Lawfare Daily: The Trials of the Trump Administration, July 24

Eric Columbus: I'm Eric Columbus, Lawfare Senior Editor, sitting in for the estimable Benjamin Wittes. It's 4:00 PM Eastern on July 24th, and I am here with two of my fellow Lawfare Senior Editors, Anna Bower and Roger Parloff. And we have the usual array of interesting and puzzling developments for your edification.

And we will start in New York City with an update on the very odd subpoenas issued to The New York Times and possibly others. And Anna Bower was in the courtroom yesterday before Judge Subramanian, and she will tell us all about it.

Anna Bower: Yeah. So Eric, it was an interesting day in court. It, it, this hearing was quite fascinating over The New York Times’s motion to quash these subpoenas that were issued to reporters related to reporting around the new Air Force One jet. And it is a, a, you know, apparently a, a national security leak investigation in which the Department of Justice has said that the reporters are not the targets of the investigation. But they nonetheless issued these subpoenas both for testimony and to third party communications providers for, you know, phone records.

The New York Times moved to quash those subpoenas, and we ended up in court before Judge Subramanian yesterday. And the reason that this hearing was so fascinating is that immediately when we got into court the judge said, "Okay, I have some questions for DOJ and then eventually, you know, I'll get to The New York Times, but I just want to ask some questions." And he proceeded to just completely grill the DOJ attorneys about the circumstances surrounding the issuing of these subpoenas.

Keep in mind that, people might recall, that some of the main issues here involve DOJ regulations that, that say if subpoenas are going to be issued to reporters you know, one of the things that's supposed to be considered is whether there are alternative means or methods to get that information. That's also what it says in Second Circuit case law in a case called Gonzalez when you're talking about overcoming the qualified reporters privilege.

And so there was a lot of questions about the fact that DOJ had kind of, you know, issued these subpoenas originally and then backpedaled by saying, "Oh, just kidding, Judge. If you could just hold these in a, in abeyance for two weeks, we've figured out that we've got, you know, other means that we can explore in terms of getting the same information.” And the judge wanted to know things like, "Well, why didn't it, why didn't you know before that you had alternative, you know, so- ways to get this information? At, at the time that you issued these subpoenas, did you not know about the Gonzales case and about you know, the precedent in this circuit that you have to go through that process first in order to meet the Gonzales test?"

So there were questions like that, but then even more interesting in, to my mind, was the fact that the judge questioned DOJ, including Sean Buckley, who's, who's in- leading the investigation, but then also had a moment in which he asked where Kevin Sullivan is. Kevin Sullivan had been the person who signed some of the DOJ's in applications for a non-disclosure order, meaning that, you know, they wanted the judge to issue an order that said the telecom companies are prohibited from telling the reporters about these subpoenas for their communications.

And in the course of making that application, Sullivan, who is the one who attested to it, and I will say we have not been able to see this application, it's not public as far as I am aware, but in the course of this questioning, it became apparent that one thing that DOJ said in that application is that the investigation was not public. That application was filed on June 14th, but remember, it was on June 11th that this investigation was reported on by The New York Times, and DOJ confirmed publicly that this investigation was ongoing. So, at the time that they stated that this was a non-public investigation as a basis for, you know, not revealing the existence of the subpoenas to the reporters there, there was a reason to think that that statement, you know, was not correct because of the earlier New York Times reporting.

So, the judge had Sullivan come up from the gallery, sit at the counsel's table, and respond to these questions. He admitted on the record that that statement was not correct that there were other oversights as well, including not informing the magistrate judge that this was a subpoena involving reporters things like that. And, and DOJ, you know, said these were inadvertent errors. And the judge at one point even said, "You know, I, I need you to give me a little bit more about, like, why I shouldn't ca- pursue some type of further proceedings regarding imposing sanctions." And he even said, “If this were a civil case, you know, I would issue an order to show cause.” But of course the posture is a little bit different because it's a motion to quash a subpoena in the context of a criminal investigation.

So there was a lot of just grilling the, the DOJ attorneys, and then eventually it got to a point where the judge made it very clear, "I- I'm either going to quash these subpoenas or you're going to withdraw them," and DOJ requested a recess for five minutes. They went out and conferred and came back in and announced that they were willing to withdraw the subpoenas.

So that is kind of where it stood yesterday with this hearing culminating in the withdrawal of the subpoenas. But we've had some further developments today, including Judge Subramanian ordering DOJ to supply, I think it's by next week, I don't quite remember the exact date, any internal communications regarding its decision to seek the non-disclosure order related to that application that was sub- filed on July 14th and anything, you know, about the decision that kind of went into the statements on the application.

We also have a kind of strange thing happening on the docket as well, where there is a corporation that has a, a, called the, it's proc- proceeding anonymously under “Doe Corporation” for the time being wants to intervene and file something on the docket, a letter of motion of some sort. It's not entirely clear what is going on there. Potentially it's one of the teleco- telecommunications companies that received these subpoenas. You know, I'm not sure, but that's kind of the latest in this case. So yeah, it was an eventful few hours related to The New York Times subpoena case.

Eric Columbus: I'm not sure if you s- saw, but just moments ago there's something involving Google on the docket.

Anna Bower: That's, you know what? I was just about to say I think it's Google, because I looked up the the Wilmer Hale attorney who is representing Doe Corporation, and I noticed that he has recently represented Google. And so I assume that maybe one of the third party, has something to do with one of the third party subpoenas potentially you know, going to Google. But and we will, is there any other updates, Eric, that you can see on the docket? 'Cause I don't have it right in front of me.

Eric Columbus: Yeah, I don't, I don't have it either. It was something from that I saw that Chris Geidner had posted.  

Anna Bower: I see.  Well, I will read and, and maybe you can come back to me in a few minutes and I can do an update after we get to some other things, and I can read while you guys discuss the other cases.

Eric Columbus: Sure. Tell us about the lawsuit in the Western District of Washington in which the court-appointed U.S. attorney is suing to challenge his termination.

Roger Parloff: Sure. This is R- Roger Rogoff, who everyone, including me, confuses with me the first time they see the letter, the, the, the writing, the word, the name. He is the first, he's appointed by the bench in the Western District of Washington. It's another one of these, I think we've had about seven dust-ups over the U.S. Attorney's office, who's gonna lead them, and, and 'cause the Trump administration wants somebody there that they, they don't wanna have to go through a Senate confirmation, or they aren't able to go through a Senate confirmation and, and get a confirmation.

So, this position in I think I mentioned it last week, in the Western District of Washington was held by the, the Trump administration. I, I, I think I think it was Bondi who had appointed somebody under 5406(a). But that sort of appointment is an interim U.S. attorney, but that only lasts 120 days, and that ended, and then they, they called him “first assistant” and said he was now the chief law enforcement officer for the Western District.

So, this time for the first time, and, and this time for the first time, well, so the, the bench said this, this office has been open for a, a long time without a Senate-confirmed officer. We're going to appoint somebody. They appointed Roger Rogoff. He's a former AUSA. He's a former superior court judge appointed by a Democrat.

And, and they fired him within the hour, which they've done at least three other times when, when benches have intervened and, and tried to appoint somebody.  And they do it in a very stagey way. Blanche says this won't happen. I, I, he does he does you know, the POTUS appoints people and not, not rogue judges, this sort of thing.

This time, for the first time, Rogoff is suing. He has Donald Verrilli a former solicitor general under Obama representing him. So, it's a, a very serious suit. The judge, as in all of these disputes over U.S. attorneys, we saw it in a couple other cases, there's an outside judge brought in. So the judge is from the Eastern District of Washington and that's Stanley Bastian, who's a Obama appointee.

And the main point is that there's a… There's a violation of separation of powers and of the Appointments Clause going on here, where, where, you know, the whole, obviously, the, the Appointments Clause envisions a Senate confi- well, the Congress has asked that the, this position be a Senate-confirmed position. It's an inferior officer. It doesn't, it probably doesn't have to be, but Congress has said it should be. And, and they're circumventing this rule.

And they're, they're just openly saying they're now, you know, this is the chief enfor- law enforcement officer. I think the guy himself said, his name is Floyd, his last- Charles Neil Floyd. He said, "While my title has changed, what has not changed is my leadership of the men and women of the attorney's office." So it's very clear they're just not gonna, the, the, they think they found a way around these laws a- and the, the favored way of having a Senate-confirmed person.

So that's the strong part. The, the weak part of this motion is, of course, the Slaughter, the Slaughter ruling, which I think I will ask Eric about if, if he's able to, because I still haven't read it I'm, I'm embarrassed to say. But basically that certainly the, the president certainly controls almost every principal officer, has the ability to fire, but it, it implied that you could go down further than that. The other problem is that 541(c) says that the, the U.S. attorney is removable by the President of the United States.

Now, 541(c) is a, is a statute where 541(a) envisions a Senate-confirmed appointment 546(d) is the statute that says that if the, if that at the end of the interim appointment when it expires and if nobody has, it actually uses language about if the position has not been filled the, the district court bench can appoint. So, there will be that statutory question, and there will be the constitutional question hanging over it. Eric, do you have any thoughts? Does this have a prayer after Slaughter?

Eric Columbus: I mean, my, my, the, the vibe suggests to me that it does not, but you could probably argue it either way. I mean, just basically given what we know about this court and their views on presidential power, it seems unlikely that he would be able to prevail. I mean, Slaughter, I don't think directly controls this. I mean, as I, as I think you mentioned, it, it, it covers only principal officers. But the notion that, that a judge would be able to, that judges would be able to impose a U.S. attorney on an unwilling president seems it just seems kind of like something that this court is unlikely to, to countenance.

Roger Parloff: And, and in fact, if you look at the proposed order, you, you get that what it would require, you know, this guy is, Floyd, is in office, you know, he's ensconced there running the office. So you need an order that says, "Take Floyd out, put this guy in, and, and cooperate with him," which is a lot. And it's a, it's a lot for this Supreme Court, I agree with you, to do. It just that's my hunch too.

Eric Columbus: Yeah. Yeah. And this is the fir- I mean, the other three, this is like the, what? The fourth person who's been in this situation and the only one to sue. Is that right?

Roger Parloff: That is right. Yeah, I think that is right.

Eric Columbus: Yeah, that, that, that might give indication about how other lawyers have considered the likelihood of prevailing in such a suit.

Roger Parloff: Yeah.

Eric Columbus: Okay, let's go back to Anna and who has now returned to the New York Times docket and has more to say about it.

Anna Bower: Yeah, so, the New York Times docket is that Judge Subramanian has denied the motion to seal the letter motion from a telecommunications company. And it is now public that that letter motion was from Google. Google was the subject of that July 16th subpoena that was relat- the, that corresponded to the July 14th application for a non-disclosure order. The magistrate judge, of course issued that non-disclosure order.

And so the issue, from what I gather from reading Google's letter, is that they were seeking the that the judge vacate that non-disclosure order because although the government withdrew its subpoenas and withdrew the non-disclosure application Google's position is, well, that doesn't, you know, do anything to vacate an order of a court, that, you know, the government can't just unilaterally withdraw a court order from the magistrate, so we need to take some action here to, to get it vacated.

And so they make the argument, you know, that the non-disclosure or- the non-disclosure or- order was violation of the First Amendment and didn't fit within the narrow constraints of the Stored Communications Act and all that kind of thing. And the judge says, "Okay, granted. Non-disclosure order is vacated." Judge Subramanian did just now on the docket. So, it, that seems to resolve that issue, but the answer to the mystery of who the corporation was is that it was Google, and they were seeking to dissolve that non-disclosure order.

Eric Columbus: Got it. So some, some mysteries resolve themselves, but it still seems a little odd that the, the way in which the, the prosecutors in SDNY were conducting themselves. Are these longtime prosecutors? What do we know about them?

Anna Bower: So I, my understanding, I think that Kevin Sullivan, who was one of the attorneys who was in the hot seat i- is actually a career attorney a career Justice Department attorney. I need to check myself on that.

But then Sean Buckley is the kind of you know, a little bit more of a seems to be clo- more closely aligned with Trump administration officials. He's the deputy to Jay Clayton. And he is the one who is running this investigation, and he attested in court yesterday to Judge Subramanian that he would continue to run the investigation going forward as well.

But as far as I can tell based on the brief look that I took at it yesterday, I, I think that Sullivan at least is someone who's an AUSA that, you know, is a, is a career rather than recent addition to the Justice Department.

Eric Columbus: Sullivan was the one who was hiding in the, in the, in the gallery, right?

Anna Bower: Sullivan is the one who was in the gallery and, and who was called up into the well of the court. And, and the judge, you know, there was this almost comical moment in which the judge was like, "Is Mr. Sullivan here today?" And Buckley says "Yes, he's, he's in the gallery." And the judge says, "Well, why is he in the gallery? We've got plenty of seats up here, and his name is all over these documents."

So, he kind of, you know, sheepis- sheepishly rose from his seat in the courtroom and, and went up to, to the, to the well of the court almost like a, the, with the posture of almost like a child who has been, being sent to the principal office, you know? Like, he, he seemed to know in that moment that he was about to get grilled by the judge

Eric Columbus: That's just so weird because I think in the past there have been situations where they send, like, the line person out who gets slaughtered and, like, the politicals kind of hide, but here it's the opposite.

Anna Bower: Well, yeah. Or, I mean, my experience in, for example, the Kilmar Abrego Garcia case was that often what they would do is send someone who's, who's actually not the line or, or is a line prosecutor, is a line prosecutor but a new one, who doesn't know anything about the case, and then they will kind of conveniently have the people who know things, you know, they've had a conflict that they couldn't get out of, and so they couldn't be there that day. And so very often you get people who actually don't have any knowledge of, of the case and the judges get frustrated.

But here, you know, at the very least, they did have the guy who's running the investigation who was there. And although Sullivan was not in the, you know, well of the courtroom at the counsel's table in the beginning, he was at least there and could be summoned up to the well to answer some questions.

Eric Columbus: Very odd. Okay, let's stick with Anna and stay in the same courthouse actually and talk about Nicolás Maduro, the former president of Venezuela, who is now detained in Manhattan. And there was, what, a status conference on his case? Is that what happened?

Anna Bower: Yeah, a status conference, and I will say it's quite interesting because yesterday's hearing in the New York Times subpoena matter was, you know, fireworks in the courtroom level kind of stuff, but there was really no one there up until right before the hearing. Whereas Maduro it's just a status conference and it ended up being incredibly routine, very dry. All that happened is that we got a trial date in the Maduro case. Drum roll, please. That is June 1st of 2027, Maduro is set to go on trial in a United States courtroom in New York before Judge Hellerstein.

But that d- you know, was not something that was difficult for the court to decide because it was a consented to date by both of the parties. There weren't really any matters to resolve during this status conference. But in great contrast to the New York Times hearing that didn't seem to really draw many people up until the very end, I mean, the Maduro stuff, it, it, it although it was quite apparently there were fewer people there than there have been for previous hearings you know, it was like a circus at the courtroom and outside. There, it was almost like trying to get into a Trump trial hearing. It was, it was just a lot of media, a lot of public spectators. And then I remember hearing afterwards, someone looked at another person in the gallery and was like, "That's it?" This was a member of the public who had be- had waited for a while to, to get into this hearing.

But there really wasn't, Eric, that much happening in this hearing other than the trial date being set. One thing I will say is that the first motions hearing that's going to take place is set for November 17th. And, and that will be on the first set of motions that the defense intends to file to challenge the indictment. The way they're doing it is they're gonna do it in kind of two stages. One where the defense files motions that challenge just the indictment on its face and then another set of motions where the defense has taken a look at the discovery and, and might have some motions based on, you know, once they look at the discovery in the case.

But that first set of motions, as I understand it from what the defense said during this hearing, will include, or is expected to include, a, a sovereign immunity motion. But other than that, there was not a whole lot of discussions about the substance of these motions. There also was a little bit of discussion about CIPA practice. But it seems that they are still kind of working out some additional you know, dates for disclosure of discovery and, and CIPA stuff, so, so we'll see.  But but yeah, I mean, that, that kind of was it really. And, and so, not a hugely eventful moment in the Maduro case, but there is a trial date.

I also will add that Maduro, I, this was my first time seeing him in court because I've been out of town during the other hearings, and he was very you know, chatty and kind of, almost, you know, just really trying to chat with everyone, shaking hands with everybody when he comes in. Kind of seemed to be making some type of, of jokes with, with people as he's, you know, sitting there next to his counsel. So he seemed to be in good spirits insofar as I can give some color to, to the hearing. Yeah, that's it.

Eric Columbus: Did he shake your hand?

Anna Bower: No, I, no, he did not. He did not shake my hand, no. He came in through a side door, so there's, there would be no opportunity for handshaking with members of the public or the press.

Eric Columbus: Was, was, y- you mentioned it was a large crowd. Was it, was it, like, a, a, a lot of Spanish language press? Was that the reason?

Anna Bower: Yeah, lots of Spanish language press. There were a lot, there was a lot of media staging outside as well, and I, and I believe a lot of that may have been Spanish language press.

But there's also, it seems to be, like, a, maybe even, you know, I, I don't recall there being a whole lot of people who were members of the public. Like, you had your regulars, but during the Trump trials it seemed like it was almost always mainly press. Like, we didn't have a whole lot of just public spectators coming in. It, but it seemed like in the Maduro at least the lines that I was standing in, it seemed like there were a lot of members, interested members of the public.

Like, there were even two guys who I think just were walking by and they heard that the Maduro ca- they saw the media staging and they asked someone, like, "What's going on?" And someone was like, "Oh, there's a hearing in the Maduro case," and they just, like, strolled in. They were these two young 20-something guys, and they just strolled in and decided to wait in line to go to this hearing. So yeah, I think it was a lot of members of the public, but also a lot of s- Spanish language media as well.

Roger Parloff: Does he-

Anna Bower: In addition to the, you know, cour- normal courthouse kind of, the usual, the usual suspects of media who hang around the SDNY courthouse.

Roger Parloff: Does he wear prison pajamas or, or,

Anna Bower: Yeah, it was like a tan, like a V-neck kind of, tan-

Roger Parloff: Surg- scrubs sort of?

Anna Bower: Yeah that kind of situation.

Eric Columbus: I wonder whether we'll see Marco Rubio in, in similar garb soon. Not because he's about to be arrested, but because Rubio, I don't know if you guys caught this, recently on some flight, he, I assume deliberately, matched like precisely the, like the tracksuit that Maduro was wearing when he was arrested. It's kind of, it very a lot of dedication to trolling in this administration.

So, we will stay with tr- legal proceedings that have international implications now, and I will talk a little bit about the, the Tate brothers, A- Andrew and, you know, I'm blanking out on his brother's name. Was it Tristan Tate? I'll just call them the Tates in general. They were arrested by the U.S. Marshal Service in Miami last this week, and they face extradition to the United Kingdom to face charges of sexual assault.

And, and the, the reason why this is, is noteworthy for, for Lawfare I think, is that this is an exam- the, the, the very fact that it is perhaps surprising that this administration has acted against the Tates is that it was, for reasons that are a little bit, remain a little bit obscure a- acting on their side at the very beginning of the administration.

There have been articles documented by The New York Times and The New Yorker magazine about how the Tates had a lot of fans in the Trump administration. Paul Ingrassia, now the acting general counsel of the General Services Administration, was a former lawyer for Andrew Tate, and I believe in a, in a defamation suit. We, we had Alina Habba in a, in a, in a podcast with Benny Johnson and Andrew Tate saying, "I got your back over here. I'm a big fan." And reportedly, Donald Trump Jr. was a fan of his and had said nice things about him. Barron Trump, though not having said anything in public, was, according to The New York Times close to Andrew Tate and, and had interaction with, with a, a very close aide to Andrew Tate.

And then when the Tates were arrested by Romania and were pending trial on, on sex trafficking and sexual assault charges, reportedly Rick Grenell, who was at the time some I think both running the Kennedy Center and also having some roving diplomatic role, helped put pressure on the Romanian government to get him out. This was the very, very beginning of the Trump administration, and he was even, he had not been allowed to, to leave Romania while those charges were pending. And the Romanian government trying to get on, apparent- reportedly trying to get on good terms with the Trump administration set them free. And I think they, they, I think they may have briefly come to the U.S. They spent a lot of time abroad continuously, k- e-even though he had, they were allowed to come here.

And interestingly, got a lot of con- some conservative criticism at the time. Ron DeSantis, governor of Florida, said that they're not welcome here. The Florida attorney general announced an investigation. Megyn Kelly said, like, "This is, this is toxic masculinity." This is like a, you know, phrase that is often mocked on the right, but she said, "This is it. This is the real thing." And I, I find it very interesting therefore that now that the, the, we, we haven't seen the, the Trump people praising them of late, and then the U.S. Marshals go in and arrest them and put them in extradition proceedings.

And now, the U.S. Marshals are part of the Department of Justice. Todd Blanche is, politically savvy. He, I'm fairly sure that this was all kind of pre-cooked in the sense that Blanche probably was well aware this would happen and had a good sense that he would not encounter any resistance from the upper echelons of the, the administration from I don't know whether this was connected to the embarrassing Epstein saga. They wanted to be kind of on record as doing the right thing in a high-profile sexual assault case.

But for whatever reason, it appears that the Department of Justice is doing the right thing in this case, and we talk a lot about Department of Justice politicization. So I think it's noteworthy when we catch this Department of Justice not being politicized in an area and involving a defendant who, who, with whom they have been politicized in the past.

Anna Bower: Roger, because I don't know what you guys covered while I was reading The New York Times filing, but I think that the next thing on the list may be the Alien Terrorist Removal Court convening for the first time.

Roger Parloff: That's right.

Anna Bower: Is, is that right? And, and what happened there? What is the Alien Terrorist Removal Court? Yeah. And why did it convene for the first time?

Roger Parloff: Yeah. And I should say that everything I know about this, and everything almost anyone knows about this is thanks to Seamus Hughes, who broke the story. He runs a Substack, I think called Court Watch. And also Steve Vladeck did sort of a, a long piece on his Substack about the court.

It was created in 1996 and hasn't been used until July 15th. We got, or Seamus got saw this f- piece of paper. It's a highly sec- secretive thing. It was mo- I mean, it was modeled off the FISA court. And it's supposed to be for removals that involve, that implicate sensitive national defense information, u- so usually classified information. And so most of the filings are gonna be secret. And but we did see this evidence that one had been filed because a, a jud- the judge, one of the five judges on the court asked for more information.  He, she had received an application, and she, she felt that there wasn't enough information. She wanted to know more which is a good sign, frankly.

So what this is i- i- the, the a- attorney general submits an application under seal, and a single judge can then i- i- it's, they're seeking removal. And the single judge can decide whether the person is a alien terrorist based on that information. And then if he is going to order removal the defendant or, or the noncitizen does get a supposed to get a public hearing, and that would occur somewhere in the court at Prettyman you know, the U.S. District Court in D.C.

And but a public hearing based on sort of, he, he's supposed to be provided a summary of the case against him but the, he doesn't necessarily get the classified information. Now if he's… And then whoever wins or loses, it's appealable to the D.C. Circuit. The s- the, the, the, the scary thing about it is that, The person could be removed without ever seeing really the accusations against him. And may-

Anna Bower: And is that because the information may, may all be classified?

Roger Parloff: Yeah.

Anna Bower: Yeah. And, and would the j- and the judge, But the judges-

Roger Parloff: They would see.

Anna Bower: Would see that information. Yeah. Okay.

Roger Parloff: That's right. And so it's a, a, so it has sort of star chamber quality. If if you are a, a LPR, a, a legal permanent resident, you get more due process, and there's a right to a- an appointed counsel who is cleared. And so y- you could get, your cleared counsel would see the information even though you wouldn't. So there's a, a lot more there there's, there's more protection.

The, uh I, I mean, compared to what's happening it's, it's a lot better than, for instance, what Trump wanted to do in the Alien Enemies Act case when, what, what he did do, he got, he got 137 people with no due process at all in, out of the country and into a torture chamber or a prison with that allegedly practices torture. A- and then and so on.

So, this is a lot better and, and, and even the normal removal proceedings are now in front of immigration judges who are under tremendous pressure. They aren't Article Three judges. They'll be fired if they don't rule a certain way. They can be overruled by the attorney general. It's in the statute. So here you get Article Three judges. So, there's a lot that's less scary than what's happening in, in my humble opinion.

Anna Bower: Yeah. I, I actually am curious, though, like, that raises the question of kind of why, the why of it all. I guess this doesn't sound to me, like, more administratively efficient which I think is the reason, you know, the Trump administration-

Roger Parloff: Yeah

Anna Bower: Wanted to do these other kind of horrible things because they thought, "Oh, we can, you know, find this way to, like, get as many people out as, as we can without due process." That seemed to be the appeal to the administration of the thing, of, you know, the o- o- other methods that you m- mentioned.

Roger Parloff: Yeah.

Anna Bower: So here, like, what, what is the appeal to the administration? Do we know?

Roger Parloff: I don't think we do know. I don- I, I know I don't know. It, it is very puzzling. I, I assume that for some reason they did feel they wanted to use classified information and didn't wanna, and the best way to do that was here.

I remember during the JGG case, people were referencing the fact that this court had been created and mainly the defense lawyers, I mean, mainly the ACLU, saying, “Why, you know, there is a court for terrorists it would be strange if you could just circumvent that and send 137 people just on Rubio just on the basis of Mar- Marco Rubio saying, ‘Trust me they're terrorists.’”

So there's, there's another odd thing maybe not odd just, there, there's five judges. They all happen to be, they're appointed by the chief justice. And I'm not suggesting any funny business here. They all four of them happen to be George W. Bush appointees, and one is a Trump appointee. I'm, I, I imagine that's because they're very experienced. And I, I would say even the Trump appointee is Karen Immergut, who is one of my favorite people at this point. She was the judge in the Portland National Guard case, who ruled against Trump. So I, I don't think there's any but there's just a, an oddity. All of them are, as I think I mentioned, they happen to be on the FISA court also, although they don't need to be.

Anna Bower: And so moving forward, I mean, you, you mentioned that there's kind of not many ways to track what's going on, on, on this court. Is that right?

Roger Parloff: That is right. Seamus says that he's talked to them. They're, they're setting up some sort of public, I mean semi-public sy- filing system so that we can at least know that things are being filed. There has been a supplemental petition filed in that one case, although we can't see it. So, yeah, they're still sort of setting it up. So that's all a work in progress, and Seamus has been finding this out by just, I guess, calling court clerks and interviewing them.

Anna Bower: All right. Interesting. Well, we will keep our eyes on the Alien Terrorist Removal Court, which I frankly did not really know existed until this week. Meanwhile in courts that we have heard of, the, the Second Circuit has overturned a Vermont district court decision that is related to a case that, that we've covered. And so, Roger, why don't you tell us about that case?

Roger Parloff: Yeah. And in fact, you know what I'll probably do 'cause it's the same issue is, there were two rulings. There was the Second Circuit ruled one day in Mohsen Mahdawi, and the next day the Fourth Circuit ruled in Badar Khan Suri's case. These are, of course, two of the first f-five people that were targeted in this campaign to to to deport pro-Palestinian protesters and including Öztürk and Khalil and so on, and, and Yunseo Chung.

And earlier in the, maybe in, I think in May, a panel of the Second Circuit ruled in favor of Mohsen. They, they all brought habeases, and the question was, were they, a number of questions, but a key question was, were they barred by jurisdiction-stripping statutes that say, "No, you can't go into district court. You need to go into an immigration court." And if you need to go into an immigration court that's it's not even clear that an immigration judge can rule on the constitutional questions they were raising, which were mainly First Amendment retribution, First Amendment violations.

They were being punished for their for First Amendment protected speech and also Fifth Amendment issues. They were being deported on this statute that pro- that on its face allows Marco Rubio to say, "Your, your presence in the country is i-i-imperiling my foreign policy, and, and so we're deporting you for that." And that, remember, Farbiarz in the Khalil case said that was unc- vague, void for vagueness.

And so these are not the sorts of questions immigration judges typically are, are allow. And, and then you would have an appeal to the BIA, the Bureau of Immigration Appeals, which is also just an administrative court. And then finally, at the end of that, you would theoretically have an appeal to a court of appeals re- with Article Three judges who could hear that. But there wouldn't be much of a record to, to, you wo- and so the, the court of appeals judge would have to recreate the record.

And so since all of these people are initially in custody, that's why they're bringing a habeas case, they would be rotting in a detention center for months and months if they went through immigration court before they could get even to the Article Three court, who would be qualified to entertain the constitutional question they're, they're, they're, they're raising.

So, i- it's, they, they call the, the ma- the, the strongest argument for hearing these cases in a, in a, in a di- district court, in a habeas case, is the now or never argument. If you're saying, "I'm being detained against my First A- Amendment rights and Fifth Amendment rights," and you have to be detained for six months before you can get it heard that's defeating the whole purpose of the claim.

And, and so, the Second Circuit had initially, in the im- in the, I mean, the, the district judge accepted that and, and released all of these people at various district courts. And initially, the Second Circuit agreed with that reasoning, but it was on a sort of, emerg- it, they did not, they did not issue a stay of the lower court ruling. So that's not a, a fully briefed, you know, thing.

So, so here, the Second Circuit with a different panel reverses the first, well, th-they don't I don't, they, it's not a reversal. But the with a full briefing, they say, "No, you know what? We don't have jurisdiction." And they follow the ruling of the Third Circuit in Khalil's case a few months ago or a month ago. And the Fourth Circuit the same week, comes out the other way, and I think 2-1.

And of course, the, the upset- the di- disillusioning thing is that all of these cases, unless I'm maybe off by one or something, all, basically all of these cases are just complete party line. And so now we have a… We have a circuit split and and it, it, it, it's looking very bleak, I would say, for the petitioners because this is not like with the mandatory detention issue, it's almost only Trump judges that ever rule in favor of it, Trump appointees, and even most, many of them don't. Here you have a lot of Reagan, George, George W. Bush Republicans that are also ruling against, that are ruling for Trump's perspective. So, I think it's quite, a- and these are important cases 'cause like I said, these people are gonna be deprived of their habeas corpus right.

And if I could just add one additional thing. I did a podcast that or that was published this morning with Maggie Haberman and Jonathan Swan, the authors of “Regime Change,” and one of the interesting things they point out is that, you know, the, the, the Trump administration really considered just suspending habeas corpus. They considered that early in the administration. They co- there was a memo written by Will Scharf about whether to do that, and Will Scharf is, is the staff secretary. It's an important position.

And it came after the Supreme Court ruled in JGG and said that, you know, even non-citizens have a right to individual hearings before you can throw them out. And s- and, and, and then he considered suspending habeas altogether, at least for non-citizens. I don't know. I haven't seen the memo. And. and then Sharf basic- he doesn't say “don't do it,” but he comes pretty close. He says that's a, that's a big step. And they don't do it. And then it's July when they come up with this mandatory detention policy that reverses 29 years of interpretation.

And, and I would say that, you know, these inter- they're nibbling away at habeas corpus in various different ways. Now these, in fairness, these jurisdictions stripping statutes exist, and they aren't, it's not a trivial argument. It's not as bad an argument as the mandatory detention. But what brings all these cases together is that for non-citizens, habeas corpus is in, is imperiled.

Anna Bower: Well, yeah, and, and Roger, it sounds like you're saying that we are, are certainly headed to the Supreme Court probably in a lot of these cases. There's a circuit split now.

Roger Parloff: Yeah. I think.

Anna Bower: But, but I c- I recall that at least in the Öztürk case, there was a settlement agreement. Do you see any of these cases now that there are, seem to be a lot of unfavorable decisions, although, of course, as you've mentioned, there does seem to be a circuit split. Do you, do you see the potential that any of these litigants could potentially reach a settlement similar to the Öztürk case, or are we for sure full steam ahead to the Supreme Court?

Roger Parloff: Unfortunately, I, I don't. I think what happened with Öztürk, Öztürkand Mo- Modawi were consolidated in that Second Circuit, early Second Circuit case where both won, and both had been released, and I think she finished her graduate term and voluntarily went back to Turkey. So I think that what, that's what takes-

Anna Bower: Oh, maybe I'm misremembering then. For some reason I thought that there was some type of agreement. My, my bad.

Roger Parloff: You, you, you, I think there was an agreement.

Anna Bower: Okay.

Roger Parloff: But I think, I think you're right, and maybe I'm getting stuff wrong also. I'm, I'm remembering, but, but I think she was, she was, it seemed like she had finished her schooling here and, and opted out. I, I don't think I, I mean, it could be that the others will get frightened of this and, and self-deport. You, you could be right. That-

Anna Bower: Yeah.

Roger Parloff: I guess that could happen. But Khalil is certainly fighting and fighting and fighting. I, I suspect K- Khalil will at least try to go as high as-

Anna Bower: Yeah.

Roger Parloff: He can. But he may just lose.

Anna Bower: Well, meanwhile speaking of mandatory detention issues in the Sosnova, I, I hope that I'm not butchering the pronunciation, so I apologize if I am, but Sosnova Rodriguez case, which I believe is one of the mandatory detention cases the, the Fifth Circuit sitting en banc apparently issued a presidential stay, which Roger, help me figure this out because-

Roger Parloff: Yeah.

Anna Bower: I was not aware that stay decisions are formally precedential, so w- or binding precedent. So what, what is this, what does that mean?

Roger Parloff: Yeah. It's a really, a funny thing. This is the case it's, so three, the, it's actually three cases consolidated, and the, the non-citizens are in the Fifth Circuit. And so the Fifth Circuit has decided in favor of Trump's mandatory detention policy, and then a panel of the Fifth Circuit said, "Okay, fine, you know, we're bound by that. The, this, it's mandatory, but there's still due process.” And, and they said that after 90 days a 2-1 panel said, no yeah, a 2-1 panel, after 90 days, you need to give him a bond hearing because it's a violation of due process.

So this significantly undercuts this whole mandatory detention interpretation that the Fifth Circuit had accepted. And so in, you know, I think eight days later, on its own motion the Fi- full Fifth Circuit en banc takes the case, vacates the panel decision. But then that same day they vacate, the government asks for a stay of the lower court rulings. Now, all three of those non-citizens have been released. So apparently they are asking for a stay so that they can go out and nab these people and put them back in, in jail. I, I, I assume that's what that means.

But, and then there's this, this wrinkle, and w- you know, one thing we've all been struggling with is the Federal Rule of Civil Procedure 5.2(c), which has equivalence in the appellate court and even at the Supreme Court, which says that basically immigration habeas ca- cases aren't on PACER or like, you know, only the rulings but the filings are not. And, and so when, when the government submitted this motion, and it said “motion for stay,” if you read it, it said motion, in, in, in the text, it said, "We're asking for a precedential stay." And, and, and then and so-

Anna Bower: I didn't know that was a thing you could ask for.

Roger Parloff: Y- yeah. Nobody did. And, and then the ruling comes out, and it's just one sentence. I mean, you know, you know, there's no reasoning. And it says, "Motion for stay granted." It doesn't say, "Motion for precedential stay granted." And, and then Brett Shumate, who is the head of the civil division, the, I, I think his title is assistant attorney general. He, he puts out on X, quote, "The Full Fifth Circuit has issued an extraordinary precedential order making clear that illegal aliens do not have a constitutional right to roam free in the United States during their removal proceedings."

I, I, I think meaning the whole Fifth Circuit is now bound and cannot, by this stay, even though it, it, it, there's nothing in the order that says that. And nobody knows if he's right. Certainly it's a strong, it's a strong precedent that they would go beyond simply vacating the Fifth Circuit panel ruling, and they would stay these, these release orders. But yeah, it's a really strange thing, and it, and it, it's in the same category of, you can see how habeas is, is being nibbled away at for non-citizens.

Anna Bower: Yeah, and I'll, and I will just add that it, it seems kinda bad if, like, all of the Fifth Circuit doesn't know whether or not it has to follow-

Roger Parloff: You know, I-

Anna Bower: this.

Roger Parloff: Yeah. And I saw this Brett Shumate thing, and I thought, “What is that about?” And then I saw people that are much more knowledgeable than me in immigration law saying, "What is this about?" And, and it's partly, you know, that we've never seen it before. It's partly just f- 5.2(c). You know, none of us had even read the fine print in this motion, and all we get to see…

You know, it's so strange because, you know, we now have two cert petitions in the mandatory detention case, and if I'm correct, I mean, neither is posted on the Supreme Court site because of this rule, even though, this is pure law at this point. It's not like, you know, private alien numbers or SS, or Social Security numbers or something is… And and if you call the Supreme Court and say, "Can you send me that?" They'll email you the digital version, and we're free to post those. It's just it, it's the weirdest thing right, I think John Hawkinson, if he's here, has, I know he has grappled with this. He has called judges and tried to get things released. But it's a, it's a, it's a, it's a strange strange situation right now.

Anna Bower: Very strange. Well, Roger, we're gonna move away from the world of immigration for the time being and go back to the world of First Amendment and the media where we started this program today. 'Cause it's been a, a week of happenings with First Amendment issues.

And the one that I wanna ask you about is this district court in Nor- in the Northern District of California granting a TRO in the state's challenge to the Paramount Skydance-Warner Brothers merger, and it sounds like there's gonna be a PI hearing coming up. So, what happened with the TRO, and what do you expect from this PI hearing that's upcoming?

Roger Parloff: Yeah. So I think I, on July 20^th, which might have been Friday, I'm not sure, no, no, it was earlier this week, a, a TRO was granted by Judge Araceli Martínez-Olguín in the Northern District. And you know, I call this o- or we've been calling this, we think of this as sort of a First Amendment case 'cause CNN it, it, we're wondering if C- what, what, what happened to CBS will happen to CNN.

And, but the, the, the attorneys are trying this as, so far as I know af- the papers I've seen as a pure conventional antitrust case about, you know, various markets, the market in wide release di- movie distribution and then other markets, the, the, the cable content market, and just doing the, the usual. And so that was the basis of the ruling here.

The TRO plaintiffs present compelling evidence that the combined firm resulting from the transaction will possess substantial market share in the wide release theatrical distribution market anticipating about 27% market share. He on- sh- she only had to find one market in which that was so in order to, at least, justify the TRO, and then the preliminary injunction motion will be more fully briefed.

And at the moment she's extended the TRO until, I think until August 17th, which is the maximum she can. And she's hoping the, that she hasn't yet set a date for the PI hearing. She's hoping the parties will agree on, on something that will, won't require a hearing before that expires. If they can agree to extend that voluntarily they can have more time to brief it.

Anna Bower: And do we expect, you know, witnesses w- at the PI hearing? What kind of evidence do you think-

Roger Parloff: It's a, it, it's a good question. Usually these are swearing matches between economists and certainly we've, we've had a lot of declarations, and I think that's what we would see. We've, that's what we typically would see un- unless th- they, they decide to do that by declaration too. But I think that's, I think that's right.

Anna Bower: All right. Well, we will, anything else we need to know before we move on about the-

Roger Parloff: No, I don't think so

Anna Bower: No? All right. Well, let's move to happenings related to January 6th. Roger, I'm gonna come to you because there were some happenings in the case before the civil suit before Judge Mehta in D.C. regarding Jan- January 6th. He has denied a motion to reconsider the exclusion of evidence related to a key tweet from Trump that happened on January 6th. What's all that about? Remind us the context and, and what did you make of this decision?

Roger Parloff: Yeah, there's several, I think maybe seven, cases that are suing Trump, and in some cases others, over January 6th. A lot of them are being brought by police officers who were injured. Some are being blo- brought by congressman. And he ,J-Judge Mehta for the most part, had ruled in favor of the plaintiffs. He, he, you know, he had to do this analysis of which are the official acts and which aren't, and he found that a great deal of the case was viable. A great deal of the case were official, were unofficial acts, and they could go ahead and sue. Remember, he's already also held that The Ellipse speech could have been incitement to riot.

So, a lot of rulings in the plaintiff's “failor”- favor, but one striking one a-against the plaintiffs involved this sort of crucial tweet that Trump issued at 2:24 PM on January 6th. And if you remember, you know, the, the crowd breaks through the, the barriers around 12:50, the outer barriers. Pezzola breaks the window near the Senate wing door at 2:13 PM. And then at 2:24 PM, with rioters in the building, Trump sends out a, a, a tw- tweet that says, "Mike Pence didn't have the courage," and, and so on and so forth. And it really galvanized the, the, the crowd who are hanging on his every word, the, the, the, the rioters.

And so this was a really important piece of evidence because, you know, with, with The Ellipse speech, there will always be this claim, "Well, how did he know that it would lead to a riot?" But now you've got something, the riot is underway, you know, and it, it, it, it, they're inside the building, and he's pouring gasoline on the fire. And, and so Judge Mehta, who is a great judge, I, he handled the Oath Keeper seditious conspiracy cases, so I was in his courtroom for, I don't know, 21 days or whatever that was. And, but he's trying to manipulate these strange rules he's been handed down, and I... Here's his reasoning.

He says, "Plaintiffs acknowledge that President Trump was told at 1:21 PM, minutes after he returned to the White House from The Ellipse, that rioters had started to overrun the Capitol..." Dot, dot, dot. I'm leaving out references to exhibits, “He then sat in the White House dining room to watch the events unfold…” dot, dot, dot, “A moment of crisis was now before the President of the United States. A coordinate branch of the federal government was under attack. It fell to him to decide how the executive branch would respond. He could have used persuasion or force or both to put down the riot, but he chose instead to remain idle and eventually post the 2:24 PM tweet. The tweet arguably poured gasoline on the fire, but that President Trump, in plaintiff's view, exacerbated the crisis is no less an official act than if he had exerci-exercised the powers of the presidency to quell the riot.”

Now, I, I don't follow that one. I… He's I, I, I he's a great judge. I'd happily go before him in, in any case involving my personal problems, but I just don't get that one. So, that's, but that, that, that's the ruling. He, so he, he denied the motion to reconsider.

Anna Bower: And there was no reference to footnote three of the immunity decision

Roger Parloff: No. No, we have not had. No.

Anna Bower: The, so Roger, my question is, you know, w- how, how do, what does this mean for the, the fact that this particular tweet is excluded, how do you think that this will impact the case as a whole?

Roger Parloff: Well, you know, I think that I will probably be dead and gone by the time this case gets to trial because, but hopefully you will cover it. And at that point, I think I, I think it's…. Well, first of all, it, it, it, the Trump has appealed all of his other rulings, or, you know, many of his other rulings. So that's at the D.C. Circuit. The case is stayed because these are about immunity, is he how much is he immune for? So everything has to stop. And so meanwhile, the plaintiffs will will appeal this one. So I'm, I'm optimistic that the D.C. Circuit will overturn this this aspect of his ruling.

If it, if it doesn't, I, I think it's a big it's a big loss because of what I said. You know, the, this makes it, 'cause with the Ellipse speech, there's always that fuzziness about did he know? You know, he said “peacefully and patriotically,” I mean. And so, but the, here, you know, is the smoking gun, and I, I think it's a big piece of evidence

Anna Bower: All right. Well, we'll see what happens. There's two issues. One, potentially wrapping up Peter Navarro, but then, two, there, it was a ruling this week that is interesting in which an Eastern District of Virginia judge overturned the firing of the FEMA CFO. So, your pick give it a go in terms of which one of those you think is more worthwhile to-

Eric Columbus Okay.

Anna Bower: To try talking about.

Eric Columbus: And apologies to our listeners who for the second week in a row have had to put up with my audio, I… Issues. Peter Navarro, and I, I, I say his name kind of like waiting for, like, lightning to, to strike or for the horses to bolt from the stables like in the, in the movie “Young Frankenstein,” is a trade representative in the first and now in the second Trump administrations who was subpoenaed by the January 6th committee in, because he wrote in somewhere, I think in a book that he published, that he had come up with some scheme to help sway the election for Donald Trump in terms of the, how the votes were being counted. And he called it, quote, "The Green Bay Sweep."

And Navarro is someone who talks big. It's not entirely clear whether he was actually i- involved in this or just wanted to kind of impress Donald Trump by saying that he was. But at any rate, this, this caught the interest of the January 6th committee, and they subpoenaed him.

In the interest of full disclosure, I should note that I used to, I represented the January 6th committee in connection with their subpoenas. I was working at the time for the general counsel of the House of Representatives, Doug Letter, and that's the office that handles litigation on behalf of the House and its committees.

And Navarro was… Chose to ignore the subpoena, as did a few others including Steve Bannon. And Bannon sued and, I'm sorry, not, not sued, Bannon and Navarro were prosecuted and, for disobeying a, for basically ignoring congressional subpoena, often referred to as “contempt of Congress.” That has not happened in a long time. They were both connected convicted and they both served a, a few months in prison.

And Bannon's suit was, Bannon's conviction was upheld by the D.C. Circuit, and now N- Navarro's conviction was as well. And in a, in a, a, a conviction, in, in an opinion that was 37 very patient pages, shall we say, in an opinion authored by Judge Millett accompanied by Judge Pillard. Is that Pill-ard? Is this, is it on the second syllable, the stress?

Roger Parloff: Pill-ard, I think.

Eric Columbus: Pill-ard? You think it's Pill-ard?

Roger Parloff: I think, I vote Pill-ard.

Eric Columbus: Pill-ard? Okay. But I don't know. I don't know, Judge Pill- Judge Pillard and Judge Childs, whose name is thankfully only one syllable long, so we don't have to determine which the stress is on. It's an, all, all appointed by, by Democratic presidents, but this case would've come out the same in a, in a way. Navarro had moved to dismiss his indictment on the ground that Trump had invoked executive privilege.

The only problem with that is, or a, a rather significant threshold problem, is that there was no evidence that Trump did so, had done so. And, and there was a, a, an evidentiary hearing on that before the district court, and the court concluded that this, in fact, had not happened, and there was no reason on appeal to, to, to suggest otherwise.

And, and furthermore, the… Even Navarro conceded that there was not any… Navarro had conceded that not everything that he had been subpoenaed about would even have been covered by executive privilege, even assuming that Trump had invoked it. So it became a rather easy case for Trump to, for the D.C. Circuit to resolve against Navarro.

Anna Bower: All right-

Roger Parloff: One of the unique things, correct me if I'm wrong, but the way I remember it, Navarro was so arrogant that he didn't hire a lawyer until after the, the Congress referred him for contempt. He was, you know, and then Bannon, Bannon had a lawyer, but it was Robert Costello you know, who was very, you know, very pugnacious. But, but, but Navarro just felt, "I don't need one. I, I know everything and I, I, I don't need to answer these." So, he sort of, his was a unique case.

Anna Bower: Well, Eric, I, I, because you're on a roll with the audio sounding clear, I do wanna try to get to the Eastern District of Virginia judge overturning the firing of the FEMA CFO. So what happened there? 'Cause I, I was under the impression that people who are bringing litigation about being fired or removed aren't having a lot of luck lately. So, so what's going on?

Eric Columbus: I may have overstated the case when I wrote that the firing was overturned in the sense, or, or maybe it, it's the, the phrase is, is ambiguous. I don't believe that, this is Judge Nachmanoff in in, in the Eastern District of Virginia, and I don't believe that he restored her to the position. But he did rule that her due process rights had been violated, and he ordered what he called a “name-clearing hearing.” And I, I, I don't quite know what that is supposed to entail.

Sh- her, she had been fired. She was the CFO of FEMA. She had been fired in connection with allegations that she had wasted or spent a whole ton of money improperly to house aliens who were in, I believe who were in deportation proceedings, or they may, may not even have been deportation proceedings, but they were, they were here, and they were being housed in hotels in New York City, which is just the easiest thing to demagogue by the Republicans. And that in fact did, they, they did in fact demagogue it.

She was fired under basically Ar- Article Two of the Constitution, or purportedly fired by the administration despite what she claimed was her protections under the Civil Service Reform Act. And there is a Supreme case called Perkins, which, which basically upheld the constitutionality of the Civil Service Reform Act. There is some question about whether Slaughter may change the, the enduring relevance of Perkins. But Judge Nachmanoff did, said it did not. And the D- Department of Justice apparently had not come in after Perk- after Slaughter and, and suggested that otherwise.

It remains to be seen whether, in fact, it does, it will change it because Humphrey's Executor and Perkins were always held up as the two examples in which the Supreme Court that had, the two strands of case law in which the Supreme Court had limited the president's removal authority. And now one of those is gone in Humphrey's Executor, so there's quite likely the possi- there's, there's certainly a possibility that Perkins will turn out the same way.

It, it also turned on, on there was question of whether or not she is an inferior officer or not. And I believe Judge Nachmanoff concluded that it didn't really matter either way whether she was or not because the Article Two did not give president the authority to just summarily fire her without her due process, giving her any due process, and without her being a, a principal officer, which all agreed she was not.

Anna Bower: All right. Well, so what, what's next in this case? Is the-

Eric Columbus: I-

Anna Bower: Has there been an appeal or?

Eric Columbus: I don't know whether the government will appeal or not. It, it may be that they're content to have a, quote, "name-clearing hearing". But he's going to s- he said he would schedule that later. So I don't, I don't really know what the extent to which the administration want to take it up.

Anna Bower: All right. Well, we will see. Meanwhile in the war on universities, the DOJ has agreed not to seek to enforce a subpoena issued to the University of Pennsylvania. Eric, what is that about?

Eric Columbus: So th- this is an interesting case where the administration is, kind of part of their war on universities and their, in, in, in part of their effort in trying to establish that there is a kind of hostile environment for Jews on, on campus, they basically tried to get out of the University of Pennsylvania a list of people affiliated with Jewish organizations, so, presumably so they could go talk to them and find out, kind of, what they were, what their experiences were.

Penn resisted this and was, in fact, apparently not prevailing in the lower courts, and it was on appeal before the Third Circuit where the administration, for reasons unknown, a- announced that they would drop the subpoena. So this is kind of a theme for the week of the administration dropping subpoenas in, in New York with regard to The New York Times and in the Eastern District of Pennsylvania with regard to the Uni- University of Pennsylvania. I'm sure they'll be back in some as they, as in New York, they'll probably be back in some other way trying to get information in ways that cause them less legal or political trouble.

Anna Bower: All right. Well, folks, I don't think that we have any questions in the queue this week. Am I correct? Oh, Roger, go ahead. Sorry.

Roger Parloff: Well, I think there's one we're supposed to ask ourself that somebody asked-

Anna Bower: Okay.

Roger Parloff: Outside. But I also wanted to ask Eric while he was in static land, I was going to ask him about that Judge Mehta's ruling c- 'cause of your experience on the January 6th committee. I mean, can you make heads or tails of his finding that that 2:24 PM tweet, “Mike Pence didn't have the courage” tweet, that that was an official act?

Eric Columbus: I, I, no, I can't. It's, I mean, I, I, I sup- I, I guess that the, the, I don't know, s- the standard is that it, there needs to be like a r- I don't know the exact words, a reasonable argument that it is a public a, a, a, an official act. Is that it? Something like that?

Roger Parloff: He was, he the distinction he was trying to make is, is this the act of an office holder or of an office seeker? And an office seeker would be non-official, and an office holder would be official. I think that was sort of…

Eric Columbus: But, but didn't he say, like, there needs to be, I, I thought he was trying to apply some standard that not that it was definitely official, but that there was a reasonable argument that it was official, something like that?

Roger Parloff: I think that's right. I think that's right. And he, he said yeah, and, and sort of the tie goes to the president…

Eric Columbus: Yeah, but exactly, the, the tie goes to the president, and that's the only, because as you say, Judge Mehta is an, is an excellent judge. I'm really baffled by it 'cause I don't see how it could be anything other than a, a campaign a statement of a campaigner of a candidate. But it's going up on interlocutory appeal, right? So-

Roger Parloff: Yeah, both, both sides are going up on interlocutory appeal.

Eric Columbus: So hopefully we'll you know, someone else will get a crack at it.

Roger Parloff: Yeah.

Anna Bower: Okay. It appears that we actually do have questions, but they are not showing up in my Q&A in Riverside. So if you have questions, please if you have a chance, put them in the chat and indicate whether you'd like me to ask it for you.

I, I do know that David has a question, and David asks, "Does anyone want to take a stab at whether Trump's latest tariff actions are legal? Seems highly pretextual, but once again, standing on rejecting a decision by the president delegated to him could be the heart."

All right. Roger, Eric, any thoughts on Trump's latest tariff actions? I, I have not, I've been focused on other cases this week, and so I personally do not have, have not had a chance to think about this.

Roger Parloff: I deferred to Scott Anderson on all of this stuff.

Anna Bower: Eric, any thoughtsYeah, I've

Eric Columbus: Yeah, I've not, I've not had a chance to look at it either, so I, unfortunately-

Anna Bower: All right. David, unfortunately, we will have to get back to you next week. We will maybe try to get a guest appearance by Scott Anderson or at least we will consult with him before we give a response because he's our tariffs expert. Our apologies for not being able to answer on the spot this week though. Yes, an IOU, David.

All right. We have another question, I believe, but it's hard to find. Okay, I think, I believe Kevin, “What are the implications of MSNOW's Michael Schnell catching Clarence, Clarence Thomas on the penultimate day of the term leaving the area of the Capitol Building where House leadership's offices are located? He had no compunction about it and said he was meeting with, [quote] ‘nobody.’”

Roger Parloff: So I-

Eric Columbus: Yeah, I-

Roger Parloff: Oh, I'm sorry. Go ahead.

Eric Columbus: No, I was gonna say, I don't have anything great to say about it. I, I do, it, this, in fact, is, is for those who may wonder if that in fact happened, it, it did. I mean, there was video of it. I mean, we don't know, you know, we can't prove where, who he was talking to or that he was going to speak to House leadership. It, it certainly seemed that way. It, for a minute, it, it made me wonder whether he was retiring and was wanting to just to kind of like give a courtesy heads-up to the Speaker of the House. But that obviously is not what happened.

And this is not the first time actually that he, there's been some talk of him having eyebrow-raising political context. During the January 6th committee's proceedings, there was, I recall there being some texts from Ginni Thomas that surfaced in which she was telling someone about her, how her husband had recently spoken with Governor DeSantis. And people kind of wonder, like, what that was about, and it, it, you know, we never, we never learned. It was not at all, there's no reason to suspect that it was relevant to the committee's investigation.

And I have have no idea what, what this was about. I mean, maybe there was some connection to court security or, and wanting to get, you know, implore the speaker to get more, more funds out the door for that. But it's interesting that it, it goes in person where you, you think you could accomplish something like that rather easily with a phone call.

Anna Bower: Yeah, I, I mean, I, I would have to know what the circumstances were. I'm not sure what the circumstances were. I will say that I think it's probably not unusual. I, although I don't know of examples off the top of my head of Supreme Court justices going to the Capitol for social visits, I think that it's not unusual for the justices to, in social settings or other, you know, have reasons to kind of communicate with members of Congress or other powerful figures, for example.

I, Right? I, I mean, am I wrong about that? I know that there's, in "Regime Change," for example Justice Roberts is on the Board of Regents of the Smithsonian, and there's a scene in which, you know, he's at this meeting where JD Vance is there and other administration officials are there. Obviously this is not that, but point is just that justices and judges often are kind of in social situations, a variety of social situations with political leaders. Am I wrong about that?

Roger Parloff: Well, I, I think that the, the Smithsonian thing is a little different 'cause that's-

Anna Bower: Yeah

Roger Parloff: In the charter, charter of the Smithsonian. Okay. The chief justice is, I think, called “chancellor” or something like that, but it's a little different. But I do think there's a ton of i- we can imagine a ton of innocuous reasons for him to have been there that I, I, I would not venture, you know, without more.

Anna Bower: Yeah, I think my point is just until we know more, I don't know that there's any reason, like-

Roger Parloff: Yeah, I agree.

Anna Bower: To think that there would be implications for ca- you know, for ca- recusal from cases and that kind of thing, yeah.

Okay. Do we have other do we have other questions? 'Cause I can't tell in the Q&A. Oh, I can't, now I can see the questions! Very strange. All right. Well, I think that's it unless someone wants to correct me otherwise.

[Outro]

This podcast is part of Lawfare's livestream series, Lawfare Live: The Trials of the Trump Administration. Subscribe to Lawfare's YouTube to receive an alert the next time we go live.

The Lawfare Podcast is produced by the Lawfare Institute. You can get ad-free versions of this and other Lawfare podcasts by becoming a Lawfare Materials supporter at our website, lawfaremedia.org/support. You'll also get access to special events and other content available only to our supporters.

This podcast is edited by Goat Rodeo, and our audio engineer this episode was Anna Hickey of Lawfare. Our theme song is from Alibi Music. As always, thank you for listening.