Lawfare Daily: The Trials of the Trump Administration, Dec. 5

[Intro]

Natalie Orpett: It is the Lawfare Podcast. I'm Natalie Orpett, Lawfare executive editor with Lawfare Senior Editors Anna Bower, Michael Feinberg, Molly Roberts, Roger Parloff, and Eric Columbus, and Contributing Editor James Pearce.

In the December 5th episode of The Trials of the Trump Administration, we discussed the arrest of a suspect in the attempted bombing on January 6th, 2021, a hearing in NPR’s lawsuit over the Trump administration's cutting its funding, where the prosecutions of Letitia James and James Comey stand, and so much more.

[Main episode]

Natalie Orpett: Hello everyone and welcome to Lawfare Live. I am Natalie Orpett, executive editor here at Lawfare. I'm joined today by my colleagues, Senior Editors Roger Parloff, Eric Columbus, Molly Roberts, Anna Bower, who will appear on screen shortly, Mike Feinberg and our contributing editor, James Pearce.

So a quick reminder as a matter of business. If you have questions that you would like to ask us, which we'll get to at the end of our comments please put them in the Q&A section of the chat if you are on Riverside. And if you don't see a Q&A section, it's because you're on YouTube watching us there, and you should go to lawfaremedia.org/support and become a material supporter so you too can ask us questions.

So we are, per usual ,going to do a run-through of all of the events over the past week in legal challenges and litigation relating to Trump administration executive actions.

And I'm going to start with what I think is the most breaking of the news from yesterday, which is that after nearly five years of pure mystery around the discovery on the morning of January 6th of two pipe bombs that were outside of the headquarters of the Democratic National Committee and the Republican National Committee, there was an arrest.

So I'm going to come first to you, Mike. Tell us what happened, who was arrested, and what we know thus far.

Michael Feinberg: So an individual named Brian Cole was arrested in Northern Virginia yesterday morning. Crack of dawn, as FBI arrests usually occur then, for placing pipe bombs. Which did not explode, but were live, actual IEDs outside Republican and Democratic headquarters during the period around the certification of the 2020 election.

Beyond that, we start to get into a little bit of tricky territory describing how we got here. Because there's a couple different stories going on. The current administration has been arguing that the investigation was largely allowed to lie fallow during the past administration, and that it's only because they brought in a new team to review the evidence that they were able to get a break that allowed them to identify the subject.

And they're claiming that this could have happened at any time, had the case been worked harder. That said, there is some stuff in the complaint, in the charging document, that belies that contention, and we're going to have to wait and see how that really turns out.

But that's where we are right now. There was, I believe, an initial appearance this afternoon. The subject is represented and we'll see what happens next. There were a lot of rumors floating around that the individual who was going to be charged was sort of, of an anarchist bent from the left, but it transpired according to reporting across multiple news outlets earlier today, that the individual was actually a firm supporter of Trump who believed that the 2020 election was stolen from him and said so during his confession to the FBI. So there's a lot of churn in the water. There's a lot of mixed messaging going on, and a lot of it's being reported. Second and third hand, we're really going to have to wait and see how this plays out and how much is actually true.

Natalie Orpett: Yeah. I want to dig in a little bit to the rumors that you mentioned because—and I want to hear afterwards from you, James, on this as well—it seems to me, if I understand correctly, there's no information about a potential motive or background of the individual that appears in the actual complaint. It's a criminal complaint or it's an indictment.

Michael Feinberg: It's a criminal complaint.

Okay. So there's—which, which was probably generally speaking in a case involving live explosives, even if it occurred a while ago, you always sort of have to operate under the assumption that you're dealing with someone who is going to have dangerous materials at hand.

So you want to effectuate the arrest with as much alacrity as possible, and it's just a lot quicker to do a complaint than it is an indictment.

Natalie Orpett: Right. So assuming I'm correct that there isn't any information about potential motive or the background of the individual who's the suspect, we are seeing quite a lot of reporting.

There was initially, I think the rhetoric was sort of dominated by comments coming from administration officials, but then the later reporting that regarding the suspect's belief that the 2020 election was stolen, for example, came just from regular reporting.

And I'm curious what your thoughts are in terms of where that information is coming from and what the, I mean, as you say, there's a lot we have yet to learn, but how we should sort of assess the pretty wide range of things that are coming out and what the source of that information might be and what is likely to solidify if we can know it all?

Michael Feinberg: I don't think there is much dispute among the major media outlets, including some on the right, like Fox at this point, that the individual is firmly in the MAGA camp and believed that the election was stolen.

There's still some argument that's not the case and that there is some other motivation going on, and these theories tend to get towards conspiracy territory. But they're largely confined to postings on X at this point, and what I'll just refer to as news sources that are a little bit more liberal with sourcing.

You know, but we should also note part of the reason that conspiracy theories have been able to take such hold in the public imagination with this case is because they've been fed for five years now by the deputy director of the FBI, who, when he was still a podcaster, was ceaselessly beating the drum that this was an inside job made to make Trump supporters look unstable or violent.

And you know, very similar to the way he commented on the Epstein files before entering government, he's now in a bit of a trick box where the theories he's been propagating for half a decade now are just shown by his own employees to be false.

Natalie Orpett: Yeah. And it does seem to be a reflection of a sort of politicization of the investigation itself, if not the conducting of the investigation, the public commentary about the investigation, both before and since individuals came into the administration.

But James, I'm wondering, from your vantage point, you know, this information, I suppose, could have been coming from DOJ sources, could have been coming from FBI sources. But given the wide range, what's your—how do you parse all the information?

James Pearce: Yeah. It's a great question, and I'll start with the caveat that I don't know where any of the information is coming from. And I think, you know, Mike makes an important contextual point that you know, this has been a fraught and you know, very much baked sort of questions about your conspiracy theory and who's responsible and whatnot for years.

And then I think you just said quite rightly, right, that this is politicized. I mean, look, this is connected to January 6^th, and there is nothing about January 6th that is not politicized at this point, right? And so the moment something about January 6th hits the media, you're going to get counter narratives and counter-counter-narratives where the information's coming from—I mean, I suppose some of it could well be coming from the FBI itself.

I mean, it's hard to imagine where else information about what happened during his apparently four-hour interview and confession would be coming from whether it's also coming from folks within Justice. I mean, that seems like another quite likely candidate.

I do think it unfortunately reflects what has become all too common, which is a lot of information sort of flooding into the public to start you know, advancing a particular narrative. Whereas in the Justice Department that I worked, you know, you let the documents do the talking and I haven't had a chance to review the documents, but as I understand it, and as Mike just said, the documents, you know, aren't engaged.

The criminal complaint isn't laying out a motive, isn't laying out ‘it was for this reason or that reason.’ So, you know, I will wait to see what the government does in court to try to get a better sense of that.

And the rest of this strikes me as just a lot of noise.

Natalie Orpett: Yeah. And it is just interesting to situate in the broader phenomenon we're seeing of enough public commentary during what would've previously been a period of no commentary while there are ongoing investigations, and how they are being used to shape narratives.

But this also does raise a really interesting legal question that we had talked about internally and I wanted to bring to folks here, which was, if people recall soon after President Trump took office, he issued pardons to perpetrators of the January 6th attack.

And they didn't name the individuals who had been convicted or accused of crimes. They were instead pretty broadly stated categories in this pardon. And the question arises whether Mr. Cole's alleged crimes in connection with January 6th would be covered by this very broadly worded pardon.

So Eric, let me come to you. I think you've done some thinking on this.

Eric Columbus: Yeah. And there actually have been two sets of January 6th related pardons. There was the one on January 20th and then there was the one on just a, I think a month or two ago that was related to people advocating for the fake electors. But it was written in extremely broad language.

I don't think that there is much of a chance that a court would think that the pipe bomber conduct was covered by any of the pardons that have had been issued. So far though, certainly a defense, his defense lawyer would be remiss if he did not take a shot at it. The initial pardons that were on January 20^th were granted to—we've got the precise language here—was granted to, was—he granted a full, complete, unconditional pardon to all other individuals.

This is after naming a few specific people convicted of offenses related to events that occurred at or near the capitol on January 6th, 2021. So the word convicted in there strikes me as a bit of a problem for this guy.

By referencing people who are convicted, he, Trump, appears to be referring to people who had a conviction as of January 20th, 2025. And had he said a pardon to anyone who for any action relating to the events that occurred at or near the Capitol, that would be a different story. But he didn't.

And now you could say, well, you know, what if maybe it didn't apply to this guy at the time, but it could apply to him upon his conviction? There may be some kind of textual argument there that it applies to future convictions, but it would really make no sense that Trump in, on January 20th, 2025, was issuing a pardon that would bind his—that would have future effect relating to events that had yet to happen and would allow his DOJ to seek the indictment and bring to trial someone, but that upon a conviction it would magically disappear and the person would be pardoned. And even someone as—who is at times not so logical as Donald Trump, I do not think would be interpreted as having meant to do something like that.

Now the story's a little bit complicated by the fact that apparently, and I've only seen this in a government brief recently, that the gov—that Trump also gave certificates of pardon to some people who had been indicted but not yet convicted for January 6^th-related offenses that, according to the pardon proclamation, was supposed to be dealt with by his instruction to the Attorney General to pursue dismissal with prejudice for all those indictments, pending indictments. But apparently he also gave them actual pardons.

But I've seen nothing to indicate that he gave pardons or did anything or contemplating anything with regard to people who had not yet been apprehended or indicted, much less convicted.

Turning to the second pardon, which was issued on, November 7^th, it feels like a long—it's been a very long month. So it was only 28, 4 weeks ago when—it feels like an eternity—he granted a pardon to a named set of people and then said, but this applies to everyone in this class of any, all United States citizens for conduct relating to the advice, creation, organization, execution, submission, support, voting activities, participation in, or advocacy for or of any slate or proposed slate of presidential electors, dot dot dot, in connection with the 2020 presidential election, as well as for any conduct relating to their efforts to expose voting fraud and vulnerabilities in the 2020 presidential election.

Now I, if I were this guy's lawyer, I would say, look, he did—he planted this bomb because he wanted to help expose voting fraud and vulnerabilities and to disrupt the count the next day. And therefore he is covered by this.

Now, there's a textual argument that he's right, but—and this gets to kind of, you know, questions which are for good reasons, very rarely litigated of, how does one interpret a pardon?

I mean, do we—and it is similar to questions of how was it interpret a statute or a constitutional provision, do you look merely at the words, or do you look at what I think more sensibly at the purpose of the statute and the type of conduct that the drafters of it we're trying to get at?

And I, I do not think that there is really a strong argument that Trump was trying to get at the pipe bomber's conduct when he issued that pardon. And, you know, obviously if the—and furthermore, I only think a court would ever come with such a conclusion because it would, you know, let a guy off the hook who had done some very bad stuff and who in no way had, I don't think had relied upon the, any punitive pardon.

And look, if the court is wrong, the president could pardon him the next day.

Natalie Orpett: It will be some interesting litigation litigating to watch by the defense. You know, the point you raise about the timing of things, the pardon versus the arrest, sort of begs the question that I want to come back to you on, Mike, which is, why do we think that it took this long there?

Was there the conspiracy theories that you mentioned that it was intentional, it was an inside job, the last administration's FBI was sitting on it, et cetera, but what do you gauge from what we know in reporting and in the criminal complaint to the extent there's information there?

Michael Feinberg: So this is just a hypothesis on my part that is informed partly by my experience in the FBI and partly by one sentence in the complaint.

I don't believe that this was simply a matter of bringing in a new team to look at evidence already collected in the past.

I think two things happened. First, this was an incredibly data-heavy investigation for those who've read the complaint. We know that they essentially cross-referenced a lot of data from different sources regarding different types of transactions and occurrences, whether shopping records for a certain pair of shoes that had been identified, combing every foot locker in the country that would've sold them to pipe parts that were used in the construction of the bomb to cell phone tower dumps of a geofence nature to figure out who was moving around to tracking somebody's movements based on a specific cell phone pinging particular towers.

This was really data-heavy, and the Bureau sort of famously has nowhere near the technological edge in real life that it does in the media. There just aren't tools—or at least there weren't when I left to analyze different data streams in different formats in any sort of logical, organized fashion.

What I think happened here is that technology has developed since 2020. AI has taken on a leading role in a lot of criminal investigations, and simply the new team had better tools at their disposal to analyze the data that was already collected than the team that began the case in 2020. And it's also worth noting that a lot of the team that was supervising this case was fired for unrelated political reasons, simply for being at WFO, the Washington Field Office, in management on January 6th.

The second thing that makes me think it wasn't just a pair of fresh eyes on old evidence is that if you look at the complaint, they make reference to reviewing credit card purchases from 2018 to 2025. And those 2025 purchases go up through November. So clearly, legal process has been issued in the very recent past, which is relevant to the facts offered in this complaint. So at least one piece of evidence has to be new, or the complaint would not be making reference to things collected in November of 2025.

In other words, unfortunately, like a lot of announcements coming from the FBI and DOJ right now, I think facts are being omitted or at least shaded in a way to make the white particularly favorable on the current administration.

Natalie Orpett: Okay, thanks. That's helpful insight. And I know you have to take off, so thank you very much.

And let us switch gears to return to a subject we have covered in very much depth over the past many months, which is the criminal prosecutions of former FBI Director Jim Comey and New York Attorney General Letitia James.

Folks I'm sure will recall that both of those cases were dismissed as of—it was only last Monday, miraculously. And if you missed our very deep dive into exactly why—which, top line is, it was because the U.S. attorney who brought the charges, brought the indictments, as it turned out, was not lawfully serving as the U.S. attorney.

We have a Lawfare Live that we did on that last Monday, so you can look forward on our YouTube channel to get all of the nitty-gritty details. But we did, as part of that discussion, do a little bit of speculating about what might be next after the dismissal of the cases.

So let us check in on where things stand. Molly, I want to come to you first on what is happening in Letitia James's case.

Molly Roberts: So one way to answer it would be nothing, but not for lack of trying. So as you guys speculated in the Lawfare Live, there's always the possibility of an appeal, but a lot of people said the simple thing to do would just be, go get a clean indictment.

And so that's what the Department of Justice did try to do. Just not with Lindsey Halligan, the woman who was appointed interim U.S. attorney unlawfully according to Judge Currie from South Carolina, but instead with a man named Roger Keller, who was brought in from Missouri, where he was an assistant U.S. attorney to work on the Lindsey Halligan case.

So he had already been handling the case, and what the Department of Justice did was they had him go and present a new indictment, a different version from what was initially presented. But of course, we don't know how it differs to the grand jury and try to get a true bill.

So everybody on Thursday was waiting because it's famously not that difficult to get a grand jury to give you a true bill. It's a really modest standard, just of probable cause. And he didn't succeed, which could be interpreted as sort of an indictment of the, would've been indictors, because suggests you don't have a very good case.

And it also suggests, given they were able to get an indictment in the first place, that perhaps the only reason they were able to get that indictment was what looks like it may have been the improper handling of presenting to the grand jury by Lindsey Halligan.

We already know, of course, that first of all, she didn't go to the grand jury that had been hearing this evidence in Norfolk. She went to a grand jury in Alexandria. And the New York Times reported back then that some of the testimony the grand jury in Norfolk had heard that could be interpreted as exculpatory wasn't presented to the grand jury in Alexandria.

And of course we know from the James Comey case, where we have much more information about what happened in the grand jury room, that there was all manner of alleged prosecutorial misconduct there.

So Roger Keller goes in, perhaps doesn't play as fast and loose with the process as Lindsay Halligan seems to have done, and he's not able to get an indictment.

So that's where we are now. The reporting was that he would try again today and we haven't heard anything today either. The grand jury did meet again this morning in Norfolk.

Natalie Orpett: Okay, thank you.

And Anna Bower, where are we on Jim Comey? We had been expecting an appeal. I do not believe an appeal has been filed.

Anna Bower: Yeah. Despite the fact that right after these cases were dismissed, both the Attorney General and the White House initially signaled that an appeal was imminent. We have not, in fact seen an appeal for the dismissal of either of these cases in the Comey or the James case. Which is interesting, again, not only because initially it seemed that was likely but while there has been action and efforts to, you know, re-bring an indictment in the James case, we have not seemed to see the same thing yet in the Comey case.

So it's kind of unclear what is going on there, but in the interim, we do have this kind of litigation that is shaping up related to the Comey case that is actually a, a civil case that is brought under Rule 41(g) of the Federal Rules of Criminal Procedure.

And this was brought by Dan Richman, who is a very central figure in the Comey prosecution. You know, we've written about the Comey case and in great detail I recommend that people who want to know what Dan Richman’s alleged role in all this is, go read some of the pieces that I've written or that I've written with Ben Wittes.

But Richman is the person who Comey allegedly authorized to provide information to about the Clinton investigation to news reporters in an anonymous capacity. Remember that's the basis of the charges against Comey for lying to Congress.

And the reason that Richman is so central to this case is not only that, but also because a lot of the evidence that they have was taken from Richman’s electronic devices way back between 2017 and 2020.

And this is really important, because at that time there was a totally separate investigation related to disclosure of classified information. The FBI, you know, obtained a bunch of Richman’s data. Eventually this probe, which was called Arctic Haze, was closed with a finding that there was not sufficient evidence to bring criminal charges against either Richman or Comey.

And that was way back, you know, it was closed in 2021. Years go by, Trump is reelected. He gets into office, and then all this stuff starts happening with the retribution campaign against Comey. The investigators then start going back through all of this data that they'd seized in this completely separate investigation.

And all of this, to the magistrate judge who looked at this issue initially when the Comey case was still ongoing, was just really—it really, like, didn't sit well with him.

Remember there, there was that opinion that the magistrate judge wrote in which he kind of, you know, went through a lot of the different reasons why he thought there might be government misconduct in the case. One of them related to the government's conduct with these Arctic Haze warrants, going back through Richman's materials in this totally separate investigation without getting a new warrant, and in ways that went beyond the boundaries of the previous warrants that were issued way back in, you know, 2017, 2020, that kind of thing.

So that's the context, Natalie, that then brings us to, after the Comey case is dismissed, Dan Richman, who I should mention, is a criminal law professor and who knows criminal procedure very well, now has filed to get his property back. because under Rule 41(g), a person who is aggrieved by an unlawful search and seizure can, you know, file this motion to get their property back. People who have been to law school might remember learning about 41(g) in their own criminal procedure classes. I don't think that it's something though that a lot of people have heard of because it's a little bit niche in terms of the practice around it.

But he, he files this motion in DC district Court. And as a part of that motion, he's asking not only to get his data back, but the deletion of all of the copies that the government has of it.

And this could actually be kind of a problem for the government because if in the intervening period between going to seek a second indictment of Comey or successfully appealing the Comey ruling, and now if Richman is successful in getting his data returned and deleted, then the government's going to have to obtain that evidence that they have, which forms the bulk of the Comey case, basically either from another source or by pursuing those materials through a new warrant, which they were reluctant apparently to try to do this time around.

So it, it all kind of complicates things a little bit in that there's this, you know, subsidiary litigation going on that could really disrupt the government's evidence in the Comey case.

So we'll see what happens. We're waiting. There's been a few procedural kind of hangups here with that litigation in that Richman has New York-based lawyers, I believe.

And you know, they've had some issues with, you know, getting their notices of appearances filed and that kind of thing. But we are expecting, based on the judge's most recent order, that there may be a motion for a TRO that is filed very soon. There may be a hearing on that if one is filed.

So, we'll see what happens. But I think it is a notable development with relation to the Comey case while we wait to see what the government's going to do.

Natalie Orpett: Yeah. And at the very least Professor Richman's class is going to have a lot of interesting stuff to talk on the day. They discuss criminal procedure Role 41(g)

Anna Bower: Yeah. You kind of wonder what his exam looks like this year.

Natalie Orpett: Alright. And speaking of a former colleague of Not-So-U.S.-Attorney Lindsay Halligan, let's turn to not so attorney gen—I'm sorry, U.S. attorney Alina Habba.

James, over to you. Alina Habba was disqualified as the U.S. attorney for New Jersey a while back now by the district court, and that went up to the Third Circuit, which just issued a ruling.

So tell us what happened.

James Pearce: Yeah, on Monday, the Third Circuit, which is the first court of appeals to rule on one of these disqualification motions or disqualification rulings. We've got the one that, that you mentioned from New Jersey. We've got a couple out on the west coast, one in Nevada, one in the Central District of California.

And then of course, what happened in the Eastern District of Virginia with Lindsey Halligan. Although, as we've discussed elsewhere that's a slightly different legal issue. That is the U.S. attorney-specific provision, 28 U.S.C. § 546. You know, I won't go too deeply into the weeds. I know we, we've talked about this on a couple of different occasions, but the long and short of it is the Third circuit rejected each of the government's sort of different paths to try to have Alina Habba serve as either the acting U.S. attorney or the, operating as a sort of a special assistant or special counsel with the delegated authority from the Attorney General on the, on the first—on the acting U.S. attorney.

That was a question under the Federal Vacancies Reform Act. And there were basically two issues there. One is there is a default rule under the Federal Vacancies Reform Act, which as we've discussed before is an executive branch-wide tool to allow the filling of positions that otherwise require presidential appointment and Senate confirmation on a temporary basis.

And that default rule is that you basically get the first assistance with the top deputy to come in and fill the position. And the question was, does that first assistant have to be in place at the time the vacancy arises, or could you, as the government tried here, put somebody in as a first assistant long after the vacancy has arisen? And then by, by the fact that there is a vacancy, the person that automatically becomes the acting position here, the acting U.S. attorney.

The Third Circuit rejected that, as all of the courts to have confronted this question have thus far. It then though it actually didn't legally need to, it got to an additional question that was live in Habba’s case though is not in any of the other sort of related U.S. attorney litigation or appointment of U.S. attorney litigation, which is whether the fact of her nomination to the position permanently prevent, sort of provided another reason why she couldn't serve.

And the Third Circuit found that nomination, although it had been withdrawn was a separate bar to her holding the U.S. attorney, acting U.S. attorney position under the Federal Vacancies Reform Act. The court then turned to the government's sort of fallback argument.

Which is, as I mentioned what I think we is most easily referred to as the delegation theory that she can, that Habba can hold the role with the delegated authority from the Attorney General from Pam Bondi. And the court rejected that, largely reasoning that the—back to the Federal Vacancies Reform Act, that it has an exclusivity provision designed basically to prevent the kind of end-run around effort of using delegated authority that the government tried to do here.

Upshot of all of that is, is an affirmance. The Third Circuit did not address remedy, so that does leave some kind of interesting questions. Going back, the the judge below was Chief Judge Brann of the Middle District of Pennsylvania, sitting by designation in the district of New Jersey, had disqualified Habba, meaning she could not supervise or play an active role, and then had an interesting line that said, and nor can any assistant United States attorney, you know, the day-to-day prosecutors exercising Habba’s sort of supervision or oversight play that role too.

It's unclear exactly what that means, and I suspect we'll see some challenges from criminal defendants about precisely what, you know, what this ruling will mean on the ground. I suppose the other question, or another question coming out of this is what happens next in, in all of this litigation but principally with Habba, the government has a couple of different options.

I mean, it can seek en banc review within 14 days of the opinion. I suspect they're unlikely to do that. I think if they were, it's not going to be a particularly, I think I not hostile, but I just don't think that they're likely to have a favorable hearing or their chances are good and an en banc Third Circuit.

And then the question is whether they go to the Supreme Court. And if they do that, whether they go through sort of the emergency docket process. That strikes me as harder since they have not sought to expedite or seek stays as they have, as the SG of the government has in other matters, or whether they seek cert on the Supreme Court's typical docket, which wouldn't happen this year.

You know, one problem with this taking a long time is that things have basically ground to a halt in the district of New Jersey. And that this also is happening in a context where, as I've already mentioned it, as many folks here I'm sure already know, you've got similar litigation elsewhere in the country, and a kind of global resolution one way or the other, sooner rather than later, is better for all parties involved.

Natalie Orpett: Right. So, so do I understand correctly though, I mean this was not a situation like what happened in the Eastern District of Virginia where two cases were somewhat dramatically thrown out as a result of the determination that the US attorney was not lawfully appointed.

This is a situation where we're not sure exactly what it's going to look like for individual cases on which she was a key figure.

James Pearce: Yeah. So that's, that is right. And in fact, the district court judge below denied motions to dismiss the indictment in the Habba-related litigation. Which of course, as you just said is exactly, you know, the, both the Letitia James and Comey James Comey prosecutions were dismissed.

That question of whether the denial of the motion to dismiss was not before the Third Circuit, the court didn't have interlocutory appellate jurisdiction over that. So, you know, that could come up again at some later point, but this is all forward looking and raises these somewhat complicated questions about the extent to which Habba could or could not run the office, the extent to which prosecutors that purport to derive their authority from her, could or could not take certain prosecutorial steps.

I'll say by statute, actually AUSAs draw their authority, not from the U.S. attorney, but under 28 USC § 542 directly from the Attorney General.

But nonetheless the district court judge has sort of put in place the order I mentioned earlier that would seem to complicate this idea that the, that AUSAs could just necessarily handle all matters to the extent that they have engaged with Habba as part of handling prosecutions.

Natalie Orpett: Yeah, really interesting.

And as you say, I mean, until the Supreme Court weighs in this decision obviously won't be binding on other circuits, but undoubtedly will make the rounds as other judges are considering similar challenges to the lawfulness of appointments of other U.S. attorneys.

Which brings me back to you, Anna, to talk about what happened in the Northern District of New York. There was a hearing this past week.

Anna Bower: Yeah, there was, and I went to Albany for it. Which by the way, if you've never taken the New York City to Albany train, Amtrak train journey, you have to because it is incredible. And also the courtroom that this hearing was held in, Courtroom 1 on the fourth floor of the Albany Federal Courthouse, is amazing.

And I thoroughly enjoyed looking at it because it's just incredible. But in terms of the substance of what I was there for Natalie, as you mentioned there, there are multiple judges who are considering this issue of unlawful appointments. And one of them this week was Lorna G. Schofield. Hopefully I'm pronouncing her name correctly.

And this relates to Letitia James, but it's a different Letitia James investigation, not the mortgage fraud-related charges that are ongoing in Norfolk, Virginia. Instead, there reportedly is an investigation being carried out in the Northern District of New York by John Sarone, who is the purported acting United States attorney there.

And this one is looking into the civil cases that were filed by the office of the Attorney General in New York related to the Trump civil fraud case, and then also a case that was brought against the National Rifle Association. And according to the New York Times, this investigation is looking at using that factual predicate that we've actually talked about on the show before, the conspiracy against rights charge which is 18 U.S.C. § 242. I believe someone, correct me if I'm wrong but it's basically looking at, you know, whether or not by bringing these cases Letitia James's office violated the rights of Trump or the National Rifle Association, I suppose.

It's really unclear exactly how that criminal statute is going to be used in this factual circumstance, but all of which is to say that grand jury subpoenas were issued related to this investigation and they were signed by John Sarcone.

And what you need to know about John Sarcone is a little bit factually different from the Lindsey Halligan situation. In that case, the appointment under 28 U.S.C. § 546 was one where, you know, there was already a 120 days that expired. Then Lindsey Halligan put in, everything's operating under § 546.

Here it's even more complicated because Sarcone is first appointed under § 546. The 120 days expires. And of course, as we know from our conversations we've had here, then it goes to the district court, who has discretion to appoint a district U.S. attorney after the expiration of that 120 days.

And what happens here is that the district court declines to appoint Sarcone as the U.S. attorney. But the kind of backup that happens is that he's, like, designated as the first assistant, which means that under the Federal Vacancies Reform Act the first assistant, whenever there's a vacancy, is supposed to, you know, automatically be the person who steps in to perform the duties of the U.S. attorney.

And he is also a special attorney, which is under ho, oh gosh. Is it 28 U.S.C. § 515, James? Or is it, am I getting the first, the title right?

James Pearce: That's right.

Anna Bower: Thank you. Yep. Under 28 USC § 515, that's the statutory provision that the Trump administration has been using to appoint people like Ed Martin to kind of have this like very, like free-wheeling kind of, over a bunch of different things to investigate mortgage fraud or whatever.

And so here he was giving, given this like really broad responsibilities as a special attorney that were really just not very qualified like at all, basically. So he's kind of like a Ed Martin type of character, where he has got all of these different hats that he's wearing and they're doing all of this in an effort to try to get him to be able to essentially run the U.S. attorney's office without you know, it's an in run, basically around the appointments issues.

At least that's what it seems like to me. And it certainly seems like Judge Schofield is perhaps convinced as well on that point. The way that this gets into the subpoena fight, Natalie, is that in challenging these subpoenas and seeking to quash them, the New York attorney general says, oh, this guy who signed the subpoenas, and his only name on it he signed it as the Acting United States attorney, and in fact, whenever he signed it, he was not lawfully acting as such, because of these appointments issues.

And it, it was a very complicated hearing, to be honest, because there's so many layers factually to all of this. And at first it really seemed like the judge was not convinced that she, there was anything for her to do because he wears this dual hat of not only presenting himself as the acting United States attorney, but also as a special attorney who has all the powers of being able to do things that like an AUSA would do with grand jury proceedings and issuing subpoenas and that kind of thing.

But the thing that the New York Attorney General's office quite compellingly argued, the factual point is that, well, whenever he signed these subpoenas he, it never said anything about him being the special attorney. You know, it said acting United States attorney. And at that point he wasn't validly the United States attorney because his term had ex—his 120 days had expired, and the district court had refused to appoint him to that position.

And so as a result, referring to the Halligan case, you know, the James and Comey cases, they think that the result is that all of the motions excuse me, the subpoenas have to be set aside. So it was a very complicated hearing around these both complicated law and complicated facts.

But ultimately what I think the judge ended up on is being very skeptical that Sarcone is, you know, acting within his authority by issuing these subpoenas. She seemed to think that at this point he probably could issue new subpoenas if he were to sign them as special attorney. But she did not think that insofar as the facts we were looking at that he, at that time, that he signed them as acting United States attorney, that he did have authority to do that.

I am not so sure though what she's going to do in terms of the remedy. You know, she often came back to the fact that you know, he could do this now. He—if he really was special attorney, he could have done it then. So there's kind of this like form versus substance type of battle that's going on here in this case.

And I'm just, while the judge did seem skeptical of the fact that he's acting within his authority, I'm not terribly convinced of what she's going to do about it in terms of the remedy.

Natalie Orpett: Okay. And now, you know, hopefully know,

Anna Bower: Hopefully that was not too complicated and confusing and I'm sorry folks.

But I, it's just, it's a bit of a mess, this one. So we'll see.

Natalie Orpett: I mean, no one ever knew we would need to know so much about appointment authorities and scope of authority for different titles within DOJ, but you know, it turns out that if you're trying to run a criminal justice system, these things are really important, so thank you Anna. Thank you for making the trip up north.

All right. Let us switch gears again over to the general category of immigration, where things continue to go in a million different directions. So we're just going to take a couple of things we've been following.

The first one relates to an executive order that was issued way back a million years ago, by which I mean January 20th of this year, and it relates to President Trump's proclamation denying birthright citizenship to certain individuals. And that was then challenged in court. It made a long and circuitous route, has already been at the Supreme Court and now is going to be back. James, tell us what's going on.

James Pearce: Yeah, so, so as you mentioned it, this is the birthright citizenship issue that went up once and was focused solely on the question of universal injunctions.

The opinions or one of the blockbuster opinions from last term went back to the various courts where the questions were being litigated. A couple of different courts essentially reimposed injunctions, though narrower in scope, holding that the birthright citizenship executive order was unlawful and unconstitutional.

There were two such cases, one out of Washington state, one out of the District of New Hampshire. The one out of Washington state actually led to a split Ninth Circuit ruling where Judge Bumatay, a Trump appointee, found that—didn't weigh in on the merits of the question, but thought that the particular plaintiffs didn't have standing.

The Supreme Court didn't take that case. Interestingly, at least to Supreme Court watchers. They did take the New Hampshire case which just was a district court ruling. It was a differently certified class. I think the class was all people born after February 20^th, 2025, who would be affected by the the Birthright Citizenship Executive order if it were, have, you know, if it would've gone into effect on the proposed timeline in the order itself.

And so, yeah, now the long and short of it is the merits of the question. You know, ‘is the birthright citizenship executive order constitutional’ is now before the court. We don't have an argument to date yet. We're right at the point. Early December is when the court's cutoff is. So that is the point at which when it's, when it grants cert you know, some cases are kicked over to next term.

This one is going to happen in this term, but it doesn't appear it will be expedited. So I expect it will be argued some point probably in, in April or late March with, you know, an opinion that drops some point in late mid to late June as the one of the end of term opinions do. So, I think we suspected this day was coming.

It was interesting. There was some back and forth in the argument about whether the Solicitor General's office would actually take the merits of the issue up. But here we are.

Natalie Orpett: So am I, do I understand correctly that the issue presented, question presented is already defined, and is there a briefing schedule.

James Pearce: So no briefing schedule yet. I believe though I imagine that we'll get set quickly and as with all Supreme Court merits matters, we'll move quickly.

But yeah the question is you know, whether the executive order complies with the citizenship clause of the 14th Amendment. You know, whether birthright, citizenship is constitutional or not. I mean, pretty squarely presented on the merits.

Natalie Orpett: Okay. Well, we will certainly be watching that one.

Over to another case that we have been following which relates to immigration enforcement and challenges to its use in the District of Columbia. Roger, you have been following this case. Molina v. DHS.

Can you tell us what's been going on there?

Roger Parloff: Yeah, this is Jose Escobar Molina. And it, like you say it rises out of the sort of emergency crackdown in D.C. which began in August. And it it's Judge Beryl Howell, who's a very experienced D.C. judge.

She was the chief judge before Boasberg. And this week she certified a provisional class and granted a preliminary injunction to stop certain practices that were occurring with warrantless arrests.

And it revolves around a statute frankly I didn't know about the, if you're going to arrest somebody civilly for, because you suspect an immigration violation, but there's no criminal issue, ordinarily you seek an administrative warrant. And if you don't, there's a—the statute 8 U.S.C. § 1357(a)(2) defines what you need to have to make a civil arrest without a warrant.

And it says you have, you need to have reason to believe that, one, the alien so arrested is in the U.S. in violation of law and two, but two, and is likely to escape before a warrant can be obtained for his arrest.

And so this has not apparently been what's been going on. The courts have previously decided that reason to believe here means probable cause.

It doesn't mean reasonable suspicion. Reasonable suspicion, you can stop somebody and ask questions. But to, if you're going to actually just arrest somebody, you would ordinarily have this administrative arrest warrant, or you would need to have probable cause of both those things.

And the that second thing that nobody is going through the process of any sort of particularized analysis of whether somebody is going to be a particular risk to flee.

So Escobar Molina is an El Salvadorian. Came from El Salvador originally. He's been here since 1998, so roughly what, 27 years. And he was after—and he was here under temporary protective status.

He was whisked off the street you know, the, a group of law enforcement officers grabbed him some by the arms and some by the legs, and they threw him into a suburban, a Chevy Suburban, and they took him to Chantilly, Virginia, which is about 26 miles away.

So this is not a stop and frisk. And he was kept there for 23 hours. And Chantilly is full of people that, you know, it's packed to the gills. No room to lie down, allegedly. And one meal a day. Sort of a burrito. And then after 23 hours he was released, they realized, yes, he does seem to have TPS status, temporary protective status. He had a work permit and he was released in Richmond.

There's stories, there's three other plaintiffs, there's other declarations from non-plaintiffs. There's 12 declarations, I think laying out 40 such incidents, maybe two dozen declarations laying out 40.

So it's very disturbing fact. And what the judge, obviously she became quite frustrated was there are very—you have statements from Bovino, the head of the Custom and Border Patrol group, which seems to now be taking—it seems to have more power than ICE in these matters, saying that we don't need to have probable cause. We need only reasonable suspicion.

So that's wrong. You know, you have public statements and you have public statements, and the judge was confronted with these public statements from him and from Trish McLaughlin and from Stephen Miller. ‘We're not going to, you know, get, go through probable cause.’

And she became frustrated with, you know, the DOJ was saying, no, there's no such policy, but of violating the law in this way.

And she said the defense puts a new twist on the old saying, I can't believe what you say because I see what you do. Which is a reference to James Baldwin by asserting the position, don't believe either what we say or what we do. Just trust whatever we tell you now.

So she issues this order. This was just this week. And I'm—I don't know what the next step will be. It does have hurdles. There's a lot of jurisdiction-stripping provisions that the government has cited. We've talked about those before. There's also the, if you remember, you know, the Supreme Court's Vasquez Perdomo ruling, which was about stops rather than arrests.

But nevertheless, there was this hurdle, I think Eric described it a few times ago, called the Lyons Test. Even though these people have been the victimized with—assuming they've been victimized by an illegal arrest—how do you know they'll be victimized again?

There's that issue. So there's a lot of hurdles and obviously a court that isn't really very, so far has not shown much solicitousness about this sort of overstepping. But the facts are very disturbing if people bother to read the ruling.

Natalie Orpett: Yeah, and I think you're right to point out that the judge's order was pretty strident in, in just pointing out how inconsistent actions versus representations in court were, which is of course, a theme we've been seeing in a number of arenas.

Let me stay with you, Roger, to talk to us about the mandatory detention cases, which is, in my personal opinion, something that really has not gotten a lot of attention, and I'm grateful you've been following it. So tell us where this came from and where things stand.

Roger Parloff: Yeah, we mentioned it once before, but it's really accelerated.

There was a change in policy July 8th. There—it was a change in statutory interpretation of a law of a 1996 law. So for 29 years, the DOJ has interpreted the law in a certain way. And there are two basic—that basic detention statutes that are relevant here. And it also relates to a broader question that you see in immigration in many contexts.

You know, if somebody is caught, say 26 yards inside the United States, still wet from having, you know, come across the Rio Grande, you have less due process rights than if you are, you know, if you've been living in Iowa for 30 years and somebody raises a question then.

And there are different detention statutes and it one says in the case of an alien who is an applicant for admission if the examining immigration officer determines that that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained while you wait for a removal proceeding.

That's sort of the guy you catch at the border. And these terms are fluid, you know, the how do you know, I understand the difference between Iowa and right at the border. There's a murky line there, but the other is the statute that's been used for everyone else, the person in Iowa and so on, and you get a bail hearing.

Obviously you get a bail hearing, so that somebody will decide are you likely to flee or not. On July 8th Trump administration began to say no, you know, actually, when you think about it, applicant for admission is really everybody that doesn't have their papers. Because even if you're living in Iowa for 30 years, you must want to be admitted.

So you are an applicant for admission too, in a sense. And so we're going to, if we grab you, you're going to be man, it's going to be mandatory that you be detained. You aren't entitled to a bail hearing.

So this—and this was litigated a few times before July 8th. July 8th, there was a group in Tacoma, Washington, immigration judges and so on.

But it's something for the most part new. And suddenly there's this explosion of cases because everyone is being mandatorily detained. And so Kyle Cheney at Politico has done a great article about this, maybe November 26th or so, Steve Vladeck, I think this week or did a devoted an article about it.

Those are very good. Judge Lewis Kaplan, I think November 26^th, ruled in this and he compiled, according to him, he found 362 cases almost all of them since July 8th rulings and 350 had gone against the government, involving 150 judges. Kyle—he looked, he'd analyzed 225 rulings.

217 struck down the policy, and eight ruled for Trump. And of the eight that ruled for Trump, six of the eight were Trump appointees. I think he found that 23 of the rulings against Trump came from Trump appointees.

Anyway, this is headed for the Supreme Court. Obviously, there are appeals. I'm aware of in First Circuit, Eighth Circuit, Fifth Circuit. The government is trying hard to get expedited treatment in the Fifth Circuit.

Sunshine Sykes out in California, the district court judge in Los Angeles or in the Central District I'm not sure exactly where, issued nationwide class declaratory relief on November 25th. So, maybe that will get attention.

It's not an injunction because there are these jurisdiction-stripping rules. So it's a declaratory relief. Anyway, this is fast going up the ladder, and it's something we need to know about.

Natalie Orpett: Yeah. And just to sort of underscore a little bit the change in policy that, that Roger is mentioning it's really not that much of an exaggeration to say that it is as if the administration announced that it was going to reinterpret the authority to detain people in a criminal context for traffic stops.

That all of a sudden that were a legitimate reason to mandatorily de detain people, not even allow police who pulled over vehicles that were speeding to decide whether or not this person should be thrown in jail. So I think, you know, these are the types of things that are happening quietly because it's hard to, make splashy news stories about it, but it's a really dramatic change. And it is, as you say, Roger making its way into cases, but it's hard to see the trend. And thank goodness that people are following it. But it's, as you said, it's been going on since July.

Roger Parloff: Yeah. And it is related to the overcrowded conditions at the detention centers, which you are also seeing.

We've talked about suits around the country. In fact the Lewis Kaplan ruling that I mentioned was in the Barco Mercado case. He's also brought, you know, an unconstitutional condition suit. They're—all of these things are related, obviously,

Natalie Orpett: Right. Okay. Let—I'm going to stay with you again, it looks like, to talk about a D.C. Circuit ruling in a case called Make the Road. Which I apologize, but I do not remember anything about, so please enlighten me.

Roger Parloff: Yeah, this is, and this is again about that distinction between catching somebody near the border and you know, somebody who's been here for 30 years in Iowa. And the issue here is expedited removal procedures, which were instituted in 1996. And Jia Cobb, a judge in DC, sometime back issued a—not a preliminary injunction, but a stay, an APA stay under the Administrative Procedure Act.

But it's pretty much the same thing to stop DHS policies that were greatly expanding the use of expedited removal procedures, which are very little due process at all. The aim is to really get you out of the country within 24 hours, if possible.

And whereas, you know, the ordinary § 240 procedures would go months and there's many appeals and possible—and the way this worked was that there is a congressional statute about where you can use expedited removal, in theory, but it was it was up to the executive sort of to define where it would use it.

And so for many years it was used on people who could not show that they had been in the country for more than 14 days and who were apprehended about a hundred air miles from the land border.

In fairness, it was also used to people, it could be used against people arriving by sea, I think anywhere in the country who could not show that they had been here for more than two years.

But the language is broader. And so as soon as the second Trump administration began, I think January 26th, he said, okay, we're going to use it. Anywhere in the country for people who can't prove they've been here more than two years.

And the trick there, the problem there, the reason that's especially potentially cruel is that if they just grab you and try to get you out of the country within 24 hours using these highly accelerated procedures, it's hard to prove how long you've been in the country.

And anyway, Judge Cobb was receptive. And so, and just this week the DC circuit declined to stay Jia Cobb’s ruling. So Cobb’s preliminary injunction—or not, preliminary stay—remains, but, but it was two to one. It was along political lines. The dissenter was Rao, the majority was Millett and Childs.

And I don't have a good feeling about this case as it goes up. It, it has all the hallmarks. It's got the jurisdictional stripping problems. It has some additional problems. There's a potential problem, there's an argu—a potential time bar issue. And just—and like I said, the statute seems to authorize it, you know, anyway.

Natalie Orpett: Okay. Alright.

There is another case that we've been following which relates to again, something that happened, what feels like eons ago, which was reporting that the IRS was sharing information with ICE for the purposes of immigration enforcement.

Eric, the district court took some action this week.

Eric Columbus: Yes. Judge Kollar-Kotelly, who is a Clinton appointee here in D.C., ruled against the IRS. And in this suit, there's a nonprofit that provided tax advice to low-income Americans along with a small business association. And two unions tried to block an IRS policy through which it was sharing certain taxpayer information with ICE.

And taxpayer information since the 1970s has been by statute confidential and can only be shared in very specific ways pursuant to specific statutes. There is a statute that allows the IRS, technically the Treasury Secretary, but basically allows IRS to share information with officers, employees of an agency who are quote, personally and directly engaged in basically a law enforcement proceeding or investigation or grand jury proceeding.

And the IRS tried to get—sorry, ICE tried to get, at one point, 1.28 million addresses of taxpayers from the IRS. And someone in the IRS said no, and they eventually got 47,000 and they plainly want more.

And the judge looked at the circumstances through which ICE got that 48,000 and basically concluded that, look, there's no possible way that the one person who received this information was quote, personally and directly engaged in 47,000 criminal investigations.

That in of itself was a reason to basically overturn the ICE's policy of getting, of trying to get this data from the IRS. Or, let me flip that around, IRS's agreement to provide such data to ICE. Other bases were that, ICE did not provide a quote specific reason why disclosure is relevant to the proceeding.

And this was kind of similar to the other statutory point. And a specific reason also comes from that statute that there is no individualized determination of why this information was needed by ICE.

And then the judge also found that these were arbitrary and capricious decisions by the IRS. They did not provide a reason, explanation of why they were doing something that they had not done in the past.

They gave no evidence. They considered the harms on the other side when they decided to change their policy. And no consideration of these taxpayers' reliance interest in having their information secret. So we'll see what this is. Again, something that seems to have happened a long time ago and has finally resulted in decision.

We'll see what the administration decides to do about it.

Natalie Orpett: Okay. We are starting to run a little short on time, but fortunately Molly Roberts has published a dispatch, which all of you can read after I force her to go more quickly than her topic deserves.

But Molly, switching over to federal funding issues, we've been following, National Public Radio sued the administration for taking away all their funding. And what happened today?

Molly Roberts: Yeah, so I was going to try to be brief anyway because it gives people more incentive to read the dispatch and the oral arguments. It was a hearing on cross motions for summary judgment yesterday, but the arguments for NPR by Ted Boutrous and Miguel Estrada were quite good and quite fun for me to listen to.

So I hope that they'll be fun for people to read about. But essentially, NPR has sued the administration for this executive order ending taxpayer subsidization of biased media. The order seeks to deprive NPR and PBS also of government subsidization by stopping the corporation for public broadcasting from dispersing congressionally appropriated funds to NPR and it bars other federal agencies, or IT bars federal agencies from doing the same thing directly or indirectly.

And the arguments yesterday, the plaintiffs NPR and three member stations, were essentially arguing, this is textbook viewpoint discrimination. The executive order itself, even in the title, and then accompanying press release and fact sheet, were really clear about what the president was trying to do. The complaints were about NPR being essentially left0wing.

They call it a progressive pet project. They call it woke propaganda. They complain about features on NPR that included drag queens. They complain about NPR’s refusal to cover the Hunter Biden laptop story, that sort of thing.

The government meanwhile really did not want the Judge Moss to get to the merits at all, and was saying there's no standing here, mostly because NPR already came to a settlement with the Corporation for Public Broadcasting, which said, we agree. This is unconstitutional. We're not going to enforce it.

That argument didn't go over very well with the judge, who essentially said, well, that's kind of a weird thing to say, coming from a Department of Justice that believes and has said in other cases that it believes in the unitary executive, because you're saying we're not—we haven't agreed as the United States that we're bound by this, but CPB has been bound by this, and they can kind of just do what they want.

And I think that the plaintiffs and that Miguel Estrada in particular did a pretty good job of rebutting that saying, you know, this is an administration where the president can tweet in the middle of the night, hey, Pam, it would be a good idea if you indicted this person, and who knows, maybe Pam will do it.

So that's what the back-and-forth kind of looked like. When it really got to the question of the merits for the government, it turned out the government wasn't exactly saying no, we're not discriminating on the basis of viewpoint. The government was saying we're doing that, but it's totally fine.

And they were saying that's because funding is different. And they were trying to draw a distinction where they were saying, this is government speech via funding.

And again, the judge didn't really seem to buy that either. So I'm trying to be brief and I will be brief. I'd encourage people to read the dispatch because there are a lot more details on exactly how both sides laid out their arguments and the degree to which they did or did not have success. But I think the ruling is expected fairly soon.

Natalie Orpett: Okay, so it turns out that money is only speech in the context of campaign contributions. I understand the logic.

Okay. Yes, everyone go read Molly's dispatch. We will try to get through these last couple ones as quickly as we can.

So on firing of federal employees, which continues a pace there were a number of firings have been pretty continuously of federal immigration judges and there is now a lawsuit by former immigration Judge Tania Nemer.

Am I pronouncing her name correctly? James?

James Pearce: Yeah. Tania Nemer.

Natalie Orpett: Okay, so tell us what happened.

James Pearce: Sure. And I should say, and I should have made this disclosure before, so I my, my law firm represents Tania Nemer. My law firm was also involved in the Habba litigation. Just so, so folks are aware of that.

But yeah, Tania Nemer was a, an immigration judge until February of this year. She had become an immigration judge in July of 2023. She is the daughter of Lebanese immigrants and holds both Lebanese and U.S. citizenship.

She was abruptly fired in July, in February of this year, and given no reason for the firing. And brought a challenge in the equal opportunity process, equal opportunity employ—equal employment opportunity commission process and claimed that it was both as a on account of her­, because she is a woman—there were two male immigration judges in, this happened in Cleveland who were not fired at the same time—and because of her national origin.

EEOC process sort of started down that path until essentially the government came in and made the same arguments that we have seen in the independent counsel—excuse me, in the independent agency cases. And the same arguments that we have seen in the other civil servant firing cases.

In other words, Article II the president has control over the executive branch and thus can sort of fire without you know, needing to essentially comply with the law. And that's the argument that this lawsuit makes. So, so we've had you know, challenges under the Civil Service Reform Act.

This is a challenge that says the upshot of what the government is doing here is saying that the Title VII protections against gender discrimination or national origin discrimination are no longer constitutional when it comes to federal government workers. Or to, in this case, an immigration judge.

That flies in the face, the complaint argues. of longstanding Supreme Court precedent that says that Congress can, through laws, regulate the president's ability to fire federal, you know, civil servants and Congress's ability to protect them from discrimination.

And the argument for further argues—excuse me, the complaint further argues that you know, finding to the contrary would essentially allow widespread discrimination across the federal government.

You could fire because you thought some, you know, you didn't like someone's race or sex or national origin or politics, et cetera.

So the complaint was just filed this week in DC and we'll see where it goes.

Natalie Orpett: All right. Eric, over to you to tell us about the State Department RIFs case.

Eric Columbus: Okay. This is a weird one that can be, I think, dispensed quickly.

So, you may recall that the end of when the shutdown ended one thing that the Democrats extracted from the Republicans was a provision saying that as long as the new continuing resolution was in effect until, that is, until January 31st, I believe the administration could not carry out any reductions in force or RIFs.

And despite that, a few days ago, the State Department notified certain employees by email that they would be their jobs would end on December 5th. That is today due to RIFs that were first initiated prior to this shutdown.

And there was an ongoing lawsuit about RIFs that—in which the plaintiffs, just, when they saw that they filed a new motion for TRO to enjoin that. And they pointed to language in the continuing resolution that says no—during this period, no federal funds may be used to initiate, carry out, implement, or otherwise notice a RIF.

And the judge, before a brief came in from the government, granted a TRO, given that there only there was such little time before the RIFs were supposed to go into effect.

I really have no idea what the government was thinking here, why they did this. And we'll see how they tried to defend it, if they even do.

Natalie Orpett: Okay. Well, I think we were going to do a lightning round, which we will skip in the interest of being able to get to the two questions that we have. But I will mention, because I can't possibly resist as it is especially salient to those of us who live in D.C., the D.C. circuit did this week grant an administrative stay on the district court's order that would have required the National Guard to depart from D.C. by December 11th.

So we will see what happens. That's, again, just an administrative stay. So, D.C. Circuit will make some decisions on the merits, but for the time being, the National Guard can continue to roam the streets outside of my house.

Okay. Let us take our, a couple of questions here. I think the first one, Anna, is for you.

Could time to litigate Richman's suit make it impossible for EDVA to get an indictment, simply because the six-month clock on a re-indictment will have run out? And this is from anonymous.

Anna Bower: I think it depends on what happens in the litigation.

If there is a temporary—like, like there's nothing right now, right, that restricts them from using that evidence that they have. But there could be things that happen in that litigation that might at least temporarily restrict them from using that evidence. Before a grand jury if, because Richman is asking for essentially at least a temporary injunction, if not a permanent one, by, you know, requesting that all of this stuff be deleted, and that there, an injunction be in entered that prohibits further use of that data.

I am not familiar enough with 41(g) litigation to know how common it is to have an order be entered that requires copies of electronic data be deleted. That's something that I've been meaning to look into, because it's the kind of thing where like, usually if you have physical property you want returned, like that's the thing that you're trying to get.

Like maybe you've got like a bunch of money that the government has seized or you've got, you know, your family's heirlooms or something, you know. Or remember Trump, at one point, it wasn't a 41(g). motion, but he wanted his like I think it was Celine Dion CDs that were seized from Mar-a-Lago in some of the boxes back, which came up in the Judge Cannon motion for judicial oversight litigation which is what I'm referring to.

But you know, those are physical things that, like, you want that object back. Again, I am not familiar enough with 41(g) litigation to know whether typically, you could get copies deleted and returned to you.

I have seen motions that ask for that. And I do know that the federal rules, you know, it's equitable relief. And there's language in the rules that talk about, you know, a judge can enter an order that it goes to further use of the materials. So it, it's possible. But we will see, I don't know if James is still, yeah, James is still on.

Sorry, my, I had to switch my phone, but if James has experience with 41(g) litigation and has thoughts on that, then maybe he can chime in.

But you know, we'll see.

James Pearce: I don't have experience with 41(g) litigation, but I don't, I mean, I think that they operate on separate tracks. I mean, I think if the government decides to seek an indictment, I mean, first of all there's the question of whether they would face the Letitia James re-indictment problem.

And then second, you know, they can indict without respect to what is separately happening in the Richman case and continue to litigate you know, Richman's effort to get his stuff back at the same time that they try to kind of fight out over both. I mean, I think the fight in the Comey thing will turn on this, the 3288 question of whether the indictment was told or not when the court found that it was you know, in invalid based on Allergan's appointment.

So I see them as actually operating largely separately.

Anna Bower: Yeah they are largely separate. I will say there's just like complicated stuff here that's going on with like, like Comey. There was always the question of whether he had standing to challenge the government's conduct related to the Richman evidence.

Because typically a third part, there's this thing called the third party doctrine in which like, things that you know are communicated with—it's under the Fourth Amendment and I don't need to go into it here 'cause we've talked about it before, but basically like, you know, things that are voluntarily given to a third party, you know, you can't then, you know, raise a Fourth Amendment issue out of.

Richman himself is not the defendant in the case. So it wasn't like he could raise a Fourth Amendment challenge by intervening in Comey's criminal case. They're just like all kinds of issues with the standing things that were happening in the criminal case.

So then now this litigation is like in this kind of weird posture where like now the case is over. I do though think that if there is some type of injunctive relief that prohibits the government's use of it.

The question is like, would it be against Richman? Because that wouldn't affect how the government used that information. But would it be against just general further use? I don't know, because the litigation is still ongoing and it's not really clear to me like what exactly Richman's lawyers plan to argue to that end.

But the bigger issue would be if the property is returned and the copy's deleted, they've got to find a way—at least whenever they, you know, eventually plan to go to trial—they've got to find a way to get that evidence again either through a, you know, a different source, whether that's through an email provider or whatever.

Or through, you know, a new warrant to get Richman's devices, the content from Richman's devices again. So we'll see.

Natalie Orpett: Okay. Next question comes from Andrew Steele and asks, has any administration ever tried to undo a presidential pardon as President Trump purported to do on Tuesday via truth social post for bar for pardons, allegedly signed by autopen? What is the President's goal with this action and why does the whole exercise seem like total bull?

I read, that was directly from the question. I'm happy to direct this to anyone who has thoughts. Does anyone want to jump in?

Eric Columbus: Yeah, I can. I can jump in. It seems like total bull 'cause it is.

I'm not aware of any administration ever trying to undo a presidential pardon? That—and you know, how that would work, I assume, is that the administration was would try to do an action that would otherwise be blocked by a pre-existing pardon than the defendant would, you know, in essence move to dismiss and present the pardon and then that would be litigated?

And, you know, I don't see how that's ever been done. And I, it would be a—I don't see how administration could prevail unless they had like, you know, video of Michelle Obama sneaking into the White House and operating the the autopen. And I'm not, I—Trump actually did at one point repost someone saying that Michelle Obama was doing just that.

And what's the president's goal? I mean, I don't, I can't think of any legal goal. I can think only of a psychological goal. And the political one Joe Biden has is the only person who's ever beaten him in an election. and as you may have noticed, he's not too, was, has not been too happy about that for the past five years, and continues to find ways to criticize Biden politically.

It may be a way to rally the troops and get, give people show by Trump acting against their enemy. And this, it's also on the heels of a report that the House Oversight Committee put out a month or two ago on Biden's use of the auto pen. Those are my guesses.

Natalie Orpett: I can't imagine why you don't think that a court would engage in an originalist reading of the pardon power and whether or not the use of an autopen is problematic therein.

Alright. I think we are going to leave it there for this week. We will be back with everyone next week with the regular crew and undoubtedly lots and lots to talk about. So Anna, Molly, James, Roger, Eric, thank you so much and thanks to everyone for listening.

Benjamin Wittes: This podcast is part of Lawfare’s livestream series, Lawfare Live: The Trials of the Trump administration. Subscribe to Lawfare’s YouTube channel to receive an alert the next time we go live. The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad-free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter at our website, lawfaremedia.org/support. You'll also get access to special events and other content available only to our supporters.

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