Lawfare Daily: The Trials of the Trump Administration, July 2

Benjamin Wittes: And we're live. It is Thursday, July 2nd, 2026. It is 4:00 PM in Washington, D.C. It is scorchingly hot out there, people. And happy Fourth of July. It's the eve of the Fourth of July as celebrated, which is to say it's the eve of the eve of the Fourth of July. And folks, 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 not one, not two, but three Lawfare senior editors in alphabetical order, Eric Columbus, Kate Klonick, and Roger Parloff. Folks, I have been away the last few weeks. My colleagues have more than ably substituted for me. It has been a humbling experience of realizing that I'm completely unnecessary, but I'm back and in the seat of the facilitator once again.

We've had a lot of Supreme Court action this week, and we're gonna start there. Roger, it turns out that the constitutional language that any person born or naturalized in the United States and subject to the jurisdiction thereof really does cover any person born or naturalized in the United States. Birthright citizenship means what it says say six justices of the Supreme Court according to the Constitution and five justices of the Supreme Court according to statute. What do we make of the birthright citizenship decision?

Roger Parloff: Well, let me- it's, it's 5-4 on the constitutional question, which is, which is closer than almost everyone thought. And then there was a sixth who would have struck down the executive order based on the statute violating the statute. I hope I have that right.

This is 194 pages of opinions, and I have to admit I haven't read all of them yet, and it's sometimes hard to keep everyone's reasoning separate. But the main opinion was by Chief Justice Roberts with Sotomayor, Kagan, Barrett, and Jackson. That's actually the shortest opinion. It's 26 pages pages. And it begins with the language of the 14th Amendment.

He- "All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States." Subject to the juri- jurisdiction thereof is the crucial phrase. He ends up with a very Robertsian quote, which is unfortunate in some respects. It says, "Citizenship then and now was the right to have rights, to freely participate in our political community. The framers of the 14th Amendment extended that promise to [quote] 'every freeborn person in the land,' [unquote] We keep that promise today."  The only reason I think that's unfortunate is that to call citizenship the right to have rights will be taken quite literally by the Department of Homeland Security and by Stephen Miller, who contend that non-citizens have no rights even though-

Benjamin Wittes: Yeah, non-citizens have lots of rights

Roger Parloff: They have lots of rights, even according to recent, very recent Supreme Court rulings. So I'm a little worried about that one.

The, the, the executive order was, you know, it was one of the ones that was issued on Inauguration Day. And it said that children born of persons unlawfully or temporarily present in the U.S. are not subject to the jurisdiction of the United States. So it tries to exclude those. It's another way to say it, the way the dissenters say it, is it, it, it, he's trying to reach what they call birth tourists or illegal aliens children of birth tourists and children of illegal aliens.

So, Roberts goes briskly through history inclu- beginning with around 1608 Calvin’s case, so 1608. But the British rule, which the British assumption, which was called jus soli, right of the soil, and that basically where you were born determined your citizensh- or subjectship. Of course, it was, it was kings at that point. W- and then he says, when we got over here, there was a n- the, the English faced a new problem, which was Indians, which they hadn't faced in England, or a new issue, I should say. And so those were treated separately. Those didn't, people at least if they were living in their traditional communities, Indians not taxed, they, they were not citizens.

And then as we approached the Civil War there began to be this view in the South that, that Blacks were not, even if they were freed, even freed slaves were not citizens. That led to Dred Scott decision in 1857. So, then the Civil War came and immediately we began to re- retract Dred Scott. The attorney general for Lincoln did that in 1862 with an opinion. Then there was the Civil Rights Act of 1866, and this is sort of crucial, and the defendant that the dissenters hang a lot on this. The Civil Rights Act says, "All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby citizens of the United States." So that is the first reversal of attempt to reverse Dred Scott, at the very least. And then the 14th Amendment uses this slightly different language that we just, that I just mentioned, the, "and subject to the jurisdiction thereof."

It's very hard to get to the dissenters' Results through the, by examining the words, "and subject to the jurisdiction thereof." If you look at that Civil Rights Act and, and try to, to focus on that language, “not subject to any foreign power,” at least in Alito's view that begins to get you somewhere you, w- where you can dissent.

A- anyway, then there's the Wong, Wong Kim Ark decision, 1898. And, and then I, I, I think that, that is, is, is, is the gist of Roberts' ruling. The, the main dis- the so-called principal dissent, and certainly the longest dissent, is Thomas. And-

Benjamin Wittes: And by longest, it's, like, half of the total pages of the opinion, right?

Roger Parloff: I think so. I think it's around 94 pages, something like that.

Benjamin Wittes: Yeah, I mean, Thomas clear- like, Thomas clearly cared about this a lot.

Roger Parloff: Yeah, and he makes it, he says, really, the only point of the 14th Amendment was to overturn Dred Scott. And that's his main thing. The, he wa- wants to insert the word “domicile” or the concept of domicile into the definition, so you have to be domiciled here, and Gorsuch joins his decision. The-

Benjamin Wittes: Although with kind of caveats that sort of undermine the opinion. It's, it's actually a weird join, I think.

Roger Parloff: He then writes his own opinion and does have some caveats. In fact, I think it's fair to say that all of the dissenters have caveats. The, it's important to remember the executive order is challenged immediately before it's put into action, and so it's a facial challenge. It's challenged on its face. And so, it can only be struck down if there's no set of circumstances under which it would be constitutional. And all of these people, all of the dissenters, I think, feel that not that the executive order would be constitutional, but, in all circumstances, but that there are certain circumstances where it would-

Benjamin Wittes: Circumstances in which it might.

Roger Parloff: Yeah, and, and, I mean, it gets to the unworkability of all the, of the other definitions. And that's why there are all these ad hoc sort of, well, I don't know about this, I don't know about that. I mean, if you begin to ima- I mean, because like I said they, Thomas' ruling hinges on domicile, Alito's ruling hinges on allegiance. And if the newborn's parents have a dual allegiance, he says that's not sufficient. Of course you I, I don't know what that means about people like with dual citizenship, like, like, like my wife for instance. Is, is, would that mean that her daughter is not a citizen?  So all of these get into tr- trouble.

Kavanaugh, let's see. No, let's see Gorsuch, he says, "Still I wonder," this is his, he, he says, "Is a child born here to parents who have long chosen to make this nation their permanent home not a citizen under the 14th Amendment solely because his parents' presence violates statutory law? If those parents are not domiciled here, then where are they domiciled?" So he's saying that apparently the parents, the, the child of illegal aliens, I'm gonna use their terms it, it sort of depends on how long they've been here. Is it two years? Is it 20 years? It's somewhere in between. What does the hospital do in this situation? And then for domicile, you're, I mean, obviously the child, domicile has an intent element. The child has no intent, the, the infant. The parents' intent, I mean, I, I, I don't know. It, it, it's it's, it's an interesting ruling.

It is fun to see Roberts taking sort of snide potshots at Alito and, and, and Thomas and li- and vice versa. But it's, it's an interesting ruling and, and like you said- And then Kavanaugh, of course, takes this, he's the only one really who takes this position. He says, "Well, the, there was a, a, a, a statute was enacted in 1940 and then another in 1952 that adopt the language of the 14th Amendment, the exact language." And he thinks it was clear when those statutes were enacted what everyone-- that there was some consensus that the Wong King Ark, Wong Kim Ark

Benjamin Wittes: Kim Ark.

Roger Parloff: Ruling was the cream of the law.

Benjamin Wittes: I have to say, I have some sympathy with Brett Kavanaugh on this point. Not in his dismissal of the majority opinion, but in his suggestion that, you know, we have an on-point statute. There's no reason to reach the constitutional question. If we can, if the six of us can all agree that the statute precludes the executive order, why reach the constitutional question at all? And I, I actually think the eagerness of the chief and the majority to reach the constitutional question is never quite explained. Kate, you have a, you have an issue you wanna raise.

Kate Klonick: Yeah. No, it's not an issue. I just have a genuine question because I have been following this admittedly kind of at the normal consumerist level of, of kind of like following this case, maybe at a slightly more sophisticated 'cause I am an attorney and law professor.

But I'm, one of the things that kind of strikes me about this in the statute versus constitutionality question is the statute question strikes me in, like, in everything that we're talking about as a kind of like a, a vehicle in the park type of problem. Is that like an over- In, in the sense that you've got like you're construing this thing and the second you start to apply whatever it is that you've kind of construed in the statute, it, like, there are just so many exceptions, and the ramifications of all of these various exceptions make it so it unadministerable.

Like, it just seems, like that always, like that kind of... Is it wrong, Roger, that I'm thinking that like that was one of the reasons they, that the, the chief and others pushed up to the constitutional question? I mean, that's certainly not a, like trying to avoid the un-administrability of a statute or something like that might, you know, is not a, like a, an actual reason to like reach the higher constitutional question. But I, I'm curious if you think that that might have been part of their justification.

Roger Parloff: Well, I, I think the statute, I mean, the statute is identical in language to the Constitution, and I think they just assumed that they are coextensive and that it was never more, it was, it's not like in 1940 there was some consensus and now there isn't. I, I don't think there's something different about you know, if you want to draw distinctions between, if you wanna try to edge your way around Wong Kim Ark, it, it's the same hurdles, and I, I think they just felt that this was kicking the can down the road for no particular purpose. You'd start over from scratch, and you would start over from scratch tomorrow. You know, if you said if it was 6-3 or 9-0 okay, it, this violates the statute but we're not reaching the Constitution. So Congress passes something tomorrow like exactly like the executive order, and then you go right back to court.

A- and, you know, I, I just don't- I don't see the point, and, and only Kavanaugh did see the point. It's not like anyone else said, "Oh yeah, I see what you mean." The Constitution, I mean, the statute's crystal clear in, in comparison with the, the Constitution. Nobody said that. It was 1-8 on that. And, and, and people did specifically say, espe- certainly Thomas, joined by G- Gorsuch disagreed with that view. So-

Benjamin Wittes: And it's, it's a little bit hard to argue that the verbatim same language means something different-

Roger Parloff: Yeah,

Benjamin Wittes: In a statute-

Roger Parloff: I think so.

Benjamin Wittes: Than it means in the Constitution

Roger Parloff: I think so.

Benjamin Wittes: All right. Let's go from a semi-surprising opinion to the least surprising opinion in the history of the modern Supreme Court. Which is-

Roger Parloff: Oh, can I, can I just one, mention one other thing, 'cause I think it's quite striking-

Benjamin Wittes: Sure

Roger Parloff: In light of what you're about to say. Just one thing about Alito is that the first line of his ruling is, "This is one of the most important decisions in the history of the court." So, not just this term.

Benjamin Wittes: Yeah, which is clearly wrong by the way.  

Roger Parloff: And in my judgment, the court has made a serious mistake. Yeah, I mean, it just shows how important to the conservatives it is to, to this concept of, of bor- birth tourism and illegal aliens becoming citizens. And, and, and, you know, compare that to the decisions you're about to mention, and, and Calais, and other decisions this term, and, and Rucho, and, and, and then, I mean, you're, he's comparing it to Brown v. Board in effect. So-

Benjamin Wittes: Right, it's, no, he's, he takes it very, very seriously. And of course to be fair to the conservatives, it's a matter that divides the conservatives. Roberts and Kavanaugh would have decided it the other way on, for very different reasons. But among the hardcore conservatives, it is, or the hardest core conservatives, it's really you know, pretty existential. It's a very important point.

Roger Parloff: Yeah.

Eric Columbus: Didn't, didn't, sorry, didn't Alito have a line in there about, you know, the possibility that someone would be born here and then be raised abroad and come back as a terrorist, et cetera, et cetera?

Roger Parloff: I haven't gotten to that yet if he does, but maybe he does

Benjamin Wittes: All right. Let's talk about Slaughter, and Eric, I wanna start with the most important question about this, which is should we call this slaughtering Humphrey's Executor, or should we call it Humphrey's Executor as executor?

Eric Columbus: I think it's a false choice, Ben

Benjamin Wittes: We should go with both?

Eric Columbus: Yeah

Benjamin Wittes: ‘Cause I think there, the, the opportunity for, like, you know, really not witty puns here, it's, it's a target-rich environment, and we need to-

Kate Klonick: I think you meant executioner.

Benjamin Wittes: Well, we could also go with executioner. We could go with executor-

Kate Klonick: Executioner ...

Benjamin Wittes: To stick with Humphrey's Executor, or we could go with executioner-

Kate Klonick: The Slaughter of... Yes Yeah.

Benjamin Wittes: We could also make a Slaughterhouse Cases pun. I mean, there's really a lotta opportunity here. And for those of you-

Kate Klonick: You have to take your humor on this type of shit where you can get it.

Benjamin Wittes: Right. For those of you who've never done basic con-law this is like, really juvenile stuff . But you know, you gotta run with it when you have both Humphrey's Executor and Slaughterhouse in the same sentence. You've just got a lotta opportunity for, for wit and mischief.

Eric I think this is the least surprising opinion in the modern history of the Supreme Court and one that you really can't blame on Trump. That is, this is a philosophical and ideological commitment of the conservative legal movement writ large, and when you have a conservative majority on the Supreme Court, eventually you're gonna get to this. What is this case about, and am I wrong?

Eric Columbus: I, I think that's generally right, and for those who are, are not as steeped in this as, as, as Ben, the question in Slaughter basically is whether the president can fire independent agency heads without cause. An independent agency is a term that's, that's often used to describe places like the Federal Trade Commission, which was at issue in this case, the FCC, Federal Communications Commission, National Labor Relations Board, places that traditionally have terms of office and protections against firing without cause.

And so there was a unanimous decision in 1935 called Humphrey's Executor, which held that the president cannot in fact fire such people without cause in, in, in agencies that are have kind of quasi-legislative and quasi-judicial roles and that are not predominantly exercising executive power. It's kind of a rough paraphrase of what the, the, the court said in that, in that case.

And in, in 2020, the court ruled in a, a case called Seila Law that the structure of the consu- Consumer Financial Protection Board was unconstitutional 'cause it created a single member head insulated from presidential control. But multi-member structures such as the FTC lived on. But, you know, the writing was quite possibly on the wall by that point.

And so, as you say, Ben, this has been a kind of a longstanding goal and part of the, the unitary executive theory that is much beloved in conservative academia and jurisprudence these days. So, Rebecca Slaughter-

Benjamin Wittes: And really dates from Antonin Scalia's dissent in Morrison in '87, I believe, right?

Eric Columbus: I think it was '87, yeah. Rebecca Slaughter, so the, the plaintiff here, was an FTC commissioner who Trump fired even though her term did not expire until 2028. And in September, the, the court granted a stay pending appeal of a district court order that had enjoined her firing. And they moved the case from the shadow docket to the regular docket and set briefing and argument, which was kind of an unusual move. And that stay was 6-3, and it was pretty clear at that point what the, the ultimate result would be these nine months later.

And it, it was a six to three decision with the majority opinion a- as in the birthright citizenship case, the majority here was written by the chief justice who basically began by noting that the Constitution puts all executive power in one person and contemplated, of course, that people would be helping out the president, but that to remain accountable to the president, he wrote, "those officers must be removable by the president."

He then kind of went through a broad sweep of American history, starting with what has been called the Decision of 1789, in which the first Congress debated about removal powers in various statutes and concluded that the president y- should have the authority at, at will to remove his subordinates. And then he talks about a, the Myers case, which was in 1926, which, in which Chief Justice Taft basically iterated or, or reiterated, Thomas would say, that, Roberts would say, the basic principle that the president has the power to remove his principal officers below him people who exercise authority on their own without any supervision.

But then in 1935, in, in the telling of Roberts, the court kind of, went a little bit astray by holding that the FTC's duties were an exception to this rule because they were, quote, "neither political nor executive, but presu- predominantly quasi-judicial and quasi-legislative." And you know, Roberts said, "Well, this isn't, isn't really true in the first instance about the FTC, and even so, it, it is really a deviation from the way our jurisprudence has been generally followed."

And then he considers whether there's any reason, any stare decisis reason, to adhere to Humphrey's Executor, and he concluded that there was not. The, the relevant issues, he said, are the quality of the original decision, how consistent it is with other cases, its workability and any reliance interest. He cl- clearly, they all pointed in the same direction. And he said-

Benjamin Wittes: I would just say that that's clearly wrong on the part of Slaughter and the reliance interest, where it seems like she's got a pretty strong reliance interest on Humphrey's Executor.

Eric Columbus: Well, yeah. Well, obviously the person whose ox is specifically gored by the, by the overturning is always going to be able to say that, and yet the court overturns cases over- overturns them

Benjamin Wittes: Right. No, no, I'm not saying he's wrong to overturn it. I'm just saying, like, the reliance interest issue is, I mean, if, if you go from “can't be fired” to “can be fired” and “has been fired,” your reliance interest has clearly been I don't know, eviscerated or whatever.

Eric Columbus: Yeah. So yeah. And so then he, then in, in a bit of a coda, he talks about how the FTC has, does basically a lot of really substantive executive stuff, like promulgating rules, investigating businesses. And then he gives kind of a caveat. He says, "Look, we're not deciding other stuff. We're not deciding the fate of non-Article Three courts," which are courts created by Congress that typically have removal protections for the judges there. And we're... And yeah. So then- What about civil service? Well,

Benjamin Wittes: What about civil service?

Eric Columbus: Well-

Benjamin Wittes: I mean, civil service is reliance. These are not, these are not principal officers. They're not so they're not facially covered by this ruling. On the other hand, based on this ruling, what does, what protection should Maureen Comey rely on against getting a single-page notice, "You're terminated because Article Two"?

Eric Columbus: Yeah. So this gets to, the dissent, Sotomayor's dissent where she basically says, "Look, you're not, you're not resolving this. You know, these, well, a lot of the things you say could be said about the civil service and also about inferior officers." Inferior officers are people who wield executive power even though they are in fact supervised by a principal officer who's accountable to the president. And there is a case in, in 1886 that said that Congress can protect inferior officers against at-will removal, and by extension also civil service folks.

But she says, "Look, Perkins and Humphrey's Executor were the only two cases, the only two exceptions to the president's unrestricted removal power, and today you've gotten rid of one of them, and who's to say that tomorrow you won't get rid of the other?" And at oral argument, the solicitor general basically, you know, was asked that question, said, "Look, you don't have to reach it. That's not what this case is about." He didn't say, "Oh, no, no, don't worry. The civil service, of course it's protected." So-

Benjamin Wittes: Right, he practically said we're coming for that next, but don't reach it now.

Eric Columbus: I mean, he basically, he basically did say that, yeah. And elsewhere in, in the dissent by Sotomayor, she basically pointed out the, kind of, the inconsistency of the majority's opinion that y- by relying so much on the, quote, "Decision of 1789," and like if this, if this, this, if, as Roberts says, this was already resolved by the text and structure of the Constitution, then who cares what the first Congress did? Why was this issue debated so much in the first Congress a- as it was? It, it suggests to her that this was still a live issue. And then she kind of goes on through the, you know, through marching through the history and points out that, or rather suggests, and I don't know who's right, that this was not understood in the way that Roberts suggested over time. And then I think kind of-

Benjamin Wittes: And wasn't understood that way up through the Civil War when, when you know, Andrew Johnson is impeached for violating the Tenure in Office Act, which involved removing a principal officer, right? I mean, the, this is a, a vision that has calcified over time, and I'm not even saying it's wrong, but it's not like it was clear in 1787.

Eric Columbus: Yes. Well, and I think that the Tenure of Office Act is something that I think is discussed in Myers, and then Roberts discusses it here and says, look, that this was not something that, that, that really survived or was enjoyed and, and that, that President Grant, who was obviously no fan of Andrew Johnson did not like the act, and I think they repealed it very quickly after the failed impeachment of Andrew Johnson. So that points in that direction for, for Roberts.

But Sotomayor says, "Look, this, this has been the understanding since since 1914 when the FTC was created, and no one has, and 20 years later, it was ruled the structure was ruled constitutional unanimously by the Supreme Court, and since then we've had a proliferation of these types of agencies, and it's been going, and, and so what you're doing over- is basically overturning a 110-year-old understanding of the Constitution." And, you know, obviously that happens from time to time, but Sotomayor is like, "Let, let's be clear about what's happening. This is not a continuation of a longstanding understand- view of the Constitution, but rather an overturning of something that has been the way all o- overturning of a, a very, very settled understanding."

And, and, and Roberts at one point says, "Look, you know, if this, if the dissent had their way, like, Congress could come for and commandeer the Environmental Protection Agency, the Department of Justice, and make these all, you know, these multi-member things with, with-“

Benjamin Wittes: I mean, there's a  very good structural argument for what Roberts is arguing. Just the idea that it is, you know, historically predetermined from the founding is something perilously close to trivial. I, I, I think the better argument for it is textual and structural. All right-

Eric Columbus: And then Sotomayor, sorry, here's one more thing. Sotomayor says in response, it says, to Roberts she says, "Look, come on. Like, you can always, you, that's always been possible. That's been possible since Humphrey's Executor, and yet Congress hasn't done that." Like, the, the fact that bad policy choices can be made as a consequence of a constitutional rule is not necessarily a reason to get rid of that rule, especially when it's been, it's been, that, that particular horrible has been possible for a century and nothing is, no one's taking advantage of it.

Benjamin Wittes: All right. Roberts carves out one big exception to this, which he does kind of in passing in the opinion, which is the Fed. But he, and he sort of says because the Fed's something like the First Bank and Second Bank of the United States, which kind of was different, doesn't really explain the logic of that at all. But it has big importance in a different case, which is the case of the Fed governor Dr. Cook. So tell us about that case.

Eric Columbus: Lisa Cook is one of seven governors the board, seven members on the Board of Governors of the Federal Reserve. Trump purported to fire her on back in August, ostensibly because she allegedly claimed two different properties as her primary residence on mortgage applications, and primary residence usually secure lower mortgage rates. There's not been a tremendous-

Benjamin Wittes: In a report by one Bill Pulte, who is now acting director of national intelligence. Is that correct?

Eric Columbus: Yes. And, and, and-

Benjamin Wittes: Just checking.

Eric Columbus: And there has not been a tremendous amount of factual development of the allegations. I think it's fair to say that most people think that they are nonsense in the sense that she did not deliberately try to mislead in order to, anyone, in order to get a better mortgage rate. But that has not really been the focus of the litigation at this point.

So the Federal Reserve Act is, is kind of similar to the FTC Act. It, it says each governor has a 14-year term, quote, "unless sooner removed for cause by the president." And Trump claimed when he fired her that he was firing her for cause, so he was not relying on, unlike in Slaughter, he was not relying on his constitutional po- on his alleged constitutional power.

Benjamin Wittes: Right. Following the statute. The statute says-

Eric Columbus: Yes.

Benjamin Wittes: You can only remove her for cause. I've got cause, which is that she's a mortgage fraud cheat, so says Bill Pulte, and so I'm totally complying with the statute, though presumably I have inherent constitutional authority to defy that statute as I do with the FTC.

Eric Columbus: Yes, although he did not, he is, did not make that argument-

Benjamin Wittes: Right-

Eric Columbus: In his last argument.

Benjamin Wittes: But, but it's latent in the, right? He's not saying the same logic that applies to the FTC doesn't apply to the Fed.

Eric Columbus: Correct.

Benjamin Wittes: He's just saying, "I don't need it 'cause I've got cause here."

Eric Columbus: Correct. But he didn't, but there is no, in the alternative argument in, in the briefing.

Benjamin Wittes: Correct. 'Cause he knows that Roberts is not principled enough to honor that, right? And that Roberts would be, would say, "Wait a minute, I don't mean you can do that with the Fed."

Eric Columbus: I think that's right. I think there was some, there were some hints in, in, in prior cases that Roberts would come out.

Benjamin Wittes: Yeah. That could affect people's 401s, whereas the FTC is just a little regulatory agency.

Eric Columbus: So, so Cook sued, and she said basically that, look, this was not for, this was not for cause, his alleged cause is not cause, and it was pretextual also, and that she was entitled under the statute and the due process clause, she was entitled to notice and an opportunity to be heard before getting fired, which she did not receive. And, you know, the government basically argued the opposite of those things.

She won in the district court, and she won in the court of appeals, and then in the, in the Supreme Court, she lost 5-4. Again, Roberts writing the opinion. He was joined by the three liberals and whereas in the, this t- whereas in the birthright citizen- citizenship, sorry. He joined by the three liberals plus Kavanaugh. Barrett, who was with him in the birthright citizenship case, was dissented here.

So there, there were disputes over the argument of, over what cause means. Cook says, "Look, this happened before I was, this, this alleged misdeed occurred before I was in office. It, it, it can't be relevant." And the government basically says the cause is, is really any type of malfeasance that is different from a policy dispute.

And the government and, and the, the majority, Roberts, comes up with something that's in between, which is, it doesn't, isn't very clear. It says th-th-that the cause has to imply an unfitness for the job, and he doesn't really specify what that means. Because re- he says, "Look, we don't need to decide it now. We can decide it on narrow grounds because he did not give her the procedural protections that she was entitled to by statute." And he kind of reads, it's a little bit weird, he kind of reads “for cause” to mean that to build in with it a requirement for notice and opportunity which is not something the lower courts had, had concluded. I think that the, the D.C. Circuit-

Benjamin Wittes: Or that the statute says.

Eric Columbus: Correct. Well, he's implying it in, he's saying that it's implied in the s- in the statute based upon how earlier statutes were construed. And the, the, the, the district court had said that the due process clause guarantees her notice and opportunity to be heard. And he says, "Look, you know, you don't need a whole big thing. You can do it on papers. You can do it in writing. But y- but you basically do need something."

And, and then so that kind of decides is enough to decide the case, but then he goes beyond that and he says a, a, a, a couple of things. One, he responds to Justice Thomas' dissent. Justice Thomas says, "Look, this is, this whole thing is silly because the, even if the government doesn't win on the statute, they should be able to win on, on the Constitution because this is just like Slaughter and the, the Fed works for the president, and the president should be able to remove anyone."

And then so then Roberts basically goes out of his way, even though no one briefed it, he goes out of his way to say that this is, this, the, is in fact constitutional because the Fed is different. And he talks about the First Bank of the United States, the Second Bank of the United States its regulatory powers. There's a big dispute with Thomas in the dissent about the scope of those powers and how different the Fed is. I, I do not have any expertise in this realm. It seems to me-

Benjamin Wittes: I just want to say count me with Clarence Thomas on this. The idea that you can, that Congress can set up a bank that operates on behalf of the United States, that has regulatory power, and that this has less executive authority than the freaking FTC is absurd. And-

Eric Columbus: Well, he's not saying that they have less executive authority. He's just saying that they're different. They're different and they've been treated differently since-

Benjamin Wittes: Yeah, different, but-

Eric Columbus: The first and second bank of the United States.

Benjamin Wittes: But the relevant test is, are they exercising the executive power within the meaning of Article Two? And there's just no doubt, there's no, like, I, I, I mean, look, I'm with Roberts because Clarence Thomas, you know, if, if, if you take this stuff too seriously, you go to crazy places very, very quickly. But empirically, Thomas is right here.

Eric Columbus: I, I, I agree that he's right as a matter of logic. I, I just wanna say that it's, it's not specifically a question of, of, of what the test is, I mean, Roberts does not concede, Roberts does not apply the same test in Cook as in, in Slaughter, and he's very open about it. He's saying, "This is different"-

Benjamin Wittes: That's the point.

Eric Columbus: It's always been different.

Benjamin Wittes: He's not applying the same test.

Eric Columbus: Yes, but he's, he's very open about that. And Thomas is like, "Well, this doesn't make any sense." And I think, I do think Thomas has the better of that argument, which, you know, in some sense kind of undermines the whole Slaughter decision.

And another very interesting thing, So, so again, so Roberts is going out of his way to decide a constitutional issue, which is, I, I think, similar to what Kavanaugh accused Roberts of doing in the birthright citizenship case.

Benjamin Wittes: Yep.

Eric Columbus: And, and, and somewhat interestingly here, Kavanaugh agrees with Roberts doing that, and Roberts a- and Kavanaugh is-

Benjamin Wittes: And he's mighty quiet about it, isn't he?

Eric Columbus: Well, no, no. He, he has a, he writes, he concurs saying, "Look, this is, we, we need, this is the right thing to do. I, I'm writing separately to confirm this is the right thing to do, and it's because there's too much, the Fed is just too..." He, Roberts says this, and then Kavanaugh-

Benjamin Wittes: And it matters just that much what my 401k is like.

Eric Columbus: Has a concurrence that ends as, "Look, the Fed is, the Fed is just so important." And, and, and Roberts says, and R- Roberts addresses the argument that they should've just left it for another day. But Roberts says, "We see no reason to leave the public in limbo or to sow doubt as to the status of one of our nation's and the world's most important financial institutions."

And so then there's another thing that both Rob- Roberts and Kavanaugh do, is, is they say, "Look, this is gonna be decided on the facts. The record is very sparse, but we are going to get the facts and, and, and then decide it," which I think is very interesting because it, it resolves another issue that they did not have to resolve, which is basically what is the scope of judicial review? I mean, is it just, does “notice and opportunity to be heard” just mean that she needs a chance to make her case and the president has unreviewable authority to do whatever he wants? And Roberts very emphatically answers that with a no, we are gonna look at the facts of this case.

So, I think it's kind of telegraphing to everyone that at the end of the day, Trump is not going to be allowed to fire Lisa Cook unless he finds something on her that he has yet to find so far.

Benjamin Wittes: We speak in the language of principle and Article Two purism, but we act in the language of pragmatism. Pardon me if I pause to vomit for a minute.

Kate Klonick, let's talk about Chatrie. Which is a case that kind of defies ideological characterization. What is it about, and what did the court do?

Kate Klonick: Yeah. Just really quickly on the Cook thing, I wanna say that like I think that I watched a, a kind of compelling visual that the New York Times put together that was like in their new short reel type of like medium that they do, where they had literally printed out all of the decisions. I don't know if you guys saw this, but they'd printed out all the decisions by the Supreme Court, and they like placed them in piles of whether they were a win for the government or they were a win for for the, for the petitioner, I mean sometimes the petitioner is the government, but you know what I mean. And so like essentially like they're kind of like they're kind of going back and forth, and there were 63% in which the government won on these huge cases. And one of the cases they did not win was on Chatrie, and one of the other cases they did not win on was Cook.

But I just wanna say before I get into Chatrie for a second, that I do think that there is like a part of like they, like the Supreme Court saved Trump from himself on this. Like, I actually think maybe Cook is an effing win for like for, for Trump because that keeps everyone's 401Ks in like,401ks like in good shape, as Ben kind of points out. And so like maybe the midterms will be okay because like the Supreme Court has taken, will take the heat for what like Trump cannot do, which is like back down from doing the absolutely irrational thing of firing like one of the members of the, the Board of Governors for the Federal Reserve. And so like, yes, in name it was a loss for Trump, but I actually think this was like a win for the party, so to speak, for like, for the GOP. And I think that that's like a, I, I think that that's actually kind of, That is me with my super crit hat on, kind of, critical legal studies hat on. But I, I, I just, I think that that's kind of an important part here.

Anyways, that kind of brings us into Chatrie, which is like we're going hearkening back to a layer of like, Fourth Amendment doctrine that, you know, was famously championed by Scalia and kind of adheres to a level of kind of government control that, you know, I don't know, that we see in, in other, in other, in other areas of the law or in any of the cases that we've talked about today. Save for Cook maybe. Maybe.

But the, if you haven't followed it because there have been so many blockbuster cases, and so you'd be forgiven for not following Chatrie. It was like in 2019, an armed robber kind of hit a credit union in Virginia, and there was all this surveillance footage, and one of it showed him kind of approaching from a nearby church. And so, like, he looked like he was on his cellphone as he was approaching, and so the police had absolutely zero suspects. So they went to Google with a geofence warrant which is a warrant to basically hand over data on every cellphone that has been within a certain range. Like a physical range of the, the credit union or the place that, like, was of interest at the time of the robbery.

And the warrant works in kind of three steps. First, Google kind of turns o- over anonymized location pings for everyone, then the police narrow that and ask for, like, a wider time window of users, and then they kind of, like, narrow it down to a final handful, and then Google hands over essentially the names and phone numbers of those people.

And at the end of kind of this process, the person who kind of popped up, one of the three people, was a fellow named Okello Chatrie whose phone showed him entering the, the, the zone of inquiry around, around the, sorry, apologies, Aaound the credit union at the right time, around the 10 minutes before the robbery, so like really kind of, you know, kind of damning.

And he was indicted and he moved to suppress the location evidence, and the district court held that the warrant plainly violated the Fourth Amendment and let, but let the evidence in anyway as we go through it under the good faith exception. Fourth panel affirms that on different grounds, saying there was no search, that this doesn't count as a search because Chatrie had no reasonable expectations of privacy in that data. And this is what's known as like the, the third-party doctrine, which is essentially the idea that you give over, if you, if you kind of are giving over your da- like any of your information to a third party, in this case Google and like your cellphone service, you are surrendering all interest in privacy to it, so like therefore you have any

Now obviously, like we all rely on this tech every single freaking day of our lives. We are constantly tracked by our phones. If this was to not count as a search essentially, this would, like, this has been, this is, this piece, and we'll get to this when I kind of give a little bit of analysis after I get done with this kind of telling of the tale. This is kind of like third-party doctrine has been like pretty hard to defend on a practicum level for a very long time because it would basically mean that we're all screwed, for like, for what the government can find on us without a warrant or with a warrant even.  

And so like there's kind of, there's like, you know, it doesn't make a lot of sense at a practical level if essentially you're going to say that like it's, it's the essentially like the inside the envelope you handed over to the post office, and as if you said like, "Okay, well, you handed it to the post office, so it's no longer a private communication," type of thing. Or like you picked up a telephone, and so it's no longer a private communication 'cause you spoke to the telephone company, and you relied on the, this doesn't parse.

And it's not in keeping with our normative ideas of privacy which is hard for the court to square, that is like really likes the idea of like bright, clear lines. But they've kind of constructed bright, clear lines slowly, and I would say that, well, spoiler alert, that Chatrie finally gets rid of kind of what is going, in like one small area, which is cellphone location searches. Kind of closes the door on the third party doctrine finally. And this was kind of a question that was coming out of Carpenter, which was the last big Fourth, like one of the last big Fourth Amendment cases that kind of went forward, which is a similar case, which is based on cell phone location records, which was that basically they'd, the, like, the police in that case had kind of, like, searched, asked for the records of everyone who had pinged a cell phone location tower in in a, in an area to find the exact location of where someone is and to, to locate a target. This is kind of an e- this was seen as kind of like, okay, are they gonna finally kill the third party doctrine with this?

And so Kagan wrote the majority opinion. The court held six to three that, yes, this is going to be a Fourth Amendment search. And then just like off the bat if you know it's a Fourth Amendment search, then you just really have strong protections for individuals who are going to be try, using these services as we all do and what the police can ask for and how the poli- and how like a judge, like judges a warrant or the val- validity of a, of a warrant request.

And so people retain kind of a reasonable expectation of privacy in their location history, so that's great news. Here's like I'm, I'm happy to be like the one optimist coming onto this podcast today. And so like um, the, you know, even for, and like one of the things, the court is always so narrow, like we, we know that, but like the court is so narrow and so confined in their Fourth Amendment rulings. It's always like, well, all we know is that you can't do this for 24 hours, or all we know is that you can't do this for such and such hours, or you can't do this within this broad sweep of like locations. You can't do it for a two-mile radius, but maybe you could do it for a 100-meter radius, like whatever the hell.

So anyways, the, the, the long and the short of it is that essentially the, the, this was an extension of Carpenter. We did a great podcast on this if you want to listen to it that we will hopefully link to in the, in the show notes. But basically no geofence warrants require a warrant grounded in real Fourth Amendment search analysis, and how particular, how narrow, how justified that warrant is going to have to be-

Benjamin Wittes: All of that is left for another day

Kate Klonick: Is left for another day and is specifically on remand back down 'cause it's a fact-finding question. And I am sorry for going on so long because we have Molly Roberts. Hello, Molly Roberts.

Benjamin Wittes: No, no, no. We're not gonna get to Molly Roberts just yet-  

Kate Klonick: Oh, okay, okay-

Benjamin Wittes: Because we have two important Roger Parloff questions first.

Kate Klonick: Oh, yeah, yeah, yeah. These are good.

Benjamin Wittes: So Molly Roberts is gonna get to stand out in the extreme heat and bake-

Kate Klonick: Sorry, Molly.

Benjamin Wittes: While,

Molly Roberts: I found a shady spot. I'm fine. I'm fine.

Benjamin Wittes: While Roger Parloff addresses two questions, the first of which is for those who are triumphing today on behalf of the Fourth Amendment at its, you know, that it in fact prevents geofence warrants without a warrant or geofencing without, without appropriate particularity. Talk to us about the January 6th investigation and geofence warrants.

Roger Parloff: Well, geofence warrants were absolutely essential to the January 6th investigation. I think that the assumption was that the Fourth Amendment applied 'cause I'm, I, I, it was challenged once at least, by David Rine and, and the judge, Rudolph Contreras, upheld it. At that point, Chatrie was the pretty much the sole precedent, and it was only at the district court level allowing it.

But I'll tell you what they did, and it sounded reasonable to me, and it sounded reasonable to, to Contreras. And it, so January 6th, January 13th, one week after, they go to a magistrate, the government goes to a magistrate, and they propose a, and get approved a three-step process. And so s-step one is you're asking Google, and Google has the best loc- location history information, 'cause it's not just cell towers. It's multiple, especially if you have an Android and you have multiple apps on it y- you, there's also Bluetooth beacons, and there's Wi-Fi networks, and you put all that together, and you can really map pretty well w- where you are. There's an error radius,

Benjamin Wittes: That's why Google Maps works so well, by the way.

Roger Parloff: Yeah, and GPS information. GPS. I mean, some of the people had Life360 going whi- while they were at the, 360. Anyway, so, they they asked for Google to give them three, do three searches. One was to list every device by an anonymized information initially, not account name that went within the contours of the Capitol Building and then two control groups. The same thing but, that was between 2:00 PM and 6:30 on January 6th. You know, it was they broke into the building 2:13. The- and then two control groups, the same thing, but between noon and 12:15 that same day, and between 9:00 and 9:15 that same day, to get people that were authorized to be in the building, law enforcement, congressional staff, and so on.

And so step two, you would compare the two, and then step, and make some other calculation. Step three, you come back to the magistrate, say, "These are the ones that we want to have w- a list of the actual account names." So the results were on the initial primary list, 5,723 devices inside the Capitol 159 on the control list, so you subtract those.

But then because of this error radius, they said, "Only give us the results on people who at some point were, the entire error radius was within the contours of the Capitol." And by the way, being just outside the Capitol would still be a misdemeanor, it's a restricted zone. But anyway, that was what they did, and there were 1,498 people that, that satisfied that. In addition-

Benjamin Wittes: And how many people were charged in connection with January 6th?

Roger Parloff: Ultimately 1,583.

Benjamin Wittes: So it corresponds really closely to the group of people who were ultimately charged and convicted in connection with January 6th.

Roger Parloff: It does. And, and in fact, it got harder and harder. There were people still being charged at the time that Trump took-

Benjamin Wittes: Right. I don't need, we don't need the exact numbers, but the point is about 1,500 people are nailed in this geofence warrant, and about 1,500 people are charged, and by the way, they're mostly the same people.

Roger Parloff: Yeah, and I mean, and there were some very serious charges for people that were outside, the people in the lower west tunnel and, and so on.

But anyway, and, and nobody was charged solely on the base of this. What you did was you got back this information, and then you asked for the license plates of those pe- you got a photo, you compared the photo to the surveillance footage, or you, you asked for, you got their Facebook accounts, you looked at social media, and you went with that, and then you talked to witnesses. So I, it seemed like-

Benjamin Wittes: And Roger, can I ask, can I ask a cheeky question?

Roger Parloff: Yeah.

Benjamin Wittes: Do we have confidence that the solicitor general brought to the court's attention the importance of the geofence warrant in the January 6th case before it ruled in these cases?

Roger Parloff: Oh, that's an interesting question. I didn't read the briefs in the Chatrie case. That's-

Benjamin Wittes: Let me, let me point out to everybody that there there's limited basis for confidence that the court was briefed on the full extent of the importance of this to, in, in major, major national security cases. And I may have something to say about that in Lawfare over the coming weeks. All right, Roger, we've got to go on to really important subjects like golf. But before we do, E. Jean Carroll gets 5 million bucks. What's going on?

Roger Parloff: Well, we, we hope she'll get it. She certainly has been-

Kate Klonick: You mean her lawyers get 5 million bucks?

Roger Parloff: Well, we shall, we hope somebody gets it. It still hasn't changed hands yet. So, but on June 29th, cert was denied in the Carroll II case, which is the one that went to trial first. That's sex abuse and defamation after, defamation after Trump was out of office. And that was, the main issues were like evidentiary matters that are usually that were arguably harmless error in any event, and they were the type of thing that's usually the district judge has enormous discretion, very unusual.

And the court rescheduled, meaning after that was fully briefed and distributed, it was rescheduled 15 times before they finally denied cert. So somebody seems interested in, and, and by the way, this is an important one because the second case where she got 83.3 million for defamation, that was sort of, based a lot of the facts were determined in this case based on colla- I, I don't know if it was collateral estoppel or estoppel or res judicata, but, you know, one of those estoppel doctrines. And so if this had been overturned, the other one would have to go out.

But the other interesting, oh, a- and, and so, the Roberta Kaplan, her lawyer called Trump's lawyer and said, "So will you y- will you release the 5.5 million that's already in cash in the court's register?" They had to post bond. And he said "Well, not yet. We're considering moving to reconsider cert denial," which I didn't know was a thing. But so, y- she has asked Judge Kaplan to move very quickly and to, to get an expedited schedule to, to let him litigate, you know, before ordering release, and she, he's agreed to that expedited schedule. But-

Benjamin Wittes: All right. So, attentive listeners and viewers will remember that this is the tip of a much larger iceberg because there's a the $5.5 million is in E. Jean Carroll two, which is really E. Jean Carroll one, and in E. Jean Carroll one, which is really E. Jean Carroll two, there is something like $90 million. And so, you know, in the two case, which is really the one case, which is the tip of the iceberg, which is $5 million what is the status of the other case which accounts for the, you know, 90-plus percent of the money?

Roger Parloff: Well, it's a curious situation. On April 29th the rehearing en banc was denied by Second Circuit. That gives them ‘till about, I think, July 28th to file a petition. But on June, on June 2nd of this month, Trump's lawyers wrote the court and they said "Don't decide the petition in Carroll II until you get our petition in Carroll I, and we'll get it in within the month," and they haven't. And so on the last, well, almost the last day of the term, June 29th, was when they denied cert in Carroll II.

And so, what's going on there, I, I have, I have to think it relates to Trump's, this is speculation, but Trump's lawyers, the, the John Sauer's firm had been handling this at the Second Circuit. The, it's called the "James Otis firm, but that's, there is no Jame- James Otis in the firm. It's, but, but Sauer, of course, is solicitor general. Another guy on the thing, Michael Talent, has gone to that office. Will Scharf is in the White House. Justin Smith just became an Eighth Circuit judge. So, I don't know how much of that office remains, and word had been that Sullivan & Cromwell was gonna take this, which would've been highly controversial for I suppose-

Benjamin Wittes: So we don't even know if there is a law firm that represents Donald Trump in Carroll I, which is really Carroll two, which is worth $90 million as opposed to the $5 million.

Roger Parloff: We don't know whose name will be on the brief when it, on the petition when it's finally, when it's finally… I should say it's s- Sullivan & Cromwell has rebuffed all of my inquiries emails and, and calls, so I don't, I don't know what's happening there.

Benjamin Wittes: All right. We are going to, we will keep that mystery for next week. And, we are gonna turn now to the subject that Lawfare Live is known for, which is, of course, our golf coverage. I have searched high and low for the Masters theme music. I have found it. Molly Roberts, you just emerged from today's golf course hearing, which was before the ever feisty Judge Anna Reyes. It went on longer than I expected it to which is why we've spent so much time talking about other matters. Tell us about, first of all, why are we covering golf here on Lawfare Live? And secondly, what happened in Judge Reyes's court today?

Roger Parloff: And, and can-

Molly Roberts: Yeah-

Roger Parloff: Can, I'm sorry. Can I just make a, a, a semi-correction? I don't wanna leave the impression if I did. My impression right now is that Sullivan & Cromwell is not representing him. That's my impression at the moment, but-

Benjamin Wittes: Yeah, that,

Roger Parloff: Okay.

Benjamin Wittes: You made that very clear.

Roger Parloff: Okay. I'm sorry Molly.

Benjamin Wittes: I, I'm, I’m, but we're on to golf now, Roger, the, the important stuff.

Molly Roberts: No, no, no. I, there were so many digressions in this hearing that had nothing to do with golf. This one felt much more relevant than talking about Mrs. Pac-Man or the Red Sox or, well, the Maginot Line one was sort of relevant. But anyway, it went on for three hours I think partly because we went sort of far afield from the subject of golf. Judge Reyes also made very clear that she has no interest in golf, so that may have been part of why.

But all right, why are we talking about golf? So, so we're talking about golf because as part of his many attempts to sort of remake D.C. in his image, President Trump has decided that he wants to remake the East Potomac Golf Course, which is a golf course on Heinz Point. It's a public municipal golf course, and he wants to change it into a championship style golf course that would presumably be a lot more expensive. It would get rid of the original Walter Travis design and replace it with a Tom Fazio design. That doesn't mean anything to probably most people here, but essentially the idea is it would be a fancy golf course, kind of in the style of the golf courses Trump has on his properties, and it would be presumably a lot more expensive.

As part of this project, when the East Wing was demolished, President Trump, or the Department of the Interior, the National Park Service, started dumping debris from the East Wing demolition onto East Potomac Golf Course. And there were a lot of questions initially, and there still sort of are, about whether there were contaminants in the soil and whether those contaminants are harmful to human health.

It actually turns out, and I will maybe get into this a little more or maybe I'll leave it here, that the fears that there was asbestos seem to have been unfounded, at least from the soil that was tested. There is arsenic, but it seems like the results suggest that the levels of arsenic don't exceed the baseline so much that they'd be dangerous to human health or to the ecology, which again, this is some of what the hearing focused on.

So the lawsuit is by a preservation league and by some public access golfers, and the hearing kind of focused on two things. One, and this is what Judge Reyes described as the big problem for the government lawyer. The government lawyer was saying, "You can't review this 'cause it isn't final agency action." Yet, recently, over this past weekend I think it was, President Trump toured this golf course with the Secretary of the Interior, with Tom Fazio, the guy he has claimed is going to renovate it, and said, "Oh, we looked at the dilap-" I wish I could read it, but when I do, the camera goes away on my phone. But you know, "We looked at dilapidated East Potomac Golf Course, and we determined,” you know, “whereupon it was determined that we're going to build a big beautiful new golf course, and we will do this by September 1st." So Judge Reyes was sort of pressing the government lawyer on, "Well, you're telling me this isn't final agency action, but can you tell me that the sec-

Benjamin Wittes: It's not so it's final agency action, but it's final presidential action.

Molly Roberts: Yeah, and then what is NPS and what is Interior doing? I mean, he basically said from the president's mouth to our ears, "And now NPS is planning to do this." He said they're only planning to, and they have to do all these statutorily required review processes, which is why it isn't final agency action. But she said, "Okay, you know, it turns out that courts don't really look at this in a super formalistic way anymore. They look at it more in a we-know-it-when-we-see-it kind of way." And one prong of that is, is there any chance it's not gonna happen? And she said to the government lawyer, "Can you tell me here, and are you fine with newspapers reporting that the Secretary of Interior could call up the president and say, 'Hey, nah, we decided not to do that after all'?" And the government of lawyer, the government lawyer, of course, was not comfortable saying that because it is happening.

But she also said that there was a big problem for the plaintiffs, which she said was the merits, really. They're seeking, so this, this hearing was about the motion to dismiss the complaint by the government, and then also about a motion for a preliminary injunction by the plaintiff. And she said as far as the preliminary injunction goes, it's not clear to her what they even want her to do. So, they say they're gonna do all these statutorily required processes. What is she supposed to enjoin them from? She's not gonna tell them, "No, you can't go through the statutorily required processes."

They said, "Well, we want you to tell them to take away the dirt that's there." And she said, "The evidence isn't there that the dirt is harmful,” it has to be something harmful at this stage, “I don't wanna issue... you know, I'm a pure pragmatist, and because I'm a pure pragmatist, I recognize that this is final agency action because that's the facts on the ground. But also, I don't wanna issue an injunction unless I really have to to stop the bad thing from happening. And I don't see that the dirt is necessarily harmful. You claim you're gonna give me expert witnesses. I was so excited for your expert documents, and then you didn't give me any, and you keep saying they're coming." And then she made a “Waiting for Godot” reference, and he didn't get it, and then that led to a discovery that-

Benjamin Wittes: That was a Waiting for Godot reference?

Molly Roberts: Yeah, she said, "Are we gonna call it the Godot Report?" And then this guy just, like, 100% did not get it, and he was just kind of, but the government's lawyer, whom she really seems to like, got it. And then she asked him if he was an English major, and then he said he was an archeology major, and then we had to talk about Monticello and, like, doing archeology on the slave quarters.

Benjamin Wittes: Excellent.

Molly Roberts: And then she was trying to look up a book that she really likes on archeology. I mean, no wonder it was a three-hour long hearing. But yeah.

Benjamin Wittes: It's the weave.

Molly Roberts: Yes. It, it was a little bit of the weave. She, so yes, so she said the “Godot Report,” and he didn't get it. There was also, again, this is not super, it's totally irrelevant, but he also is extremely Southern, the lawyer for the plaintiffs, and he kept calling her ma'am, and then he apologized. And she said, "I'm fine if you call me ma'am. Where'd you hear that? You didn't hear it from me." And he said, "No, ma'am," by accident. And, you know, everybody found that extremely amusing.

But anyway, he ultimately came back and said, "Well, first of all, we want you to remove the dirt. But second of all, we want you to stop them from doing anything else that is irretrievable. We want you to enjoin them from, you know, doing any, like, groundbreaking action." And she said, "I'm not gonna issue a preliminary injunction, but I do want you guys to come to another agreement." There was already sort of an agreement that the government isn't going to do anything that is irretrievable, that there aren't gonna be bulldozers that come in in the night and knock down all the cherry trees. “And I want you guys to come to that in two weeks and present that to me.”

Because she says her worry essentially is that it's another East Wing situation. That, you know, by the time that she decides that there's something to, but by the time the plaintiffs can go and actually ask her for relief, the thing has already occurred, and that's what she wants to prevent.

Benjamin Wittes: Right.

Molly Roberts: So that's just, you know, the injunction question. She said, "Spoiler alert, I'm probably not gonna grant your motion to dismiss to the government," but that leaves aside the complaint itself, the, you know, full discussion of the merits, which will have to do with whether they have violated and, you know, partly whether they've already violated even before going through these processes, whether they've already violated the processes because they trigger earlier. And then also whether they can change the golf course at all, which is an National Park Service Organic Act question.

And the anti-golf course people are gonna say, "Well, you need to preserve and protect the parks." And the government is gonna say, "Well, this is that. It's just a different golf course that you guys don't like." So that's basically what's happening. And, but I guess, yeah, we're not getting the PI, but…

Benjamin Wittes: All right. No PI, but we'll have a kind of coerced agreement that will operate as a PI. Is that fair?

Molly Roberts: That is very fair, yes.

Benjamin Wittes: All right. Speaking of coercion, Roger we have a reflecting pool vandalism update involving the Olympics. Speaking of things I did not expect ever to cover on Lawfare what do we know about the latest in charging people for vandalizing the reflecting pool after they've been in the Olympics in whitewater canoeing?

Roger Parloff: Yeah. David Carter Hearn has now been indicted in Superior Court, D.C. Superior Court. Jean- Jeanine Pirro just gave a, a press conference at 2:30. Under D.C. code 22-303 it's destroying, basically destroying property worth more than $1,000.  

I don't know, it's, that's an interesting thing why she would bring it in Superior Court rather than federal. It is U.S. government property. It's the same the, the maximum penalty for that crime is 10 years if you, and, and it becomes a felony if the property you damage is worth 1,000 or more.

She said at the pr- at the press conference, "Defendant ripped a piece of recently installed sealant on the bottom of the reflecting pool." She said it was two square feet. She said he used both ha- bare hands violently he ripped it. There are witnesses who are NP, National Park Services employees. Somebody asked was it already ripped or damaged? And she declined to say. She said, "Doesn't matter." I think that proving more than $1,000 damage by touching something that's already ripped-

Benjamin Wittes: That's already broken.

Roger Parloff: And ripping, trying to rip off a souvenir, I don't think that's gonna make it. But the, there's a statement from his lawyers Norm Eisen from Democracy Defenders and Mary Dohrmann from Washington Litigation Group. They say, quote, "David Hern is innocent. These charges are, are outrageous and should be alarming to every American. This indictment reflects the administration's effort to shift blame for their own failures. On the eve of our nation's Independence Day, Americans should be deeply concerned by the misuse of government power against an ordinary citizen based on a concocted narrative. The justice system exists to determine facts, not to provide political cover."

Benjamin Wittes: All right, folks, it is time for this week's grand conspiracy update. [Music] Molly Roberts, John Brennan has sued the Trump administration to get them to preserve documents related to their investigation of him. Grand conspirator trying to cover his tracks? What's going on here?

Molly Roberts: Precisely the opposite, right? We want the documents preserved here. We want the government not to be able to cover their tracks, I believe, is what is going on. So yeah, John Brennan filed this lawsuit trying to ensure that the government complies with the Presidential Records Act and other document preservation statutes when it comes to their investigation of him.

So there are two investigations, right? One is this false statements to Congress that originated from the Jim Jordan criminal referral, and one is the grand conspiracy investigation, which so farwe know he's the only, or as we know so far, he's the only named target of, and that, you know, originated from the criminal referrals from Tulsi Gabbard and John Ratcliffe.

So the idea is that he may eventually want to file a selective or vindictive prosecution if he is indicted. Selective or vindictive prosecution motion. That makes a lot of sense given what we know, and if you go through his complaint, excitingly, it cites Lawfare articles multiple times, one of which is a piece that Anna Bower and I wrote about Joe diGenova, who's down in South Florida helping out with this investigation and who has made a lot of statements about how guilty John Brennan is. And Todd Blanche, the acting attorney general and nominee for attorney general, also has gone on Sean Hannity and talked about the grand conspiracy investigation and said that John Brennan was part of it.

So he has all these worries about how this is going to lead to a selective or vindictive prosecution, and he wants to make sure that there's documentation of that. And he says that there's particular reason to worry about that because, well, first of all, this administration has a history of selective or vindictive prosecutions, and second of all, this administration doesn't seem that interested in preserving documents. He says it's also partly just the reality of ephemeral messa- of ephemeral messaging, new technologies, but also he points to, he points to Lindsey Halligan's Signal messages with Anna Bower. He points to the Jeff Goldberg Signal kerfuffle, The Atlantic, and the strikes on the Houthis in Yemen. So... And he points to an OLC opinion about the Presidential Records Act not being so important anymore, basically.

So that's what the motion is, and the relief that he's seeking, he's doing this in D.C., which again, makes sense because that's where they're doing the false statements investigation, and despite them trying to be in South Florida for the grand conspiracy investigation, it's where most of the conduct occurred. He's filed this motion seeking them to be forced to comply with these records acts. So it's sort of a preemptive thing. And, you know, it, it could have to do with the selective and vindictive prosecution motion. It could also have to do with any attempts he might make or anyone else in this investigation might make to quash grand jury subpoenas which makes sense too. And he cites in this complaint

Benjamin Wittes: It’s just smart defense lawyering. Yeah. Any time you can get ahead of it and get into court in a more favorable venue to discredit a prosecution before it happens, it's a good idea. I mean, nothing, nothing but good is gonna accrue to John Brennan-

Molly Roberts: Right.

Benjamin Wittes: For doing this. And by the way, it's also righteous

Molly Roberts: Yeah. I have nothing more to say.

Benjamin Wittes: All right. We have six more minutes and six items on our agenda. Roger, my… The judge on the D.C, bench who perhaps I most admire, Judge Randy Moss, has granted an injunction to protesters allowing them to display “8647” flags and “Trumped rape little girls” signs. Tell me, does this apply to projections? 'Cause that, that's the, that's what I wanna know.

Roger Parloff: I, I believe it, it does, in fact. But so, Anna Bower, a few weeks back described the TRO that Randy, that Judge Moss gave, handed out. This is now a permanent injunction summary judgment, but it's basically the same issues.

I think maybe last time it was just the flag, the 8647. That's really the most important part for our purposes, because that's, you, you begin to extrapolate and say, "Look, if this is protected, how are you going to prove a criminal case against James Comey?" And that, that aspect of it, it was all about context, of course, all of these things are. But he said, just as an objective matter, no reasonable person could have taken this as a true threat.  

Now, in this case, there was, i- there were other signs about urging impeachment, so it was sort of clear what the definit- what definition of 8647 was. But, you know, he, he goes through Merriam-Webster and how the dominant meaning is, is, are, are various things like you know-

Benjamin Wittes: Diner talk

Roger Parloff: Well, we're, we're out of, we're-

Benjamin Wittes: We're out of ketchup ...

Roger Parloff: We're out of ketchup or let's get rid of this c- customer and-

Benjamin Wittes: Right.

Roger Parloff: Who's being obstrup- obstreperous in a bar.

Benjamin Wittes: All right, we're gonna 86 this subject-

Roger Parloff: Okay

Benjamin Wittes: Because we gotta move on. And we gotta move on to the reporter's privilege where Catherine Herridge of CBS has to pay $800 a day for not giving up her source. What's going on with that Roger?

Roger Parloff: Yeah, this relates to something that happened when she was with Fox. I don't think she's with CBS anymore. But anyway yeah, she, she did a story about Yanping Chen who was a, a, a she'd a naturalized Chinese citizen who had started a nonprofit university that was used mainly by military personnel. And she went she was the subject of an FBI investigation and a search, I think. And and she was eventually, they decided not to bring charges, and shortly thereafter, apparently she, she did a series and she had some stuff photo- photographs and other information that are apparently from the, from the investigation that had been leaked to her.

So Chen sued DOD and FBI under the Privacy Act. Judge Carl Nichols ruled against her on, on, she was subpoenaed for information. "Who, who, who was your source?" She refused. Judge Carl Nichols said the reporter's privilege has been overcome here. D.C. Circuit affirmed. Katsas writes the opinion but also Michelle Childs, who's a Republic- who's a Democratic appointee, and Harry Edwards, who's a Carter appointee. Rehearing en banc denied then moves to the Supreme Court, represented at the Supreme Court by Paul Clement. And…

Benjamin Wittes: But this is basically an intra-conservative fight.

Roger Parloff: Yeah, yeah, yeah.

Benjamin Wittes: Catherine Herridge, conservative-leaning MAGA conspiracy theorist reporter rebuffed by serial conservative judges and despite being represented by conservative lawyer superstar Paul Clement.

Roger Parloff: Yeah. And she, so Chief Justice granted an administrative stay, I think two days ago, but that was just lifted today. So, that's-

Benjamin Wittes: All right. So, $800 a day, that's starting to tick. Meanwhile, Molly Roberts, Judge Paul Friedman, who I ran into at a, a restaurant recently, has blocked a rule in the latest battle between the press and, and the Pentagon. What's going on there at the Department of War?

Molly Roberts: Yes, I will try to be lightning fast about the Department of Defense, which I'm assuming is what he is continuing to refer to it as. So I-

Benjamin Wittes: Yeah, good for him.

Molly Roberts: Yeah. So this is round three of an ongoing fight about the Pentagon's press policy and challenge that The New York Times brought. Effectively, The New York Times had already won a preliminary injunction on this policy that required these special press passes, and then they won a motion to enforce because the government did a revised policy that didn't really comply with the order, or at least Judge Friedman certainly didn't think it did.

Part of that rev- revised policy included this escort policy, but the escort policy wasn't technically part of the, well, it wasn't part of the initial policy, so it wasn't technically part of the challenge. So, it had gone up to the D.C. Circuit, kinda came back. He had to look again at the escort policy, and what has happened now is that he has granted a preliminary injunction also on the escort policy, which said you can't go into the Pentagon without an escort, except for, like, one very particular area.

And yeah, he said that for the same reasons that the press credentials policy was con- was unconstitutional, this is unconstitutional, too. It's First Amendment discrimination. It's viewpoint retaliation. The, you know, viewpoint here is wanting to be able to report in a critical fashion, and that doesn't mean critical like I don't like you, administration. That means critical as in I'm going to ask questions. I'm not just gonna be spoon-fed whatever the administration has to say to me.

Benjamin Wittes: All right. Meanwhile, Judge Emmet Sullivan has blocked the U.S. Postal Service efforts to comply with the president's executive order on elections. This goes to another area other than the grants conspiracy, cue grand conspiracy theme that I'm not gonna play again, of Molly Roberts's obsessive attention. Molly what is going on here with the U.S. Postal Service and Judge Sullivan?

Molly Roberts: Yeah, so this one's a little complicated. This one actually is sort of a different way to challenge this executive order, which is already being challenged, the order itself, in multiple courts, in which we've recently had rulings on from Judge Indira Talwani in Massachusetts, that was the most recent one, blocked the order, and Judge Carl Nichols that said this isn't ripe yet, and that's of course here in D.C.

Now, this ruling from Judge Sullivan here is having to do with his case previously that the national, sorry, the NAACP had filed against the Postal Service that led to a settlement, and the settlement essentially said you have to make sure that the mail gets delivered, election mail gets delivered to everyone in a timely manner.

So they're challenging the Postal Service's implementation of Trump's executive order on mail-in voting and saying that the way they're implementing it, by which states have to submit a list of people who they wanna get absentee ballots, and then the po- they also have to comply with kind of a stringent set of technical specifications, and that the Postal Service will only transmit ballots to people who appear on the list and have the ballots conforming to the technical specifications. The NAACP said, "Actually, this doesn't comply with, this is in violation of our settlement agreement," and Judge Sullivan found that that's true.

So, you know, it seems like this sort of narrow, weird, technical, run-around way to challenge the order, but actually Judge Talwani's ruling only applied to the 23 states and D.C. that had sued to enjoin the order, and this one applies nationwide. So, for now, there's an injunction against the Postal Service implementing this order anywhere.

Benjamin Wittes: Interesting. All right. Finally, last but not least, Eric, a district judge in Massachusetts has imposed limits on public service jobs for student loan forgiveness purpose or what qualifies as them. What the heck is this doing on our list?

Eric Columbus: So yes, the, the, the, this is Judge June in district court in, in Massachusetts, a Biden appointee. And this is, it could be seen as an example of the, of the administration trying to kind of, crack down on, on liberals and people doesn't, they didn't, they don't like by trying to narrow the definition of public service in the term “public service job” which is something that you, that if you take after graduating from school, you can get some of your loans, your student loans forgiven.

And they, the, the pursuant to following an executive order, basically spoon-feeding it to the Department of Education the Department of Education promulgated a rule defining “public service” to exclude organizations that engage in activities that have a substantial illegal purpose. And the- they define that as including “aiding or abetting violations of federal immigration laws, supporting terrorism, engaging in chemical and surgical castration or mutilation of children in violation of, of federal or state law.”

Benjamin Wittes: I didn't know many public service organizations did that.

Eric Columbus: Well, I, I, I, I suppose one could be working in a, in a, in a hospital, for example, that, that may, I, I need to look up the definition, but-

Benjamin Wittes: That may engage in castration?

Eric Columbus: Well, in vio-

Benjamin Wittes: I mean- What,

Eric Columbus: What, what are you, what are you talking-

Benjamin Wittes: How many hospitals-

Eric Columbus: What they're-

Benjamin Wittes: Hang on, just pardon me. Like, I, I'm unaware of hospitals that are, like, willy-nilly castrating people.

Eric Columbus: What they're talking about is, what they're trying to get at is surgery on trans children.

Benjamin Wittes: I, I under- I am the father of a trans person. I am unaware of hospitals engaging I, I mean, gender reassignment surgery is, is one thing. I, I'm just puzzled by the, the imprecision of the medical language there. Let's just put it that way.

Eric Columbus: Yes. Yes, “castration or mutilation,” it says. They do not use the term “mutilization,” which is the, the president's pref- preferred term. “Trafficking of children to another state for purposes of emancipation from their lawful parents in violation of the law. Or engaging in a pattern of violating state laws.”

And so the, the, the court strikes this down on, on, on three grounds. First, says there's, there's, there's really no role for regulations here because Congress made quite clear what it wanted to cover. Congress defined public service jobs with, with kind of a, a, a, a range of organizations military service, public safety, law enforcement, public health et, et cetera, et cetera. And so the, the, the judge said, "Look, you can't just go into that. They've defined public service job with tons of examples. You, you can't go into that and then define ‘public service; as part of that. There's no room for regulation."

Also found that it was arbitrary and capricious because it had... There's no evidence of a, of a problem that needed a, a, a regulation to fix it. There were very few employers… Apparently the, the, the rule, the administrative records show that the, the Department of Education believed there'd be fewer than 10 employers affected annually by the rule, and the judge-

Benjamin Wittes: Right, because so few employers engage in-

Eric Columbus: Yeah.

Benjamin Wittes: Castration. Sorry.

Eric Columbus: No, no, no. And, and then, and then finally the judge said that this was invalid under the First Amendment because the way this is drafted just kind of clearly is drafted to target the administration's enemies, and it does so in a way that is, is viewpoint discriminary- discriminatory. Obviously you can't, you, you, you can't violate the law, but the, the very, the broadness of the language, like the “aiding and abetting” language leads to just very vague regulation that will inevitably be used to chill protected speech.

Benjamin Wittes: Folks, we're gonna leave it there. Thanks to not one, not two, not three, but four Lawfare senior editors, Molly Roberts, Roger Parloff, Eric Columbus, and Kate Klonick, for joining us today.

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