Lawfare Daily: The Trials of the Trump Administration, Nov. 14

[Intro]

Natalie Orpett: It is the Lawfare Podcast. I'm Natalie Orpett, executive editor of Lawfare, with Lawfare Senior Editors Anna Bower, Roger Parloff, and Eric Columbus, and Public Service Fellow Loren Voss.

In the November 14th episode of the trials of the Trump Administration, we discussed an update in the Georgia prosecution of President Trump, a hearing on whether Lindsey Halligan was lawfully appointed as U.S. attorney, a district court barring the deployment of National Guard to Portland, and so much more.

[Main episode]

Hello everyone, and welcome to Lawfare Live.

It is Friday, November 14th. I am not Benjamin Wittes, I am Natalie Orpett. I'm Lawfare’s executive editor. I am joined today by Senior Editors Anna Bower, Roger Parloff, and Eric Columbus. And joining us a little bit later will be our public service fellow, Loren Voss.

Anna Bower, I want to come to you first, because once upon a time in Fulton County, Georgia, the district attorney indicted Donald Trump––then-former President Donald Trump––and 18 co-conspirators for election interference.

And then there were lots of twists and turns. And then Fani Willis was disqualified. And then we've been in purgatory since then. So there's news, finally, today. Tell us how we got here, and what's going on, and what did we learn today?

Anna Bower: Yeah, so remember the Georgia Court of Appeals disqualified Fani Willis after Judge McAfee allowed her to stay on the case. And then Fani Willis appealed that Georgia Court of Appeals order up to the Georgia Supreme Court.

Georgia Supreme Court decided just to not deal with it. They refused to hear the case. So, as a result, Fani Willis was permanently disqualified.

And the way that it works in Georgia, Natalie, is that you have this prosecuting attorney's counsel and they're, you know, at least in theory, a nonpartisan state agency––although the guy who runs it, Pete Skandalakis, is a Republican.

And under Georgia State law, that agency has the power to appoint a new prosecutor if there is a conflict, which is––you know, what the, or the Georgia Court of Appeals decided there's not an actual conflict, but there is at least an appearance of impropriety.

And for that reason, Fani Willis has, had to be off the case. So, we've been waiting for a few weeks now to hear how Pete Skandalakis––who is the guy, as I mentioned, who's the executive director of the prosecuting attorney's counsel––how will he move forward?

Will he appoint a new prosecutor potentially from, you know, a neighboring district in Georgia? Will he bring someone else in as a kind of special prosecutor?

Or would he do what he did previously when Fannie Willis was disqualified from investigating someone, namely the Lieutenant Governor Burt Jones?

In that case, after she was disqualified, while the investigation was still ongoing, he appointed himself to do the investigation and ultimately declined to pursue charges related to the fake elector plot, which Burt Jones was involved in as an elector.

So there were those three options. Judge McAfee set a November 14th deadline, and sure enough, this morning we learned which door Pete Skandalakis has decided to walk through. And that is, he appointed himself as the special prosecutor in this case.

Now, Natalie, there's a few things that I'll mention about this.

One is that we do know a little bit of his reasoning as to why he appointed himself, because the prosecuting attorney's counsel issued a statement earlier today after he filed his notice in the court announcing that he would be taking over the case. And in that statement he, Skandalakis says, you know, I approached several other prosecutors in Georgia to ask if they would take the case and they declined. So my appointment reflects my inability to find someone who would be willing to take over this case.

You know, we can get more into if you want later, you know, why maybe prosecutors wouldn't want to take this case, but all of which is to say that he says, you know, additionally, beyond not being able to find anyone I'm familiar with these materials.

As I mentioned, he previously, investigated one aspect of the case, which was the Burt Jones matter related to the fake electors. And he basically said too, like, it would've been really easy for me to just not appoint someone, let this deadline lapse, and the case would've been dismissed.

But I felt like that was not the outcome that the people of Georgia deserve. I think that you know, there needs to be a review of these materials and then a decision on how to move forward. And he also mentions that while he is reviewing the case file, he is not finished doing so yet.

So it's unclear exactly how or if he will move forward with this case, because there's a few options that he has available to him.

One is that he could dismiss the case outright. Another is that he could just carve out parts of the case. You know, maybe he doesn't want to move forward with a big RICO conspiracy and he just wants to try some of these discrete alleged crimes.

You know, so it could be that parts of the case move forward, because remember, this is a massive sprawling indictment that deals with conduct that doesn't just involve the fake electors. It involves the fake electors, but it also involves the pressure campaign against state legislatures and Mike Pence.

There's elements of that in there as well as it was in the federal indictment. But there's also this, you know, kind of alleged harassment or intimidation campaign of election workers, Ruby Freeman and Shaye Moss in particular.

And then there's as well, the, as we know, because I think Lawfare is reported more extensively on the Coffee County stuff than maybe anyone out there, there's the element of it that deals with the voting system breach in Coffee County.

And so, you know, he has to kind of decide, in all of this, how to move forward. It's unclear if he will. So everything is very much uncertain.

But meanwhile, Judge McAfee isn't wasting any time. Mr. Boy Wonder, as we once called him, today, following the appointment of Skandalakis, went ahead and set a December 1st hearing or status conference to kind of figure some of these things out in terms of scheduling and how things will proceed.

And then also we got an order from him that formally dismissed several of the counts against Trump and others that he had previously dismissed under the Supremacy Clause. This is very unsub––it sounds like news, but that's actually not news because previously, he'd already dismissed the same counts as against John Eastman. And wrote, you know, a long opinion about it.

But at the time there was pending litigation on appeal, so he didn't have jurisdiction to dismiss the same counts against Trump and these other folks.

So it was expected at the time that, okay, these counts that apply to these other defendants will also be dismissed. But it's just a matter of when McAfee has jurisdiction again.

And so now that he has jurisdiction, he's formally done that. But it's clear that he wants to get a move on, figure out how to proceed. It's not clear how Skandalakis will. But his previous statements about the Burt Jones matter indicate that at least as it relates to the fake electors, the people who maybe didn't have knowledge in the same way the attorneys did, you know, who were organizing this, the people who were the architects––he may very well decide to carve that out.

Because if they are similarly situated as Burt Jones was, you would imagine that the same reasons he stated for not investigating or prosecuting Burt Jones would apply to them too.

Natalie Orpett: Yeah, I mean, as you say, it's, it was such a sprawling case. and despite how closely we covered it, it is hard to keep track of exactly where it froze in place.

I know, if I remember correctly, a couple of the original defendants are not there anymore. Some of them pleaded guilty, and so they have been sort of carved off.

But there were, as you say, so many different charges in place. And is it, am I correct to understand that, whenever it is that the case picks back up, it will be from the point at which it froze in place before, and any matter of discretion about whether to try to cleave some things off, whether to dismiss some charges, whether to bifurcate, et cetera, will all be under Skandalakis’s discretion?

Anna Bower: Yeah, that's under his discretion. My understanding is that yes, it will proceed where we left off.

I mean, I think that Judge McAfee has already indicated that's his understanding as well, given that he's, you know, moving forward with issuing some of these outstanding orders.

To my memory there were federal officer motions that were pending, presidential immunity motions that were pending.

I mean, keep in mind, if Skandalakis decides to move forward with a prosecution against Trump, there's going to be different circumstances that apply to him versus some of these other defendants because he’s going to be in office until 2029.

And they've made the argument that while he's in office, you know, you can't prosecute him even if you eventually could after the charges, or excuse me, after his term is over, because it would interfere with the duties of the presidency. Like, they made those types of arguments.

And you know, I think that they, under this Supreme Court, if it ended up going up to the Supreme Court, I think that, yeah, there, that probably is something that the Supreme Court would agree with––is that while the president is in office you know, you can't, you can't criminally prosecute him.

And so anyway, the point is just that, I think that ultimately the Trump decision is going to be a little bit different from what you do now with some of these other defendants. Because meanwhile you would expect that probably their cases could proceed, which would be really remarkable because, you know, it may very well be that we have a televised trial of the president's co-defendants while the president is in office, right.

And for me, I'm just interested in a lot of, kind of, you know, what exactly is going to happen to some of these discrete issue areas that people don't really focus on a lot, including, especially the Coffee County stuff? There's a lot of outstanding kind of mysteries that haven't been resolved related to that conduct.

And you've already had two people––Sidney Powell and Scott Hall––who have pleaded guilty or have reached a plea deal to, you know, aid the prosecution in respect to elements of the case. We've also had other people, including Kenneth Chesebro, who pleaded out as well.

And so you would kind of, it would be, there are good reasons, I think why Skandalakis might really need to consider moving forward, because he's already, there's already this kind of––not precedent in a formal sense, but you've already got examples of people who have pleaded out to this conduct.

And so it'd be strange to then decide, oh, there's no probable cause and there's no, you know, sufficient evidence to move forward with this.

But we'll see.

Natalie Orpett: Yeah, it seems pretty impossible to imagine, if he does move forward, not breaking off the charges against Trump from all of the others. But I suspect even with the others, there will be a whole new round of motions and efforts to remove on different theories of why removal to federal court is proper, given the change in circumstances. And all sorts of clever litigation pretrial that can be renewed.

So we will have to see what happens. It does raise some really, sorry, go ahead.

Anna Bower: Oh, one other thing I just wanted to quickly mention that I forgot, is that this comes on the tail end of Trump, over the weekend, pardoning a lot, all like all of these co-defendants for conduct at the federal level.

There's kind of these creative arguments that people like Cle––and creative is being very generous––that people like Cleta Mitchell are putting out there that, oh, these are really federal charges for a variety of reasons, and so this pardon should apply to the state conduct. So that might be an argument that some of these defense counsel might try to make.

Of course, the president does not have constitutional authority to pardon a person for state crimes. I think it's quite frankly laughable the idea that that these pardons could apply to these crimes or alleged crimes.

And so I, I don't think that's something that's going to fly. But to me, when I saw these pardons coming out, it seemed more like it was signaling to someone like Pete Skandalakis, that, you know, this conduct is being forgiven by the president. Whatever––and so, you know, it's kind of like a signaling of, you know, maybe you should think about dismissing these charges and not pursuing this.

I, but I don't know if other people saw that symbolically as the same that I did. So that's just my, kind of, thinking about it when I saw that.

And also, we had a ruling from the Supreme Court of Nevada as well this week that related to a lot of those same people who were in that pardon list, in which the court reversed a decision of a lower appeals court that found that venue was incorrect in relation to the fake electors case there.

So all of this, timing-wise, is just very interesting because we had a lot of kind of renewed action in these state cases related to the 2020 election.

Natalie Orpett: The extremely long tail of 2020 election interference, state criminal trials––and charges, none of them are trials.

Eric Columbus: Can, sorry, can I ask one more question about this, Anna?

If Skandalakis proceeds, who does he, where's he––he doesn't have an office, does he? I mean, who is his support from if he’s not using a DA's office?

Anna Bower: Yeah, I mean, it's a good question. I, you know, he has other people who are part of the prosecuting attorney's counsel.

I am not entirely sure logistically how exactly it would work. You know, can they maybe give him an office to work out of in the Fulton County DA's office? I don't know. I assume though he would probably work out of the prosecuting attorney's counsel. He, you know, I think that there is likely some kind of process in which he might be able to hire staff.

I really am not sure, so I'll have to get back to you on that, Eric.

But I think one of the issues with appointing a new prosecutor is that the pay that you get as a prosecutor pro tempore as they call it, is like really, really minimal.

And so there's really not, you know, there's not a lot that you get in return for taking on this massive case in which you might become the subject of, you know, targeting by the president.

So, I think that, among other reasons is one reason why it was difficult to find someone. And I believe he tried to find someone, or at least he had spoken previously about trying to find a prosecutor in a neighboring district who has similar resources to Fulton County and that kind of thing.

But apparently that did not work out.

Natalie Orpett: Interesting. Okay. Well, definitely a lot to watch there. I'll be very interested to see how Judge McAfee handles the first hearing back after all this time away.

Anna Bower: Will he still be a Boy Wonder? That is the question.

Natalie Orpett: And will he still allow cameras in his courtroom?

Alright, let us change gears to two of the other prosecutions that we have been following closely, which are, of course, that of New York Attorney General Letitia James, who's charged with mortgage fraud, and former FBI director Jim Comey, who is charged with lying to Congress.

As everyone here knows, they have in common the fact that the interim acting––question mark––U.S. attorney Lindsey Halligan is behind their indictments, and both of them have challenged the legitimacy of her appointment.

And that motion is being heard on a consolidated basis before another judge, a third judge, not the one presiding over either of their separate criminal trials.

So all, with all of that background, I am turning it over to you, Roger, for the answer to the question of ‘is Lindsey Halligan the U.S. attorney for the Eastern District of Virginia.’

Dun dun dun.

Roger Parloff: Yeah. So, Judge Currie held this consolidated hearing. The, it's a, it's an interesting fact situation, and I wanted to run down it since it's a little different really than the other ones we've talked about––Alina Habba, Sigal Chattah, Bilal Essayli, and John Sarcone.

This is sort of, for the most part, it really focuses on one, the interpretation of one statute 28 U.S.C. § 546.

And I think in some ways it's a stronger case for the defendants. And in some ways it's not necessarily as strong as those other cases.

But in any event here's what happened. And the bottom line is that, you know, what Congress would really prefer, it's is in another statute, 28 U.S.C. § 541 is that the president appoint the U.S. attorney with the advice and consent of Senate

And the last U.S. attorney for the Eastern District of Virginia, who was Senate-approved was the Biden U.S. attorney Jessica, I forget her name. Excuse me.

Anna Bower: Carmichael.

Roger Parloff: Aber.

Anna Bower: Oh, Aber. Oh, right. Yeah. I'm thinking of Comey. Yes, you're right.

Roger Parloff: And so she stepped down on January 17th, which is sort of the norm.

And a few days later the acting attorney general appointed Erik Siebert to be the interim U.S. attorney under 546.

That, too, is the normal process. 546 appoints an interim attorney. And the way it generally works is that person has a 120 day term. And during that term, the president has a chance to get somebody approved by the Senate for this position.

And if he doesn't, within the 120 days, then the statute says that the district court may appoint its own U.S. attorney. It can appoint the same person that's there or it could, can choose somebody else. So, anyway, Siebert is appointed on May 6th. Trump does send his name to the Senate for approval.

On May 21, the 120 days runs out. But the district court is, okay, thinks he's appropriate guy, and appoints him under, again, 546. It’s section subsection D, but that again is all, you know, according to Hoyle. That's all the way it's supposed to work.

In September––and now we need to rely a little on reporting––obviously, Trump becomes dissatisfied with Siebert. And apparently he is resisting indicting James, and has qualms about the Comey indictment too.

On September 19th, Trump publicly says he wants Siebert out. And later that day, Siebert resigns.

The next day––and so that sets up the problem. Who––that creates a vacancy. Can the Attorney General then fill it again from the start under 546? Or does that 546(d) provision kick in and the district court fills that position?

What happens is, of course, that the next day Trump issues that very famous Truth Social thing: Pam, dot dot dot, we can't delay any longer. Lindsey's a good lawyer, likes you a lot. And urging the indictment of James Comey and Schiff. Schiff isn't in the Eastern District of Virginia, but anyway.

Halligan is appointed two days later. Comey is indicted three days later. And then about, maybe, I don't know, 14 days––on October 9th, James is indicted.

So each files a motion to dismiss, among other things, on this unlawful appointment idea, that the district––that you only get––that after the Senate-approved U.S. attorney steps down, the attorney general only gets one shot. And then after 120 days, and then the district court does it.

Otherwise the attorney general could keep reappointing maybe the same person, and you would defeat the whole purpose of going before getting Senate approval.

That's certainly the defendant's theory. And then when the government responded and said, no, there's nothing in the statute that prevents us to, from doing this serially, they also mentioned that and by the way, a few days ago, on Halloween, Pam Bondi purported to appoint all––they didn't say purport, they said she appointed Halligan a special attorney under three other statutes. And she did that retroactively to September 22nd.

There was no citation of authority for this sort of retroactive appointment in a criminal case. Also, Bondi purported to ratify everything that Ha––she said, I reviewed the grand jury proceedings, and I ratify everything that Halligan did.

So these were the very strange facts. And there's an update on this, which is, sort of jumped ahead just a few minutes ago. She re-re-ratified, Pam Bondi has re-re-ratified what Halligan did, and we can explain why.

But anyway, this is the record. So the question is, you know, what does 546 mean? Assuming that 540––even assuming that 546, if it's not, if it doesn't work here, can the retroactive fix work? And there are some other questions as well.

So in general, you know, and obviously these are just based on the questions that Judge Currie asked. She seemed to be skeptical of, I would say, all the arguments the government was making. She was skeptical that 546 could be used in the way they were using it. She was skeptical of the government's argument that this could be harmless error.

And I didn't mention the harmless error argument is very hard in this case, because––and Judge Curry has now read the grand jury minutes, and she confirmed that in both cases it was––both cases, it was just Halligan in the grand jury.

She was the sole government attorney. And she was the sole one to sign both indictments. We obviously knew that.

So the harmless error argument is a very hard one. There are also questions about, if you dismiss, do you dismiss with prejudice or not? She didn't really tip her hand on that.

I would say that it sounded like she was––that this whole attempt to retroactively ratify or add a new theory for the appointment may have backfired. At one point Currie said, let's cut to the chase––this is approximate, I don't have the transcript still yet––let's cut to the chase. What about ratification? Why do you need that?

And I think the implication was, you seem to think that 546 doesn't really let you do this. She was also quite upset, because after Bondi said––Bondi signed something on Halloween saying, October 31st, saying, I reviewed the grand jury minutes and I ratify what she did.

And then on November 4th and 5th, it developed that the government didn't have the complete minutes. And they had to order some recordings from the transcript service and have those transcribed and get those to Currie. And Currie had, you know, if you read the indictment, I mean, if you read the minutes, you would see that something was missing.

And so, Currie was pretty tough on the government attorney Henry Whitaker about, you know, based on a review of the grand jury, they were missing. And she couldn't have––so there was a sense that, that Bondi was not being candid. And that she was being reckless. So that was damaging.

There were a few other things. Early on, she had asked the defense lawyer, the first defense lawyer for Comey, have you seen the declination memo? Which was an interesting question, which I don't think the government––I don't think that is a good harbinger for the government, that she's wondering about the declination memo that apparently Siebert’s people wrote.

And I guess one other thing that came up, at some point toward the end she asked the government something to the effect, do you think that United States v. Trump by Aileen Cannon was wrongly decided. And the government answered something to the effect again, well, it's not controlling, but to the extent you read it to say that DOJ did not have the authority to do something––and I'm sorry, I just didn't get it and I don't have the transcript yet––we disagree.

So, they take some sort of exception to at least some interpretation of what Judge Cannon wrote.

I think those are the key things.

Natalie Orpett: Okay, so let me see if I can restate what some of the, sort of, pending legal questions are on this topic, to make sure that I'm understanding it.

So the motions were both to dismiss the case because Lindsey Halligan was not properly appointed. Therefore, the indictments were improper, therefore, all of the charges need to be dismissed.

Roger Parloff: Yeah.

Natalie Orpett: This is, of course, timing-wise, really important because there is a statute of limitations on both cases––

Roger Parloff: Actually, I, I think it only affects Comey's. Yeah.

Natalie Orpett: Well, it, yeah, as, as urgently. Comey's is very urgent. Yeah.

I think, I don't remember exactly what the statute of limitations is on the James case, but it was certainly not indefinite.

Roger Parloff: No, I, you're right, you're right.

Natalie Orpett: So, the question, then, is if she was improperly appointed, is it possible to make that not important at all, because the attorney general can retroactively ratify whatever she did?

So that is a question of the scope of the attorney general's authority under certain statutes that the attorney general has to appoint temporary types of attorneys. That is interrelated, but separate from the question of whether a temporary attorney in this position can step in, in this sort of context as U.S. attorney where there has not been a normal process of appointing or continuing the existing appointment of the acting U.S. attorney for the Eastern District because of the different statutes that you talked about in the intervention of the district court.

Am I missing any other major legal questions that we're going to wait to hear about?

Roger Parloff: I think that's a key one. And so there was a lot of discussion of this statute, 18 U.S.C. § 3288, which is the––what it says is that if a case is dismissed, if you've, if a case is dismissed for a reason other than statute of limitations failure, the government ordinarily gets six calendar months in which to reindict. And, even if the statute runs after the indictment came down.

And so there was a lot of discussion about this in two contexts. And what Comey was saying, well, look, if she's not properly appointed, the indictment is void ab initio, and so nothing tolls.

And the statute, his statute ran out September 30th. So this § 3288 doesn't apply. But you don't really need to reach that, we're not there yet, plus we think you should dismiss with prejudice because of the shenanigans involved here and the constitutional scope of the claim, and so on.

Another point where § 3288 comes up is the explanation for, well, how can. The government was using it too, to argue––the question was how can Bondi come in after the fact and save an indictment that seems to have run out between the time that it came down and the time that she ratified.

And they were invoking § 3288 and saying, well, we get six extra months. And the indictment itself tolls the statute.

And the other side was saying, no, § 3288 only takes effect after the dismissal. And the indictment was void ab initio. So yeah.

Natalie Orpett: Okay. So––and this is, so it's fully briefed. There's been a hearing now.

Do we have any sense of when we might get a decision on this matter?

Roger Parloff: She said she was going to try to rule by Thanksgiving.

Natalie Orpett: Okay.

Roger Parloff: Oh, and so––I'm sorry, so after she, it was after she dressed down Bondi, in effect, for purporting to ratify when she hadn't even read the whole proceeding, a few hours ago, or no, less than an hour ago, Bondi has apparently read the full transcript again and says, I ratify again.

Anna Bower: I will add, too, because I just read it while you were talking and she says that she ratified everything.

There's also an exhibit that's interesting from Lindsey Halligan, in which Lindsey Halligan explains that the entirety of the time that is, that the judge believes to be missing from the transcripts, according to Lindsey Halligan, that was the time that the grand jury was in private deliberations.

So she says that, you know, she presented the evidence from 2:15 to four something, 4:30 I guess. And then from like 4:30 until about 6:30, there was private deliberations of the grand jury.

That seems like a pretty long time for a grand jury to be deliberating over a probable cause, you know, a false, like, what should be a simple false statements case, and you're just looking for probable cause.

I don't know if they had other matters they were considering. But I don't know, like, I don't know about you guys, but I just, I think that stood out to me that that seems like a long time for a grand jury to be deliberating.

But according to Lindsey Halligan, bottom line from this affidavit, is that there's nothing that she presented to the grand jury that is not reflected in the minutes. That everything that's missing is just the deliberations of the grand jury.

Natalie Orpett: Interesting. That seems to contradict somewhat the notion that there was something referred to in the transcript that didn't appear earlier in the transcript, but maybe that was an earlier stage of––there's been now two rounds of missing grand jury materials, correct?

Roger Parloff: Well, it wasn't clear to me when––again, I don't, I haven't seen the transcript, and so when Currie was talking about the missing hours and so on at the hearing, I didn't know if she was talking about the missing materials at the time Bondi was first viewing it, or if she was saying there was still something missing.

So I, I just don't––I can't help there. And I haven't read the document that Anna just talked about. Yeah.

Natalie Orpett: Yeah. Well it's getting a little hard to track, given that these grand jury minutes are relevant in two separate cases and two separate motions.

But let's stay on Lindsey Halligan for a second. Anna, I wanted to come to you to tell us a little bit about the bar complaint that seems to have been filed against her this week.

Anna Bower: Yeah, so Campaign for Accountability filed a bar complaint against Lindsey Halligan in both Virginia and Florida. You know, addressed this lengthy 17-page complaint to both state bars.

Although Lindsey Halligan is barred in Florida, I think it's notable because, you know, there, there had been a lot of talk that, you know, people who were speculating about whether there might be a bar complaint were saying, oh, well it wouldn't matter anyway, because the Florida State Bar isn't going to do anything.

However, this complaint makes the argument that it's actually Virginia that has, you know, the key jurisdiction, although they ask both state bars to open a formal investigation into Lindsey Halligan. And they, you know, I'm not going to go over every single thing they mention, but just to kind of give you an overview, they mentioned a number of ethics rules, federal regulations, Justice Department policies that they allege Halligan has violated, particularly in relation to the Comey and the James case.

They point out things like, you know, the fact that this these cases were brought over the objections of senior career prosecutors who found that there was insufficient evidence to bring the case.

To that end, they cite ethics rules that say, you know, you shouldn't bring a case that's not––that you know not to be supported by probable cause. They also like cite a number of, kind of like general competency provisions.

They're essentially arguing, you know, she's inexperienced. There's all these reasons to think that she is just generally not competent to prosecute these cases and to serve as a prosecutor.

As well, Natalie, they actually cite the article that we published regarding my signal exchange with Lindsey Halligan. To that end, they alleged that she violated federal records-keeping laws by setting our conversation to have disappearing messages after eight hours. They also cite both Justice Department policies and ethics rules that restrict extrajudicial statements about a case.

So that's kind of a flavor of the various things that they're arguing in this complaint. And again, you know, they're asking for a formal investigation. Bar proceedings can be really opaque in terms of like, what's actually going on.

I know that we've tried to keep up with, in a variety of jurisdictions things related to like Kenneth Chesebro or John Eastman or Rudy Giuliani. And it can be really difficult because often, you know, it proceeds in secret, essentially, for a while. So we'll keep our eyes peeled to see what happens, but I do think that this complaint in particular was quite notable because it was a very robust, detailed complaint.

And I had not considered that potentially the Virginia State Bar might have some type of jurisdiction here. So we'll see what happens.

Natalie Orpett: Yeah. And it will be really interesting to watch, but you're absolutely right to note––and it's good to note for our audience too, we'll do our best to follow it––but different bar association, bars of different states have really different rules, and are extremely varying degrees of accessible for knowing what's going on.

And they also move at just unbelievably different paces. See, e.g., the recent disbarments of things relating to the 2020 election.

All right. Let us move over to talk some more about grand jury minutes, this time in Jim Comey's case in particular.

Roger, you attended a hearing on whether the government needed to turn over grand jury minutes to Jim Comey's defense team. Tell us what happened. That was on the 10th, I believe, right?

Roger Parloff: Yeah. This was a short telephonic hearing Monday afternoon. Very short.

This relates to the materials that––remember, the government wanted a filter protocol. There's a group of materials that the government got from some four searches from Dan Richman back in 2019, 2020. Part of the Arctic Haze investigation, apparently.

And comey is concerned about two things: that there might be privileged materials in there and looked at, and he's also has a Fourth Amendment issue about these old stale searches that were done, searching for, bas––looking for evidence of different crimes that are at issue here, some five and six years old, that were never apparently culled between responsive and non-responsive materials.

And the idea that somebody's rummaging through these again, he says, is a Fourth Amendment violation. And so last––a week ago, Wednesday, the magistrate judge said, and he was upset that all these issues are coming up, there's a trial set in January, and why are they still investigating this case at this late stage?

And he said, well, I'm turning over the grand jury minutes. And he––and we were all surprised because Comey hadn't asked the magistrate for the grand jury minutes. He had asked the presiding judge, Nachmanoff.

And on the Friday after that, the government appealed that to Nachmanoff. You can appeal a magistrate's ruling to the judge. And the judge said, yeah, you should make––I mean, he said that the magistrate had jurisdiction to do this, but he needs to make some particularized findings.

And so, some more briefs were filed, there was this hearing, and the government said, well, at the very least, you should first review it yourself in camera, in chambers.

And maybe you can satisfy yourself that there is no––can you hear me okay?

Natalie Orpett: Yeah.

Roger Parloff: Okay, I'm sorry. You can satisfy yourself that there is no privilege problem. And if there's any other pro-, maybe you make a much narrower disclosure and knock.

And the magistrate judge, William Fitzpatrick, said yeah, that's reasonable, I will do that. And then he also let Comey's people submit an ex parte submission designed to alert him to the things that they're worried about.

You know, look for this, look for that. Because he's in a much––they, Comey's attorneys are in a much better position than he to know what they consider privileged, what they consider probably a Fourth Amendment problem.

So, that's where that stands.

Natalie Orpett: This is mostly designed to give me flashbacks to when I had to do document review protocols. Okay.

Thank you, Eric Columbus, for your patience. I want to turn to you now to talk to us about what is going on in the case of representative LaMonica McIver.

So to refresh people, this is a, the congresswoman who was charged with assault in connection with her appearing at, I believe, an ICE facility which she says she was there for oversight purposes. And she has been pushing back and filing various motions to dismiss the charges against her.

So Eric, where do we stand on that?

Eric Columbus: So, yeah, so LaMonica McIver is a Democratic member of Congress from New Jersey.

On May 9^th, she and two colleagues tried to do an unannounced inspection of an immigration detention facility in Newark. And there is actually a law that is in an appropriations rider that allows members of Congress to do just that, though DHS has been contesting its scope in separate litigation.

There were also protesters at the time, and various scuffles ensued, and there were some arrests.

The mayor of Newark, Ras Baraka, was there, and he was protesting. And Representative McIver was in the facility, and she came out of it when she heard they were going to arrest the mayor. And she allegedly placed her arms around Mayor Baraka to prevent them from arresting him, and allegedly slammed her forearm into the body of one agent and tried to grab him.

And then later she was at the security gate trying to get back into the facility, and an ICE officer pushed her back in the parking lot and she pushed him in return.

So she was indicted for doing those two things under 18 U.S.C. § 111, for assaulting a federal officer. That's been a rather popular statute of late for the administration to charge, often but not exclusively in connection with anti-immigration protests. It's also the statute––sorry, anti-immigration enforcement protests.

It's also the statute that some may recall was used to charge Sandwich Guy here in D.C.

So, she moves to dismiss her indictment on two very different grounds. First is the Speech or Debate clause, which protects members of Congress, and then on the grounds that her prosecution was selective and vindictive.

So technically that's actually three grounds. The Speech and Debate Clause provides that for any speech in either house, members of Congress shall not be questioned in any other place. And the courts have interpreted that somewhat broadly to include not just literal speeches given in the House or in the Senate, but to protect anything that is quote, an integral part of the deliberative and communicative processes by which members participate in community and House or Senate proceedings, with regard to the consideration and passage or objection of legislation or other matters which the Constitution places within their jurisdiction.

So, the government actually concedes here that Representative McIver's inspection of the facility was a legislative act, and that generally legislative fact-finding is entitled to the protection of immunity under the Speech or Debate Clause.

But the one issue here is that when she was trying to restrain the mayor, or rather restrain ICE from arresting the mayor, that didn't really have to do with what with her oversight.

That was more part of like the protest. And it was part of her, if you will, political-with-a-small-p efforts at trying to influence executive branch action more as a citizen than as a legislator. And the judge found that that part, that that charge, had no real connection to any legislative function protected by the Speech or Debate Clause.

He, so he denied her motion as to that count. As to the other count, he said he didn't really have enough information yet and he needed, there was––discovery was ongoing and he needed more information in order to establish her primary purpose in reentering the facility.

And presumably, if her purpose in reentering the facility was to conduct oversight, then this act of literally trying to enter the building to do her job and then being pushed away by an officer and getting into a scuffle as a result, could well be something for which she has Speech and Debate Clause immunity.

And it's kind of wild to see the Speech and Debate Clause litigated over, like, literal physical conduct, which I think is kind of a new frontier for that.

Natalie Orpett: Was there any discussion of the outer perimeter of a member of Congress's speech and debate immunity? That's a joke for the Nixon fans out there.

Eric Columbus: Which there are many, I'm sure.

So, and now in her selective, in her selective prosecution claim, she argued that, look, this is silly to go after me when you've, the president just pardoned all these January 6th people.

Which is a good point, maybe as a matter of justice and fairness, but not really in terms of establishing a selective prosecution claim.

As the government pointed out, and as the judge found, this claim doesn't work with regard to January 6th because the Department of Justice actually did prosecute the January 6th people.

And even though the president pardoned them, the relevant question really is, is the prosecuting authority treating different people differently?

And the answer is that it is clearly not. With regard to the vindictive prosecution claim, the judge found that there was, that Representative McIver had not really established any reason to believe that there was any vindictiveness going on other than just the fact that she was a political opponent of the president.

But he found that would kind of basically prove too much, because it would mean that any prosecution of someone from the opposing party would be vulnerable to a vindictive prosecution claim.

And basically for the same reasons, the judge noted that even though the barrier is somewhat lower to get discovery on these claims, Representative McIver had not made enough of a showing to be entitled to that.

Natalie Orpett: Okay, so are there, does she have any other pending motions to dismiss or are we to assume that we are onward to trial?

Eric Columbus: I believe we are onward to trial. I think she may, that she may have a right to appeal these Speech or Debate immunity claims before a trial. I think that's the case.

So, I wouldn't expect a trial anytime soon, but it will eventually come at the very least on that one count that he to as to which he rejected Speech or Debate immunity.

Natalie Orpett: Okay. Alright. Let us change gears. Anna, I'm going to come back to you later on the Southern District of Florida happenings. But Loren, since you have just joined u,s let me come to you to talk about domestic deployments.

So over to DOD from DOJ. We have been following litigation in the Oregon v. Trump matter, which you've been watching closely for us.

Tell us what happened this week.

Loren Voss: Yeah, so we previously talked about the three-day trial, right? That happened at the end of October. Judge Immegut has now issued her opinion, came out late last Friday night.

It is 105 pages. 30 pages of that is finding of fact. You can tell she is trying to cross her t's and dot her i's here.

But what came out of it was a permanent injunction. So, the defendants are permanently enjoined from implementing the memoranda that federalize and deploy national Guard members in Oregon, right? And so there, remember there's a whole bunch of different memos here, 'cause she was the one talking about whack-a-mole.

I say you can't do Oregon National Guard, you bring in California, and then you bring in Texas. So this injunction is against that original federalization memo for the Oregon National Guard. It's against the memo that federalizes and deploys the Texas National Guard so far as it deploys members to Oregon. It is for the memo authorizing the federalized members of the California and Texas National Guard to Oregon. And then to cover her bases, it's also against any memoranda that deploy members of another state's national guard to Oregon that is based on the same predicate conditions.

So she's, you know, learned her lesson and made it cover all of those things now.

She does stay this injunction to the extent it enjoins federalization of any state's national guard, and specifically to the Oregon National Guard that stay is only in effect for 14 days.

So we're back to status quo, right? You can't deploy them, but they can stay federalized. And we'll, you know, see what happens there.

So a little bit on the analysis here. So, remember, you know, this court is bound to apply the Ninth Circuit Newsom analysis here, which is the standard of a colorable assessment of the facts and law within a range of honest judgment. What she points out though, is that there's some differences here in the Oregon scenario.

You know, one is that they did not do a 12406(2) analysis, which is the rebellion or threat of rebellion, right.

So, before it was just 12406(3). And then when they did that analysis, she didn't feel like they fully delved into the meaning of “execute the laws of the United States.” So she felt there was still some open questions here.

I do want to touch on injury for a minute, and standing, because this has been an interesting piece throughout. It is, you know, what is the concrete injury that the state actually feels, you know, from the federalization of its National Guard?

And the defendants say only 3% of the Oregon National Guard was federalized. That doesn't, that's not a concrete, you know, injury of any type.

The judge had two responses to that. One is that it was 60% of the quick reaction force, which is a more significant number, but also the injury that she was focused on was not the adverse impact to state operations.

She actually focuses on the sovereign injury of the federal government unlawfully commandeering state officers. And so that is not a specific number that you need to look at, right?

But all of that is predicated on the idea that she explicitly states that the presidential power to call forth the militia is not an inherent power. It is a congressional delegation of constitutional power in the Calling Forth Clause.

You know, and we can compare that to the Seventh Circuit opinion, which was a little less explicit in saying that, but it does do a 10th Amendment analysis that concludes the Constitution has recognized grounds for federalizing the National Guard.

And so the success of their 10th Amendment claim was analyzed and based on the lawfulness of a 12406 invocation.

So that's a more subtle version of the same thing, but really looking at this being a delegated power to the president and not him having inherent authority under the Constitution.

So the 12406(3) analysis, right, so this is the ability to implement the laws, she focused on the fact that there was two different questions for Portland here.

That one was, well, what if, you know––well, firs,t we have to apply the Newsom analysis. It has to be significantly impeded. The execution of laws can't be mere interference.

But her questions are, one, what if months prior, there was significant impediment? Is that enough? And remember, from the Ninth Circuit opinion that is now going to be reheard, one of the things that they pointed out was that she looked at that narrow set of facts and didn't look at what was happening in June in Portland.

The second thing that she looks at is, how does the ability of federal officers to execute the law if they get aid from additional federal officers, affect the analysis? Because there's also that conversation of how many additional officers were called in and how sustainable that was.

She also makes an interesting argument that when you look at the history and traditional analysis of this section of the statute, it's based on a precondition when federal courts or federal law enforcement cannot function without the intervention of a militia.

And so she kind of calls this the common sense understanding of the scope of the Calling Forth power. So it's linked to the ability of the civil power to execute the laws.

And I mentioned that as interesting, because as we'll get to shortly, when we talk about what's at SCOTUS right now from the Seventh Circuit, they're talking about regular forces and its meaning towards military forces.

But he or she really focuses on that in more of a civil power, civil law enforcement focus. And so it'll be interesting to see how the SCOTUS case shakes out and how that interacts with this case. So, she, you know, does the same thing she did before.

There was not a significant impediment of the ability of federal officers to execute the laws leading up to the federalization. What's different here than what she did before was she does look at the June events, right? So she goes months back, she compares it to L.A. and what the Ninth Circuit found, and finds that it was not to the level of impediment that you had in L.A.

And remember the Ninth Circuit when they, their vacated panel opinion said, you've got to look at the entire context of events leading up. So she's like, okay, I can, I'm going to do that. But they're not all equally relevant. Different things get different weight.

And she makes the argument that, you know, for example, there was significant unrest in Portland in 2020. Could we use that to justify the military being deployed in 2025?

Which I think is a fair way of looking at it, because it's a question of, you know, how much temporal time must pass. And so she actually critiques the Ninth Circuit’s vacated panel majority that says it's up to the president to identify and weigh factors under 12406(3).

And she says, if that was true, review by the courts would be in name only. So I, I say all of that to then say, the interesting piece here is, okay, that was all about the Oregon National Guard and its Federalization. What does that mean for the California National Guard, which the Ninth Circuit found was federalized legally under the exact same provision in California.

And so she goes through some analysis that says that they are permitted by statute, if you look at the plain text, to be deployed to execute those laws that the president was unable with the regular forces to execute. So you cannot enforce other laws in other states that have no connection to the original federalization.

So, she says the president violated 12406(3) when he federalized the Oregon and Texas National Guard for Oregon, and then he violated the statute when he took the California National Guard and moved them to Oregon.

And so, you know, this makes practical sense, right? Otherwise you could federalize thousands of troops at a place like L.A. and send them all over the country without having to argue to federalize those troops.

So what I will say, though, is what you could expect is, what you're already kind of seeing the US government do now, and it's, that's tie the incidents and the protesters together, and make an argument that this isn't isolated protesters in three different cities, but it's part of a wider Antifa strategy, right?

Like, this is speculation here, but you kind of see those threads starting to be built.

And I think, you know, that would be a hard argument to make, but depending on the level of deference that courts ultimately will decide to give for this statute, that could be an argument that comes out of it. And I think you already see those threads happening.

I'm going to quickly turn to 12406(2), just because, you know, we've, we don't get to talk about rebellion much. So here's a question on what rebellion means in America today, which wasn't addressed by the Ninth Circuit panel opinion in Newsom, right?

So, so she determines that the ordinary meaning is an appropriate one looking at the historical and governmental context. So the definition that she gives is an organized group engaged in sustained armed hostilities, for the purpose of overtaking an instrumentality of government by unlawful or anti-democratic means.

Note that, you know, the defendants, U.S. government, have a much broader definition that they had proposed. They proposed open resistance or just opposition to an authority or tradition, and then, or just disobedience of a legal command or summons.

So they had tried to do something much more broad.

She says, you know, this is, the rebellion is followed by the phrase against the authority of the government of the United States. And so you, you know, you really have to focus on that. But the danger of rebellion is actually what they're arguing here now, that the, not that there's a rebellion. So the U.S. government is saying there's a danger of rebellion.

And she says, you know, that I'm not going to accept an ordinary meaning of, you know, danger is just a hazard or a risk, but we can have a restricted meaning, because otherwise it lead to absurd results, right? Or thwart the purpose.

So, she says, without limiting danger, any remote risk, any kind of First Amendment activity that had some level of discontent, could be considered a danger at rebellion.

So she makes it a temporal limitation. There has to be an impending threat of rebellion. Interestingly, she then quotes then-Judge Barrett in a Seventh Circuit decision defining rebellion, saying rebellion was a very specific crime in the Colonies. It was a traitorous taking-up-of-arms, or, you know, opposition to the authority of the king by individuals bent on overthrowing the government, right.

And so she's, I think, you know, seeing that this is going to continue to probably get appealed and trying to make all of these claims that she can. So she walks through the test, you know, it's not that organized. Antifa in Portland is not an organized group. They're not really collectively armed.

They found six guns over the whole period of time, not on the same day. Only one was even brandished. There was one day of a declared riot back in June, but it's not really levying war. And then, you know, most importantly, there's no evidence that the purpose was to take over an instrumentality of government by unlawful or undemocratic means.

And then she goes on to do some 10th Amendment analysis, which is pretty short but interesting in that she says, you know, 10th Amendment powers not delegated to the United States by the Constitution or prohibited to the states, are reserved to the states, right?

But she talks, she goes back to that commanding of state officials by the federal government and says, that's in violation of the 10th Amendment.

So I think it's interesting specifically because she talks about California and Texas National Guard as being a violation of equal sovereignty between states. And so she talks about it as an intrusion, as their cap––in their capacity as militiamen of those states.

Which is interesting to me because California didn't support this, right? The state of California, the governor of California was not trying to send their militia into Oregon.

So to say it's in their capacity as militiamen of that state is an interesting framing. But it comes from the fact that the federalization was unlawful, right, and so therefore they were never properly federalized. But they were ordered there by the federal government.

So there is an interesting 10th Amendment sovereignty conversation there on like who was actually in charge of those national guards, and whose sovereignty was violated how.

So, interesting case overall. Incredibly long. Sorry it took me a little bit to get through it, but some fun parts.

Natalie Orpett: Let us continue with domestic deployments for a second. And tell us, Loren, about the briefs in the Supreme Court on the meaning of regular forces.

Loren Voss: Yeah, and so this is tied to the conversation that we just had on, you know, when unable to execute the laws by regular forces, what does regular forces mean?

And remember, we had Marty Lederman on here, who wrote the amicus brief arguing that regular forces in 12406(3) meant regular military forces. The court then asked for supplemental briefs to address this question. So, does that mean regular for-, does regular forces mean the U.S. military? And if so, what does that mean to the interpretation here?

And remember, this is the appeal of the Seventh Circuit decision, which is Illinois. So one thing to just flag up front is that the government's claim here is not just that they met the 12406(3) requirements, but also that they met 12406(2), which is the threat of rebellion.

So even, however this might shake out on the definition of regular forces for subsection three, it's really not clear how SCOTUS feels about rebellion or threat of rebellion. But I will note that the president never made a finding, at least not publicly, there was that there was a threat of rebellion.

So it's an argument that's being made in court, but there is no memo or brief like we have when we're talking about the ability to execute the laws that we can point to.

Right now there's many memos that have said that, but we haven't seen one yet that says there's a threat of rebellion. So while they're making that argument in court, we haven't really seen the documentation behind it.

Not to say that it doesn't exist or it's just not public, but it's a, it's an interesting argument to make.

There's also two new amicus briefs that are worth mentioning. Marty Lederman did a supplemental brief, which we can get to in a second. There's also an amicus brief from 155 current members of Congress in support of Illinois. That's about 29% of Congress, which isn't nothing.

But the argument is what you'd expect, you know, Congress did not enact 12406 to give complete deference to the president, and the actions under 12406 are reviewable by the federal courts.

And then, so what we have right now then is those two letter briefs.

So Illinois's brief says why yes, of course regular forces means the standing military. We did not make that argument before, but yes, that is indeed what it does mean, and therefore the U.S. government cannot meet the requirement.

So not a surprise that's what the argument is there. The U.S. government brief, not a surprise in that they argue that regular forces are, no, they're actually the civilian forces that regularly execute the laws that are currently being obstructed.

They make a structural argument primarily that, you know, if it's military forces, then why is that only mentioned in subsection three? When the military doesn't usually execute the law, but they don't mention it in (1) which is invasion, and (2), which is rebellion, which are the areas where the military traditionally would respond.

They also make this argument that there's a strong tradition of favoring the use of the militia rather than the standing military to quell domestic disturbances. They cite the Constitution's Calling Forth Clause, which we've talked about numerous times and say that expressly provides for the militia, not regular forces, to be called forth to execute the laws of the union.

As I'm sure, you know, we have a lot of history buffs on here, there was not a standing army when the Constitution was written. So there was––Article I, Section 8 did give Congress the ability to raise and support armies, right, but with money for no longer than two years.

And so that was written in there, but like there, it was a different framework at that time, right? There was not this concept of a longstanding militia.

And so Lederman’s brief describes, you know, this situation when the country, when the Constitution was written, but how that changed by 1807. And so at that point, congressional provisions started allowing the use of the standing military––most well-known of that, the Insurrection Act of 1807, which refers to the standing military.

He goes through a historical analysis, you know, because they, the government claims there's a strong tradition of favoring the use of the militia.

So Lederman does a historical analysis which says, you know, for a long period of time, the president virtually never used the militia for such purposes under the Insurrection Act, and consistently actually preferred the regular forces.

So he kind of pushes back on some of that analysis. Granted, the briefs were at the same time, so he's actually responding to a different one of their briefs.

The other argument that they make is the same argument they previously made, which is, it doesn't matter how you interpret regular forces, because the president's judgment is not judicially reviewable here. So we're back to Martin v. Mott again and its progeny.

So they basically say, at a minimum the president's interpretation reflects a colorable assessment of the law, if he says it's civilian law enforcement. Nothing there that I think is that surprising.

But I do want to flag this interesting argument at the end of the brief. They decide that there is also reasonable grounds to determine that he was unable to execute the laws within the meaning of subsection (3), even if regular forces means the standing military.

And so there's two points that I want to highlight there, because I think they're going to come up in other situations as we continue to see this.

One is that they claim that the standing military was undoubtedly an available option to quash the violent resistance to federal immigration enforcement. Which is an interesting claim and not one that, you know, everyone would agree on.

They say, you know, it's because they ordered the National Guard to protect federal personnel and property. And the standing military can also take protective functions like that under the president's Article II powers, notwithstanding the Posse Comitatus Act.

And we've had many conversations about the protective power in Article II. But it seems like here it's unclear if they're saying that they're not executing the law or this is an exception to Posse Comitatus to use the Article II powers in a protective power sense.

But remember in the Newsom hearing, you had a commander of the JTF say he was told by lawyers that the Article II power is an exception to the Posse Comitatus Act. And so you're kind of seeing this argument come up again.

The other piece of it was that they said, you know, the president could reasonably determine that the standing army, rather than the National Guard, would actually impede the execution of the law.

Because the standing army is less well suited to perform protective functions in the streets of American cities. And they talk to, you know, an army general who was a witness for the respondents, that soldiers in the standing army have an aggressive mindset because their mission is to destroy the enemy.

So the president could have reasonably assumed that deploying the standing military would actually result in more resistance.

Which is interesting, right, because we've seen that argument be made by states on the other side. But now they're saying the president could have reasonably made that analysis. And the nature of the resistance could lead the president to determine the National Guard is uniquely adapted for this mission. Local knowledge, ties to the community.

As a veteran, I don't think it's unreasonable to make the argument that the standing military could escalate the situation on the ground. We've had a number of states make that argument, just based on the training received the differences between wartime rules of engagement and peacetime rules for the use of force. However, there's no evidence that the president did this analysis or made that judgment call here, right?

It's all like, he could have done this. But it's interesting to me because you just have to point out the inconsistency in making this argument here with the remarks made by the president of his desire to invoke the Insurrection Act and send in the standing military into a variety of cities.

So it's just kind of like an inconsistent argument across cases and situations which I think is worth flagging for the group. But now we all just stand by the reply briefs. The reply letters are due on Monday. We'll see what they see back, but it'll, so it'll still probably be a while before we hear anything from the Supreme Court.

Natalie Orpett: Okay. And is there going to be argument on this?

Loren Voss: I don't think so.

Natalie Orpett: Okay.

All right. Let us change gears. Eric, we talked last week about SNAP benefits which was outside of what we had typically considered or traditionally considered our issue space, but was very much tied up in separations of powers matters and funding questions that we've been following very closely.

The shutdown seems to have ended the cutting off of payments to SNAP, but there were a bunch of lawsuits pending as of last week, and the shutdown just ended on Wednesday. So where are we now?

Eric Columbus: Those lawsuits appear to be most likely moot. The government and the Supreme Court withdrew its request for a stay pending appeal of the orders that had forced it to, that had been forcing it to make payments out of various other pots in the absence of an appropriation for SNAP, and the remaining litigation in the district courts would seem to have been mooted.

I think the plaintiffs said they wanted a little bit extra time to consider their options and what, if anything, remained, given how fast things were going ahead, but I think they would wind up agreeing that the cases are moot.

I'll note also that SNAP is now funded through the entire fiscal year. So this issue is not going to recur during––even though the appropriations are only through January 30^th, if there's a further shutdown, SNAP will not be at issue.

And so this Supreme Court won't be asked to weigh in again, at least during this fiscal year.

Natalie Orpett: Yeah, it's interesting because if you put it in the context of other lawsuits over spending matters and sort of under the general umbrella of impoundments, rescissions and executive branch actions with respect to funding and schemes that Congress had put together for funding things, there have been several other instances also where things have sort of been mooted out by, by factual developments. And it just seems to me that we continue to be left with a lot of open questions.

Okay. We are going to shift over to Q&A shortly, but Eric, I did just want to give you a chance to let everyone know about Attorney General Bondi’s announcement today.

Eric Columbus: Yes. So, this afternoon––well, just to back up, as some may have seen, President Trump has been posting on truth social about Jeffrey Epstein and his lack of involvement with what he calls the Epstein hoax.

This morning he said he specifically in one post said he would be asking the attorney general to investigate Epstein's involvement and relationship with Bill Clinton, Larry Summers, Reid Hoffman, JPMorgan Chase, and many other people and institutions.

A few hours later the attorney general tweeted in response, she said, “Thank you, Mr. President, SDNY U.S. Attorney Jay Clayton is one of the most capable and trusted prosecutors, and I've asked him to take the lead.”

And just to step back a bit, this is something that would've been considered shocking in, in really any prior presidency.

Leaving aside the question of the president's involvement with Jeffrey Epstein or not, the notion that the president would publicly call upon the attorney general to prosecute, to launch an investigation to someone. And the attorney general would equally publicly basically salute and say, I'm on it, that type of thing would never have happened.

Obviously, we don't know what happened behind, whatever happened behind closed doors, but there was never this, blatant disregard for what has historically been the independence of the Department of Justice in prosecutorial and criminal investigations matters.

And, you know, naming Jay Clayton kind of makes, I suppose, sense if you quote unquote, have to do it this way, was that was the office that prosecuted Epstein in 2019.

Somewhat ironically, one of the prosec––according to Politico, one of the few remaining people who worked on that case was Maureen Comey, daughter of Jim Comey, but she's been fired by DOJ a few months ago, and therefore will not be able to work on it.

I don't expect this will actually go anywhere, but it's just a further example of how the President gets––is building interest in ordering investigations into his political opponents.

Natalie Orpett: Okay. We are very short on time, for which I apologize.

We'll answer a couple of questions. I'll also just flag two things that we will follow up on next week since we didn't have a chance to talk about them today.

One of which is the flurry of activity in the Southern District of Florida, and apparently a lot of subpoenas going out in connection with an investigation into a broad conspiracy. It seems it's mostly just reporting at this point, so we'll have to keep an eye on whether anything solid comes out of that next week.

The second is, we did see that there was breaking news as we were talking that the D.C. circuit has declined to hear en banc the J.G.G. decision.

I'm not going to get into all the background of that or we'll run out of time for questions, but a promise to all of you that we will discuss it next week.

So, apologies to anyone whose questions we don't get to, but to start with one, Simon from Montreal––this one's for you, Anna––have any of those who plead, pled guilty in the RICO case in Georgia tried to retract their pleas and/or their cooperation agreements?

Anna Bower: So I believe that, so to my memory, Kenneth Chesebro did try to––so, all right, the counts that were dismissed, it would have been at least one of them, I think it was Count 14, maybe 15.

That's the one that Chesebro pleaded out to. And it, but it wasn't dismissed as against Eastman and these other folks until later, after, well after Chesebro had already demanded a speedy trial.

And then right before you're supposed to go to trial, he pleaded out. So it was after judge McAfee decided to dismiss that count, that he pleaded to, that Chesbro tried to reopen the deal by, you know, saying, oh I, basically like, this should be dismissed. You know, blah, blah, blah.

That didn't go anywhere. So, you know, beyond that, I'm not aware of any effort by Scott Hall or Sidney Powell or Jenna Ellis to formally you know, back out of their deals. They, as far as I can tell, are still bound to assist the prosecution if they're called to do so. All of those people are––and you know, they have the proffer videos as well.

If people remember, a part of those plea deals involved them doing a proffer in which they, you know, went to the prosecution and told them what they knew. So that's part of the investigative file that Pete Skandalakis is presumably reviewing. And yeah, I mean, other than that, I'm not aware of anyone trying to get out of their plea deal.

Natalie Orpett: All right. We're going to do one more question. I'm going to save the rest of them for next week, so apologies again.

This one I think we'll go to you, Roger. There's basically no way Abrego is going to trial, right?

I don't know. This is from anonymous attendee. I don’t know how the government isn't taking the offramp of deporting Abrego to Costa Rica, so the case quietly goes away and they save face, especially if Blanche would otherwise have to testify on the vindictive prosecution motion.

What are your thoughts on that.

Roger Parloff: Conceivable. You know, they were close to a deal, a plea deal at one point, and I do think the, you know, the case is not an easy one to win. If it does go to trial, you know, the evidence looks pretty strong as far as the human smuggling thing. So, I really don't know how it's going to be resolved.

It seems like he wants to go to Costa Rica. They were close to sending him there. So, so I really, I just don't know.

Natalie Orpett: Yeah, I agree. My, my read of it has been that it has seemed at times that the left hand is not talking to the right hand in that matter.

Alright, well, we are unfortunately at time.

But thank you to everyone for joining us. Thank you, Anna, Loren, Roger, and Eric for all of your insights, and we will see you all next week.

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

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