Lawfare Daily: The Trials of the Trump Administration, Dec. 12

[Intro]

Benjamin Wittes: It is Friday, December 12th, 2025. It is 4:04 PM in Washington D.C. and you are watching Lawfare Live, our weekly roundup of all the mishigas that takes place in United States, federal courts, and elsewhere involving litigation over the Trump trials and tribulations.

I'm Benjamin Wittes, editor in chief of Lawfare, and I am here with not one, not two, but three Lawfare senior editors, Anna Bower, Eric Columbus, and Molly Roberts, and one Lawfare Public Service Fellow Lauren Voss.

[Main Podcast]

Hello all. Anna, get us started.

Anna Bower: So many developments in these cases for J.G.G., as Ben was saying, for those who don't remember, this is the case before Judge Boasberg in D.C. that involved the Alien Enemies Act planes that Judge Boasberg said, you know, “Drew Ensign, make sure that those planes, if they're already in the air, they're returned to the United States.” And then he issued a written order to that effect.

Planes took off anyway and continued on to El Salvador or El Salvador after stopping in a third country at one point. And Judge Boasberg, you know,initiated contempt proceedings. There was a whole appeal up to the D.C. circuit that then went en banc.

Initia—eventually it came back to Judge Boasberg to continue his probable cause proceedings. And as a result, this week, Judge Boasberg, ruled and ordered that—sorry the chaos in the guest appearances are kind of, tripping me up and it's so funny, so apologies that I'm doing a terrible job explaining this.

But Judge Boasberg this week ordered that Drew Ensign and also Erez Reuveni, who's a former DOJ employee who is now a whistleblower who's you know, come forward with a number of allegations regarding what happened related to the this litigation, both of those folks were ordered to testify on Monday and Tuesday of this coming week, that then set off a race by the government to try to put a stop to this testimony.

So first they asked Judge Boasberg to stay the testimony, and also to reconsider his order basically saying, you know, this is inappropriate. You don't have the power to initiate this kind of fact-finding proceeding, those kinds of things. And Judge Boasberg said, no, actually I want to move forward with this.

You know, I want to look at this question of willfulness because I'd asked the government to identify the decisionmakers and set forth some facts in these declarations, and I didn't really get much of a response because everyone who filed a declaration basically just said, you know, the most basic thing that they could, and then invoked attorney-client privilege.

So he wants to move forward with this and denied the motion for reconsideration to put a stop to this testimony. Meanwhile, the government has now gone up to the DC circuit seeking a writ of mandamus, which is a type of really extraordinary type of relief in which you can get a, an appeals court to kind of compel a district judge to do what they are required to do by law.

Here, the government is basically arguing those same kinds of arguments that Judge Boaserg's order to compel the testimony’s inappropriate, there's attorney-client privilege issues here, there's no further fact-finding that he needs to do, and then they also cite as well to one part of the original Order on appeal before the three judge panel where Judge Katsas, although not joined on this point by the two other judges, Judge Katsas said, you know, as a matter of law I don't think that it's possible that this could lead to a contempt prosecution because the order was too ambiguous regarding the return of the planes.

So they say as a matter of law, you know, this shouldn't proceed. All makes all those arguments. So that is now on appeal. And we are waiting to see, I don't think we have yet an order on a stay, an administrative stay from the DC circuit. I presume though, that we will probably see one coming quite soon. Someone correct me if in real time, we've had an order in the past, you know, 30 minutes, the last time I checked.

But that's what's happening now, Ben. So it's possible this testimony could go forward on Monday and Tuesday, which will be quite extraordinary. I plan to be there if it does, but it seems like right now we're kind of in this limbo where we're waiting to see what the DC circuit's going to do. And I will add, to that end, that I believe the panel this month involves Judge Katsas and Judge Rao again, who last time expressed some, you know, as I said, Katsas said this couldn't lead to contempt prosecution anyway.

But Judge Rao also seemed to express some reservations about the way that Judge Boasberg was handling the whole saga. So we'll see what happens.

Benjamin Wittes: So right now what's going on is that Judge Boasberg is holding, is getting ready to hire, hold these hearings. There's scheduled to be one Tuesday, but it could get stayed or mandamus at any time by the D.C. Circuit.

Is that a fair summary?

Anna Bower: That's a very fair summary and I would expect that we're going to see at least an administrative stay while the D.C. Circuit considers this. If not, you know, kind of eventual longer—an order that actually either puts this off for a longer period of time or that says, you know, but you can't compel these people to testify.

So we'll see.

Benjamin Wittes: Alright. So, speaking of cases that once were daily fare on this show and or weekly fare and now are a little bit more occasional, there has been a lot of action in the Kmar Abrego Garcia case, and at least the last time I checked, he was a free man. Is that still true?

Anna Bower: As, as of right now, it seems that he is still a free, free man.

So, and things are moving very quickly in this litigation as well. Right now this is, we're gonna start with the Abrego Garcia civil case. Because remember there's two, there's the criminal case in Tennessee. There's also the civil case before Judge Xinis, which was, you know, Abrigo Garcia trying to get released from immigration detention making a number of constitutional claims and other claims regarding why he should be released from ICE custody, which he's been in since he was released from criminal custody after he returned to the United States from El Salvador.

And Judge Xinis after a long process of, you know, it was kind of like playing whack-a-mole in this case. Like the government would say, oh, we plan to remove Abrego Garcia to this country, and then they would change which country they wanted to move him to.

And so then Judge Xinis would have to have more factual, find, more fact-finding on that. There would be additional motions and litigation over it. It all was very long and drawn out because of some of those issues. But Judge Xinis finally issued her ruling in which she said yeah, I'm ordering Mr. Abrego Garcia to be immediately released.

The first key reason why she orders his release, Ben, is because it turns out that there was never an order of removal for Abrego Garcia. So you might remember there's like, been this kind of whole issue over, in some of these hearings that Judge Xinis has had, she's asked government counsel or counsel have asked the witnesses who have appeared, have you ever seen an order of removal from Mr. Abrego Garcia?

And no one could cite to having seen one or whether there was one in his immigration file. And so as a result, she says, you know, there is no order of removal. And so there's, you know, no basis to continuing to hold him for removal, which is why—the reason you've cited why you're holding him is because you want to remove him to a third country.

So there's that. And then there's also a secondary kind of alternative basis in which he said like, even if there was an order of removal, you know, there’s still due process issues. And she cites to this Supreme Court case that we've talked about before. Is that Zadvydas? Am I pronouncing that correctly?

Hopefully.

Benjamin Wittes: I've always pronounced it Zadvydas, but—

Anna Bower: Oh, Zadvydas.

Benjamin Wittes: My Lithuanian pronunciation is not known to be superb.

Eric Columbus: I've heard it pronounced Zadvydas. So there's so many.

Anna Bower: Oh, okay. Well, I am real confused now. That's a—thank you, Eric.

But so she cites to that case and says, and in which it's basically the general gist of it is like you can't indefinitely detain someone for removal if you're not taking, you know, steps to actually remove them.

And the court set out this kind of presumption of like, you know, after you get past six months, it kind of, there's a presumption that the detention is unreasonable and that kind of thing. So, citing to that case that no one knows how to pronounce—so write in, folks, if you do know the correct pronunciation.

Benjamin Wittes: Particularly if you are or speak Lithuanian, since Mr. Zadvydas or Zadvydas or Zadvydas was Lithuanian, although he was stateless, if my memory of the case serves, which is why he could not be deported to anywhere. But he was Lithuanian by birth, anyway.

Anna Bower: Well, okay. Thanks for the background, Ben. But citing to that case as a kind of alternative basis Judge Xinis says even if there is an order of removal, you know, the, there would be due process issues and I, he should be released.

And so Abrego Garcia sure enough is released yesterday afternoon. Meanwhile, there are additional developments that happen within hours after his release. This order comes out in which Judge Xinis says there is no order of removal.

And sure enough, an immigration judge then issues a new order that is titled as like a notice of correction of a scrivener's error, which is like a kind of like, you know, if there's some kind of error that's like a, you know, typos or technical errors in a ruling or an order typically that's the kind of thing that you would issue to correct those errors.

Here what the immigration judge does, is say, oh, back in 2019, this order of removal was accidentally omitted from Mr. Abrigo Garcia's case. So, this notice is to correct that error an effective, you know, October of 2019 or whenever it was, the original immigration proceeding occurred.

There's now an order of removal. And then the government asks Abrego Garcia to show up for supervision, immigration supervision the next morning at 8:00 AM. So this tips off a counsel for Abrego to the idea that, oh they might try to redetain Abrego Garcia during this immigration meeting the next morning based on this kind of notice of correction that the immigration judge issues.

So they go to court, say to Judge Xinis, we want a temporary restraining order to prevent his redetention during this immigration meeting. And Judge Xinis grants it, sets a briefing schedule, says you can't redetain him and remove him from the continental United States while this is proceeding.

And Ben, I will also mention as well, you know, it's been clear throughout this whole thing that Judge Xinis is like just to the end of her rope in terms of like, like the fact that the government is just doing so much gamesmanship here in terms of, you know, seeming to mislead her, not providing any kind of, you know, real factual basis for things like doing all types of different things that really seems to suggest that they're mis—intentionally misleading the court.

And she says exactly that.

Benjamin Wittes: Well, this is of course a big theme before Judge Boasberg in J.G.G. as well,

Anna Bower: Right? Right. Exactly. And Judge Xinis, in the course of these orders that over the past few days, whether it's the, you know, memorandum opinion about Abrego’s habeas petition, whether it is her latest order about the temporary issuing, a temporary restraining order for his read attention, she over and over again makes the point of calling this kind of behavior out at one point.

For example, in the memorandum opinion that she issued yesterday for his release, she quite literally says that the government affirmatively misled the court because there was this whole thing with they, they claimed that Costa Rica would no longer accept Abrigo Garcia, when in fact a Costa Rican official for the government came out and said, what are you talking about? We, we haven't changed. We would still accept Mr. Abrego Garcia.

So she cites conduct like that. You know, over and over again, she is pointing to and developing this record of all the instances here that the government has just acted with a true, you know, disregard for the court's authority.

Benjamin Wittes: And just to follow up on that, in the case of Judge Boasberg, we know what he wants this to lead to, right? He's got this contempt proceeding, and the relevant question is whether he will be allowed to go forward with it or not. In the case of Judge Xinis, I don't have a sense of what in her, in the Abrego Garcia matter it's leading toward, if anything.

Do you?

Anna Bower: No, I don't. I mean, I think that like, part of the reason why she's raising these things has to do with the substance of the case, right? Because she's trying to point to the idea that the government, at every turn, like it's been trying to say it has some real intention or real plan for Abrego Garcia.

And it's doing that because of what I raised earlier about Zadvydas regarding, you know, you can't just kind of like indefinitely detain someone without actually taking real steps to try to remove them. And so she's trying to show that like all of these things were just kind of a shell game for, we want to try to give the court enough to keep him in detention, but it's not real, that it's all a facade, right?

So that's part of why she is specifically raising these issues. But I also, you know, I, you're right. I don't know beyond that, like, and I think that maybe there would have to be a motion for sanctions from the plaintiffs before she initiated anything like what Judge Boasberg has done.

But here, you know, the conduct of the government really does relate to the substance of Abrego Garcia's case. And so that's one reason why she's been raising these issues.

Benjamin Wittes: Alright, so basically status quo ante. Abrego is free until you get an alert on your phone that says he's been re-detained, and Judge Boasberg is holding a hearing on Tuesday until you get an alert from your phone that says the D.C. Circuit has slapped an administrative stay.

Anna Bower: Right. Exactly. And you know, I will mention like, I mean, look, the guy was sent to a gulag in El Salvador back in March. He then was brought back to the United States, put in criminal custody immediately, and then immediately went to, well, I think there was maybe one, one-day gap, immediately then transferred to immigration detention.

So this is the first time this man has been, you know, really at home with his family after many months of being wrongfully deported to El Salvador. So it is a really remarkable development. We will keep watching it—

Benjamin Wittes: For however long it lasts.

Anna Bower And there's, and there are also developments though in the criminal case that I think are worth mentioning.

Benjamin Wittes: Yeah. So let's talk about that. When last we touched base with the criminal case, there was an ongoing vindictive selective prosecution motion to dismiss, which I think was sort of the fourth most compelling of those motions ever filed in the history of the United States after three, or two or three others that were filed this year.

What do you, what is the current—there was an order a, an order on discovery that found a—not probable cause, but a, but—I'm losing my words. There's, so there's, yeah. So prima facie, well, yeah, there's a prima facie case of yes, vindictiveness. So, and then there was a series of discovery disputes that, and then I kind of lost track of things.

So where are we now?

Anna Bower: Yeah, so Ben, there is an alternate universe somewhere in which I'd be sitting here having just come back from Nashville this week for a vindictive or selective prosecution evidentiary hearing. Because the posture that we're at is Judge Crenshaw said, I feel like there's a prima facie case of vindictiveness.

But that means what we do now is open up for an evidentiary hearing, and then the government has an opportunity to kind of rebut this presumption of vindictiveness. And as a result, we were supposed to have a hearing.

Initially, the government said that the U.S. attorney himself, McGuire, Robert McGuire would testify that there an HSI agent who was on the case, was supposed to testify.

And then the defendant, Abrego Garcia also com—was trying to compel Todd Blanche to testify. And there was a subsequent motion to quash that's been pending. And then there's this discovery issue that has kind of taken place be behind closed doors because a lot of the filings have been sealed.

The defense said like, you know, the government has like 3000 pages of documents that they say they have, but they're attorney-client privilege. But you know, we think that these things should be you know, handed over to the defense or review, at least reviewed in camera. So Judge Crenshaw said, okay, I am going to have the government hand over these documents and I'll review them in chambers, and then I'll kind of rule on whether any of these need to be produced to the defense. So that was ongoing. Now we have this like issue where it's like a bunch of this is happening under seal, so we're not really sure what's going on, but the most recent public happening related to it is Judge Crenshaw canceled the evidentiary hearing that was supposed to move forward.

And then this week said you know, there are these six documents that I want the government to turn over to the defense. But we don't know what those documents are. And you know, there's still, so there it is still kind of confusing in terms of like, we don't really know what's going on, but the evidentiary hearing was canceled. It's not clear whether or when it will be rescheduled for.

Benjamin Wittes: Alright. With that, let us turn to Eric Columbus. To discuss the case of the awesomely named Faustino Pablo Pablo. And let's start with who our who he is. Who are we talking about here, and what is his case about?

Eric Columbus: So this is one to watch because it is very similar, sadly to the facts of Mr. Abrego Garcia.

Faustino Pablo Pablo is a Guatemalan citizen who came to the U.S. to seek asylum. He was apparently unsuccessful in, in getting any permanent, any ability to remain in the United States, but he did win withholding of removal to Guatemala. He's under the—the immigration judge concluded it was more lucky than not that he would be tortured in Guatemala by the Guatemala government or with its acquiescence if he was sent back there.

Benjamin Wittes: And why is that not per se a basis for asylum?

Eric Columbus: You are now, have now exceeded my knowledge of—

Benjamin Wittes: Because I would think that the very definition of a valid asylum claim is if you are more likely than not to be tortured.

Eric Columbus: True. But we do have a third-party removal ability, which, you know, precisely was what we're seeing with Abrego Garcia. In that he cannot be sent back to El Salvador, but he could be sent to somewhere else, like—and he has suggested Costa Rica and, but the government is like, no. That is not sufficiently sadistic for us. We want to do, right—

Benjamin Wittes: We want Liberia.

Eric Columbus: Yeah. So Mr. Pablo won withholding of removal from Guatemala. He lived in California for a decade and would report to immigration officials periodically. On last month, November 5th I detained him at a regular check-in appointment without any notice apparently.

And two weeks later, he was—or, I think, maybe two and a half weeks later, he was deported to, guess where?

Got it. And his lawyers are now trying to get him back. And the court, they've been, and the government has been contesting the jurisdiction of the court and the district court in the Western District of Texas where Judge Guaderrama, who is at a Obama appointee basically rejected the arguments of the government and cited the holdings in the Abrego Garcia case that basically sliced through kind of the Gordian knots of jurisdiction and said, you know, we're not, even if there's no ability to challenge his detention, he can still challenge the, quote, blatant lawlessness of his removal.

And the court ordered him to order the government to facilitate his return, which I believe using the words that the Supreme Court had used in Abrego Garcia by a deadline of today at 11:59 PM Mountain Standard Time.

Benjamin Wittes: And do we have any idea whether the government has taken any steps or plans to take any steps before midnight Mountain Time? I have not seen any.

Eric Columbus: I have not seen any indication either way. So it's okay. It will escalate if that does not happen by today.

Benjamin Wittes: Alright. So here's a name we haven't heard in a while. Rumeysa Ozturk. And apparently there have been some developments in her case as well.

She is, people will remember, the Tufts student who was—she's Turkish and was detained as a result of an op-ed that she may have, or she contributed to. She was one of you know, several authors on—what is the latest with her?

Eric Columbus: This is a nice example of audience interaction in that this development came to my attention by reading an article—rather, a post linking to an article—written by, I believe, someone who I believe is listening right now.

John Hawkinson for Cambridge Day. He's been following this case and a lot of these cases quite closely. And as he reported, a district court in Massachusetts issued a preliminary injunction that required the government to restore her status in the federal Student and Exchange Visitor Information System database, which is known as SEVIS, which controls whether she's allowed to legally work in the United States.

And the judge kind of tiptoed around the, what I think for most of us would be kind of the thing of the heart of the issue. The First Amendment issues, challenges that she raised. The judge did not address those at all, but instead found her termination in the database was likely arbitrary and capricious, because the government had been offering shifting explanations over the course of the litigation as to why she had been terminated, as to how it was consistent with the fact that her visa was not, in fact, terminated.

And it was all just very kind of chaotic on the part of the government—which, you know, somehow seems to reflect the manner in which they've approached so many of these these, I guess you'd call them ideological deportation cases, usually involving people who have advocated on behalf of Palest—Palestinians in regard to Israel's operations in Gaza.

So the government is still trying to kick her out of the country, but for now she can resume her normal graduate work at Tufts University.

Benjamin Wittes: Alright so, let us turn from the subject of people we are trying to deport and courts that are, to people we are trying to put on the streets of the United States in uniform, either because they are domestic National Guard, or because they are troops, regular troops.

Loren Voss, we haven't heard from Judge Breyer in a while, but he, he's back.

Loren Voss: Yes, he's back. And the thing that we've all been waiting for has finally happened, where all of the cases are starting to congeal into like a Frankenstein monster. But yeah.

Benjamin Wittes: Right, so this is the Los Angeles case and the Portland.

Loren Voss: Yeah, so he references both the Portland case, because California National Guard have gone to Portland, and then he also references the Chicago case, because we're waiting for the Supreme Court to tell us the meaning of regular forces.

So it's all starting to—I mean, we're going to need a whiteboard next time, but it's all starting to come together

Benjamin Wittes: And the whiteboard is going to look like, you know, a paranoid, crazy person drawing connections between things.

Loren Voss: That's how all my whiteboards look, but yes,

Benjamin Wittes: Not because you're actually crazy, just because it's that complicated.

Loren Voss: It really, it really is. I always had a Word document, but it was like 20 pages, right. And at that point, it's hard to follow.

So I think crazy di—, you know, diagrams on whiteboards are the way to go.

So, yeah. So Judge Breyer—

Benjamin Wittes: Diagrams make some really good backgrounds.

Loren Voss: Oh, yes. Okay, I can make that happen. I could do that.

Benjamin Wittes: You could have one in the back of you and, you know, draw lines and—

Loren Voss: I want that, stick to the wall. Yeah. Okay. Yeah, I think we can do that.

Benjamin Wittes: It can be kind of your trademark.

Loren Voss: I don’t know if that's what I want.

Yeah. So Judge Breyer—

Benjamin Wittes: What did Judge Breyer, what's going on in his court?

Loren Voss: Yeah. Okay. So to remind people for Los Angeles we had a TRO to stop the federalization of the California National Guard and return the control to California that was administratively stayed by the Ninth Circuit.

That was the denial to rehear en banc. And then there was a hearing on 22 October. We're waiting to see what comes out of that. But then there was a separate district court injunction, right? And that was the one case that we have that's actually dealt with, like, what are the troops doing on the ground?

And that was the one that said, the troops can't take any action that violates the Posse Comitatus Act without a valid Posse Comitatus exception. Right? That was the one where we, you know, they were doing things on the ground and they were like, oh, we heard that there's a presidential exception. That one was also administratively stayed by the Ninth Circuit.

Newsom then tried to do a renewed motion for an injunction because there was a new federalization order. So the first one only went to August. So June to August. And so a new one came out in August trying to extend the California National Guard. Our last update on that was the ninth Circuit panel saying, oh, whoa, we don't have jurisdiction over this.

That should go back to the district court. We're only dealing with these other very narrow issues. So Judge Breyer put out his decision on that injunctive relief on the 10th. And it did start pulling all the cases together, right. So he first, at the conclusion upfront he grants a preliminary injunction.

So he's, he enjoins the government from deploying members of the California National Guard in Los Angeles, and he directs them to return control of the California National Guard back to the governor. He stayed that until the 15th of December, Monday, so that the government can appeal. There's now two federalization orders that are at play in this case.

And so we have the original Federalization order and what we'll call federalization order number two, which came out in August, and federalization order number three, which came out in October. So basically the government keeps extending California National Guard. We're talking about 300 troops right now.

So he's talking about both of these federalization orders and trying to assess them. And once again, we're back to 12406, really focused on that section three, right? Unable with the regular forces to execute the laws of the United States. Unlike some of the other situations, they didn't really make the danger of rebellion situation here.

So the government of course argued that after the initial federalization all the extensions of federalization orders are unreviewable forever, right? Like it's done. That is not what Judge Breyer decided. So he then walks through—he uses the Ninth Circuit meaning of unable, ou know, which is significantly impeded but not actually unable.

He does reference Judge Berzon’s statement in the denial of the rehearing en banc. When he says unable should mean unable, and the statute doesn't say interference or significant impediments. But he is applying the appropriate Ninth Circuit meaning of significantly impeded.

And remember here the Ninth Circuit said that the standard that we're applying here is that the court can review the president's determination to ensure that it reflects a colorable assessment of the facts and the law within a range of honest judgment.

But he points out that this provision in the statute is an ‘is’ statement, not a ‘was ‘statement in 12406, right. So you have to show that the president is unable current-day, currently, when the federalization order comes out.

Benjamin Wittes: Right. Is a present tense issue. Yep. Right. It reflects current conditions. Not that at some point in Portland, things really might have sucked.

Loren Voss: Right. And so this makes it very helpful that there are specific federalization orders in these number two and number three to look at, so he can point to these specific points in time. You know, he says you can talk about past events, but you have to link that past event to your present inability to execute the law.

And that risk is not enough, especially when the argument is that people are peacefully exercising a fundamental right to protest, right? And so there may be a risk of getting, of people getting violent in any protest, but that doesn't justify the federal use of military forces. And at subsection three, the one we're talking about here, is unlike one in two in 12406 where it doesn't include a danger, there is no—so there's a danger of invasion or rebellion, but there is no danger of being unable to execute the laws.

So it's, is current tense and what's going on right now. He actually says that the government's assertion that there's an inability to execute the law that remains in California is not only unsupported, but it actually borders on a misrepresentation. So he is pretty harsh on the facts as they present themselves.

So we have the August 5th order, and he said—right, so on August 5th, he's like, the most recent violence event was July 10th. It was 50 miles away and a crowd threw rocks.

For the October 16th order, you know, it's even more removed from that original unrest in June. And that there was two incidents. In October, a gang member threatened a federal law enforcement agent in a federal building. He did not escalate, and then he left, so didn't actually turn violent. And then another protester shined a high-power laser into a federal officer's eyes.

He says the test is not a threat to individual officers, it's whether the president is unable to execute the laws, right. So those are, you know, individual threats. And that the October order that re federalized the National Guard for those 300 troops actually as part of that same order, took 200 of those troops and immediately said they were going to Oregon.

Granted, they were already deployed to Oregon, just not on, on the ground. But that order was already showing, the argument is, that 200 of those were not imminently needed to enforce the law in California. And then he points out that, you know, Judge Immergut held that the events in Oregon did not justify the deployment of National Guard.

So he points to both what's happening on the ground in California and what's happening in Oregon for that third order. He walks through the unable with regular forces. This is when we get to pull in what's happening at the Supreme Court in Illinois. He's now decided that after a review of the materials that regular forces means regular forces of the military.

He was persuaded by Marty Lederman’s arguments. But he is waiting for SCOTUS to determine the meaning of that phrase in the Illinois v. Trump case that's at them right now. So he says, I'm going to apply both meanings the meaning I applied in the TRO, which was civilian law enforcement, and I'll apply at the federal military provision.

He says, there's 7,300 members of the Army in California right now. You know, taking aside the issue of whether or not with the PCA, they could deploy, he's sure that 7 hundred and—or 7,000 Army people could deal with this. And then he also walks through that the civilian law enforcement could execute the laws too.

So, this kind of, though, it gets back to the point that we talked about a couple weeks ago, because it's not just a question of changing circumstances on the ground in Los Angeles, it's also a question of how frequently you could change, you could challenge federalization based on changing facts, right?

Could that be a weekly challenge? Whatever. So Breyer says if the exigency is over and the president refuses to relinquish control over state's National Guard, the state can seek court review of whether the preconditions are still met. You know, with all the appropriate deferences, a Ninth Circuit has determined that you should give to the president.

So, but the limiting factor still isn't identified here. But Breyer says it's not the situation here because in this situation at least he has new federalization orders, so he could focus on those versus an extended federalization period of service. But then what you could see is a long federalization order.

So not a 60 day or 90 day, but you could see like a one-year federalization order, and then this question continue to come up. And then you also just have the question of, you know, can you federalize for one situation like LA under 12406 and then redeploy to other locations? Because Breyer looks at this for the third order ,where they're immediately moved, but actually during the second order is when some of 'em were moved over.

And there's a weird question of could you federalize for one purpose and then at some point during that federalization move elsewhere? You know, he puts in the beginning of his opinion, you know, what's happening here is the creation of a national police force by state troops.

And that's what the president's creating. And so, you know, that's not, I think that's not what anyone wants, but there's still some interesting legal questions on if you could find a reason to federalize them that was legal, but then move them after that point. And so we just don't have those facts in front of us right now.

But, so we are waiting for the government to appeal by Monday, and we'll see where it goes from there.

Benjamin Wittes: Alright. Meanwhile, at the Ninth Circuit in the Oregon case, we have an opinion from a name that will be a deep cut to some members of this audience, which is Judge Jay Bybee, who of course is most famous for being the at least titular author of the Torture Memos which are more commonly associated with John Yoo, the Berkeley Law professor, but actually bear the name of Jay Bybee, when he was John Yoo's boss as the head of OLC.

He was subsequently confirmed to the Ninth Circuit and now has raised questions about whether a, apparently if you apply they could apply techniques understood to be torture by many without violating the law, but they might not be able to be deployed as in Portland at all.

Is that fair? No, it's totally unfair, actually. But what did Jay Bybee do?

Loren Voss: Yeah, so I was skeptical at first, but it's worth reading if people have the time. So remember here this is the Oregon v. Trump case. In this case, the Ninth Circuit did agree to rehear it en banc and that was back in October.

So, Bybee has written a statement in support of this en banc review, and so the order is now modified with the statement. Judge Chung also wrote one as well. So he said that it's not unprecedented to write like this. We were having a discussion of like, okay, well when has this happened before? And his citation is to five examples in the last 50 years. And I'm not sure if there's more, but it might be that narrow.

So he, he says a couple interesting things. So one is, he's challenging the level of deference that's given to the president the Ninth Circuit set. Remember this colorable assessment of the facts within a range of honest judgment. But that's because he thinks it doesn't reflect a constitution's allocation of authority over domestic violence between the states and the United States.

And you're like, okay, where is this coming from?

Benjamin Wittes: So he—and the first, and just earlier when he says domestic violence here, we're not talking about battered spouses, right? We're talking about violence in the domestic, as in at home within the United States rather than overseas.

Loren Voss: Yes. So, riot, you know, riots, insurrection, violent protests, you know, the range of things that might occur.

And so he refers to it as the Domestic Violence Clause. Most of us probably know it better as the Guarantee Clause. But that's the, you know, the United States shall guarantee to every state in the union or Republican form of government and shall protect each of them against the invasion. The part that people don't talk about is the second part of that which is, and on application of the legislature or the executive, when the legislature cannot be convened against domestic violence.

So he brings this up. And then obviously we have the Militia Clause, which we've talked about a couple times here, right? So Cong—you know, Congress has the power to provide for the calling forth of the militia for the three reasons, execute the laws of the unions, depress insurrections and repel invasions, right?

And so we'd be talking about, you know, not the repelling invasions, but the execute the law or suppressant insurrections. So what Bybee is arguing is that the Domestic Violence Clause is a limitation on the Militia Clause. So Congress can delegate this power to the president, but the president cannot act against domestic violence with the militia unless he has the approval of the state.

So he does a historical review. When you guys hear that phrase, I hope that you were thinking, the first thing that I was like, what does that mean for the Insurrection Act? Especially 252 and 253, which don't require state approval. And we've used many, you know, we've used a number of times.

So he does a historical review. And he specifically, he goes all the way back. So, you know, you can read that portion, but to our conversation today, he talks about the 14th Amendment and the Insurrection Act during desegregation and talks about that this is in response to direct and active resistance to federal law and define federal desegregation orders at a public school, right?

So he says there's an exception for open subversion of federal law. So no state request is constitutionally required on the Domestic Violence Clause because the source of the domestic violence was the state itself.

So to clarify, he's saying the rule that he reads out the Domestic Violence Clause and the Militia Clause is that state governments must request assistance as a necessary precondition to have a federalized deployment of the militia in response to domestic disturbances.

But the 14th amendment is an exception to that rule. So if states are actively opposing or resisting the enforcement of the laws in violence of either Privileges and Immunities, Due Process or Equal Protection Clauses, the federal government can deploy troops to execute the laws of the United States.

But the specific quote that I found interesting is he says, the Domestic Violence Clause provides no basis for objection when the states themselves are the source of, or have acquiesced in the unrest. Right? And so I, there's some room there. And this has come up, you know, in the Illinois case about, is the local government impeding federal law enforcement?

Are they, you know, doing things to slow them down, stop them, purposely impede federal law? And so you could see an argument still being made on that basis. So there's an exception here. This is really novel. And I think people haven't had much time to think about it yet, and so we'll see where it goes.

But he also does argue that, at a minimum, courts should be able to review the president's decision especially if the reasons are pretextual. But once again, we're talking about the standards on a, like whether you can use troops. Not on the how, right. And that will probably be more deferential if we get to the how part.

And he has this like three-step burden-shifting scheme. I won't walk through all of it now because I know we're a little bit short on time, but I'd say it's, it is somewhat similar to what the Seventh Circuit has already done, right? The president has to say what precondition he's invoking and what the facts are.

The state can try to show by a preponderance of evidence that factual precondition is not met. Then the—and if they can, then it's back to the president and he has to say, you know, I have the statutory and constitutional power to do this. And then the courts can consider from do and do that from there.

But they, he wants the courts to determine if there was a pretext for an unlawful purpose and that he says at a minimum that's what needs to be done. You know, I would argue the Ninth Circuit standard already, you know, which ends in, you know, a range of honest judgment should already include that. Was this pretextual, was this, you know, a decision in good faith.

But I think he makes a fair point that you haven't really seen that analysis detailed in the opinions yet. So I think it's an important thing to flag, but I wouldn't say that it necessarily needs to change what the Ninth Circuit's standard is yet.

So, fascinating argument out there. I'm sure all the constitutional scholars are in a tizzy.

Benjamin Wittes: And so we'll see it's kind of like the Marty Lederman argument, it just kind of opens up a new lens on the question that, you know, makes it interesting.

Loren Voss: The en banc review will obviously address this, so we'll see what happens.

Benjamin Wittes: Alright. Let us turn to everybody's favorite part of the show: the unlawfully appointed U.S. attorneys part of the show.

And we're going to start today with Lindsay Halligan, but we're going to do some Alina Habba in there.

Anna Bower, get us started. My friend Dan Richman has been litigating to get his stuff back. And by stuff, I mean, you know, all the stuff that was on his computer when the FBI came and took it. And this could have significant implications for any effort to refile a case against Jim Comey.

What is Dan up to and is he getting any traction?

Anna Bower: Yeah, he's definitely getting traction. So, keep in mind, remember the context here. Years and years ago, the government was investigating a different set of predicate potential or alleged crimes. The end, as a result, Richmond's devices were seized and searched.

Years later, now, in relation to the James Comey matter, the government then re-searched and restarted rummaging through Richmond's materials again without getting a new warrant. That caused in the Comey case, when it was still pending and before it was dismissed, the magistrate judge raised concerns that, you know, this was all being done in violation of the Fourth Amendment.

Case is dismissed. Richmond brings a Rule 41(g) motion for the return of his property. That is a rule under the Federal Rules of Criminal procedure that allows someone who's a aggrieved by an unlawful search and seizure to try to get their stuff back. There were some weird stuff going on in this case, Ben, because it's filed in D.C. and it goes to Judge Kollar-Kotelly.

It's filed just before Thanksgiving. And the government, like, you know, over a week goes by and I think it's like maybe over 10 days go by and the government still has not even had anyone who's filed a notice of appearance in the case.

So the judge doesn't know, you know—it's clear by then Richman said he was going to file a motion for a TRO. The judge directed him to file one. He then files one and still there's no response from the government, and not even an attorney of record really, that it was showed up in the case.

So it, it seems like, you know, it's what's going on here. Like, why is there no response from the government? So what Judge Kollar-Kotelly goes ahead and does is enter a very narrow temporary restraining order.

It seems like it's geared towards, you know, encouraging the government to file a notice of appearance and actually respond to this thing, 'cause they were dragging their feet. So she enters this order saying, I want you guys to segregate these materials and then don't access them unless you seek order from, seek an order from the court first.

And then she tells them, you know, get some, get somebody to actually, like, file a notice here and let's get going on this. So the government does.

Ultimately, in the past, you know, few days has had some action and has filed a response. Interestingly, the people who are handling this, even though it's in D.C., it's the people who are signing these filings. It's Lindsey Halligan and then it's Robert McBride, who's her new first assistant over in EDVA, and it's Todd Blanche.

Those are the people who are on the filings. And Halligan and McBride have also filed notices of appearance in the case. But they respond to Richmond's motion for a TRO. They also seek a mo—they file a motion to dissolve the TRO that Judge Kollar-Kotelly did enter.

And there's a few interesting things in this filing. So the gist of it is that they're saying you know, a court can't enjoin the government from pursuing a criminal prosecution. And a litigant like Dan Richman can't use civil litigation to try to put a stop to government's, the government's criminal investigation.

The irony of that being, Ben, as you might remember, Trump himself used civil litigation to try to delay a federal prosecution or a federal criminal investigation. That, of course, being in the classified documents case when he went to Judge Cannon and asked for, you know, an injunction to, you know, put a stop to the government's investigation in that case, which he successfully delayed for several months until the Eleventh Circuit intervened.

That was in a very different context, though not under a Rule 41(g) context. And also Donald Trump was the target or the subject of that criminal investigation, whereas here, Dan Richman is simply a witness. So he does not have, like a criminal defendant would, you know, the ability to seek a remedy for his, a potential violation of his constitutional rights by a suppression motion. Instead, rule 41(g) is supposed to be one of the mechanisms that a person who is the victim of an unlawful search or seizure can seek the return of their property and vindicate their privacy interests.

And so that is exactly what Richmond kind of argues in his reply motion. That was just filed, I believe it was yesterday. And I think it's a pretty compelling reply in that, you know, he kind of goes through all the different ways in which the government is portraying things in a way that don't really match up with kind of what's really going on here. You know, they're trying to suggest that there's no harm to rich men because it's not a harm to be a witness in a potential criminal prosecution, but the response to that is, well, no, the harm isn't being a witness—it's that there's an ongoing violation of Richman’s Fourth Amendment rights because they're going through his stuff without having lawful authority to do that, and they've held onto this stuff for years and then never, you know, bothered to try to seek a new warrant or follow a lawful way to go through it.

So where we're at now, Ben, is that this stuff, you know, Richmond's filed his reply. The government has its motion to dissolve the temporary restraining order. They're claiming that this has hamstringed the Comey prosecution and their efforts to you know, potentially pursue a further indictment.

And we will see what happens or waiting for the judge to issue you know, a further order or maybe there will be a hearing. There's not been a hearing set yet. But right now, there is an order that prevents the government from accessing those materials of Richman's. And the government says it's complying with that order, so it seems that this really has potentially put a stop to efforts to re-indict Comey. But that doesn't mean, of course, that the government, you know, maybe this motion this TRO is dissolved. Maybe the government seeks other ways to get those materials, like we've talked before about how the government could try to go to an internet service provider or that kind of route from another party to try to get these materials.

I don't know what the world of possibilities is in that regard, but it, it certainly seems like there are options for the government. And the question is just like, why aren't they take, using that, those options?

Benjamin Wittes: It may be because there aren't any available. I mean—

Anna Bower: Yeah, that could be it too.

Benjamin Wittes: These are 12-year—, sorry, eight-year, 12-year-old communications. Sorry, eight, nine-year-old communications. And there's, I, you know, I assume the provider for most of them is Google. And I, you know, they just may not retain stuff that long in the absence of some reason to do it

Anna Bower: Right. That's possible. One other thing I wanted to mention as well that's interesting about this response from the government for the first time, remember we've talked on here about how the timing of Richmond's employment as a FBI special government employee is very important in the Comey case because the only evidence that they've cited as my—I encourage people to go and look at the piece that I wrote on this looking through some FOIA documents.

But the government’s, the bulk of their evidence that they've cited in their public filings seems to suggest that it all occurred after Richman left the FBI as a special government employee. Here, for the first time in this filing, the government admits affirmatively that Richmond left the FBI in February of 2017.

Of course, there's also reason to think maybe there were, he wasn't ever technically reappointed after June of 2016. But putting that aside—

Benjamin Wittes: They're going to have a little problem with that argument.

Anna Bower: Yeah it's just interesting because in the Comey prosecution itself, they never actually would put a date on the date that Richman left.

So here they finally admitted that he did affirmatively resign in February of 2017.

Benjamin Wittes: Alright, just a quick matter. So, member of the audience suggests that the provider is Apple because it was the material was taken from a mirror of Dan's iPhone. I don't think that's entirely correct because a lot of the communications in questions are Gmail communications.

They may have been taken from the phone, but the provider, if you had to reproduce the electronic communications, the provider you would get them from is probably not Apple. It's probably the underlying Gmail accounts. In Comey's case, the Reinhard Berg account. And in Dan's case, I assume the Columbia servers are probably Gmail servers. A lot of, most universities are. So the question of which device you got it from doesn't necessarily answer the question of which provider you would get it from today.

Alright, let's talk about Alina Habba, who has had a very bad week, Molly Roberts. And I am feeling bad for her because she, the Third Circuit said she was not lawfully appointed as U.S. attorney in New Jersey. And she has acknowledged that she's not going to be US attorney there.

So what's the state of play and what is her consolation prize?

Molly Roberts: Yes, so Habba decided to step down. I can't say I feel quite as bad for her as you do, although she somewhat—well, I don't know whether it was mournfully or defiantly—said in her statement, you can take the girl out of New Jersey, but you can't take New Jersey out of the girl.

Benjamin Wittes: Yeah. Although I just want to say that there's an important element there that's missing, which is no one was trying to prevent her from being in New Jersey.

Molly Roberts: No. And I wonder if she's self-deported or whether she's—

Benjamin Wittes: but it's like, it's, it’s really—the statement should have been, you can take the girl out of the U.S. attorney's office, New Jersey attorney’s office in New Jersey, but you can't take—but that's not really what she said.

And so I wonder if she quite got the point of her own joke.

Molly Roberts: Well, she also said somwhat more seriously in her statement that she was stepping down to protect the stability and integrity of the work of the prosecutors in her office who were having a lot of trouble because judges were essentially slowing down all the businesses of courts there for fear that they wouldn't be able to proceed if she was still on the papers and was U.S. attorney.

So she stepped down. She's been replaced with not one, not two, but three different officials who are authorized to oversee various parts of the U.S. attorney's office, the idea probably being that. And that way the Justice Department won't get into any trouble with judges for basically creating a U.S. attorney without the proper process, which is exactly what got them in trouble in the first place with Alina Habba.

Her consolation prize is Pam Bondi has appointed her special attorney to the Attorney General, I think, and her area of jurisdiction is U.S. attorneys. And this is not a position that has, to my knowledge and I think to anybody else's knowledge, existed previously in the Justice Department. So—

Benjamin Wittes: And just to be clear, the historical practice in the Justice Department is that the U.S. attorneys functionally report for in-case contexts to the deputy attorney general's office in adminis, all administrative senses.

They report to the ex, what's an office called the executive office for U.S. attorneys. They do not report to any senior advisor, to the attorney general. And so it is utterly unclear, at least in an org chart sense, what this role is.

Molly Roberts: Yes. Yeah. And it's, you know, kind of similar to the Ed Martin suddenly becoming in charge of the weaponization working group, and also pardons, and also mortgage fraud.

So. That's what's happening in New Jersey. All the three people who've replaced her have ties to her or to senior DOJ leadership. And it's kind of weird ,because at the same time, Pam Bondi is saying we are appealing this, even though Habba stepping down would seem to moot the case.

Benjamin Wittes: Probably not. I, no, okay. It's—I actually, this is an interesting question that I'm curious if any of you have thoughts on.

My impression is that it would not moot the case, if there may be some intention to reappoint her if the government wins

Anna Bower: Well, it wouldn't—wait. The Haba case, though, is the posture is that it's on a motion to dis—it was on a motion to dismiss.

Is that right? From one of the criminal defendants to a motion to dismiss the indictment.

Eric Columbus: I believe that's right.

Anna Bower: So you would think it would still be, if at the time that the indictment was brought, she was the U.S. attorney, I think there would still, maybe, but then there'd be a ratification question of like, if you get a validly appointed acting or U.S. attorney who then kind of like ratifies that, I don't know, there might be some weirdness there, but I would think.

Benjamin Wittes: But one, one question is whether the is whether the question is moved as to the viability of the indictment, right?

Presumably the indictment now stands because she goes away and somebody else's name was on the thing. And so—but the government, presumably, you know, it has its own now interest in the thing that's beyond the indictments. It's, do they get to have the appointment that they want to have?

nd I would think if, as long as the government could honestly tell the Supreme Court if we win, we want Alina Habba to be the acting U.S. attorney or the interim U.S. attorney in New Jersey, I would think that would not be a moot question, but I would be—I guess there's a criminal procedure and residual standing question here that I've never thought through. But I, it's not obvious to me that it's moot.

Molly Roberts: Fair enough. No, that's interesting to me. And I also, I'm trying to play Roger today and do not have the breadth and depth of knowledge.

So he might have a better response to you than I have on that particular question. I also should add that there's been another U.S. attorney stepping down this week. It was the acting U.S. attorney for Delaware, Julianne Murray, who said she was following Alina Habba. And Delaware is in the jurisdiction of the Third Circuit as well.

And she said, the people that think they have chased me away will soon find out they are mistaken. So it was going to the same idea that they're hoping to eventually win and put all these people back.

Nobody had challenged her appointment in court, but she preempted it by stepping down, I think similarly because it was, there was the possibility that it was going to cause issues in the courts there.

So, and then of course there's the U.S. attorney in the Eastern District of Washington whose fate is also somewhat uncertain, because his interim term expired this week without any judicial action to extend him. He has a title change, at the moment, first assistant and special attorney. So we'll see if that does the trick.

Benjamin Wittes: That saves the day. Yeah. Alright, but let's talk about so this is a really interesting question about how binding a district court opinion is where, because certainly Judge Currie’s decision in the Letitia James and Jim Comey cases does not bind the Eastern District of Washington. And it also does not bind any other judge in the Eastern District of Virginia vis-a-vis Lindsey Halligan.

And yet, if I were another judge in the Eastern District of Virginia, I might be a little miffed if I started seeing Lindsay Halligan’s names on, name on indictments. Because though they are not defying Judge Currie's ruling in the Letitia James Case or in the Jim Comey case, the Eastern District of Virginia did rule that she's not validly the U.S. attorney at all.

And she is still on the website as the U.S. attorney, and she is still, as best as I know, hiring and firing people. And she's still putting her name on indictments in front of Judge Leonie Brinkema, who is not a judge that I would particularly want to piss off. So, is Judge Brinkema pissed off and what has she had to say about the question?

Molly Roberts: Yeah, you initially said miffed and I was going to say, that's kind of a gentle word for it, but I think pissed off describes it a little better.

She's not the only judge, either. She had issues, she was miffed and/or pissed off. She's not the only one who has felt that way. The Magistrate Judge William Fitzpatrick, who was on the Comey case, and Judge Michael Nachmanoff, who was presiding over the Comey case, and a Magistrate Judge Lindsey Vaala, all of these had issues and questioned the prosecutors before them about why Lindsey Halligan's name was still on court filings.

They—William Fitzpatrick said it was simply not acceptable. Valla said that she was going to annotate new indictments with footnotes to acknowledge the ruling. But many of these other judges said, we're going to go ahead and we're going to strike her name from the ruling entirely.

So it's been difficult I think also for the line prosecutors who are in these courtrooms having to answer to the judges. They didn't make this decision. And in some cases, certainly in Nachmanoff’s case, the judges have expressed some sympathy for the prosecutors who are getting asked essentially impossible questions. And one of those prosecutors had to say, it's not something I've seen in my 35 years, but we're following the Office of Legal Counsel's guidance on this.

It's not our decision, basically. And the guidance has been very confusing. So the Department of Justice—the U.S. Attorney's Office, has reportedly sent at least five different internal guidance emails on how to sign filings in the district. And initially they said, remove Halligan's name, just list her number two—the first assistant U.S. attorney, Robin McBride, who Anna mentioned.

Ad then they were told, never mind, list her first, then list McBride, then list Todd Blanche. So they're doing three now. And the Justice Department reportedly consulted the Office of Legal Counsel on the point, and the Office of Legal Counsel said it is fine to keep Lindsey Halligan’s name on these filings and it's fine for her to stay in office, because the decision did not require a specific measure to be taken, like her removal.

What else it possibly could have required, given the decision was that she was,

Benjamin Wittes: Well, it required the dismissal of the indictment—

Molly Roberts: So, the indictment and then she can—

Benjamin Wittes: and a case gen‚you know, a district court and, I mean, I think the Justice Department is technically right about this. And that it's just incredibly impolitic to play it this way.

The motion was a motion to dismiss. The motion was granted because she was illegally appointed. It doesn't say anything about what else she's required to do.

Now, if you were a smart administrator of the Justice Department, you might say we're putting a lot at risk by having a person who is illegally appointed run the office and do—and therefore it would be better not to have her do these things while, but it, the ruling does not require her removal from office.

And I think it's, that are like technically correct to say you comply with it by dismissing the indictment that's done. And now let's go on with the business of the office, at the risk of infuriating the district bench.

Molly Roberts: So then what would the like possible road forward be? And would it be for someone else to challenge her appointment and a new ruling to come saying she was improperly appointed and the remedy is for her to leave?

What would it require for her to get out of there?

Benjamin Wittes: I think—well, I think first of all there comes a point and it's probably when the First Circuit affirms the decision when the position becomes untenable. Which is what happened with Alina Habba, right? And also you get a situation in which she, you could imagine, for example, personnel actions where somebody would sue and say, well, you can't fire me, or you can't promote him because you're not lawfully in the office, right.

Once, once you have authority that you're not lawfully in the office, there's sort of these little—it, it becomes a problem and it becomes an administrative hassle to leave you there. But I'm not—and one of the problems is that district judges get really pissed off and start asking questions. But I don't know that anything about that opinion requires that she be removed from the office.

It just—it just enhances legal risk of leaving her there.

Molly Roberts: Well, that is very clever of the Office of Legal Counsel then.

Benjamin Wittes: Alright. Molly, what day of the week is it?

Molly Roberts: Friday.

Benjamin Wittes: And what—does that mean that yesterday was.

Molly Roberts: It means yesterday was Thursday. Yes, it does.

Benjamin Wittes: And what is a Thursday in the Eastern District of Virginia?

Molly Roberts: Thursday is grand jury day.

Benjamin Wittes: And it means, it's Try To Indict Leticia James Day.

Molly Roberts: I was not nearly specific enough. I have a specificity problem too, I guess.

Benjamin Wittes: Yeah. So, what happened yesterday?

Molly Roberts: They tried again to indict Letitia James. This time they tried in Alexandria. They tried last week in Norfolk.

It was the same guy—Roger Keller, not Lindsey Halligan—who went and tried to get the indictment. Perhaps they tried in Alexandria again, given that's where Lindsey Halligan had success in the first place after a grand jury hadn't shown much appetite for it when they were conducting the investigation in Norfolk.

But again, they failed. And what does that say, besides the case is terribly weak? Like I mentioned last week, it suggests that if you're not willing to play as fast and as loose with the grand jury process as Lindsay Halligan appears to have been, it's more difficult to get an indictment for a case as weak as this one evidently is.

So, I don't know, maybe we'll try again. But each of these, each time they try it's fuel for selective and or vindictive prosecution motion if they ever manage to get a true bill. So they're not—the case, which is already obviously tremendously weak, is running into even more challenges—running itself into even more challenges—every time they try and fail to get a grand jury to indict.

Benjamin Wittes: All right. We have two more subjects and then we're going to wrap up.

I'm going to ask people to, let's use the chat only for questions right now, because I want to get to a couple audience questions and we don't have a Q&A in this studio.

Eric, we had a oral argument in Slaughter, the Humphrey’s Executor's executor case.

And it went about as badly as for the people who want Humphrey's Executor to stick around as everybody expected it to. What do we need to know about this oral argument that isn't kind of, hasn't been sort of hanging out there, obviously since Seila Law?

Hang on, let me unmute you. There you go.

Eric Columbus: I will assume a familiarity with the case for the purposes of time. And the question is whether the president can fire independent agency heads without cause, and thereby overturn Humphrey's Executor, a1935 decision that held of the president cannot do so, and that the Congress can create agencies somewhat insulated from presidential control—even though the president appoints the members who then are subject to Senate confirmation.

And basically the, there wasn't much suspense going into oral argument. The only real question was how broad the opinion will be that overturns Humphrey's Executor. And the justices were interested in—the six who are going to vote to overturn Humphrey’s Executor, where some of them were interested in how they could write an opinion that avoids some of the more difficult questions down the road.

And the centers-to-be were basically like, you know, how can you possibly do this, how can we overturn Humphrey's Executor without inevitably tipping our hand as to what will happen down the road? And the questions that lurked beyond whether or not the president can fire the head of a, an independent agency are questions about, for example, the independence of congressionally created courts such as the tax court, the federal claims courts. And then the next level is what needs to be done with, what can be done with federal employees, with those who are both higher up with some policymaking functions, who are often known as inferior officers, and then the civil service more generally.

Because if you take this notion of the unitary executive to its logical conclusion, which is that the entire of the executive branch is vested within the person of the president, and that the power to, if—the president therefore should have the power to remove every person who exercises executive authority. Then it really leads to the demise of the nonpartisan civil service that we've had for about a hundred, almost 150 years now. And the Solicitor General John Sauer kept saying, oh, well, you know, we don't—we're not challenging those things in this case.

And Justice Kagan and Justice Sotomayor were like, well, sure, you're not challenging them yet. That's the next case. Just as this case, how this Slaughter case is kind of the culmination of a series of cases chipping away at for-cause removal protections.

The inevitable next steps will be to make those challenges. The—and Sauer would not kind of tip his hand, basically. He did say earlier this year, the Supreme Court, in a, in granting a stay of a district court opinion that tried to prevent Trump from firing members of the National Labor Relation Board and the Merit Systems Protection Board, the Supreme Court stuck in a sentence carving out the Federal Reserve as an exception. They said the Fed is a uniquely structured quasi-private entity that follows in the distinct historical tradition of the First and Second Bank of the United States.

And most people think it's kind of gobbledygook, and what the Supreme Court really meant is that they don't care as much about a president screwing up an independent agency, but they really care about the president screwing up the Fed, 'cause that could—

Benjamin Wittes: It really reminds me of that Rehnquist decision where he distinguished, I forget which case, on the basis that was a case about a big railroad. And, you know, it's, right.

Eric Columbus: Yeah. And the solicitor general was like, sure, you know, we're fine with that exception. We're not challenging that exception. Kavanaugh mentioned it, and the solicitor general is like, basically, you know, you go ahead with your little crazy exemption there if you want.

We, we can't do anything about it. We're not going to fight you here. So it's going to be a six-three decision almost certainly, and Humphrey’s Executor will be executed. And I think the questions about what remains beyond that are going to, are not going to be resolved with the exception of the Fed.

Benjamin Wittes: Alright, finally, last case, we're going to talk about Molly Reynolds.

We have another group of FBI agents, 12 of them this time, I think, suing over their terminations. They are not principal officers, they're not agency heads. They're not quite civil service either. They're—FBI agents are complicated animals. But they're, they're not—they don't have no protection.

So what's the, what do we know about this FBI, group of FBI agents and their claim?

Molly Roberts: Yep. They are special agents, and the story for them is that they were stationed in D.C. in the summer of 2020 during the mass protests that followed George Floyd's killing. And they were patrolling with firearms invests, but—this is what's in the complaint—but without sort of the requisite planning and training and protective gear, and crucially without less-than-lethal munitions.

And so what they argue is that, to avoid triggering violence in an instance where there were both violent protestors sort of cornering them up against the National Archives and a bunch of families, nonviolent protestors nearby, they kneeled in what was a deescalation response.

At the time, the FBI and DOJ leadership reviewed their actions and determined they were consistent with FBI policy, there was no adverse action that should be taken, and they thought they were all set. But then this year, Kash Patel triggered an internal review and fired the agents en masse.

He had issued a request for the names of all the agents involved in the kneeling incident, and this was following them, having gone viral around the time that this happened for kneeling. And on kind of right wing social media, what they did was painted as political protests as a left-wing act, rather than just a neutral act to try to deescalate avoid violence because they didn't have any way to subdue the crowd that wasn't lethal because of the gear that they'd been given.

So that's essentially what has happened to them. The lawsuit says that the First Amendment prohibits government officials from dismissing public employees for partisan reasons, that political patronage—wherein public employees only keep their jobs if they support the favored political party—is unconstitutional.

And it says this is also a Fifth Amendment Due Process violation, and there are protections in the—not the Civil Service Reform Act, which the FBI is actually exempt from, but in parallel FBI procedures. And then Congress has also provided some additional statutory protections for some FBI employees. Those are in senior executive service.

So that's basically the story. I'm trying to keep it short. The forms that they got related to their removal said that the justification was just Article Two. And the idea here is that doesn't allow the government to violate the First and Fifth Amendments or rules set by Congress.

Benjamin Wittes: Alright? So that is, by the way, the same justification as covered Maureen Comey. And interestingly tacks back to the point that Eric just made about Slaughter, which is, you know, the argument that you can fire a head of the FTC, or an FTC Commissioner, or for that matter, Bank of the United States or Fed Governor is Article Two. And they are saying in the Supreme Court, you know, we're not challenging civil service rules, but they're using the exact same argument to dismiss line agents and federal prosecutors.

And so it is not hard to see where Kagan's question comes from. Alright, speaking of questions, we have a few from the audience. We're going to go through them quickly. I'm going to be—I'm going to read all the questions today and I'm going to ask the people they are directed to, to be brief in answers.

John Hawkinson, author of said article that Eric Columbus referred to, asks, are grand jurors supposed to not read the news in the way that petit jurors aren't supposed to?

So obviously this will vary from grand jury and jurisdiction to jurisdiction depending on local rules and whatnot. Also, depending on whether the grand jury is a special grand jury that is focused on a particular thing or whether it is a general grand jury that's hearing a bunch of case, a lot of whatever prosecutors happen to bring.

In the latter case, which is the overwhelming majority, no, you can't tell them don't read the news, because they don't know and you don't know what stuff they're going to, you're going to bring before them, and they often sit for very, you know, for rather protracted periods of time. And so just them being ambiently aware of like, what's going on in the world is part of the risk of having a grand, it's just part of having a grand jury.

Lawrence asks—this is for Anna—why is Dan Richman not making a bigger deal about Lindsey Halligan being on the filings in his case?

Anna Bower: I don't, you know, I mean, I don't know. I don't know that there would be any reason strategically to make a big deal of it.

I'm—because you know, like in the cases where her appointment is being challenged, it's like you're seeking to show that something like, like an indictment must be dismissed or a subpoena must be quashed.

You're trying to get something thrown out. Here, Richman’s trying to get his property back. So I, you know, I don't know. I mean, maybe he'll mention it at some point. But I just strategically don't know what the kind of end goal would be. And why, you know, it, it would, I would think, if anything, antagonizing Halligan over, you know, the U.S. attorney thing would be counterproductive in terms of, you know, the litigation.

So, alright. Ben, do you have thoughts on that?

Benjamin Wittes: I don't. My assumption is because the government can have any lawyer defendant it wants, and it doesn't really matter if she is the U.S. attorney or if she's Mickey Mouse. If they want to put her on the briefs in defense of something, I'm not sure that raises the same set of issues.

David and Andrew ask, what could Judge Xinis and Boasberg actually do with a ruling against the government t large or attorneys and federal officers in particular, and have there ever been sanctions against federal government lawyers?

Anna Bower: Okay, so with J.G.G., the, there's two things. Judge Boasberg has already said in his previous order that his options are refer the contempt for, the criminal contempt for prosecution. And then if the government does not prosecute it, then potentially appoint a prosecutor under the federal rules to, you know, appoint to actually pursue the prosecution.

There's, there was earlier—remember this came up with the, I think it was like the Eric Adams, Emil Bove situation—there was this like question around what the authority is of a federal judge to appoint a kind of special prosecutor type of situation, where the government declines to prosecute something.

So I, I seem to remember some kind of question that came up in that, but it was a very long time ago, so I am a bit hazy on it.

But here, you know, there that question could very well come up. So with the respect to the criminal contempt, there's that, I mean, there's other types of sanctions that courts can, and in civil litigation, you know, there's like Rule 11, and there's different types of sanctions in a civil context that, that don't involve criminal contempt of court. And just other types of conduct that courts can issue.

And the second part of the question, have there been sanction? Yes, they're almost certainly, yeah.

Benjamin Wittes: That has happened many times.

Anna Bower: That has a hundred percent happened. I don't have specific examples off the top of my head, but absolutely government attorneys have been sanctioned in the past.

Benjamin Wittes: And in fact, famously, in the Indian Trust Fund case Royce Lamberth held numerous cabinet secretaries in contempt.

Anna Bower: And also did things like, what was it? Like the internet connect.

Benjamin Wittes: They turned off the internet at the Interior.

Anna Bower: They turned off the internet.Yeah. That was incredible.

Benjamin Wittes: Yeah. Alright, we are going to leave it there, folks. And it is—this has been a wild and wooly show for so many reasons, substantive and technical.

Thank you everybody for sticking with us, and apologies to those who had trouble accessing it. And congratulations to everybody who got the extra bonus of watching audience members pop on screen and watching Anna Bower and me be entirely flustered by it.

We're going to be back next week, folks. The Trials and Tribulations—as well as our tech trials and tribulations—will continue.

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