duties have been interpreted very broadly in the past to incorporate a variety of things that our law enforcement, our law enforcement adjacent functions, right. Do we have more clarity on which of these provisions have been enjoined?

I haven't found anything. I thought maybe you have. I don't think we know. The fact that we haven't seen any acknowledgement of a request being made makes me think it's actually the latter. But I haven't gotten any confirmation that I would think if they'd gotten a request, they would advertise it somewhere, but I, I don't really know.

Chris Mirasola: Yeah. So maybe a couple of thoughts here. So, I also haven't seen anything about any requests. And I think partially that may be because there is the incredible weirdness of the request coming from a subordinate of the president who, the president, which is a very odd way to think about requesting anything.

And so, there is that weirdness, do, it is not the usual practice when these requests come in, even when they come in from the mayor, that there is much in the way of public communication about that back and forth, and that dialectic, like in some ways, this body of law is more problematic than provisions of the Insurrection Act because there is no requirement whatsoever for any kind of public communication, right?

Like you don't need to tell the public what the D.C. you don't need, you don't need to tell the public when a request comes in. You don't need to tell the public what the request is about. You don't need to tell the public what they're gonna do. You don't tell need to tell the public about, you know, how long they're gonna be there. Like, the list goes on and on and on.

So part of me thinks that I al it might just be like an a, a kind of like a bureaucratic holdover of a practice of just not talking about this kind of thing. And then the third possibility, right, is that they're using this incredibly broad other provision which I also can't discount 'cause it's also easiest, right?

You can just say, me, commanding general have decided that we're gonna have an encampment for the next 30 days or however long it's gonna be. We're gonna go and, and we're gonna do x, y, and z tasks in D.C. And it's based off of OLC opinions that have existed for roughly 60 years now. Even if, I think that it's a, like a gross misreading of the statute.

But that's a lot of years of practice right across a lot of administrations. And so there's little reason to believe it wouldn't hold up. So that's a very long way of saying, I mean, I don't know. I'm very skeptical about these things. It's like a long way of saying that. Yeah, we don't have much information about it. I, they're all kind of in play, I think roughly equally. And, and I'm not optimistic about us getting much information about it going forward.

Benjamin Wittes: From the subject of impressing federal law enforcement and National Guard Service and D.C. cops into enforcing the president's agenda to the subject of impounding federal funds.

Scott, we've, it's been a pretty big couple weeks in the impoundment litigation area which doesn't get a lot of love because it always requires a lot of explanation. But we are gonna give impoundment some love here on Trump trials and tribulations. And I wanna start with some good news that happened, which is the estimable Judge Dabney Friedrich.

And I don't wanna pretend not to have a conflict of interest in this subject because as you all know I am married to the president of one of the National Endowment of Democracies, children organizations, the National and National Democratic Institute. But Judge Dabney Friedrich basically called bullshit this past week on the idea that the Trump administration was allowed to just not give.

The NED, its congressionally appropriated money and it seems to be complying with a court order. So bring us up to speed on this rare, rare simple win for you know, the, the rule of law as we understood it.

Scott Anderson: Yeah, it, it's not terribly surprising. Certainly the district court came out this way and, and I will say as we'll get into in a little bit, while it's been a bad week on other foreign assistance and impoundment funding contexts, I think this is a case and instead of plaintiffs that has a strong case, even under the way the D.C. Circuit is looking at a lot of these things for the simple reason that the net is in a unique position that has a very specific statutory regime about how it gets funded, that essentially says Congress is going to appropriate funds for the net every year.

That funding has to be given to the president, to, to NED within the year. That is the essential job. And by the way, you can't set any conditions on it beyond what's defined in the actual act for the National Endowment of Democracy. It says specifically oversight's gonna be done by Congress. That's who's gonna do it. It's really, really specific.

Frankly, it's the model for the types of legislation probably that Congress needs to start acting if it's serious about these institutions getting the funding that appropriates for them and for them to continuing to be extant. As so many of them are being extinguished in various parts of the government right now.

The judge essentially read the statute and say, there's not a lot of wiggle room in here for you executive branch. There's not a lot of discretion. The executive branch had argued essentially, well look, this continuing resolution rolled over funds for an additional year. They basically says, okay, funds that were appropriated for last year will be appropriated again for next year under all the same conditions.

And they interpreted that to mean it's extending the whole window then. So all these funds now can be spent at any point through the end of 2026, and we're gonna hold a portion of the funds that were originally appropriated for 2025 and try and roll them over into 2026 to make sure they're being spent con, consistent with administration priorities is the purpose.

They let out and the judge shot them down quite reasonably saying, well, look, the statute says expressly, you can't put additional conditions on it that includes consistency with administration priorities. That's not gonna play out, and it still says they have to be allocated within a year that that wasn't actually changed by the continuing resolution.

So, it seems like pretty strong grounds for NED in this case. You have to remember previously the State Department or at the time, at the time I think it was the State Department with an F essentially tried something like this once before, before the most recent continuing resolution to withhold these funds and quickly after getting a complaint filed, said, actually, nevermind, we're, we're gonna go ahead and pay it out anyway.

This was a flip flop on that prior concession that they had made after the coning resolution. 'cause they had this new hook and I, I kind of suspect we're gonna see a similar willingness to go along with it moving forward. We'll have to wait. I haven't seen notice of an appeal being filed. But I did not get a chance to pull up the docket immediately before this 'cause we were having some court listener problems and I could not get my Westlaw lawyer.

Benjamin Wittes: No. In fact, not only is there not a notice of appeal, there was a joint status report yesterday or the day before, in which the government said that they were planning to obligate the funds expeditiously and did not indicate any plans for an appeal. So I, it did not read to me like they were. And maybe the, the theory is, and that if you get this, you know, you get nowhere in front of Dabney Friedrich, who is an excellent judge. She's also a Trump appointee, right?

And if you have zero zero points that you prevail on in a learned opinion by Judge Friedrich you are not getting very far at the D.C. Circuit either. And so I think that may be part of it, but I think this is a genuine piece of good news, admittedly. As Scott points out in the area, that is easiest, easiest to win in an apportionment case because it is, it's not an area where the government said, where Congress says, you know, spend this much on AIDS prevention and then you, HHS, or USAID figure out how to, which grants to take.

This is one where Congress said, give, you know, $400 million to the net. And, you know, you're, you're either doing that or you're defying the statute. So I think this was, you know, frankly shocking that the administration tried to tried to not comply with this law and not all that surprising that their, you know, their well, not surprising at all that they lost, but not all that surprising that they seem to be giving up the ghost on that, although never say never until it's done.

All right, let's turn to some less encouraging news which is the vacating of Judge Ali's opinion in AVAC v. State. Scott, a lot of people are not gonna remember this case, which was one of those cases that we spent a lot of time on at the beginning of Trump Trials and Tribulations and then vanished. So remind us what this case is about and what Judge Ali did and why the D.C. Circuit is say and see you later.

Scott Anderson: Just to clarify, it's actually two independent matter AIDSs Vaccine Advocacy Coalition v. Department of State, and then Global Health Coalition v. Department of State. They have been more or less proceeding in tandem, slightly different dockets, slightly different briefing before the district court, but the same basic resolution.

And then when it, they've been operating under the AIDS Vaccine Advocacy Coalition or AVAC Coalition caption, and then annoyingly the D.C. Circuit when issued opinion early this week, decided to go with Global Health Coalition just to make it a little more confusing for everyone, but so be it. That is the nature of these things.

We saw a panel opinion come down in this case it very late in the game on August 13th. I'll get to why that's so late in the game in just a second. That really, really bought into a number of arguments that I was surprised to see how willingly two of the three judge on the panel is opinion by Judge Henderson joined by Judge Katsas, both Republican appointees. Henderson with George HW Bush appointee, Katsas is a Trump appointee over a descent by Judge Pan, who is a Obama appointee. The, the, the tenor of which they came down on. This is really interesting, actually, correct me, I think Pan may be a Biden appointee.

I can't remember. Biden appointee. The, the tenor they came down to is really interesting. First, there have been a debate as to whether the government have waived an ability to rely on Dalton v. Specter in 1994 Supreme Court opinion that deals with the difference between when a violation of a statute is just a statutory violation and when it rises to the level of a constitutional violation.

The judges basically said, well, look, we don't really think they've waived the ability to rely on this court case 'cause even though they didn't cite it in their briefing, which the court said is kind of an embarrassing oversight for everyone, they actually made arguments that basically argued the same thing.

The law was the same, which is I find reasonably persuasive. I mean, you know, courts play a little loose with this sort of thing on occasion as to how aggressively to invoke waiver of prior arguments. I wouldn't be surprised to see them necessarily be a little loose on that then they did something a really I think a little more interesting.

They, Judge Henderson basically wrote that all of these foreign assistance disputes are essentially statutory disputes. None of them are clearly ripe enough to rise to the level of a true constitutional dispute because they're not acting clearly vires, contrary to sta-, statutory mandates clearly contrary and acting so far in exercise of the government's authority.

That's pretty extraordinary if you take this all the way to the outcome, and it's worth noting, this is the part of preliminary injunction it was dealing with, is if the government doesn't ultimately spend this money within the, the fiscal year, that contingency that's actually a pretty extraordinary conclusion, I think to reach is to say, well, Congress has appropriated money for these purposes and said, this money is available.

And to say that these are mostly statutory violations, not constitutional violations in all those cases, including a range of a authorities, some of which have much more mandatory language than others, but there are a handful that do ha does have fairly demanding language in it.

I, I think is a little bit extraordinary. But it was really overshadowed by the truly extraordinary part of the argument that is orders on the gratuitous and a little bit ridiculous in my mind, which is the conclusion they reach in the third part, which is that because you can't frame this as a constitutional obligation.

You've gotta pursue this as a statutory violation under the APA, and there's no basis for challenging under the APA because the Impoundment Control Act of 1974 establishes exclusive means by which appropriations violations can be challenged. That is strictly in a lawsuit by the comptroller general, for reasons Molly Reynolds and I talked over at length in a podcast about this a few weeks ago.

I think this is a pretty extraordinary conclusion to reach the Impoundment Control Act has language and that expressly, expressly says nothing in the statute is supposed to be bare on the claims or rights of any of our parties engaged in litigation.

Judge Henderson said, well, I think if you look at this, even though there's a strong presumption to not get rid of existing cause of action leg-, in legislation, if you read this, I really read this as applying to legislation existing at the time. 'cause some people talked about that in the context of legislative history.

So it's just clarifying that's not retroactive. I think that's really, really hard to screw read with the context of the statutory language, which is really quite broad. Then she went to legislative history and pointed out that, well, you know, the house actually had perfect language at one point that would've made the ombudsman the exclusive remedy.

But that language was dropped out and the Senate had other language that would have expressly made clear that other cause of action stood and that more or less dropped out. And we ended up with the language kind of in between the two. And that that means that the legislative history ambiguous, so we don't really have to deal with it.

Again, in a context where she is embracing the idea that there's a presumption that you shouldn't be getting rid of the availability of a private cause of action that otherwise might exist. I, I think that's pretty extraordinary conclusion to say you have a neutral legislative history you have, which I don't think is actually all that neutral.

You have statutory language, which is hard to read the way you're reading it and that you are reaching this conclusion that says, we are making the only way to remedy appropriations violations. Congress has an enacted statute is by the Comptroller General and or doubt the Comptroller General is appointed by the president.

It's appointed by the president on a 15 year year term. But it's appointed by the president. So it's a pretty extraordinary structure to say this is how Congress is deciding it's going to vest its ability to remedy its own you know, paramount authority. Something Henderson herself has weighed on in, on a different case.

We're gonna discuss in a minute in this sort of circumstance. Nonetheless, that's where the panel came down. We saw just earlier today, the original plaintiffs in this lawsuit, all the foreign assistance recipients that met this lawsuit, petition for make an emergency, petition for a rehearing en banc and for a stay of the district of the appellate court's opinion.

I think there's actually a substantial chance they may get something like this. Both because I find Judge Henderson's opinion really, really hard to wrestle with, at least personally. And foundationally it comes a really, really difficult time because August 15th today is the date by which the government said, if we don't start appropriating this money and obligating this money now, we're not gonna be able to do it by September 30th.

So the plaintiffs have a pretty strong case saying, look, if they had said by their own account, they need to start obligating this money. So it, and if they don't do that, then we're not gonna be able to get the money by September 30th. Even if you, the en banc D.C. Circuit decide contrary and decide that the a panel was wrong, and in fact, we sh are obligated to receive this money, that app, we can enforce appropriation clause violations.

So for that reason alone, I suspect the D.C. Circuit is gonna say, unless the government comes in and says, no, that was wrong, August 15 isn't really the drop dead date, we can extend this to August 30th. Say, okay, government, you need to start making step towards obligating this money. And by the way, the government has refused to disclose how it intends to obligate this money if it does actually have to do so thus far.

That's something that the district court has been litigating, is trying to, is efforts to get disclosure of that plan. Now, we may see it because they're gonna have to start taking these steps but we're gonna have to wait how the D.C. Circuit responds to that. I haven't seen anything come through in the last about an hour ago, last time I checked.

I'll check in a moment to see if there's any updates there, but in theory by the government, so schedule the D.C. Circuit en banc is gonna have to move on this really quickly, if not today, by, you know, Monday probably to get things moving by this self-imposed pipeline by the government. I think that is all that we have to say on that opinion for that.

Benjamin Wittes: All right, speaking of the D.C. Circuit, Roger the Supreme Court which is not the D.C. Circuit, but I, you know, sometimes not all transitions work well, has been sitting on it. This is a Tucker Act case. Roger, what is this case? Why are we talking about it and what is it doing? Sitting there fully briefed at the Supreme Court?

Roger Parloff: So this is, up until the case, actually, cases that Scott just described, I thought the Tucker Act was the big hurdle for most of the cases, challenging huge funding cutoffs. And this is one of those, this is NIH cut off $783 million in grants. Largely in six, allegedly in six areas. It, it began with DEI and then, and gender what, gender ideology programs.

I mean, this is how they characterize these funding programs. The NIH doesn't do a lot of, you know, funding of, of DEI program. The, it, there are a great many health issues that affect particular ethnic groups more than others. And these have apparently been described as DEI programs.

And it's 1700 grants. So, this challenge went for the district of Massachusetts, William Young, and he in issued a preliminary injunction. He called NIH's conduct breathtakingly, arbitrary and capricious. There were no scientists who looked at these programs. And then that was the government sought a stay to the First Circuit.

They unanimously denied the stay in a 34-page ruling. And but the government has now gone to the Supreme Court and the thing they are mainly pushing is that this should have gone to the Court of Federal claims instead of to a district court. And correct me if I'm wrong, but my understanding is that the reason that these cases are brought in district court and, and instead of the Court of Federal claims, the Court of Federal claims, is I, I believe in Article One court, it has very limited injunctive power and, and the courts can make constitutional rulings, but they don't frequently.

And so, most of the plaintiffs here think that there are constitutional issues as well as APA issues. And, and none of these cases, the Court of Federal Claims is really for contract disputes. And none of these claims are, they consider contract disputes. These are, you know, these are decisions that are like nobody is looking at any of these $783 million grants at a contract level and saying there's something in the language that was violated.

So, nevertheless there is a strong well there. We, you, you remember there was this case recently on the shadow docket Department of Educ-, Department of Education v. California which did say that you know, with very little stated reasoning that the case, that case which involved a, a small number of grants, 64 million or something like that needed to be, should have been brought in the court of federal claims, or it was likely to be found that it should have been found should have been brought in the court of claims and the this.

And so, the, the government is, is claiming not only that, is that this is covered by. California that by the Department of Education v. California, but that in effect the lower court is defying. The Supreme Courts be Supreme Court ruling in Department of Education v. California. Now in effect, the government is saying that on the shadow docket, they, they have the Supreme Court has effectively overruled or signaled that they will overrule Bowen v. Massachusetts in a 1988 case that all of these cases are being brought under the under, it's a, it's a case in which you you were a, a, a, a litigant was allowed to bring an APA case that would have incidentally in the course of once you decided that the government had done something wrong, it would incidentally force the government to pay some money.

And and, and, and that's the, the, the, the, the rub with the Court of Federal Claims. The, the reason you bring court court cases in the Court of Federal Claims is because Congress has waived sovereign immunity to be sued in contract in that court. And so, since, since most of these cases would force the government to pay out money, as a practical matter, the government is arguing they must be brought in the Court of Federal Claims.

There are at least, there are over two dozen cases that present this issue. So if, if the government does overturn the NIH case, case or, you know, grant a stay in on, on its shadow docket. It will be another signal that that, that will impact more than two dozen of these cases.

Benjamin Wittes: And and do you have any doubt that they're gonna do that? Cause I sure don't.

Roger Parloff: I, I have great trepidation that that's exactly what they're gonna do. And, and the language of the brief is also it brings up the Boyle case a lot. Which was, was another shadow docket case recently where there had been, you know, a shadow docket case, the Wilcox case that was foreshadowing, that Humphrey’s v., Humphrey’s Executor is probably going to be overruled.

And the D.C. Circuit did not follow it in the next similar case saying, well, we're bound to follow Humphrey's Executor. And the, and the Supreme Court said, no you know, you can follow. If apparently follow our shadow docket cases too. So, no, I have great trepidation that this will be a really big and far reaching shadow docket.

Benjamin Wittes: Scott, you're making a face.

Scott Anderson: Yeah, so I wanna push back on that a little bit. For the simple reason that we see this, this is the third time this matter has come to the Supreme Court on the shadow docket. We've seen it twice before. First, an AIDS Vaccine Advocacy Coalition v. Department of State, the case we're just discussing, that went all the way to the Supreme Court's, very first of these Trump administration policy, challenging shadow docket cases that go up where essentially the court appeared to not be persuaded that the Tucker, Tucker Act precluded because it basically said, hey, the injunctive relief the district court provided is allowed, it was not deprived of jurisdiction by virtue of the Tucker Act.

Then we saw Department of Education v. California, California v. Department of Education, which was a similar grants case where it seemed to reach the opposite conclusion with Judge Amy Coney Barrett jumping over to create a five judge, justice majority that strongly suggested that in this case, at least, she viewed that this actually was much more of just a question as to whether a that that was something subject to the Tucker Act.

We've seen the D.C. Circuit really wrestle with it in the Widakuswara litigation that I've talked about many times on this podcast over the last couple weeks, in which we'll talk about in a little bit when we get–

Benjamin Wittes: That's the VOA litigation.

Scott Anderson: The Voice of America litigation, exactly. And we saw Judge Nina Pillard offer a distinction between these two that has now gone to the en banc court and that the en banc effectively, at least by my reading of it endorsed where essentially she says, look, it really comes down to what the source of the right to the actual money is if the source of the right is contractual and that's saying you are violating an agreement that we had that you don't have a right to violate that sort of agreement that goes to the Tucker Act.

If it is foundationally a constitutional or statutory obligation that is something that is not within the scope of a Tucker Act 'cause that's not what the Tucker Act is supposed to address, that there's an affirmative obligation to disclose these funds. So if it's a constitutional challenge or an otherwise legally obligatory challenge, as of virtue by statute, as I recall I do not recall, and I was actually just trying to brush up on myself exactly where the NIH case falls on this.

But I'm not sure, I'm not a hundred percent sure that the Tucker Act as a whole rises or falls on this. It very well might. I need to go look at the case and how we distinguish it and how other judges may distinguish it. The D.C. Circuit at least, has not embraced the Tucker Act as with removing jurisdiction.

They've embraced a similar argument around employment claims relating to the MSPB and similar bodies. They've basically accepted, hey, employment related disputes have to go through those special bodies. We don't have jurisdiction. Our district courts don't have jurisdiction. They've refused to reach that conclusion for funding cases so far.

That's actually what they're currently deliberating in what AVACs at the direction of the en banc D.C. circuit. They're gonna have additional hearing on that in September. So, I don't know if the D.C. Circuit is a good bellwether of the Supreme Court. I, I doubt it is necessarily, but I'm also not convinced that a five/four Supreme Court is so clearly one way or the other that it is gonna view this issue or that if it does, it's gonna view this issue so categorically that it's gonna resolve all sorts of federal funding cases as opposed to certain categories in certain equities.

But we do have to wait to see, and it really is here to come down to Justice Barrett. We've seen the same four justice aligned on either side of this issue the last two times has gone up. It's really how she's viewing it. But I, my sense is that she is viewing it through a more complex lens than a categorical yes or no.

Benjamin Wittes: All right, we're gonna find out tunes. All of which brings us to CREW v. OMB. Scott remind us what CREW v. OMB is and why anyone should care that there was a denial of a stay in that case.

Scott Anderson: Well, it's an appointment case, and it gives really interesting little lens into the later opinion issued in the AIDS Vaccine Advocacy Coalition case.

I think this is a case where the CREW, a public transparency public advocacy and litigation organization here in D.C. that occasionally has written once or twice for us. And we have various people, we've, we've interacted, collaborate. They're out from time to time. They sued because OMB pulled down a public database that laid out its apportionment schedule.

That's how it is saying it's gonna spend appropriated funds. And that database is required by statute pretty clearly. It's not super ambiguous, not a lot of discretion over how much of this database actually has to be published. District court said, hey, you gotta publish this. The statute says you have to publish it.

The government appealed to the D.C. Crcuit and basically said, well, we have a variety of constitutional arguments. While we don't think that actually Congress can require us, apportionment is inherently a little board of an executive branch function. And by the way, we suffer real irreparable harm because we wouldn't have to disclose this information otherwise.

And once we have to leave it out there, it's out there for good and we can't do anything about it. And it was rejected by the court. They didn't issue a formal opinion. But Judge Henderson, who is on this panel with, along with Judge Wilkins and Judge Garcia did issue a very interesting, very lengthy, although that's not unusual itself for Judge Henderson statement to go along with the judgment.

The court issued basically vindicating in very strong language that the appropriations power is Congress's, absolutely Congress's, and the president really shouldn't intrude upon it, and that there's an obligation to enforce statutes. It was a compelling, strong statement and a really interesting thing to randomly throw out there, joined by Judge Wilkins.

Judge Garcia didn't join for whatever reason. I'm not really hundred percent sure why. It didn't make a lot of sense until you read the AIDS Vaccine Advocacy Coalition opinion in my view, because that's a case where, of course it looks like she is actually pretty much gutting Congress's ability to enforce its appropriation's power.

You read the two together, you get a sense of where else Judge Henderson is on this, where she seems to think I would posit look if you had a clear statutory obligations. That's where we actually should pursue this. And that's where Congress can enforce it and we will enforce that. But where it doesn't, we're not gonna leave it up to private parties to enforce it.

And I think perhaps a little bit of heartache or stomach ache over the conclusion she was in the process of reaching in the AIDS Vaccine Advocacy Coalition may have motivated her to make this entirely discretionary, lengthy statement in this case. But it's worth reading the two in between 'cause at least the way that one judge who is an odd judge, but not a terrible bellwether for how some judges and maybe some justices will look at some of this stuff.

Particularly I'm thinking of like Roberts, Kavanaugh, Coney Barrett, like I think how she's seeing the line on this. So I think it's worth reading into if you really wanna get deep on the impoundment stuff.

Benjamin Wittes: Alright. From, impoundments back to domestic deployments back to impoundments. Let's talk guys about, this bench trial that happened out in California. I had kind of meant to talk to Anna Bower about it, but she is still detained in court live tweeting for us. So Chris talked to us about this, this is the case that about the last impressment of, of, National Guard, you know, back in L.A. a hundred years ago.

And it ended up in front of Judge Breyer, the brother of Steven Breyer, who sounds just as ponderous and pedantic as his brother. And he you know, got slapped down pretty quickly in his TRO slash preliminary injunction. So then he went ahead and had a bench trial. So nobody remembers that The National Guard is still deployed in L.A., so remind us what the state of play is there and what happened in this bench trial.

Chris Mirasola: Yeah,  so I'm happy to I'll set up some of the, kind of remind everyone of the facts. It also looks like Anna might be joining in a couple of minutes which will be helpful for her to get some more of that kind of color from the facts.

I also was following when Anna was telling us about the men's trial, she's amazing. I have no idea how she does this. So, like, to refresh folks' memory, right? We had around 700 Marines, couple thousand California National Guard deployed in L.A. right? This is very different from the statutory framework that we are dealing with in D.C. Folks should have like a very gigantic wall between these two different situations.

Benjamin Wittes: And just to be clear, different, because D.C. is a federal enclave. There is, there's a home rule act. There's no, you know, federalism vis-a-vis. I mean, there's federalism to the extent that Congress chose in the home rule act to mimic some of that.

But basically we live, those of us who live in D.C. live in a congressional playground where they can do whatever they want. And one of the things they wanna do is give the president a lot of power over stuff. Is that and there's no, there's no analog to the governor of California, correct?

Chris Mirasola: Yeah, exactly. Right, right.

So, so, so the key difference for the National Guard here is the statute that creates the D.C. National Guard, right? And the statute that creates the D.C. National Guard explicitly puts the president as the commander in chief, even when it's in a, when it's in a malicious status, right? And so, fundamentally, the entire construct about how easy it is to access the National Guard, how broadly the president can use it, whether the Posse Comitatus Act applies when it's being used by the president, all of that is fundamentally different because of the statutory framework that exists in D.C.

That doesn't exist in any other state or any other territory, to be honest, right? I mean, like Guam, the Virgin Islands, Puerto Rico, they all have their own national guards. Their governors are in charge of their national guards as commander in chief. Right. So it's just a fundamentally different statutory framework. Okay.

So we still have we still have a couple hundred California National Guard in L.A. right, acting pursuant, not to a statutory authority, but to an implied theory of presidential constitutional power, like colloquially known as protective power, which is this assertion that the president could use the military to protect federal functions, persons and property. I tend to think that like the fact that there's like an inherent constitutional theory that is like underlying all of this has gotten kind of lost in most of the litigation in a really unhelpful way.

But Anna can tell me if I'm wrong. And, and so, anyway, that's like kind of like the return folks to the facts that existed at the time.

Benjamin Wittes: Okay. So Anna has joined us in the blurry room of her palatial mansion, fresh out of court. So Anna we are gonna get an update from you on the D.C. litigation, which the conclusion of which the hearing just concluded. But we were in the middle of discussing when you popped up on the screen, the bench trial that took place before Judge Breyer, which you watched or listened to. So, we're gonna get to D.C. in a minute, we're gonna tack back to it. But first, give us a sense of how that bench trial went.

Anna Bower: Yeah, so, and I, I will say I'm coming into this having quite literally just come out of listening to a hearing, so I have no idea what you guys have discussed. So, apologies if I repeat things that people have already said.

But yeah, we had a three day bench trial on this question of whether. The deployment of Marines and National Guardsmen in southern California violated the Posse Comitatus Act. This, the posture is that California is seeking a preliminary injunction to in effect bar future violations of the PCA.

And throughout these three days, you know, first day. We had three witnesses. Two of them, William Harrington and Major General Scott Sherman are people who were, you know, in the two different degrees in the command structure overseeing task force 51, which is kind of the command post overseeing the National Guardsmen and the Marines who were deployed.

And then also we heard from enacting field director in L.A. with ICE, Ernesto Santacruz. And then on the second day we heard from Sherman again. You know, again, I don't know what you guys have already discussed about this trial, so I don't wanna go in too much detail about it, but I'll just say that you know.

Benjamin Wittes: We've discussed nothing at all except that oh, okay. Chris gave us some background about. About what led to it, but we, we self-consciously saved the description of it for you.

Anna Bower: Okay. Excellent. Well, that's helpful to know. So, so just to summarize I, I think that on the one hand, the evidence that came out through these witnesses, a lot of it had to do with the state, you know, highlighting different ways in which the, the troops were used for domestic law enforcement purposes.

There were a number of different categories, so different operations that happen in places like Carpinteria, is it Carpinteria, California, I hope that I'm getting that right. Camarillo the, in MacArthur Park where there was this kind of like military display of like, you know, taking vehicle, military vehicles through the park.

And then I think most notably as well two civilian detentions that were carried out by members of the military. One of them I think is maybe a little bit more well known than the other. This is the example of a, a veteran who was on his way to the VA who had headphones on and was, you know, walking towards the Wilshire building and didn't hear, you know, commands to stop. And then was eventually detained by, I believe it was members who were Marines who had been deployed. And then there was about a 25 minute delay in which that person had been detained by military members before actual law enforcement authority showed up.

And so there was a lot of testimony about, you know, what were the circumstances around that. And the response was, oh, well it was lunch hour. So even though there were law enforcement civilian law enforcement was nearby, you know, it took them a while to get there.

All this kind of stuff, so that was part of it was like kind of getting these facts, in, into the record about, you know, what exactly did the military do? We saw photos, we saw videos of things like, it was hard to identify who was military and who was civilian law enforcement. When you look at some of these photos, you couldn't really tell.

And so it seemed like it was kind of like everyone was a part of, you know, doing the same kind of thing. I think that that was part of the reason why the state wanted to get into the record, the fact that, you know, if you're a person in California who is out exercising your rights of protest or whatever, you know, you don't really, you couldn't really tell who was the military and who was civilian law enforcement.

On other things as well that we heard about was the fact that. Pretty much everyone in the military agreed that the posse com act applied. The testimony from Harrington and Sherman was that, you know, they had training on it. There notably at one point was a slide in which there's a number of different categories that say things like, you know, like riot control, traffic control, all a list of four different things.

All of them being things that ultimately the military ended up doing in California. And, you know, on the one hand it seemed to be that apparently the evide, I couldn't see it because I was listening, right. And we didn't have a visual. But that exhibit, it, it was listed as, they were listed as examples of things the military wasn't supposed to do that were supposed to be prohibited from doing.

And so the state had to kind of, excuse me, the defense or the government had to kind of find a way to explain that. So when they had, you know, their day of introducing evidence, the explanation was, oh, well, like, you know, these categories of things were things that you're not supposed to do. But, but we were taught that there was an exception to it under, you know, this idea that we were there to protect federal personnel and, and, and property.

And so that's the kind of one of the themes that we heard from the defense over and over again. And I think that Chris was talking about the protective principle whenever I came on. But over and over again we heard about the legal advice that that General Sherman, that Harrington received was that the mission was just to protect federal personnel and property.

And, and that they believe that all the actions. You know, were consi that the military took, was consistent with that. And then finally on the third day and keep in mind there's a lot of other stuff that happened, but I, I just wanna make sure that I do get to some of the what, what else, what else happened on the third day, which is the legal arguments.

There's a number of arguments that the government has raised about standing, for example. One of the arguments that I'm curious about to hear Chris or Scott, if you have thoughts on this, is the fact that the Posse Commas Act is a criminal statute. You know, there's like one Eighth Circuit case in which the Eighth Circuit said, yeah, it could be the basis for a Bivens claim, is my understanding of it.

This is the Wounded Knee case. But other than that, there's not really precedent for like here where you have the Posse Comitatus Act serving as the basis of a civil action. And one of the really interesting things that was raised during some of these legal, legal arguments, the judge, Judge Breyer raised this issue of like, well, if you can't bring it as a civil remedy, as the government is arguing that you can't do.

But also at the same time you have the immunity decision. That means that the president is immune from a criminal prosecution, you know? Like it, that means that this statute that Congress enacted basically has no way of being effectuated or there's no remedy that you can get if someone violates it. And then even if there's not immunity, there's also the question of the fact that, well, the per, the people who would prosecute a violation of the statute would be the Department of Justice.

And they're standing here before the court saying there's been no Posse Comitatus Act violation. So I, I thought that that was a really interesting element of the legal argument.

There's some other things as well. For example, separate from the protective principle exception the government has argued that 12406, which is the statute Trump cites in the executive order federalizing the National Guard to, to California. That that is an exception. There's questions there about statutory interpretation because, you know, there's nothing expressly in that section that says like, this is an exception to the Posse Comitatus Act.

So, so we had a number of arguments there on those types of issues. There was also, I'm trying to think various other things about, you know, whether or not California sufficiently showed traceability, things like that. But overall it's clear that a Judge Breyer seems to think that there's been some type of way in which the authority of the, the military was exceeded here.

He, he's very concerned about the lack of limits on, you know, what the government has been doing. And, and he's, he's concerned with that. But I do think that my understanding is that I, I think if he, I, I think he does wonder about the, like, issues with this being a criminal statute and kind of how you, you bring an action for a civil remedy. But I, Chris, I don't know if you followed the, the trial much. I'm curious if you have thoughts.

Chris Mirasola: I followed your reporting, which is very helpful. My my, my, my concerns go in a number of different directions. Maybe I'll start off with the, the issue about like what to do with the PCA now, right? So this issue that it is a criminal statute, right?

And therefore would ordinarily, you know, be enforced by the Department of Justice. It's been an issue with the PCA practically since enactment, right? You can find vanishingly few prosecutions under the PCA because there are very few incentives as a general matter to bring a prosecution against a military member for violating the PCA.

So that's, that's like a longstanding issue with like with, with the PCA. I happen to think that the Trump immunity decision makes this area of law worse in meaningful ways, right? So I'm flying back from a conference about civil military relations where I'm presenting a draft paper that talks about the posse com act after Trump, the United States.

And there's a real issue with, if you take the Trump majors, like, logic and dicta seriously, about how you could enforce it against the president. Right. And so I think Judge Breyer has, has honed in on like what is a, like a, a, a extremely unfortunate and very predictable side effect of that immunity decision.

That leads to my frustration with some of how California has litigated the case, which is to focus on the PCA violation bit and not focus on attacking the protective power itself. You can argue that the underlying authority to deploy these military personnel is itself ultra vires, be either because the protective power is a theory of constitutional authority that is just fundamentally incompatible with modern separation of powers, juris jurisprudence, which is my view, right.

Or that the modern articulation of the protective power is broader than historically was. Right. Because historically this is a doctrine that talked about protecting federal buildings and protecting the U.S. mail. And there are countless examples as you were just going over, right, of these military personnel accompanying ice agents, well beyond any plausible federal property.

Right. And so you could be attacking it on that ground too. And, and, and that would just give California and Judge Breyer, frankly as well, a something that's much easier to grapple with than like the intricacies of what do you do with a criminal statute in a post-Trump immunity world. Where it isn't, you know, where we're talking about, like, you know, ex, you know, the exclusionary rule, right?

Like excluding evidence, which is often how a PCA violation is brought up in a civil context, right? Like often like case law that we do have outside the criminal context is a defendant often in like an immigration deportation proceeding saying, hey, this action by the military violated the PCA and therefore this bit of evidence that is crucial to the deportation proceeding should be omitted from the, from, from, from the litigation, right?

Like it's, it's just a very different posture than what we're in right now. So hopefully that's responsive, but like, it just like leads to like a couple of my frustrations with how the quest, the legal questions here have been posed by California.

Benjamin Wittes: I, I need, I need to hijack this because we got other stuff to cover. The first of which Anna Bower is the hearing that you just got out of. So, we, we did a little bit of discussion of it based on Rogers having listened to part of it based on the teeing up the issues. But give us your thoughts on Judge Reyes's hearing that you just walked out of.

Anna Bower: Yeah. Well, let me catch you up on what happened. So when the hearing went on recess, which I think is where Roger probably left off they were, the parties were trying to work on sections two, three, and four of Bondi's order that are basically these provisions that say like, I'm ordering you not to, just to kind of like ignore these policies or orders that would otherwise apply to the D.C. police under local law.

And so the parties went away for what was supposed to be a 15 minute recess that then turned into like an hour and 15 minutes. And so we had some suspicion that, you know, maybe they were trying to work something out between them. They came back and Judge Reyes said, all right, what counsel, what am I doing tonight?

And, and they said, you know, we've made some progress on these sections, two, three, and four. We are, we're not, you know, ready to finalize it yet though, and we think we could have further productive discussion. So we'll ask you to just hold this in abeyance until we're able to, you know, work something out further.

And, and so she agreed to do that. And then there's this question of section one, which is the section of the order that has to do with installing Terrence Cole who is a oh gosh, what is his title? DEA? He, he's a DEA official who, thank you, who it has been in the language. It's kind of like, you know, basically installing him as the acting chief of police which Judge Reyes indicated that she felt was not within the bounds of the Home Rule Act.

And, and so on that you know, the D.C. still wants an injunction or TRO with respect to that section. However, DOJ made the representation that, you know, we think that we're gonna rewrite this. We think we can do something with it to, you know, make it compliant. So we'd ask you, you know, not to issue a TRO on that.

She said, okay, well you can go and do that. And if I don't hear by like six 30, I'm going to issue an in a TRO. But I'm gonna give you my new clerk's. She apparently has a new class of clerks that start, that are just started today. And so she said, I'm gonna give you my new clerk's phone numbers who are just about to get sworn in.

And you know, you can let me know what's happening with that if a new order issues and it's not an issue anymore, then I won't issue a TRO. But if I don't hear anything, I'm gonna issue a TRO by like 6:30 tonight. So we're still waiting. Oh, and then there's also section five that she ba she essentially, again, does not think that she could issue something with regard to section five.

That is the section of  Bondi's order that basically is like I'm ordering you to enforce already existing D.C. local law. So that's where we left off. We don't have an order yet, but it's kind of all in limbo.

Benjamin Wittes: Alright, let us speed run in the next eight minutes through the next, through the last stuff on our outline. Chris, tell us about the Pentagon's plans for a rapid reaction force for civil unrest. Are they, like the secret service going to keep the world safe from hopscotch?

Chris Mirasola: Oh, fantastic. And this is great 'cause I can be quite quick with this. So, my baseline takeaway here, right, is that whatever level of concern folks had about domestic military deployments before this news should be your level of concern about domestic military deployments after this news.

So, this is not a a new thing that, that the defense Department is doing. There have been numerous prior instances, most of which I think maybe almost all of which are just like not publicly talked about of the defense department, putting National Guard units into training status in geographically convenient locations at times that are also convenient so that they, they might more easily be mobilized into some kind of operational duty status to the need arise.

And so, these folks are not mobilized right now to do anything operational. They are postured so they can do it more quickly. So really the only change that we have is that a mobilization that might take a day, would now take a few hours. And of course, like that is consequential in a way, but it is also like not fundamentally destabilizing of what the military might be doing.

So my way of saying it, it makes things a little bit easier but it's not a radical change.

Benjamin Wittes: Alright. We gotta get through our regular features. Who is playing? Scott, I think you are playing, who wants to dismantle a federal agency today? And we are playing CFPB version and VOA version. Give us an update.

Scott Anderson: Yeah, it's a sad day for CFPB employees of whom I have family members who are in there, there as by, I say by way of disclosure Consumer Financial Protection Bureau had the preliminary injunction that has prevented wide scale rifts that the administration has repeatedly tried to employ.

They've now vacated the preliminary injunction and more or less cleared the way for those, the, the opinion is for the moment, although I, I, I wanna get in briefly discussed just what the opinion says on what actually does opinion by Judge Katsas over dissent by Judge Pillard joined by Judge Rao, they essentially say, look, the employment decisions all, we don't have jurisdiction over, they all have to go through MSPB proceedings.

That's not terribly surprising. The en banc D.C. Circuit has already kind of signed off on that and Widakuswara opinion. Then they said, and all these other challenges to the allegations that CFPB is not standing by its statutory obligations. None of these are ripe yet 'cause there is no final agency action yet.

And that you actually have to specifically allege specific things they aren't doing and have find plaintiffs withstanding able to challenge those about like, you know, specific lapse in services. The, at this point, the the complaint was slightly higher level than that, although there were elements of that in the complaint.

But presumably they have to file an amended complaint, so it still leaves the door open for legal challenges. And notably, the D.C. Circuit has said, if you're challenging failure to abide by a statutory obligation. That can include challenges to reductions of personnel that makes it impossible to abide by that statutory obligations in Widakuswara.

But nonetheless, it means that large scale risks probably are coming to CFPB and that if they're gonna challenge them, they're gonna have to challenge specific people who are being terminated in a way. Put CFPB statutory obligations at risk. This all tees up a very difficult, difficult question about how much can the court supervise what is actually the minimum staffing levels, minimum resource levels, minimum commitment to meet statutory obligations.

If you wanna know how hard that is, then you have to go to Widakuswara in the district court where we just saw today the federal government actually file a response to the order to show cause where we've seen the plaintiffs there pushing the idea that the U.S. Agency for Global Media is violating the preliminary injunction by not meeting up student statutory obligations.

And we've seen Kari Lake and her staff ratchet up a little bit in the statement saying, well, we are keeping a little bit more staff. And they've essentially said, our senior civil servants actually developed our plan for minimal staffing to meet minimal statutory obligations that they've now disclosed. And let's see what the judge does with that.

This is the real test case that we talked about before about how courts are going to be able to supervise agency dismantling the extent to which they're going to second guess a the executive branch on just how far they can push the minimum and still abide by stature obligations.

And we're getting to the critical moment there because this is the last filing I think the district court's likely gonna get before they rule on it. So keep an eye on that case. I think we're gonna see big develops in the next few weeks.

Benjamin Wittes: Remind us who the district judge is in Widakuswara.

Scott Anderson: I was just trying to remember. I believe it's Judge Lamberth. I wanna double check that, but I believe it's Judge Lamberth.

Benjamin Wittes: I, I believe that's correct. And I will say judge, there is nobody I trust more to think about an issue like this than than Royce Lamberth. There are a lot of great judges on that court but there is nobody who calls bullshit louder than, than Judge Lamberth.

All right. Let's talk about politicization of the DOJ. Always a target rich environment, Roger. I will direct you all to an exchange I had on this subject with Ruth Marcus and Jack Goldsmith last night at a conference, both of whom told me I was understating the problem. And Jack who told Ruth that she was understating the problem. I will post a clip of that exchange as soon as I can find it. It is an extraordinary, extraordinary conversation. Roger, give us an update on the major horrors of the week.

Roger Parloff: Well we had we had a couple of 48(a) motions to dismiss out in of crim dismiss criminal cases by the controversial U.S. attorney Bilal Essayli in L.A. One was actually the more, the more disturbing one actually was the donor this was to Whedenheimer, Wiederhorn, who, his $46 million fraud case was dismissed and that there did not make waves that went through rather perfunctorily.

But there was a second one this week involving deputy famous case there that a Sheriff's Deputy Trevor Kirk and a more complex situation outside a supermarket. He did slam a woman to the ground and pepper sprayed her twice in the face and put his knee on her neck. And he had been charged with 242 the deprivation of rights, excessive force. And the, he, he was convicted by a jury trial.

The judge wanted, at that point Essayli wanted to drop the felony charge, make it a misdemeanor. He have the guy plead guilty to the misdemeanor and get probation. He was allowed, he did the judge did drop the felony. But gave him four months and then after the judge gave him four months, Essayli tried to dismiss the whole case and the judge denied it. So that is one an interesting situation, but of course, it's after sentence, which makes it an unusual situation as well. So that's been appealed. That'll be sort of interesting to watch.

We had the the case involving the entire, the, the, the challenge by the government to the standing order of the entire district bench in Maryland. And that was argued, there was a hearing, but we still don't have a decision on that. The judge was Judge Cullen from the Western District of Virginia was reportedly skeptical. He is a Trump appointee, but I think he was skeptical of the government's challenge. We also happen to have two amicus briefs in that, that have our friend Judge Luttig on him. I didn't know you could be on be an amicus on two amicus briefs. But he is.

And and then I think, oh, we had the hearing on whether Alina Habba, acting Attorney General Act, acting U.S. attorney Alina Haba of the. District of New Jersey can really be acting attorney general U.S. attorney, excuse me. We're rushing. And that a, a criminal def couple criminal defendants are challenging that gi and that was argued today the, and they, the judge allowed an amicus to argue the amicus was actually James Pearce who is a our former colleague and perhaps sort of ongoing colleague.

And he reports that that hearing went over four hours and he described it as spirited and long and I guess I'm, and the judge seems to rule against government, but the judge intends to rule by Wednesday or Thursday of next week. I think that's soon.

Benjamin Wittes: Alright. Normally this show has been dominated by immigration cases. It is a reflection of how diverse the issue set is and how fast changing the issue set is that we're gonna speed through the immigration cases right here at the end today. Roger bring us up to speed.

Roger Parloff: Yeah, I'm having trouble finding it in my notes, but I've been trying to mention this Vasquez Perdomo case for a couple weeks now. It's, it's fully briefed. It's in front of the Supreme Court. And the government, it, it, there was a, it, it stems from the same situation in, in Southern California that, anna was describing but it, it some immigration rights groups won a TRO, the, the, the, I, I don't have the name of the judge before me, and she's the daughter of G Ghana, immigrants from Ghana.

And I, I can't call up her name without get seeing my notes. But she did issue a TRO. It's against the idea is that there were these roving raids that were based on less than reasonable suspicion, and they, they would, it had four. And, and the, the TRO said that you, you need more than just even for the, for the items that were being cited, like speaking Spanish or like being at a location like a bus stop where they have stopped illegal aliens before or a Home Depot parking lot or having certain working in certain positions where that are often held by illegal aliens. Like, and, and they use the word illegal aliens throughout the brief.

So I, I'm gonna use that car wash or, you know, agricultural worker. And, and of course it's a quite an interesting case 'cause about a 10th, I think one in 10. I think maybe 55% of people in, in L.A. County speak a foreign language at home. Probably close to 40% speak Spanish.

Benjamin Wittes: It's the second, it's the second most linguistically diverse place I believe, in the world after New York City. It's, it, it's a crazy, crazy linguistic center.

Roger Parloff: Yeah. So, the, the government has appealed. The Ninth Circuit declined to stay, and now it's at the Supreme Court. The government is saying mainly that this is a a vague follow the law, TRO and but and, and they are also have said, that, that those four factors taken together can often suffice to, to, to account, to provide reasonable suspicion. So, I it's a, I think that's a very important case and, and obviously I hope it hasn't just been decided right now, but and the, the other–

Benjamin Wittes: Always a risk on, on, on on Trump Trials and Tribulations.

Roger Parloff: Then also this week Barco Mercado this was a a case that where Judge Lewis Kaplan in Manhattan issued a TRO essentially requiring minimal humane conditions at 26 Federal Plaza. And actually the Perdomo case, although it hasn't been p appealed, it had a comparable, or, or a, in some respects, similar TRO relating to the place where all of those detainees were being taken.

And the problem is, in both cases, they're being taken to immigration facilities that aren't meant to house anyone for more than a few hours. You know, there are no beds, there are no and they're overcrowded. And there's no doctors. There's no way to make a private phone call to your attorney.

And Judge Kaplan entered a very specific TRO that says, you know, you may not hold these people unless you have X number of square feet per person excluding the eight feet surrounding the toilet. And you also need to provide, you know, basic, you need to provide soap and you, you know, so, that too is, i, I don't think it's, I don't think that one has been appealed. I, I think they recognize that, that one I don't wanna speak too soon, but that, that one is basically a lot of it is uncontested.

Benjamin Wittes: Alright. Roger, our one question in the queue today relates to the second to last item on the agenda. So I am going to merge them. David asks, very much want to hear an assessment of the appellate decision in AFT v. Bessent. Since when does someone have to succeed on all allegations to merit a preliminary injunction? Give us a rundown on what happened at the Fourth Circuit in AFT v. Bessent.

Roger Parloff: And here this received insufficient attention on my part. And so I, my under, I, I can't answer the question. My understanding, however, was that this was a, a fairly unsurprising Fourth Circuit case. It vacated a preliminary injunction against DOGE accessing Department of Education and Treasury computers.

And it was following the Supreme Court's shadow docket ruling in the Social Security case, Social Security Administration v. AFSCME. And the, the recurring problem in all of these DOGE Privacy Act cases has been, one is standing, which is or, you know, likelihood of proving standing since we're talking about a preliminary injunction.

But because although it's scary that somebody is rooting around your private information, there's no evidence yet that they have put it on the black web or they have stolen it, or they, they're, they're using your personal identity. And so there's a, it is, is just having somebody look at your information enough to convert, convey standing, and then on top of it, there is this re also this recurring question of is it a private, is it a privacy act in violation because these people are claimed to be, you know, federal employees of the agencies involved, usually, and and, and they might have a right to it under the Privacy Act.

So, and it was decided two to one on, you know, political, political teams, Trump and a Trump appointee, a George W. Bush appointee in the majority, a Clinton appointee in dissent. And I'm afraid I, I didn't read it carefully enough to be able to answer David's question.

Benjamin Wittes: Alright, so speaking of the Fourth Circuit, we are gonna close Anna with a special WITOAD Fourth Circuit edition. Anna, who is the administrator of DOGE, according to Judge Chuang.

Anna Bower: Well, the de facto administrator of, of DOGE, according to Judge Chuang is Elon Musk. This is the second time that Judge–

Benjamin Wittes: And does that make your heart go pitter-patter?

Anna Bower: Yeah, because look, if you haven't ordered your, my dear, if you haven't ordered your WITOAD Lawfare hat yet, order it now because WITOAD is back, people with this order.

 This, so this, if people remember is the USAID case in which a number of former USAID employees and contractors are raising an Appointments Clause claim, essentially arguing that certain actions related to the dismantling of USAID, including, you know, taking down the website, shutting down the building, things that happen in late January, early February were done by Elon Musk and DOGE in violation of the appointments clause.

Initially there was a preliminary injunction that Judge Chuang entered that was then stayed by the Fourth Circuit Court of Appeals in a decision we talked about. But I found a bit odd because it seemed to be quibbling with some of the factual findings or way that some of the facts were construed by the judge in his preliminary injunction. But ultimately there, the plaintiffs then amended their complaint. There was an, a motion to dismiss by the government for, for a variety of reasons.

And this opinion that we got from Judge Chuang is in the context of ruling on that motion to dismiss to the second amended complaint. He denied the motion in part so on an, on an, in a number of ways. For example, that the Tucker Act doesn't preclude the court from exercising jurisdiction over the claims, denied the motion to dismiss as to the the argument that. There's a non justiciable political question regarding the separation of powers and then also finally denied it as to the Appointments Clause claim.

And importantly in that section of the order Judge Chuang wrote that the defendants argue that the actions to shut down USAID occurred to the behest of USAID officials. But this, as Judge Twang says, fails to account for plaintiff's allegations, which strongly support the inference that Musk directed the actions to shut down USAID without auth authorization from any USAID official.

And then he continues to go on and says, these allegations suggest that as the de facto administrator of DOGE at the time, Musk directed those actions. So, Ben, look, this isn't the end of it. Oh, and I also should add that he did grant the motion to dismiss as to claims that were brought against President Trump and his official capacity on the argument that generally you, you can't have injunctive relief against the president in his official capacity.

But Ben, this is important because do you know what happens after the motion to dismiss phase in civil litigation?

Benjamin Wittes: Discovery?

Anna Bower: Discovery? So we might very well finally get some a Amy, maybe an Amy Gleason deposition, maybe some documents. So we'll see. But I think that this is an important step to figuring out who, who was the administrator of DOGE.

Benjamin Wittes: Folks, we're gonna leave it on that happy note. We, we might get discovery, although there will be a motion to dismiss, is a dispositive motion that's ripe for appeal. So we're gonna go all the way up to the Supreme Court before we get that discovery. But, you know, it's gonna, you know, ultimately in the world, folks, there is justice and we're gonna leave it there this week.

We only ran 16 minutes over. We're gonna be back next week. There'll be even more on the agenda then. Until then, you know, keep following those dockets 'cause if you don't follow them, they will follow you.

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 Goat Rodeo. The theme song is from Alibi Music. As always, thanks for listening.