Lawfare Daily: The Trials of the Trump Administration, Jan. 16

[Intro]

Benjamin Wittes: It is the Lawfare Podcast. I'm Benjamin Wittes, Editor in Chief of Lawfare with Lawfare Senior Editors, Anna Bower, Roger Parloff, Michael Feinberg, and Molly Roberts. In the January 16th episode of The Trials of the Trump Administration, we talked about the investigation of Federal Reserve Chair Jerome Powell,

Not to mention of Letitia James's relationship with her hairdresser, Senator Mark Kelly's suit against the Department of Defense, Illinois and Minnesota's lawsuits against the Department of Homeland Security over the increase in federal immigration enforcement agents in those states and much, much more.

[Main Episode]

It is Friday, January 16th, 2026. It is 4:00 PM in Washington, D.C. and you are watching Lawfare Live, The Trials of the Trump administration. I am Benjamin Wittes, Editor in Chief of Lawfare, and I am here with four Lawfare Senior Editors, in order of in which they happen to appear on my screen, Roger Parloff, Mike Feinberg, Molly Roberts and Anna Bower.

And we’ve got a lot of ground to cover today. And just looking at our planning document, the politicization of the Justice Department section is particularly long and meaty, and it involves words like “Letitia James's hairdresser,” so I'm excited about it. Let's get right into it.

Let's start with the search of the Washington Post journalist's house.

Molly Roberts, this is a former colleague of yours, and I believe if the gossip trail is correct, a former high school mate of yours. Is that right?

Molly Roberts: That's right, yeah. Depending on your definition of colleague. We worked together on the high school newspaper, the college newspaper, and at the Washington Post, but I know her, I don't know her well, so I do not consider myself conflicted in the matter.

Benjamin Wittes: Alright, so who is she and why did they execute, the FBI execute a search warrant at her house?

Molly Roberts: So her name is Hannah Natanson. She's a reporter at the Washington Post and has been for several years. She covered education and other matters on the Metro staff for a while, but she's been covering more recently national stories.

She made a pretty big splash last year covering federal employees affected by DOGE, and this year, recently, she was covering, with her colleagues, Venezuela. Last week, this week, I suppose, on the 14th, early in the morning, the FBI showed up at her home in Virginia and seized her work computer, her Garmin watch.

And they told her and the Post that they weren't targets of an investigation, but reports suggest that the search warrant was connected to a case against a federal contractor, a system, well, a systems administrator employed by a federal contractor, who has been indicted in Maryland for taking notes on information from a classified system.

He's accused of taking a screenshot from a classified report on an unidentified foreign country that people speculate to be Venezuela. So there's the connection between Hannah Natanson’s story and what this guy's accused of having done.

Right now, he isn't accused of disseminating that information, but in one of the filings they said they were concerned that he would, and so the thinking here, or my understanding of how a case like this would or could normally proceed is that there could be a superseding indictment down the line if they gather more information that does accuse him of disseminating this information, possibly to Hannah Natanson, the reporter.

Benjamin Wittes: Alright, so there's a lot here, and let's start with the belief that she is not a subject or target of the investigation.

You know, whenever somebody discloses classified information and somebody then, who is not authorized to receive it, say a reporter, publicizes it, you have a technical question of whether there is a second violation of the Espionage Act, which forbids in sections disclosures by people who are not entitled, to people who are not entitled to receive it, and then people who are not entitled to receive it or to have it, right.

So, this second provision, which by its terms does cover the press, has really never been used, at least not against the press. It's been sometimes once or twice it was used with, in, in the famous AIPAC case, and of course it was the basis for the settlement with Julian Assange.

Molly Roberts: That's right.

Benjamin Wittes: Do we have any reason to think that the Trump administration means to change a longstanding policy of not going after secondary transmitters to the extent they are members of the press? Or is this, as in, do we have any basis to know, is this an effort to go after the Washington Post, or is this merely an effort to use the Washington Post to go after a leaker?

Molly Roberts: Right. So I think there are a few things they could be trying to do here. One of them, which would be sort of the least nefarious, would be they're trying to build their case against this particular leaker. And like I said, there could be a superseding indictment down the line where they do accuse 'em of disseminating information.

And so that might be evidence that they're able to get from the search that they're, that they did of Hannah Natanson’s apartment and whatever they can find on her devices. So that's one.

Two, and there isn't any evidence that they're doing this, but, Pete Hegseth has certainly said a lot about his desire to crack down on leakers generally at the Pentagon, and sort of to sniff them out.

It's possible that they want to learn not just about this guy, but about other sources that Hannah Natanson has. And again, she did a lot of reporting on DOGE-related stuff. There's nothing to nothing concrete to support that. Only the rhetoric of the administration.

And three would be, they wanna go after journalists, like you said. And again, there's nothing to support that except the rhetoric of the administration. But I'm pretty sure President Trump has said things to the effect of, well, we can use the Espionage Act to do that.

Benjamin Wittes: Alright Mike, you have been on the other side of this and is it fair to say that, up until this administration, there is no chance that the FBI would have executed a search warrant against a journalist if—in a leak investigation, that this is a novelty of the current administration.

Michael Feinberg: I'd say it's certainly a novelty since the early years of the Cold War. I was not able to do as much independent research on this as I wanted, but I would not be surprised at all, for example. In fact, I would be surprised at the opposite. I would expect that during the COINTEL program maybe, or even before then, there were efforts to intercept and interfere with the freedom of the press of small, far-left, socialist and communist leaning outlets. But at least since the days of the Church Committee, and the Pike and Rockefeller commissions, and the post-Watergate reforms, I'm really not aware of a time that the government searched a journalist's residence for reasons that had to do with the journalist's work.

There is always the case that they could have searched a journalist residence for a crime unrelated.

Benjamin Wittes: Right. Journalists are not immune from criminal investigation by being journalists.

Michael Feinberg: Exactly. If you're an embezzler who happens to be a writer, you're still an embezzler and you don't get First Amendment protections for pilfering cash from a retirement fund.

But yeah, this is out of the ordinary enough that the morning the story broke, I got messages from a number of other formers who had supervised and managed major media leak cases that were a combination of shock and disgust that this had been allowed to happen.

Benjamin Wittes: And, you know, in the last administration there was a real effort on the part of Attorney General Garland to reestablish kind of comedy on these search issues with the press.

And he issued a memo that basically said, ‘when are we going to get do searches on journalists? Like basically never,’ and—

Michael Feinberg: I wouldn't give all the credit to Merrick Garland. What he actually did was restore a number of internal safeguards that were promulgated by Eric Holder during the Obama administration, in order to sort of push back against the notion that Obama was coming down harder on leakers than any other president in history.

And I think to sort of offer some solace to the base, at that time, that the administration was not gonna get over its skis and punished journalistic critics.

Benjamin Wittes: Right, but the Garland memo went beyond what Holder had promised.

I mean, it was a pretty strong document. Is it fair to say that stuff is all out the window at this point?

Michael Feinberg: I think so. You know, Pamela Bondi released a flurry of AG memos that all essentially come down to being more aggressive, including in these types of cases. And they started in February 4th.

These things always take a little while to drip down. But suffice to say what we saw this week is something that would've never happened in any of my investigations under Obama or even Trump one, or, you know, the Biden administration. The only real analog I could think of is when James Risen’s toll records were subpoenaed or when they you know, went after, I'm forgetting her name, everybody else is gonna remember it, Iraq War confidential source threatening—

Roger Parloff: Judy Miller.

Michael Feinberg: Yes, Judy Miller. Those are really the only somewhat analogous incidents I could think of, and they're not as severe as a pre-dawn search of somebody's house.

Benjamin Wittes: And why, dumb question, but to either of you, why is it appropriate if you, if person X is not suspected of a crime and is not the subject of investigation, why is it appropriate to execute a search warrant? Leave aside whether she's a journalist against her house, if you know, merely on the suspicion that there might be evidence of somebody else committing a crime at that point, at that house?

Michael Feinberg: Well, let's put aside that this is, you know, it's—we would never be asking that question, were it not a media leak investigation.

Federal agents, the Justice Department or other law enforcement agencies, search the houses of people who are not under investigation for evidence of other people's crimes all of the time. The warrant requirement doesn't require that the owner of the facility be the subject of the investigation. So, you know, if we cabin the First Amendment argument, this really isn't that out of the ordinary.

Benjamin Wittes: Alright, so let's focus on the First Amendment arguments for a minute. One way to look at it is to say, ‘wait a minute, this is searching a journalist's house to get information of about the journalistic process. That's a First Amendment problem.’

Another way to look at it is to say, ‘yeah, but Branzburg v. Hayes, there's no journalist privilege.’

And so if you, and not all journalistic evidence gathering or fact gathering tactics involve legal behavior, at least on the part of the sources. And so, if you're investigating a source's illegal behavior, why and how should the First Amendment insulate the journalist from essentially shielding that?

And I'm—traditionally, the FBI has taken the position that the first analysis is legally correct, but as a prudential matter you're gonna respect the interests in the second analysis. What's your sense of the right way to think about it?

Michael Feinberg: So I wanna push back gently on one of your assertions, which is that the FBI has always thought about it in the former sense.

I know very few FBI personnel who think about it in that sense. But the FBI cannot do anything without the permission and cooperation of main justice, which very much prioritizes the potential First Amendment concerns.

I'm going to, I wanna pull back a little bit and talk about this on a more philosophical basis to sort of explain the argument as to why we might not be horrified that a journalist’s residence is being searched.

You know, the reason we investigate leaks of classified information, in any context, not necessarily to newspapers, but to foreign intelligence services or to terrorist organizations or to private industry, is that we sort of as a society and as the Supreme Court have recognized that like there is a legitimate interest in protecting the government secrets from those who would leverage them to harm our citizenry and/or our national priorities.

And you know, one thing that really never gets talked about is if a journalist publishes those secrets, they are there for those foreign adversaries to read just as ably as if the foreign adversaries had received them directly. So I don't think you can discount the actual harm to the national interest, into national security that occurs when there is a media leak.

It isn't just a matter of the government's feathers getting ruffled because they didn't want the public to know something. It's that the very people who are not supposed to know that outside of the United States now do, and that argument never really gets verbalized for reasons that are obvious. The press has a vested interest in promoting the other argument and they're the only ones really reporting on this.

Benjamin Wittes: Right. Understood.

But it is true that historically—you don't disagree that historically the government, through the Justice Department, has created without acknowledging that they are legally required to do so, has made a lot of prudential, given a lot of prudential weight to the press’s point of view here.

Right? And that this marks a real change from that.

Michael Feinberg: Yes, it does. But I would also argue that there have been many societal changes, particularly over the past 15 years or so that do require the government to at least rethink its presumptions, if not change them, which is namely in the latter days of the war on terror and as great power rivalry comes back to the fore in American foreign policy.

There is an exponentially higher number of leaks on average on a daily basis than there ever has been before in history. Now there's a whole bunch of reasons for that. The national security state expanded drastically in the years after 9/11, which means there are many more people who have access to those secrets, and it's inevitable that some of them are gonna be careless or greedy in terms of how they treat them.

But there's also been a real breakdown and no real consensus in terms of what we consider to be a journalist. Now this is the Washington Post, so this is a pretty easy situation in which we could draw that line. But there's arguments made that Julian Assange and Edward Snowden are serving in a journalistic capacity, and that is something I would argue vociferously against.

But because we haven't decided what actually is a journalist and what is a press outlet, you have to lump everything together. And as a result, I think that many of the people who do these investigations at this point in time are saying we are being way too solicitous of media interests than we ever have been before at precisely the time where the media is undefined, and at least in some of the really famous leak cases, has either wittingly or unwittingly been used by foreign intelligence services.

Benjamin Wittes: Alright, so Molly, one, one entity that has not had a huge amount to say about this so far is the Washington Post. What do we know about either the posts or Ms. Natanson’s posture with respect to this search?

Molly Roberts: The Washington Post says that they're not going to be intimidated.

My, to my knowledge, they haven't filed anything yet objecting to it. It's other organizations that are filing for release of the affidavit and the warrant and all the relevant information. But the Washington Post has largely been saying, internally and externally, this isn't going to stop us from doing our reporting. And when people try to intimidate you, the right thing to do is not be intimidated.

But that's essentially what their posture's been so far.

Anna Bower: Yeah, I think we have heard from the Washington Post, we just have not heard from the guy who owns the Washington Post, which is an important distinction.

So, but yeah, I, my understanding is that the Post has been speaking about this.

Benjamin Wittes: Yeah I guess, I meant less in the speaking department than in the litigating department. The Post is historically an active litigant in support of its interests. And of course, famously was represented for many years by Edward Bennett Williams.

It's, I would have expected them to be in court, although I'm not sure what the mechanism by which they would've gotten there yet would be.

Molly Roberts: Right. That might be part of the difficulty.

Anna Bower: I wonder if eventually you might see, I mean, I have not actually looked to see whether there's any type of exemption under the Privacy Protection Act of 1980 for you know, classified information or espionage act.

Molly Roberts: There is.

Anna Bower: There is? Okay. Then nevermind.

Molly Roberts: Yeah, it's a little complicated though, right? Because there is an exception for the Espionage Act, but it's supposed to be that the journalist is the target of the investigation, that the journalist is accused of the Espionage Act related crime, which at the moment they're saying that she's not, and that the Post isn't.

But if they get to that point, then there's no problem with the Espionage Act. So it's a little murky at the moment.

Benjamin Wittes: Alright let us turn to another place, places where things are a little murky at the moment, which is to say Minnesota, Mike bring us up to speed on the world of a world where when an ICE agent shoots an unarmed protestor, U.S. attorney's office, people have to resign because they're instructed to investigate the protestor.

Michael Feinberg: Yes, they, well, there've been a couple of resignations. There was en mass resignation of senior officials who do criminal prosecutions within the civil rights division who were resigning because they were horrified that the division was not at least going to do a preliminary investigation of sorts regarding whether the shooting was justified.

And then there were group from the Minnesota U.S. Attorney's office who resigned because they were uncomfortable with the fact that the FBI's investigation has chosen to focus not on any ICE officer's conduct, but rather on the conduct of the victim and her spouse. This is pretty out of the ordinary.

We see individualized resignations at times, including during this administration, but even the Eric Adams dismissal in the Southern District of New York did not provoke any sort of exit of these numbers. So I don't want people to underestimate what a big deal this actually is and how much it is going to hamstring civil rights prosecutions, which are already subject to an immense amount of friction, simply because the current administration does not prioritize them unless, as they say they focus on anti-Christian or anti-Semitic incidents.

Benjamin Wittes: And my impression is that mostly the on the ground activity in Minnesota is still, as we discussed next, last week, not yet really in court. Is that right? Or, and that there haven't been—

Michael Feinberg: So there, no, there's, and I think Anna's been following this closer than I have, so please jump in if I get it wrong.

But I think there have been some lawsuits filed, but very recently and not, in the past, enough that they're starting to snowball and affect things on the ground.

Anna Bower: Ben, I can jump in and we can go ahead and jump forward to the brief segment we were going to do on this.

Benjamin Wittes: Yeah, let's do that now.

Anna Bower: The litigation was just, you know, filed this week and is still in a, it's not, it's ripe, but it's still kind of in the development stage.

So, what I'll do is just give you like an overview as opposed to getting into a lot of the details. We'll wait for the government's response and for some of the litigation to develop and discuss it next week. But Minnesota did file a case in which they're arguing violations of the 10th Amendment, violations of the First Amendment related to some of the conduct being carried out by ICE and border patrol officials and the surge of federal officers who are being sent to Minneapolis.

And there's a lot in there. It's a huge complaint. Lots of documentary evidence already that's in there, but the basic kind of argument is that the federal government is sending in this surge of federal officers under a pretext of enforcing federal immigration law, when in fact it's just retaliation for speech by elected officials because they don't like the differences in policy that they have.

And then in the process of carrying out this pretextual immigration enforcement, they're violating the law in, in a variety of ways. So there, there also is a motion for a TRO, but there's not been a TRO hearing yet. All that we've had thus far was a scheduling conference, and I think there was just a joint motion maybe for scheduling. But I would have to look back at the docket. I might be confusing it with the Illinois case because Illinois also filed a somewhat similar suit but has a few more specific claims under the Administrative Procedures Act and focuses more on like the border patrol implementation of specific policies related to use of force and that kind of thing.

So, so we both, we have these two suits now that are challenging and seeking to enjoin various law enforcement immigration enforcement activities in both Illinois and in Minneapolis.

Benjamin Wittes: And do you like, my reaction when I saw this suit was okay, that's two big state AGs offices and both of them are actually fairly strong offices, but that suit's going nowhere.

I don't, without having read any of it, I'm like, well, okay, you're just not gonna get a federal court to refuse to interfere with the president's ability to deploy federal officers. And you're gonna run into the same, some of the same problems that you would run into if it were a military deployment only.

You don't have any of the statutes that purport to limit the president's authority to deploy military force. And so what do you, am I being wrongly skeptical here?

Anna Bower: Yeah, so again I would suggest that you ask me that question again whenever we have a government response. But my initial gut instinct having read these briefs, is that the kind of like overarching broad relief that they request, yes, I think that's right.

You know, when I read one of the requests for enjoining the border patrol enforcement in Minneapolis, you know, that's just not going to happen, right? That is not going to happen. But there might be, because this, these suits they have, both of them have a number of different discreet issues within them as well, especially like the Illinois suit that I said.

There's a number of different policies that are being challenged. There's, you know, various discreet things that I would wanna look into more before I say like, oh, those are going nowhere too. But in terms of the just overarching bottom line of like, we want these federal immigration enforcers out of our city I just don't think that's going to happen.

Benjamin Wittes: Alright.

Anna Bower: But what I will say is that I think, probably what the view of the plaintiffs is who filed this is that, even if they too kind of suspect that to be the case, they might see there to be some type of communicative value of bringing this suit. And then also if there's discovery you know, there could be a kind of value in bringing suit in order to get some discovery related to these federal enforcement actions.

Benjamin Wittes: Right. Not to mention that it creates an address of a federal judge to go to when there are problems that arise. I mean, just having a court with that's looking at the matter creates opportunities on more microcosmic matters.

Anna Bower: Right.

Michael Feinberg: I'd like to add one wrinkle to both of your analyses, that the state does not bring up as far as I know in its initial paperwork and pleadings, but I very much hope they will.

If we pull back and look at the actions that most, that have most caused controversy in Minneapolis, none of them stem from the enforcement of federal law. You know, the apprehension of migrants and their families, that's obviously the enforcement of federal law.

But a lot of the more tumultuous encounters that have occurred when ICE officers have sort of gone beyond their ambit and are doing things that appear to be solely for the purpose of imitation, to which there is no federal statute or jurisdiction.

And it's pretty relevant to note that within Minnesota state law, ICE officers, any federal officers, except under very specific circumstances, which do not apply here, are not peace officers. They have no right to enforce state and local laws, like, for example, an ICE watcher using her SUV to potentially block traffic.

So there, there's, it's more than simply: Are they, you know, carrying out a federal role? It's: Are they using that federal role as a pretext for general population control? And that's, I hope that,

Anna Bower: Yeah. And I think that's like, that is aligned with the, some of the arguments in the complaints.

But we will see, so tune in next week to find out.

Benjamin Wittes: From the heaviest duty stuff to the most ridiculous. Molly, let's talk about Letitia James's Hairdresser.

Molly Roberts: Yes. Lucky me.

Benjamin Wittes: Because, let it not be said that on Lawfare Live: The Trials and Tribulations of the Trump Administration, we do not focus on the big issues.

Who is this hairdresser and what are, why are we investigating Letitia James's relationship with her hairdresser?

Molly Roberts: Yeah. Unfortunately, questions to which there are no good answers, but I will do my best. So this hairdresser's name is Iyesata Marsh, I'm not 100% sure that's the correct pronunciation, and she is the longtime hairdresser of Letitia James, has known her for years.

The reporting is, last month, she was indicted in the U.S. District Court for the Western District of Louisiana, so nowhere near New York. She was charged with bank fraud and aggravated identity theft, and that was in connection to the purchase of a Land Rover three years ago.

The accusation here is that she, and her nephew as well, stole the identity and the personal information of another woman to buy the Land Rover. And I believe that there is reporting from a local publication that says that it was a, it was so that she could obtain, yeah, so she was trying to obtain a $48,000 loan to get the Land Rover.

She wouldn't have been able to do it if she hadn't used the personal information of this other person. It sounds pretty run of the mill. Pretty normal. You know.

Benjamin Wittes: it also doesn't involve the name Letitia James so far.

Molly Roberts: Yeah, it's not a, so far it doesn't there and I have nothing more to say that does bring in the name “Letitia James.”

So the only connection to the woman for Letitia James is that she is her hairdresser. And this is where it gets a little weird. The Wall Street Journal reported in 2019 that Letitia James' campaign committee paid the hairdresser $36,000. And that they also paid her $22,000 to use her studio as a campaign office and a spokesman for the campaign at the time said the payments for professional campaign services, that she was an event manager and the woman markets herself, not just as a hairstylist, she was in Brooklyn at the time, not just as a hairstylist, but also as a brand manager.

So there is some connection between Letitia James other and this hairdresser, other than that the woman did her hair. But there's no accusation that Letitia James was at all connected to the improper acts involving the purchase of the Land Rover.

So this kind of looks a little bit like, ‘Let's see whether people you're close to your friends, your family, your hairdresser, your,’ I don't even know where they could go down the line, your manicurist, you know,

Benjamin Wittes: Did Letitia James fly on a New York private jet to go see her hairdresser and get her hair done?

Molly Roberts: We never know when the next shoe will drop.

Benjamin Wittes: Because I'm still struggling to find out what—Like there was a New York Times alert that the federal prosecutors were looking at Letitia James's relationship with her hairdresser.

Molly Roberts: Yep.

Benjamin Wittes: I'm still trying to figure out what Letitia James is purported to have done wrong in any aspect of this relationship.

Molly Roberts: I wish that I could give you answers. My belief is that they have these numbers that look like awfully big payments that were made to this woman. And then they have this woman totally separately being indicted for this Land Rover related crime. And they say, that looks fishy. Or at least it will look fishy if stir up the,

Benjamin Wittes: Leak it to the New York Times.

Molly Roberts: Exactly.

Anna Bower: Land Rover-related crime is an incredible phrase. I mean,

Molly Roberts: Thank you. I'm not sure I can take credit, but

Benjamin Wittes: Land Rover-related crimes is like the first album of a band.

Roger Parloff, speaking of very large payments and criminal investigations, I hear that Jerome Powell spent a fair bit of money to renovate the Fed.

Roger Parloff: Yeah. Well, the Fed paid a fair amount of money to renovate the Fed. And so, on the 11th, I think Sunday, the reports began to come out that he had gotten a grand jury subpoena, or the Fed had gotten grand jury subpoenas relating to him from Jean Pirro.

And then he put out the video, a remarkable video very poised and blunt saying that this was a pretextual thing. And what's going on, of course, is that, as everyone knows Trump is not happy with the interest rates. They would, he would like Jerome Powell to be advocating for lower interest rates.

And he can't just fire him because he, the Federal Reserve board members are can't be fired without—only for cause. They can only be fired for cause, which means inefficiency, neglective duty, malfeasance of office, typically. And even though the Supreme Court is getting rid of those requirements, people think that it won't get rid of this one.

Now so there's been pressure, he is been sort of exerting pressure on him to resign and his allies have been. And one of the leverages is that and this was just at a civil level is that they were arguing that there was mismanagement of a renovation of two Fed buildings, which has been going, the plans to do this go back to 2017.

And in 2019 the budget was 1.9 billion and it's, the cost overruns have gone to 2.5 billion, so about 30% over. There was a Wall Street Journal article about it back in 2023, a fairly balanced article. There was a, then there was a New York Post article in April of this year of 2025. I mean, and that one was much more inflammatory.

It was sort of the same article, but it was much more inflammatory. And it sort of mixed up the, the cost overruns, it seems clear the cost overruns are because construction costs went up, all the materials. But there are aspects of the plan that looked like amenities. And the New York Post described the buildings as a, like a Palace of Versailles. That was a critic called them that.

And they talked about rooftop terraces and white marble and things like this water feature, ornate water features. So anyway, shortly after the Post article, he went in for his semi-annual monetary policy testimony before the Senate Banking Committee and the night before Tim Scott, the chairman, and well, all the Republicans, sent him a letter saying they want him to discuss this, these renovations.

And then, so there was a two-hour hearing and a couple senators asked him about the renovations. They actually, that's not right. They didn't, one asked him. And the other, Tim Scott sort of talks about it, but doesn't really want him to answer because he doesn't want to give Jerome Powell a chance to rebut him and make him look bad in public.

So basically he says, bring your staff in, have them talk to our staff. But a couple times he tries to speak and does speak and he says, you know, ‘There are no, you know, there are no rooftop terraces, there are no, you know, we're not putting in new white marble. We're not putting in rooftop terraces.’ You know, there were things that were planned that are no longer planned.

And anyway so that's sort of the dispute. And then afterwards he tried to explain some of these things. He said, like, rooftop terrace, it means it's not a rooftop it's ground level terrace. It's a vegetated roof on top of the underground parking area. And it's something the GSA recommends, as you know, for storm water management. Anyway.

But on July 19th or in a letter dated July 19th, issued­—one representative, Anna Paulina Luna, issues what she calls a criminal referral, alleging that he lied. And it's a fairly unintelligible piece of work.

And it's mainly where, as she's saying, he's saying these things aren't being done, but look at the plan in 2021. It's in the plan and it's crystal clear he's explained, ‘Yeah, I'm saying some of those words are being misinterpreted and some, the plan has evolved. We're not doing it anymore.’

Now, you know, you can still say, you know, if you wanna make the argument, he mismanaged, you can, you know, if you wanna say, and that's enough to be for cause and you can terminate him, you know, you can try that argument. But to say that this is perjury or, you know, intentional false statements. It's sort of crazy.

And well—

Benjamin Wittes: Roger, what is the, what do we know about this Justice Department investigation? It's, right now, it's just a subpoena, right?

Roger Parloff: Yeah. And according to the New York Times reporting it seems to be Jean Pirro acting on her own. Pulte might have wanted to do this, but he doesn't seem to have been involved.

She seems to have started it in November. And allegedly she sent a couple emails. I think she has said, implied this. And he didn't respond. And so, after his video where he said he got these grand jury she said, well, he didn't respond to my inquiries. And he's the one that brought up the word indictment as if grand jury subpoena doesn't imply some sort of threat of indictment.

So, that's where it stands. She, according to the New York Times, the predication was these articles in the Wall Street Journal and the New York Post. And I defy you to find something criminal in either of those. But, and that, that seems to be the gist. I would point out that nobody on the Senate Banking Committee signed this criminal referral as it's called and in fact, no other representative signed this.

So it is thin.

Benjamin Wittes: All right. Anna Bower, one person who is not in addition to Jerome Powell taking politicization of the Justice Department, or in his case, the Defense Department criminal and adjudicative process lying down is Senator Mark Kelly, who lost no time getting into court against Secretary of Defense Pete Hegseth over the military disciplinary proceedings that he's been subject to since the suit. A whole bunch of other members of Congress, Jason Crow and Senator Slotkin, have come forward saying they are being investigated by the Justice Department. It appears to be all over the video that they all made about rejecting unlawful orders.

What do we know about Senator Kelly's suit? Who's the judge who's representing him? What do we know?

Anna Bower: Yeah. So, the suit, as you mentioned was brought in the wake of you know, Mark Kelly, in addition to being a senator, is a retired Navy captain.

And after this video in which a number of senators told members of the military that they have a duty to refuse unlawful orders. They were accused of various things including sedition and insurrection by people including Pete Hegseth and Pete Hegseth, in the wake of all of that, sent a letter or issued a letter of censure to Mark Kelly claiming that his conduct, including in that video, and then also referring to some other statements and conduct that he that he did is—

He cited a number of things, you know, disgrace to the military, various provisions of officer conduct that he considered to be worthy of censure. And then also reclassification of Kelly's retirement grade. So, Mark Kelly has brought suit over this letter and reclassification of his retirement grade claiming that this is retaliation for First Amendment protected speech.

There's also a kind of separation of powers, or speech or debate argument in there as well that's interesting. Because a lot of the conduct that is cited by Hegseth are things that Kelly did or said while in while undertaking his legislative oversight jurisdiction related to the military and the executive branch.

And so he argues that all of the topics lie at the center of the Speech or Debate Clause. And then there's also a due process claim in there as well. Ben, this case is before Judge Leon in the,

Benjamin Wittes: Interesting.

Anna Bower: Yeah, always an interesting judge to, to have a case before. I am still in the process of looking at Judge Leon's decisions that he has made previously regarding issues of military law and that kind of thing, but I do understand that he has potentially one decision that he issued a few years ago that might be on point. So I'm going to take a look at that and next week we can discuss.

But you know this, it's an interesting case because Kelly is a retired member of the military, and even though there is Supreme Court case law that essentially kind of justifies restrictions on members of the military’s speech, that justification is a bit different in the context of someone who is both retired and is an active, you know, senator who is exercising legislative oversight functions.

So I think it's going to be a really interesting case to watch. It also has some like really particular and niche nuances in terms of like the military law or veterans law that it involves, which is not my area at all. But it will, I think, be a very interesting one to watch and important too, because it, it involves these questions about, you know, if it's think about what's happening to Mark Kelly, what if you're, you know, just a regular old veteran who's been retired for years, who wants to go out and exercise your First Amendment rights to criticize the government you know, are you going to be under threat of having your “under retirement” classification changed?

It, I think that it has some potentially serious implications and so we'll be watching it closely.

Benjamin Wittes: Excellent. Meanwhile Lindsey Halligan, Anna, is mad. And not at you.

Anna Bower: Yeah.

Benjamin Wittes: Although she's probably also mad at you. But so a week ago, as we discussed a judge, named David Novak down in Richmond, ordered that she brief the question of whether she was misleading the court on, by use, by signing indictments as “Lindsey Halligan, U.S. Attorney” and ordered her to address the question.

And in a brief filed I guess Tuesday or Wednesday by Todd Blanche, Pam Bondi, and Lindsey Halligan, they went on a tirade against the judge, of a type that I am not accustomed to seeing. It's just not the way Justice Department lawyers talked to federal courts. Roger and I talked about the judge's order last week.

What did you make of this, I'm gonna give my hand away, remarkable filing in response?

Anna Bower: Yeah, I mean, look, Roger and Mike, feel free to chime in. But I have never seen a filing like this, especially from the government. Like there are pro se plaintiffs or defendants who file—like I mean, I, and I hate to put it like this, but like, just totally like out there, kind of like nuts filings that get, and they get mad at the judge.

And, you know, it's, so that is not unusual, but you very rarely see it from the United States Department of Justice where they are yelling at the judge through the paper and you can just hear it. And accusing the judge of, you know, gross abuse of power and violating the principle of adversarial trial proceedings and all of this stuff.

And that, so that part of it was remarkable but what made it even more kind of a shoot yourself in the foot moment is that they actually have a plausible legal argument that Judge Currie's order is not, is only binding in the James and the Comey cases. And that for that reason it is not a misrepresentation for Lindsey Halligan to you know, call, continue to call herself or hold herself out as the U.S. attorney, particularly while that order by Judge Currie is on appeal.

So they have a plausible argument. They could have just made it and left it at that, but instead they went nuclear on Judge Novak. And it was really bizarre.

Benjamin Wittes: Yeah. So a couple things. One is in the very gentle way in which we sometimes disagree on this show, Roger and I actually disagreed a little bit about this order last week.

I, I took the, not knowing what the Justice Department was gonna say, took the position that roughly tracks the substance of the legal argument, although I certainly hope not the tone of the brief. And Roger thought that the matter was that Judge Novak's order was more defensible.

But I guess as somebody who has some sympathy with the substance of the argument that they made, I thought that made the tone of the argu—the tone of the brief worse that, you know, if you have. I think the judge was sort of mildly out of line here.

And if you're, if you wanna point out to a judge, ‘Hey, bucko you're mildly outta line. You're outta line.’ You just lay out your argument and you imbue it with the, and by the way, the Fourth Circuit's gonna agree with us, not with you. And you, that's how you talk to a judge. And that's how the Biden administration talks to Judge Matthew Kacsmaryk. It's how the Trump administration judge talked to any of, you know, any bunch of liberal judges that it loathed.

It's how certainly Jack Smith talked to Aileen Cannon. There's some, there's sort of just a, you don't go shake your fist at a federal district judge and say things like, you're, you know, engaged in a gross abuse of power. And there's, I mean, these decorum questions it is just a radical departure from normal practice to talk to a judge this way.

I'm curious what you made of it, Roger, I know you thought of it as well, read the brief as well.

Roger Parloff: Well, they sort of did this, they did a version of this, a milder version, with Magistrate Judge William Fitzpatrick, when he said that Halligan had you know, basically violated it, it was redacted, but his point seemed to be that she, he, she had given the grand jury instructions that were in violation of fundamental legal tenants—it seemed like they violated his Fifth Amendment right to remain silent and certain other things.

And they came back and said that he had violated judicial ethics law. You know, he, it was over the top their response attacking him. Attacking him personally. So, there was a precedent. I happen to think that the underlying problem here is that they, it's not true that you can, there's going to be some other criminal case where the outcome is gonna be different.

You know, the Fourth Circuit Judge Albert Diaz said all of the challenges to Halligan in this district are gonna be heard by Currie. And she decided that she is not properly appointed as U.S. attorney. And then you could ask Currie to stay her ruling on appeal. She didn't. You could ask the Fourth Circuit to stay Currie's ruling on appeal. She didn't.

She just kept putting her name on every indictment that came down. And it's like what are you doing? You're endangering every fricking indictment. You know, every, you know, every defendant is now gonna have this card to play. It's, what are you doing? So, I thought it was I thought her strongest argument is that, yeah, the special counsel Jack Smith did keep calling himself that after his ruling on the appeal. And in, you know, there was some minor issues in Canon's court, but he wasn't bringing new cases and you know, so I thought it was distinguishable.

Michael Feinberg: Can I challenge—

Benjamin Wittes: Lindsey, Lindsey Halligan, if you're listening you know, text us your thoughts.

We wanna hear from you about this. Alright. Mike? Yeah? You were gonna say something.

Michael Feinberg: I just wanna challenge the baked-in assumption to both of your arguments, which is that the purpose of this brief was to convince a court of something.

This is very clearly more in line with the performative aspects that we have seen from a number of departments in this administration, but particularly from the Justice Department in how it communicates to its political supporters and its political overseers about why it is doing something or what its general attitude is, or a comment on an ongoing investigation. And if you view this as geared towards the audience at 1600 Pennsylvania Avenue, or to the audience on Fox News as opposed to the judge, it actually makes a lot of sense.

Anna Bower: I wanna be clear, I do not think that the audience was the judge because if your audience is my, I think part of my point is that if your audience is the judge and you actually want to you know, continue to be in the good graces of the judge, you don't attack him in the way that you did or that this Halligan brief did.

It's this brief, if anything, in addition to what you've said Mike reminds me of, like Todd Blanche defense attorney 101, kind of stuff like where you are performing for your client and for the world, but not necessarily for the judge or the court.

Benjamin Wittes: Although I don't recall Todd Blanche in any of the litigation that I saw him act as a Defense Department defense lawyer file anything as over the top inappropriate as this brief. There were some stuff that was definitely at the margins, but I, and some of it was factually challenged.

But this, there was a level of vituperation in this rhetoric that I was new to me and certainly new to me in a Justice Department brief.

Alright. I wanna get to audience questions, but Roger, we have a big win for the administration in its efforts to deport Palestinians and Palestinian sympathizers before the Third Circuit.

What did the Third Circuit have to say about Mahmoud Khalil?

Roger Parloff: Yeah, this is a big ruling. I think it sets up a Circuit split with the Second Circuit and the Fourth Circuit, their rulings relating to Öztürk and yeah, I'm blanking on the names, also Bader Suri and one other.

But the, it's a two one split. It's George W. Bush appointee, Trump appointee, Biden appointee, Judges Hardiman, Bibas and Freeman. With and there's a number of different issues, but and actually the petitioner won one of them, but the big loss is that the jurisdiction stripping provision requires dismissal of his case.

That's the 8 U.S.C. 1252 b(9). And what it means is that all of his claims, and of course the main ones were the main one was that he was this pro-Palestinian protestor at Columbia, legal permanent resident. And they, Marco Rubio declared that he, his presence in the U.S. would have adverse foreign policy consequences. They arrested him.

He was claiming that the detention, was designed to silence him his in violation of his First Amendment rights and to chill speech by all other pro-Palestinian demonstrators. And so, you know, the government all along had been saying, no, you just, you need to make this argument to the immigration judge.

And there, b(9) says, “judicial review of all questions of law in fact, arising from any action taken or proceeding brought to remove an alien from the U.S. shall be available only in judicial review of a final order of removal.” What that means is that you would go to the immigration judge and if you don't like something, you would appeal it to BIA, the Bureau of Immigration Appeals.

And if you don't like that, you would appeal it to the Court of Appeals. But a district judge, U.S., just doesn't play any role. And the exception that people have been getting using to get around that is the sort of now or never rule.

There's a few of them, but the key one is the now or never rule, which means, look, if you don't allow him to go to district court now, he's never, you know, he's gonna, he's suffering irreparable harm that's gonna take years to redress. 'cause if he is, if he's right that they are shutting him up they are violating his First Amendment right and chilling other people's First Amendment rights by putting him in jail, having him go to the immigration judge, lose there, go to BIA; immigration judge isn't supposed to, at least in, historically, they aren't allowed to handle constitutional questions, appeal that to BIA, they can't handle.

And by the way, the immigration judge and BIA judges are employees of Pam Bondi. They're not even administrative law judges. They're direct reports. And then you can go to the, in theory, you can go to the court of appeals, but you haven't even made a record.

'cause the IJ will say, I'm not gonna let you make a record on, on, on this. I'm not gonna hold a hearing. I'm not gonna give you discovery 'cause we don't handle that sort of question Anyway, that was the exception. And this panel rejected. It said, nope, take everything to the IJ. There are special ways you can get your record and take it up.

And even if you're in jail that whole time, tough. And so this is a pretty, pretty big setback.

Benjamin Wittes: And so what happens to Mahmoud Khalil. while it is being resolved? Is he arrested at this point?

Roger Parloff: Nothing instantly because, you know, the mandate doesn't come down immediately.

His judge, I mean, his lawyer can seek en banc review and then then they could seek Supreme Court review. Good luck with that. And but so it won't take effect, but eventually if it takes effect, he goes, it looks to me like he goes back to jail and and he goes back to jail. And the IJ judge is in Louisiana, and that means his, you know, maybe a year or two from now, he gets to go to the Fifth Circuit.

Benjamin Wittes: And remind me, he did have an IJ hearing. Right.

Roger Parloff: Yeah. And that was one which,

Benjamin Wittes: I'm sorry, which determined that he was deportable because Marco Rubio says he is deportable.

Roger Parloff: Yes. And she held that even though Judge Farbiarz in the U.S. District Judge in Newark had held that provision was unconstitutional, that it was void for vagueness as applied in this case.

And so then Judge Farbiarz did something that I think sort of pushed that, that he said he ordered the government to go to the immigration judge and say, retract your ruling. And so then you had—

Benjamin Wittes: Right. It really entwines the two proceedings. Farbiarz’s ruling was frankly one of the crazier district court rulings I've seen in a while.

Even though it was good for Mahmoud Khalil. So what do we know about the current status of his immigration proceeding?

Roger Parloff: That's a good question. I'm not sure where that one stands.

Benjamin Wittes: Alright. Let's get an update on JGG, speaking of Marco Rubio, who, in addition to saying that Mahmoud Khalil is a threat to U.S. foreign policy says it's a threat to U.S. policy, to foreign policy to do anything to help those 137 Venezuelans who are now in Venezuela, not in custody, and want to come back to the United States in custody.

Roger Parloff: Yeah that's exactly it. This case obviously is in a weird posture now, and so the government was supposed to come up with, Judge Boasberg had asked the government to come up with a proposal: How are you gonna get these people the due process rights, the 137 that went to CECOT under the Alien Enemies Act, that were then swapped to Venezuela, how are you gonna get them their due process rights?

And they came back and Marco Rubio had a signed a thing, a declaration. He said you know, we're at a very delicate stage of negotiations with Delcy Rodríguez due to all the changed circumstances here in Venezuela.

It would do material damage to U.S. foreign policy interests to even bring up the situation with 137. And then in addition, the government said, you know, you have no jurisdiction. And so we strenuously object to the lawfulness of any relief for multiple reasons. And basically if you do anything we'll we want time to mandamus you or to take an appeal.

So, that's where that one stands.

Benjamin Wittes: Alright. Finally, Roger, you have an update for us on mandatory detention. I don't know what that refers to, so I'm just gonna turn it over to you.

Roger Parloff: Oh, okay. Yeah, I'm sorry. This is the thing that Kyle Cheney has been all over there. You know, and I've mentioned it a couple times.

There's this change in policy that happened in July by the Trump administration that reinterpreted and essentially wiped out bail hearings for a tremendous number of people that are being tar—people that are here illegally. And you don't, or people that are allegedly here legally you, but you don't get a there's this one, one provision is 8 U.S.C. 1226a. The other's 8 U.S.C. 1225b(2) and under one, which is designed, which everyone thought was designed for people who had just arrived, you, those people can be detained without parole while they're removed.

The people that have been here for years that are, you know, you seize them in Kansas you wanna, you need to give them a bail hearing while you're, litigating while they're litigating whether they can stay. That distinction was the government is trying to remove say they're all, nobody gets none of these people get a bail hearing. Overwhelmingly judges have rejected the Trump interpretation. You know, more than 300 judges have rejected it.

Maybe 14 have gone the other way. And finally there is gonna be expedited appeals. So we might get some begin to get some resolution. But of course, the government has been pushing for expedited appeals only in two circuits, the Fifth Circuit and the Eighth Circuit, and has been resisting expedited or appeals elsewhere.

So, they are the Fifth Circuit finally, after rejecting it twice changed their mind. And there will be an oral argument February 4th by the Fifth Circuit. Also the Eighth Circuit. I'm not sure why the Eighth Circuit was chosen by the government, but that briefing will be done by January 20th.

We don't have a oral argument date.

Benjamin Wittes: Alright. Let's go to audience questions.

Ron asks a question that I have no idea what the answer to is, and maybe Mike Feinberg does have an answer to it, but I certainly don't. He asks, federal employment law is not really a Lawfare specialty, correct, but armed thugs, terrorizing citizens seems to be. My understanding of federal employment is that pay is regulated into discreet bans and that there are strict rules around these classifications. ICE agents in Minnesota are claiming to be making $200,000 per year. If that is true and if that violates federal employment law, could somebody sue to claw back those illegally dispersed funds and who might have standing to file such a lawsuit?

All of my instinct is that the answer to that question is no, and nobody, but I yield the floor to anybody who knows anything about federal employment law.

We got nothing for you on this, Ron. But if you look at,

Anna Bower: You need to send up the Bednar signal.

Benjamin Wittes: Yeah, we can Nick signal, we can send up the Nick Bednar bat signal and see if we can get you an answer.

Lori asks and I think Anna has thought about this a little. Have any of you heard anything beyond speculation that Natanson was targeted. This is the Washington Post reporter because according to her, she had quote “1,169 sources in the U.S. government and had become the Washington Post's federal government whisperer.” I wonder if the administration's primary interest is in those 1,169 federal government workers.

Anna, what do we know about this theory?

Anna Bower: So I have only seen speculation to about this. You know, I think that some initial reports surrounding this search mentioned this fact that she published that story about being the federal government whisperer you know, a few months before this search happened.

And then a lot of people kind of took that and used it to speculate about her being targeted over being the federal government whisperer as opposed to a more specific interest by the government related to this the Perez-Lugones case. It, you know, we don't have the affidavit, the search warrant affidavit yet.

I don't think it's been unsealed someone, if there's breaking news on that, then let me know, but you know, you have to have articulated something beyond just like, w we want to search this person because they're, they have all these sources and I think that may, even if that's the government's secondary motive, it seems that here everything points to it being related, at least their primary motive, being related to this Perez-Lugones case.

Benjamin Wittes: And even if you hypothesized that it is a pretext, as we learned in the Dan Richmond case where he came in and said, guys, you searched this for this purpose. It specified in the warrant for this purpose. My conversations with Jim, seven years later about a, you know, a different subject, do not count as for that purpose that makes the warrant defective as to as to the purpose for which you used it for.

You could really imagine something like that happening here, depending on if they used it in a fashion with respect to a whole lot of other people that are inconsistent with what the warrant actually said.

Mike, do you have thoughts on this?

Michael Feinberg: Yeah, I was gonna bring up the Richmond example, actually. You beat me to it. I mean, I do think the particularization requirement would preclude them from overtly doing this, and I don't think they would have any ethical objection to doing so. But if this is what in fact they're doing and they're trying to get information about other government employees who are talking to Natanson, they're gonna have a hard time prosecuting those cases if the original predication comes from the misuse of a warrant in another case.

Anna Bower: I, yeah. I'll also add too, like we don't know to what extent like it what they're going to be able to find out or get from her devices really depends on her, like cyber hygiene basically. 'Cause it may very well be that she has had she had everything so locked down in terms of encryption and that kind of thing that they are not able to get a whole lot that is useful off of those devices that were seized, but it's not clear at this time.

Benjamin Wittes: Although most journalists boast, but most journalists who publicly boast that they have 1,169 sources are generally not the ones who are really good about their cyber hygiene. Sorry, Mike?

Michael Feinberg: If I could offer a peek behind the curtain on this one. Information is as never locked down as you think it is. Like the ability of good investigators to actually get at communications, even on encrypted apps, like even encrypted apps, leave a lot of what we would refer to as digital exhaust, like.

Yeah, just, I'm not gonna tell you how to get around government investigations, obviously. I'm just gonna say that they're more fulsome and capable than the public seems to think.

Benjamin Wittes: Alright next question. David asks, I have a very basic question about the authority of ICE. Are they sworn peace officers? No.

With full authority to enforce federal criminal law or only immigration violations? Do they have the authority to arrest on non-immigration grounds? Can they arrest for obstruction? Can they order an otherwise non-immigration related woman to get out of her car and shoot her if she does not?

Mike, what is the relationship between an ICE officer and a peace officer in Minnesota? You alluded to this question earlier.

Michael Feinberg: Yeah. So peace officer status is entirely a creature of state law. Generally speaking, federal officers are not just by virtue of being federal officers, peace officers in any given state, the state has to pass something called the enabling law to make them such.

In Minnesota, in order to be a peace officer, you have to you, if you are a federal officer, the only way you can get peace officer status is if you are assisting an extent peace officer, i.e. a local or state official, and are working under the supervision of a local or state peace officer. So given Minnesota's general sentiments towards these ICE operations, I do not think Mayor Frey, Governor Walz, are extending those courtesies to the ICE agents.

With respect to general federal authorities in the wake of 9/11 and after the various reforms that came out in the Patriot Act and beyond, generally speaking, federal officers have the right to enforce any federal law on the books. That does not mean they specialize in them, that they have expertise in them, or even that it's something their department's internal policies allow them to do.

Usually it has to be a crime of violence being committed in their site. If it's not their agency's primary responsibility unless Renee Good was at that moment obstructing them from carrying out. Something they're authorized to do under federal law. In other words, if she was physically blocking them from a removal operation they would have fairly wide latitude, actually, to remove her from where she was stopping them.

The deadly force policy though, is a different question. And it's an incredibly complicated question, and I don't want to do what, for example, the vice president or secretary of DHS did and make a pronouncement on whether the shoot was justified, having only seen the footage leading up to it for a minute or so.

I'm just gonna say that what I saw and what we published a piece about this week is that nothing visible on video really pertains to the enforcement of federal law. So there's a real legitimate question of why they were interacting with her in the first place. But that's actually not gonna be very germane to the deadly force question, which is gonna depend, frustratingly for many people, solely on whether at the moment he pulled his trigger, pressed his trigger, whether he thought she was imminently going to cause death or serious physical injury to him.

Benjamin Wittes: Alright Andrew asks, I think this is directed at Anna and me, if you view Minnesota v. Noem as performative, and I don't think it is. What causes of action wouldn't be? Just speaking for myself, I did not say I thought it was performative. I said I thought it wasn't going anywhere. And there are many reasons to bring a litigation that are not performative, that are, when that litigation is unlikely to go anywhere.

And one of them is, as Anna alluded to that you don't think you're gonna get the remedy that you want, but you think you might get all kinds of littler things along the way. Another one, which is I mentioned, is that you though you're not, don't think you're gonna get the big picture remedy that you're looking for.

You want a federal judge with oversight over the activity of ICE in Minneapolis and you want an address to go to when they do some things like shoot people. All of those are legitimate nonperformative objectives that are not necessarily the objective being the specific remedy, that you ask for the specific injunction that you ask for in your initial filing.

So that's speaking for myself the answer. Anna, I don't know if you have additional thoughts, but feel free.

Anna Bower: Yeah. I also don't think it's performative and I hope that our conversation earlier didn't give people the impression that I do. I think that the conversation was more so focused on the overarching big picture remedy, which in the Minnesota brief, it's basically to enjoin these border patrol—this surge of immigrant of immigration enforcement activity. And I just don't think that any court is going to give the, that remedy to the extent that the state wants.

I just don't see it happening. So that said, I do think that there are, as we also alluded to that, I think that there are smaller remedies that are asked for that could very well be granted regarding, you know, specific things like how force is being used, various policies that are being implemented that according to this state, you know, were implemented in a way that was arbitrary and capricious, that kind of thing.

So I think that those remedies could very well succeed. But do I think that this suit is going to succeed in a judge basically kicking ICE and border patrol out of Minneapolis? No, I just don't see that happening. So, alright. Yeah.

Benjamin Wittes: David asks, let me ask this as a formal question. Is it established law that actions after retirement are not subject to the UCMJ or is just that how it's been interpreted for the duration?

I do not know the answer to that question.

Michael Feinberg: I shockingly do.

Benjamin Wittes: Yeah. Okay. Go for it.

Michael Feinberg: It's actually a fact-dependent determination based on the rank at the time of leaving and the terms of separation.

Anna Bower: Okay. I am not sure about that. That may be consistent with what I know, which is that it is established law that at least in, and this seems consistent with Mike's representation, is that at least in some, if not all circumstances, retirees are subject to the UCMJ.

The question here, though, is with the Mark Kelly situation, one of the things is that, as I understand it, there has not—the government hasn't brought some of the various types of UCMJ violation claims that it is alleging as against Mark Kelly in a very long time.

And then there also may be, but it's unclear, different First Amendment protections for retirees who are alleged to have violated the UCMJ versus active-duty members who are alleged to have violated the UCMJ. But that is not clear because I think that the, court of app, is it the Court of Appeals of the Armed Forces?

Am I getting that court correctly? Again this is not my area of law. Everything that I know about it, I learned in a very short period of time,

Benjamin Wittes: On Twitter, in the last few hours.

Anna Bower: Yeah, after reading the Mark Kelly suit. But I believe that there is not a whole lot of case law on the First Amendment protections for retirees versus active-duty members who are alleged to have violated the UCMJ, so.

Michael Feinberg: They're not extensive protections. The threshold—

Benjamin Wittes: Okay. Oh, sorry. Go ahead. Finish up.

Michael Feinberg: The threshold question is whether you are drawing retirement pay. Which is why when I said—so for example, a lot of military personnel who go into federal service will do what's called buying back their military time, which means that they forego the right to get any retirement benefits from the military based on how long they served, but they get treated with more seniority than they actually have as a civilian.

So you give up retirement pay in exchange for a higher GS paycheck and more annual leave, but you can, if you are collecting retirement pay, something as otherwise protected in the First Amendment as defaming the armed forces can get you brought back in.

Benjamin Wittes: Alright. Last question from Reese. In what ways, if any, can we look at the annexation of Hawaii into the United States as precedent for a possible pattern of action for Greenland?

And I wanna say that the action in Hawaii had precedent itself, which was the actions that led to the creation of the state of Florida. And so this, you know, this kind of skullduggery against foreign territories that we wanna annex has some precedence that are older than Hawaii. I will say there is one aspect that should be of comfort to the state of Denmark, where less is rotten than in the state of the United States, and that is that annexation of any territory requires an act of Congress and getting anything through Congress is pretty hard these days.

So, I don't have anything more to say about this. I don't know if Anna, Roger or Mike has Hawaii, Florida territories thoughts, but,

Anna Bower: I have nothing to say about it other than, once again, as I feel I do weekly, I will recommend Scott Anderson's “Why the United States Can't Buy Greenland” piece, which has been floating around since what, 2018?

Benjamin Wittes: Yeah, it's been around a while. It's one of those Lawfare articles that never seems to exhaust its shelf life. Still true after all these years.

Folks, we're gonna leave it there. We will be back next week. The trials will continue trialing, the tribulations will continue tribulating, and we will continue monitoring it all and trying to bring it to you with an appropriate sense of humor on Friday afternoons.

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 by the Lawfare Institute. You can get ad-free versions of this and our other Lawfare podcast 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.

The podcast is edited by Goat Rodeo and our audio engineer this episode was Anna Hickey of Lawfare. Our theme music is from Alibi music.

As always, thanks for listening.