Lawfare Daily: The Trials of the Trump Administration, May 1

[Intro]

Benjamin Wittes: It is Friday, the first day of May, 2026. Happy May Day to those who celebrate. It is 4:00 PM Eastern Time, and you are watching Lawfare Live. I'm Benjamin Wittes, editor-in-chief of Lawfare, and I am here with Lawfare Senior Editors Anna Bower, Molly Roberts, and Roger Parloff, and Lawfare Contributing Editor, joining us from the University of Minnesota, Nick Bednar.

[Main Podcast]

He is the only member of the Lawfare editorial cinematic universe who has his own bat signal. And when we, when something happens in the world of personnel we even have a phrase, we're sending up the Nick Bednar bat signal, and that is what happened this week. And so we are it is a pleasure to have you with us, Nick.

Nick Bednar: It's great to be back.

Benjamin Wittes: All right. We're gonna do something we don't usually do. We usually break up Lawfare Live thematically. But this week, we are starting with a family. Everything in section one is about the Comey family because the trials and tribulations of the Trump administration this week do seem to involve a single family a great deal.

And Nick, get us started. It started with not Jim Comey, but Maureen Comey his daughter, former AUSA in the Southern District of New York, prosecutor of Ghislaine Maxwell and Jeffrey Epstein who won a big victory. Tell us about Maureen Comey's win in federal court this week.

Nick Bednar: Yeah. So Maureen Comey, as many listeners are probably aware, was removed from her position towards the start of the second Trump administration for quote Article II reasons and no other reason was cited.

So she filed a claim in the Southern District of New York, and the first issue in this case is whether she can even be in the Southern District of New York. So normally with these civil service cases when an individual employee is removed, they're sent to the Merit Systems Protection Board. The Merit Systems Protection Board, if you read a bunch of stuff on Lawfare that I write, you are probably aware is the now kind of formerly independent agency that reviews employment disputes between the federal employees and the federal government.

So Judge Furman issued an order basically saying Maureen Comey can remain in federal court. Her claim does not arise under the Civil Service Reform Act because the government didn't remove her pursuant to that act. It removed her pursuant to Article II of the Constitution. And so she can proceed in federal court.

She doesn't have to go back to the Merit Systems Protection COurt—Merit Systems Protection Board.

Benjamin Wittes: And broadly speaking, is that because if you say you're fired because Article II, there's no merit system to protect in that. It's like, you know, saying, “I'm firing you because I can.” And that raises the legal question, can you—

It doesn't raise the legal protection the legal question of whether the conduct alleged against the employee allows under the civil service law that employee to be fired. Is that a fair layman's summary?

Nick Bednar: Yeah. So the, like, more, slightly more complicated summary of all of this is that the Supreme Court back in the '90s issued this case called Thunder Basin, which is like one of the coolest possible names for a doctor.

Benjamin Wittes: It is a great name for a case.

Nick Bednar: Yeah. So Thunder Basin basically says if Congress creates an administrative review scheme to administer a statute, which is what the Merit Systems Protection Board is, it administers the Civil Service Reform Act, then claims arising under that statute have to proceed through that administrative review process.

But there, there's nothing to review under the Civil Service Reform Act here. She wasn't removed pursuant to it. We don't need to assess whether she was removed for cause because she wasn't. They're not asserting she was removed for cause, and there's no procedural concerns here because they clearly didn't follow the procedures of the Civil Service Reform Act.

So they basically, Judge Furman concluded that this doesn't even, like, rise under the Civil Service Reform Act. The Merit Systems Protection Board has nothing to do in this case.

Benjamin Wittes: And do you, first of all, do you think he's right? And secondly, do you think there is a reasonable probability of the higher appellate courts, particularly the Supreme Court thinking that he's right?

Nick Bednar: So, okay. So first, let me give my standard caveat with this one, which is I wrote an amicus brief in this case, and I wrote the statutory argument, and he basically followed the statutory argument to a “T.” So yes, I think he's right. So, yes. Do I think the Supreme Court or the higher courts are going to agree with it?

I think there's a strong probability, actually. The Supreme Court has been kind of walking back Thunder Basin. They have been wanting individual plaintiffs to appear more often in district court. I mean, there's a really easy way around this for the federal government, which is don't just cite Article II, right?

Remove people pursuant to the civil service laws. If the Supreme Court decides that this case falls within the Civil Service Reform Act, it's probably because the Supreme Court thinks the entirety of the Civil Service Reform Act is unconstitutional. That's a case that's gonna work its way through the federal circuit very soon.

But I think Judge Furman kind of hit it on the head with this one as far as the statutory text is concerned.

Benjamin Wittes: And to the extent the Supreme Court thinks the entire Civil Service Reform Act is unconstitutional, that's really more about Article II appointment clause purism than anything else, right?

Nick Bednar: Yeah. Yeah. And like, again, that's not a case the Merit Systems Protection Board would hear, right? Because the Merit Systems Protection Board to say that it should decide whether Article II makes, or Article II forbids Congress from protecting the Civil Service, the Merit System Protection Board would have to invalidate itself, which is just something it's clearly not equipped to do.

So, you know, it's possible that we get to the merits in this case and they decide that the President has an Article II authority to remove assistant U.S. attorneys. I'm skeptical that will happen, but we'll see.

Benjamin Wittes: And just to flesh that out for those who are skeptical of your skepticism because, you know, the Supreme Court is conservative and all that Article II is actually pretty clear that lower inferior officers can be hired and fired by people other than the president and presumably therefore Congress can create, you know, tenure protections or civil service protections for them.

The civil service has been around a long time. I'm, I would be stunned if the Supreme Court took the position that the president has the authority, inherent authority to reach down to the assistant the assistant U.S. attorney level and fire a line prosecutor because he doesn't like her dad. Is that the source of your skepticism as well or am I missing something?

Nick Bednar: No, that's right. I think the Constitution, right, has always been interpreted such that inferior officers, Congress can protect from removal, same with employees. And I can't count five votes to get rid of that, you know, line of cases. So, you know, a lot of what we're talking about with all these removal cases in the Unitary Executive Theory are really those high level—

Benjamin Wittes: Right.

Nick Bednar: appointees. There's no question the president can remove the attorney general, right? But once you start getting to the individual employees, the court has been much more squeamish about saying it's willing to extend the president's power to those individuals.

Benjamin Wittes: All right. So let's talk reciprocity here, Anna Bower.

When Jim Comey does stuff that the president doesn't like, he fires Jim's daughter, and when Maureen Comey wins a case or wins a order that the president doesn't like, they indict her father again. First of all, is there any known relationship between Judge Furman’s opinion and the decision to re-indict Jim Comey over seashells, or is that purely a coincidence in time?

Anna Bower: I think that it's purely a coincidence in time, to be honest. I think if anything, the Jim Comey indictment has more to do with the firing of Pam Bondi and Todd Blanche, you know, taking over the reigns more so than what's going on with Maureen Comey's civil case. But, you know, never say never in this administration bin, so who knows?

But it certainly does seem like the reporting that we're getting this week from various outlets was that this Jim Comey seashell indictment was kind of on the, put on the rocks for a little while during Bondi's tenure and then was you know, had a resurrection under Todd Blanche.

Benjamin Wittes: All right. So let's talk about the seashells indictment. When the incident in question happened, which correct me if I'm misremembering the details here, Jim was walking along the beach, saw some seashells arranged in the shape “8647,” took a picture of them and posted it to Instagram. There was immediate uproar suggesting that it could be interpreted as a threat so he took it down and apologized and then was interviewed by the Secret Service.

Is that the sum total of the facts as we know them?

Anna Bower: That seems to be the sum total of the facts. I mean, interestingly, you know, we, the indictment does not mention the deletion and the apology, but weirdly enough, Kash Patel during a press conference after the indictment became public did publicly state that the grand jury was presented with evidence of the deletion and the apo- and the subsequent apology.

You know, that kind of brings to mind the question of how the grand jury ultimately ended up indicting the case because you know, frankly, I'm not aware of other evidence at least on the public facts other than, you know, the post and then the deletion and the apology it seems like all of those things as a cumulative matter would in, to my mind but as someone who knows what a true threat is, of course would not certainly not lead to probable cause that a crime was committed.

But you know, I think that we may very well see, as we did in Comey's other case, some type of motion to get the grand jury minutes because it, you know, it, it seems like there's some real questions here about what the grand jury was told. So we'll see.

Benjamin Wittes: Right. And there's also a question, I think, about whether Kash Patel's purported disclosure of what was presented to the grand jury, assuming he was speaking accurately, whether that was proper.

Anna Bower: Yeah I agree. You know, there's a number of rules of, as we've talked about previously that regulate disclosures about evidence presented to a grand jury, including Rule 6E that prohibits disclo—a government attorney and then others to whom disclosures are made from revealing matters that occurred before the grand jury.

Kash Patel very explicitly said, you know, this evidence was presented before the grand jury. So, you know, both under 6E or under other, you know, norms, Justice Department norms, that's something you typically don't see. So it certainly was very surprising to hear him say that. I would not be surprised if we see Comey's team raise that public statement in a motion to get the grand jury minutes because if it's true that, you know, it all depends on if it's true whether the grand jury was presented with that information, but they certainly probably are going to be wanting to know, you know—

Benjamin Wittes: Right.

Anna Bower: what were, like, what was the grand jury presented with and did Kash Patel violate any of these rules or norms by going and stating publicly what they were told?

Benjamin Wittes: So here's my question to you. In what order do you expect what motions to dismiss to be filed? We know there will be a motion to dismiss for vindictive, selective and vindictive prosecution because one was filed the last time around.

One assumes there is a motion to dismiss based on the fact that the facts as alleged even assumed true amount to First Amendment protected speech not a true threat. And then of course, we will probably get a motion for disclosure of the grand jury transcripts antecedent to some outrageous government conduct motion.

What, first of all, do you agree with me that those three motions are all but inevitable and we should expect them within the first few weeks of the of the litigation and what else are you expecting in the aftermath of a preliminary hearing that's expected, what, on the 11th, right?

Anna Bower: Yeah. So Comey has initial appearance is scheduled. He already had an initial appearance in—

Benjamin Wittes: I mean, arraignment, sorry.

Anna Bower: Yeah. Well, I mean, it's technically on the docket, it's still listed as an initial appearance but I, you know, presumably it's going to be the arraignment and some preliminary you know, discussions of various filings.

I agree with you that I think we'll get those three types of filings you mentioned. I think there'll be a first ... I think you kind of maybe might lead with a First Amendment as a plied challenge and then, you know, go to selective or vindictive prosecution. I'm sure they already have the workings of that motion ready to go because of the motion that was made in EDA. And—

Benjamin Wittes: Most of it's gonna be verbatim the same as the last time.

Anna Bower: Yeah. It's gonna be the same except maybe with a few extra exhibits because the president has been tweeting about Comey, so—

Benjamin Wittes: And also because- Because Jack Posobiec makes such a good argument for selective prosecution, right? You have lots of cases of people wearing “8646” shirts and not getting indicted or—know that they've been arranging seashells in the shape of, right?

But like you have a better selectivity argument in this case than I think you did in Virginia.

Anna Bower: For sure. You've got that. You've got, you know, the people who sell these types of shirts on Amazon that say, you know, “8646,” “8647.” You've now even got this phenomenon that I've noticed in which—in the wake of the Comey indictment, you have all these people who are kind of in protest almost going out and posting the seashells photo or stating the “8647” in the kind of as a way of tempting fate almost.

So, you know, you have a lot of things that you can tweak in that motion regarding the selective prosecution aspect of it. You have some things to maybe add on the vindictive prosecution but ultimately—especially on the vindictive prosecution aspect of that motion, it'll be largely the same, I think.

And then the final one that you mentioned, the outrageous government conduct I think that as well, I have seen some people mention maybe a motion you know, failure to state an offense because they don't think that the indictment was sufficiently pleaded with respect to some of the First Amendment elements.

I don't know that it necessarily, though, has to be the case that you put, you know, the standard from countermen you know, in the indictment itself, that seems like you could be handled with jury instructions so long as you include the mens rea element in the, there are the statutory elements—

Benjamin Wittes: Right.

Anna Bower: Which they do here. So I'm a little bit—

Benjamin Wittes: I hope you can build that into your First Amendment,

Anna Bower: Right.

Benjamin Wittes: like to the extent, to whatever extent this you know, th- this is so ... Th- this does not meet First Amendment standards, and by the way, it also doesn't meet the standards of the you know, the pleading standards of the statute.

Anna Bower: Yeah, it can be something that kind of goes with that motion. But yeah, I mean, I and I, like I said, I think that with the outrageous government conduct motion, probably what they're going to want to do is get the grand jury minutes. So that will be litigated, I think, before any outrageous government conduct motion is made.

But yeah, I mean, do you agree with all of that, Ben? Do you think that's the order of operations here?

Benjamin Wittes: I do, yeah. I think I think we're gonna have rapid fire motions to dismiss that, again, like in the Virginia case, the question will be which one gets granted first. Fortunately, in this case, you will only have one judge.

Anna Bower: Roger, you have your hand raised.

Roger Parloff: Yeah, I was curious if anyone knows whether the counterman instruction has to be given to grand jurors or just the petit jurors.

Benjamin Wittes: I think it's a trial standard, but presumably the petit, the grand jurors should be informed as to the state of the law, right?

Because otherwise, how do they make a decision whether there's probable cause?

Roger Parloff: Yeah, you would think so, but I don't know.

Anna Bower: Yeah, that's a good question. I'll need to look into that one, but I'm, off the top of my head, I'm not sure.

Benjamin Wittes: All right. So speaking of Jim Comey, Anna, we're getting ready to indict him a third time, right?

Anna Bower: May- maybe. So there was some reporting this week after the second, the seashell ... should we call it the second indictment or the seashells indictment? I think—I think it's,

Benjamin Wittes: I think it's the seashells indictment.

Anna Bower: The shells indictment for short. The after the shells indictment, there, there was some reporting that came out this week that in addition to the resurrection of the shells case that started way back when Comey first posted that Instagram post, there also is now a renewed effort in recent weeks since Blanche took over, apparently to look at this third case that there have been some rumblings about for some time that relates in some way to Comey's providing memos that he'd written years and years back to Dan Richmond, who at his time, at the time, was working as his attorney and was also a close personal friend of Comey people might remember Richmond because he also is a presumptive witness in the first Comey case that was dismissed—

Benjamin Wittes: And he's also good friend of mine.

Anna Bower: Yes.

Benjamin Wittes: And sometime Lawfare contributors. So, not gonna pretend to be unbiased on the Dan Richmond subject.

Anna Bower: But so, so there's this news reporting this week that there's this kind of renewed effort to look at this question of the memos and potentially a transmission of classified information.

Now, if people remember, it wasn't until after the fact that a very small portion of that memo or one of the memos that Comey provided to Richmond was retroactively classified,

Benjamin Wittes: Yeah, can we—can we get, pin you down on how many words—

Anna Bower: I believe my memory was one word and it was the name of a country,

Benjamin Wittes: Correct. It was Egypt.

Anna Bower: Yeah. So tell us about, you will have a better memory of this than I do, Ben. Tell us about the circumstances of—

Benjamin Wittes: Well, again, working off of memory here there was a, you know, Jim gave some memos to Dan, one of which the substance of which was transmitted to Mike Schmidt, that's the, of the New York Times, that's the memo that involved the loyalty oath.

But there were, there was at least one other memo, there may have been more, I'm not sure I remember that. And when the, when those memos were returned to the Justice Department after Jim's firing there was a retroactive classification review of them in which I believe that in one of the memos, there was a determination that a single word should have been classified and was erroneously not classified, and it was classified at the confidential level because it involved, which is the lowest level of classification, because it involved the name of a country that we had diplomatic engagement with, and I believe it was Egypt.

And so the single word Egypt was retroactively classified in that memo. And so, you know, sort of the defense kind of writes itself here, which is it was not marked classified, it was not classified at the time it was disclosed. By the way, I believe Dan Richmond had a clearance but I'm not sure about that.

And by the way it was retroactively classified, it was a single word, nobody intentionally mishandled any classified information, and it was confidential. I don't think anybody's ever been prosecuted for mishandling confidential information. So it's a pure ... Oh, and the other thing is it was referred, I believe, by the inspector general to the Justice Department once before, and Bill Barr, who has written about this in his memoir, dismissed it as, you know, not something you're gonna bring a case over.

And that's that ... But I'm working off of memory here. I can't imagine getting a grand jury, at least not in the District of Columbia. Maybe it would be in New York because Dan lives in New York, but it's hard for me to imagine a grand jury signing off on an indictment of that.

Anna Bower: Well, and also, so two things, and then also keep in mind that presume—remember, Dan Richmond filed a 41G motion to get his stuff back, and presumably the evidence that they would have to—and he was successful in that motion, by the way, but presumably a lot of the evidence that they would have to use in building this case would be things that they previously had acquired, you know, through that search and through the thing ... Like, I'm just a little bit confused about how they think this is gonna go, because previously, those same materials were found, you know, by the court to be a violation of Dan's constitutional rights.

It, the stuff was returned to him. There were all these issues with, like, the filter protocol and, like, all this stuff. I think maybe they kept the cla—There was, like, the, there was some, to my memory, there was some, you know, question around whether some of the things were classified, that kind of thing, but, you know, it all just seems like it's kind of, from the start going to have a lot of the same issues that they had with the first indictment that was had different factual circumstances, but the same kind of universe of of things. Roger.

Benjamin Wittes: You're muted.

Roger Parloff: Yeah. I correct me if I'm wrong, Anna. I think that he won the 41G, but I think a complete copy was kept of everything—

Anna Bower: Under seal, I believe though, right?

Roger Parloff: Under seal, yeah. And then they would have to, like, make a new search warrant and they could try to get access.

Anna Bower: Yeah. And that brings me to—And that's in EDVA and that brings me to the second thing I was going to respond to you, Ben, that I just remembered, it, which is where this is taking place. The reporting this week was that, you know, it might be an EDVA, but they're looking at, you know, doing something maybe where Dan Richmond lives, which is the Southern District of New York because he's a New York resident.

So it, you know, it—They haven't been very successful in trying to, since the first indictment and trying to restart efforts to prosecute Comey, but, like, maybe they think, “Oh, if we get a fresh start in the Southern District of New York, we could make something happen here.”

Benjamin Wittes: Right, because New York grand juries are gonna be super lenient about, like, single word retroactive classifications at the confidential level for eight-year-old matters.

Anna Bower: So, okay, here is what I will say is that I think a New York grand jury's probably gonna have fewer lawyers or government workers on it than an EDVA in Alexandria grand jury. So maybe there'll be, maybe the idea is that they'll be maybe the idea ... Look, I'm just speculating here irresponsibly, but maybe the idea is that, you know, we could get away with things before a Southern District of New York grand jury that we couldn't right now in Alexandria given, you know, the history of the case and the, you know, occupation related to the National Guard activity and that kind of stuff.

So I don't know. I'm just spitballing, but maybe that's the idea.

Benjamin Wittes: All right. Nick. Who is Peter Marocco? What is USADF and how did he come to be found to be unlawfully serving as his, its president?

Nick Bednar: Yeah. So Peter Marocco, you can kind of think as, of, as the Trump administration's hatchet man for all these foreign aid agencies.

So he was initially installed as acting deputy director of USAID. After President Trump issued this executive order, basically instructing all of these agencies to shut down. So the one at issue most recently in the case I'm gonna talk about is the African Development Foundation. So the foundation is this entity established by Congress to provide grants to African businesses, mostly small businesses that provide support to other businesses within Africa.

And President Trump in February 2025 fires the entirety of the African Development Board and appoints Peter Marocco as the acting chair of the foundation. And then Marocco installs himself as president of the foundation and proceeds to fire and put on administrative leave most of the people in this foundation.

Benjamin Wittes: All right. So then he did not prevail in court as to the legality of his service. Tell us about the judgment.

Nick Bednar: Yeah. So, in March Judge Leon of the U.S. District Court for D.C. granted summary judgment to the plaintiffs. The plaintiffs in this case are Rural Development Innovations Limited.

They're a small Zambia consulting firm who used to receive money from the foundation. The procedural posture in this case is kind of weird, so I'll just start at the summary judgment motion from March. But the government had initially argued that the president has an inherent Article II authority to appoint acting principal officers.

And its theory here was, look, the president has an obligation to take care that the laws are faithfully executed, and the president can't do so if there's not an acting official in place. And therefore, he shouldn't have to go through advice and consent of the Senate. He should just be able to install an acting official.

And Judge Leon correctly reads the tea leaves from the D.C. Circuit and says, “That is not gonna fly. That would eviscerate the entirety of the appointments clause. The purpose of the appointments clause is the president needs to seek approval from the Senate when it's when the president's going to appoint someone to a position.”

So then they raised this other argument that's, “Well, we have the Vacancies Act. Perhaps the president could appoint him under the Vacancies Act, but the Vacancies Act doesn't cover the foundation.” So ultimately, Judge Leon granted the plaintiff's motion for summary judgment, granted declaratory relief saying Marocco was not lawfully appointed as a board member, and therefore Marocco's actions have no force or effective law.

In addition, they enjoined Marocco from acting as a board member and ordered the defendants to restore the foundation's employees' access to the office's IT systems and financial systems.

Benjamin Wittes: And I know what our audience is wondering, which is how many exclamation marks did Judge Leon use in these opinions?

Nick Bednar: So I don't think ... I don't recall seeing any exclamation marks in the order for summary judgment. So he's very restrained there. Now, what has happened this week, however, is the department or the defendants, the government in this case, filed a motion asking to clarify the preliminary injunction because according to the government they cannot reinstate any of the employees because the only person who had authority to do so was Marocco, and he was found unlawfully appointed, therefore there is no one capable of exercising the authority of the foundation, and therefore they can't restore the status quo without the president appointing people to the foundation separately.

Judge Leon granted the motion to clarify and basically said, “Hey, you need to roll this back and you need to put the employees back in place.” And that argument got some exclamation points out of him.

Benjamin Wittes: All right. Roger, have you done the exclamation mark density analysis, which we're famous for here on Lawfare Live with Richard Leon opinions?

Roger Parloff: I'm afraid I'm not. I've been remiss. I didn't realize that this was a Judge Leon opinion.

Benjamin Wittes: I see.

Roger Parloff: So I, I have some homework to do.

Benjamin Wittes: Yeah. I think it's really important that we keep up with this issue. Molly, speaking of Judge Richard Leon, we've had a big week in White House ballroom litigation and of course it all involves national security.

And so there was a question for a while whether the White House ballroom issues really fell within Lawfare’s jurisdiction. The nature of the arguments this week have really resolved that issue. So, proving that everything does come back to national security law, how does the ballroom issue how has it situated itself back within our jurisdiction?

Molly Roberts: Yes. Thank you, Mr. President. I have been wanting to write about this and he delivered me a gift. So after last weekend's attempted shooting at the White House correspondent's dinner, President Trump got on Truth Social and he said, “This event would never have happened with the militarily top secret ballroom currently under construction at the White House. It can't be built fast enough.”

Even before that, the night before, a bunch of MAGA-oriented influencer accounts were tweeting something really similar. It seemed like the immediate reaction to this above lots of other stuff was, “This is exactly why we need the ballroom.” And that may have seemed weird—

Benjamin Wittes: And had, just to be clear, had anybody ever made the case for the ballroom before the shooting that the ballroom was important because this way the president would attend events in the ballroom rather than going to the Hilton and things could be really dangerous at the Hilton?

Molly Roberts: It's a very good question. There was no argument made certainly about the Hilton specifically, despite it having been the site of another attempted presidential assassination. There actually was in one of the earlier briefings, the mention of the idea that tents on the White House lawn aren't as secure as the ballroom would be, but this was talking about events of state, and it seems now that the argument is expanding to all events, which I think is a little ridiculous because it's not as if the president is actually going to do all events at the ballroom.

First of all, the White House Correspondence Dinner is an event run by the White House Correspondence Association, not by the White House, and it's supposed to celebrate freedom of the press. And you wouldn't think that it would be at all appropriate for it to be hosted by the White House. Second of all, because, I mean, again, there are just lots of reasons the president is going to want to do events elsewhere, and the assassination attempt that came far closer than this one did to being successful in Butler, Pennsylvania was at a rally.

I mean, the president isn't going to do his rallies at the White House ballroom. So to answer your question, sort of, but not really entirely. They had mentioned events, and it was just one mention, and it was not one of the kind of longer lines of reasoning, but it wasn't all events until this happened.

Patrick Cole: Hey there, Lawfare listeners. I'm Patrick Cole, Lawfare’s managing director, a role that Ben jokingly refers to as a Rasputin-like figure. I work mostly behind the scenes, overseeing Lawfare’s fundraising, operations, and strategy. Today, I'm stepping out from behind the scenes because while reliable nonpartisan analysis reporting and research, which Lawfare produces matters to the future of national security, democracy, and law, you matter to the future of Lawfare.

And in my role, I regularly have the privilege of hearing from listeners and financial supporters just how much they value Lawfare’s ability to break down complex national security and legal issues, making them accessible to everyone, both in terms of their clarity and the availability of lawfare's work to the public without a paywall.

But here's the thing, as a 501 nonprofit, we make our content available without a paywall because we believe that rigorous analysis and trustworthy sources ultimately engender fact-based decision-making and informed public debate on complex issues. Look, I know your time's valuable. Resources are limited and you face information overload on a daily basis, but Lawfare is steadfast and it's commitment to be a resource for anyone who cares about the most pressing issues we face.

So here's my ask. Please go to lawfaremedia.org/support. There you'll find information about how to become a paid supporter, as well as information on how your support has an impact. You can sustain lawfare by becoming a paid supporter on Substack at $10 a month or more, or making a one-time donation. No matter what you choose, every little bit adds up, and you help keep Lawfare free for everyone.

Thank you for listening, and thank you for supporting Lawfare.

Benjamin Wittes: All right. Speaking of weird punctuation exclamation marks, all capital letters, the Justice Department filed an unusual brief this week in this case that was actually kind of “out Judge Leon-ed” Judge Leon. Tell us about the Justice Department's filing.

Molly Roberts: It did have Judge Leon. There were plenty of exclamation points, but Judge Leon usually stays away from the all capital letters, which this brief did not.

So what happened here was after the president—

Benjamin Wittes: And just so that we're naming names, who signed this brief?

Molly Roberts: Oh, the brief is signed by Todd Blanche, the acting attorney general. It's signed by Trent McCotter, who is a recent hire. He's running essentially the Deputy Attorney General's office while Blanche is acting.

And by Associate Attorney General Stanley Woodward. And those are not the names that were on the previous filings in this case. I mean, why would they have been? So quite a sharp pivot. It is not signed by President Trump, however, it sounds a lot like a Trump Truth Social post in many ways. There are references to Barack Hussein Obama, there's Trump Derangement Syndrome in all caps.

Instead of just talking about standing, they talk about standing in all caps. And in this discussion of standing, the motion mentions how the plaintiffs are relying on quote unquote a woman walking her dog to try to get standing. And that is referring to a history professor who says that she uses the President's Park, which is the area, including the White House grounds, for her personal and aesthetic enjoyment, but also for her work.

But the previous briefings from the government never said a woman walking her dog, oral argument did not include a woman walking her dog. However, President Trump has used that language multiple times. So very weird filing both in who signed it in what, what's in it, not only in the language, but kind of in the argument too, because it's such a stretch and, you know, they're asking

Well, what they're asking for specifically is an indicative ruling from the judge. They're asking the judge to say, so it, the case is on appeal in the D.C. Circuit. Now they're asking Judge Leon to say, “If the D.C. Circuit sent this back to me, I'd be inclined to dissolve my injunction.” So that is what they're asking for, but the way in which they ask for it is really not like any motion, at least that I've seen from the administrations over.

Benjamin Wittes: And so what, how do you interpret this? 'Cause I think of like part of the job of the lawyers is to translate Trump administration speak, which tends to have all caps a lot of punctuation and a lot of ad hominem verbiage into law speak, which tends to refer to cases. And it's almost like they forgot to plug this into Google Translate and just gave the president's tweets to the court, but, you know, Todd Blanche is not a moron and whatever else he may be, what do you think he, they were trying to do here?

Molly Roberts: It's a good question. So, you know, there is some legal speak in this. There are portions of the motion that read like what you would expect from the motion. They're just supplemented with all this stuff from President Trump. You know, Todd Blanche said Monday afternoon that they had filed a motion that day, and my colleague Eric Columbus and I were looking for the motion, “Where on earth is the motion and where on earth is it?

And it pops up at 11:38 PM or something like that. And who knows what happened, but it's certainly possible that the president wanted to be more involved with the motion and wanted some of his language in the motion. And so what happened was they revised what would have read like a more legal filing to read this way.

I mean, I also think that so much of what we see from the Justice Department is sort of performance and as we talked about in recent weeks about the race for the nomination for attorney general, Todd Blanche is sort of in audition mode. So it's same thing with the seashells case. What is that?

It's ridiculous and yet here we are.

Benjamin Wittes: All right, guys, it is time for this week's edition of the Grand Conspiracy. And I've decided we need grand conspiracy music, so here it is.

All right. We had a an article about your friend and mine, Joe diGenova on Monday and we have a new prosecutor in the case Mr. diGenova who was once upon a time before his decline and fall into the decrepitude of conspiracy adult aging respectable U.S. attorney in Washington.

I believe he was also an independent counsel in the in a matter. Molly, Anna, tell us about Joe diGenova’s reemergence as the grand conspiracy prosecutor.

Molly Roberts: Who wants to go first? I can start. Okay. So Joe diGenova, you just gave us a bit of background on him. He was recently sent, he says, by President Trump himself, to Southern Florida as counselor to the attorney general to helm the inquiry into the supposed grand conspiracy, the deep state plot that ties together a lot of the bad things that have happened to Trump, the impeachments, the prosecutions, the 2020 election laws.

He was sent down there after the departure of an assistant U.S. attorney, Maria Medetis Long, who's a respected national security career prosecutor down there. She had not wanted to quickly bring charges against former CIA Director John Brennan for lying to Congress, and she left the case after that. And it was in the wake of that, that he was sent down there along with another guy, Chris DeLorenz, I believe his name is, who is gonna help up with the investigation too, and is a former Aileen Cannon clerk.

So those were kind of the personnel developments that led up to this. And at the same time, diGenova is working on two things. One, he is working on the discrete part of the investigation that involves the John Brennan lying to Congress charges or possible charges. And two, he's working on the broader probe.

The John Brennan part seems to have moved to D.C., and the rest of it appears to be continuing in Southern Florida, including in Fort Pierce, which is where Aileen Cannon presides. So that's what happened. That's why he's down there, but what Anna and I were looking at was this kind of long history he has of statements about not only the grand conspiracy theory itself, he's a big fan, big proponent, been spreading it all over the place, but two, the specific individuals who, some of whom have already been subpoenaed and others of whom are kind of likely targets of this investigation.

So I'll kick it over to Anna for whatever's next.

Anna Bower: Yes, and I apologize. We just had a Fulton County case filing come in, so I was trying to read that in the background, but I w- I wanna mention a few things about diGenova’s history of public statements about various people who are, you know, presumed targets of the grand conspiracy investigation, including Brennan, Comey, other folks.

One is just that, like, they are so specific in nature and so sustained over such a long period of time and they assume the guilt of people who are now being investigated by diGenova himself to the extent that it gives whoever may be a target of investigation, either, you know, just at the investigative stage through a motion to quash a subpoena or eventually if charges result through a selective or a vindictive prosecution motion, it gives them a lot of ammo to just, like, fi- use these exhibits of, like, a decade's worth of statements that diGenova has been making in which without even having done any investigating you know, he's attacking these people personally, he's assuming guilt and he's doing it in such a specific way and over the course of a decade that I think that it really goes to the question of animus now that he is the prosecutor who presumably, you know, is supposed to be doing this in a disinterested, like, “I'm gonna go where the facts lead me,” type of way.

The second thing that I will mention are three, actually facts that I think are you know, claimed facts by diGenova himself that Molly and I unearthed in reviewing these materials. DiGenova, you know, he goes on these media, does these media hits very often, including up until the day that he was sworn in as, a- as this special prosecutor or what counsel, whatever it is that, whatever name they're giving him.

And so in recent weeks, there's been some really interesting claims that he's been making and there are three points that I will make about that. One is that he claims that Bondi that the firing of Pam Bondi and her exit was in some way, at least in part, related to Trump's frustration over the slow pace of this Miami grand conspiracy case.

The second is that he claims that he was previously supposed to be appointed to take over this case, you know, a few months back, but Pam Bondi, you know, put her foot down and said, “I don't want him taking over this case.” And then the third thing is that he said that, again, in this interview that was the day that he was sworn in, he says that Trump called him up and personally asked him to take over what he describes as the Russia hoax investigation.

And so those are three things that are, like, going to be, I think, very important in a potential motion to quash or a selective or vindictive prosecution motion. And I, and—

Benjamin Wittes: Right, because they amount to personally doing the bidding of the president at his specific request.

Molly Roberts: Yes, he just made the stalking horse argument, like in an interview the day he was sworn in.

Anna Bower: Right. It's the stalk—the, and that's exactly it, is that, like, you know, there's been in these other cases, like, a need to connect the president's animus against these people to the Justice Department's actions. I mean, it's all a little bit of a fake, it's all kind of a facade anyway, because, like, if you're someone who subscribes to the Unitary Executive Theory, like, I don't understand why we're, like, any, put that aside.

Like, the whole thing is that you need that connection and Joe diGenova on his first day on his new job just gave everyone that connection. And then two weeks before he did that, you know, he's saying Pam Bondi, the attorney general got fired in part because of the president's frustration with this case not going forward.

So it really solidifies those selective or vindictive prosecution claims that may be forthcoming. And I just think it's fascinating that this guy who the MAGA right has ... Is that the grand conspiracy music?

Benjamin Wittes: Yeah.

Anna Bower: Oh, great. This guy that the MAGA right has cheered as kind of the savior of the grand conspiracy case actually, I think, is its biggest liability.

Benjamin Wittes: All right. We will return to Grand Conspiracy watch next week. It now has its own theme by Mr. Elgar and you know, it's just, it's I think different theme, different subjects on Lawfare Live need their own music. All right Anna should we move Judge Boulee to later in the show so that you have time to review this filing on that and we will turn to one of the lesser noticed cases of abuse of the Justice Department an Anthony Fauci aide named David Morens, who now finds himself indicted.

Roger, I have not followed this matter at all. I didn't, I don't think I even knew that David Morens existed, let alone that he was under Justice Department scrutiny. So bring all of us, particularly me, up to speed, what's going on with this guy and why is he now under indictment?

Roger Parloff: Yeah, and I'm a latecomer to his story, but there are people that are just steeped in his story people that have been, you know, watching Fauci and going through all the records with a fine-tooth comb looking for an indictment.

So David Morens is 78 years old. He was a senior advisor to Fauci at the—it's the National Institute of Allergy and Infectious Diseases or NIAID at NIH. And it it's he, the, it's crimes related to trying to keep emails, to email people about federal business without triggering the with the FOIA without being exposed to transparency through the FOIA, the federal—the Freedom of Information Act and other, and also the Federal Records Act.

And so he was, ... and so, and there's a tremendous amount of evidence that he did that. So, I don't know how good a candidate this is gonna be for selective and, or vindictive prosecution. You know, if hypocrisy was a defense he'd have a good defense because there's a lot of avoidance of FOIA stuff going on in this administration, but I don't know if that's I ... And we haven't ... This just came down this week, so we don't know what his defenses really will be. It's a 29-page indictment, it's a talking indictment, and it's three counts but basically there are three characters. There's him, and there's a man that has been identified in reporting who ran named Peter Daszak, who was president of EcoHealth Alliance and there was a contract back in 2014 where NIAID gave his group some money to investigate something incredibly important, which was coronaviruses coming out of emerging from bats to, and reaching humans.

And so one of the subcontracts went to from EcoHealth to the Wuhan Institute for virology in China. And so when COVID happened, and then there were the theories about, well, was it a leak from the virology lab, or in fact, did China maybe intentionally leak it as a sort of warfare weapon?

All of these led to hundreds of FOIA requests, many from people that were not likely to write nice things no matter what the FOIA showed. And these people did try to hide their communications. And so that's the gist of it. It's conspiracy to commit a number of offenses against the U.S.

One is obstruction of justice, 18 U.S.C. 1519 that's involves destruction, alteration, and falsification of records, because apparently he did, they did try to get rid of some of the emails they've already written before switching. Another is 18 U.S.C. 2071, that's concealment removal, mutilation of paperwork.

And a third is 201(c), which is actually sort of like the gratuity statute, because there is some language, and it's hard to tell if they're joking or not, you But about the guy the ecohealth guy giving gifts to, to Morens. And in fact, he did give two, two bottles of wine at some point to Morens saying that that, you know, he, this would be the sort of a first there'd be more to come.

And again, I the bottles were the brand was called The Prisoner and it has, you know, it's a red wine from Napa Valley that has a tortured prisoner in chains on it. And I don't know if that was part of the joke or if this was a real gr- gratuity or what this was. Anyway there's five counts that there's one conspiracy count and then four substantive counts.

There's no actual count for the gratuity. That's only part of the conspiracy charge. So, that's the gist of that one. And there is some sort of small there is c- conspiracy stuff in there about trying to generate the false view that there was a consensus out in the scientific community that that that there wasn't a leak from the virology lab.

I don't know how important that is to the case. It does seem like he really felt bad for ... As, as soon as COVID happened, I'm sorry, EcoHealth lost its contract. And I'm sure the guy felt bad for EcoHealth, which was trying to do important research, and he was trying to get that contract restored without it being obvious over FOIA.

So I think that's what that one's about.

Benjamin Wittes: All right. Meanwhile the president is trying to sue the IRS and we have a federal judge, a former federal judge appointed as amicus to determine whether there's a case or controversy when the president tries to get money from the tax authorities.

What's going on?

Roger Parloff: Yeah, it's really there's not too much more than that. You remember last week we mentioned that she issued this order saying she didn't know what to do with this case and does she have a case or controversy? So, I think yesterday or no, the day before, she actually appointed she appointed six of the biggest lawyers in the United States with three law firms.

I don't know why she quite needs this many. And one of them is former judge John Gleeson from the Eastern District of New York. He was also the guy that prosecuted John Gotti if you remember that sort of thing, and convicted him. So there's two guys from Deb Avoise. Then there's a- a former solicitor general Don Verrilli of Munger Tolles, and then there's three from a very renowned New York firm, Faith Gay, Philippe Selendy, and Corey Stoughton.

So all of them are supposed to produce a memo by May 21st so that will be an interesting memo to read.

Benjamin Wittes: Yeah, it'll certainly resolve the whole issue if a bunch of prominent lawyers can agree. All right. Speaking of situations in which a bunch of prominent lawyers cannot agree the Supreme Court held oral arguments this week in the TPS matter how did it go?

Roger Parloff: Well, if I can t- toot my own horn I wrote a preview piece about it, about the case and I think it, it holds up pretty well. The the key issue, of course, was this a jurisdiction stripping clause or jurisdiction limiting clause, as the pro- migrant attorneys call it 8 U.S.C. 1254(a)(B)(5)(a).

And it did sound like I counted most likely five votes that were gonna say “You don't get past that for the APA claims.” The theory was, and it's a good theory w- it speaks of it says that determinations of Noem are not, of the secretary are not reviewable. I'm not re- repeating the whole thing about what TPS is because if you've been following, we've been talking about it.

But and the theory of that was that okay, you can't review the determinations, but you can review, did she follow the procedures that she, the statute says she's got to follow before she makes the determination. And there was, there were two Supreme Court precedents that seemed to be directly on point, one from ‘86 in the Medicare context, one, one from ‘91 in the immigration context.

So it's a, it's not a silly argument, it's a strong argument, but I do think it looks like five judges will rule against it. The silver lining is that the it does seem that I the equal protection arguments in this case, that there are constitutional arguments, especially in the, there were two cases up there, Syria TPS and TPS for Haitians, 350,000 Haitians, about 7,000 Syrians.

And especially in the Haiti case, there was a very strong case that there was racial and ethnic animus involved in the decision to terminate. And there is an overall, you know, 13 countries, TPS countries have come up for review and 13 have been terminated. And of course, they're all non-white so far and non-European.

And so, and the statements of Trump, the statements of Noem, a lot of them had strong anti-white valence. And so I think the equal protection claims will survive. They won't be easy and there will probably be a split opinion on that too, but it, there is, again, going back to 1990, ‘91 at least, a strong precedent that constitutional claims cannot be barred by this sort of jurisdiction stripping statute.

Benjamin Wittes: And what about claims from Yemenis?

Roger Parloff: Yeah. So, I think last week or the week before Anna attended a hearing, this was a TPS case for the Yemenis and we just got a ruling today from Judge Dale Ho up in Manhattan who blocked the termination for the Yemenis. And of course, you might say why doesn't he wait for the Supreme Court to rule?

But the TPS status was going to expire in three days, so he didn't really have any choice. And it's almost, you know, all of these are almost the exact same—

Benjamin Wittes: Right.

Roger Parloff: facts. There's no consultation between DHS and appropriate agencies, which the statute says is supposed to take place.

There's, like, one email back and forth you know, is it okay if we do this? Yeah, I don't see any foreign policy implications. And so, there was one detail in there I didn't know. It says that Yemeni nationals operate half of New York City's 15,000 bodegas, which I had not realized.

Benjamin Wittes: I did not know that either.

Roger Parloff: Oh, no.

Benjamin Wittes: I suspect in Yemeni Arabic, the word for small convenience store, however, is not bodega.

Roger Parloff: No, I didn't think so. But it also says that they have an employment rate in the U.S. of 94.6% but anyway that, that's what I have there.

Benjamin Wittes: All right. And we finally have a circuit split on mandatory detention.

Roger Parloff: Yeah. And actually, I mean, we sort of had a circuit split. The Seventh Circuit had one of these likely, w- what's more likely than not it was an unusual posture, but yes,

Benjamin Wittes: This was—Circuit split and a half.

Roger Parloff: Yeah. But this is the Second Circuit voted 30 a panel. It involved a Brazilian who's been here for 20—

You know, it's one of these cases that just turns your stomach. You know, it's a tw- he's been here 20 years, no criminal record. He's, you know, family, kids who are citizens, and operates a construction business. And it was José Cabranes, who is a Clinton appointee, but he's very conservative, really.

Benjamin Wittes: Yeah. Great judge.

Roger Parloff: Yeah.

Benjamin Wittes: Really, really great judge.

Roger Parloff: Joseph Bianco, who was a GW W. Bush appointee to the district court elevated by Trump and Alison Nathan, who's Obama, it's 30. Bianco writes the main opinion that he's the Trump appointee. And there is some savage language in here. Even if the government's newfound interpretation were plausible and it is not, we would nonetheless reject it based on our obligation to construe these statutes in a manner that would avoid serious constitutional questions attended to what would be the broadest mass detention without bond mandate in our nation's history for millions of non-citizens.

And then the there was some stuff that was a little tough on the judges that who of the Fifth Circuit and Eighth. I mean, it wasn't directed to them specifically, but the government's attempt to muddy these texturally clear waters defies the statute's context, structure, history, and purpose contradicts the Supreme Court's dicta in Jennings and longstanding executive branch practice.

Its interpretation raises serious constitutional questions that should be avoided. If judges could add to, and this is quoted from a Supreme Court ruling, it's a Gorsuch ruling. If judges could add to remodel update and detract from old statutory terms inspired only by extra textual sources and their own imaginations, we would risk amending statutes outside the legislative process reserved for the people's representatives.

So, and Cabranes wrote separately and it was pretty rough as well.

Benjamin Wittes: Well, Cabranes is one of the very finest circuit judges in the country and also a very funny man. All right, it is time for some golden oldies, Roger.

Roger Parloff: Oh, I we—Anna was gonna come ... We were gonna go back to Anna for—

Benjamin Wittes: Oh, yes.

Roger Parloff: Yeah.

Benjamin Wittes: We have to check in on Judge “Crème brulee”. What did he do in the Fulton County case and how did Fulton County respond?

Anna Bower: Yeah. So, Judge Boulee has, I think, as we've made clear made a number of rulings that have been favorable to the government, including quashing a subpoena issue to the FBI agent who drafted the search warrant affidavit.

Benjamin Wittes: And this is for the Tulsi Gabbard attended conspiracy-minded search of the Fulton County election waiver.

Anna Bower: Yeah. And for people who ha- maybe need a refresher, this is the case in which Fulton County is seeking the return of the ballots that were seized on January 28th from the Fulton County Election Hub.

And as we've discussed previously, one of the things that was raised in this effort to try to get the ballots back was this argument by the county that the search warrant, the criminal search warrant was just a pretext. It was all you know, really an effort to get these ballots because the Civil Rights Division under Harmeet Dhillon had previously tried to get them and that those efforts failed you know, when they went through civil litigation.

And so really what this was all about was just trying to get the ballots through other means by criminal process. That seemed to be an argument that Judge Boulee was actually interested in at the hearing that was held, you know, over a month ago now on this issue. And there's been a lot of back and forth about, like, you know, Fulton County trying to get more evidence the government not wanting to give any.

Fulton County ultimately sought a motion to compel where they had these four questions for the government. It was like, what date was the case actually referred by Kurt Olsen, who's the guy in charge of election integrity at the White House? When did the affidavit, when did Agent Evans actually draft the affidavit?

And then when did the FBI open the investigation? And then finally, were there any meetings between, like, the civil division and the criminal division about this? As kind of surprisingly considering his past rulings, Judge Boulet granted in part the motion to compel by the county in which he said that three out of those four questions did need to be answered by DOJ related to the timing and the timeline of this investigation all of which relates to that pretext argument because it was in December that the civil litigation was filed by the Civil Rights Division and there were previous efforts by Harmeet Dhillon to try to get these through letters and that kind of thing.

And so, you know, today, s- kind of surprisingly, because I was maybe expecting, like, a last-minute motion to stay or a writ of mandamus to the 11th Circuit or something to that effect, considering all the things that DOJ has done in the past, they actually went ahead and filed this. So we have some information now about the origins of the criminal investigation into the Fulton County ballots.

And Ben, do you wanna guess when Kurt Olsen ... So keep in mind, it was in December that Harmeet Dhillon’s office filed that civil litigation. Do you wanna guess when Kurt Olsen filed or formally referred, according to this filing, the did the criminal referral that is mentioned in the search warrant affidavit?

Benjamin Wittes: I have no idea.

Anna Bower: January 5th so this actually ... or no later than according to DOJ, no later than January 5th Kurt Olsen makes this referral to the FBI. So that immediately seems to weigh in favor of the county, although I will say that DOJ makes a point of saying that the motion to dismiss in the civil litigation that the county filed was not filed until a few hours after he made the criminal referral.

So they're trying to already, kind of make an argument there. Then we have other information as well that it was the next day, January 6th, that the FBI opened an assessment and then it was not until January 22nd that Agent Evans, who's the author of that search warrant affidavit and who swore it out on January 2nd, took an investigative summary and converted it into, you know, a draft affidavit form.

So Ben, what we have now learned, because as you will remember, it was January 28th that the government seized the ballots. So we now know that the FBI sees more than half a million ballots from voters in a state with, for a long-decided election. This was the 2020 election. They did that based on a no more than three-week investigation.

And so this really does seem to assist the county's argument, whether will be enough to overcome Judge Boulet's doubts about some other things. I don't know. But at a minimum I mean, it really kind of, i- is revealing in terms of the fact that the government did not do a lot of work, it seems, before it just went forward and seized the ballots from Georgia.

Roger Parloff: Well, it's not something complicated like the seashells case that you need for nine months, 10—

Anna Bower: Yeah, you know, when you've got, you need 11 months for a seashells indictment I guess it is pretty impressive that you only need three weeks for the ballots.

Benjamin Wittes: Well, priorities are priorities, you know? All right, let's revisit some golden oldies, Roger. We have an update from E. Jean Carroll. Yeah. Did anybody remember E. Jean Carroll?

Roger Parloff: Yeah, and I don't mean to joke about this because she's now like ... I think she's about 82 and the stalling in this case is really difficult for her.

But anyway, we had, the Second Circuit denied motion for rehearing in Carroll I. So this is this is—Carroll I, which is temporarily Carroll II, right? That's right. Carroll I was filed first, but tried second. So this is the one with an $83.3 million verdict. It's for defamation in June 2019 during Trump's first term.

And so it has these issues difficult issues of presidential immunity and Westfall immunity that have now been to the Second Circuit four times, and also to the Court of Appeals of D.C., not the D.C. Circuit, but the Court of Appeals. So, it was nine ... it was a pr- I'm a little confused about the count.

I think it was nine to three, basically. Two, the two dissenters were Trump appointees, and then there was a partial dissent by Debra Livingston, who is actually a George W. Bush appointee and sort of a real judge. So, that's some note. The other case, Carroll II, which was filed second and tried first, the fi- $5 million verdict for both sexual assault, the digital penetration in the Bergdorf Goodman fitting room and defamations in October 2022 after he was no longer president that one is now at the Supreme Court and, I mean, the petition for cert, and it's been relisted, I think, 10 times now, which is concerning to me, and it leads to three theories.

So the most benign theory is somebody's writing a dissent from the denial of cert, and that's why they keep doing this. Another possibility is they will eventually take it they will eventually take it. That would be surprising because it only presents ... Carroll II only presents evidentiary questions of the type that the Supreme Court would not ordinarily entertain.

And in fact, questions that I think Judge Kaplan said that it, they would've been, even if they went the other way, it would've been harmless error. Or in, in any event, you could send it back and he could still rule it was harmless error. So the, it would be very strange. But on the other hand, if you remember Masterpiece Cake Shop, that one I think was relisted about 18 times, and then they took it, and then they overturned it.

So that's a possibility. Another possibility is that they want to hold the case over the summer, and then do the two cases together, and take the two cases up together, because the one that's just got the just finished at the Second Circuit level really has sort of Supreme Court-like issues, like presidential immunity and s- and what's called Westfall immunity.

So, that's another possibility. I think you need five votes to to hold over a case, or at least that's used to be the rule. I don't know what it is.

Benjamin Wittes: All right. What is the January 6th civil suit against Trump Roger, and what has Judge Mehta ruled that is causing consternation?

Roger Parloff: Well, th- there are a number of these suits, remember, that police officers filed and that injured police officers filed including the widow of Brian Sicknick and then also Congressman filed that w- people that were there and emotionally impacted and so on. And those are the suits and f- for the most part I think a week or two weeks or three weeks ago, Judge Mehta reached the summary judgment phase and he for the most part, he ruled for the plaintiffs.

He said, “I'm not throwing these out. Most of the acts are not official acts, and this is going forward.” So Trump has already appealed those, that portion, but he did throw out a few pieces of evidence as official acts, and one of them was the most important, maybe the most important piece, single piece of evidence of all, which was the you know, the January 6th Trump tweet at 2:24 PM where he said, “Mike Pence didn't have the courage to do what should have been done to protect our country and our constitution” and so on.

That was so important because 2:24 was 11 minutes after the rioters broke in and entered the Capitol. And in fact, it was first probably announced on Fox News at 2:24. And so this was pouring gasoline on the fire. It's no longer a qui- it's not like looking at what he said at the Ellipse and wondering, “Well, did he really know what he was gonna set off?”

It's like they had gone through the outer perimeter, they were now inside the Capitol, and he is rooting them on and this did galvanize the protestors. We know it. We, you know, there's video of them reading this thing and s- and get ... and so it's a very power piece of evidence, and Judge Mehta did say, “Well, he wrote it from inside the White House.”

I I can't say whether the, it wasn't necessarily the act of a Trump, of an office-seeking person as opposed to an office holding person, and he excluded it as an official act. And so they wrote a 25-page brief just on that one tweet to try to get him to change his mind. It's a pretty important tweet.

Benjamin Wittes: All right, we are gonna go to audience questions.

Roger Parloff: Oh, there was one—

Benjamin Wittes: And our first question is from last week.

Roger Parloff: Oh, okay.

Benjamin Wittes: Last week, we had a question about the Fourth Circuit ruling in US v. Hernandez and how it might impact Judge Hannah Dugan's conviction in Wisconsin. Roger, remind us who Judge Hannah Dugan is, what her conviction is for, and none of us knew the answer to this last week, but how is it plausibly gonna be affected by the Fourth Circuit ruling in US v. Hernandez, which did what?

Roger Parloff: Yeah, this was a really good question that I certainly was unprepared for. So Dugan, Hannah Dugan was the judge that was accused of sort of helping to, or helping a an immigrant that had come before her to escape ICE. The ICE officers were waiting out in the hall and she let him out a back door and the allegation was she was trying to help them escape.

So she was charged 18 U.S.C. 1074, which is harboring a felon, but that's only a misdemeanor in this case because they weren't charged with a felony themselves. They were, I mean, the the non-citizen, he was charged with a civil immigration problem. The other charge was 1505 corruptly obstructing any pending proceeding.

That's a five-year felony. So he was acquit- she was acqu- she was acquitted on the harboring charge. So the only charge she was convicted of was this 1505. And then the question was, “Well, what was the pending proceeding? It's obstructing a pending proceeding.” And because there was no longer Under an immigration proceeding, it was just a police action.

There was already an order of removal and the ICE officers were just enforcing. And so there was some law out there saying mere police activity is not a proceeding. It has to be some sort of fact finding proceeding, you know, so quasi-judicial or judicial. And so the judge looked up, was there any prior example?

And the best example he found was this case of a guy named Dennis Zeledon Hernandez in the Eastern District of Virginia. And so, and the judge in the Eastern District of Virginia had said okay executing, I mean, a warrant an immigration warrant that suffices if you try to escape.

And and then that was appealed and the Fourth Circuit reversed and it just reversed last week. And so this was definitely the key ruling that the judge in the Dugan case relied upon in deciding that the pending proceeding language could apply to executing an ICE warrant.

And it was his only precedent on all fours. Of course, so there's now a motion to reconsider, and it is the only charge she was convicted of. So it's a good argument but of course the Wisconsin is the Seventh Circuit, so the judge is not bound by the Fourth Circuit ruling, and the Fourth Circuit ruling was two to one and so it probably will itself you know, there may be an attempt to overturn it on rehearing.

So I it doesn't spring her, but it is a big it is a big victory for her.

Benjamin Wittes: All right. Welcome to Lucy the Dog and we have one more question from the estimable Mr. Andrew Steele who asks, “Has anybody followed the case of Burnley versus United States from the District of Massachusetts filed by the mother of a fisherman killed in an operation southern spear strike?”

The government's response to the complaint was due April 13th, and they blew through that deadline without requesting an extension. Do plaintiffs have any chance to recover in cases like this or are they sunk, no pun intended, because of doctrines like immunity or non-just disability? So first of all, I think the premise of this question may be in error.

I was looking at the docket while Roger was talking and the according to an order of March 30th there was a joint motion to establish a briefing schedule and that was granted and the defendant's motion to dismiss is due by June 5th. And so I have not studied this case carefully, but I think the answer is that the defendants have another month or so in order to file their motion to dismiss and really nothing has happened on the docket since, other than the admission of a bunch of lawyers pro hac vice in Massachusetts since the case was filed.

The general answer to your question is that if the government doesn't respond to one of these cases, it can get a default judgment entered against it. And I have never seen a default judgment entered against the United States because the Justice Department is pretty assiduous about responding on time.

That actually could be a casualty of we saw a bunch of missed filings in habeas cases in Minnesota and elsewhere. So, but it's hard for me to imagine that a major piece of litigation brought by the ACLU and the Center for Constitutional Rights over a targeted killing in international waters would prompt a default.

So I with the caveat that I may have misread the docket and I'm, I will correct myself next week if I'm wrong. I think the answer to this question is that the filing is, has not in fact been due yet. Yes, Roger.

Roger Parloff: And I have seen a default against the government but it didn't last long.

Passantino, Stefan Passantino brought a FTCA case against the United States over the way he was treated by the January 6th committee, and there was a fail- this was under the previous administration, and there was a failure to respond and the ju- and the clerk, you know, enters a default.

Benjamin Wittes: Right.

Roger Parloff: And then it said, “Oh my God,” you know, and they realized and got it overturned and I mean, the default lifted and the one that had the case thrown out, it's now on appeal.

Patrick Cole: Yeah.

Benjamin Wittes: All right. We are going to leave it there. Lucy the Dog, thank you for joining us today.

Anna Bower, Roger Parloff, Molly Roberts, and of course, special guest, Nick Bednar, thank you for joining us as well. You know, you may be surprised to learn this, but this podcast is part of Lawfare's livestream series, Lawfare Live: The Trials and Tribulations of the Trump Administration. You can subscribe to Lawfare's YouTube channel to receive an alert the next time we go live.

[Outro]

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 material supporter at our website, lawfaremedia.org/support.

Folks, we are on a, like, six-week push to get new members and material supporters of Lawfare. I want you to participate in that. Become a great American. You can do that by joining the legions of people who support Lawfare. Remember that it is a crime to provide material support to terrorists. It is a virtue to provide material support to legal websites. You'll also get access to special events and other content available only to our supporters.

This podcast is edited by the good folks at Goat Rodeo. Our audio engineer, this episode was the very estimable Anna Hickey of Lawfare. Our music is, as always, from ALIBI Music.

Thanks for listening.