Lawfare Daily: The Trials of the Trump Administration, Feb. 20

[Intro]

Benjamin Wittes: It is Friday, February 20th, 2026. It is 4:00 PM Washington time and you are watching Lawfare Live. I'm Benjamin Wittes, editor-in-chief of Lawfare, and I am here with Lawfare Senior Editors, Roger Parloff and Eric Columbus, Lawfare Public Service Fellow Troy Edwards, visiting scholar at Georgetown and Lawfare Contributing Editor Peter Harrell. And we are expecting Lawfare Senior Editors Molly Roberts and Anna Bower presently.

Look folks, we got a lot on the agenda today, but it's a big day at the Supreme Court. A six-three vote. They have struck down the President's tariff initiative under IEEPA. Peter, I can't think of anybody I would rather talk tariffs with on a day like this.

Welcome back to Lawfare Live.

Peter Harrell: That's great to be back on. And you know, certainly the decision, those of us in the trade law world had been waiting for ever since it was argued in November.

Benjamin Wittes: Right? And it's more or less, I think, the decision that you would have predicted if you had defied the rules that you can't predict decisions based on oral arguments, right?

Like, it's basically if you came out of oral argument and said, well, Kavanaugh looks like a no. And—but boy, Amy Coney Barrett and Neil Gorsuch looked pretty skeptical. It's basically the opinion you would've predicted from the oral argument, right?

Peter Harrell: Yeah. So it, it is certainly the breakdown in justices is what you would've predicted from oral argument.

You know, you heard the Chief Justice, you heard Justice Barrett, and you heard Justice Gorsuch all express a fair amount of skepticism of these IEEPA tariffs during oral argument. And then you also, you know, you heard Thomas Alito, Kavanaugh more in favor of the tariffs. So, and then obviously you had Justice Kagan and Justice Sotomayor and Justice Jackson, all quite skeptical of IEEPA tariffs.

So the breakdown in the Court struck me as pretty much, you know, if you were forced to give a prediction coming outta oral argument back in November, what you would've said, the one thing—you know, it is a pretty conclusive ruling. I mean, the ruling, I mean it's, you know, concurring opinions and we can unpack all of that.

But the ruling is quite definitive of no, IEEPA tariffs, you know, no IEEPA tariffs for the trade deficit, o IEEPA tariffs over fentanyl, no IEEPA tariffs because Trump's mad at Europe over Greenland. You know, just IEEPA as a matter of the construction of the statute, does not authorize tariffs. Quite definitive.

There was no like sop to the president. I mean, refund—There'll be questions about how this affects refunds and all that. But one thing that I think some of us had wondered a little bit coming out of the argument was would Roberts try to give some sort of little sop of maybe in extraordinary cases you could use IEEPA tariffs or whatnot.

And there was just none of that as it was a, you know, very clean and just IEEPA is a matter—

Benjamin Wittes: of decisive opinions doesn't—

Peter Harrell: —have tariffs.

Benjamin Wittes: Yeah. So, let's talk through the Chief Justice's logic and which parts of it has what majority on it. His basic ruling as I understand it, is that the words “regulate” and—does not envelope the word to tax.

And by the way, no president has ever used it this way before. What's the meat of the ruling beyond that?

Peter Harrell: Yeah. So just to, you know, step back, Ben as you say, like, you know, IEEPA, this 1977 emergency power statute never used the word tariff or duty or, you know, these kind of things that clearly give a tariff power, which are used in other statutes, which will come to 'cause it's relevant to the majority opinion.

You know, instead, the government's theory is that IEEPA, which lets the president in a time of a national emergency regulate … importation or exportation of … any property. The government's argument was, well, a tariff is a form of a regulation on the importation of property. And all of the arguments against the IEEPA tariffs fundamentally boiled down to, you know, a tariff is not a regulation of the importation of property.

That was a debate. And as you say, the, both, the majority—the chief justice opinion and the concurring opinion—found that this term regulate … importation or exportation of property does not include a power to tariff.

They get there in slightly different ways. The chief justice and the concurring opinion, they all kind of agree that the natural reading of this phrase of the phrase regulate and, you know, go through some dictionary definitions, does not seem to contain a power to impose a tariff or other, you know, kind of tax. The chief justice goes through some history and the importance of, you know, taxation, being a congressional authority and kind of why we got there.

On that, where I saw the biggest difference between the majority's opinion and there was a piece of the chief justice opinion that the liberal justices did not join, was really whether you should use—chief justice did for a part of his ruling—rely on the major questions doctrine, talk about the major questions doctrine as a way to get to this outcome. And obviously, liberal justices both have been skeptical and don't really believe in the major questions doctrine, and didn't think it was necessary to reach this this outcome.

Benjamin Wittes: And, what is the—so the divide among the six is limited to the major questions question?

Or is there a larger source of friction between them?

Peter Harrell: I mean, others should chime in as well, and I think we're all still digesting every detail. I thought it was quite interesting. You know, it's not just a divide between the six, right? So you have an opinion by the chief justice. You have a concurrence by the three liberal justices.

You have a concurrence by Justice Gors—Sotomayor—oh, it was drafted by Kagan, joined by Sotomayor and Jackson.

You have a concurrence by Gorsuch, which is like a very long concurrence about his views on the major questions doctrine, arguing with both some of the justices in the majority and some of the dissenting justices about the major questions doctrine.

You have a concurrence by Barrett kind of arguing with Gorsuch on the major questions doctrine.

And then you have a concurrence by Jackson, separate from the primary concurring opinion by Kagan, where Jackson is trying to argue, you know, what this court has not in recent years, is sort of pivoted away from legislative history and you can see her trying to say, you know what, we should actually be paying attention to legislative history again.

So there's actually like a bunch of interesting doctrinal debates going on through this opinion and interpretive debates going—

Benjamin Wittes: And none of it has to do with whether IEEPA—

Peter Harrell: —came to the same. They all arrived at the same place.

Benjamin Wittes: Right, I mean, you have a lot of threads of argument there, but none of them involves a different position about whether IEEPA does or does not authorize tariffs.

Peter Harrell: Correct. Or exactly. And that was quite striking.

And you can really see, I mean, I read it and, you know, others should chime in because I come at this from the trade law perspective and the IEEPA perspective, not from the kind of constitutional law perspective, but it read to me like there, you know, probably was fairly quick agreement among the justices back in November that, you know, these IEEPA tariffs are nonsense and it's not, you know, authorized.

But then the justices, several of the justices had a lot of things they wanted to talk about on major questions doctrine on, you know, statutory interpretation on how to use legislative history and things like that.

Benjamin Wittes: Alright, so, let's talk a little bit about the administration's response. How much of the tariff program can they simply replicate using other authorities?

Peter Harrell: Yeah, so let's just, you know, start with, okay, so what is at issue here? Obviously it's the IEEPA tariffs. I think if you talk to the economists, they would say of the tariffs Trump has imposed since February of last year, about 70% of them, by like dollars collected, 70% are IEEPA tariffs. The other 30% are what are called section 232 tariffs.

These are tariffs imposed under section 232 of the Trade Act of 1962, different statute. Those are the product tariffs, right? So when Trump says we have done 50% tariffs on steel, or we have done, I think it's 25% tariffs on timber. Those are two 30—not an issue in this case. So he's lost 70% of his tariff power in this case.

And the question is, how much can he reconstruct? And I think, Ben, there are kind of two ways of looking at that. I think he can use these other statutes and we can unpack them.

If his goal is to say, you know, I want to have 10 to 15% tariffs on our trading partners—like, you know, I want a 10 or 15% tariff on Europe, I want a 10 or 15% tariff on Japan. I think he can recreate well over half of that under some of these other statutes. He's already announced 122, we can unpack that. Already announced he's planning 301s, so I think he can recreate—you know, we're making up numbers here—60% of those kinds of tariffs under other statutes.

What's gonna be hard for him is there's really no good way under these other statutes to decide on March 1st, that if Denmark doesn't give us Greenland within a week, there are gonna be 20% tariffs on Greenland. Like these other statutes just don't have either the kind of rapidity for him to make these sort of aggressive geopolitical tariff threats, nor will they necessarily sustain the kind of very high rates, 20%, 30%, 50% that he likes to threaten when he kind of is going out there making these tariff threats.

Benjamin Wittes: So there's not like the ability to use tariff by whim as policy, in the same way.

Peter Harrell: There is clearly not legally the same ability to do tariff by whim. Now, obviously this is Donald Trump. You know, I can't sit here and say that he will not you know, do some tariff by whim under a statute where it is not allowed, and it will then take six or 12 months of litigation to get rid of that tariff.

Like this is, you know, right. Again, this is Donald Trump, but it is very clear that as a legal matter where the courts will interpret it, he can't quite do it by whim the way he has with this.

Benjamin Wittes: Alright, so let's talk about the dissent.

In addition to the proliferation of concurring opinions and subtextual debate about the major questions doctrine and about the use of legislative history, there are three justices who just don't buy the premise here. What did, what do we make of the dissents?

Peter Harrell: Well, you know, the dissents, I think are, and you have two dissents. Both of them are, I mean, Thomas kind of wanted to go on separately with some originalist views of separation of powers.

The challenge for the dissenters here is that all three of the dissenters have previously embraced fairly robust interpretations of both the major questions doctrine and the non-delegation doctrine. Right? So they have to not only conclude that sort of you know, a textual reading of regulate importation of property includes a tariff power. They then have to sort of explain why neither the major questions doctrine nor the non-delegation doctrine would be applicable here to limit the president's tariff power.

And you essentially see two different arguments there on the major questions doctrine you know, one of which is maybe there is a foreign affairs exception to the major questions doctrine. And I think we, you know, sort of, that is one way that you would you would get out of it.

And then, you know, as I say, we saw on the non-delegation doctrine kind of a view that because this—I'll close in just a moment—because this is an area where the president does have in the dissenting justices view some inherent authorities, some foreign policy powers, and then Thomas has his own sort of, sort of old, you know, look at the history view that the non-delegation doctrine doesn't apply.

I will say, you know, it's not that explicit in the opinion, or it's like the divide is not argued this way, but I do think one of the through lines in the majority opinion and the concurrent opinion, and then against the dissent—

So the justices and the majority did fundamentally see this case as about the taxing power, which is very clearly the pres—you know, the congressional power, at least in peace time, in Article One. And the dissenting justices, I think do see this more as a foreign policy you know, or sort of a hybrid kind of power and that kind of conception of, are we talking about taxation? Are we talking about foreign policy? I do think was a backdrop throughout all of the opinions.

Benjamin Wittes: Let's talk about the president's reaction. I understand he gave a temperate and intellectually serious press conference this afternoon.

Peter Harrell: Yeah, I mean, so the president you know, in his usual temperate self you know, argued that he was betrayed by several of the justices, that the justices seemed to be in hock to foreign powers, you know, and the kind of usual temperate stuff. He also argued that he has personally read all of the statutes involved and, you know, thinks he understands the law. And it was very clear to him. I'm sure he has—I'm, can we be skeptical if he's actually read all of these statutes, but he said he's read all the trade statutes.

So he was an as usual sort of, temper itself. He did also, he got asked a question about whether the justices were still invited to the State of the Union on Tuesday. He did say that they were still barely invited, barely. And then at least three of them are definitely invited. So, you know, we had, usual sorts of things we might have expected here.

But on a more serious note, so he talked about a couple of different things in his press conference beyond his kind of denunciations here of the court's ruling. The first was he emphasized the fact that IEEPA still gives him the authority to do things like impose trade embargoes. And some of this was, he was, you know, sort of how could it, if I can impose an embargo, how could I not have a tariff? And isn't it bizarre that I could impose an embargo, but I can't collect $1? He kept saying, I can't collect $1, but I could destroy a country. So he made very clear, he continues to view IEEPA as a potentially powerful tool, even if they've taken away the revenue collecting part of this.

And then he talked about how he has other authorities to reimpose many of the tariffs that he has imposed. He announced plans to invoke one of those as of today. He said it would come into force in three days, that’s section 122, the Trade Expansion Act in 1974, said he would be imposing a 10% tariff under that, under the statute that 10% tariff can last for 150 days.

And then Ambassador Greer said they're also working on some 301 investigations. These are an authority to impose tariffs under Section 301 of the Trade Expansion Act in 1974, where you find a foreign country has engaged in unfair trade practice. Those tend to take some time to come into force.

So I think there is, as sort of, we, many of us have thought about looking at this over the last couple of months, he sort of seems to be seeing 122 as the gap filler to keep tariffs in place, you know, through July by 150 days would be mid-July sometime.

Benjamin Wittes: And for those who don’t know, what is 122?

Peter Harrell: So 122lets the president impose up to 15% tariffs. He chose 10, not 15 says he chose 10 for up to 150 days if there is a balance of payments issue in the United States. And A, the standard of is there a balance of payments issue is defined in the statute is pretty liberal, and B, it's never been used.

It's never been litigated. I wouldn't be surprised if the courts find that the president's determination there is kind of a non-reviewable question or reviewable by some exceptionally differential standard.

So I think he's gonna get away, I think they're, the courts are going to uphold 150 days of 122 tariffs.

Benjamin Wittes: But 150 days is, I mean, that's a hell of a rollback from, I have a unreviewable tariff power in my pocket that I can do whatever I want with, you know, 150%.

I mean he, you know, and it's indefinite.

Peter Harrell: Yeah. I—Look, I mean, I think Trump had gotten used to having, you know, he really enjoyed having what I think of as kind of a magic tariff sharpie where he could, you know, sign a piece of paper with a sharpie and there were tariffs. Like he loves it.

Like that's the way right, what he loves. And none of these other statutes are going to give him that, even if they will let him continue to sort of take, you know, U.S. tariff rates from 2.5% where they were maybe when he got inaugurated to, you know, call it 10 or 12%.

Benjamin Wittes: Alright, so we have some questions from the audience on tariffs. We're gonna do audience questions on tariffs first because Peter has to go relatively soon. And we wanna be respectful of that.

So David asks, how common is this much written discussion in a Supreme Court opinion? My impression is you—

Peter Harrell: Pretty normal, right? Yeah. I mean, you guys read opinions in lots of different areas.

I mean, you just have, you know, like—Yeah, you, it's a long opinion, but not out of bound. I mean, I think of as sort of a normal long opinion.

Benjamin Wittes: Joyce asked, I'd love to hear Peter's thoughts on whether the liberal justices should reconsider their take on the MQD as a way to reign in the President's emergency powers related to national security and foreign policy.

So first of all, what is the MQD and what is the liberal's take on it, and should they reconsider it?

Peter Harrell: I'd open up, I feel like I've talked a lot, to somebody else on the panel. I mean, I have thoughts on this, but I, like, I come at this not as the con law guy. I come at this as a trade guy. So you probably have to have some thoughts on this, Ben.

Benjamin Wittes: I don't actually. I am—and besides, I'm here in my capacity as a convener and a moderator. Not—and I haven't even read the opinions. So I'm not in a position.

Peter Harrell: Well, maybe I'll open it up then and then see if anyone else wants to chime in. So the major questions doctrine is this doctrine the Supreme Court started articulating clearly about a decade ago. There's some debate in the opinion today, and the justices have been debating for a number of years about whether the major questions doctrine is something that they invented 10 years ago, or whether it actually comes out of older case law.

But it essentially says that if a president is going to rely on an old statute to do a very big action and no—and it's sort of a new novel action under the statute, Congress has to have spoken clearly on whether the actions allowed.

So this came up under the Biden and under the Obama administration, when President Obama, or the EPA under President Obama, tried to impose greenhouse gas emission rules under the Clean Air Act from the 1970s. And basically the conservative majority of the court found, well, you know, if this 1970s-era statute that did not speak clearly to greenhouse gases, this is a huge action impacting hundreds of billions of dollars of the economy, there's no clear statement outta Congress on it. And so overturned the Clean Power Rule.

Similarly in the Biden administration, the justices used the major question doctrine to overturn Biden's student debt forgiveness program saying it was sort of not clearly authorized by Congress. And you know, here it had always seemed to me, you know, if you take major question doctrine with a straight face, like the question of whether this ambiguous 1977 statute authorizes hundreds of billions of dollars of tariffs, which seems like a major question. So not surprised that some of the some of the justices got there, the liberals just haven't liked it from the beginning.

The liberals have sort of a view—The three liberal justice have a view that this is a doctrine that the conservative majority is using to reign in liberal presidential actions that they dislike, the conservative majority dislikes.

Benjamin Wittes: In the regulatory space.

Peter Harrell: In the regulatory space specifically.

And so the liberal justice have just never accepted it. You know, because they think you can, you, you just don't, A, they think it's not historically grounded. They think it's sort of wrong as a matter of interpret, interpreting the jurisprudence, but B, they think it's sort of misused. And so they were not going, I was not surprised that they did not accept it in this case and wanted to reach the same conclusion without relying on it.

Benjamin Wittes: Yeah. So I will just add to that, that the liberal suspicion of the major question doctrine comes from the fact that it is kind of a modern gloss on what was called in the thirties, the non-delegation doctrine, right? Which is, you know, this idea that Congress kind of can't give away its own legislative powers to federal regulatory agencies in these sweeping delegations of power.

And that idea when conservative justices revive this idea through the major questions doctrine, it's definitely with an eye on broad delegations of regulatory authority, not to the president, but to agencies. And so it goes to this idea that liberals, that conservatives are very suspicious of, which is Congress's legislative power being wielded by federal regulatory agencies.

And I think Brett Kavanaugh has been, you know, sort of speaks for a lot of kind of conservative sensibilities when he says, well wait a minute, that's not the national secure, you know, the national security space is not what we were talking about when we did this. And I think the split that you see between the chief and Kavanaugh here is emblematic of something, is this a split? You know, the branches have a different, you know, delegation to the branches or is this really about regulatory power?

And I think the, you know, you see a division between them. Some of them are saying, well, you know, major question means major question. And I think Kavanaugh is saying no, major question means a delegation of power to an agency as opposed to the president himself.

Alright, Matt asks since the alternative tariff statutes involve more process to be followed and findings to be made, does that translate into more opportunities for challenges and judicial review?

Peter Harrell: Well, I have had the view since the beginning of last year, 2025, that the clearest truest winners of Trump trade policy are trade lawyers. And I am quite confident that trade lawyers will continue to be the clearest winners of Trump trade policy in 2026 as well.

In terms of legal challenges to the fallback options, obviously we'll have to, you know, see what the fallback options are and how they play out. There has been litigation on 301, so there's never been litigation in the past on 122 because 122 was never used in the past. But there has been litigation on the 301s.

Without sort of digging into all of the case law, out of the CIT and the federal circuit on 301 litigation, the Court of International Trade and the Federal Circuit, which sits above the Court of International Trade, generally speaking, the case law on 301 is that if the U.S. trade representative has followed the procedures, it's done a factual finding, it has, you know, provided notice an opportunity to comment in the fact-finding. If it has provided notice on the tariffs and opportunity to comment on the tariffs, there will be a substantial amount of deference to the substantive actions of the U.S. trade rep, right?

So there's sort of, in general, the case laws follow the procedure and then we'll, you'll get deference on substance. So litigation will depend on, you know, what does USTR actually do? How robust are these, those kinds of things. The other thing is, you know, it'll be different for litigation because with the IEEPA tariffs, fundamentally the three cases that were in front of the Supreme Court we're all about whether IEEPA, authorizes any tariffs at all. And if it doesn't authorize tariffs then all the IEEPA tariffs are illegal.

With 301, you're gonna have to bring 301 by 301 challenges, right? So it'll be a 301 on Europe and a 301 on Japan, and a 301 on Korea, and a 301 on, you know, Canada or whatever. And like, if you're litigating them, most of your challenges are gonna be sort of country, you know, 301 by 301 kinds of challenges that might well play out differently based on the specific facts of the different 301s.

Benjamin Wittes: All right. One last question and then we will let you go, Peter. I assume there is now going to be a race to the courts to get $200 billion in tariffs back by every corporation that's ever had to pay a tariff. How big a deal is the hole that this is gonna blow into the budget?

Peter Harrell: Look it's, I mean, you know, I've seen estimates.

I think you're right. I mean, the estimates I have seen from the economists are, you know, close to $200 billion. The government said in mid-December in a court filing that it had collected at that point $140 billion, and like it's been going up by $30 billion a month since. So, you know, $200 billion seems very reasonable.

This is a fiscally meaningful issue for the government. I mean, government collects, what, $3 or $4 trillion a year? So it's not, you know, it's not 10%, but it's definitely several percent of the federal government revenue, or what Trump said. And so the opinion didn't talk about refunds at all in the opinion. The only place refunds came up at all was a little note in the dissent, noting that refunds are now probably gonna be a mess. Definitely useed the word mess, I don't remember exactly what else they said. You know, so this will now be an issue for the lower courts.

We saw in December the Trump adm—in litigation about refunds in the lower courts while all of this was pending from the Supreme Court—the Trump administration has conceded that the, that if refunds are going to be legally required, the Court of International Trade has the authority to order refunds.

So the Court of International Trade is now going to have to litigate through, in light of this decision, are refunds required, and then if they are, it's conceded the court has the authority to order them.

Benjamin Wittes: And why would they not be required? If the government taxed me illegally, it seems to me I'm entitled to the amount of money that the government took?

Peter Harrell: So I 100% percent agree with you, Ben. And this has been my point for the last six months. If Scott Beseant had just decreed everyone now has to pay a 50% income tax and the court says that's illegal, we'd all think we get our income tax money back. No one would have any question on this whatsoever.

And tariffs are, from a kind of constitutional and legal perspective, tariffs are just another tax. In fact, they're the tax that Congress was most worried about in the frame, you know, in the founding days, right? Most taxes were tariffs back then. This is just another tax. So it has always seemed to me 100% clear you should be able to get a refund.

And the only question has been, you know, will the government make it easy for you to get that refund. Are they gonna say every individual person who is paid a tariff has to go into court and sue and you know, litigate through the process? I keep hearing people speculating “Maybe there's some way to not give a refund” I just don't see it for exactly the same reason you just laid out, man. Like it's a tax. It's an illegal tax. Cannot get your money back.

Benjamin Wittes: Cannot see the government prevailing on that. Alright, Peter Harrell, thank you so much for joining us today. You should feel free to hang around and participate for as long as you like, but I know you, whenever you have to drop off.

Peter Harrell: I'm afraid I do have to drop off. I've really enjoyed this. Thanks for having me on.

Benjamin Wittes: Great to see you.

Peter Harrell: Thanks. Bye.

Benjamin Wittes: Alright, let us turn from the halls and hallowed walls of the Supreme Court to the hallowed walls of the U.S. Department of Justice.

Troy Edwards, yesterday on the face of the Robert F. Kennedy building there is now a large mugshot of Donald Trump. I didn't know that we traditionally posted wanted pictures or portraits of felons on the Justice Department, but what do we know?

Troy Edwards: Yeah. I used to try to explain to defense counsel that DOJ had a really good rehabilitation process and reentry services from BOP. I didn't know how good. Now we have one as the leader in his photo on our building.

It's funny that I want to kind of frame my thoughts in two ways. One is the obvious reaction I think everyone is sharing. And then two is maybe a less obvious reaction I had to the banner just to walk us through.

Yesterday, it looked like Hannah Rabinowitz from CNN, at least, tweeted a picture of the outside of the building, showing a banner that listed the Department of Justice title, President Trump's face, and then I think a phrase on the bottom that said, making, you know, make America safe again. And the department has actually responded now and provided a statement today saying that they were proud of the 250 years of this history in America, but also proud of the historic work that quote, this department is doing to make America safe again at President Trump's direction. And I think that language is really important.

So here's my obvious reaction. My obvious reaction is this is a problem. And to some folks who pushed back while talking about this yesterday, isn't it obvious this department has lost its independence? What really, what does this reveal? I think it's more concerning that, in the last year, the department leadership has at least paid lip service to the concept of an independent Department of Justice.

Todd Blanche, the Deputy Attorney General, has consistently tried to speak in those terms confined by ethics and values of an independent DOJ. I have to think that feeling that constraint has provided some boundaries to what they're willing to do or what the president is willing to order.

If you've just removed those constraints now and openly owned that this department is no longer independent, it's concerning to me about how bold the president may become in using the department, and the department may be willing to engage on those orders.

And so this is a new world, I think, which is an obvious reaction to the banner.

Benjamin Wittes: This is not the first building that the administration has put a banner of Trump on. There was one on the Department of Agriculture for a while, next to a banner of Lincoln. There was one on the—was it transportation? There have been a bunch of 'em.

Is it different to put one on the Justice Department?

I mean, I do think having big ‘dear leader’ pictures of the president on federal buildings is in general a kind of gross North Korea vibe. But you know, I guess I'm, you know, the president's picture has been in every office in the Justice Department since I started going there in the nineties.

And what's really the difference between hanging, you know, the president and the attorney general and the vice president's picture on the inside of the department and hanging it on the outside of the department, or do you think there really is a difference between like, doing it on the surface of the Justice Department versus NASA?

Troy Edwards: Yes. I, yes. I think there's a difference. And I think what you're putting your finger on is a tension that has existed in the Department of Justice since its origin in 1870, which is, there is this structure in place where the president oversees it and appoints the attorney general. But it is a department that ought to function independently from the political waters of the White House.

And so how have we existed through that, through the department's history when we have these pictures of the president in there? I, that tension has always existed. So that's not new. What's new is the side of the spectrum that this department and this White House have decided to lean fully into, which is not only the physical blowing up of the photo, but also the actions that the department has taken.

And that's a much larger conversation about, moving forward, how do we fix that, if at all? But what's different about putting this banner on the outside of the Department of Justice as opposed to other institutions, I think is the unique nature of the value that the Department of Justice adds to American life, stemming from the independence of the institution.

I've often said, and some friends make fun of me for being a little corny, the Department of Justice is one of the only agencies with a moral imperative in its title, and it does not live up to that. The more that you—

Benjamin Wittes: Transportation isn’t a moral imperative?

Troy Edwards: I—certainly, I don't mean to, I don't mean to devalue what other agencies do.

Benjamin Wittes: I don't know, 'cause there's also, you know, the Department of Education. I think you could make an argument that there's a moral imperative in there too.

Troy Edwards: That's fair. My wife who is getting her PhD in education is probably gonna sprint into the room shortly, but I, what I mean to say is at least inherent in the terminology that we call that agency, it's, it is, there's a reason for it. Right? And it's obvious.

This is what I mean when I frame my thoughts as this is the obvious reaction. Putting the president's face on the outside of the department is a problem. It is reflective of what is coursing through the veins now of that building.

Okay, so here's the maybe less obvious reaction I've had. This is going to be a problem in litigation and it's gonna be a problem in carrying out the president's duty or requests of the department moving forward. The litigation, the department's response to this was that they're proud of doing this under keeping America safe at President Trump's direction.

As you all know, and many of our readers know and listeners, there is a lot of litigation out there claiming that the president is directing the Department of Justice's actions and the leadership has consistently tried to push back saying no, no, we make our own decisions. It's if you're a defense attorney, that picture may be an exhibit in one of those motions moving forward and that response, and I don't think that's silly.

I think that has some force to it, that there is no question now the department does what the president orders them to do. And as we all know, under vindictive prosecution and potentially selective prosecution theories, that could lead to dismissal of indictments.

The second less obvious reaction is this is gonna be harder for the president to do what he wants with the Department of Justice, because I think more people are gonna find this reason to leave. It's less that there's this picture on the wall now and I need to leave. It's more that career folks who I feel a pain for, since yesterday, have to walk past that obvious banner and now represent to the world why they're staying. And that's a shame, right? This is a disservice to the victims those folks serve, and it's a disservice to those career servants who walk in at an opportunity cost of a lot of money every day to serve that institution.

It's gonna be harder now when they're basically wearing the red hat every time they walk into the building or being forced to look like they do. I think it's more in your face. I think it's gonna be harder as people leave, and this department is gonna have a tough time replacing those folks.

Benjamin Wittes: Yeah. I mean, I still remember when Donald Trump was first elected and an AUSA walked into my office and said, I'm resigning, and I asked, why?

And he said, because I don't wanna stand up in court and say, I am so and so, and I represent the United States. And that was with, and I talked him out of it, and I persuaded him to stay, but that was with Donald Trump's face not on the outside of the building, you know, and I think that would be a harder conversation if I had to have that conversation today.

Alright. Let us turn to a consequence of representing the Justice Department when you are—when Donald Trump's faces hanging on the outside of the building, which is you may get held in contempt. And I think this is now the first, or maybe not the first, but it's one of the early contempt findings by, it's a judge in Minnesota.

Roger, give us what happened and what did this attorney do, that of all the attorneys who have represented the United States with Trump's face on the side of the building, why is this poor soul the one who's being held in contempt?

Roger Parloff: That's a good question. It's honestly a little arbitrary. It's sort of the straw that broke the camel's back here.

This is the case—and it's another glimpse of the total breakdown that is going on in the District of Minnesota at the moment. It's a civil contempt, I should say, and it came down I think the 18th, which is I think Tuesday.

And it's another special assistant. We should read this sort of in the context of you know, we all saw that “this job sucks” case a week or two ago involving another special assistant U.S. attorney, Julie Le. This one is an, a special U.S. attorney and I'll put up front, sort of all the defenses and because obviously he's not you know the one that's wholly culpable here.

He is an army JAG officer who was moved over into this U.S. attorney's office as a special assistant just a month ago. And as he explained at the contempt hearing he's had anywhere between 126 and 129 cases assigned in the last month. And also he said it's a steep learning curve, which I'm sure it is.

Here, however was Judge Provinzino’s predicament. So the case begins on February 2nd. It's a detainee named Rigoberto Soto Jimenez. It's a habeas case. Immediately, Isihara— Matthew Isihara is the name of the man who was got the civil contempt and it was for $500 a day. He admits that it was assigned to him that day, February 2nd.

The same day, the judge issues a show cause order to file papers why he should not be released. That's sort of the standard thing in a habeas, and they must be filed by February 5th. There's no response at all on February 5th. That's a  Thursday.

So the following Monday, she issues the release order, ‘You, you know, you've waived any response.’ And this being Minnesota, she's learned from experiences all the judges have there. It's not only release him, it's release him in Minnesota, not a thousand miles away, which is often happening. And give him his property. Don't release him without his documents and his property and his coat. And also you must, on February 17^th, file a certificate of compliance.

So, again, the release has to be by February 13th, that Friday on February 11th, the defense attorney begins to try to find out if anything is happening because she's never heard squat from the government. There's no notice of appearance at this point.

And that's a common thing in Minnesota now, like the it's too hard for the attorneys to even issue a notice of appearance. So she doesn't know who's working on the case. And she emails directly to the detention center she suspects he's at in El Paso to send the order herself.

We now know that Isihara on February 9th was aware of the judge's order to release and all the other things and did not do anything. What he's supposed to do is to send that order to OPLA, which is the Office of Principal Legal Advisor for ICE. And then ICE is supposed to relay that to ERO, the Enforcement and Removal Office in El Paso.

That didn't happen.

So she begins reaching out. She gets no response. February 12^th, the client contacts her, he has been released, but he's in Texas. And he has no way to get back. And so she then contacts an attorney that—a U.S. attor—AUSA, that she's worked with in the past and she knows, has been responsive, and let's give him credit, his name is Trevor Brown.

He immediately emails back and says Matt Isihara is the one assigned, CCs him. She writes to him and explains the situation. He writes back, let me get back to you in a bit. I have a few urgent matters I need to close the loop on. I'll circle back with you this afternoon. That's February 12th.

He never gets back to her ever until the contempt hearing.

So, the attorney, defense attorney finds a shelter for him that evening. He stays in a shelter, and she also finds a way to get him a flight back the next day—I don't know the details of that. The following Monday, she also finds out that he doesn't have his property and begins to email people about that.

On February 17th, we're supposed to have the certificate of compliance. Nothing is filed again. There's no note.

Benjamin Wittes: It's egregious.

Roger Parloff: There's no notice of appearance filed at the—I mean, there's no sign of the government in that docket. And so, at the end of the day, February 17th, Judge Provinzino sends the show cause order, why you should not be held in contempt.

‘Show up tomorrow at 2:00 PM I want you there. I want’—she's found out who it is from the defense lawyer who is the attorney on the case—'I want David Fuller there, the chief of civil division replacing Ana Voss who quit. And I want somebody from ICE who knows about this case.’

And they show up the next day and all of them are unprepared.

The ICE guy—there is a guy from ICE. He's a deputy field office director. He knows virtually nothing about the case. And, you know, the guy apologizes, asks for grace. David Fuller asked for grace, and today the judge issued an order after the—just a couple hours ago, the certificate of compliance has been filed.

He's gotten his property back. At this point, she lifted the civil contempt. She said it was purged. She didn't charge him anything, but she said, you know, you've asked, she writes again and again and again, and to other judges in this district, again and again and again, and each of those “agains” has a footnote to a written ruling where the person is complaining.

And in fact, Isihara himself, two weeks earlier, she had called him in to explain why haven't you followed an order? So, you know, she's saying she understands they lack basic resources, they lack basic training, but there are consequences to the petitioners, and she's got to do something and she can't just keep—

And I think the final part of this story is that the New York Times, you know, when this contempt order was issued on the 18th went to the U.S. attorney's office, Daniel Rosen, and—

Benjamin Wittes: And he made an outrageous comment.

Roger Parloff: —statement, thought, comment. Yeah. And you know what it is without me telling you?

It was, if I can find it.

Benjamin Wittes: It was talking about how it was an outrageous abuse by the judge of power.

Roger Parloff: Exactly. It again, just blames the judge. It's just knee jerk, inane, offensive, and it's indicative of why this situation exists and can't be improved.

Benjamin Wittes: All right. Speaking of situations that exist and maybe can't be improved, Molly, you and Troy were just at the Natanson hearing in the Eastern District of Virginia.

Can that situation be improved?

Wait you're muted, Molly.

Molly Roberts: My bad. Yes. I think it actually can be improved. Troy can agree or disagree with that, but the hearing was about Hannah Natanson’s and the Washington Post's efforts to get her materials that were seized from her, that included her work, laptop and her phone, and, what they described kind of as her entire professional universe returned to her, or at least the data returned to her.

And the upshot of the hearing, I think the judge didn't issue any formal ruling, but it was pretty clear what he was going to do, was that for the review of what materials were responsive to the warrant and then what weren't, and it's likely that the vast majority weren't, that the court will conduct that.

That's what it looks like is going to happen.

So the hearing the—Hannah Natanson’s team, the Washington Post team started arguing that the search was an unconstitutional prior restraint. But the judge didn't seem very interested in that. He seemed to really just want to discuss what should this review look like.

The Post was arguing we should have first crack at this. The government was arguing we should through a filter team. And then the sort of middle ground there was let the court do it. And the hearing was basically a sort of weighing of the equities when discussing what that search should look like.

So the government was saying, this is classified information. It's very sensitive. We don't want counsel for the, for Hannah Natanson or for the Post to be able to see this. And their argument there wasn't very convincing about exactly why. I think Troy can talk more about that, but, and then the Post was saying, this is information that is a different kind of privilege, that is reporter privilege.

And I'm not sure that exactly what reporter privilege was very convincing either. But the judge actually came down—

Benjamin Wittes: Especially because it doesn't exist.

Molly Roberts: Yeah. And we were discussing, Troy and I were discussing after, what did they mean by that? Because they never said, and we were thinking, well, perhaps they didn't say for a reason, right.

They just kept stating, reporter privilege as if it's this assumed thing that exists. But they didn't really confront the question of does it, and to what extent, and under what analysis.

Benjamin Wittes: There's a wonderful opinion by Richard Posner, the former Seventh Circuit judge in which he dissects the myth of the reporter's privilege and how the press took Branzburg v. Hayes, which denied that such a privilege existed, and over years of lower court case law turned it into a quite robust privilege. And he write this, well—

Molly Roberts: If you leave—

Benjamin Wittes: —kind of admiringly, but basically with this, you know, like guys, the emperor has no clothes kind of vibe to it.

Molly Roberts: Yeah. If you read the cross motions, they certainly both cite Branzburg v. Hayes in very different ways.

But there was a particularly kind of spicy moment during this, and I don't wanna monopolize the conversation, so I'm happy to kick it over to Troy for that.

Benjamin Wittes: Troy?

Troy Edwards: Yeah. So there was a detour that I think Judge Porter, the magistrate judge, overseeing the hearing called it a detour, but made it crystal clear that it all revolved around the Privacy Protection Act.

And the judge made it very clear that—a couple things that I don't think were known before. One, he had gone back and forth with the AUSAs, rejecting the warrant multiple times prior to approving it, which was new. And two, demanded an answer to the question of whether the AUSAs knew about the Privacy Protection Act and didn't put it or didn't know about it and didn't put it.

And so—

Benjamin Wittes: And did he get an answer to that question?

Troy Edwards: He got an answer that the AUSAs involved, you know, in full disclosure I worked in this office, I know these folks. The AUSAs involved, Gordon Kromberg spoke publicly to the judge after the federal programs branch attorney answered the question by saying he was not involved in the warrant drafting.

Judge Porter didn't take kindly to that and still pushed for answers as to the department at large’s approach to not putting any language about the Privacy Protection Act.

Gordon Kromberg then answered afterward by saying he was aware of the Privacy Protection Act but did not put it, after DOJ practice dating back to 2013 through 2020, not putting language about the Privacy Protection Act because it was the department's view that it doesn't apply in these circumstances and he was relying on the WikiLeaks litigation and case law that came out of that.

And so that's all to report what happened. I think Molly and I were talking afterward about our thoughts on, I don't wanna speak for Molly. We've actually had a lively debate about this case. Her coming from a reporter's view and my coming from a national security prosecutor's view.

I will say, I think I have now shifted after hearing both sides, Amy Jeffress represented Natanson, the person who is aggrieved here, right, whose phones and technology was taken. I think she had the best of the three arguments, from the Washington Post argument, the government's argument, and Amy Jeffress argument, which was to say that two things:

One, this was a completely overbroad search and seizure. That it was historical in nature, that that search warrant was executed on the reporter's home. And that importantly, no steps were taken before that. And I'll get back to that in a second, that the government went straight to this search warrant.

And then second, this is a, Amy Jeffress, who has a lot of experience in the Department of Justice has a TSSCI clearance, and has worked repeatedly, full disclosure, including with me, on the other side of me in cases, with government prosecutors to meet in the middle with main justices litigation security group, to navigate classified information together so it doesn't get to this stage.

And so I think it's really important to say, after now reading the briefs and seeing these arguments, it's clear to me we should not be here. I, it, I'm not sure what happened, but the government often will try and—look, the premise here is they are aware there's top secret security and top secret classified national defense information on a device.

And so the government, I think you would hope your government wants to retrieve that, so it doesn't then disseminate and risk grave danger to national security interests. But there are a number of steps you can take before executing a search warrant on someone's home. And to hear that those steps weren't taken is concerning to me and I query whether that was coming from the top down in a rushed adventure.

And in terms of the Privacy Protection Act not being included, I just wanna clarify something for those who are listening or reading and may not know this, maybe it's obvious. The FBI agents are actually not the ones, often, writing these, right? It's, it is common for the attorneys to be writing these.

Now, of course, the agents are the affiant, and so they have to verify the accuracy and know this material. But these agents, I keep throwing all these disclosures in, I know the agents as well. They're very good and they're experienced agents. The agents review it for accuracy. It's the lawyers that ought to be responsible and leading these agents through this process.

And so Judge Porter pointed something out that's really important. That even under the current guidelines in the Justice manual, a search warrant like this has to go to the attorney general, right? And the attorney general or the deputy attorney general and the AAG for Crim, or National Security Division had to have reviewed all this and approved it. And that Privacy Protection Act language was not included.

Now, pause for a second. It's not clear to me, the Privacy Protection Act language is a necessary inclusion to determine whether or not there's probable cause to believe that evidence of a crime will be found where you're trying to search. For example, there are a number of internal deliberations. The department often engages in from the Office of Enforcement Operations when they're trying to decide whether or not someone you are executing a search warrant on is a member of the news media, for example.

You would send this analysis to that area of the department. They will make a determination. If they say no, then you can go forward with your search warrant. You're not including that process in your affidavit, and I think that's appropriate. You don't reveal all of that deliberative process behind the scenes.

Pause. Whether you should include it is a different question. And the question in my—and it's different here because of how uniquely tied the Privacy Protection Act is into the actual act of searching a reporter's home. And it's really, if you wanna maintain credibility with a court and you wanna maintain credibility in your investigation you ought to include it.

And the fact that it would go all the way up and back down forces you to wonder, did leadership not know about this Privacy Protection Act? Or did they know about it and intentionally not include it? And I think that's a really important question.

Benjamin Wittes: Alright. Quick question before we move on. Any further indications of whether Hannah Natanson is a subject of this investigation or whether she's just a drive-by shooting victim?

Molly Roberts: It didn't—you can tell me if you disagree, Troy. It did not seem to me like she was a subject of this investigation.

Troy Edwards: No, I think all parties, they didn't address it directly, but they talked about it as if she's not, I think something that did come out,

Molly Roberts: Yeah.

Troy Edwards: was important here, and it gives life to the movement's arguments.

The government admitted, I think as it had to, that the plain view doctrine will apply while the government is engaged in the search of all of these records. Keep in mind, this is her phone or computer or smartwatch.

If there are, as the Washington Post says, you know, hundreds of sources, then—and in fact the Washington Post counsel then said something that I didn't know before, which is that it includes court sources and that was revealing, I think, publicly.

And so if that's, and they said that to call into question whether the judge even ought to be running this filter. But if that's true and the government was asked by the judge, will you waive the plain view doctrine here and the government, I think correctly said, well no, because you can imagine a world where they see evidence of someone saying, I know where the body is. They can't, certainly can't wave before they've looked.

But that is the point from the Washington Post perspective, that they're now going to search all through these other sources to find stuff related to this underlying Espionage Act case. And if plain view applies, they may seek new warrants. I think that's the point that the Washington Post is making of this overbroad search.

And I want to end by saying it is something we could have avoided, right? You could have worked together with DOJ’s litigation security group to avoid a lot of this.

Molly Roberts: Unless this is the point which, you know.

Troy Edwards: Right. Right. Fair.

Benjamin Wittes: Alright. We have a bunch more material to get through and so I'm gonna ask everybody to be brief.

Which particularly affects Roger as we go through the next round, which is our weekly immigration roundup. We're gonna try to speed through some of this stuff. But first, Eric, I hear that a district judge has enjoined ICE enforcement actions at churches. What's going on with that?

Eric Columbus: With all the usual caveats that this applies only to the plaintiffs and the suit, which actually represent a somewhat significant large group of churches, and it only applies to certain type of enforcement actions. It does not apply to actions with administrative warrants where they're looking for a specific person that have been authorized by a supervisor, the judge determined that he did not have jurisdiction there.

Basically, there was, in 20—the previous policy under Biden and predecessors was having a what's, quote, unquote, sensitive places policy that restricted the places where you could conduct immigration operations in general. Generally limiting places such as hospitals, schools and or religious institutions. And it basically said, to the fullest extent possible, you shouldn't do this sort of thing. And there was a—it was really putting a strong thumb on the scale with not letting it, not prohibiting it in general.

The Trump administration put basically a thumb on the opposite scale, side of the scale, basically saying that you can do it where necessary, and it very well may be necessary and you don't need to get approval beforehand if that's difficult to do. Bunch plaintiffs went, plaintiff churches went in and sued under, among other things, the Religious Freedom Restoration Act, which says that the government cannot burden a, cannot impose a substantial burden on religious exercise unless it's to advance a compelling government interest and it's the least restrictive means of doing so.

And the court first found that these churches have standing because they stated and provided declarations that people were less likely to attend services and other church activities because of fear of enforcement operations there.

And then concluded that this was, there was not, this was not the least that this did in fact burden the exercise of religion, that was not the most restrictive means of doing so, as evidenced by the fact that it had not been done, that enforcement operations existed before 2025 without giving free reign to immigration agents in this way and therefore enjoined the activities.

But it applies—

Benjamin Wittes: This is just in Massachusetts, right?

Eric Columbus: Well, it applies to, it's a bunch of national churches, so it may apply elsewhere.

I believe it applies elsewhere as well, but only as to those groups, and to those specific church organizations.

Benjamin Wittes: So check which church, you know, if you prescribe which church you're gonna be a member of check the caption in this case, 'cause whether ICE can come get you in the church, may depend on which church you're a member of.

Eric Columbus: And ICE was very, DHS was very angry in response. And they said, they put out a statement saying, we do not raid churches. And that, I think depends upon the definition of what a church is. I do not think there have been reports of them, like literally invading a church service and grabbing someone, but they're having a lot of actions on church grounds,

Benjamin Wittes: Right.

Alright, Roger. We have a hearing in on the administration's new policy of detaining, without warrants, all refugees in Minnesota who have not adjusted their status to lawful permanent residents within a year. What is the status of that and how did the hearing go?

Roger Parloff: Yeah, this hearing the plaintiffs are looking for a preliminary injunction.

There's already a TRO against this brand-new policy interpretation of a law that's been interpreted otherwise for 40 years. And it would require they say that it requires the government to arrest and detain every refugee. They're applying it in Minnesota, there's 5,600. On the one-year mark of—If after one year they have not become have not applied to become, or have not become a lawful permanent resident, which is basically all of them, 'cause I think you have to live for a year before your eligible.

So, the night before the government issued a new policy fleshing out the reasons behind, defending their new policy and making it sound, implying that it was gonna be enforced more reasonably than it has been, but not really backing down from any of their positions.

So it looked like the judge, John Tunheim, who's a Clinton appointee, was tending toward the ruling for the petitioner's.

Benjamin Wittes: Alright. Meanwhile, another big week for Palestinian students at this time at Columbia. An immigration judge has ended the removal proceedings for motion Mahdawi, who we've talked about on the show before, and who was an LPR and who the Trump administration had arrested back in April and attempted to deport under that noxious foreign policy provision.

It seems like the administration's running up a list of losses between this guy and Ms. Öztürk, who's not Palestinian, but who is a pro-Palestinian, what's going on and how much legs does this have?

Roger Parloff: It might not have much legs. But it's another brave immigration judge who did dismiss the removal.

Benjamin Wittes: Can be an ex-immigration judge.

Roger Parloff: Yeah. Did dismiss the removal petition without prejudice, so that's an important thing.

Weirdly, the Rubio letter—and Mahdawi is out, he was let out on habeas by a district judge in Vermont, and that case is now at the Second Circuit. But this is a parallel, you know, the immigration case continues. Apparently, the letter from Rubio saying that his presence in the United States in foreign policy lacked authentication. And it was dismissed on that, on those grounds. The government took the position, it was self-authenticating.

She disagreed. It, like I say, it's dismissed without prejudice. You would think it wouldn't be very hard to fix that, but apparently it sounded from the letter that the, Mahdawi’s lawyer wrote to the Second Circuit, like they, that the government may appeal this to the BIA, the Bureau of Immigration Appeals.

But in any event, it's a live, ongoing issue one way or another, and the habeas is not moot and the Second Circuit case is not moot.

Benjamin Wittes: Speaking of people who are not in custody, Kilmar Abrego Garcia, a perennial favorite of the show will not be taken back into custody according to Paula Xinis.

Roger Parloff: That's right. According to Paula Xinis.

Benjamin Wittes: That's Judge Paula Xinis to us, but,

Roger Parloff: Yes. Right. And this is another, a sort of weird one. If, when last we left you on December 11th, I think, she had released him on habeas because it turned out there was never any notice that there was never any order of removal.

And the same day that she, there was an order saying don't send him to El Salvador. There's an order of withholding, but there was no order of removal that the order of withholding was to prevent him from happening.

Benjamin Wittes: Usually the order of removal precedes the order of withholding of removal.

But, you know, so.

Roger Parloff: I think the same afternoon as Paula Xinis’s order, the government had a ex parte proceeding with an immigration judge, and no one knows how the judge was picked and the defense wasn't there, but he said instantly this was a scrivener's error. And we're making, we're putting in the order of removal into the earlier order, no proton meaning now for then effective October 19^th—October 10th, 2019.

And, the, her people and, then they tried to start removal proceedings and she issued a TRO to stop them from taking him back into custody. And this week she extended that and made it permanent. And she sort of, tries to hoist the government on its own petard, saying, well, if it's non pro tunc, then you've had since 2019 to remove him and you haven't.

And he's done a ton of time in custody. You know, you're, there's a presumption that you won't be, have more than six months. So, I'm releasing him under, you know, the, that Avidus decision we've talked about before. And so, that's where that one stands right now.

Benjamin Wittes: Alright.

Wilder, Idaho, not usual fare for Lawfare Live discussion, but we have an ACLU class action suit stemming from an immigration raid there. What's up with that?

Roger Parloff: Yeah, that's a really interesting case. We don't have many, we don't talk about many damages suits, for good reason. This is a dam—a class action damages case that the ACLU filed, I think last week, but it took me the weekend to get on top of it.

And it relates to a raid that occurred in October. 200 joint task force, state and federal people, 200 of them descended on a Latino festival in Wilder, Idaho—400 people, families, a horse race. And they zip tied all the, there was a, you know, helicopter, there were five armed vehicles, armed, you know, people, guns out, tasers and 400 people, all the adults zip tied and many of the teenagers all searched and their belongings put in plastic bags and hung around their necks.

And it's interesting on a couple different levels. One is that the theory of this, which has been used in other places was the, of the government's theory was that they got arrest warrants for five people, including the property owner, for unlicensed gambling. And then they also got a property search warrant. And so they theorized that permits them to also search, you know, hundreds of Latino people on the property at the time.

The ACLU filed suit and the big hurdle here, and the reason we don't talk about damages suits with government employees is that you know, you can sue state officials under the civil rights laws, but tho—you, they don't extend to federal officials. And so the only way used to be something called a Bivins action, but it really doesn't exist anymore.

And there's also a federal tort claims act, but that's not a very, it's the money is not paid by the officer, so it's not really much of a deterrent. And it's not much money. You can't get punitives, you can't get pre-judgment interest.

So here they theorize that the, it was a joint task force, so the federal officers were conspirators with the state officers and they try to sue the federal officers under the state civil rights act that way. So that will be sort of an interesting thing.

Benjamin Wittes: Interesting. All right.

Meanwhile, speaking of civil rights violations, the U.S. Attorney's Office in New Jersey has admitted that it violated more than 50 court orders in immigration cases over a rather short period of time. What's the context of this admission and what do you make of it?

Roger Parloff: Yeah, the case is Kumar v. Soto. It's before Judge Farbiarz, it’s the same judge who handled the Khalil case, and I guess he was getting frustrated with failure to follow court orders in New Jersey, and he ordered that somebody compile the numbers going back to October 5th, and—I mean December 5th, I'm not sure how he chose that date.

And the figures were provided on February 13th, so that's a little over two months. And by the chief of staff to Deputy Attorney General Blanche, Jordan Fox, who also, who has a lot of titles, including special attorney in New Jersey. And she, they listed 52 and they seemed to be proud of that number.

She, they kept saying out of 547, you know, that's, we got 90%, barely 10%. You know, and it included 17 times where people were transferred out of the state in violation of court order and one time where they were removed from the country in violation of court order.

Benjamin Wittes: Lovely. Troy, what's the right answer?

If you're asked as a—you've been a recent member of the U.S. attorney's office, somebody asks you, a judge asks you: How, what percentage of orders of this court has your office violated? 500 cases. There's gonna be some screw ups. What's the, what's a number that an office should actually be proud of?

Troy Edwards: Zero.

Benjamin Wittes: Oh, okay. Checking—

Troy Edwards: I'm just gonna throw that out there. This is not one of those weird UChicago Law circumstances where people talk about the optimal number of deaths per year being non-zero, 'cause, you know, for the economy, right. We're not engaging in that.

The reality is the answer should be zero every time.

Benjamin Wittes: Okay. So we're just not violating court orders. Is that the…?

Troy Edwards: Typically, when I supervised AUSAs, I would advise them that we had a zero-tolerance policy for violating court orders.

Benjamin Wittes: Okay. Just checking.

Alright. Last item on our immigration roundup. The Second Circuit has not stayed a order blocking Kristi Noem from ending TPS for Syrians.

I gotta say the case for ending TPS for Syrians is a bit better than the case for ending it for Haitians. But I'm glad for any TPS that doesn't get removed, that doesn't get ended. What happened here?

Roger Parloff: Yeah. 6,100 Syrians, they had been so, judge, in Manhattan, Judge Katherine Failla had blocked the termination of TPS for them. And that went to the Second Circuit and the Second Circuit denied a stay. So they keep their TPS status for now.

And it is in conflict with a recent Ninth Circuit ruling from a week or two ago. Which the, what's coming—one of the key issues, there's this, TPS has its own jurisdiction stripping statute, right?

And it says basically the secretary's determinations don't get judicial review. And the way around that, for those that have been willing to go around that is to say well, I'm not appealing her determination. I'm saying she didn't arrive at her determination by using the proper procedures.

And Second Circuit joins those courts that have taken that route.

Benjamin Wittes: I cannot promise you many things in life, Roger Parloff, but I promise you, when the Supreme Court considers this issue, they will be on the other side of it.

Roger Parloff: Well, and there are two Second Circuit—I mean, Supreme Court stays in the Venezuelan case that sort of hint that might be the way they're looking at this.

Benjamin Wittes: Yeah. TPS is a wonderful program and I love everything that slows down getting rid of TPS protection for anybody, frankly. But this one is not going to have legs, I'm afraid.

Roger Parloff: Oh, and this is—the panel was three Biden judges, so, yeah. Yeah.

Benjamin Wittes: Alright. Finally, Anna Bower. She, you know, we said she was gonna be here. She disappeared into a black box, and there's a reason for that—

Which is that she was doing a deep dive, heroically, during the show on the amended motion in the Fulton County suit to get the 2020 ballots back. While you've been watching the show, she's been pouring through the amended motion.

Anna, what do we know? What's going on in?

Anna Bower: Well, actually it's the response to the amended motion.

Oh yeah. It's Fulton County's response. Yeah, sorry.

Anna Bower: No, it's, no, it's—

Benjamin Wittes: Oh, it's the government's response?

Anna Bower: Yes. The government's response. So Fulton County filed their amended complaint earlier this week, or I guess I should call it, what are we calling, a Rule 41(g) motion? I know we call it—

Benjamin Wittes: —possession.

Anna Bower: So it's actually kind of more complicated though, because it technically is a motion, but when it is in the context of not being in an active criminal case, like I read authority, that it's technically a civil action and equity. So is it—but it's not a complaint.

So it's—

Benjamin Wittes: We're not gonna fight about this on this show.

Anna Bower: Okay.

Benjamin Wittes: The civ-pro people can fight about this in, you know, in law schools.

Anna Bower: Point is the, we, earlier this week we got the amended complaint in which Fulton County goes through their reasons why they think that the affidavit supporting the search warrant for getting the ballots in Fulton County is not sufficient. And as a result, because they've been aggrieved by unlawful conduct of, you know, a search that happened without sufficient probable cause, they should be able to get all the ballots back.

So the government just filed its response. I will say that there's a lot of interesting things in both of these motions.

On the Fulton County side of things, in their amended 41(g) motion, I think the thing that is really interesting is just how much the government omitted from its affidavit. And we talked a little bit, I think we mentioned it at one point that, oh, maybe in challenging this affidavit you do a kind of Franks v. Delaware type of hearing or type of claim.

Although it's a little bit weird in this context because it's a rule 41(g) motion, and it's not in the context of an active criminal case. But basically, what you would usually do in that circumstance is challenge the validity of the warrant by saying that there were knowing or reckless misrepresentations, or knowing or reckless omissions that were made in the affidavit.

And Fulton County got this election expert, Ryan Macias, who in 2020 was one of the guys who was advising and has been, you know, very involved in Georgia election processes and knows a lot about it, to write this declaration explaining all the different ways that this affidavit—really just admit some critical context about elections and how they work in Georgia.

And I definitely recommend that because honestly, that was the thing that got me, reading the affidavit was like, I know a lot about how elections work from,, in Georgia, from my reporting and from being a long-time Georgian. And I was just like tearing my hair out, like reading these statements that are just clearly not reflective of how the voting process works.

The things that are, I think are really interesting in the government's response—One of the major issues might be standing, here, because the government points out that the suit to get the property back was brought by the Fulton County Board of Registration and Elections.

Now under Georgia law, the clerk of the superior court is actually the custodian of these records, and that's why when, initially, they went and got that warrant I think that they had to then go back and get a second one to amend it so that they could access just the part of the warehouse where these materials were that were the clerk's storage, not like the Board of Registration and Election storage.

And so here you have this kind of interesting situation where the plaintiff is the Fulton County Board of Registration and Elections, but the clerk is actually the person who's the custodian of records. So the government's arguing that there's no possessory interest in this property that the Board of Registrations has, and that, you know, for that reason, they don't have standing to bring this claim.

Another thing that I think is interesting about this motion is that they're arguing that you don't have to have—you don't have to show probable cause for every element of the stated offense. I think that's actually different in various circuits. I did a quick check on it, 'cause that was new to me—

I've done some probable cause hearings in Massachusetts. And I, we always—My understanding was the law of the law was that you have to have probable cause for every single element of the stated offense, the government is claiming that is not the case. I took a quick check though at some of the cases that they cited and they really admit, it's kind of one of those where they'll do a few words and then a dot, and then you, they'll do a few more words in the sentence, and when you go and check it, you're like, oh, actually those few words that you left out were really important, critical context.

So I'm not sure how we should assess that claim yet, Ben, but a few other things though, too, is just that they noted that the clerk of the superior court—'cause a part of this motion, right, is that like the county is saying like, we need our property back. We need these ballots back.

But the government cites here that in a recent hearing in Fulton County Superior Court, the clerk went before the court and requested to destroy the ballots, saying that the county no longer needed them, and that, you know, it had been years since the election and so they should be allowed to be destroyed.

So the government cites that as a reason of like, oh, there's no need for the county to have these records back, 'cause they wanted to destroy them anyway. And meanwhile we have an ongoing criminal investigation.

But, so those are some of the things I would just point out that are interesting on first read. Otherwise, you know, really just remarkable that this is a Stanley Woodward brief and he's citing the 11th Circuit decision in the Mar-a-Lago overturning the—

Benjamin Wittes: Excellent. Tulsi Gabbard’s name on the brief? 

Anna Bower: Who?

Benjamin Wittes: Tulsi Gabbard.

Anna Bower: Tulsi Gabbard’s name is not on there, but it does look like

Benjamin Wittes: Any pictures of her?

Anna Bower: No, no pictures of her, no references to foreign interference. But again, also it's just so remarkable that, like, the United States Justice Department is saying things, and they're quoting the affidavit, so like, I get that.

But like saying things that are just completely not true about how elections work in Georgia, it's like just the most ridiculous, kind of, claims and literally the like, I just can't get over the fact that we're using the Kraken litigation pristine ballots claim in the year 2026.

Like, I just cannot believe that this is where we're at. So, yeah, that's all I gotta say about that.

Benjamin Wittes: We’ve got one more thing we gotta get through, Eric, wery briefly.

I understand that a federal judge has ordered the slavery exhibit restored to the president's house in Philadelphia. And I just wanna say, was slavery really that bad, that we have to have it all over, you know, all of these exhibits?

Eric Columbus: Yeah, so it's interesting case. It was very, it was—the Third Circuit just issued an administrative stay basically saying that the government does not need to do anything for the time being—

Benjamin Wittes: Oh, so slavery wasn't that bad after all?

Eric Columbus: So, exactly. It's one of, I mean, basically the case that they—

Benjamin Wittes: Did they involve—on that decision?

Eric Columbus: I don't think so. I think it was Judge Hardiman. I didn't notice that the other two judges were—

Benjamin Wittes: Okay. Just checking.

Eric Columbus: The issue is whether—Trump basically had his executive order early last year that said you know, we shouldn't have bad, we shouldn't emphasize bad things in American history and et cetera, et cetera. Maybe you could call it his “accentuate the positive” executive order. And it's—

The City of Philadelphia sued claiming that—sorry, back up. There is this house in Philadelphia that was discovered, maybe 20 years ago, that belongs to, it was where George Washington first lived as president in, I guess 1789.

And this was made part of Independence Park, part of National Park Service exhibitions, and the city of Phil—and the Trump administration took down various displays about slaves who had lived in that house and who had constructed that house. And the city of Philadelphia sued and said it was basically contrary to agreements that it had with the government.

And this was contracts with the head, with the federal government over the course of decades, and the judge agreed.

This has now been put on hold by the Third Circuit and there'll be fuller briefing next month on the merits of the government's request for a stay, pending appeal, which as we've seen so often these days, is where the real action is on state requests.

Benjamin Wittes: We are gonna leave it there, folks. We've gone from tariffs, to slavery, to Fulton County, to the walls of the Justice Department in an hour and a half.

We're gonna be back next week with dogs, and we will see you then.

This has been a podcast produced by Lawfare and our audio engineer is the very estimable Anna Hickey.

You should become a material supporter of Lawfare and join us in the studio while we record these, you can get your questions answered by Peter Harrell about tariffs, by Roger Parloff and Anna Bower and Eric Columbus and Troy Edwards. We can answer your questions. Go to lawfaremedia.org/support.

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