Lawfare Daily: The Trials of the Trump Administration, August 28

Benjamin Wittes: It is Friday, the 20th of August- the 28th of August, 2026. It is 4:00 PM in Washington, D.C., and you folks are watching Lawfare Live: The Trials and Tribulations of the Trump Administration. I'm Benjamin Wittes, editor-in-chief of Lawfare, and I'm here with not one, not two, not three, but four Lawfare senior editors, Eric Columbus, Anna Bower, Molly Roberts, and Kate Klonick.

And if you're wondering why we were playing Also Sprach Zarathustra as the introduction this episode, it is because we have a decision in the Anthropic case, and it seemed almost as pretentious as starting by saying, "Dave, I'm afraid I can't do that." And if you don't know what all of that is a reference to, it is because you are too young.

Kate Klonick, you know what all that is a reference to, even though you are too young. What happened in the Anthropic litigation over the last 36 hours?

Kate Klonick: Yeah. So I just wanna say that none of my students have watched even “The Matrix,” so that's like, I just, you know, this is, I absolutely can't make these jokes to them. They'll have no idea what I'm talking about.

But anyways so I actually kind of wanna wind up because part of what happened in the last 24 hours was at 10:00 PM last night Eastern Time, roughly, we finally got a decision from Judge Lynn in the Anthropic v. DOW case that's been pending in the Northern District of California.

Benjamin Wittes: And I just wanna cut Kate off here for a moment and emphasize that when Kate says the Department of War, what she means is the Department of Defense.

Kate Klonick: Benjamin Wittes, it's the na- case name that's memorialized on like-

Benjamin Wittes: Yeah, I know. Y- she is correctly identifying it the way the courts are, and the courts are lying to you about the name of the Department of Defense, which cannot be renamed by the President of the United States. Anthropic has decided not to contest the name of this case, and therefore the courts are just going with it, but that is kind of like if the Department of Defense came in and said, "This case is named ‘Fred,’" and, and Anthropic was like, "All right. We're not gonna fight with you over that. We got bigger fish to fry." And so all of a sudden everybody started calling the case Fred. It's the Department of Defense, people! Kate, you were saying?

Kate Klonick: So, here's the frame, right? So coming out of this case, and I'm gonna give a little bit of background because frankly, we finally have a very organized set of facts that come out of this case.But here's the big overarching picture. The bottom line up front is that essentially everything that the Pentagon said about Anthropic in March of 2026, March of this year, is contradicted by everything the Pentagon did two years before it.

And essentially, Judge Lynn goes through in this decision and has the receipts. And frankly, I think that this was refreshing to kind of read how she kind of laid out the facts of the case because this is one of those cases where it's not… The facts are, are really where the case is and in particular, one memo that I'll get to in a second. But basically, intelligence and defense agencies had been using Claude since 2024. Anthropic had top-secret clearance from Defense Counterintelligence and Security Agency after a like 18-month vetting process. The there was like a $200 million agreement with the Pentagon's AI office in July of just last year, of 2025.

So by last summer, Anthropic was, by like all accounts, the most widely deployed frontier model in the federal government, and that entire time they had been doing this with the agreement of usage restrictions, so the ones that supposedly made Anthropic a threat to national security. And so the government vetted them with these restrictions, they cleared them with these restrictions and they continued to make good and buy contracts with Anthropic with these restrictions in place.

And so then, of course, last fall, Pentagon wanted Claude on genai.mil, and it wanted the restrictions gone all of them. It wanted them kind of replaced with a clause saying that the Department of Whatever and its contractors could, I'm gonna replace Department of- DOW with “Department of Whatever.” I think that that's like an appropriate stand-in here, just so to keep you from another soliloquy, Ben. Department of Whatever and its contractors could use Claude for all lawful purposes. Anthropic d- dropped almost everything and kind of held two lines, that no lethal autonomous warfare and no mass surveillance of, of Americans.

There was three months of back-and-forth negotiations, and that all kind of came to a head in March. You had this back and forth with Amodei going to, who's like the CEO of, of Anthropic, going and talking to the undersecretary for research and engineering. You had all of these meetings in the White House. Kind of all of this, all of it didn't become public until Fe- late February of 2026, and that's because Amodei kind of was like, "We're just blowing the whistle on this and saying that we can't in good conscience give the Pentagon that type of access."

And on February 27th, a day later, at 3:47, Trump posts on Truth Social that Anthropic is a “radical left woke company run by left-wing nut jobs,” and directs every federal agency to immediately stop using its technology. An hour later, Hegseth posts on X that “Anthropic delivered a master class in arrogance and betrayal,” and designates them a supply chain risk, and bars every defense contractor in America from doing any business with, with them, even business with nothing to do with the military. And so agencies just start ripping Claude out within hours. State's internal instruction was cancelled, everything with Anthropic ASAP, and strip them out as a sub per POTUS, right? That was, like, the internal directive.

And so actually what ends up deciding th- this case is a four-page memo that is basically the entire legal justification for all of this, and it's dated March 2nd, so after, after both Trump and Hegseth's tweets. And the formal determination is March 3rd, and the letter to Anthropic is March 4th, okay?

And so the analysis comes out after the punishment, and that is, like, the huge kind of hinge here. Because one of the main things that this finding is, is like what are we going to do with these tweets? Like, what do they mean? Like, what is this going to hold in terms of agency action? What is this going to, to, to mean in terms of, like, what is the effect of these tweets going to be versus, like, ver- versus these actual formal processes? And it's not just kind of a question for this Anthropic/DOW contemplation, but it's at a, a question for, like, our “tweet-rific” president who loves to kind of go off on all of these, these all of these types of, like, attacks or statements or declarations, and a question as to, like, how much weight they're going to hold.

So, we went through, I think we, there were two hearings that get us up to this opinion. They've all been, we've talked about them on here. I think Roger's given a fair fair assessment of all of these. It was clear that, like, the Pickering stuff was going to be very much to, at the, at the fore. And then that that Judge Lynn was also being very measured in how she was kind of bringing out the cases. She gave long lists of questions before the hearings that she was going to ask both the state and the, and sorry, both the department and, and Anthropic.

And essentially yesterday, Anthropic won on almost everything. First Amendment retaliation, Fifth Amendment due process, the APA challenge on three independent grounds, and a Section 558 claim against the nine, against nine agencies a vacatur and a permanent injunction. And so she denied the government's request for even a seven-day administrative stay, pointing out that they've lived under the injunction for five months, and we pointed out that it was crazy that they hadn't tried to comply with her briefing requests faster because, like, the idea that they would, wanted a stay was ridiculous in light of the fact that this thing was just out there and being enforced regardless. And so anyways, under the injunction for five months and never identified a single harm.

And so the reason it's so lopsided that, like, kind of the government abandoned its own theory, and the March 2nd memo said the, they said that the Anthropic could basically, could flip a switch mid-operation to the Pentagon to be operating a black box controlled by a hostile party. Basically, Anthropic put an unrebutted declaration showing that that's just not how any of this works. And the department couldn't, couldn't rebut that. They had nothing. Like, you know, they deployed, Anthropic was like, "Listen, we deploy models that are static. That's actually not how any of this works."

Benjamin Wittes: Right. And to be, to be clear, what, what the dispute here was, was the, the government seemed to suggest, or even say, that Anthropic could add additional you know, could sort of sabotage government activity if it didn't agree with it, and Anthropic's response is, "Wait a minute. The model, once shipped, is a bunch of coefficients on a bunch of variables, and we don't change it, right? We don't, we don't have the capacity to change it except by shipping updates."

Kate Klonick: 100%. And so this, I mean, so the government concedes that, and so where is their active saboteur possibility, essentially? And Lynn says this. Like, Judge Lynn just says none of any of this, including, like, the internal documents that you know, basically, three facts finished it, I would say. Hegseth had threatened the, the Defense Production, Production Act three days earlier, which only makes sense if Anthropic is essential to the national security rather than a threat to it.

Benjamin Wittes: Right.

Kate Klonick: Okay, so, like-

Benjamin Wittes: So just, just to, to clarify that for people, the Defense Production Act is a law under which the government can compel a company to produce something or, in this case, make its product available.

 And so the government, Hegseth had threatened to use the Defense Production Act to make Anthropic make Claude available on favorable terms, which is not consistent with May, with a refusal to use Claude 'cause it consists, constitutes a national security threat.

Kate Klonick: Yeah. Exactly. And so then, like, the Emil Michael, who is the undersecretary for, the undersecretary for science and research, says, sends an email that is like, "I think this is very, I think we are very close here," the basic, to, ike Anthropic basically saying that, that, you know, that they're going to keep working with them on Mythos and Glasswing. And essentially Lynn is like, "Yeah, none of this, absolutely none of this points in the direction there is any genuine fear, any genuine fear that Anthropic is a saboteur." Like, there's nothing.

And so that's like the day after the designation that you have, that you have military leaders being like, "Yeah, we're really close to working well with you under these conditions." That's ridiculous.

Benjamin Wittes: And remind people what Glasswing is, because I, I, I think a lot of people don't know that, that name, and it actually matters here.

Kate Klonick: Yeah. Let me get, like, a, a way to kind of put this into, it's basically a cybersecurity initiative that was launched by Anthropic in April to secure, kind of, global software infrastructure under their advanced AI. And they were partnering with people that they, or agencies, areas, governments, basically critical infrastructure that they thought was could be most at risk from cyberattack.

Benjamin Wittes: Right. So, they, they produce this new model, they think it has-

Kate Klonick: And they gave it to who they thought were the best, like, who was the most-

Benjamin Wittes: Right. Massive-

Kate Klonick: In need of it, and the best people. It's like-

Benjamin Wittes: And again, it’s not the be-

Kate Klonick: They gave it, why were they giving away this product if they were gonna sabotage some of it?

Benjamin Wittes: It's not the behavior of a cybersecurity threat, right? I- it's a, the behavior of a company that's concerned about how bad guys are gonna use its product.

All right. So Kate, for those who remember that Judge Lynn is this is not the first time she's spoken on this subject. Of course, she issued a preliminary injunction that left very little doubt as to what she thought of this case quite quickly after the thing, the order went into effect. What is this order? Is this the permanent injunction? Is this the end of the case now for at the district court level, or is this some other… How does this advance the ball over what she had already done?

Kate Klonick: So, there is a permanent injunction and the permanent injunction is going to stay in place for now. I think that, I'm trying to kind of look up really quickly where we have the, in my notes, like where we, what the final order was, but my, my understanding was that there was a permanent injunction on almost every level, and I think that there was a seven-day, yeah, there was a seven-day…Yeah, yeah… Yeah, there was a seven-day stay, I think. No, that's not right. That was from March. Anyways, they get a preliminary injunction, and there is, this is kind of just going, we're gonna be seeing if the government appeals this, essentially. I don't think that they're going to. But-

Benjamin Wittes: Really? I- that's, that's interesting. I, I would-

Kate Klonick: How are they going to appeal this when they haven't even been able to, like, make out, they've had to concede on so many points. I don't know. It's, like, I actually don't understand how they think that the factual record will go in the opposite direction. Like-

Benjamin Wittes: Well, it certainly won't at the Ninth Circuit level, almost irrespective of panel, but isn't their theory of this case that if you say the words “national security” at the Supreme Court, you have four votes just by showing up, and the president has determined that this is a national security threat and, that's kind of the end, and deference, right? The, isn't that the government's ultimate theory here?

Kate Klonick: Yeah, I mean, it is, but I just kind of, I don't know, I, like, and reasonable minds may differ about this. I'm certainly not one that kind of, I don't usually dabble in national security cases that are going to the Supreme Court, so I, like, kind of d- you know, most of the stuff that I'm in is, like, do companies or do, do companies or people want to take Section 230 or First Amendment claims to the Su- Supreme Court?

But it just strikes me in this case that there was just, they were quite embarrassed, and there's been a lot of, I don't know, there's been a few key losses in the courts lately. And so I just kind of wonder, the, I don't know what the national security, I just, the, the facts are so well laid out here, I do not know how you could accept the factual record that Lynn lays out and trust in any way that, like, even four members of the court would come out in agreement with you. But maybe I'm wrong. Maybe this national security is that strong, but-

Benjamin Wittes: I mean, maybe you're right, and, and this does not go further than this. My, I was actually surprised that they didn't appeal the preliminary injunction.

Kate Klonick: Well, that's the other part, is that they haven't fought this as hard as they could all the way along.

Benjamin Wittes: Right.

Kate Klonick: Right? And so this is, like, so that's also part of, like, my question. Also, I found this, I remembered and I found the seven-day thing that I was referring to. She denied the seven-day stay. Right, I had said that earlier. That was the seven-day stay. She finally denied it, anyways, pointing to the fact that they've been under the injunction for five months. And yeah, and so there's a vacatur and a permanent injunction with the case now. That's the final order.

Benjamin Wittes: So those who have particularly long memories, which is to say back till May, might recall that the D.C. Circuit has a companion case to this that was argued and then sort of disappeared into that D.C. Circuit black hole where cases go to, you know, not be decided for very long periods of time. Has there been any movement that we know of on the companion case?

Kate Klonick: Not to my knowledge. I think that that is still just, we're still just waiting. I will say that that might be the thing that kind of complicates this, right? Like, that changes whether or not they decide to go in the Supreme Court. And it looked like, at least from what I remember Roger's analysis on this, that really those cases were going much more in the direction of the Department of Whatever.

Benjamin Wittes: Well, yeah, there seemed to be at least one vote at the D.C. Circuit, and another vote was complicated. So yeah. All right. Well, thank you, Kate. We will, we will wait and see what the government does and whether this is Claude's final victory over, over the Department of Defense or whether Claude is gonna have to appeal, you know, be judged at the Ninth Circuit level.

Kate Klonick: I also just do wanna say the one kind of fun thing to the question that I think will end up being fairly important precedent if it does, kind of, doesn't get overturned is that, not precedent precedent, but is an important finding, which was that that Lynn did expressly hold that Hegseth's post on X is itself a final agency action that's reviewable under the APA.

Benjamin Wittes: Yeah, that is awesome because-

Kate Klonick: It is pretty awesome.

Benjamin Wittes: I, I think all tweets should be considered final agency action. And, and irrespective of whether they're done by agency heads or not, I just think that's a, that's an important, You know, when you tweet something, you should know that that creates standing for somebody.

Kate Klonick: But I truly do wonder, like, if this is gonna change the behavior of the administration and how they tweet. I think that it might.

Benjamin Wittes: No chance.

Kate Klonick: No chance?

Benjamin Wittes: Because this gets into the question of impulse control, which is, you know, you're assuming a rational actor and there is no way that Twitter impulse control can be regulated by the APA.

Molly Roberts!

Molly Roberts: Hello.

Benjamin Wittes: Let's talk about elections.

Molly Roberts: Ugh, gosh. Must we?

Benjamin Wittes: Yeah, ‘cause, you know, one of the things that has happened over the last week is that the entire country has been sent into paroxysms of anxiety by the Supreme Court saying that you have to wait for a final rule that came out the Friday before the Court ruled, which seemed like the entire country overreacting to a procedural move based on a false premise. And I can't tell who to be annoyed at here.

And so, six justices of the Supreme Court says, say falsely that, you know, the, there's no final rule yet. There is a final rule, so they're actually wrong. And meanwhile everybody's panicking because they've issued a substantive ruling which they actually haven't issued. So, first of all, tell me I think the technical term is “what the fuck is going on here?” And who is the who is over- somebody's gotta be overreacting.

Molly Roberts: I think a lot of people are overreacting in different ways, or maybe underreacting is part of the problem too, in some aspects of this. The technical term-wise, I think Justice Jackson described it as a “Kafkaesque nightmare,” what's going on with the ruling and kind of the argument, or sorry, with the rule and kind of the argument around why the rule can or can't be reviewed now.

But okay, so I will try to kind of break down everything that's happened this week, ‘cause a lot has happened this week, starting with what the Supreme Court did and, you know, who was or wasn't overreacting there. So, so I guess to go back to Zach-

Benjamin Wittes: Before you do that though, I will just point out that one person who is not overreacting is Molly Roberts herself, whose excellent piece on this on Lawfare, on this whole constellation of issues has been praised by the estimable Ned Foley as “must-read” and “very measured and careful.” And so, you should all read Molly's piece because we know one person who is not overreacting, in some direction to this.

Molly Roberts: Yeah, that's, that, that's to do with, that's to do with if we, you know, get to the point where the election goes off okay and then we end up in Congress and there's a question of what can happen in Congress on January 3rd. If we get to that point and the election has gone off okay, that's great in my opinion.

What the people are freaked out about with this ruling is that it will cause chaos in the election. And so I guess that's kind of where I'm going to end up. But before we get there, all right, so last Friday at 9:00 PM, the Postal Service issues this final rule, and this is sort of interesting because everybody's who's been watching this has been seeing courts, including what had looked like a favorable D.C. Circuit panel say, "Hey, actually, this isn't ripe for judicial review." The First Circuit disagreed with that. Judge Indira Talwani in Massachusetts, sorry, disagreed with that, but the First Circuit panel had said that, Judge Nichols had said that.

And so, if, before Friday, this had made it to the Supreme Court, it wouldn't have seemed all that surprising if the Supreme Court had also said this isn't ripe for review. But then the order was issued, so I think a lot of folks thought, "All right, now when the Supreme Court gets to it, it will be ripe." And then lo and behold, the Supreme Court does rule that the legal challenges are not ripe on Monday when there is a final rule and just seems to be utterly unaware of this final rule.

I mean, were they really unaware? That is implausible, but the ruling is written, it's unaware. I mean, were they unaware when they wrote this? Presumably. In fact, one of the bases on which they ruled that it was necessary for them to vacate Judge Talwani's injunction, which, and again, I'll get to exactly what that meant at the time, was that they said, "Well, if this is in place, it's going to prevent the Postal Service from so much as initiating a rulemaking that could yield a rule applicable to these states." But the Postal Service had issued a final rule, so it was sort of this absurd ruling.

And people, as you said, freaked out. There were a lot of headlines that said, "Supreme Court clears the way for Trump's midterm changes." And that wasn't true because they had cleared perhaps one obstacle from the road, but the road was still obstructed. It was obstructed because Judge Talwani had issued an injunction in a separate case. She had sort of combined these challenges when she looked at them, but then ruled separately. That was still in place at that time. But, and of course this was procedural. The Supreme Court said it's because they're not ripe, because there's no final rule, but we're not saying anything about whether the rule, when it comes in, will be legal. So, a lot of people said, "Calm down. There's an injunction still in place."

But then, of course, the Department of Justice went to Judge Talwani and said, "Hey, this other injunction, that's not all right either because of all these things the Supreme Court said." And Judge Talwani, as it turned out, went back and did lift that other injunction, but she also said to the parties before her, "You guys should go ahead and you should write amended challenges asking for new preliminary injunctions and maybe temporary restraining orders based on the fact that there is now a final rule."

And of course, they did that, and they did that. The, it, it's, it's a coalition of states and D.C., and then it's a voting rights organizations, a number of voting rights organizations, and then there's also the challenge in D.C. by the Democratic Senatorial Campaign Committee, and they went back to Judge Nichols too and asked for a preliminary injunction. They did a supplemental complaint.

So, pretty quickly after that, Judge Talwani granted the temporary restraining order that they were asked for. So very briefly, for I think about 24 hours, this rule was allowed to be implemented, but then the TRO went into place and there's going to be a hearing next week on the PI in Judge Talwani's courtroom. It's next Thursday, I believe, the 3rd of September. And Judge Nichols, meanwhile, seems to be slow walking this a little more. He adopted the government's preferred timeline. They didn't ask for a TRO in that case. They just asked for a PI, and so he's adopting that, hearing it a little later.

Presumably, what's going to happen now, and again, to be very clear, this rule can't be implemented now, although it's kind of a question whether the Postal Service should have even been able to publish a final rule after it had been told by Judge Talwani that there was an injunction and that it couldn't do what it was being told to do. But anyway, the rule exists.

Benjamin Wittes: Those Postal Service scofflaws.

Molly Roberts: Yes, exactly. Yeah, yeah, yeah. Well, that's actually it's, it, it's funny that you say that because one of the arguments that, and I'm gonna get to this, too, one of the arguments that the Department of Justice makes because f- they had been arguing only procedurally, "This isn't right, this isn't right." They had not wanted to address the merits, which, like, I wouldn't either if I were them because they don't have such a good case. But they finally had to now to prepare for this preliminary injunction hearing. And one of the arguments they make is that the final rule was not issued by the president, whose authority you're questioning. It was issued by the Postal Service. So yes, you're right, these Postal Service scofflaws.

But, but in any case, so, so that's, that's basically where we are now is that presumably because things are moving faster in the First Circuit and before Judge Talwani, she will, I mean, you read this TRO and there's no reason to believe that she wouldn't very quickly grant a preliminary injunction. She will, and then that will be appealed, and I imagine that will make it to the Supreme Court, and then the Supreme Court is going to have to, I mean, I guess readdress this ripeness question. But I mean, it looks pretty ripe now. So they will maybe get to the merits of a preliminary injunction and then, you know, we will see. We'll see-

Benjamin Wittes: And can I-

Molly Roberts: Yep.

Benjamin Wittes: Can I ask you a sort of 40,000-foot question? You've been following this stuff since before this executive order was an executive order, when it was a mere fetal dream in the fervid imaginations of certain, let's just say, crazy people. How confident are you that this is not going to go into effect before the November election?

Molly Roberts: You know, everybody thinks that I'm too confident, too optimistic about stuff like the ballroom. I don't think that it is remotely practical for this to happen before the election. I think also, I mean, you see it in the filings in some of these cases, I think this one is in the D.C.-based case, but you see the government admit, or the plaintiffs say the government has essentially admitted to them, that the portal that's supposed to enable all this, the federal ballot mail portal, isn't active, and the deadlines are coming up very fast for when these ballots have to be mailed out. And so, I mean, the idea that it would be possible just seems it won't.

And so to me, you know, the Supreme Court, that gives the Supreme Court, at least as regards these elections, a way out because they can essentially, I mean, they can kind of approach it two ways. One would be sort of a practical impossibility thing when they're looking at, you know, where the harm is, and the states have an obligation to administer the elections, and they would violate the law if they didn't administer the elections.

And then two would be some Purcell principle thing, which is what the D.C. Circuit hinted at when it, when it ruled in favor of the government here in that it refused to issue a preliminary injunction, but it said, "Well, you know, the plaintiffs are really worried. The plaintiffs are saying that what's gonna happen is these changes are gonna be implemented, and then they're going to come and try to block them." And then the courts are gonna say, "Oh, Purcell principle, we can't block them." And the D.C. Circuit said that's wrong. That gets the Purcell principle backwards. Actually, the Purcell principle would allow us to block them if found unlawful. It would allow us to enjoin them without implicating any federalism or reliance interests, is what they said, because blocking it would preserve an existing electoral status quo within this short period before the election.

So I think that gives the Supreme Court a lot of ways out. My question is more, do they get to the merits? Because if they don't, I mean, do they, you know, do they say, "Well, this is unconstitutional," or, "This is, violates, you know, some statute related to the Postal Service." It's challenged on a number of bases. If they say that, then the question's answered for 2028 too. But if they don't say that, if they just say this can't be done between 2026, then before 2026, then we're really not done with all of this.

Benjamin Wittes: Finally we should let you talk a little bit about your piece that was praised by Ned Foley which is, I would say tangentially related to this question but is really more about January. So, having told everybody to calm down about this one what is your message about January 3rd?

Molly Roberts: You know, I wish that I had like a really clear message that said, "don't panic." The piece says, "Don't panic." I think I'm comfortable saying don't panic, but I am not-

Benjamin Wittes: Panic is almost never a helpful-

Molly Roberts: Exactly. Exactly. Don't panic-

Benjamin Wittes: Policy or political action.

Molly Roberts: Prepare, although which, you know, although precisely how can you prepare at this stage? I don't know. But, but basically the piece is about there's been a theory raised that this one individual, the clerk of the house, has the ability on January 3rd to manipulate the role of members elect such that the wrong, effectively, speaker gets elected. And once the speaker, wrong speaker gets elected, he can swear in almost whoever he wants, and the courts wouldn't want to intervene at that point because the House can judge the returns of their own members.

So that's the, that's the basic theory. And what this piece does is it says, well, is that true as a matter of positive law? And then it says, is that kind of likely as a matter of practical reality?

And I think that there's a interesting argument that at least in some, at least when it comes to the situation of it's really clear that, let's say, a Democrat won an election, and then even though there's only a valid certificate from a Democrat, the clerk comes in and puts a Republican on the roll. It seems to me that there's a good argument for why that would, well, first of all, be plainly illegal, but also why a court might not deem it a political question. It seems like there's a decent argument for that. That said, like, who knows with these courts?

But the practical reality, honestly, is what comforts me more. I think it's very hard to pull this off, and it's the only world in which it's even feels plausible at all to me that it could work is where it's effectively an even split. The more, the more seats that the rightful majority has, the harder it is to, yeah, succeed in a gambit like this.

Benjamin Wittes: All right. So calm down about the Postal Service, people, and keep a wary eye on January 3rd, but don't panic.

All of which brings us, the not panicking thing, brings us to Eric Columbus, who, as you can see, is not panicked over there in the upper right of my screen. And he's not panicking even though the Third Circuit has upheld the district court's decision to allow the prosecution of Representative McIver to proceed.

Now first of all, Eric, explain to us how this got before the Fifth- Fourth- the Third Circuit on interlocutory appeal, 'cause she hasn't gone to trial yet. And secondly, what was the issue before them and what did they decide?

Eric Columbus: Sure. So,way back in a more innocent time, May of 2025, LaMonica McIver, who is a congresswoman from New Jersey along with, I believe one of-

Benjamin Wittes: Viciously attacked an ICE rep- represented, an ICE agent, right? I mean, like, ripped him to, you know, claws bared , right?

Eric Columbus: Well, as you know, Congress, m-members of Congress are heavily armed and ICE agents are typically defenseless so that makes it-

Benjamin Wittes: Right, right.

Eric Columbus: A lot more difficult. She was coming to a Delaney Hall Federal Immigration Facility, which is in, in New Jersey, I believe, in or, or in the city of Newark, and to inspect the facility pursuant to a statute, an appropriations provision that gives members of Congress the right to make unannounced inspections. And this was a time when there was a lot of protests going on outside of Delaney Hall and tensions were rather high. And the mayor of, of, of Newark Ras Baraka, was also there.

And he they, there were some scuffles ensued with, with ICE agents, and she was arrested, as was the mayor, and she was charged with violating 18 U.S.C. 111, which is a, a, a favorite of this administration. Th- th- that's basically assaulting a, a federal officer. Charges against the mayor were dropped. Charges against McIver were not. And she moved to dismiss, said that this violates the Speech or Debate Clause of the Constitution, which provides that f- for their speech a- and/or debate in either house, members of Congress “shall not be held accountable in any other place.” That I think is fairly close to the actual words of the speech or debate clause.

Benjamin Wittes: Can I ask a dumb question?

Eric Columbus: Yes.

Benjamin Wittes: Okay.

Eric Columbus: There are, sorry, there are, “there are no dumb questions” is what I meant to say.

Benjamin Wittes: Well, no, 'cause, like, if she attacked a federal officer I don't know of a reasonable reading of the Speech or Debate Clause that involves physical assault. And if she didn't attack a federal officer, then that's a fact question, not a question of law, right? If, if the defense is, "No, I didn't do this," and by the way, let me just say, I don't believe she attacked a federal officer, and I, I think I've said on, on Lawfare Live: The Trials and Tribulations of the Trump Administration in the past that I expect this to be resolved by a jury inside of 45 minutes or something. But it seems like the fundamental question here is a fact question, not a, a speech or debate clause question. So my question to you, Eric Columbus, is what am I missing here?

Eric Columbus: Well, I, I, I think that a, a physical act could in fact be protected by the Speech or Debate Clause if it is-

Benjamin Wittes: Like this?

Eric Columbus: If it happens within the scope of a, a legislative act. And the, the, the inspection is a legislative act, and if she, you know, it, it, it, it might be a little bit different if she is just kind of while inspecting just kind of takes out a gun and shoots someone. But if the-

Benjamin Wittes: Why is that different in principle? Granted, it's a bit morally different, but I, like, I don’t, “speech” does not include physically assaulting an ICE officer. “Debate,” I mean, they say democracy is not a spectator sport, but it's also, like it's not Greco-Roman wrestling either. I- it just seems to me like, like, you know, one way or another, the question, “did you assault the ICE officer?” Is not a legal question. It's a fact question.

Eric Columbus: Well, but, but then if you, if you look at it, if that were the rule, then you could have pretextual prosecutions of members of Congress more easily. I mean, she is a, what the argument that she is making is that this ICE officer was impeding me and preventing me, trying to prevent me from doing my oversight duties. And it was in that context that this physical contact occurred, and she will presumably argue at trial that the physical contact did not amount to an assault on an officer in, in, as the, as defined in the statute.

But in order to protect members of Congress from harassment by the executive branch, the Speech or Debate Clause, you know, has to have a, a broader application that will prevent the executive branch from indicting and harassing members of Congress in kind of questionable fact situations such as this, even if the, the fact, if proven would, the charge if proven would constitute something that we do not think of as normal legislative activity

Benjamin Wittes: All right. I just gotta say, I could not be more sympathetic to LaMonica McIver on the facts of this. I just remain a little bit head-scratchingly skeptical that it's a Speech or Debate issue rather than a she's not guilty of the crime as alleged issue. But okay, she got one vote on the Third Circuit. Who voted for her, and was Judge Emil Bovie involved?

Eric Columbus: The good judge B- the bad Judge Bovie was not involved. It was, this was a panel of three judges. One the majority included an Obama judge and a Trump judge, Judge Bibas is the Trump judge. I, I think I'm pronouncing that correctly. The Judge Ambrose was the, was the, sorry, did I say Biden? I meant Clinton. Was the Clinton judge who dissented.

And so the, the, so when, when, just to step back, she moved to dismiss McIver on r- on, on three grounds. First, the Speech or Debate Clause, second, just kind of general separation of powers citing Trump v. United States, and third selective and vindictive prosecutions.

And so taking those kind of in, in reverse order, the Court of Appeals said, you know, you, you cannot appeal your s- on, on the basis of selective and vindictive prosecution. You need to wait until the trial's over, 'cause we have something known as the collateral order doctrine, which lets it which kind of dictates when things can be appealed from the district court to the court of appeals. And one prerequisite is that the, the issue involved has to be effectively unreviewable on appeal from a final judgment. Like the, for example, like whether to disclo- whether a document can be disclosed is, i- is effective, effectively unreviewable in a final judgment, because if, if it's disclosed in the middle of a trial, you can't put that back in the, in the bag.

To, but a- a- and so they say, you know, "Look, you can, after your conviction, if you're convicted, you can appeal that on the grounds that you were selectively and vindictively prosecuted." The dissenting judge on that says, "You know, that's not really fair because the right that's involved here, at the very least for a Congre- for a member of Congress, should be construed to be the right not to be tried, not just the right not to be convicted."

Benjamin Wittes: And that's clearly right under, I, I think, under Supreme Court precedent, that, you know, Speech and Debate Clause is not a defense. It's an immunity. And as a general matter, you litigate questions of immunity first, and so while I think she's got a frankly shitty claim for Speech and Debate Clause immunity, the idea that you deal with that at the beginning is, is right, I think.

Eric Columbus: Yes, but I, I, here we're, we're talking only about the selective and vindictive prosecution claim.

Benjamin Wittes: Ah, sorry.

Eric Columbus: And what the dissenting judge wanted to do is, wants to do is import that Speech or Debate immunity-

Benjamin Wittes: Yeah, that's not right-

Eric Columbus: Or the flavor of that-

Benjamin Wittes: You can deal with that in that respect-

Eric Columbus: To the, the ne- very narrow, what he says, you know, hope- is hopefully and is currently correct, hopefully will remain correct. There will be very few cases where members of Congress are indicted, and y- you should let them, you know, get a, a one shot at, at appealing beforehand when they're trying to make a selective and vindictive prosecution claim because that, that, for the same reason why they can, that speech or debate immunity exists and is a defense to being tried, not just a defense to being convicted. But the majority was not convinced by that.

So now turning to the, Speech or Debate immunity. There, there are three counts. The first count, she was, that she was impeding the arrest of Mayor Baraka when ICE agents moved to arrest him. And the-

Benjamin Wittes: Who has not been prosecuted, by the way.

Eric Columbus: Who was indicted, but charges were dropped. And everyone agrees that, or rather all three judges agreed that that was not l- a legislative act. It was not about her oversight. It was about preventing a, a, an arrest, maybe a bad arrest of another person who was p- who was, you know, the mayor.

Count two was that she pushed past an agent with her forearms as she was going into Delaney Hall. And the majority here said that this was not an act of inspection, not a legislative act, but rather a, a necessary precondition to that act, and they analogize it to traveling to the facility.

Benjamin Wittes: I always inspect things by pushing people out of my way with my forearm.

Eric Columbus: Ex- exactly.

Benjamin Wittes: It's, it's, it's, it's a necessary precondition for inspection.

Eric Columbus: The dissent disagreed. The dissent said, "Look, this is not, you know, this is r- that you're slicing it too thin that this actually is what, what you know, basically part of the inspection." And, you know, McIver, you know, came up with some hypothetical, which the majority noted but declined to address, of like, you know, what if, like, they try to gin up some prosecution of a member of Congress, like went by provoking her right outside the chamber of the House, and then they, they arrest her when she retaliates. And the majority said, "Well, that's worrisome, but that's not what this case is, so let's not deal with that."

And then there's a third count where everyone agrees to send it back to the district court to look at it again because the district court had not analyzed it separately and had not analyzed it properly.

Finally, on her claim of just a broader legislative immunity of a, of a violation of separation of powers and analogizing to United States v. Trump, the court says, "Well, look, in United States v. Trump the, the Supreme Court created or recognized an, an underlying immunity in the Constitution that was not made clear in the text. Whereas in the legislative context, we already have the Speech or Debate Clause, and we are not going to extend the reach of le- legislative immunity beyond what is in that clause." That's it.

Benjamin Wittes: All right. Let's talk about another member of Congress who's gotten in trouble with the law, Anna Bower. I'm talking about, of course, Eric Swalwell who can't claim congressional immunity because he's not in Congress anymore. But he has a major set of investigations against him, including by the FBI, and there have been a lot of developments this week. So what's going on?

Anna Bower: Yeah, so in the past week federal agents executed a court- authorized search warrant to get Eric Swalwell's, some of his electronic devices. And we know this because there are public records reflecting the search warrant returns, which is, you know, where they basically write out what they seized from him. So they seized two electronic devices from Eric Swalwell.

The warrant appears to have been executed or issued out of the Southern- or, excuse me, the Northern District of California. So it, it appears that this investigation is being run out of that office. But there also are reports that there was also a search in Washington, D.C. as well.

But what we know from the caption, Ben, 'cause we don't yet have the application, so there's not a whole lot that we know about the underlying facts that were supporting the issuance of this warrant. But what we do know is that the name of the docket where you can find the search warrant return, which is public, although the other documents are sealed, including the supporting affidavit, it says something to the effect of “search warrant regarding investigation of 18 U.S.C. 242 and other offenses.”

Now people might recall that 18 U.S.C. 242 is a, a federal criminal offense that is deprivation of civil rights under color of law. This is one of the statutes under the Klan Act. It originally is a statute that is geared towards you know, depriving people of the right to vote or violence against people in deprivation of their rights under the 14th Amendment, things to that effect that historically has been kind of the way that this, this statute has been prosecuted. And it's often been officials, federal officials who wield executive power. So cops you know, sheriffs who lynch people. You know, that kind of thing has been historically what, what this statute has been used for, and then it's expanded over time.

Benjamin Wittes: You don't, you have to, don't you have to, to be acting under color of law? I, I have not studied this issue, but my understanding was to be acting under color of law, you have to have legal authority over somebody

Anna Bower: Yeah. So, so I've looked into this a little bit. I will say I need to do a little bit more research, but it, it stood out to me and I also know from our conversations, Ben, that it stood out to you that that was the offense that was listed in this a search warrant application case name because it did seem quite unusual. And I should mention importantly that the predicate conduct here for Eric Swalwell seems to relate to, based on reporting from outlets like The New York Times and multiple other news organizations, that apparently this search is related to an investigation by the feds into Eric Swalwell's sexual misconduct.

If you recall, there were previous reports, and I should mention that Eric Swalwell denies these reports, but there were previous reports from, about multiple women who had experiences with Eric Swalwell in which they reported sexual misconduct, including non-consensual sex during his time as a congressman. And it's, it based on the reporting, it's reprehensible conduct. However, it is quite unusual for federal, for the, for the federal government to get involved in investigating sexual misconduct unless it is, you know, there's an interstate kind of, nexus. There's-

Benjamin Wittes: Like on an airplane or you're transporting people-

Anna Bower: Yeah.

Benjamin Wittes: Or it's on an Indian reservation.

Anna Bower: It's happening on federal property, something to that effect. So the question was kind of why are the feds getting involved here? Why isn't this just solely a state or local jurisdiction kind of thing? And it seems that maybe there's this investigation using 18 U.S.C. 242.

And I had the same thought that you did, Ben, of, you know, ba- based on what we know, and there's a lot we don't know here, I, I should say that at the outset ‘cause that is important, that we really just don't know a whole lot about what it is that has been uncovered in this, in this investigation other than what's been publicly reported. But, what we, based on what we do know, it doesn't seem that there's this nexus of, like, things happening on federal property or you know, a use of official authority in some way i- in these accounts that the women have given to news organizations. So it did strike me as a little bit unusual.

But I, I will say I, in the mean, in the interim time, time since we spoke about this, Ben, I've looked at some of the case law, and although there's not any cases that I can see about a l- a prosecution under 242 of a, someone wielding legislative authority, ‘cause as I mentioned, usually it's, like, administrative or executive power, right? It's people who have some type of police power, people who wield some type of custodial power. Typically that's who these prosecutions are brought against. And it's, I have not found any cases in which a, a Congressperson is prosecuted under 242.

But that said there are, there is at least one case that went to the Second Circuit that has a potential application here. The language is really broad. It involved a mayor I believe it was in Connecticut who, while he was mayor, he essentially had, he, he solicited sex from minors. And it was, all of it happened, all the conduct happened in his private law office, so not, you know, in his mayoral capacity. But, after trial, he was convicted under 242 and the Second Circuit took a look at this and said, "You know what? We are gonna uphold this conviction," because he used the authority of his office to, like, intimidate these women into silence. He said things to the effect of like, "Oh, you better not tell anyone ‘cause I have power over the police force here." You know, things to that effect that intim- the, the women at, at trial testified that they were intimidated by his power as the mayor. And so that is the hook that the Second Circuit used to uphold this conviction. And they also s- said things like, you know, “it was because of his official responsibilities or because of his job that he had access to or, or the possibility of doing this sexual misconduct.”

So there's a lot of language in that specific opinion that m- maybe the federal government is looking at there with this Swalwell thing, but I still think it seems, based on the conduct that we're aware of that seemed to happen, you know, outside of any kind of legislative capacity it happened on private property, not in federal cover- government buildings. It still seems like a bit of a stretch at this time, but there's a lot we don't know, and we also don't know what other offenses are being investigated as well.

Benjamin Wittes: Well, call me old-fashioned, but I still just have this prejudice that the phrase under color of law implies executive authority or judicial authority, right? When you're in somebody's courtroom, you're under cover of law- under color of law. But a legislator, by the nature of his office, has the power to vote in a legislative assembly and really very little else.

I suppose if he's in his capacity as somebody who can issue a legislative subpoena, maybe he's relating to you under color of law, but it just strikes me as if, if the nature of his office doesn't give any power over him to detain you, compel you, blah, blah, blah, then the interaction, whatever else it may be, it may be horrific, but it isn't under color of law at least as I understand the term, and I would be interested if anybody's, I don't, where that term originally comes from, I mean, I know it's, you know, part of the Klan Act from the 1870s, but I, I, you know, like, okay, I'd be really curious to know, it's a term of art in some sense, and what it means here, I'd be interested, and… All right.

Anna Bower: Yeah, and it, and it's clear too that it means something more than just official acts, right? Like, it's, it's separate from the way we think of typically official acts because that is, like, what is actually within your, your official authority. Whereas under color of law is, like, either your real or apparent authority.

Benjamin Wittes: Right.

Anna Bower: Like, you seem to be exercising, even if you're not really, even if you're an off, off-duty cop but you are invoking your office kind of while you're doing this.

Benjamin Wittes: You're using your power. But it's your power to do something to somebody.

Anna Bower: Right.

Benjamin Wittes: Right? And a legislator has the power to say “aye” or “nay” or to, you know, like, they don't actually have power over individuals. All right. Speaking of people who have power over individuals and who don't like the way they're being forced to use that power, Judge Nichols is irritated let's just say, about being forced to dismiss the case against Steve Bannon for contempt of Congress, and he's, you know, putting up a little fight about it. What's going on here, Eric? … You gotta unmute.

Eric Columbus: Sorry about that. As many folks may recall, Steve Bannon was convicted of contempt of Congress for ignoring a sub subpoena issued to him by the January 6th committee. And full disclosure, I was working for the House General Counsel litigating on behalf of the January 6th committee, and we filed an amicus brief supporting Steve Bannon's conviction. So that said, he was convicted and his appeal was denied, and he served his time, four months in a federal pen, and he, when he got out, he kept trying to get his conviction overturned unsuccessfully sought en banc review and petitioned for certiorari.

And while that petition was pending, the Department of Justice notified the Supreme Cour- asked the Supreme Court to vacate his conviction, to vacate the D.C. Circuit decision that had affirmed his conviction, send it back to the district court so the dist- so the Department of Justice could file a Rule 48a motion, as it's called, to vacate his conviction. And we've seen them do that in various other cases, especially involving January 6th conv- other January 6th convictions of attackers that were still on appeal.

And so, that, that happened. It went back to Judge Nichols, who was a Trump appointee, but not particularly Trumpy himself. And Judge Nichols looked at this and was like, "Well, you know, I got a couple of issues, issues here. One is that you need to give a reason for why you're doing this under Rule 48a, and your brief, Department of Justice, does not give a reason. It just says, 'We want to vacate this conviction.' So we'll give you another chance, and please do so."

And then there's a footnote in there which is kind of interesting. It says, it, it cites a recent D.C. Circuit opinion that says that the Rule 48 power is usable only before convictions are final and that this conviction was already final. It was already, he was already convicted and already blessed, upheld by the Court of Appeals. And he asked Department of Justice to analyze whether that's possible for him to rule on their motion here and whether the Supreme Court, having vacated the D.C. Circuit's decision, has anything to do with it.

Benjamin Wittes: All right. Let us turn to the subject of the Kennedy Center

[Recording of John F. Kennedy’s “ask not what your country can do for you” speech plays]

Benjamin Wittes: That's what I want you to ask. And what Donald Trump can do for his country, Molly Roberts, is to demolish the Kennedy Center. And I thought that was the ballsiest brief I have read in a very long time. So, catch us up because, the, the, the government's position, at least as I understand it right now, is if we can't put Trump's name on the Kennedy Center, we're burning the whole place down.

Molly Roberts: Yeah. I think Howard Lutnick, who showed up at the hearing they had this week, would say that that's not exactly the government's position. The government's position is, "Well, that could happen. That's a possible eventuality and a probable eventuality if you do this." But… That sort of sounds a lot like that's what the government's position is.

So, so we talked a lot last week about how the plaintiffs here, how Representative Beatty had filed for a new injunction because the government, or sorry, not the government, I keep saying the government because it's the president. But how, so this is Beatty v. Trump, is how Trump had tried to put his name back on the Kennedy Center, how the Kennedy Center board, of which Trump has made himself the president, had tried to put his name on the Kennedy Center even though the judge said that he couldn't.

So, the brief you're talking about is the response to that motion, and it begins, "The Kennedy Center is in terrible trouble. The crisis is so acute that without the Trump administration, its people, and President Trump, the center cannot survive, either structurally or financially." So, I believe that the way that the plaintiffs put it in their brief in reply to that was that they're effectively saying, "Oh, that's an awful nice Kennedy Center you've got there. Shame if something happened to it." And, and I think that-

Benjamin Wittes: I mean, that is kind of how the brief reads

Molly Roberts: I mean, I, when the, the, that's the opening sentence, right? I mean, it re- it, it says that it cannot survive either structurally or financially. And of course, you know, they go into more detail about why they claim that that is, and, you know, they say that the fundraising is going to dry up if Trump isn't, quote-unquote, "Appropriately recognized on the building's facade," although according to The Washington Post, and of course according to the plaintiff here, this is not true. The Washington Post has reported that internal financial documents show that actually revenues suffered significantly after Trump's name was added. And you know, of course, we've seen performers canceling their performances, which we talked about a judgment awarded in that case a few weeks ago.

But what the government says is that The Kennedy Center, if you take Trump's name off, all the money will dry up, and this is partly connected to sort of a poison pill they've inserted where the funding for the board goes away. It, it all gets called back if you don't have Trump's name on it. But anyway, “the Kennedy Center will deteriorate further into an unsafe, decrepit structure that will be required to be taken down with a determination to follow on what to build on the site, such as a large outdoor amphitheater overlooking the Potomac River that has been proposed, by some, for many years.” So anyway, that's what they said.

And then, you know, the judge, so the judge had a hearing on this this week on Thursday, Judge Cooper, and he said, "Even if that's true, if it's unlawful, you still can't put his name on it.” You know, even if it's true that that means that the Kennedy Center is going to deteriorate further into an unsafe, et cetera, et cetera, et cetera.

And so that was essentially what the hearing was about, was the government saying, “first of all, there are all these reasons that it's actually different from what your original ruling said, Judge, for us to put his name on the Kennedy Center and for us to say endowed by the Trump Kennedy Center Pun- Fund and for us to rename the plaza,” which we discussed last week, last week why that's not all that plausible. But also the, the Trump, the Kennedy Center team saying, "Well, you're going to ruin the Kennedy Center," and then the plaintiff Beatty saying, "The defendants openly threatened to do further damage to this sacred memorial if they don't get their way in emblazoning that historic marble with Trump's name once again and renaming the grounds for him."

I mean, that's what it seems like. It seems like they're saying if we comply with what you've told us to do, you know, we're gonna t- also tear down the Kennedy Center as revenge. So anyway, that, that, Judge Cooper was not terribly pleased, although he was quite measured about it, and he told the Justice Department lawyers that if they didn't agree to delay the inscription, he might have to issue a ruling blocking the redevelopment of the center generally from moving forward.

And this is part of what's going on here is initially he had also ruled that they couldn't close the Kennedy Center because the board hadn't had sufficient information when they voted, but the board has now voted again with presumably more information, so it's still an open issue, and he's supposed to rule soon on whether it's okay now for them to close it down.

But, you know, if they're gonna say, "Well, we're going to tear it down if you don't let us do all the things you already told us we can't do," then he's effectively saying it's gonna, you know, take some time, and I might have to further delay the closure that you're saying is so important. And they ultimately said, "All right, we're at least not going to try before October 8th to do our new plan to put Trump's name on the building," and they had previously said they were going to do it on September 8th. So that is where we are now.

Benjamin Wittes: All right. Anna Bower, He is old, but unlike the Kennedy Center, he is not decrepit. Judge Hellerstein in the Southern District of New York, 94, I believe, has denied the Trump's, Donald Trump's bid to move his state criminal appe- remove his state criminal appeal to federal court. This is like, the 20th time he's tried to remove this case. When, when is, like, he stopped from trying to remove the case again?

Anna Bower: Yeah. It's been, I was just thinking about how I would even try to summarize all the background here because it, it does feel like it's not in actu- it, it's not really the 100th time that he's tried to remove, but it feels like that for me as someone who has been covering the New York criminal case and appeals of one Donald J. Trump.

But this is in the hush money case and it's before Judge Hellerstein who is also presiding over the Maduro trial currently and has this other high-profile matter regarding Trump's removal efforts in his New York hush money case. And, and Trump, as you've mentioned, Ben, has tried this before, been rejected, then went to trial in New York state court, ultimately was convicted, but then was elected as president and at the, and then also, as well, the Supreme Court's immunity decision came out after his convictions.

And, and so, Trump filed once again following that decision by the Supreme Court to remove his case to federal court, this time the case being, you know, the remaining appeals following his conviction. One of his arguments being that he wants to raise presidential immunity because some of the evidence in the case are, are in Trump's view, things that were admitted and that he would have been immuned fro- immune from having evidence introduced against him under the Supreme Court's decision.

So this goes to Judge Hellerstein. He summarily rejects the effort to remove. And then it goes to the Second Circuit, who say, "You didn't give enough reasons. You need to answer these questions, do actual kind of full analysis of, of this removal ef- this third or whatever it was removal effort by Trump." And so Judge Hellerstein has had this for some time. It's, it's been a while. I don't know the exact number of months, but, but it's been a, it's been a minute.

And now he has finally issued an opinion on it, and he once again rejects Trump's efforts to remove to federal court. And among other things, he says, "Well, first of all, although the removal statute says that a person can, a federal officer can be allowed to remove or to, to file ‘for good cause’ here there's not good cause because, you know, you waited 64 days after the Supreme Court's decision when it was clear that the New York appellate court seemed that they were not going to stop the sentencing. That was a strategic litigation move to, to wait to see kind of what the New York courts looked like they were going to do. You waited too long." Things to that effect is the first reason that he gives for Trump shouldn't be allowed to remove. Basically, you're too late and you don't have good cause.

The second thing that he mentions is, even if, you know, putting that aside there, there's un- the removal statute does not contemplate a post-conviction removal. You know, it, it contemplates removing a federal officer removing from a state trial court-

Benjamin Wittes: It's about avoiding local juries.

Anna Bower: Yeah. Right? And going from-

Benjamin Wittes: And, it-

Anna Bower: Exactly.

Benjamin Wittes: It, it's, it's about having a federal forum for a federal trial for, for a trial of a state official.

Anna Bower: Yeah, and that was the whole purpose of the removal statute was this idea that state pros- zealous state prosecutors, overzealous state prosecutors would try to prosecute federal officials for un- unpopular federal actions and that state juries would be kind of, you know, or judges, state judges or juries would be, like, prejudiced against these federal officials, and so you need a fair forum by removing to federal court.

And so Judge Hellerstein says, you know, “this is post-conviction and the, the removal statute, that's just not what this statute is for,” so he can't remove for that reason.

And then finally, there's this other element of the statute that is you have to have a colorable federal defense. And the colorable federal defense that Trump, in the main, alleges is presidential immunity because remember, there's that element of the immunity decision that says even if you're being prosecuted for unofficial conduct, which it seems pretty clear Trump is being prosecuted in the hush money case for unofficial conduct because it was conduct that was going on during his campaign in 2016. But even if that's the case, you know, you can't have evidence against a president of his official acts that's used to convict him for that unofficial conduct.

And so, there was this question after the trial and after the immunity decision of, of what's going to happen to this conviction because they, the evidence in the trial included things like a discussion between Trump and Hope Hicks in the White House about how to handle some of the news reporting about the Stormy Daniels matter. There were tweets that Trump made about Michael Cohen when he was president on his official Twitter account. And there were there was… Sorry, I'm laughing because our, our, one of our favorite kind of minor characters in the Trump cinematic universe, Madeleine Westerhout, her testimony, she was a White House administrative assistant. Her testimony also included things about, you know, she was in the White House signing checks for Trump.

So there's this question about whether those things, whether he would be immune. Ultimately, Hellerstein finds each of those things to be unofficial conduct, and therefore Trump does not have a colorable federal defense. I'm a little bit, that is the one part of this opinion, I will say, Ben, that I'm a little bit, I, I'm not sure that the Supreme Court ultimately would come down on the same page as, as Hellerstein, but I think that there's enough here that appellate courts with those first two things I mentioned, there, there may be, at least if it gets to the, when it gets to the Second Circuit, I think that there's enough there in this opinion to uphold Hellerstein's decision to deny removal on those first two things I mentioned.

I, I, if it gets to where they have to look at the colorable federal defense and the evidence that was produced-

Benjamin Wittes: Yeah, that's where Trump's argument is strongest.

Anna Bower: Yeah. Yeah.

Benjamin Wittes: All right. We need to speed up rather dramatically because we have 10 minutes left and almost as many items to get through, so everybody please be brief.

During our immigration roundup, which is, I remind you all, a roundup of immigration cases, not a roundup of immigrants. Anna, in a case that really surprised me, a district judge in the Southern District of Texas has denied to the state of Minnesota an order to extradite an indicted fugitive ICE agent and who is accused of, like, shooting through somebody's house in Minnesota and has been indicted there. And now I think I have, last I checked, I think he's now free in Texas. So what the hell is going on here?

Anna Bower: Yeah, a pretty surprising turn of events to me as well, if I'm, if I'm being honest. I- i- i- I did not expect this from, from this judge, I, I will say, which is on me. But a- as we discussed last week, you know, it, it, the laws here seemed pretty clear regarding the constitutional obligations to extradite a person who committed a crime in State A and then went to State B. And that's not only, there's, you know, the constitutional requirement, but then also there's these uniform acts that a bunch of states have adopted into state law that kind of set out the way that all this happens.

Oh gosh, I'm tr- I'm gonna try to speed things up, Ben, ‘cause I'm looking at the clock, but there's a lot to discuss here. But, one of the things that this judge argues here in terms of denying a motion by Minnesota to get Greg Abbott to issue a rendition warrant so that this guy can be sent back to Minnesota for the felony counts that he's facing there related to shooting someone through a door in the leg and then also allegedly lying to investigators about it. I- in, in making this order in which the judge denies a TRO requested by Minnesota, he says basically the issue isn't ripe here because Greg Abbott, you know, he, he actually hasn't made a decision on whether to deny extradition.

And the argument by Minnesota had been, well, he has delayed while all these other extradition warrants have been granted. And then also, you know, it, it, it's, it just is the case that in under Texas law a person's gonna be released after 90 days because of the adoption of this uniform act. So that means that this guy might run off to Mexico where he apparently has a girlfriend and has expressed desire to buy property.

So that was kind of the factual basis for Minnesota's concern and effort to, to get this rendition warrant issued. And the judge says, "Well, it's not right because Greg Abbott says he's still investigating." And under the law it is the case that the governor is given the authority to investigate the circumstances of the underlying, kind of, of, of the actual, like whether the documents basically have been, the, the right documents have been submitted, whether this person actually is a fugitive. And so, Texas says that it's still investigating whether he, this man, is a fugitive.

It's kind of a really ba- or it should be a bad argument, Ben, because it, there's no dispute factually about the question of whether this guy was in, in Minnesota and then came to Texas. But Texas is basically arguing that “fugitive under the law” means that a, a person who didn't go back to Texas under a volitional act means that they might not be a fugitive, their argument being that he was recalled to Texas by the federal government to go back to his ICE duty station. That just does not seem to comply with all sorts of Supreme Court precedent. And in fact, the judge in this order even expresses that he probably disagrees with the idea that he, that Castro is not a fugitive. But he nevertheless says the issue isn't ripe, and “it's not until Abbott basically makes a final decision, yes or no, on this warrant that I can act.” And it really just seems to sets up, set up a circumstance where a governor could indefinitely delay extradition,

Benjamin Wittes: And the guy can just leave-

Anna Bower: Yeah.

Benjamin Wittes: In the meantime.

Anna Bower: So and now he's been released because of the provision that I mentioned regarding someone being required to be discharged after 90 days on that Minnesota warrant. And it, and it is the case that now he still can be extradited if Abbott issues that rendition warrant, but it's unclear when or if he will do that. And in the meantime, again, there's this, this fear by Minnesota that the guy's gonna go to Mexico, which opens up a whole other host of problems with extradition.

Benjamin Wittes: All right, Eric, in the department of sauce for the goose, sauce for the gander, the Fourth Circuit has ruled that Loper Bright means that it doesn't have to defer to Board of Immigration Appeals, judgments, opinions regarding what the consequences are of vacated convictions. Is this just dem judges saying, "Ha ha, two can play at this game," or is there more to it than that?

Eric Columbus: The opinion was actually written by a Trump appointee, and it's, it's a very interesting decision in that it, it's very much by the book. It, it says that, yes, Loper- Chevron is gone. There's no need to defer to, and the courts cannot defer to the Board of Immigration Appeals anymore. And it, the Board of Immigration- there's a statute that says that certain types of folks are not admissible to the United States, including those including any-anyone convicted of certain crimes involving moral turpitude. And the Board of Immigration Appeals that has long said that even if your conviction was overturned there may be, there are some circumstances where you, it still counts if it was not overturned for substantive reasons.

And this case involves a, a woman who got her conviction her state conviction vacated and it seemed possibly for, to, because the courts wanted her to avoid i-immigration consequences stemming from it. And given that she had rehabilitated herself was, it'd been a long time since she had been convicted.

And the panel, the Fourth Circuit said that doesn't matter. It's, it's, she is not even if the, there's no question as to her guilt, if her conviction is has been vacated, she is no longer a person convicted of X charge and therefore she cannot be held inadmissible. She cannot be deported from the United States for that reason.

Benjamin Wittes: All right. Molly, I have not heard of this case until it showed up in our on our syllabus here, but apparently a gentleman who testified against the Mexican cartels Has been illegally deported three times and a judge has ordered his return. How do you get illegally deported three times?

Molly Roberts: I mean, you phrase that like he is the active party in this. I think the this government illegally deports you three times is, is the best answer to that.

Benjamin Wittes: I mean, how, like how did this happen?

Molly Roberts: Yeah, I can tell you how it happened, and I will try to do it quickly. I mean, it's really, it's, it's, it's kind of absurd and appalling and, you know, talk about “Kafkaesque nightmares,” but I guess that's, you know, par for the course.

Okay. So yeah. So this guy, who's just John Doe in the case, got a deferral of removal under the Convention Against Torture. He had given this testimony, and they'd found that as a result of it, he was more likely than not to be tortured by the government of Mexico or individuals acting with acquiescence of the government if he were returned. And so, he was released from custody, and he was complying with all the requirements on him.

And then in January of this year, he reported for a routine check-in with ICE. He was taken into custody. He spent six months in an ICE detention facility, and the habeas petition for that is still pending. And then without any notice, he was deported to Guatemala. Guatemala said, "Oh, we only want Guatemalans." This guy's Mexican. Turned him over to Mexican officials at the Mexican consulate. They, rightly, returned him to the United States after hearing that he had this def- deferral of removal under the Convention Against Torture.

So he's back in the United States, and you'd think that that might be the end of it. I mean, shouldn't have even gotten this far. He gets moved between temporary holding cells in the airport in Texas repeatedly. He's not able to talk to his family or his attorney. Eventually, he makes a motion for a temporary restraining order in the habeas case, and after he does that, he is removed again. I shouldn't even say “is removed.” You know, the government removes him again from the United States, this time directly to Mexico, which should violate the obligations under the Convention Against Torture. And again, Mexico rightly refuses to accept him. And then he goes, you know, from holding cells to the airport back again and again.

And then he is served by the government with a notice of termination of deferral of removal, and there's kind of this thing written on the notice that says, "Oh, we have diplomatic assurances from the Mexican government that you won't be tortured." But he doesn't speak or read English, and there's no Spanish translation. There's no indication that it was translated for him, so he doesn't necessarily understand what this notice even says. The government files a response to his TRO motion and says that he'd never been removed to Mexico, which isn't true. And, his attorneys are trying to talk to him. They're not succeeding.

Ultimately, the judge denies the motion for a temporary restraining order, the judge in Louisiana where he has this habeas petition. So he gets taken to Texas, and then he gets deported for the third time to Mexico without his phone or personal belongings. And since then, he has been hiding in Mexico because he's afraid that the cartels he testified against are going to torture or kill him.

So this judge in, in Maryland where this man had been residing said that that wasn't acceptable. He challenged the violation. His lawyers, he and his two minor children are the plaintiffs here challenging the violation of his due process rights and the termination of the, of the deferral for removal and the resulting removal.

And the government was trying to say this could only be heard, I'm not doing a good job keeping this short, but again, it's just so convoluted. The government was trying to say this could only be heard by an appeals court, and the judge said, "Well, you're basically saying that there's no recourse then, and I'm, I'm gonna rule on it.” And he's likely to succeed on the merits because of that whole story I just told you, and the, you know, record demonstrates that there's an imminent danger of irreparable harm in the form of potential torture or death. And when we're balancing the equities, yeah, sure, the government will have to expend some effort, but it's managed to do that twice before when it's removed him for two separate times wrongly.

So anyway, granted the motion for a temporary restraining order, ordered his return, and said that if he's detained further, he needs to be detained within 200 miles of Baltimore and must have access to his legal counsel.

Benjamin Wittes: Wow.

Molly Roberts: Yeah, it's, I mean, it's horrible to read.

Benjamin Wittes: It's a horrible case. Finally, from the horrible to the absurd, people may remember the case of Lisa Cook, the, the Fed governor who Trump tried to fire for cause, cause being mortgage fraud as alleged by Bill Pulte. That's former acting DNI Bill Pulte.

But now Lisa Cook's counsel has been notified, Eric, that the government may try to, the president may try to remove her for cause again. And he, and her counsel has responded to the White House notification thereof.

Eric, what does counsel have to say about this important action to support the unity of the executive and the president's ability to make sure that, you know, members of the Fed don't engage in mortgage fraud?

Eric Columbus: So, his letter, Abby Lowell is representing her, Lisa Cook, and he gives what I, I believe is the first detailed… It’s, well, it's not brief, but the first detailed description on behalf of Lisa Cook about why she did not do anything wrong. And he says that it was an inadvertent oversight, that she had checked a box saying that something was her, her primary residence when it was not and that she did, did not, had not actually had in fact rented it out and that the Bill Pulte and other folks saying that she, well, she didn't report her rental out income. It's because there was in fact no rental income.

And then there's a line in the, in the letter, Abby Lowell says, "The president should know firsthand that listing two properties as a primary residence does not show intentional wrongdoing or demonstrate, [quote] 'unfitness for office.'" And then sh- he talks about how Trump did the same thing himself in, apparently in 1993, and that there have been reports that numerous, like maybe four other folks in the administration the cabinet have inadvertently or not done similar things and that, including attorney gen- the attorney general. And Lowell points out that obviously none of those folks have been fired or otherwise pursued for doing the same thing as Lisa Cook, and that it's ridiculous to suggest that what she did makes her unfit for office.

Benjamin Wittes: Well, I will just say, as somebody who has many primary residences, wherever I am is my primary residence. You know, seems right to me.

[Outro]

This podcast is part of Lawfare's live stream series, Lawfare Live: The Trials and Tribulations of the Trump Administration. Subscribe to Lawfare's YouTube page to receive an alert the next time we go live.

Thanks to Kate Klonick, whose primary residences range from Brooklyn to Paris. Thanks to Anna Bower, who has only one primary residence, but it is a palatial mansion with so many rooms that you can get lost just thinking about it. Thanks to Molly Roberts, whose palatial mansion has rooms in Washington, D.C. and in Maine. And so, if you say your primary residence is in Maine you might get caught for mortgage fraud. And of course, Eric Columbus whose primary residence is in D.C., but who someti- sometimes migrates to Poughkeepsie, New York.

The Lawfare Podcast is produced by the Lawfare Institute, and you can get ad-free versions of this and other Lawfare podcasts by becoming a material supporter at our website, lawfaremedia.org/support. And you should do that, folks, because, you know, you can get indicted in federal court for providing material support to terrorists or to terrorism, but you can only get praise, warmth, and gratitude by providing material support to nonprofit publications focused on national security and the law. You'll also get access to special events and other content available only to our supporters.

The podcast is edited by Goat Rodeo, and our audio engine- audio engineer this episode was the long-suffering Anna Hickey of Lawfare, who has primary residences in so many places that Bil- Bill Pulte can't even hunt down the paperwork on it. Our theme music is from Alibi Music, of course. And as always, thanks for listening.