Lawfare Daily: The Trials of the Trump Administration, Jan. 9

[Intro]

Benjamin Wittes: It is the Lawfare Podcast. I'm Benjamin Wittes, Editor in Chief of Lawfare with Lawfare Senior Editors, Roger Parloff, Michael Feinberg, and Eric Columbus. In the January 9th episode of the Trials of the Trump Administration, we talked about the shootings by ICE and CBP officers in Minnesota and Portland, Oregon, what the Maduro indictment means for the Alien Enemies Act cases, and the disqualification of U.S. attorney—and the disqualification of the U.S. Attorney for the Northern District of New York and so much more.

[Main Episode]

It is Friday, January 9th, 2026. It is four o'clock PM, Washington time. And this is Lawfare Live, the Trials and Tribulations of the Trump Administration. I'm Benjamin Wittes, Editor in Chief of Lawfare, and I am here with three Lawfare Senior Editors, Eric Columbus, Michael Feinberg, and Roger Parloff, who all have in common that they are male.

And this is a very rare thing for Lawfare to have an all-male panel. But our female contributors are in transit today. They are. And so we are gonna actually be an all-male panel today for the first time in, I don't know how long.

Mike Feinberg, we are gonna start with you because you are the person in the Lawfare ecosystem who knows the most about using deadly force and at least in law enforcement context.

And it has been a really bad week for the use of deadly force in the law enforcement context. We did a full podcast on the shooting in Minnesota the other day. I don't wanna rehash entirely that I—let's refer people back to that podcast for those who want a deep dive on the Minnesota shooting, but there have been some development since then.

So, bring us up to speed. What happened in Minneapolis and what has happened most particularly since the podcast discussion that we had on the subject.

Michael Feinberg: Yeah. So in Minneapolis there was a pair of what are called the ICE watchers, individuals who sort of follow them around, update the community on what's going on, film them, and if we're being totally candid, often interact with them in a way that I would call lightly antagonistic.

Not physical violence, but certainly verbal reposts to what they're doing. And there was an interaction that was recorded from angles that were not ideal for the purposes of fully analyzing what was happening in which there were individuals doing this ICE watching activity. And there was one agent observing them and counter filming them with his own cell phone camera, and a number of other agents arrived on the scene.

They approached the vehicle in what I will euphemistically refer to as a verbally aggressive way, attempted to open the vehicle's door. It is not entirely clear for what purpose, and as the individual drove away, shots were fired and the driver was killed, if not instantly, a number of seconds. And the car veered off the road into a pole or tree and the individual was declared dead.

Now this has raised a whole host of issues, many of which we discussed in the podcast. But since that podcast posted, another recording has either leaked or been informally passed to a news outlet online. And that recording is actually the one that the ICE agent who fired the shots was making at the time.

And this has raised a number of questions. There's been a lot of—

Benjamin Wittes: Making in body cam footage or making—

Michael Feinberg: No, not body cam footage.

Benjamin Wittes: You mean like counter filming

Michael Feinberg: Walking around, holding his cell phone recording the interaction where him and the ICE watchers were going back and forth verbally and he kept recording as he maneuvered around the vehicle and was still recording apparently even at the time shots were fired.

This has spurred a whole bunch of additional debate with the two salient questions being, you know, it appears that the second and third shots he was at the side of the vehicle as opposed to in front of it. I don't think that's actually a very important debate for reasons we could get into, but it's also raising the question of if this individual really felt that his life is in danger and he's a law enforcement official, why is he monopolizing one of his two hands with which he can use defensive and offensive weaponry with a cell phone to videotape the encounter?

Benjamin Wittes: Right. And do we know anything about the circumstances of the release of this video? Is it—

Michael Feinberg: Not at this point? We know it's been confirmed in the sense that the White House, through JD Vance and Karoline Leavitt, have commented on it and state that it exonerates the law enforcement officer and that she was, the driver was clearly trying to run him over and he was in genuine fear for his life.

I will just say, and this is more anecdata, I've been talking with former law enforcement officers all day about this, including ones who themselves have used deadly force and not a single one of us thinks that the video actually accomplishes what the White House is saying it does.

Benjamin Wittes: And what do you think from your point of view, you've now seen multiple videos of this.

Michael Feinberg: Yeah. What is a, and I'm not asking you for a legal read on it, as in what you would write if you were a judge and it were a qualified immunity question, right. But what is your instinct about the righteousness of the use of force under the circumstances as you can see them. How do you assess the conduct of the officer in question?

Michael Feinberg: The conduct of every ICE officer on scene, not just the one who fired the shots, was, I will politely say extremely unprofessional and exhibiting this sort of behavior that at least in the FBI, in which I served, would've gotten somebody disciplined, if not administratively removed.

Benjamin Wittes: And what are the errors or unprofessional behaviors that you see in those videos for the different categories of ICE officers?

Michael Feinberg: Yeah. So let's not break it down by the categories of ICE officers. Let's break it down to what happens before the shooting, the shooting itself, and immediately after the shooting. Before the shooting, there is an individual who appears to be starting to drive away from the scene.

And a group of ICE officers rolls up to join the one who's already filming, and they immediately start swearing at her and demanding that she get out of the vehicle. And that—then they go to the vehicle and they try to forcibly open the door, and she apparently starts to drive off the same time they try and open the door, and that's when she gets shot.

So just up to that moment: it is not clear to me from any of the footage that legally she's committing any violation, which would justify them ordering her out of the vehicle or forcibly trying to take her out of the vehicle themselves.

But let's look at things in the light most favorable to ICE. Let's that they did have the right to demand she get out of the vehicle, there was something going on. They do it in a way that is fundamentally tactically unsound. First of all, the agent who's filming goes from where he's actually in a position of relative safety to the front of the vehicle. Now, you could argue that he is trying to stop it from having a way of egress, but the way he chose to do that involves putting himself at risk, which increases the likelihood that there may be a violent encounter.

Second, they have superiority of numbers. This individual has not committed a crime of violence as far as anybody has alleged. They could have done a simple surround and call out, by which I mean law enforcement vehicles have microphones and speakers. They could've simply maintained their distance if they thought there was a risk of violence, drawn their weapons out, aim them at her, and use the speaker to demand that she exit the vehicle.

There is a script for this. There is a way to do it that, you know, deescalates the situation, still accomplishes the goal and maintains the safety of the officers. The shooting itself, again, let's view things in the most favorable light towards the agent who leverages deadly force. He, I'm assuming, is going to argue that the car is a vehicle and it was being aimed at him, and therefore his life was in danger.

The problem is, based on the new footage that we've seen, it is clearly visible that the driver is trying to turn away from him. In other words, if she was trying to hit him or drive through him, the steering wheel would be turned to the left. She's doing the opposite. She's turning it to the right. I am—I've said this before in other settings, I am always loathed to judge another law enforcement officer's tactical decisions simply because I'm not in their shoes, but part of being a law enforcement officer is keeping your cool and stressful situations.

It is difficult for me to see how somebody keeping their cool in this situation would legitimately think that their life is in danger at any point. In fact, the verbal interaction that the officer engages with before the shooting begins, we see the driver actually herself trying to deescalate, I forget her exact quote, but she says something, she's like, ‘look, we don't hate you. We have nothing against you.’

I just, this doesn't pass the smell test for myself or anybody else with whom I've spoken from the field.

And then we get to immediately after the shooting different agencies. A lot of people don't realize within the federal government have different deadly force policies, and I couldn't find in what DHS, has online, whether they specifically address the point I'm about to raise, but at least with Department of Justice agencies, which admittedly are different, particularly since the George Floyd death, there has been an affirmative obligation on law enforcement to render aid as soon as is feasible after the deployment of deadly force.

In other words, the, there's like a little bit of an irony in that you've just used deadly force, but once the person is incapacitated, no longer a threat. Like every law enforcement officer I've ever met in any agency is trained in first aid for, particularly for trauma wounds. We don't see anybody from DHS going to the car where it has crash and attempting to render aid.

We see them standing around and I saw at least in one video, a pair of them seemingly joking and patting each other on the back. So like I said, this whole thing strikes me as extremely unprofessional.

Benjamin Wittes: And I, I take it, none of this is in litigation yet, right. And what do we know about the state of investigations, at either the state or local or federal levels?

Michael Feinberg: Less than most commentators think we do. There were early indications that the state of Minnesota and the FBI field office were jointly going to investigate the shooting. I should note that would—the FBI investigating the shooting would certainly be standard operating procedure. It's not necessarily standard that they would do so in concert with the state, and that's a nuanced discussion we had on yesterday's podcast.

But the special agent in charge of the Minneapolis office is not a Patel appointee. He is somebody that was appointed by Wray and I would assume that he was trying to do the right thing and using that standard operating procedure. That was later walked back, the FBI and the government announced that they would not be sharing any evidence with the state or doing any sort of joint investigation with the state, but that they were investigating. What is still, I think a more open question than most people realize, is what precisely are they investigating?

It could very well be a civil rights investigation into an unjustified use of deadly force. But we'd be remiss if we didn't consider the possibility, particularly under this administration, that what they've actually shifted to is an investigation of an assault on a federal officer that is an investigation of the driver and her passenger into what they may have done to the ICE officer, and that this may be being done in order to help exonerate that ICE employee.

We just simply—the government is not being particularly communicative about this, except to smear the victim. So there's a lot that still remains to be seen.

Benjamin Wittes: And what about the Minnesota and Minneapolis authorities? They have murder statutes and—that are various other homicide statutes that are available to them.

Obviously there are supremacy clause issues that would arise there and federal removal issues, but they're not without authorities. So what do we know about their investigation?

Michael Feinberg: That it has, it is still open according to them, but it's a really—it's really difficult to conduct a shooting investigation if you have zero access to the scene or the forensic evidence.

There was actually a press conference today where, the Minnesota attorney general, did solicit the public for any footage that has not yet been seen, whether it's, you know, cell phone cams, Ring cams from the neighborhood, what have you. It looks like they are trying to go forward, but they are gonna be very handicapped by the federal government's refusal to share evidence.

Benjamin Wittes: All right. Meanwhile, we have another shooting federal officers in Portland. I believe there are two victims in that situation where we do not have a lot of video footage. What do we know about what happened in Portland and what is, can responsibly be said about it at this stage?

Michael Feinberg: Very little can responsibly be said.

We don't, as far as I know, have any footage of this one. It appears to have occurred during a felony vehicle stop, which is not a particularly controversial operation. It's something that gets done by police departments at the federal and local levels every day. It was the Customs and Border Patrol, not ICE, although both are under DHS authority and we know that the subjects of the deadly force have not perished from their wounds as far as we've been told.

Benjamin Wittes: And do we know anything about their citizenship status? Was this CBP doing immigration roundup stuff or was it just people deployed for immigration roundup purposes, acting like cops and you know, doing more routine law enforcement kind of stuff?

Michael Feinberg: Somebody can jump in. I'm not sure whether they had a warrant, but I believe neither of them were citizens or here under any sort of legal status. So I don't, and again, it was another one where I believe they are alleging that they were gonna use the vehicle as a weapon.

Benjamin Wittes: Gotcha.

Michael Feinberg: And we should note the interplay between the use of deadly force and subjects using a vehicle as a weapon, as a justification for using that deadly force, is an area pretty fraught with nuance and recent changes to the point where different agencies are handing—handling it differently.

So for example, in the DOJ context, you have a duty to try and maneuver yourself out of the way of the vehicle before you deploy deadly force. DHS, I do not believe, has that requirement.

Benjamin Wittes: Eric, were you trying to get in?

Eric Columbus: Yeah. I was gonna say that the DHS has claimed that the people shot in, in Portland were part of a were part of Tren de Aragua, which is the Venezuelan gang, if you will, that DHS has been talking up as a serious threat to the homeland.

They've said that one of them is involved with a prostitution ring run by Tren de Aragua. And they said that the other one was involved with a prior shooting in Portland, that they've not presented any evidence regard this, but they have actually released the names earlier today, I just noticed.

Michael Feinberg: But we should also note like those facts about the subjects. Not all of them are gonna be relevant as to whether the deadly force was justified. I think what we're seeing—

Benjamin Wittes: Right, summary execution not being known is not legal. The known punishment for prostitution or even prior involvement in shooting or gang membership,

Michael Feinberg: Correct. This is gonna be a fact-based determination on the actual circumstances at the time. Now, if the individual was known to the officers to have been involved in violent or deadly encounters in the past, that would certainly go to determining whether their particular actions were objectively reasonable.

But the fact that somebody is a member of TDA or that somebody is here illegally or without status, really should not play into the officer's decision to deploy deadly force.

Benjamin Wittes: Right, except in the very limited sense that if you know you're dealing with somebody who's been involved in a highly violent activity, that may reasonably affect your perception of threat or perception of danger to yourself. But then you have to know that in advance.

Alright we are gonna move on. Eric, none of this stuff is in litigation yet, but it is starting to show up in other litigations, at least in Minnesota. So tell us about the way this shooting has crept into ongoing litigation in Minnesota over ICE protests.

Eric Columbus: Well, there is a—so, DHS surged, if you will, into Minnesota last month. And it seemingly kind of downstream of stories about fraud in government benefits by people of Somali descent and Somali immigrants in Minnesota that kind of led to DHS focusing on Minnesota and led to a lawsuit very similar to a lawsuit that was filed in Chicago on behalf of protestors and observers accusing ICE and CBP of disrespecting their First Amendment rights and seeking injunctive, declaratory and injunctive relief.

And that lawsuit remained pending, remains pending and somewhat remarkably on. The day of the shooting was the day when the plaintiff's reply brief was due in their motion for a preliminary injunction.

So there is a line in the brief that says the day this brief is being filed Wednesday, January 7th, 2026, an ICE agent shot and killed a woman in Minneapolis. And it's literally just a sentence. Then they go on to everything else because. It's just a very rather unusual element of litigation when you have the event that you have been dreading actually occurs in the middle of litigation.

The judge was going to have a preliminary injunction hearing the following day. The judge canceled that in, in the light of the kind of fast breaking events. It'll be interesting to see what happens. The arguments of the parties are fairly similar to what was argued in Chicago, where the plaintiffs want kind of a broad set of injunctions.

The DHS says that this would unfairly hamper law enforcement. And that's basically that's both too prescriptive, and that also it is kind of a general follow the law injunction, which they feel is not permissible. So we will see how that plays out probably pretty soon.

Benjamin Wittes: Alright Roger, let's talk about the JGG case. Returning favorite which never seems to go away. The long suffering Chief Judge of the District Court and the District of Columbia, Jim Boasberg, has another order out in the, I assume the contempt part of the JGG case, 'cause I think that's all that's left. Is that right?

Roger Parloff: Actually, no. The contempt one is now on sort of appeal.

Or it's on a mandamus. The government is trying to stop the contempt proceedings from going forward again. And the other half of this is that, if you remember it, it began, this was the granddaddy of the Alien Enemies Act cases. It began with an attempt to keep the Venezuelans from being removed a class without any due process whatsoever.

And there Boasberg entered the order. 250 Venezuelans were sent to CECOT anyway, 137 of those under the Alien Enemies Act. So then a new class action was brought on behalf of the people in CECOT. And the issue, this was a, another wing of JGG and the issue there was whether there was constructive custody of the people that were now in CECOT.

Was that, were they in the U.S.'s constructive custody? And Boasberg said that they, he couldn't say that they were, but he somehow found that he would certify a class, anyway that went up on appeal. And then while it was on appeal, all of those 252 prisoners were sent to Venezuela, swapped. And then—

Benjamin Wittes: So now they're not even so, so let, so just to give you an idea of how attenuated this gets, right.

First it's a kind of, it's a habeas case, which is to release you from U.S. custody. Then they're not in U.S. custody anymore, they're in Salvadoran custody. But maybe you retain jurisdiction 'cause it's constructively in Salvadoran custody, and then you're transferred out of Salvadoran custody to being free in Venezuela, and—sort of free in Venezuela. But you're not in anybody's custody, right? So what's the argument at that point for continued jurisdiction in U.S. courts?

Roger Parloff: Well, the whole reason a lot of those people were in this country, probably all of them, was that they didn't wanna be in Venezuela very strongly, didn't wanna be in Venezuela.

And they feared for their—a lot, well, a lot of them were seeking asylum here. I'm sure some were criminals too, okay. But a lot were seeking asylum and so, they still wanted to get out of Venezuela and they had still been wronged in the sense that by this time the Supreme Court had said definitively, ‘you should have gotten due process.’ I mean, even if the Alien Enemies Act proclamation was valid you need to have a hearing to say that you are indeed Tren de Aragua, that somebody will determine that you really are properly designated. So, there, there are still consequences from the original due process violation that they are feeling.

They, and they are back in the place where they feared for the life. And incredibly, there's a class of them that would rather come back to Donald Trump's United States than live outside of custody in Venezuela. And that's the class now. And so this time around, once the swap occurred the appeal was sort of declared it was remanded to, to take care of all the new circumstances and I mean, to assess the new circumstances.

And so, on December 12^th, Judge Boasberg looked at everything and said, ‘okay actually the situation is stronger for the plaintiffs than it was before, because now I can see I was wrong. There was constructive custody in CECOT to begin with.’ It was all a sham. It's obvious you know, the U.S. sent them to Venezuela in exchange for 10 U.S. prisoners.

El Salvador got nothing out of it. 80 other political prisoners were released, but El Salvador got nothing. And so, he can see that there was constructive custody. And in addition, he found a very, it was very easy to rule a summary judgment on the merits because it was, beyond question all nine justices basically had already said that due process had been denied to them. So he ordered that the government come up with proposals about how to get them the due process that they were denied.

And it, to be clear, it's not that anyone, nobody is asking that Boasberg decide whether the Alien Enemies Act proclamation is legal and no one is asking whether that Boasberg should decide whether they are members of TDA, but they're asking Boasberg to somehow facilitate a manner so that some U.S. judge will decide those things.

And so, he is saying, okay, ‘government, you make some proposals. How are you going to give them this, the, their due process, their days in court? Are you gonna do it in Venezuela? Are you gonna do it here? But how are you gonna do it? And the original proposal was to tell me by January 5th, and then the weekend before January 5th we sort of invaded to Venezuela or whatever we did a predatory incursion or a surgical whatever. We went in and we took Maduro out.’

And that changed the circumstances again. And so he's given—he's postponed —given the government another week to figure out what proposals to make and that will come in Monday, January 12th. So that is a very strange posture of this situation.

Benjamin Wittes: And so the current posture is that the government has to make a proposal for how it is going to give 137 Venezuelans Alien Enemies Act hearings that they should have gotten before.

Roger Parloff: That's right. And it might not literally be all 137, but the ones that do wanna come back and are willing to do that.

Benjamin Wittes: The government and the ACLU have had an exchange of letters in the AARP case. And for those who remember the AARP case, it has nothing to do with the American Association of Retired Persons.

AARP, which is now called WMM, I believe, is like all initials in these cases, the initials of some poor person who's been detained or deported or is being threatened with deportation under the Alien Enemies Act. But the government and the ACLU have now swapped letters about the significance of the Maduro indictment for these Alien Enemies Act cases.

And my question for you, Roger, is why would the Maduro indictment have any implications for Alien Enemies Act cases?

Roger Parloff: So, it, it might not, but, so the WMM case, just to remind people where it is, this is now sort of the main event because it is likely the case that is going to the Supreme Court to determine whether the Alien Enemies Act proclamation was ever valid.

And it's been fully briefed and it's supposed to go, it's in the Fifth Circuit. Incredibly, a panel of the Fifth Circuit invalidated the Alien Enemies Act proclamation. I say incredible because the Fifth Circuit is the most conservative panel, I mean, circuit in the country.

But—and that end bank oral argument will be January 22nd. And then there was this, whatever happened in Venezuela and the government. So each side sort of, it's not really briefing, but it's a one-page notice that something happened that's relevant to the case, and the government takes the position that the indictment reinforces the view that the Maduro regime and Tren de Aragua have formed a quote, hybrid criminal state directed by that regime.

And that the regimes control over Tren de Aragua it, it reinforces the idea that its control over Tren de Aragua and Tren de Aragua is violent invasion or predatory incursion on U.S. soil. The ACLU says that it, it rather that it shows that Maduro's alleged actions were not military, but rather criminal offenses.

And so it wouldn't be appropriate to deal with them through the Alien Enemies Act, which talks about declared wars and invasions and predatory incursions by a foreign nation. Also, Maduro and the Maduro regime are not a foreign nation which the Alien Enemies Act speaks about a foreign nation.

And of course now that Maduro is out of Venezuela, it's hard to see how you could continue to use the Alien Enemies Act. Since even the proclamation never really says that Venezuela is the problem, but rather that Maduro and the Maduro regime are the problem and that they were illegitimate.

So there's an exchange, neither—it is just a one page from each side. And it I don't think it will change too much.

Benjamin Wittes: Alright. Eric, let's talk about the criminal case of Representative McIver who lost another round on speech and debate clause immunity. Remind us what this case is about, who the defendant is, and bring us up to speed on what what happened in New Jersey.

Eric Columbus: Sure. So, LaMonica McIver is a congresswoman representing the 10th District of New Jersey. And on May of last year, there was she, and I believe may have been another congressperson, was trying to get access to a Newark ICE detention facility. I believe it was a state facility that was contracted by ICE and was blocked by ICE agents, or maybe other DHS folks.

And there was a bit of a scuffle there. The Mayor of Newark was, Ras Baraka, was arrested charges against him later dropped. And she, both sides agree, was involved in physical contact with various federal officers. And she was indicted for assaulting federal officers.

And there were kind of two incidents that she, that were involved. One where she was, well, sorry with two different officers, there was contact. And back last fall, I think it was in September. Or rather November, the court—sorry, lemme back up again.

She, among her defenses, she moved to dismiss on the basis that her conduct was done in a legislative capacity, which she was trying to in conduct legislative oversight and therefore was shielded by the Speech or Debate Clause of the Constitution.

Benjamin Wittes: But you're not allowed to assault people as part of legislative oversight, right?

I mean, I, like I, this seems like a terrible prosecution and I don't doubt that she should be acquitted of it, but like, just because you're engaged in legislative oversight doesn't mean you're allowed to assault an ICE officer, assuming arguendo that she assaulted an ICE officer.

Eric Columbus: True. But the idea that she was claiming was that the conduct, which was remained to be adjudicated, whether it rose to the level of assault, was in the course of, was kind of incidental and the course of her trying to gain access to the building and that the idea, like, for example, she could not have like arguably taken out a gun and shot and a DHS officer who is in impeding her.

But suppose the idea is that if you, if someone, if you're trying to conduct your legislate, do your legislative duty of conducting oversight by entering this building, which you have a statutory right to do under an appropriations, rather, that's been the subject of other litigation, and there's someone standing in your way, you can, lawfully, try to push that person aside so that you can exercise your constitutional discharge or constitutional duties.

There's obviously a limit there. You could not, you know, take out a gun and shoot that person in the head. So I think that's how that, that analysis breaks down.

Benjamin Wittes: I see. But it did not prevail.

Eric Columbus: It did not prevail at first, under it. She tried it with regard to one of the charges and the judge said no.

In that instance, you trying to prevent the arrest of the mayor, and that was not in discharge of your legislative responsibilities. The judge deferred the allegation, the, analysis of a separate count involving contact with a separate law enforcement officer. And he ruled just four days ago that with new video footage that had been released in discovery, that the, that officer was not facing her or purposely impeding her when the physical conduct occurred, but rather he was also trying to clear a path for the first officer to affect the arrest of the mayor.

So it's somewhat bizarre, but how Speech or Debate, the separation of powers analysis is undertaken by kind of looking direction, the officers footage of which direction the officer is facing when an arrest is affected.

Benjamin Wittes: So, am I crazy here, Eric, or it seems to me like these are—like this is a stupid prosecution that a jury's gonna reject pretty easily.

But that these are jury questions. Am I, do you think it's more complicated than that?

Eric Columbus: When you say these, you mean the questions that will remain?

Benjamin Wittes: Well, that, you know, what she's trying to frame as Speech and Debate Clause stuff are, you know, pretty seem to me pretty classic jury questions.

And just as sandwich guy had to go to trial, he didn't have Speech and Debate Clause issues, but, you know, you're like, these are, these questions are why we have juries.

Eric Columbus: Well I suppose if there were questions of fact involved, but the judge basically felt, it was clear what the video, what the what the facts were.

I mean, it's ultimately a legal determination whether or not she has Speech or Debate immunity. And the facts to the judge appeared clear about what was going on when she made the physical conduct—contact with the officers. So that then leaves for the jury, the ultimate question is whether she was, in fact her conduct rose to the level of assault as defined in the federal statute.

Benjamin Wittes: Alright. So is the—are there more pretrial issues to resolve or is this now headed to trial?

Eric Columbus: I believe it's headed to trial. The judge earlier rejected a selective and vindictive prosecution claim.

Benjamin Wittes: I have a prediction to make for you all. I want it to—no New Jersey jury is going to convict her of this, and it will take less than five hours of deliberation to acquit her, not merely for the jury to hang. This is a loser of a case. Any, anyone wanna argue that this is more like Wisconsin than like sandwich guy?

Eric Columbus: We're not, I wouldn't wager the ranch in either direction, but I wouldn't bet against you on this.

Benjamin Wittes: All right. Let's talk about we, we need a name for this, Roger. Another day, another judge orders the facilitation of a return of a wrongly deported person. This one is Federico Reyes Vasquez. Where is this case and what are the circumstances?

Roger Parloff: This is a district of Utah and this is actually. This happened December 31st, so we probably should have covered it in our last, on our Monday broadcast, Kyle Cheney reported this, and this is sort of, but this is, this was a guy who was, he brought a habeas December 19th.

The judge said, don't remove him December 22nd, and he was removed December 23rd. But here the prosecutor did, or has apparently, is apparently doing what Erez Reuveni assumed they would do in Abrego Garcia's case. He's saying, ‘this was a mistake. We'll get him back for you. We are gonna—we're gonna get him back for you.’

And because we don't know a lot about the facts because you know, these habeas, and especially it seems habeas immigration cases, have a default setting where on PACER, they won't print anything except the judge's orders. So I don't have a lot of details here, but we are supposed to get a government response on January 19th.

But what's interesting about what the judge did do is he said—he gave them 21 days to, to facilitate his removal. He's in Mexico. He ordered the government to provide either transportation or financial support to get him to the port of entry 'cause he is poor. And that's one thing.

The other thing he did, which I haven't seen before, is he invited the petitioner's attorney to seek attorney's fees under the Equal Access to Justice Act.

Benjamin Wittes: Huh. That's interesting.

Roger Parloff: And I haven't seen that before. So, that seemed like a those were both interesting aspects of this case.

Benjamin Wittes: All right, so let's move on to politicization of the Justice Department on which we have some actions in catching up to do.

So, I saw an alert from the New York Times the other day that the Justice Department was investigating Letitia James's financial transactions with her hairdresser. I don't have any information that has not entered into litigation yet, but Judge Schofield did disqualify the U.S. Attorney for the Northern District of New York, and quashing grand jury subpoenas for Letitia James's office. Is this hairdresser related, Roger? And how should we you know, 'cause like, you know, if there are financial transactions with the hairdresser, we gotta, the public has a right to know.

Roger Parloff: I'm sure that eventually they these will be linked up. It seems that the hairdresser investigation is currently focused in Louisiana, but so we'll have to see what developed.

Benjamin Wittes: This is the, just to be clear, this is the in Attorney General of the State of New York, who's from, who's been indicted in Virginia, both in Norfolk, attempted both in Norfolk, Virginia and in Alexandria, Virginia, over a house that she owns in Norfolk.

But it does seem like the hairdresser transactions investigation is focused in Louisiana. Anyway, I didn't mean to, but like, you know, we're gonna cover the hairdresser issue. Like a laser beam here.

Roger Parloff: Yeah. But the news here that on, yesterday, was that Judge Lorna Schofield disqualified the putative U.S. Attorney for the Northern District of New York, John Sarcone.

And this the same general for unlawful appointment, he becomes the fifth U.S. Attorney in this second Trump administration to be disqualified for unlawful appointment. Alina Habba of New Jersey, Sigal Chattah of Nevada, Bilal Essayli of the Central District of California, Lindsey Halligan, of course Eastern District of Virginia.

The fact situations all vary a little. This one is fairly close to the Alina Habba situation, more closer to Habba than to Halligan. And Schofield is Southern District of New York. That's how they do it in these cases. The bench of the—the whole bench of the district in question is sort of recused and then as an outside judge is designated.

Benjamin Wittes: But I think this was a case that was argued what in Albany, right? And—

Roger Parloff: Yup.

Benjamin Wittes: And I believe Anna Bower was present for this argument.

Roger Parloff: That's right. Anna went to it. She unfortunately can't, couldn't be here tonight, but and the, it came up because he issued the subpoenas incredibly broad subpoenas to Letitia James's office very shortly after he was appointed for two investigations.

One one relating to they, they're sort of—they're Durham investigations. They're counter investigations. Investigations of investigations. And he was going to investigate the Trump civil case that she brought and the, a case she brought against the NRA.

And that with documents, going all documents back to January 2022 in the Trump case and back to January 2020 in the NRA case. And so, the details, like I said are close to the Habba case. I would say that there's something else interesting about this though. And he quashes the subpoenas says that he is disqualified. Regardless of what title he uses, he cannot be involved in this probe any further.

But there's a part of it that comes pretty close, even though this wasn't before him to saying that this is sort of a vindictive prosecution. He says—'cause when you move to quash a subpoena, you're saying it's an unreasonable subpoena under Rule 17, these are criminal grand jury subpoenas.

And he, she writes, the subpoenas were here, were issued through an official acting with unlawful authority. They lacked the regularity required for presumption of reasonableness. But three weeks after Mr. Sarcone claimed the title of acting U.S. Attorney. He used that authority to subpoena a state law enforcement office that the president had publicly cast as a political adversary.

The subpoenas cover, cover letters direct the office of this attorney general to send all materials to Mr. Sarcone personally. Grand juries are not meant to be the private tool of a prosecutor, much less one not lawfully appointed.

And then she also says the problem is not a not a lack of subpoena power in the abstract. It is the federal government's choice to invoke that power through a statutory end run and the leverage, and to then leverage that power against the perceived rival of the government—of the president. So it's, it goes a little beyond just the abstract right. And technical. It’s an interesting, it's an interesting ruling.

Benjamin Wittes: Well, so speaking of U.S. Attorneys who insist on dressing themselves, as Macbeth would say in borrowed robes, Lindsey Halligan continues to act as U.S. Attorney even though the estimable Judge McGowan has ruled that she is not the U.S. Attorney in two cases. And judges in Virginia are getting a little fed up with it, as best as I can tell.

Most recently, a Richmond district judge with whom I am entirely unfamiliar, David Novak directed her to brief the question why she's still in office, basically. What do you make of this, Roger?

Roger Parloff: Yeah, exactly what you said. He asks her to explain herself within seven days.

Why does she keep calling herself U.S. Attorney and why she's not violating ethical rules on dishonesty and false statements when she does that?

Benjamin Wittes: Yeah. He specifically cites Virginia Rule of Professional conduct 3.3, a quote: A lawyer shall not knowingly one, make a false statement of fact on law or law to a tribunal. And you know, he quotes the whole thing. Yeah he seems pissed off.

Roger Parloff: Yeah. He, and then he goes on, he actually, he quotes, he cites one, two, three, four ethical rules. He cites a local rule. He cites a federal rule of disciplinary enforcement. And he also says the pleading shall be signed by Halligan.

He wants to hold her feet to the, he doesn't want some attorney for her. So, yeah, I think that they've been striking her name from various indictments. But she won't be deterred. It's also become an issue in the Fourth Circuit Appeals especially Letitia James wants to develop—because, you know, that case is in a unique posture.

I can't believe there's any appeal. I mean, it's a big country and it's existed a long time, but where, they're appealing the dismissal of the case and the government has been, has tried twice in the interim, to get a new grand jury indictment and can't, you know, it, I mean, it's such a unique posture. But when it did, we know that in at least one of those cases, it was again, Halligan who calling herself U.S. Attorney again after having been dismissed. And that's gonna be an issue on, in the Letitia James appeal.

Benjamin Wittes: So, I wanna be, play the devil's advocate for a minute here and just think through—so I totally get why a judge supervising a grand jury in Letitia James or a Jim Comey case, where there is an opinion dismissing it that says you're not the U.S. Attorney. Why a judge would take great offense at the idea that faced with that opinion, she would represent herself for these defendants as the U.S. Attorney.

But this case is captioned United States of America versus Devonte Andrel Jefferson. It is not controlled by the case in either the, Comey case or the Letitia James Case, both of which bind only the parties in that litigation. And so why can't the, I mean, why can't the government take the position, ‘Hey, there's no controlling authority except in Letitia James and in Jim Comey that says she can't represent herself as the U.S. Attorney. And until the Fourth Circuit tells us that Judge McGowan is right, we consider this a non-binding view of a single district judge in a single pair of cases.’

I look, if I were a lawyer for the Justice Department and Todd Blanche or Lindsey Halligan said, would it be wise of us to take that position?

I would say fricking hell no. Because you're gonna piss off a whole lot of district judges. But that's a, that, that's a more of a prudential consideration. Why are they wrong, as a matter of law, about what Lindsey Halligan is and isn't allowed to do?

Roger Parloff: Well, I think they're wrong because the district judge for the Eastern District of Virginia, or acting for the Eastern District of Virginia in this case, Currie said that she was unlawfully appointed and it was not state. She was, she did not get state—

Benjamin Wittes: I'm sorry, I called her Judge McGowan. I, my apologies to, I've been getting judges names wrong. That's her first name, I think. McGowan Currie or Cameron McGowan?

Roger Parloff: Cameron McGowan Currie.

Benjamin Wittes: It's part of her last name. Okay. My—as Ben Witt gives his apologies.

Roger Parloff: It's on appeal, but they did not obtain a stay of the order.

So I mean, yes. If it's overturned, she can start using the title again. And the title might matter in terms of presenting things to a grand jury. You have more, you know, you announce yourself as U.S. Attorney, all of these things. Now I think the open question is what if she just—I think there's a legitimate open question about what if she just identifies herself as special attorney?

Because Judge Currie didn't really reach questions she didn't have to reach. And that left open questions about what she can do as this alternative sort of appointment to 28 U.S.C. 515 as a well.

Benjamin Wittes: And that's why the Sarcone case is interesting in this regard. Yeah. Because in that case, you know. The—Judge Schofield sort of specifically said, again, to go back to Macbeth, ‘you don't get to dress yourself in, you know, call yourself something else and pretend to be the U.S. Attorney.’

Roger Parloff: Yeah.

Benjamin Wittes: And Judge McGowan Currie did not say that. And so, you know, Lindsey Halligan may have some arguments, but what she doesn't have is an argument by why she's still putting the name U.S. Attorney there.

Roger Parloff: Yeah, I think that's right.

Benjamin Wittes: Alright let's turn to the Brian Cole case and which is the pipe bomber case. And we saw a few months ago the advent of the use of Superior Court grand juries as a way around federal grand juries and here we had a federal grand jury, you know, went home for Christmas without indicting the guy, and the government used a Superior Court grand jury to get around this.

How, like, I'm not sorry, this guy's locked up. But I don't love the idea of using D.C. Superior Court as a way around the rules of federal court. What do you make of this, Roger?

Roger Parloff: It was a very strange situation because, you know, this is one of the highest profile cases in the office. Maybe the most. And a sort of, you know, what happened was this, he was arrested December 4th.

You know, a detention hearing was set for December 15th. The rule is you can't be held in detention for more than 14 days without either an indictment or something called a preliminary hearing, where there's a probable cause determination that you really did it. And, you know, almost always they go by indictment 'cause an indictment secret.

A preliminary hearing would be an adversarial public hearing, which no prosecutor ever wants to do, 'Cause you would, you give up all your, it's so much discovery and so on. You need to do that within 14 days or have the consent of the defendant to, to put it off.

And here they put off the detention hearing, which is something different until December 30th. And so, I think and the defendant was saying, yes, you can also hold me until December 30th. But nobody talked about the indictment. And apparently it, it slipped the mind of the prosecutor that the federal grand jury breaks from December 16th to January 5th.

So there was no federal grand jury. And when this detention hearing came up, there wasn't going to be a way to keep him. And so, they went to the Superior Court. And now the Superior Court, the idea that you can use a superior court instead, had come up in this Kevontae Stewart case in front of Judge Boasberg.

The magistrate had originally rejected the Superior Court indictment. In that case, Stewart had originally it was presented to a federal grand jury. There was a no true bill, and then they went to the Superior Court and judge magistrate, Judge Zia Faruqui said, no, I, I don't accept it.

It was appealed to Boasberg and he overturned that and he said, it's a close question. It's a complicated question I'm gonna find for you, but I'm gonna stay my ruling pending appeal. And he said, and his ruling, he sort of said, I don't want more of these in the meantime. You know, I want this to be decided by the D.C. Circuit. And so—

Benjamin Wittes: And to have it happen in like the highest profile terrorism case because of something as anticipatable as this is really bespeaks a problem at the U.S. Attorney's Office.

Roger Parloff: Well, that's right. And I mean, that is what it looks like. Now, in fairness, AUSA on this has been there for six years.

I assume he is a legit guy. And the other thing that might have been operating is there, there were two sets of defense lawyers. A new defense lawyer came in and the prosecutor has been arguing in the papers that he got a little sandbagged that he thought the first set of lawyers were sort of on board with putting this off indefinitely.

And then the other guy came on and said, and saw that there was this flaw and that the guy could get out and he felt they were sandbagging him. I don't know where the facts are, but it's hard. It was this very elementary slip up in a very high profile case.

Benjamin Wittes: This simply should never happen

Roger Parloff: I would take the, in reading the facts of the detention hearing. And this detention hearing is a little different from the ones we've dealt with, like Abrego, because one of the crimes here is just 844I is just presumptively, it's a, it's rebuttable, presumptive, but it's presumptively you're, yeah—

Benjamin Wittes: If you're carrying a pipe bomb and planting a pipe bomb, you should expect to be detained pending trial.

Roger Parloff: And some of the facts were I, like, I hadn't fully appreciated. He expected this to go, you know, the timers were 60 minutes. He wasn't, it wasn't a remote control thing. He wasn't, you know, set this off the next date as a distraction at January 6th. And, one of them was planted under a bench. It wasn't in the bushes, it was under a bench.

Benjamin Wittes: This was an attempt to kill people.

Roger Parloff: It looked—it was very reckless. A very reckless disregard. And yeah. It was also one other fact, which I hadn't appreciated, is, even though he did say, you know, he believed Trump about the, you know, the election was there was fraud in the election.

He did not say that he was trying to, postpone decertification or anything like that. So, I think his chances for pardon slimed. But at least with so far it was a little less clear than I thought.

Benjamin Wittes: It is extremely unlucky for him that he was caught this year rather than two years ago 'cause if he'd been caught and convicted a year ago or a year and a half ago, he would've been covered by the pardon. And probably given the circumstances in which that thing was written, which was wholly inclusive of everybody, he would've skated through.

Roger Parloff: Yeah.

Benjamin Wittes: Alright. We've got three more cases to talk about and then I wanna get to audience questions today.

Roger, Judge Ali has, to my surprise actually, not because I think Mark Zaid’s treatment has been fair, but because the deference afforded the president on matters of security clearances is near plenary and or the authority is nearly plenary. But Judge Ali has blocked President Trump's ability to strip Mark Zaid of his security clearance for purely retaliatory reasons. What is the logic here and is this, in your estimation, likely to have legs?

Roger Parloff: He clearly struggled with this. You know, the, it was a preliminary injunction motion, which means the person seeking it is in a hurry, and thinks it's urgent, and it took him six months. You know, the I think there was a June hearing that I attended and, he finally granted it in December 23rd. And then he stated for 21 days it goes, it would've gone into effect January 13th. But they obviously appealed. They will seek expedited treatment.

Yeah, like you say, there are the Supreme Court cases that, that say you know, if you give the person—if you that, yes the the president has enormous discretion. It's essentially non-viewable. And it's partly because it's all a prediction. It's all, and in fact, you can even use to some extent, First Amendment protected speech against somebody. 'cause you know, like to advocate for world communism is protected by the First Amendment, but you can use that against somebody if he's, requesting a security clearance.

Benjamin Wittes: Right, I believe people should spy for the Islamic Republic of Iran is a constitutionally protected statement and one that might prevent you from getting a security clearance.

Roger Parloff: Yeah, I think the, there are some D.C. Circuit cases that say, nevertheless, you need to at least observe proper procedures.

The substantive final decision may be unreviewable, but you do need to go through, you know, legitimate procedures. And I think what he said was, the executive branch's exclusive power to determine who satisfies the eligibility criteria for security clearance does not mean it can conduct that determination however it wants and free from the constitution's limits.

And so the way this came down is, you know, totally unique. It began in I think, there was an executive order on March 22nd, and it listed a number of people that had crossed him: Letitia James, Alvin Bragg, Liz Cheney, Adam Kinzinger anyone named Biden, you know it and he said I'm depriving them of security clearances because it's in the national interest.

He didn't even say there was a national security problem. He just said national interest. And then subsequently at least three agencies took it away. Mark Zaid, by the way, I, we should say, is this. He's an attorney that specializes in representing whistleblowers and national security work, and this is absolutely essential to his work.

And he represented the guy, the whistleblower who was responsible basically for the first impeachment. So, and then at the CIA Director Tulsi Gabbard joked about taking away his security clearances on the Megyn Kelly show. She said it was fun. You know, I, this is so it's an unusually—and the government didn't even really contest that it was vindictive, you know?

Benjamin Wittes: Right. If there were ever facts that would support a, there are limits to the president's authority. These are it. And it'll be really interesting to see how hard the government pushes on the appeal on this. Well, because, would you want, if you're the Justice Department or the Solicitor General and you don't win at the D.C. Circuit, do you really wanna take up to the Supreme Court these facts?

And I, you know, maybe you do, but it's not an obvious question to me.

Roger Parloff: That's right. They are pushing and this is on, you know, they are pushing for an expedited appeal right now to the D.C. Circuit. They, and this is in contrast to all of the law firm cases, the law firm executive order cases where they're really slow walking them.

And the only, the, you know, the closest precedents that Ali had were the four law firm cases, because the law firm cases in the executive order had five clauses. The second clause took away the security clearances of everybody at these big firms including like paralegals and so on, and just across the board.

I think what he would like to do—what the administration's trying to do is they think they can win this case maybe and then—

Benjamin Wittes: Use, leverage it against the law firms.

Roger Parloff: Exactly.

Yeah. Alright, Eric. Merit Systems Protection Board. The D.C. Circuit allows the firing of Cathy Harris from the Merit Systems Protection Board, which doesn't have a quorum these days. Is that right? What's going on at the MSPB?

Eric Columbus: I believe that is right. I've lost track a little bit. They may have recently regained their quorum. I think there is—

Roger Parloff: I think they might have. Yeah.

Eric Columbus: It's a three person board. It was down to one. A quorum is two.

It adjudicates appeals of civil service. No actions against personnel. And so what happened today was that the D.C. Circuit denied en banc rehearing of a claim, an appeal filed by the one, a member of the MSPB and a member of the NLRB, the National Labor Relations Board, both of whom were fired by President Trump.

Even though they by statute have their positions for a certain number of years and cannot be fired except for good cause, according to the statute. However, as most listeners will know, the Supreme Court has recently heard a case involving a challenge to the constitutionality of such for cause protections, specifically in the context of the Federal Trade Commission.

And basically, everyone who has watched the Supreme Court argument believes that the Supreme Court will strike down the statute that gives a protected term to the Federal Trade Commissioners and will allow Trump to fire them without cause. And that what most people feel will have the same effect for other independent agencies such as the MSPB and the NLRB.

Now it's kind of a weird posture because everyone knows this is what's going to happen, right?

Benjamin Wittes: It's kind of, would be kind of crazy to grant en banc review in on on the basis of current law when we all know current law is about to be overturned. Right.

Eric Columbus: Basically, yeah. And what the D.C. Circuit did it, it was a conservative panel and the, it was two Republican appointees, one Democratic appointee, and the outcome was surprised two to one.

Even under Humphrey's Executor, the case that the Supreme Court is about to overturn, the MSPB and NLRB do or do not enjoy the for cause—sorry, the, even if Humphrey’s Executor were still good law, those positions could still be subject to firing by the president. And whether or not that's right, is kind of immaterial at this point because the Supreme Court's about to strike down Humphrey's Executor anyway.

So I think the D.C. Circuit, the full D.C. Circuit basically saw the writing on the wall and said, eh, you know, we're not gonna bother at this point with taking this en banc when, you know, in months it'll all be moved.

Benjamin Wittes: All right. Last case. The First Circuit Court of Appeals in Boston, Massachusetts has upheld an injunction against, the National Institutes of Health and HHS, limiting indirect costs. I assume that this is in Boston because Harvard University is there, although the plaintiffs are all states, right?

What is this doing in the First Circuit?

Eric Columbus: Well, I think the reason in the First Circuit is because it's very favorable to plaintiffs because, especially in Boston where I think all of the district court judges are appointed by Democrats ,and maybe even all of the First Circuit judges as well.

So it's a very, plaintiff friendly state for folks trying to challenge Trump administration actions. And it is also obviously a lots of academic institutions there.

Benjamin Wittes: Academic institutions that, if there is one evil in the world, it is limitations on indirect rates.

Eric Columbus: Yes. And so for those who are not necessarily familiar with that what happens is when you are at a university and you submit a grant application, you include a, it's usually set by the university, a certain percentage of costs.

A certain percentage of the grant goes to the university and not like to your project because the university basically does a lot of things for you, kind of, you know, pays your electricity—

Benjamin Wittes: —has building has, it has lawyers to tell you, you know, what you can and can't do. It has a PR department, it has computers and it also does all these like sweeps the floors and stuffs. Yeah. These are all indirect costs.

Eric Columbus: And NIH tried to limit the amount of the rate that you could charge, that university could charge the federal government to skim off the top, if you will, to 15%. And this was really a shot across the bow to a lot of universities that were charging a lot more.

This is, I think one way of framing this, is that it's part of the Trump administration's general assault on universities as an alternative power center. And it's a way to save money by taking it away from them. And I, the details are extremely dry. But suffice it to say that the statute fairly clearly says that they cannot do that.

That they cannot change the rates that have been set by Congress in, I believe, 2017 or 2019. But there is an appropriations writer passed every year that says you cannot lower the rates from what they were from that date. So this is something that Congress easily could change if it wanted to, but there just not appear to be the interest within Congress to attack the universities in the way that the administration has, and universities obviously are big employers and therefore members of Congress, even those who are less—even those who are Republicans and not so keen on what many universities are doing don't have much incentive to go after them.

So, this was one thing, notably that the administration, this was at an injunction, the district court entered back in March, I think, but right. The administration, which has a reputation for taking everything up to the Supreme Court right away, did not try to do here. And let the process play out a normal course.

And this week they lost.

Benjamin Wittes: All right, we have a few questions. Let's get through them. They are mostly on the shooting situation. So Joyce asks, does the family of Ms. Good have grounds for a civil suit for damages against Ross? And will the law allow such a case?

So the answer to that question, of course, whether she has the evidence to prove allegations is of course an evidentiary question.

But yes, there are causes of action available to her. The officers in all such cases will argue what's called qualified immunity, which is basically the idea that if they're reasonably within the scope of their responsibilities, you cannot hold them liable. The grounds for overcoming qualified immunity, you know, are strict, but they do happen.

And the video evidence here is sufficiently troubling that I wouldn't be all together surprised to see a—well a rip-roaring financial settlement over the course of some period of time leading up to a civil trial. Eric, Roger, do either of you have thoughts on that?

Roger Parloff: Well, I don't know this area of the law, I'm a little more cautious. I mean, that would be the case if it were a state officer. I think with a federal officer. I don't know what the state of the law is there.

Benjamin Wittes: I mean, it's, you're, you know, it's their deprivation of civil rights under color of law.

You still have state wrongful death actions that are, you know, I mean, you can make—

Roger Parloff: Oh, I see what you mean. A wrongful death rather than I see. Yeah. I better just stay silent.

Benjamin Wittes: Ruth asks, could the refusal of the feds to cooperate with Minnesota investigators regarding the fatal shooting this week be seen as indication of awareness of guilt?

So that's a complicated question because awareness of guilt is usually the province of the perpetrator and the people who are deciding, you know that the FBI is not gonna cooperate, are not the people who, or that, that the FBI will not cooperate with Minnesota authorities on the investigative side, presumably is not you know, Officer Ross.

And so the concept of consciousness of guilt, I don't think is the relevant one. It seems to me the relevant one here would be that there's an awareness in certain parts of federal law enforcement that these, that the facts, if you allow them to be developed by Minnesota state authorities are likely to be extremely bad.

And that's not awareness of my guilt, but it is covering up the situation. And so I, I would think of the relevant concept as a of a coverup rather than consciousness of guilt. But again Eric, Roger, if either of you have thoughts on that.

John Hawkinson asks, what happens if Minnesota state government subpoenas information from DHS? If they refuse to comply, are adverse inferences a possibility?

I do not know the answer to that question. I think the general answer would. Probably be that if the federal government is within the scope of its authorities, its laws are supreme over the state of Minnesota's. But that does not answer the question of whether the federal government is within the scope of its authority.

And so I, I am sure this is not the first time that has that issue has come up. And but I do not know the, that is a question with a technical answer and I do not know it.

Eric Columbus: I think it's also, it's somewhat similar to Ruth's question in that is, is it your, the, are the actions of the federal government somehow imputed to the defendant who is an individual and is not the federal government?

And I think that in general they would not be. Which is, and that's not the defendant's fault, that the, that DHS is not cooperating. That said, you know, we don't know what's in the head of jurors. And if it somehow actually got to a jury the jury might, a juror might in his or her own mind kind of draw that type of inference or think that it's quite possible that the federal government is hiding something because they think it would not help this defendant who is their employee.

Benjamin Wittes: That is an excellent point. Finally, Andrew Steele asks: a particularly absurd-seeming invocation of national security as a justification came in the December 22nd order, pausing a number of offshore wind projects. The judge, the court in one case, EDVA, Judge Jamar Walker, denied a TRO. And January 16th is the date for a preliminary injunction hearing. What kind of deference should be afforded to the administration's national security justification here?

So I will just say I have spent a lot of time with attenuated claims of national security justifying things sometimes where I found them plausible and sometimes where I find them ridiculous.

I am not aware of this particular circumstance, but I do think that there is a very profound set of questions that underlie Andrew's question, which is you know, we have in this administration a particularly absurd set of national security justifications, some of which don't even bother to announce themselves.

And Roger's example in the Mark Zaid case is, you know, an example of that. The president is inherently, when you're—remove somebody's security clearance, there is a national security justification for that. And the reason is 'cause I don't like Mark Zaid, right. And 'cause he was mean. And, you see this also in the Alien Enemies Act case, as well as in some of the deportation cases, where they really don't even try to come up with a real national security justification for things.

And this is forcing courts into a position in which they're very uncomfortable, which is the courts have traditionally said, ‘Hey, the president is the constitutionally elected officer to think about these things. We defer to his judgment, even if it seems a little peculiar to us.’ And what is happening now is that deference is starting to look really dumb.

Because the, you have an executive branch that is operating not in good faith and it's sort of painfully obvious to everybody that it's operating not in good faith. And so, one way to answer Andrew's question without knowing anything about the offshore wind farm justification issue is to say, go back to the Mark Zaid case and go back to the conversation that Roger and I just had about, do you wanna go up to the D.C. Circuit and to the Supreme Court with this set of facts and say, we get to revoke this guy's security clearance.

Because, you know, even though Tulsi Gabbard said it was fun and laughed about it and joked about it, and even though the document, that doesn't even bother to state a justification, right? It just says, 'cause I don't like him, 'cause the national interest.

And you know, eventually you reach a point where, you know, I say offshore wind farms because the sky is purple or the sky is green and the court says, wait a minute, the sky is not green, right. And I don't know where that point comes, but I don't think we are far from it, at least not in the lower courts, in the Supreme Court. The sky may be green if the president says it's green.

Roger, you were trying to get in.

Roger Parloff: Yeah. I just wanted to sort of ask you guys something, 'cause along the same lines, 'cause what the Supreme Court just did in the National Guard case, you know, where they decided it on a grounds that originally hadn't been brought by the parties about that—this language this notion that you needed to use regular forces.

You, you needed to exhaust your regular forces before you could send in the National Guard. I mean, it all seemed to me to be an evasion because the only other way to prevent these deployments was to say that the grounds the president was giving was stupid, right. So inadequate. And they didn't wanna say that, you know, we disagree with—the president is lying.

He's inventing things that aren't real and they don't wanna say that. And so they ended up saying, you know what, there's a phrase here that nobody's thought of and you haven't satisfied it.

Benjamin Wittes: So, I, to be fair to them, I think they're being consistent here, that they're very uncomfortable second guessing the president on factual judgements about the national security.

But, you know, look at Loper Bright, where they say, oh, that whole Chevron thing where we defer to executive agencies, nah, we don't actually on law, we don't even defer to them about the law of their own authorizing statutes anymore because we're the judiciary. We say what the law is. So if there's some little legal provision that says regular forces and you haven't dotted that “i”, that gets us around this whole are you lying thing.

But eventually they're gonna have to confront that are you lying thing, is the president, pardon me, full of shit. And you know, that's something that the judiciary has a very, very hard time saying. And frankly, under traditional notions of the relationship between the branches, it should have trouble saying that.

But now you have a presidency of infinite mendaciousness—of mendacity, right? And you have—and so it's forcing people to rethink or to think about that question that Andrew is posing in the wind farm thing. And you're raising in the deployment of forces thing and the Mark Zaid case presents in the, which is, you know, what if the president is just full of shit?

And that is not a thing for which we have really good doctrine or a developed theory. And I think we need one.

Folks, we're gonna leave it there. Thanks to Eric Columbus. Thanks to Roger Parloff. Thanks to Mike Feinberg. And thanks to our wonderful audio engineer, the great Anna Hickey.

We're gonna be back. The Lawfare Podcast is produced by the Lawfare Institute. Our editors this weekend are the fine folks at Goat Rodeo and the Estimable, Jen Patja. We're gonna be back next week, people. I don't know what we're gonna be talking about, but I have a feeling that trials will keep trialing and the tribulations will keep tribulating, and we're gonna have a lot to talk about.

We will see you then.

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