Lawfare Daily: The Trials of the Trump Administration, Jan. 23

[Intro]

Benjamin Wittes: It is the Lawfare Podcast. I'm Benjamin Wittes, editor-in-chief of Lawfare with Senior Editors, Anna Bower, Roger Parloff, and Eric Columbus, and Lawfare Associate Editor Olivia Manes. In the January 23rd episode of The Trials of the Trump Administration, we talked about the FBI's search of the home of a Washington Post reporter, the Supreme Court's oral arguments in President Trump's attempt to fire Fed Governor Lisa Cook the criminal inquiries into Minnesota State officials and protestors, and much, much more.

[Main Episode]

It is Friday, January 23rd, 2026. It is 4:01 PM. You are watching Lawfare Live: The Trials and Tribulations of the Trump Administration. I am Benjamin Wittes, editor-in-chief of Lawfare, and I am here with Lawfare Senior Editors, Roger Parloff, Anna Bower, Eric Columbus, and Lawfare Associate Editor, Olivia Manes, for whom I think this may be the first time she has been on Lawfare Live: The Trials and Tribulations of the Trump Administration.

Is that right, Olivia?

Olivia Manes: That is correct. Happy to be here.

Benjamin Wittes: Wow. Well, welcome. We've got a fair bit of ground to cover. We're gonna start in Minnesota, which is where everybody normally starts discussions of the politicization of the Justice Department. You say politicization of the Justice Department and the mind goes straight to Minnesota, where this week we have a criminal investigation by federal authorities of the governor and mayor of Minneapolis, we also have the arrest of protestors.

So let's start in snowy Minnesota. Roger, what do we know about the apparently ongoing criminal investigation by federal authorities of state officials and local officials in Minnesota?

Roger Parloff: We know that six grand jury subpoenas, at least six, have been issued or to the offices of six people.

Governor Walz, the Attorney General Keith Ellison, the mayors of both Minneapolis and St. Paul, Jacob Frey and Kaohly Her, and two other offices, the Ramsey and Hennepin County, I believe they're county attorneys. And we've seen one of the subpoenas that the Mayor “Fry,” or “Fray,” I don't know how it's pronounced has made available

Benjamin Wittes: I believe it's “Fry.”

Roger Parloff: Okay, Frey. And it does not name which federal crime they're looking for. CBS has reported that 18 U.S.C. 372 is one of them, or might be the key one.

It's a conspiracy. The title is “Conspiracy to Impede Officers.” It goes back to 1871. It's not used that frequently. It's the criminal version of the, or derives from the criminal version of the Ku Klux Klan Act.

And it says “if two or more persons… conspire to prevent by force, intimidation or threat, any person from discharging the duties of a federal officer or induce the officer… to leave the place where his duties are required to be performed,” that sort of thing, it's a six year crime.

It was used in the January 6th cases rarely, only against—I'm only aware of it in the, as a lesser crime in the seditious conspiracy cases. Very hard to see how you these people have engaged in force intimidation or threats within—

Benjamin Wittes: Yeah so wait, let's talk about that for a minute because I am bewildered at the notion that there could be an application of that statute to the conduct of the governor or the mayor, or the attorney general of Minnesota.

As best as I can tell, the most you could accuse them of is non-cooperation with federal law enforcement in a very aggressive federal law enforcement action within their jurisdiction. They haven't violently interfered with it. They haven't, to my knowledge, talked about violently interfering with it.

And they haven't even said they're gonna prosecute the federal officer who shot a 37-year-old woman in a car dead when she was unarmed and not behaving in a threatening fashion. So what is the, in your best understanding, what is the theory of their conduct that would invoke any of those statutes?

Roger Parloff: This requires some anthropomorphizing of here. All we know that Walz might have done is he encouraged people to take videos of the of the officers. I think that's First Amendment protected.

We all heard Jacob Frey, say, you know, get out of Minnesota. I think that's First Amendment protected. I don't really know what they have, but—

Benjamin Wittes: Last I checked, the use of the word “fuck” was not a violent interference with, you know, I, I forget the exact language of the Klan Act, but it's not about bad language.

Roger Parloff: No. And now Deputy Attorney General Blanche has called, has accused Walz and Frey of terrorism.

I'm not sure what they had in mind. The and I think no, Kristi Noem has said they are, quote, encouraging, impeding and assault of officers. So the idea is that they're, they are stoking interference with the officers or colluding with agitators. Those seem to be their theories.

Benjamin Wittes: So can I ask an impertinent question about this, Roger? There's two, seems to me, two ways to look at it. One is that they are trying to gin up charges in an EDVA-like way, right? That and the other is that they are just making trouble in the form of exploiting the relevant standard for a criminal subpoena, which is extremely low. And has, you know, to harass people, right.

And do you have a sense of which this is?

Roger Parloff: It certainly has the flavor of harassment and vindictive harassment that these subpoenas came out shortly after Walz and Ellison and Frey and the mayor of St. Paul brought, or their offices brought, lawsuits against DHS to try to stop Operation Metro Surge.

So it has a vindictive quality. They've been threatening for a long time. I think Pam Bondi has been saying sanctuary cities' policies are, you know, are criminal in some way. And so maybe that's what they hope to eventually test. And the subpoenas are very broad. They go back to about, I think January 1st, 2005, and seek all records basically about your policies relating to federal immigration and your “do you honor federal detainers” and all the issues that come up with sanctuary cities, sanctuary state type policies.

Benjamin Wittes: What do we know about the U.S. Attorney in the relevant district of Minnesota?

Roger Parloff: I don't know enough, and that is a good question that I should have researched. Anna, do you happen to have, are you more up on him than him or her than I am?

Anna Bower: I am not. Other than that, I think that there, I think that the U.S. attorney there is supposedly a serious person to the extent that some of these other U.S. political appointees are, who are put in for a specific purpose of, you know, prosecuting political enemies are not you know. But I, like Roger, have not done enough research into the U.S. attorney there to really say much more beyond kind of what my general impression is.

Eric, do you have, we're gonna, well, if you know, anything Eric,

Eric Columbus: I’ll just add a couple of facts we do know is that one, he was Senate, he was confirmed by the Senate. Which means that two, he was not—he received the quote unquote, blue slips were returned by the two Democratic senators in his state.

'cause Senator Grassley, the chairman of the Senate Judiciary Committee, will not proceed on a nomination for a district judge or for a U.S. attorney if it is opposed by a senator in the jurisdiction for which the appointee would serve. So that suggests that he is not a wild-eyed lunatic.

Benjamin Wittes: Or at least was not understood to be one at the time of the Senate's consideration.

Yes. One counter, and I'm not alleging that he is that by any means, that this is somebody I know nothing about. One thing we do know, however, that cuts in the other direction is that a whole bunch of assistant U.S. attorneys in that office resigned over this investigation and the lack of a federal investigation of the shooting of Renee Goode probably more the latter than this—

Roger Parloff: Yeah. The latter.

Benjamin Wittes: —and that the U.S. attorney was not among them. Is that, is that right?

Roger Parloff: That's my understanding. And I think it was about the Good—it related to the Good shooting. I don't think it related to these cases.

Benjamin Wittes: Okay. All of which brings us to the other on its face, blatantly political, action by the Justice Department in Minnesota which involves the arrest of peaceful protestors under the conspiracy to violate people's rights, conspiracy against rights statute.

I wanna preface this by saying I really do not approve of invading people's churches and conducting protest activity in them. And so, I have a certain sense of, this is not a protest I would've participated in. This is not a protest in which if anybody had asked me, I would've said is a good idea.

I do believe that religious observances are kind of sacrosanct and should be zones of in which people get left alone, even if they're people we don't like. But that said, the facts as I understand them are that these are, these were a group of people who entered a church, sat down in pews, seemed to pretend to be part of the congregation, and then confronted the pastor in mid-service and stood up and chanted some things.

Anna Bower, am I right that there was, as a preliminary matter here, that there is no allegation that they engaged in violence and that there is no allegation that they prevented anybody from accessing the church in question.

Anna Bower: Yeah. So a few things here. One is that we don't yet have a complaint or an indictment.

So that is still under seal. But we do have video that was recorded by Don Lemon who both was with these, this group of protestors before the protest happened, and then recorded them throughout the process of this occurring. My understanding is that an ICE official works at this church, so that is the reason why this church was selected as a site of protest.

They show up to the service it is already happening, and there's not video exactly video of when they first confront the pastor who is in the middle of speaking, doing the service. But there is audio where you can hear one of the protestors, you know, after they've gone in, they sit down, you can hear the pastor saying, here, fill in here.

So they've joined the service and then someone stands up and says something, or it sounds like they, you know, kind of, I don't know if they stood up, but someone says something to the pastor at some point. They have an exchange, and then that's when everyone at some point stands up and starts chanting.

I, based on the video that I have seen. Did not see any effort to obstruct people from entering or leaving the service. Although people did, it did cause people to leave. And the service was disrupted. Many people left. Some people though did stick around and have conversations, it looks like, with some of the people who had been the protesters.

You know, Don Lemon goes and interviews the pastor at one point. It's all kind of over, it seems like within like half an hour to an hour. So it's a kind of quick thing that happens. It's not it's not something that seemed to be an effort to block people from entering the service.

And that's important for the conversation that I assume we're gonna have about the basis of these allegations and the crime that potentially the government alleges here.

Benjamin Wittes: Yeah, so I am confused about what the crime is purported to be. They're not trespassing. It was open, a church, like the church services open to the public, right? They are not impeding anybody from walking in, which is, as I understand the FACE Act, what the FACE Act violates. I don't know that there is a law against shouting down a pastor.

And so though I find it distasteful and I don't approve of it, what is—walk me through what the actual, what are they being held for or what are they being arrested for?

Anna Bower: So, look I'll say on the trespass point, I'm not sure that it's not trespass at the point where they are asked to leave, because I believe that at least some of them were asked to leave by people who were there in the service.

Benjamin Wittes: Okay. Misdemeanor trespass.

Anna Bower: That's probably a misdemeanor trespass situation, right? We're talking about, there have been three people who have been arrested and they've been arrested for, at least as far as we know, because it's not entirely clear without having the filings unsealed, they've been arrested for felony conduct.

And what I understand we talked a little bit about the FACE Act, so let's start with the FACE Act, because I don't—

Benjamin Wittes: Before you get to the FACE Act, we have some comments in the chat that are correct. Yes. A misdemeanor trespass is not a federal offense.

Anna Bower: So to Yes. And to be clear, that would be a state crime issue.

Benjamin Wittes: Right, so we know it is not, they're not being charged federally with a trespass.

Anna Bower: Yeah. And that's, and so that's but what I, yes. So even if you put that aside though, that's not what they're charged with here. What we do know is that the government, based on reporting of these arrest warrants that were issued because three people were arrested in recent days and the government has made a really big deal out of these three protesters having been arrested.

And one photo that we've seen of one of those arrest warrants showed that the magistrate actually did not find probable cause for a FACE Act violation, but did find probable cause for an 18 U.S.C. 241 violation, which is the conspiracy against right statute.

Now, what's interesting about that, let's start, let me just start first with the FACE Act, because actually there's, you need to know a little bit about the FACE Act to understand what they're charged with under the Conspiracy Against Rights statute. The FACE Act is this law that was passed in the wake of a lot of protests that were going on around reproductive healthcare facilities.

You know, people were seeking abortions. Abortion is a really controversial topic. You have you know, pro-life protesters, that kind of thing, who blockaded, you know, would like do things like chain themselves together and try to stop people from entering facilities.

There were threats of violence. There were just some really awful things that, that happened outside of these reproductive health facilities. And so, Congress passed this law, the FACE Act, that basically was to try to—that criminalized activities that tried to block access or the making of threats to intimidate people or interfere with their access to, or the provision of reproductive health services.

But in the course of that legislation being passed, I think it was Orrin Hatch, kind of wanted to make things like, ‘oh, if we're gonna have it, this thing about abortion facilities, we should have it also be about access to religious worship sites.’ So they put in an additional provision that it that says, like, in the same way that you can't interfere with people trying to go to a reproductive health facility, you can't interfere with a person trying to go to a religious site of worship.

And the specific provision that's relevant here is that you can't interfere with by physical obstruction, a person who is you know, seeking or exercising their right of religious freedom. And physical obstruction in that statute bin actually means something very specific.

It's like it, it means that you can't do some activity that makes it difficult or hazardous for someone to enter or exit the facility, or the site of religious worship. So here it seems that there actually isn't really a physical obstruction because all the people did was go in and stand up and chant, and that caused people to leave, yes. But it wasn't like they were blockading the entry or exits of this church.

So I think maybe that's why the magistrate found that there's no probable cause for a FACE Act violation, right. However, that's where you then get to the conspiracy against rights statute, which basically says that you can't conspire—if two or more people conspire to interfere with someone in the exercise of a right provided by the Constitution or by statute, or if they conspire to interfere with the exercise of that right, or because of the exercise of that right.

Benjamin Wittes: I wanna correct you on the specific language because,

Anna Bower: Yeah I'm paraphrasing here, so please correct me.

Benjamin Wittes: The language is not protected by the right protected by the Constitution or statute.

The language is secured by statute, and this is, I think, important because it is not at all clear to me how you can say you conspired, you didn't violate the FACE Act. But you conspired with to, to violate, to deprive somebody of a right secured by the face act. This FACE Act, in my view, does not secure a right if you didn't, if you didn't violate, if you didn't violate the FACE Act when you interfered with that right. I think it's, I think the specific language of the statute here strikes me as very difficult to reconcile with prosecuting these people.

Anna Bower: Yeah. And so, what's happening here, just to make sure people have the right picture in their minds is like, the idea is that even though they, there's not probable cause to violate the FACE Act.

The idea is that they conspire to interfere with someone exercising this right secured by the FACE Act. And that's the specific language that's on this arrest warrant where the government, it appears to say that, I believe the phrase they use is tha, the interference with was with the free exercise of religion secured by the FACE Act.

And so then the question becomes, well, what is the right, how do you define the right created under the statute? It could be defined really broadly, but also it could be defined more narrowly of like a right to be free from physical obstruction to enter or exit a site of religious worship.

Benjamin Wittes: Yeah, I would say the part that's secured by the FACE Act is the part that you could be indicted for the FACE Act by The FACE Act, by violating.

And if you can't be indicted under the FACE Act, it's hard to say to me at least that the FACE Act is securing the right.

Anna Bower: Yeah. And so it's like hard to see right now. I mean, we'll see, the government's theory could also be a different theory because the conspiracy against rights statute also has this provision, and again, I'm paraphrasing so someone correct me on the language, but they have this provision and it's written in kind of old timey language because this is a really old statute where they're like, if someone goes in disguise on the highway or a premise the premise of another, and in doing that, going in disguise on the premise of another person they, you know, interfere with their property or something to that effect then that could be also a violation of 241.

So maybe like a kind of more of a stretch, even more so than the one we just discussed. Another theory could be that these protestors, by going in kind of, purporting to be people who were joined the congregation, they were kind of disguising themselves and then, you know, intruded on the premises of the church by then revealing themselves to actually be kind of these intruders.

I, that's put a potential theory, but we don't know because we haven't seen the complaint. It's still sealed.

Benjamin Wittes: Yeah. So I have a, oh, sorry. Go ahead, Eric.

Eric Columbus: Yeah, I was jumping, I mean, I would get back to the conspiring part of it, that language in 241 which they could have violated 241 without ever arriving at the church, even. They could have just planned this whole thing and taken together—

Benjamin Wittes: And some gotten on the bus to the church. You need an overt act, right?

Anna Bower: I think for 241, you maybe actually don't even need an overt act.

Benjamin Wittes: Oh, that's right. I think that's right.

Eric Columbus: And so that, you know, backs it up in time, that gives them a broader, like with most conspiracy statutes, it gives the prosecutors a broader timeframe to look at.

And they could, you could have probable cause for that type of conspiracy.

Benjamin Wittes: That's a really interesting point. So you have you have some probable cause of some sort that somebody in the course of the conversation say, yeah, let's barricade the entrance.

Eric Columbus: Yeah.

And though they didn't end up barricading the entrance you could still have some degree of meeting of the minds to do something like that, which is what, yeah.

Anna Bower: And that's where you have, like the Don Lemon meeting, the Don Lemon footage of the meeting that took place beforehand might be relevant to I need to go back and look at that video again to see the exact language they were using during that meeting.

But that might be relevant to the government's complaint at this moment.

Roger Parloff: Okay. Why do they need the FACE Act at, at all? I mean, why can't it just be conspiring to deprive them of their free exercise of religion.

Anna Bower: So, so under the 241, it has to be a right in the Constitution or by it, under the laws of the United States.

So either, you know, the Constitution or statute, but if you wanted to use the free exercise of religion under the First Amendment of the Constitution, well, that's a negative limitation on governmental interference. Here. We just have private actors who are interfering with you know, religious service.

So you, it wouldn't necessarily be a right secured by the Constitution that is being interfered with. It's a right in statute. Does that make sense?

Roger Parloff: I have to think. I think…

Anna Bower: See—

Benjamin Wittes: ‘Cause they're not acting under color of law, so they can't deprive somebody of their free exercise rights.

Roger Parloff: Mm-hmm.

Anna Bower: Alright.

Benjamin Wittes: Yeah. So we're gonna have to wait for another week—

Anna Bower: Can I say one more thing before we move on?

Benjamin Wittes: Please.

Anna Bower: And it's important because you asked at the beginning, there's no allegation of violence, that actually got more complicated today. Because even though on the facts, there very clearly was no violence and no threats of violence as far as I can tell. The government, however, today there was a detention or a, there was a first appearance hearing for two of the people who are arrested.

And during that first appearance based on reporting and then also an order that just came out, the government argued that this is a crime of violence that warrants a detention hearing. The magistrate and then the district judge have sub subsequently rejected that assertion as baseless. But it is pretty remarkable that the government made this claim that this is a crime of violence when it very clearly is not.

Benjamin Wittes: And it's not clear what the basis for that claim. I mean, obviously it didn't persuade the magistrate didn't persuade the district judge, but it's not clear what the basis for it was.

Anna Bower: It's not clear. Although there was reporting that one of the claims the government made was that in the course of people leaving the church, a woman slipped and fell and injured her arm in some way, potentially breaking her arm.

So it seems that it potentially was related to that claim. But it otherwise, in the order itself, the judge says they provided no factual or legal basis for this.

Benjamin Wittes: Gotcha.

Anna Bower: But—and a detention hearing was found to not be warranted. And so they are apparently going to be released.

Benjamin Wittes: So we are going to have to sit tight on both the criminal inquiries into state officials and on protestors in Minnesota as to what the government's theory of these cases are. We will keep an eye on it and we will come back to it in future episodes.

Olivia, you set a Lawfare record that I suspect will never be broken.

This past week you covered the shortest ever hearing in the history of Lawfare. What took you to Baltimore and how long were you was the hearing that took you there?

Olivia Manes: You know, it's not a record that I can necessarily say I'm proud of. So I was in Baltimore for a hearing on a government contractor Aurelio Perez-Lugones who is alleged to have illegally retained national security documents.

And the reason I was there specifically was because this kind of blew up a week after the sort of initial affidavit was filed in the case because it resulted in a search in a Washington Post reporter's home, Hannah Natanson. And that drew a lot of public backlash for a variety of reasons that we can discuss.

But that, that specific hearing was about whether or not he could gain, sort of pretrial release. And it lasted about 15 minutes, and I was about 10 minutes late because I only learned that I was gonna be going about an hour before. So I was there for, you know, about five minutes. But essentially all of the media attention surrounding the case kind of, caused the defense to, to take a pause and requesting that that motion.

So that was why I was there. But specifically in terms of the Washington Post search, so that was January 14^th, and basically Nathanson had a variety of her personal possessions seized. She had her cell phone seized, she had recording device, a Garmin watch and two laptops.

But she was told reportedly that she was not the focus of the investigation. And so subsequently the search warrant for that has been released. And we know that the sort of reason that they were there was to find classified documents that Perez-Lugones allegedly leaked to her. And just basically just, yes, or just yesterday, the Prees was in fact indicted with six violation, six felony violations of the Espionage Act.

And five of those are for transmitting unlawfully classified information, essentially. That, Natanson isn't named,

Benjamin Wittes: Transmitting them to her presumably though, right?

Olivia Manes: She’s not named, but it's clearly about her. If you sort of look at the timeline that they name, you can see that corresponds very specifically to articles she published, specifically on Venezuela.

Yeah. And DOJ officials have reportedly confirmed that it's Natanson who he leaked too. So that's the sort of timeline.

Benjamin Wittes: Okay. So help me out here. It is a very common matter for the government to investigate leakers of national security information to journalists. It is always a dicey matter for the government to conduct surveillance of one sort or another against the journalist in order to prove those cases, though it's not unheard of.

There are cases, for example, the James Rosen case in, during the Obama administration at Fox News, there are, it's always super controversial, but it does, it has happened. I do not know of any other case in which the government has executed a search warrant against a journalist who is not, you know, it's one thing if the journalist is suspected of like, dealing coke out of the Washington Post newsroom or something, but, you know, but the crime is something other than journalism, right.

This has raised a lot of alarm bells here. How do you understand what the government is doing? Are they preparing to indict her for, I mean, she's supposedly not the focus, whatever that means of the investigation. But is your impression that she will become a focus of the investigation?

She, after all transmitted this information as well, received it, retained it, was not entitled to have it. And what are the cases, if any, that look most like this?

Olivia Manes: Yeah, so on the former question in terms of what you know, what conclusions can we draw about the government's, you know, intended kind of course of action here.

It's hard to say because we don't, we have the, well, we have the search warrant. We don't have the application for the search warrant yet. And so we don't know precisely what their kind of justification is for looking at Natanson specifically in terms of her being a subject or if that could escalate into something, you know, more.

So we can't say for certain, what we can say is that there's a strong normative bias, which I think you've alluded to, against sort of going after members of the media in the cases. And there are a variety of reasons for that which I don't necessarily need to get into here. But essentially there's a really strong normative bias against it.

And so, that's partially why there was so much outrage. And you know, that is within the context, I think of larger administrative you know, larger trends within the Trump administration, right, that have been very combative against media. You know, Hegseth has sort of cracked down on leakers or, you know, purports to want to crack down on leakers.

Trump has said that he wants to invoke the Espionage Act in a variety of cases. And you know, so in terms of that I think that's why there's so much distress about this because it can, it needs to be contextualized within a larger sort of trend of being quite hawkish in terms of going after the media by the Trump administration and that sort of animosity.

In terms of the actual law, that's where it gets a bit thorny, and part of that is because there's not really, you asked what the, you asked what the sort of other similar cases are here. There's not really a one-to-one case, actually, I would say it's there, in terms of precedent, it's—the courts have been quite reticent to really, established precedent on this actually because it's quite thorny and they don't want to draw, like,

Benjamin Wittes: I'm not sure it's the courts that have been reticent, the Justice Department hasn't put the courts in the position of having to.

Because it hasn't gone after journalists.

Olivia Manes: Right, right.

Benjamin Wittes: The closest it's ever gotten is going after Julian Assange who was behaving kind of like a journalist. And two officials of APAC back in the early aughts. I don't know of any other cases that look anything like this.

Olivia Manes: Right, so there's the Assange case is probably one that we would look to.

However, because he entered a guilty plea, that doesn't, that's not precedental, so we can't really look to that for any sort of precedent. Also, there's a lot of questions about was Assange a journalist? Right. That question will determine a lot of you know, a lot of people say, well, he wasn't a journalist, so therefore, you know, he could be sort of prosecuted.

And you know, I think in this case Nathanson is very clearly a journalist. The Washington Post is very clearly, you know, a journalistic entity. You know, in terms of the Rosen case, which you alluded to, that's probably the closest analog that I could draw in that, essentially in that case the Obama administration kind of, obtained a search warrant for Rosen, who was a Fox News reporter's emails.

And so the Justice Department then seized those records. And the controversy around that was that they, in that case, they sort of invoked under the espionage un we have to go, we have to go down a kind of a rabbit hole here, but under the Espionage Act or the Privacy Protection Act essentially has a carve out, and the Privacy Protection Act, what is basically something that was made, it makes it very difficult.

It's an act that makes it very difficult for the government to seek to, to seize journalism, journalists’ work products. But there's a carve out for that one, which is if the material is classified, and two, if journalist in the case is suspected of being involved in some sort of criminal being a criminal themselves essentially.

So, for example, under the Espionage Act. And so in this case in the Rosen case essentially they kind of portrayed him as a criminal in order to get access to those materials. And that sparked a lot of controversy. And subsequent DOJ policy then sort of, laid out that you cannot under Holden and then also later under subsequent administrations.

You could no longer, do that. There were, they specif—the DOJ—specifically established policies that you were not allowed to portray kind of, journalist as criminals in order to get access to their work materials. Now though, I think another element that's troubling is that Pam Bondi has rescinded that element, right?

So now you can, she specifically removed language and DOJ guidelines that would have prevented that. So now that language has been removed, so it's not clear, you know, that's a bit troubling right? Or very troubling right, because now the DOJ is not necessarily explicitly prohibited from doing that.

So we don't know, like I said in this case, that's what the DOJ was doing. Or they, we don't know if their justification is that she was engaging in criminal actions, for example, under the Espionage Act. But some speculate that they may be moving towards that.

Benjamin Wittes: Okay.

One of the complicating factors here is that, you know, the Espionage Act is grotesquely broad in ways that reflect the fact that it was written in 1917 during World War I. And it is not limited to classified information. It talks about information pertaining to the national defense. It covers the disclose—the unlawful handling of such material. It also covers the unlawful transmission of such material to anybody who is not eligible to receive it. And then there's this provision of it that covers the secondary transmission by such a person, which would, on its terms, would cover a journalist.

There are almost no secondary transmission prosecutions. I know of only one, which is the, this APAC case, all of which Washington Post editorials, by the way, about, which are written by one Benjamin Wittes. And I no longer consider myself bound to the secrecy of the Washington Post editorial page. I wrote all of those editorials.

And that case if memory serves, which was against Keith Weissman and I forget the other defendant, that was dropped because the administration changed and the Obama administration when it came in just decided not to pursue it. And so there was never a determination as to whether a secondary transmission by two APAC officials of material they had received would be unlawful under the Espionage Act.

Would be there—there was some pretrial rulings, but it never went to trial. And I think their case was indistinguishable from a journalism case which was the point that we made in a great many Washington Post editorials.

And I think there has been a very wise decision on the part of the Justice Department over many years not to find the outer edge of what it is and isn't allowed to do. There certainly is some outer edge that the text of the Espionage Act would allow, and the First Amendment would not allow. But nobody knows where that is, and I really hope we are not gonna try to find out in, in this case or in related matters.

From the very serious to the ridiculous, Anna Bower. Let's talk about Lindsey Halligan who is, I think even by her own account now, but I'm not a hundred percent sure, no longer the U.S. attorney for the Eastern District of Virginia, but she may still be on the website.

First of all, do we know if she has a job right now and if she's, by anybody's account, the U.S. attorney for the Eastern District of Virginia.

Anna Bower: Well, did she ever text you back when you asked her?

Benjamin Wittes: I did text her the other morning asking her whether she what her future plans were. She did not respond.

I, I was hurt. And but I'm, you know, she issued a statement either to Ryan Reilly or Kyle Cheney, I can't remember which, which was full of kind of vituperative rhetoric directed at Judge Novak, but didn't actually say, ‘I'm stepping down as U.S. attorney.’

So I just kind of wanna clarify as a preliminary matter: Is there any question that she's no longer U.S. attorney?

Anna Bower: I think though we do know that she has stepped down because of a statement from Pam Bondi saying, you know, farewell Lindsey, we appreciated your service. But I, you know, her 120 days are officially up, Ben. So, I and we had these statements—you had a lot of like administration officials, you know, waxing poetic on the fact of how great Lindsey Halligan has is and how great she did, and what a s service to her country she did in serving as U.S. attorney in EDVA.

So I think it's pretty safe to say that like the farewell has happened. She has gone but maybe she'll be back depending on how the appeals goes.

Benjamin Wittes: Yeah, but I'm confused because the government's position. Is that they can do as many sequential 120-day appointments as they want. That's their legal position.

That's the position they're arguing and they just filed a brief, like just the other day, which we're gonna talk about in a minute. Vituperatively arguing that they were entitled to act on their view of the law, irrespective of what Judge Novak or any other jerk on the Eastern District of Virginia may think about it.

So why not name her to another 120 days?

Anna Bower: Well, I mean, you saw the same thing happen with Alina Habba in New Jersey, right? Where effectively the fact that the government was taking this position was just grinding things to a halt in some of the criminal cases. Judges continued to have like having to put off things because they were so unsure about the state of who is in charge here.

And so that was one of the complicating factors that I think led to Alina Habba just kind of saying, all right, I'm out and I might be back later on if we win this appeal, but for now, kind of because, we can't, we just can't continue like this and clearly Judge Novak's order, which Lindsey took great offense to, honestly, I don't know why, because you know, the response brief that she filed with the court,

Benjamin Wittes: It kind of was asking for it.

Anna Bower: Yeah. I mean, it was kind of daring him to do what he did, which was to say you can no longer sign your name as the U.S. attorney, or else I'm gonna refer you for attorney discipline if you do. And so like, look like she, that clearly, you know, would've also if she decided to stay on, if there was a successive appointment.

That seems kind of not ideal circumstances where you have a judge having said. You can't sign your name as the U.S. attorney and I am going to like, refer you to be to have, get bar sanctions if you do. You know, it just, she was in a situation where it just seemed like it was impracticable to continue going.

And so for now she's out to be determined what she's doing next. Will she be like, Habba where she stays in DOJ, bides, her time there? Will she go back to the White House? Will she continue with this review of the Smithsonian, which is what she was doing before? We will see. So stay tuned for news on Lindsey Halligan’s next moves.

Benjamin Wittes: Yeah, so I wanna ask about a different aspect of this, which is the really remarkable cross-judges, cross-partisan EDVA District Court response to this, which quite a po—leave aside the merits of the legal question which we talk, we talked about a little bit in previous shows.

You know, one judge after another, irrespective of whether they were appointed by George W. Bush, Barack Obama, Joe Biden, or Donald Trump said this is not okay to have an EDVA, a U.S. attorney who is making, you know, not obviously lawfully in the office. And the court as an institution the other day put up basically a want ad for U.S. attorneys, right? They said her 120 days is up, she's out of office. If you're interested in being a U.S. attorney you know, send us your resume.

I'm curious, Roger, Eric, Anna, have any of you ever seen anything like that before? 'cause I sure haven't.

Anna Bower: I don't wanna make, I mean, I wanna make the argument that this is not at all surprising or remarkable because it is exactly what Congress has decided should be what happens here. Like U.S. attorneys are inferior officers. The Constitution very explicitly says that Congress can you know, authorize appointment to occur by courts of law. That's what it's done here. And that's what the court is now doing now that Lindsey Halligan 120 days are up.

I think they were probably waiting to make this, to publicize this announcement of looking for applicants before while that appeal was proceeding and before her 120 days were officially up. But I mean, I just, I, what I find to be remarkable is that you've got Todd Blanche, who's done extensive appointments, clause litigation, going on Twitter, making claims that only the president can make this appointment, no Congress has made it so that where there is a vacancy, it can occur by a court of law, and that's what's happening.

But Eric, Roger, do you guys have a different reaction?

Eric Columbus: I'm wondering, have they, could the courts do the, could the New Jersey District Court do that? Have they refrained from doing that in a situation where they could?

Anna Bower: I think, didn't they, yeah. What is, I don't know. Roger, do you have—do you know?

Roger Parloff: I can't remember the fact situation there.

Her main appointment was through the FERA and I, no, I don't know. I don't know where that stands now. There was a weird thing in the Sarcone case. Where they're the,

Anna Bower: They had not acted right?

Roger Parloff: Yeah. They specifically declined to appoint somebody, which was another, you know, all of these fact situations are slightly different.

And so they're all a little hard—they're all hard to compare.

Eric Columbus: Yeah, I think I was wrong about New Jersey, I think because it was not an appointment made by the attorney general under section 546, and therefore the district court had no authority.

Anna Bower: Yeah. And there's now the three headed beast in New Jersey that is, that are kind of combined wielding the powers of the U.S. attorney.

There's argument on that today that we will have an update on hopefully next week. But yeah, Ben, what are your thoughts on the EDVA, who's your pick for the new U.S. attorney by the court.

Benjamin Wittes: I am confident that when the court considers the matter fully, that Roger Parloff will be the U.S. attorney for the Eastern District of Virginia.

And I'm equally confident that he will get Senate confirmation when the president sees the wisdom of the choice and nominates him for the permanent position.

Alright, we actually have a lot more ground to cover and we don't have a whole lot of time. So, let's talk about Jack Smith's testimony before a public hearing of the House Judiciary Committee.

As you will all recall Mr. Smith went to Washington and was grilled against his will in a closed session and definitely came out the victor in his first confirmation—confrontation with Jim Jordan. He was, I think Jim Jordan was, definitely regretted that decision.

Now he's back and it was in an open hearing. And Roger, I'm gonna put this bluntly. Did Jim Jordan get his ass kicked again?

Roger Parloff: Well, he did not. Because, and I don't know if this was Jack Smith's idea to speak publicly anyway, even though the private hearing had already been made public, or if Jamie Raskin thought it was a good idea, or if Jim Jordan thought it was a good idea.

But you cannot win. A decent public servant like Jack Smith cannot win against Jim Jordan in a circus like this. And this was a supremely depressing spectacle that lasted almost five hours. And it's hard to it, you just fear for the country when you see this play out that he could not, you know, there, it's just pure badgering.

As soon as he begins to answer a question, he's cut off. And it, it was painful. It was painful to watch. The, I guess the good thing is, you know, if this was a perjury trap, and it probably was, it will fail because they interrupted him before he could say anything.

Benjamin Wittes: So, memo to all of you who were going to be abusive members of Congress and set perjury traps for people, you gotta let the witness get a word in edgewise because otherwise they can't make false statements.

My impression of, and I, Anna and I had some conversations about this at the time, but my impression of Smith's deposition testimony was that I have really seldom seen anybody, a better prepared witness on any subject, in a high-stakes congressional testimony.

He really didn't put a toe out of line and he didn't it, it was really a masterclass in how to deal with a congressional committee. Quite apart from the fact that the circumstances are less favorable to him how did, was there any daylight between Smith, the first time in Smith and the second.

Is there any, did he say anything interesting that he didn't say the first time?

Roger Parloff: I don't think he had a chance to plow new ground. I don't know if he said last time—they did ask him if he expected to be that, to be indicted, and he said he believed they'll do everything in their power to do that because they've been ordered by President Trump.

I, some things came up. There were conspiracy theories that maybe you know about. I didn't read the entire transcript last time, so there were conspiracies—

Benjamin Wittes: For my sins in life. I both read the whole transcript and listened to the whole thing.

Roger Parloff: Oh, okay.

Benjamin Wittes: And so I am intimately familiar with Jack Smith's prior testimony, but I haven't listened to any of the second testimony.

Roger Parloff: There was a lot of there was a conspiracy theory about Marshall Miller. Is that somebody that, that come up, yeah. That he’s the trick. You know, they're gonna, now they wanna depose Marshall Miller, who is a DOJ, or was a DOJ guy at the time.

Benjamin Wittes: And just to, for those who aren't familiar with this particular conspiracy theory, Jack Smith appears to have been named Special counsel following his saying to Marshall Miller, who was a friend of his, or a colleague of his that he was open to coming back to Washington for the right position. And this was eventually transmitted to Merrick Garland at the time, that Garland was considering needed a special counsel. And for some reason this is thought of as something nefarious rather than two longtime DOJ hands, one of whom is serving in the Hague at the War Crimes Tribunal saying, ‘Hey, I'd come back for the right job.’

I'd like, you know, and that being transmitted over time to the Attorney General I've never been, it's never been clear to me why Jim Jordan finds this so fascinating. But he clearly does.

Roger Parloff: And another one that apparently we'll be hearing more of this the representative Troy Nehls, I'm not sure how he says it.

He wants to do a hearing to show that it wasn't Donald Trump who caused January 6th. It was Yogananda Pitman, who was the assistant chief of the U.S. Capitol Police. She's a Black woman. She's perfect for this role. And so they're gonna pin it on her. There's also a 20—I don't know if this came up—a $20,000 payment that the Special Counsel's office made to a confidential human source. And this has everybody up in arms.

And Jack Smith started to explain that all what he remembered was they needed a confidential human, the FBI had asked for a confidential human source to review a video and photos of people attacking the capitol and officers, and seeing if we can prove that some of those people had come directly—Jordan cuts him off. And so we never found out the rest of that sentence.

But so that's that, that was another Cassidy Hutchinson came up a thousand times. Right, even though he had, anyway, that was, so,

Benjamin Wittes: Roger, just one, one last question on this before we mercifully we'll move on—alright, we are gonna move on to our immigration roundup.

Folks we took more time on that than I expected to, than on all of that stuff, and so, we're gonna need to be relatively brief on answers to these questions. I will try to move things along.

Roger, the Eighth Circuit has lifted restrictions on ICE's use of force against protestors which were imposed last week by Judge Menendez in Minnesota.

And two other cases are pending. I'm not sure if where they're pending in the Eighth Circuit or in the district court, but Minnesota versus Kristi Noem and Hussen versus Kristi Noem. So what's going on in, in the litigation side of the Minnesota stuff?

Roger Parloff: There are three suits going on civil suits that are sort of overlapping in terms of the relief they seek.

They're all directed against the Operation Metro Surge tincture. It was the first one that was filed. It's by six observers and they are making who have been manhandled and are making First and Fourth Amendment claims. Some of them have been detained for periods, long periods or stopped, I should say, for several hours, U.S. citizens.

And that's the one that's furthest along. And she had issued, Katherine Menendez, had issued a preliminary injunction. But that has been stayed. It's just an administrative stay, so we don't know too much.

Minnesota versus Noem, that's the one with the attorney general's office and the mayor's. And that's the one Anna described last week based mainly on the 10th Amendment. That's the one that seemed that would break new ground if that one succeeds. It seeks to actually reduce, basically reduce the surge back to where it, to, to the ICE force, back to where it was on November 30th before the surge started.

And then Hussen versus Noem is three U.S. citizens. It's a class action. It's in front of a different judge, Eric Tostrud. And that's the ACLU. And that's sort of a more recognizable suit, although it's, seeks a preliminary injunction against illegal stops and detentions. It's a, it gets a little complicated and it also runs into the challenges that we saw in the Perdomo Vasquez case.

So I think and that one's not very far along. I think we have a motion hearing February 7th in that one.

Benjamin Wittes: Alright, down in the Fifth Circuit we have an en banc oral argument in that big Alien Enemies Act case that's, you know, eventually gonna be the vehicle by which we have a slug fest at the Supreme Court over the scope of the Alien Enemies Act.

And its application to Tren de Aragua and the now former Maduro regime. What happened at the I guess it's the AARP case, which is not the American Associations for Retired Persons at the Fifth Circuit?

Roger Parloff: Yeah, we now call it WMM. There were 17 judges. It's en bank and I'm listening to it on audio.

So, it was a little difficult for me to get all of the judges straight. And but actually it was—only about six of them spoke, and including the three who were the original panel. The original panel surprised us and ruled that—struck down the proclamation, basically two to one. Obviously, that is unlikely to hold up at the en banc level.

It was Lee Gelernt arguing against Drew Ensign, and they really only covered the only thing they were discussing was what level of judicial review and of what parts of the proclamation? You ha—the most aggressive and nasty was Judge Oldham, who was the dissenting judge in the panel below, and who I think would like to be a future Supreme Court pick.

And because you—

Benjamin Wittes: Does he wanna be U.S. attorney in the Eastern District of Virginia? 'cause I hear there's an opening.

Roger Parloff: No, I've got that one sewed up is what I'm hearing. So, and I'm very, and I'm so honored that everyone is suggesting me. And there was a I guess the highlight was when Chief Judge Jennifer Elrod, who was probably gonna vote against the ACLU, but never, she was sort of disturbed about, well, what if the proclamation was fanciful on its face?

And she says, because, she's old like we are, and she knows who the Beatles are, and so she says, what if the proclamation was fanciful? What if it's a British invasion sending musicians over to corrupt young minds? And Ensign, I don't think could make the connection. He didn't know what she was talking about, even jocularly and he said that—I think he said that even that would be the the judges would have to accept the precedent. But anyway, nothing will really come of this because you remember the Supreme Court has said, no matter what happens here, their sort of stay on, on sending a eight people to CECOT under the Alien Enemies Act is everything is stayed until the disposition of the cert petition after the Fifth Circuit.

Right. So we're, I'm not sure why we're even going through this.

Benjamin Wittes: I just wanna foot stomp that it is grossly irresponsible of the Supreme Court to say that and then not grant cert before judgment, you know, on its own motion. Right. Like, and it is similarly goofy of the Fifth Circuit to go through a kind of kabuki en banc in order to drag things out.

I mean, people are sitting in detention. And you know, and this is not a situation in which you have two corporate litigants that you know, and the question is, you know, if you rule on it this year or next year, it's a hundred million dollars goes one way or another. So what, right? You have all the time in the world, this is a situation in which people are sitting in detention and will or won't be deported with very minimal process.

And it seems to me that the idea that you have all the time in the world to do this en banc and then to have a cert petition, and then, you know, if you're not gonna lift the stay until you've decided what to do with it yourself, Supreme Court, then decide what to do with it yourself. You know, there's just, there's something to be said for, that, that's not a statement about what direction you should rule, but like, take your job a little bit more seriously. I don't know. I'm churlish about that.

Alright. Speaking of things to be churlish about, Eric, turns out that ICE has a policy, and has since May of entering people's homes without judicial warrants.

And so what do we know about this policy and what is the lawful basis for them to enter people's homes without warrants?

Eric Columbus: Sure. So, on Wednesday the Associated Press broke a story about an internal ice memo from I believe May,

Roger Parloff: I think it was Reuters, right?

Eric Columbus: Maybe was, I thought it was AP that first.

Roger Parloff: Oh, I'm sorry. Okay. Yeah.

Eric Columbus: Asserting the authority to forcibly enter homes to arrest people who have final orders of removal, using only an administrative warrant rather than a judicial warrant. Now, an administrative warrant basically is a form signed by an ICE official, I think it's called the I205, that authorizes an arrest and typically is understood only to be an arrest in a public place.

It doesn't involve a judge, it doesn't involve, doesn't even involve the immigration judges who work for DOJ and hear immigration removal cases. And this has been long understood, including in DHS trading materials, not to allow the forcible invasion of people's homes, due to little thing called the fourth Amendment.

And there isn't a specific case on directly on point that bans this, but it, there is a lot of language in Supreme Court decisions requiring that warrants under the Fourth Amendment must be issued by “a neutral and detached official,” someone who is not in essence the same person or the same entity that is wanting to affect the arrest.

Now there is some dicta in a much older Fourth Amendment case from 1960 called Able v. the United States that arguably points in different direction. And the Fifth Circuit has actually indicated in a case last year that it's, this remains technically an open question in a case where DOJ had kind of actually argues a fallback argument that this was permissible.

But even so, ICE does not seem very confident in its position. And the memo in question, it basically has one sentence referencing a determination by the DHS Office of General Counsel, but doesn't discuss it or given a real explanation and reasoning. This reportedly conflicts with DHS training.

And ICE was very squirrely about showing the memo to people within DHS, apparently. This is according to a whistleblower report that was made to delivered to Congress at the same time as it was apparently leaked to the Associated Press. So, and you might wonder why are they going through all this?

What's the whole point? Why can't they just get the judicial warrant? And the answer, I believe is that they, it's because to get a judicial warrant, you need probable cause that a crime—

Benjamin Wittes: Of criminal activity.

Eric Columbus: —a crime that has been committed and a, in if you, and if you cross the border illegally, that is a criminal act.

However, let's say that you are, came to the United States legally on a legal visa, but you overstayed your visa, that is a very large, I don't know, I don't know if the numbers, but it's a very significant chunk of people who are not who are currently not, do not have legal status.

They once had legal status and they lost it. And that is because they did not leave and they were not granted asylum or some other thing that would lawfully let them stay and that is not a crime. So someone can, basically remain in their house in that situation and can't be lawfully dragged out of it pursuant to judicial warrant.

Now in theory, the ICE could just try to wait such a person out and stand outside the person's house and hoping that he or she will leave their house at some point. That's obviously very slow and requires tremendous amount of manpower. So they're trying to goose their numbers, boost the numbers and doing it this way.

It's hard to know how often they've been relying on this. Actually apparently there's a Wall Street Journal article yesterday that suggested there have been some pilot cities where they've been trying it, and that apparently by coincidence, Minneapolis was one of their test cities. And there have been reports, at least two reports in recent weeks of and not just reports, but also videos of ICE, literally going in with a, the literal battering ram to a arrest, some immigrants in Minneapolis. One who was from Liberia and one was a Hmong immigrant. It's a very large population in the Twin Cities.

And so they have been using it in some cases, and it's, as Orin Kerr wrote in a piece for us that was published, I think yesterday. This can, these things can be hard to challenge because of the lack of a remedy, effective remedy for most federal constitutional violations by law enforcement due to the Supreme Court's cabining of what is used to be known or is still known as a Bivens remedy. That in most situations it's very hard to do that.

The equivalent of a suit that is commonly filed against state officials who commit wrongdoing under section 1983 of Title 42.

Benjamin Wittes: Alright speaking of stuff that we've talked about but is bubbling up now in multiple circuits and we're gonna end up with a circuit split on, Eric, we now have a district court ruling in Massachusetts that throws a bit of a wrench into Trump administration efforts to deport people for pro-Palestinian advocacy.

Just the other week we talked about how the, you know, I think it was the Third Circuit in Mahmoud Khalil was pushing in the other direction. What happened in Massachusetts and are we setting up a circuit split on whether Marco Rubio can throw you out of the country with the stroke of a pen 'cause he doesn't like your views on Israel and Palestine?

Eric Columbus: Well, this is a very odd case in Massachusetts. It was brought by the Association—American Association of University Professors, and I believe the Middle East Studies Association. It was brought by a First Amendment organization called the Lawyers of the Knight First Amendment Institute, which I mentioned only because I used to work there. They're great people.

But the case in essence cha—or asserts that there is a policy that the Trump administration has of, in essence, deporting people going after people based upon the exercise of their First Amendment rights for their pro-Palestinian advocacy. And there's been, actually, there's kind of a bifurcation of this case in last September, Judge Young, who is I think he's in his eighties, he's a Reagan appointee, declared that the Trump administration’s policy did violate the First Amendment and 'cause it was viewpoint-based discrimination against pro-Palestinian advocates who Marco Rubio was alleging was whose conduct and views were Marco Rubio was alleging, were detrimental to U.S. foreign policy, which is somewhat of a comical thing to say.

And it was what he ordered, then, this week I think also yesterday was formally declaring the policy unlawful and ordering as a somewhat is interesting remedy that anyone who, is a member of the plaintiff's class, the plaintiff class, and is any adverse action taken against them on immigration grounds can file an action in any district court, anywhere in the country.

And that action—and that the immigration action against them has stayed pending the resolution of that other action in another district court where the burden of proof is on the government to show by clear and convincing evidence that they were not doing this in for any impermissible reason.

So it's very odd remedy. I do not expect it to hold up on appeal. What I think is very interesting here though is that there was a real trial, there was a like nine-day bench trial in September that, or I think it was over the summer actually, the opinion came out in September that in which lots of ICE people testified. And it really revealed just how threadbear the administration's efforts are in this regard, that you really are just kicking these pe people out because they advocated on behalf of Palestinians and documents. The Judge Young released a bunch of documents yesterday, which made quite clear that in the case of Ms. Öztürk who's, I won't be pronouncing her first name correctly, I won't try, a graduate student at Tufts was being kicked out, basically, she wrote a very anodyne op-ed in the Tufts newspaper urging the administration to have a—

Benjamin Wittes: Co-wrote! Is one of several bylines on it.

Eric Columbus: —review. Co-wrote. Yes.

A demonstration of a less pro-Israeli view on various issues. And it's embarrassing as an American, that people like this could be kicked out the country for that reason. So I think that also I, I also know the Khalil case of the Third Circuit was a little bit different in that it was jurisdiction on Roger, and correct me if I'm wrong, but I believe the ruling there was only jurisdictional that the district court did not have the jurisdiction to reach the issues, which at the time were in, in the Third Circuit view, only pending before the immigration judge.

Benjamin Wittes: Alright. My Turkish pronunciation is not wonderful, but I believe her name is pronounced Rumeysa. Alright two more cases we need to get through: Judge Jia Cobb, whose name I'm getting right today has denied democratic congresspeople's motion to block the revised DHS policies regarding access to ICE detention facilities.

Eric, we've talked about these challenges before. What are—why are they being allowed to go into effect?

Eric Columbus: So, Kristi Noem, a couple of weeks ago issued a new memo saying that, pointing out correctly that the restriction on, or rather the appropriations rider that allows ICE officials that require, that requires DHS officials to let members of Congress in for visits to detention facilities without notice that this applies only in the annual appropriations language and is not contained in the basically massive ICE slush fund.

That is the One, Big, Beautiful Bill Act. And she instructed those officials basically to use money only under that act with regard to anything touching on congressional visits to detention facilities, and therefore require advanced notice. Now the plaintiffs said, basically filed a motion, said, look, you can't do this. This is kind of ridiculous. It's basically impossible for these funds to be segregated in this way and for them to be kind of, for the, for, ICE to do that for DHS to do that basically off the spot. And judge you should order issue a show cause order requiring the DHS to prove that they can actually do this.

And if not, you should continue to enjoin them from doing from imposing any notice requirements on members of Congress who want to inspect detention facilities. The judge held hearings on it and concluded that she could not do that on—basically that it would basically unfair, informally extend the existing lawsuit. And, but she said that the, if the plaintiffs want to expand their original lawsuit or file a new lawsuit, they're welcome to do so.

So it's unclear what happened down the road, but as of now, it seems that DHS has effectively reinstated their policy of requiring advanced notice. This was, I think three or four days ago.

The plaintiffs have not made their next move yet, but I expect they will shortly.

Benjamin Wittes: Alright. Last case the Supreme Court held oral arguments in the case of Lisa Cook, which for those who don't remember, this is not a case that challenges Humphrey's Executor or raises the question of whether there are for cause removal for Fed officers is it appropriate.

It's really a case that's about if the president said you committed mortgage fraud based on Bill Pulte saying mortgage fraud can that be cause without any evaluation of whether any of it's true simply because the president says so. So Eric what did you make of the oral arguments and do you share the CW that cause means more than the president points at you and says mortgage fraud?

Eric Columbus: I think that it's unlikely at this point that the court will allow them, will allow Trump to fire Lisa Cook summarily because the subtext is that basically everyone thinks that Trump is either just making this up or at the very least is doing it, these accusations against Solicitor Cook for baldly political purposes, which is contradicts the position of the solicitor general. That the pre—that whatever for cause means or for cause firing, it cannot mean a mere policy disagreement.

And basically Judge Kavanaugh was going at these solicitor general and saying, look, you know, you say that there, it can't be a policy disagreement. You're also saying that the president can do whatever, can get to decide what cause is, and that there cannot be any judicial review of this.

So, you know, what does this mean?

Benjamin Wittes: So why not a policy disagreement then?

Eric Columbus: So why not? Yeah. I mean, how are we gonna know? And the solicitor general said, well, you know, one of the strongest traditions in this court's jurisprudence is the sort of presumption of regularity to the president's actions. And you know, he said this with a straight face and the justices I was listening so I can see it.

I believe they, they, you know, heard it with a literal straight face, but it seems a bit laughable. The idea that at this point, this late date, that is an effective check on a president. And as Kavanaugh said, look, the next president is just gonna come in and do the same thing in the opposite direction.

And then the Feds, the importance of the policy importance of the Fed's independence is going to be, is going to be gone. And it is kind of interesting like the they came up with this the Supreme Court had somewhat unconvincingly distinguished the Fed right in previous writing as they talked about how it came out of some, you know, charters of the first or second national bank or something.

But here it, today it seemed like kind of like much more clear or not today, I think it was yesterday or two days ago. It's a much more kind of like in brass tacks, that it's for policy reasons that they're carving out the Fed. The Fed's really important. It's really important that the Fed be viewed as independent or else like very bad things will happen.

And there is a brief very effective brief of in my view of former chairs of the Fed, including Alan, the 99-year-old Alan Greenspan kind of making a lot of these points. And somewhat interestingly the Solicitor General Sauer basically dismiss that brief as elite opinion and making somewhat populist argument that what these it, these are the views of like the old big elites.

But what real Americans know is that you can't lie on your mortgage application and that the same thing happened to them, they would lose their job or whatnot. I don't think that really influenced the court that much.

Benjamin Wittes: Okay. So I just wanna make sure I understand now, the crystal ball direction of for cause removal provisions at independent agencies.

With respect to all agencies except the Fed, the for cause removal proceedings are going to be held unconstitutional and the president can dismiss anybody for any reason irrespective of the notional independence of the agency. But the Fed, because first and second bank of the United States is profoundly different, and so Humphrey's Executor remains the law, and it is outrageous in the context of the Fed, but only the Fed for the president to think he can remove somebody for mere policy reasons, or no pun intended, trump up an allegation for cause.

Is that a fair summary of where we expect Supreme Court doctrine to be by June?

Eric Columbus: Yes. I think that's, I think that's a fair summary. And they will, I mean even within that they will need to, you know, do some kind of, you know, weird kind of hedging a little bit in order to get to the position that for—that there's a kind of a robust notion of review of judicial review of what a for cause determination can mean.

I think that they will wind up stretching things a little bit for on behalf of Lisa Cook in ways that they might not have done in the run of the mill case.

Anna Bower: Alright. Can I just—can I just pause really quickly though and just clarify that the posture of this case is still on an emergency application basis.

So whatever we get in this case, like the question is just should her firing be stayed while all of this plays out? And I think Eric is right in terms of the crystal ball looks like the court is going to say, alright, you can't, with the Fed, you can't just have an unreviewable decision to remove a governor, but I also, I am less clear in terms of what the actual opinion on the merits would look like in terms of the extent of the review. How much due process is afforded to a person? What are what's the realm of possibilities in terms of how you could remove someone and on a what and on what basis?

So that was my 2 cents. But whatever we get, it's still, I think, important to say. Like it, it might be one of those orders, the Supreme Court issues where you don't really know what they're saying or what they think because they've kind of gobbledygooked it, where they just wanna come to some kind of consensus so that things can continue in the lower courts.

Eric Columbus: I was just say, I think that's quite possible. I think that it's they're not the justice, are not happy about having to deal with this case. They may just kind of, I mean, at one point Justice Alito of all people said, well, why is this happening now? What's the rush here? What's the big deal?

And they may send it back to the district court with instructions, you know, to be very slow and don't bother us about this for a while. And then the big question becomes, do they uphold the stay that the district court issue that requires, which is the reason why Lisa Cook is still on the Board of Governors provisionally and I think they probably will.

Benjamin Wittes: Alright, we have two questions in the queue. I think one of them we've sort of already answered from Andrew Steele, will DHS face a similar judicial blowback to its ‘enter a home and arrest with only an administrative warrant’ position as it did with their INA detention, misinterpretation? Or will this issue generally not get to the courts?

And I think, as Eric said earlier, for reasons detailed in Orin Kerr's piece, it's actually a tricky question to resolve how this will present to the courts, though I have a fair bit of confidence that when it, and eventually it will, when it does an administrative warrant is not going to stand up. Particularly not in situations in which, for example, there's no suggestion of criminal activity. And by the way, maybe the house isn't even owned by the relevant would-be detainees.

So I think the government's position is very precarious, but they are gonna be protected to some degree by justiciability barriers.

Yes, Roger.

Roger Parloff: Yeah I, you know, Orin was concerned that there wasn't gonna be, you couldn't raise it in a private damages, cause of action, but I don't see why it couldn't be raised. Now that we know it's a policy, why it couldn't be raised in an injunctive action to bar the whole policy under the A—

Benjamin Wittes: 'cause who has standing to raise it as a as an injunctive matter? Somebody who fears, you know, somebody who fears, who's here illegally, who fears an extra judicial arrest.

Roger Parloff: I see. Yeah. Right.

Benjamin Wittes: Through, I still think you're gonna have a standing barrier.

Roger Parloff: Yeah.

Anna Bower: Well, in the state case though, they're raising a bunch of challenges to use of force policies by border patrol and ICE. I am not familiar with the standing challenges that the state would have in that situation, but it could be raised in the context of that litigation, I would assume.

Benjamin Wittes: The plaintiff that you're looking for here, I think, and we need to move on and wrap up, but the plaintiff that you're looking for is a membership organization that represents some large number of undocumented people who fears imminent action against its members in violation of the Fourth Amendment.

I think that's your ideal plaintiff, but it's a tricky little question.

Alright. Finally, we have one of these awesome questions that can be answered in a single three letter word. The anonymous attendee asks, can the president fire a court appointed U.S. attorney? Anna, what's the answer?

Anna Bower: I mean, yes.

Benjamin Wittes: Yeah. The answer would be yes. As evidenced by the firing of Eric Zebert and his replacement with the now departed Lindsey Halligan. That means that when the court appoints Roger Parloff, if the president does not see the wisdom of this and nominate him for Senate confirmation, he can remove him the following day.

And of course, Roger will be welcomed back to Lawfare with open arms.

Folks, we are gonna leave it there. We will be back next week. I will be taking a couple weeks off, so the next week will be the next few, couple episodes will be hosted by others.

Thanks to Eric Columbus. Thanks to Anna Bower. Thanks to Roger Parloff. That's U.S. Attorney Roger Parloff. And thanks to Olivia Manes. We will be back next week. The trials will keep trialing. The tribulations will keep tribulating and we will be here to talk about it.

[Outro]

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.