Lawfare Daily: The Trials of the Trump Administration, May 29

[Intro]

Benjamin Wittes: It is Friday, the 29th of May 2026. It is 4:00 PM in Washington, D.C., and you are watching Lawfare Live: The Trials and Tribulations of the Trump Administration. And folks, the trials they have been trialing, the tribulations they have been tribulating. Yes. And I am here with not one, not two, not three, but four Lawfare senior editors.

In alphabetical order, Anna Bower, Eric Columbus, Roger Parloff, and Molly Roberts. And I’m Ben Wittes, editor-in-chief of Lawfare, last in alphabetical order as usual. And folks, we got a lot to talk about this week.

[Main Podcast]

It’s been a big week for anti-weaponization litigation getting started. Last week it was all about whether anybody had standing, but this week there’s already an injunction Anna. So, or sorry, Eric how did we go from nobody has standing to Judge Brinkema has already enjoined while they brief the question of whether there should be an injunction?

Eric Columbus: Well, basically because Judge Brinkema was convinced by the plaintiffs in her case that the status quo was at risk of being altered irrevocably by if she didn’t act very quickly.

And the Todd Blanche was supposed to name people to the fund board by June 15th, and in theory, they could start giving out money very quickly. So she said, “Let’s just call a halt for the time being and brief this really quickly, have a hearing on on June 12th.” That does, this does not necessarily mean at all that she has accepted any, the theory that anyone has standing.

There are now a total of four suits.

Benjamin Wittes: And which one does Judge Brinkema have?

Eric Columbus: The one that she has involves... It’s brought by Democracy Forward, and it’s probably the strongest of the four. It has r- a grab bag of plaintiffs and theories, which I think is smart because it’s difficult to know in s- a case as unusual as this, what theory is most likely to prevail.

So they’ve got a fired January 6th prosecutor a guy who protested against ICE and was unfairly arrested and jailed and indicted, eventually acquitted and the City of New Haven, which was sued by the administration for being a sanctuary city, and they threatened to cut off funding.

Those three plaintiffs, their theory is that they were, are, were being v- victims of weaponization as well by, by the, by, by the Trump administration, and the fund, as it’s set up, does not allow, does not claims brought against a Republican administration. They’re saying that violates the First Amendment and then—

Benjamin Wittes: This is the Wittes theory of adding-

Eric Columbus: This is the Wittes theory.

It violates the First Amendment, and it violates the Equal Protection Clause.

Benjamin Wittes: Right. I do want it on the record that the first person to articulate this theory was me in a conversation with Eric Columbus on the Lawfare Podcast. I mean, am I right?

Eric Columbus: I’ll give you even more credit and say that I saw you talking about it in Slack before I saw anyone talking about it online.

Benjamin Wittes: And I thought you basically talked me out of its viability. And now Democracy Forward has is advancing it to Judge Brinkema, and so I, I don’t know where to go with that. Like, is this the, you know, the Wittes theory gets to Judge Brinkema, but the Eric Columbus rebuttal is the sort of D.C. Circuit reversal?

Eric Columbus: Time will tell. That’s why they play the game, as they say. That’s why they, that’s why they file the briefs. That’s why the judges rule.

Benjamin Wittes: All right, so what are the other, So two other plaintiffs ... what are the other cases?

Eric Columbus: Well, sorry just sticking with this case. There are two other plaintiffs in this case, which is the National Abortion Federation which claims that there’s a higher risk of violence against its members as a result of this fund being set up, which is what specifically referenced FACE Act cases, the Freedom of Access to Clinic Entrance cases, as an example of weaponization by the Biden administration, and also that claiming that abortion provider members are di- diverting time and resources to responding to ongoing threats, and that in some cases can be a basis to standing if you have the organization has to divert its resources due to government action.

The final plaintiff is the watchdog group Common Cause, and they have a grab bag of standing theories that they’re injured by various procedural violations of the f- the fund set up and its lack of transparency, including withholding of information that DOJ is required to publish about who’s getting money and that they’re also injured by the emboldening of various bad guys like January 6th defendants and other election deniers who will directly impede Common Cause’s voter protection efforts and put Common Cause’s staff and volunteers at personal risk, and that the organization will need to expend more resources to protect its staff and advance its mission.

So that’s... And those theories I think kind of encapsulate the standing theories brought by plaintiffs in other cases. And the three other cases are, one, it’s a lawsuit brought by two cops who were there on January 6th, who now say that they’re at greater risk of violence by virtue of this fund existing.

A c- another case brought by another watchdog group, this one CREW, Citizens for Responsibility and Ethics in Washington. They’re also saying that they have—they’re injured by various procedural violations in the way the fund is set up. And finally Allison Gill, who who is known by her onli- her online name, Mueller, She Wrote.

She is a podcaster and blogger and all-around writer who was a former government official in some capacity and was fired during the last Trump administration, and she is alleging that she was should’ve been allowed to sue also. And they’re on the substance, it’s also a broad grab bag of claims, which again, is probably wise way to to file a complaint here.

It’s viewpoint discrimination and e-equal protection claims, as I mentioned earlier. Also claiming that a violation of the separation of powers, that the in, in at least a couple of ways, that the Congress’ power of the purse is, was being usurped by circumventing i-i-Congress’ appropriations authority.

And secondly, by creating a new organization to disperse funds, which is something that only Congress can do by setting up this board to administer the fund. They also have various claims under the Administrative Procedure Act such as the, just the substantive unreasonability of the fund the reversal of DOJ reversing its own policies on paying out settlements to third parties not involved in legislation.

DOJ reversing its own policy but not explaining why it reversed it, which was a very interesting claim was one thing that in the article that Anna and I had written, DOJ has been under the Trump, various Trump administrations, has been cracking down on the pa- and issuing policies that, that severely restrict the payment to third parties as a means of settling litigation.

There’s also s- some Appropriations Clause concerns in their APA claim, mentioning that members of the fund are principal officers and need to be appointed by the president and confirmed by the Senate, and that also that, a claim that it violates Section Three of the 14th Amendment, which provides that-

Benjamin Wittes: Section Four, right?

Eric Columbus: I think it’s... I don’t know, you might be right.

Benjamin Wittes: I think it’s Section Four. Section Three, it pre- precludes them from holding office, and Section- Well, there you go, I guess- ... Four precludes you from paying them off.

Eric Columbus: I guess Section Three was, I s- was muscle memory in, from,

Benjamin Wittes: Yeah, exactly ... 222—That’s the Roger Parloff provision as it’s known.

Eric Columbus: Exactly. And that was something... Yes, Section Four, which is about, says that the public debts or obligations owed to insurrectionists, you know, may not be paid off, and that that’s something that I in the article that Anna and I wrote, there we had some concerns about that, was the debts did not seem, would not seem to have accrued until long after the insurrection was over.

So i- it didn’t seem by, just by the plain language of the 14th Amendment to, to work. But hey, you know, if you’re filing a lawsuit, a bunch of stuff, why not throw it in?

Benjamin Wittes: Why not throw in section whatever of the 14th Amendment

Eric Columbus: as- They also make, they also argue that it violates the statutory framework of the Judgment Fund and tw- Section 2414 of Title 28, which, which shows you how to, which authorized the payment, using the Judgment Fund to pay court settlements, and those are untested, but possibly quite strong claims.

Benjamin Wittes: All right. So, m- a bunch of federal judges have jumped in to support these plaintiffs. Who are these judges? What kind of woke lefties are they, and what do they have to say?

Eric Columbus: These judges were involved, or they filed an amicus brief earlier in the litigation. And now, and their concerns about it were about the case I think may have, i, I don’t remember what the timing was, but they may have act- they may have filed the brief before Judge Williams decided to appoint her own amici to examine whether in jurisdictional issues and whether, bec- owing to the lack of adversity or perceived lack of adversity between the parties.

And they’re back now with another amicus brief saying that the judge should reopen the case due to a fraud upon the court which is covered under Rule 60(d) of the rules of federal proce- Federal Rules of Civil Procedure. I’m a little skeptical about that. You know, it’s hard to see what the fraud upon the court was.

I mean, they are suggesting that the establishment of the, that dismissing, that filing the case and dismissing it And then hurriedly establishing this fund constituted a fraud on the court, but the court was not involved in that, at that point, and the mere filing of a suit that lacked subject matter jurisdiction wouldn’t really seem to be a fraud on the court.

So I’m a little confused. I don’t know if Anna has a different-

Anna Bower: Yeah ... thought. It’s, I mean, fraud on the court, it, my understanding of it, not that I have done a huge deep dive on the history of fraud on the court, but,

Benjamin Wittes: you know- You’re not a particular expert in defrauding courts, Anna?

Anna Bower: Yeah, no I’m not.

But y- you know, it, i- the association with it is it’s something like lying to the court. It is something like falsifying evidence that is presented in court things like that, that here like, it just doesn’t, it doesn’t seem like, like, it doesn’t seem like this rises to the level of what fraud on the court has traditionally been understood.

Although, of course, you know, they’re saying that it’s anything essentially that affects the integrity of a judicial proceeding. And I guess I’m just not quite sure that’s gonna fly. You know, there’s also the fact that, you know, Judge Williams has already stated that she had no choice but to dismiss or to close the case because under binding 11th Circuit precedent you know, the notice of dismissal at that point was self-executing.

So I guess I’m just not convinced that no matter what the argument is, that it’s going to compel her to reopen a case that she’s already decided she doesn’t have the ability to continue overseeing. But I, you know, I’d be curious, Ben or Roger, if you have thoughts on it.

Benjamin Wittes: Roger?

Roger Parloff: I agree with Anna.

I thought the f- the binding 11th Circuit decision ends it, and then her own amici were telling her basically, “You don’t have Article III jurisdiction anyway.” So I don’t see how you revive it.

Benjamin Wittes: All right. Speaking of things that it’s gonna be hard to revive, but the Justice Department is trying anyway—

Whoops. Criminal matters against E. Jean Carroll, Roger. I I gotta say, I did not see this one coming although maybe I should have given the people involved. What do we know about the alleged criminal behavior of E. Jean Carroll and the surely wholly apolitical effort by the Justice Department to hold her accountable?

Roger Parloff: Well, this is an evolving news story, and so it, there’s—it on Wednesday CNN reported three very good reporters said the DOJ had opened an inquiry into—a criminal inquiry into her. And it focused on a deposition answer she gave in October of 2022, which I’ll get into in a moment.

But and then other newspapers, including The Times and the Chicago Sun-Times seemed to confirm that, and the story was, you know, Blanche had recused himself because at one point he was involved in this case as Trump’s lawyer, and then so it was being led by others in the D- Deputy Attorney General’s office, and had been referred to the Andrew Boutros, the U.S. attorney in Chicago.

Then the next day Boutros issued a statement saying his office, and that means the Northern District of Illinois, has not opened a case into her and never has opened a case into her. But it didn’t say anything about whether DOJ had. And then the story seemed to be—it seemed to shift a little. Well, maybe the focus of it was—and the I’ll explain the s- deposition testimony had to do with whether there was litigation funding.

And she apparently or her lawyer, Robbie Kaplan, did at some point get some lit-litigation funding from Reid Hoffman, apparently through his nonprofit American Future Republic, which is based in Chicago. And so maybe it appears that Hoffman might be more of the subject than her. But the Times also, I think this morning or maybe last night said that as of Wednesday, they were being t- people were telling them people briefed on the situation said sh-she was a primary target.

So, I don’t know we don’t know exactly, but it appears now that the lawsuit is certainly the subject of some sort of criminal in-inquiry. So the sent- the sentence has been pretty well... You know, the what happened was October 14, 2022, there’s a deposition, and it’s a, it’s formally it’s in Carroll one, but it’s it’ll be used in both cases.

And it’s six months before Carroll two goes to trial, and Carroll two goes to trial before Carroll one. Okay. So, and Alina Habba is the questioner in the deposition for Trump at that stage, the lead lawyer. “Are you presently paying your counsel’s fees?” She answers, “This is a contingency case,” which is a correct answer.

“So you’re not paying expenses or anything out of pocket to date, is that correct?” She said, “I’m not sure about expenses. I have to look that up.” And then Habba says, “Is anyone else paying your legal fees, Mrs. Carroll?” And she says, “No.” So six months, s- six months go by, and a couple weeks before the trial Kaplan writes to Habba and says, “During the course of preparing for her testimony Mrs.

Carroll has recollected additional information. While Mrs. Carroll stands by the testimony that this is a case as being a contingency case, she now recalls at some point her counsel secured additional funding from a nonprofit organization to offset certain expenses and legal fees. To be clear, these issues are irrelevant to her claims.”

The next day, she also writes to Haba’s co-counsel and says it seem—it, it appears that you’re sort of going off the wall. M- Mrs. Carroll testified at her deposition she had and continues to have a contingency fee agreement. In September 2020,” so that’s two years before the deposition, “and well after she brought her case, counsel for Mrs. Carroll,” that’s Ka- Robbie Kaplan’s counsel, “secured financial support from a nonprofit.”

And and then she says, “Mrs. Carroll has never met and has never been party to any of the communications, written or oral, with anyone associated with that nonprofit or financial supporters.” So what’s happening is that Haba is saying, “Ah, I’ve discovered it all.

It—this goes to bias. It goes to motive. You’re being...” And Kaplan then d- does tell the, their team that it was R- Reid Hoffman, who’s a big Democratic supporter and so they say, “Oh, this explains everything. You know, this is all a political stunt and that’s why your, the whole thing is a hoax.”

But of course, she brought the suit a year before Robbie Kaplan secured this additional funding source. Also it didn’t really she to the extent that you wanna show bias E. Jean Carroll a- admitted that she opposed Trump politically, and I think and so did her witnesses.

So Kaplan-

Benjamin Wittes: Yeah, since when is a plaintiff supposed to be without bias?

Roger Parloff: Well-

Benjamin Wittes: I mean, a judge is supposed to be without bias. A prosecutor is supposed to be about... But normally we don’t sue people against whom we have no grievance.

Roger Parloff: Yeah I mean, I think the theory was, “Oh, she’s bringing this to try to bring down the president.”

I... You know, that’s the theory, not because she was raped or the c- the claim was digital. Well, the claim was rape and digital rape, and the jury eventually found only the digital penetration. Or they found sexual abuse, which which Kaplan said from context had to be the digital penetration.

Anyway Kaplan at the time said, “Okay, you know, in general, litigation funding is not relevant here a- and a- a, but she, he gave her some additional discovery, high- highly curtailed, I mean, contained. And and then on the first day of trial, he ruled litigation funding is not relevant here.

I allowed limited discovery. On the base of that, I have concluded that there is virtually nothing there as to credibility. And even if there were, the un- unfair substanti- prejudicial effect of going into the subject would be very substantially outweighed by ... Would substantially outweigh any probative value.

So, and that was basically appealed. It was one of many issues. It was relatively ... It was not the main issue on appeal, but the Second Circuit rejected it, too. Mrs. Carroll plausibly represented that she had forgotten about the limited outside funding counsel obtained in September 2020 when this question was posed two years later to her and the additional discovery did not indicate otherwise.

And there’s more there along that line. So this has been pretty well fleshed out and- So do

Benjamin Wittes: you think, Roger, that this, as a criminal matter against Eugene Carroll, where does it fall in the hierarchy of i- like more credible than, less credible than the SPLC case, the Kilmar Abrego Garcia case, mortgage fraud by Letitia James, and the many crimes of Jim Comey?

Like, where are we on the hierarchy of ridiculousness here?

Roger Parloff: I think we’re somewhere below the seashells case on this one. She’s 82 years old. A- ... By the way, Trump gave some depositions in this case. You wanna look for misstatements? I mean, you wanna look for a true statement. Look for a true statement in his deposit and tell me you can find one.

And talk to a prosecutor and ask him, “When’s the last time somebody was prosecuted for a false statement in a civil deposition?” I have not found somebody who knows of a case yet.

Benjamin Wittes: Well, there is that whole Monica Lewinsky matter. And Bill Clinton was ultimately not prosecuted, but,

Eric Columbus: Well-

Benjamin Wittes: But he wa- he was impeached.

Eric Columbus: He entered into a plea deal, right? No. He entered into a plea deal that involved surrendering his law license.

Benjamin Wittes: No. But it’s the- No ...

Roger Parloff: But it’s

Benjamin Wittes: —The ex-

Roger Parloff: It was a grand-

Benjamin Wittes: But that was over the grand jury stuff ...

Roger Parloff: The ... He was pros- and he was impeached only for the grand jury stuff, and I believe he was prosecuted only for the grand jury.

The- I ...

Anna Bower: Go ahead, sorry.

Roger Parloff: The, but anyway it, a civil dep- deposition it’s exceedingly rare because misstatements at civil depositions are ubiquitous, you know?

Benjamin Wittes: So y- so but you think it’s, it’s-

Roger Parloff: Also-

Benjamin Wittes: On par with Jerome Powell, but not quite at the seashells level

Roger Parloff: Y- yeah, somewhere in, in that, in—I think this might be the worst, although I hate to say the worst because they always c- you know, they always top me. But you know, this one ... Also, what was the motive?

Benjamin Wittes: Right.

Roger Parloff: I mean, it was turned over before the trial started. It was, it, she, you know, she didn’t even know who it was. Anyway.

Eric Columbus: All right.

Anna Bower: I would like to say that Cathy Latham’s statements in a civil case in Georgia during a deposition, I believe are referenced as overt acts in the Georgia Fulton County case, but I think they were not actually charged.

Benjamin Wittes: Wow, so—

Anna Bower: That’s the only one I get worried—

Benjamin Wittes: That’s a deep cut, Anna Bower.

Anna Bower: It’s a deep cut. Thanks. I really wanted to get that in there.

Benjamin Wittes: All right. It has come to my attention, people, that while we have now as a group meticulously selected grand conspiracy theme music, we have this other matter that keeps coming up that involves malevolence and that does not have theme music. And so I have taken the liberty, based on Roger’s early suggestions for the grand conspiracy theme music, of choosing theme music for what’s turning into a weekly feature, which is a new weekly feature on selective and vindictive prosecutions

Roger, what is this week’s selective and vindictive prosecution motion?

Roger Parloff: This is the SPLC, the Southern Poverty Law Center. And the... Remember, that’s in the Middle District of Alabama. It’s in front of Emily C. Marks, Judge Emily C. Marks, who is a Trump appointee. And it’s interesting. It’s vindictive only.

It’s, usually it’s vindictive and selective. It’s only vindictive. And that seems to be the most obvious... It’s interesting motion. There is a tremendous am- amount of bad statements about SPLC from Trump and Patel and Blanche and Singh and also Harmeet Dhillon. But a lot of them come after the indictment, immediately after.

But now Patel has some-

Benjamin Wittes: Yeah, that’s not so great, actually.

Roger Parloff: What?

Benjamin Wittes: That’s not so great, ‘cause you’re sort of allowed to say-

Roger Parloff: Yes ...

Benjamin Wittes: “Hey, we indicted-

Roger Parloff: Yeah ...

Benjamin Wittes: these really bad guys for X. They’re really bad guys,” blah, blah, blah. “Yeah, they’re innocent till proven guilty, but they’re really bad guys,” right?

Yeah. I mean, that’s, that... I’m not sure-

Roger Parloff: It’s not—

Benjamin Wittes: You get to... I’m not sure that’s great meat for a vindictive prosecution-

Roger Parloff: Well, the, the- ... motion ... the, we have multiple things going on. Patel does attack them beforehand, calls it a partisan smear machine. And SPLC it, you know, it, it has this annual book called h- Year, The Year in Hate, and it often highlights has highlighted sort of, Trump world heroes, including Charlie Kirk, Turning Point, Stephen Miller.

And after Charlie Kirk’s death there were Republicans, but not like, you know, Chip Roy, but not like- not like Blanche saying that the SPLC caused his death, things like that. There’s a lot of attacking of the SPLC for anti-Christian themes because it apparently had identified some radical antisemitism coming out of some people that were identifying as radical traditionalist Catholics id- ideology.

And this was picked up by the FBI and then leaked by Kyle Seraphin. And so there’s a lot of different threads but it’s not as clean and neat a case. And a lot of the false statements It’s hard to prove they’re false without going to trial first. So that’s a problem. But there was an earlier investigation.

So, there was an earlier investigation in 2019, 2020, and it was dropped. So you can sort of analogize to Abrego Garcia. But of course, the answer is, “Oh, well, of course Biden dropped it,” because Biden, you know—he’s on their side. So, it’s got a lot of different threads.

There’s irregularity about the prosecution that’s alleged. That for instance, no one seems to have reached out to them before the indictment. They didn’t, like, like no grand jury subpoenas. There were... The, it’s just they find out a couple weeks beforehand, and then they try to show them, they produce like on their own, “Here’s 15,000 pages of documents showing what we actually do with these informants,” and the indictment comes down anyway like a week later.

There’s a lot that’s odd, and I ho- I think they’re hoping for discovery and that the discovery might be embarrassing or that they might just refuse to provide it, which would again give you sort of an Abrego Garcia situation. But

Benjamin Wittes: But it’s a weaker motion than Abrego Garcia or Comey or James.

Roger Parloff: It’s complicated because it all de- it, it seems like a lot of the things they’re saying about SPLC are probably false, like that they uni- you know, funded the Unite the Right rally and it’s that they did... Trump also goes off and begins saying that the SPLC was part of how they rigged the 2020 election.

You know, the fake Unite the Right rally and so on, they were all funded by SPLC. So eventually those things sound false, but I don’t know how you prove they’re fal- they’re false at this stage.

Benjamin Wittes: Well, maybe you don’t, it’s just that they, the fact that they’re false doesn’t get contested by the other side in the course of, you know, if the other side doesn’t defend them, then you have an uncontested claim that it’s false.

Roger Parloff: And I think at, at least one false statement the day of the indictment there was this thing where Blanche went on Laura Ingraham’s show and made this-

Benjamin Wittes: And falsely stated that you know, something that he then retracted.

Roger Parloff: He semi retracted, yeah. And there’s the, and so it’s no question that one was false.

But anyway, it’s it’s an interesting motion and I think it’s enough to get discovery, and maybe that’s the key thing.

Benjamin Wittes: Well, I hope it gets discovery ‘cause I would not want to not be able to use our new vindictive and selective prosecution theme music.

Roger Parloff: I think we’ll have other opportunities.

Benjamin Wittes: Yeah. I do too. All right, Anna, the Cities Church’s case which people will recall is the FACE Act case where Don Lemon, the former CNN anchor has been indicted. We had a little wrinkle in the case this week. What happened?

Anna Bower: Yeah, I, it’s, I, you know, it’s interesting because this kind of fits in with the long-running skepticism that magistrate and judges in Minnesota seem to have about this case.

There w- were filings that were unsealed this week in which the government had sought five search warrants related to telephone accounts and, you know, the YouTube subscriber accounts of people who were indicted in the Cities Church case, including Don Lemon. Some of it seeking things that seem to be really irrelevant to what, the question of whether or not a crime was committed.

Like, with Lemon they wanted things like, you know, who was actually, the information of who was actually watching his YouTube show. Personal information about subscribers and people watching his show.

Benjamin Wittes: Have you ever watched his YouTube show, Anna?

Anna Bower: I, well, I, b- when we wrote the piece about the Cities Church case, I watched the episode in which he goes along and does the Cities Church coverage.

Benjamin Wittes: So they’re, they subpoenaed information about you, basically.

Anna Bower: Oh yeah, I gue- I guess they did, yeah. Yeah. There you go.

Benjamin Wittes: See, they got nothing on me.

Anna Bower: Yeah, we all, and Eric w- and Eric too, and LT, so, yeah, they were- Yeah, they were looking for- ...

Benjamin Wittes: It’s, it’s all an effort to spy on Lawfare.

Anna Bower: Yeah. But the magistrate who had these warrant applications before him rejected the application, said that the, initially there were, in the fir- the first time they did it, there were all kinds of defects, like, you know, things like they don’t even mention a YouTube cha- they talk about the Don Lemon show, but they don’t mention a YouTube channel in the indictment or the affidavit, and so there’s this question of, like, what is the magistrate was like, what is, y- there’s just that missing link here that it means that you don’t really have sufficient probable cause to show that you will find evidence of a crime being committed because the indictment doesn’t even mench- mention the YouTube channel.

So stuff like that, that that the magistrate points out- and they go back and try to amend it and bring it back to the magistrate, and the magistrate finds, you know, it, no, I’m still the, for four of the ones that they returned to the magistrate’s like, “No, because DOJ policies weren’t followed.

I think this is a for some of these with the journalist, I think it’s a violation of the Privacy Protection Act. And then also I think you still haven’t established probable cause.” So ultimately ag- after that second rejection, the government gives up apparently and doesn’t continue with its effort, but really remarkable stuff.

Just the first paragraph of one of the magistrate’s orders is fascinating to read because it points out all the ways that the government’s affidavit and process was was defective and really like a stark contrast to things that we’ve seen where there are other really shaky search warrant affidavits like in Fulton County that the magistrates seem to, you know, just kind of accept under a presumption of regularity apparently type of type of way.

Whereas here, these judges with, especially with the Cities Church case, just really seem to be skeptical because of the whole background of what’s happened in Minnesota and the erosion of the presumption of regularity there.

Benjamin Wittes: Right. So it’s not just in Minnesota, however. There is a problem with for the Justice Department in of all states, the rock-ribbed Republican state of Wyoming.

Molly, what did the Justice Department do in Wyoming?

Molly Roberts: Yeah. So a few weeks ago, a couple of weeks ago, a panel of three federal judges tossed nine indictments, including some for murder, after they discovered that Darin Smith, who is the Trump-appointed U.S. attorney for Wyoming, had done some sort of shocking stuff in the grand jury room.

This arose because defense attorneys submitted a complaint, which led to an investigation that turned up transcripts of what had happened in the grand jury room. So the U.S. Attorney, Darin Smith, told grand jurors that they were going to hear evidence that involved bad guys and murderers who did what you were going to hear about.

He said that the deliberations wouldn’t take long, and that in fact the last grand jury who’d sat in the courthouse returned an indictment in only three minutes. He described the cases that they were going to hear as slam dunks. He asked for a list of grand jurors. Don’t worry though, he says he didn’t do anything with it.

And he even handed out his business cards to members of the panel and suggested that they get in touch with him. So the U.S. Attorney’s office, who was charged with initially looking into this, defended the conduct and said the remarks were simply not the kind of comments that would overbear the will of the grand jury.

The judges evidently did not buy that, but neither did they dismiss the indictments with prejudice, which is what the defense attorneys wanted. And in the end, a new grand jury, untainted by this U.S. attorney, recharged the cases. As for the U.S. attorney, you’d think that the reveal of what happened here when he was only an interim U.S. attorney at the time, and when his confirmation vote was coming up, and when there had already been ample criticism of his lack of litigation experience, he has next to none.

His most recent job was as an executive at the Christian Broadcasting Network, plus criticism for his presence at the U.S. Capitol on January 6th. You’d think that you put that all together and he might have some trouble getting confirmed, but he did not. He was confirmed. It was a party line en bloc vote with 48 other nominees, so there wasn’t much debate over his merits or lack thereof.

But that was the end of that story.

Benjamin Wittes: Yeah. I mean, I gotta say, I did not anticipate that Wyoming was gonna be a hotspot of the judicial resistance to the Trump Justice Department agenda, but there we go. Teach me to have prejudices. Eric Columbus,

Roger Parloff: Oh, and can we just give the Times credit for that?

I think that came to, certainly it came to my attention through the Times, so,

Molly Roberts: Yeah, there was some reporting on it beforehand from, like, Bloomberg Law and some local publications, but as far as mainstream attention and our attention, yes, The New York Times.

Benjamin Wittes: All right. Eric, former President Joe Biden is suing to block the release of records.

Now, first of all, I wanna make sure my notes have this right. Is it President Biden, not President Trump?

Eric Columbus: Correct.

Benjamin Wittes: So it’s not just President Trump who sues everybody to stop embarrassing things from coming out about himself?

Eric Columbus: Would depend upon your definition of everybody.

Benjamin Wittes: Yeah. So what is Joe Biden suing whom to stop from coming out?

Eric Columbus: Joe Biden is suing the Department of Justice. And this involves tape audio recordings and transcripts of his conversations with his ghostwriter in at his home in 2016, 2017, when Biden was writing a book a memoir about that involves, among other things, the year which his son Beau succumbed to brain cancer, and Biden was also going through various through other various work-related things that year as vice president.

These transcripts were given were g- and recordings were given to DOJ in 2023 in connection with the investigation of Special Counsel Robert Hur looking at Biden’s hand- then by now President Biden’s handling of classified records, since there was some apparent mishandling of it when he left the office of the vice presidency in in 2017.

And in 2024, I believe, the Heritage Foundation sued to get these records. And they got some of them and a bunch more. The DOJ said “Look, we’re not gonna disclose these because they’re too private.” And I’m not sure if they, if they specified or whether it was just clear to everyone that they involved just kind of private discussions regarding the illness and death of his son.

And then the case was, as FOIA cases do, the case was kind of still going on when, And I think DOJ, I mean, I think the Heritage Foundation had sued by this point to challenge the withholdings. And DOJ was basically doing nothing for a long time as the administration changed. And then earlier this year, DOJ decided to release the that material to the Heritage Foundation.

Biden objected and filed something in the ongoing FOIA litigation, and I think because he wasn’t allowed by the judge to, to seek complete relief in that he filed a new suit here filed a new suit to try to prevent a release to the House Judiciary Committee. Now, what’s the House Judiciary Committee going, doing here?

They, file, they asked DOJ for those materials in I think earlier this month because... No, sorry, in March. Because they it sure s- Biden alleges, it sure seems to be the case, that either the Heritage Foundation, the plaintiff or DOJ basically you know, knock on Jim Jordan’s door and ask him to file this to make a request for these materials because Congress has a much greater right to materials than or rather a committee chair of Congress, has a much greater right to materials than a mere FOIA requester.

And so, and they usually can get whatever they want absent any claims of privilege as long as what they’re asking for has some l- legitimate legislative purpose. Biden is saying, “Look, there’s no legislative purpose here. They’re just doing this because they want to, you know, do a favor for The Heritage Foundation.

There’s absolutely noth- no reason for them to get these really private materials.” So th- this could be an interesting case because u- usually the bar is set extremely low for Congress to have a legitimate legislative purpose, even in situations where it’s quite clear that Congress is not... wants materials for just because it wants to make them public or or to complain about an administration and there’s no legislation really seriously being a cert where legislation is not really the main deal Congress gets it anyway.

But here it really seems to be kind of scraping the bottom of the barrel in terms of what Congress’s li- litigation interests would be. So we’ll see what happens.

Benjamin Wittes: All right. Anna, I’m not gonna replay the dismissal for, or the vindictive prosecution theme. It only gets played once per show.

But there’s some aftermath to the dismissal of Mr. Abrego Garcia’s case criminal case for vindictive prosecution. I predicted last week that he was gonna leave town, get on the first plane to Costa Rica. What happened?

Anna Bower: Yeah. It appears that our prediction is, was not accurate. You know, we did speculate that there might be some type of, you know, needing to get travel documents or something like that, and it’s totally unclear at this point if that speculation is, a was accurate because we really still just don’t know.

We do know in the civil case before Judge Xinis, which is really the case that kind of started all of this and was the basis for in the criminal case, the idea that Abrego was retaliated against we do know that his lawyers in that case have filed a motion in which they’re seeking a final order from Judge Sinise about the w- whether he should be barred from being sent to Liberia.

So ‘cause currently there’s just an interim order essentially that bars him from being sent to Liberia. So his attorneys have sought a final order in that regard, but other than that, you know, there wasn’t, as far as I could tell and Roger, correct me if I’m wrong, we don’t know what the plan is for Abrego at this point.

So that’s kind of the update. We were wrong, Ben.

Benjamin Wittes: You know, unlike lots of places, when we get one wrong, we tell you. Roger the Supreme Court has reversed the Fourth Circuit regarding the free speech rights of immigration judges. First of all, for those who don’t know, what is an immigration judge, and why doesn’t an immigration judge have the same free speech rights as everybody else?

Roger Parloff: Well, an immigration judge is actually an employee of the attorney general. And it used, they used to have a fair amount of independence just through practice and but that’s over. And so, they now have very little independence. And yeah, this is actually not... it d- it does not begin as a Trump era case.

It’s, there’s a a personnel policy is issued in 2021, so that’s under Biden that requires in- immigration judges to get prior approval before official speeches, which means like a speech y- where you’re invited because you’re an immigration judge. You’re not speaking to the PTA or something.

And so they challenge it on First and Fifth Amendment grounds. And in 2023, which is still Biden Judge Brinkema over in Alexandria, and she’s the one that-

Benjamin Wittes: Same Judge Brinkema has just enjoined the fund for January Sixers.

Roger Parloff: Yeah. I think she’s a, I- is she a Clinton judge? Is that—

doesn’t work? Yeah. And so she-

Benjamin Wittes: Very fine judge ...

Roger Parloff: Yeah. So she threw it out because well, the question is the question was is that sort of- There are a number of issues where having to do with personnel violations or that you need to take to the Merit Systems Protection Board under you know, Thunder Basin.

You’ve heard about Thunder Basin. And so she felt that was one of these disputes. And so she—it had to be channeled to MSBC and she dismissed it. It’s appealed to the Fourth Circuit, and in the meantime, Trump has taken over and he’s begun to fire the Democratic members of the board of MSPB, and also the special counsel the, who is sort of the advocate for people before the board.

And these were things that people thought weren’t possible. They were things that Congress did not want to happen. But Trump said, “I can do it under Article two,” and the Sco- and Supreme Court began to say, “Yeah, you can do it under Article two,” or began to hint you can do it under Article two, or say it on the shadow docket, in essence.

And so, it was appealed to the Fourth Circuit, and the issue was before the—briefed as is this issue the kind of thing that’s covered that needs to go to MSPB or not? That’s all it was briefed. And the Fourth Circuit agreed with Brinkema. It is the sort of thing that needs to be channeled. But they also said, “But you know, our eyes are open.

We can see what’s happening. The MSPB is not what Congress thought they were creating. It’s no longer independent. You aren’t gonna get a fair shake. Or at least it begins to look like that. Why don’t we send it back for fact-finding about whether New events change the situation. And this had not been briefed, but the Fourth Circuit se- sent it back for that reason.

It was appealed to a rehearing en banc. Rehearing denied. Three justi- judges dissent, saying, “You violated the party presentation rule,” which is,

Benjamin Wittes: I confess I have never heard of the party presentation rule.

Roger Parloff: Well, you’ve probably heard of it in other terms. It’s the idea that the judges should decide the issues that have been briefed by the lawyers.

Benjamin Wittes: Oh. Deciding not... I think of that as not deciding things that aren’t presented to you issues. Yeah.

Roger Parloff: Yeah.

Benjamin Wittes: Okay, fair enough.

Roger Parloff: I mean, even so, well, so it goes up to the Supreme... it’s appealed to the Supreme Court, and I guess this is a summary reversal. I don’t think there was argument.

It’s not exactly shadow docket, but it’s a reversal, and they say, “And it’s on the party presentation.” So all that’s decided, there’s no First Amendment decision, there’s no, And they don’t e- All that’s decided is, “Well, this wasn’t presented.” And there’s some of this language that is a per curiam. There’s one of these things that I’m gonna guess is Gorsuch, where it beget, you know, “Federal courts are not roving commissions licensed to sally forth each day looking for wrongs to right.”

Anyway, there’s that sort of lecturing. And and by the way, I mean, I, I don’t know if I can remember the last time Neomi Rao decided a case based on something that was argued by either side. I mean, this is a pretty common thing . But anyway and then the kicker is Thomas concurs, Justice Thomas concurs, and he concurs in saying, “Yeah, y- the party presentation, you can’t just go off on it.”

But, and then he says, and then he goes ahead and decides the issue that that hasn’t been briefed. You know, like what do we do about the fact that the MSPB has been destroyed because of the Roberts Court and the unitary executive and this coincidence that b- Congress had no idea was creating an utterly pointless, unfair body.

And and he, Thomas of course says, “Tough. Courts may not rewrite the statutory scheme in order to approximate what we think Congress might have wanted had it known that the president or courts might conclude that its removal restrictions were beyond its authority,” and so on. I, that seems wrong to me.

There’s a severability concept that’s sort of, j- judges are commonly deciding when they strike w- down one part of a statute, do they need to strike down the rest of it or can it really survive? I think that’s a real question here is whether if Congress understood that this body would not be independent, would it have created it?

But anyway that it isn’t decided, it’s only decided by Thomas. But so technically this is only a ruling on a party presentation rule, but it is a bad omen. It’s a bad omen for people like Maureen Comey, who are try- who are trying to litigate their cases outside of the MSPB, all the FBI agents, the AUSAs there’s a lot of people that this is a bad omen.

It doesn’t decide it, but it’s not great.

Benjamin Wittes: All right. One thing that is cool is that we now have ICE agents being arrested you know, for shooting people which was a bit of a matter in doubt until it started happening. So Roger, how many... What is the ICE arrest, ICE agent arrest in record in Minnesota looking like?

Roger Parloff: Well, we now we do have two. There was the second was arrested this morning, Christian Castro. That was the man who is alleged to, I think it’s agreed that he shot Sosa Celis, Julio Sosa Celis. The condition- the situation under which he did so is contested. He was charged with four...

And it said, interestingly enough, the report in The Times I read said that he was apprehended with the assistance of Texas Rangers, it was in Texas, and the Homeland Security people. So that would be interesting if Homeland Security did help. He’s charged, remember, with four counts of assault in the second degree and also making a false report because he had he had described being beaten with shovels and a broom and there was a video and it doesn’t look like he was being beaten with shovels or a broom.

But,

Benjamin Wittes: Was he being beaten with, like, sticks and you know, things that might reasonably be confused with shovels and brooms? Or was he just not being beaten at all?

Roger Parloff: No, But I will say, no, he was not, apparently not being beaten at all. Although it does... There is some evidence that one of the guys had a broom and was threatening, I see.

Benjamin Wittes: So it’s more in the de- department of exaggeration- Well- ... or maybe terror-induced exaggeration ...

Roger Parloff: Well, he said they were beating him for about three minutes, and then he-

Benjamin Wittes: Yeah, that doesn’t seem great ...

Roger Parloff: He went to the hospital and reported injuries and they couldn’t find any injuries. They did a radio, radiograph.

And so a pretty good case for a false report. The other guy was Greg Do- Gregory Donnell Morgan, and he was his complaint came out some time back, and then he had his his whereabouts were unknown. They found him and hi- his first court appearance was May 22nd. He was released on bond.

I couldn’t understand the document. It looked to me like $100,000 dollars with conditions. And that one is actually the same charge, even though he didn’t shoot anybody. It’s sec- it’s assault in the second degree. He pointed his gun at two U.S. citizens who were annoying him because they didn’t like that he was zooming up the alley, the, shoulder, the shoulder of the road.

But anyway, th- so those, so those’ll be interesting to see if there’s a removal petition to to federal court, and the whole federal immunity claim might might come about.

Benjamin Wittes: All right. We’re gonna turn to what is increasingly becoming the most ridiculous segment of- of Lawfare Live: The Trials and Tribulations of the Trump Administration, which is the...

And maybe this section might need its own theme music, but I don’t know what the theme music would be. It’s the part where we talk about the ridiculous shit that Trump tries to put his name on or build in his own honor, and the reaction of the federal courts to this stuff. So, Judge Cooper this week, Roger, who’s a very serious guy says Trump’s name’s coming off the Kennedy Center.

How did this end up before Chris Cooper?

Roger Parloff: So, there’s actually two suits, and I really I’m not up to date on the second. He decided both today that there was a 90-page ruling in the first, so I’ll only discuss that one. This is Joyce Beatty’s suit, and I think I think CREW represented her.

And basically she won. There were three main claims. Initially she sued over the naming. Beatty is a representative from Ohio, and she’s a trustee ex officio. There are... Some of the representatives are, by law, trustees ex officio. And so, you know, Trump could fire everybody who wasn’t ex officio.

He, she... He couldn’t fire her her, and then he excluded her from all of the voting and so that’s how you got these unanimous decisions to change the name of the Kennedy Center. And so she wins on the renaming, which was the easiest. He writes “The Kennedy Center’s organic statute makes crystal clear that the center is to be named for President Kennedy, and it cannot bear any other formal name or public memorial based on the board’s unilateral—"

Benjamin Wittes: And that’s why it’s not called the Parloff Kennedy Center, right?

Roger Parloff: It’s the main reason, yeah.

Benjamin Wittes: Yeah. Yeah. Yeah. ‘Cause, ‘cause there was this groundswell of demand for that.

Roger Parloff: And I was very moved by that. I was really very moved.

Benjamin Wittes: Yeah. Yeah.

Roger Parloff: But it was wrong. It would’ve been wrong

Benjamin Wittes: It would’ve been wrong. It would’ve defied Congress as well

Roger Parloff: I would not have been able to sleep. But anyway the other, you know, a second one was a not a very... It was the question does she have voting rights as an ex officio member? He decided she does. And then, you know, when in February he decided, Trump, to close the thing down for two years, which was...

he is- he announced that in a True social tweet and that was news to the board. The board hadn’t been co- You know, that was where they found out for the first time. The so she Beatty re- amended her complaint to challenge that. Now, that’s the hardest one. And he ruled that she was likely to succeed on the claim that the board violated fiduciary duty.

It was derelict in discharging its duties because it didn’t look at all the factors including, you know, what this would do to goodwill, what it would do to revenue. Was it really necessary? The chief operating op- officer apparently claims it was his decision. He, And there isn’t really any dispute that it needs capital improvements.

And Congress had-

Benjamin Wittes: It’s completely lacking in gilding and marble armrests and- And that- I mean, there’s it’s deficient

Roger Parloff: Yeah. No, but Congress had a- appropriated money for a major, so, some major improvements. But the no one apparently had discussed this idea of just closing it down wholesale.

And but he admits that he he can’t really... He, so there is a preliminary injunction saying against that order to shut it down, but it can continue to do repairs and also if after reconsidering, you know, the totality of the circumstances, the board again decides it must close it down he, he doesn’t categorically rule that out.

So, I don’t know if they’re gonna be able to stop the two-year closing, closure

Benjamin Wittes: Looks like on the getting even more ridiculous department Trump’s career as a pro se lawyer has had another episode. How confident are you, Roger, that the latest ballroom litigation brief was in fact dictated by Donald Trump?

Roger Parloff: It, it’s has a certain rambling and r- rehashed quality to it. And it was, you know, after this shooting on at the corner of 17th and Pennsylvania Avenue on I think May 23rd. So, this this was offered as another reason we needed the ballroom and to protect him. But as Eric noticed he, he tweeted out that the, you know, it’s rambling and of course he’s st- saying the tents would not protect him from bullets, but then he sort of gets worked up and says, “And the temporary tented structure is also vulnerable to water and flooding when it rains, in that the White House is built on wetland and the grounds are inordinately wet.

Over the years, many an evening has been ruined by even moderate rain.” So, I that is, that sort of sounds like a man going off on a tangent. But it’s signed by Stan Woodward, and also Blanche’s name is there, and also the Principal Associate Deputy AG Trent McCotter.

Benjamin Wittes: So- But no political

Or no career officials no ... put their name on this brief?

Roger Parloff: I think we’re long, I think we’re long past that.

Benjamin Wittes: All right.

Roger Parloff: And I should say, this is ... What is the name of the ... You know, this is called a Notice of Supplemental Authority. This is, you know, you aren’t allowed to just file brief after brief.

I mean, the case is on appeal already. And so a Notice of Supplemental Authority, you know, is something in the, in appellate rules. You, y- if there’s a ruling comes down in a relevant area, you can alert them in the narrowest way and attach the ruling. It’s, I think you get 350 words.

There are some local rules like Southern District of Florida, I think Anna might remember that they had one 200 words. D.C. doesn’t have it. This is 1,200 words, you know? It’s just-

Benjamin Wittes: And the supplemental authority is the president called me and said, “We have to file this,” right?

Roger Parloff: Yeah. It’s it’s just anyway, that’s what it is.

Benjamin Wittes: Yeah. So folks, Lawfare has never had a golf correspondent before because, you know, we don’t really cover golf, but the president is kind of forcing us into the golf business by dumping toxic waste on our municipal golf courses, by trying to take them over and give them to his companies. And so I have appointed Molly Roberts, our Lawfare’s first official golf correspondent.

And so Molly what is up with this week in golf? And-

Molly Roberts: Yeah, well, first of all, thank you for the honor. I’ll await the theme music. But-

Benjamin Wittes: Yeah, I don’t know.

Molly Roberts: I don’t, I... Th- this week in particular, I’m not sure that all that much has happened. I think the last time that we spoke about this, there had been reporting that the Trump administration was going to shut down East Potomac kind of summarily, and it turned out that did not happen.

What has happened since then-

Benjamin Wittes: It just dumped asbestos in it instead, right?

Molly Roberts: Oh that’s continual. That just is going on. And it’s asbestos and it’s... Well, we don’t know that it’s asbestos, so I should not say that. But the potentially hazardous waste, and then it also has, like, pieces of brick and metal sticking out of it.

It’s not a good situation for the general public, and certainly not a good situation for your avid public access golfer. But what has happened since then is actually the Trump administration came to an agreement with the National Links Trust, which is currently leasing and operating all three of D.C.’s municipal golf courses.

And in, under that agreement, NLT, the National Links Trust, gets to do the renovations that it had planned of the Rock Creek course and the Langston course. But- Trump’s preferred architect and preferred company get to do the renovation of East Potomac, which is what he wanted. That’s the one that he envisioned making into this championship style course, and it’s kind of the glitzier course with the view of the Washington Monument.

That has not assuaged the concerns of the litigants. In fact, it makes them even more worried because what they’re saying is happening is, A, dumping of this potentially toxic hazardous waste, and B, a kind of contravention of the National Park Service statute and of the initial declaration that created this course to be used for the public.

The idea that they’re arguing is that it’s gonna be made into something that’s not for the public, and indeed now the administration has come to this agreement with this nonprofit that was creating these golf courses for the public where they get to do kind of the two less fancy courses, and the people Trump has selected for his vision of this championship course are gonna do East Potomac.

So that’s where we are now. I’ve—Now, I think the next hearing is July 2nd, so I will definitely be attending.

Benjamin Wittes: And who are the, like- Who is the challenger in this? Is like kind of like the Kennedy Center. I guess it, it’s easier to get standing ‘cause, like, anybody who wants to play golf at a reasonable rate and doesn’t wanna join a fancy private golf course should presumably have standing, right?

Molly Roberts: Yeah. Yes, exactly. And so I believe they have a, it’s the D.C. Preservation League, but then they’re using a public access golfer who is saying that his public access golfing rights have been abridged.

Benjamin Wittes: And and who’s, which judge is this in front of?

Molly Roberts: Reyes. Ana Reyes.

Benjamin Wittes: Gotcha. All right, so it should be spicy. All right. Where are things worse, at- ... you should tell me at golf course or at West Point?

Molly Roberts: That’s a good question. At this exact moment, given the preliminary injunction, I suppose it’s possible that things are slightly better at West Point than they were prior to that.

So, so yeah. So what has happened at West Point is that Judge Cathy Seibel of the U.S. District Court in White Plains, New York, issued a preliminary injunction barring West Point from requiring its faculty members to get approval before they speak to outside audiences about their areas of expertise as long as they’re speaking under the auspices of their West Point affiliation, and barred West Point from stopping the professor who’s the plaintiff here, a man named Tim Bakken, from sharing his opinions on the subject he teaches to the students he’s teaching, which I don’t know about you, but generally as a student, that was kind of exactly the sort of stuff that I was hoping to get from my teachers.

So the policies that West Point issued that were challenged here were issued after Trump’s executive order, Restoring America’s Fighting Force, which was basically an anti-DEI directive to U.S. military academies to stop, quote, “promoting, advancing, or otherwise inculcating un-American, divisive, discriminatory, radical, extremist, and irrational theories.”

And that order expressly prohibited teaching that the Constitution or Declaration of Independence are racist or sexist, and it expressly required teaching those documents, teaching that those documents and that the country are the most powerful force for good in human history. So West Point responded to that order by cracking down, restricting what professors could teach, to whom they could talk, also removing books from its library, removing words from course syllabi, and one colonel allegedly told the plaintiff that all that was an effort to demonstrate radical compliance with the White House campaign to get rid of wokeness in the military.

So that’s what the lawsuit was about. The government had argued that the professor was free to speak however and to whomever he chooses, so long as he does not utilize his West Point affiliation. And so that it was okay to restrict him when he did use the affiliation, and that the policy was important because it ensured consistent messaging, it alerted leadership to faculty appearances, it prepared officials for public questions, and it also told the court that it should defer to military judgment, basically that this was in some way going to be better for the military.

And Judge Seibel was not convinced. She found that all those rationalizations were more a reverse-engineered justification. And she spent a lot of the opinion addressing the government arguing that the plaintiff didn’t have standing, that he should have instead gone through the process of going, the remedies under the Civil Service Reform Act before a judge could hear him.

She decided she could hear him, and then she went to the merits and she did a First Amendment analysis where she said that this was a prior restraint case, so there’s a really high bar, and the DOJ hadn’t offered existent evidence of any preexisting harm that the policy would cure. It hadn’t shown that there were not less restrictive measures it could use.

And generally, she said that the policy was just wrongheaded and nonsensical because it kind of achieved exactly the opposite of what you would want to achieve when training cadets to be successful. She said that cadets must be exposed to a variety of viewpoints and trained to think critically about them.

And she ended by saying that West Point cadets are already, by definition, smart, tough, and patriotic. They are not snowflakes who will somehow be harmed by learning about controversial issues or competing viewpoints. They will not somehow be weakened in their future defense of our country if their classroom discussions are robust and open.

Benjamin Wittes: Fascinating.

Eric, a few weeks ago, we had a conversation about the dismissal of the Trump case against The Wall Street Journal because you know, of the Epstein birthday note a libel case for, I believe, $10 billion dollars, which is Trump’s usual request. And we noted that the judge in the matter allowed it or dismissed it and s- but said, you know, “If you wanna refile it you can.”

Eric Columbus: Trump just refiled it by the deadline set by the court. And the dismissal was on the basis of Trump not pleading actual malice, which is the standard required in order to prevail as a public figure in a defamation suit. I mean, it is rather as a prerequisite to, to prevailing. And actual malice is one of those strange judicial phrases that does not mean what it means in real life.

What it actually means is that the defendant published a statement with knowledge that it was false or with reckless disregard of whether it was false or not. And reckless disregard of whether it was false or not in turn means that among other things, you have to have actually had a high degree of awareness that it was probably false.

And you won’t be shocked to know that in his amended complaint, Trump added some stuff, but still, in my view, has not come close to cracking that bar. They add stuff talking about how the defendants did not explain how they got to look at the alleged letter why the... who, you know, how it was written, who typed it.

They didn’t explain why Ghislaine Maxwell had on other occasions said that the... Trump did not send a letter. They didn’t explain whether they contacted her at all a- and things like that. So it’s pretty weak sauce. I mean, it has the effect of still showing Trump’s fighting out there, and who knows, maybe he can convince Rupert Murdoch to do something Rupert Murdoch being one of the defendants in the case, but it seems extremely unlikely.

The Wall Street Journal has stuck to their guns this entire time, and they’re on a winning streak, and I don’t think they’re going to stop now. One... Can I just add one thing that just, news that just broke?

Benjamin Wittes: By all means.

Eric Columbus: Is the judge in the Trump v. IRS case, the slush fund case, has just issued an order ordering the plaintiffs, that is the Trump family, to file a response to that motion sent that was a response to the brief of the retired former judges asking her to reopen the case.

And she frames it in terms of possible Rule 11 sanctions against the plaintiffs. So, you know, this doesn’t mean that she’s- Not fraud on the court Well, the fraud of the court giving her the the means to reopen the case and Rule 11 sanctions being the possible—

Benjamin Wittes: Remedy—

Eric Columbus: Possible consequence of the re- yeah, re- remedy for the fraud on the court or the thing that she would do once the case has been reopened, so-

Benjamin Wittes: Gotcha

Eric Columbus: We’ll see how that go- we’ll see where that goes.

Benjamin Wittes: One judge who did not act this week, Molly Roberts, was Judge Nichols, Carl Nichols, who declined to block the president’s executive order on mail-in voting. That’s a little bit of a surprise, frankly, given how aggressive that executive order is.

So what did Judge Nichols rule, and what does that mean? What part of the executive order goes into effect?

Molly Roberts: Yeah. So Judge Nichols... So this executive order, just to go back, was the executive order that called for Centrally, and these are the two provisions that were challenged, the Department of Homeland Security to work with the Social Security Administration to create lists of U.S. citizens in each state and send those to state election officials, and those are supposed to be eligible voters.

And for the U.S. Postal Service to come up with its own lists of eligible voters and only deliver mail-in ballots to people on those lists, and the Postal Service is supposed to get states to send it these lists. So what Judge Nichols found is that it wasn’t ripe, basically, that he couldn’t issue an emergency ruling halting those central provisions of the order because the directives hadn’t been carried out at all.

Nothing had happened. Now, and I don’t wanna go into too much detail on exactly what made him ripe or not ripe because I think that we may see a change here soon because actually today the Postal Service did issue its notice of proposed rulemaking to implement the order, so it did that a few hours ago.

And the proposed rule would require state election officials to send the Postal Service a list of voters who’ve requested a mail in or absentee ballot at least thirty days before they’re sent out, and then if they’re not on the list, they won’t receive the ballot, which is exactly what the executive order required.

And they admit that there might be errors because they say, “Here’s a process for trying to rectify the errors.” So the question now, as they could appeal Judge Nichols’ ruling, is will they go back to him and say something has changed? Because basically what he said was, “This is an invitation to the administration to do something.

You haven’t done anything. There’s nothing here yet, but something very well could happen, and when it does, plaintiffs can renew their motions.” So they’ll probably renew their motions now. I kind of wonder what will happen when they do because he didn’t seem terribly friendly to their arguments. He, for one thing, said that he cited some case law saying that even the issuance of a proposed rulemaking isn’t necessarily enough, that there’s a whole series of contingencies that would have to exist to demonstrate that there’s real harm.

So they have to issue the notice for proposed rulemaking, they have to propose the rule, and it depends on what it says. And then there’d be notice and comment, and then there’d be a final rule, and then you’d have to see how does that final rule actually affect the voters, states, or the plaintiffs. So we’ll see whether he thinks it’s enough, and then we’ll also see whether he thinks when he goes to the facial challenge that the order indeed doesn’t survive.

What the plaintiffs are alleging is a few things, including, as far as the Postal Service part of it goes, that the Postal Service has a statutory mandate to transmit mail to everyone universally, and so that refusing to transmit pe- ballots to people not on these lists would go against that mandate

Benjamin Wittes: Finally in 1891, Pope Leo XIII issued a major encyclical entitled Rerum Novarum, which is considered today a foundational text of Catholic social teaching.

It is an important document in the history of the labor movement and in the positioning of the Catholic Church as a kind of weird animal that exists between laissez-faire capitalism and socialism This past week Pope Leo XIV who named himself after Leo XIII because of his admiration for Rerum Novarum issued an encyclical on the modern dignity of work, which is to say the relationship between humans and AI.

It is a lengthy document that we have no business discussing on Lawfare Live: The Trials and Tribulations of the Trump Administration, because it has literally nothing to do with any litigation against the Trump administration. Or does it? Roger, why are we talking about the latest papal encyclical on AI and other matters?

Roger Parloff: Well, the encyclical the new one, which was issued... It was dated May 15th. It was announced May 22nd, but dated May-

Benjamin Wittes: And it was called Magnifica Humanitis ...

Roger Parloff: Yeah. Dated May 15th w- so that it would be 130 d- days years to the day from the one by Pope Leo XIII. So yes, very conscious. There were a few things unusual about this.

One he announced it with a press conference, and that alone is unusual. He invited a representative of industry to the press conference. That’s unusual. And the person he invited is Christopher Olah, who is a pioneer in machine learning and neural networks, but most importantly, he’s a co-founder of Anthropic.

And as you know, we’ve been covering the Anthropic cases. They’re in li- litigation because Anthropic sort of defied the Department of Defense, also known as the Department of War, and refused to allow it to use its main product, Claude, for two purposes, one of which was lethal autonomous weapons.

And this AI speech focused on the idea of that AI needed to be disarmed. He used the word disarmed. Now, he meant that metaphorically in a lot of ways, but in some ways he meant it quite literally And he invited this guy, Ola, to be present. And then he spoke about in paragraph 198 “Yet moral judgment cannot be reduced to calculation for it involves conscience, personal responsibility, and the recognition of the other as a person.

Therefore, it is not permissible to entrust lethal or other irreversible decisions to artificial systems.” And then he said, and this is very unusual, “I’m looking at you, Pete.” That’s that apparently is very odd for encyc- encyclicals. And then two paragraphs later he says, “These criteria give rise to certain non-negotiable requirements.

First, blah, blah, blah. Second, the decision to use lethal force cannot be delegated to opaque or automated processes, but much must remain under effective self-aware and responsible human control.” So, I think it’s a fairly unusual and direct weighing in on on this issue and a little bit of a discreet tweaking of of our defense department.

Benjamin Wittes: Well, it was there was an excellent conversation on this subject on a Substack Live that we’re gonna be running on the Lawfare Podcast in the coming days hosted by our colleague Renée DiResta. For those who want a s- a full explication of the discussion of the Papal encyclia- encyclical and its relation to the anthropic litigation and Chris Ola’s engagement with the Vatican over the last lengthy period of time, dates back to Pope Francis’s tenure.

Anthropic has really been engaged with the Vatican on these issues. So it’s a pretty interesting subject, and we will be bringing that conversation to you.

[Outro]

Folks, this podcast is part of Lawfare’s livestream series, Lawfare Live: The Trials and Tribulations of the Trump Administration. Don’t forget the tribulations, ‘cause, you know, if it’s just trials, it makes it all kinda dry, and that golf course stuff and the Na- president’s name on the Kennedy Center, those are tribulations.

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