Lawfare Daily: The Trials of the Trump Administration, Nov. 21

[Intro]

Benjamin Wittes: It is the Lawfare Podcast. I'm Benjamin Wittes, editor in chief of Lawfare, with Lawfare Senior Editors Molly Roberts, Roger Parloff, and Eric Columbus, and Public Service Fellow Loren Voss.

In the November 21st episode of the Trials of the Trump Administration, we talked about a judge who ordered the Trump Administration to end the National Guard deployment in Washington, DC, we updated listeners on the prosecutions of Letitia James and James Comey, we talked about a hearing in the Kilmar Abrego Garcia civil case, and so very much more.

[Main episode]

Benjamin Wittes: It is Friday, the 21st of November, 2025. It is 4 o'clock in Washington, DC, and folks, you're watching Lawfare Live, our weekly roundup of all the events in the litigation challenging Trump administration action and reflecting Trump administration action.

I am Ben Wittes, editor in chief of Lawfare, and I am here with not one, not two, but three Lawfare senior editors, Molly Roberts, Roger Parloff, and Eric Columbus. And one, count them, one Lawfare public service fellow. That's Lauren Voss.

We have, I think the technical term is a veritable boatload of material to go through. We're going to be flying through it. It's going to be happening pretty fast. I hope there will be time for questions at the end, but forgive me if there aren't, because this has been one of those weeks where I have been unable to keep up with the docket. And my full-time job is nothing other than keeping up with the docket. Haven't been able to do it.

And one of the issues that I have not been able to keep up on, Loren Voss, and which is why I'm so glad to have you with us, is the domestic deployment stuff.

And so I'm aware that there was something that happened in DC. There was, I think there was an opinion in Texas or something.

Loren Voss: Tennessee, Texas.

Benjamin Wittes: Tennessee, sorry. It was T-E. And I, you know, just figured I would have you talk to me like I was a kindergartner about this, because I may as well be for this purpose.

So let's start here at home in DC because that's where we all are.

I understand Jelani Cobb has written an opinion questioning whether the deployment of federal troops, who––the federal troops near the Brookings Institution, by the way, have been learning chess in the in Dupont Circle from our local chess hustlers. And it has warmed my heart to see.

And are they going to be taken away from us?

Loren Voss: Yeah. Sh––her decision came out yesterday. I will say that she didn't rule on everything. So she ruled on the APA claims for the Home Rule Act, the EMAC, and Title 32. So she issued a preliminary injunction enjoining the DOD defendants from deploying or requesting the deployment of any members of the National Guard in DC.

And she lists the various letters, orders, right? All of those things are now stayed, any of the MOUs for state support––because remember you have DC National Guard, and you have nine other states that have their national guards in DC. So this tries to cover all of those. She does administratively stay for 21 days, until 11 December, so that this can be appealed.

So when you ask, are they going away? The answer is we don't know yet.

But she does do some interesting analysis. So specific to the APA contrary to law claims, remember, you know, the president's not an agency. You can't review his actions. So while all of this stems from a presidential directive to the SecDef to mobilize the DC National Guard and then get the out-of-state national guards, we can't directly question that.

So instead she analyzes and does an APA review of the agency orders below that that are implementing the presidential directive.

And in this case, that's the DOD defendants, so the Secretary of Defense and those underneath him. And then DC being wonderful in its uniqueness, as all of us that live here know, there's the DC Guard question and then there's the out of state Guard Title 32 questions.

So this is completely different than what we've been talking about of all the Title 10, 12406 stuff in all of the other states.

So these completely separate questions. So the DC Guard is currently operated in Title 32 status, and the defense––so USG made three claims. One is that the president's, the commander in chief of the DC Guard, even in militia status, right? And so he doesn't need any statutory authority to use it. He can do what he wants as commander in chief.

The second one is a DC Code provision that the other duties that are in 49-102 can include supporting law enforcement and deterring crime.

And then their third argument was there's an inherent Article II authority to use troops for protection of federal property and federal functions and to enforce federal law.

We're familiar with that being used in various other Title 10 cases, but it's interesting to make that in a, when DC's in a militia status claim. So Judge Cobb kind of does like a common sense reading of Title 49.

So the DC code, chapters one and four––and we haven't talked about it in a little bit, but, right, so the first chapter is active-duty military.

When do people get called up? There's one on prescribing drills, 49-102. And this is the phrase, this is the one that, that the government has latched onto. And this is the phrase, if they do inspections, drills, parades, escorts, or other duties, right? And they've latched onto that “or other duties” is what is used here.

However, there's also a 49-103, which is the suppression of riots. And it says, you know, when there's a tumult, riot, mob any of those things, it shall be lawful for the mayor, the United States marshal for the District of Columbia, or for the National Capital Services director to call the commander in chief and ask them to use the National Guard, right.

So those are the two provisions that talk about how you can use the DC National Guard in militia status.

And the government has said, okay, we're using that vaguer provision because, well, none of those three officials actually asked for help. So we're using the “other duties” one instead.

And so going through their arguments, right, the first thing Judge Cobb says is okay, he's commander-in-chief of the militia, sure. But just as the title makes him the commander-in-chief, it also defines that power and says when he can use it. So no, you can't just say he's commander-in-chief, he can do whatever he wants.

Going to the second one. She walks through the different arguments––and this is similar to a 502(f) analysis, but I want people to know it's different. This is different because how this provision is in law and what's around it is different. So when this talks about other duties, right, it, the government is arguing that escorts and inspections or core police and law enforcement duties, other duties, should include law enforcement. They referenced some OLC opinions.

The judge determines here that the aiding of civil authorities and execution of the law is explicitly in that other provision, 103, right? And it says you can only do these things when relevant civil authorities request the president's aid.

So she says, no, you can't use 102 to do what you're saying. 102 is not about law enforcement. There's a whole specific provision on it. You didn't use that one.

The third argument, is that there's a free, there's a free––she calls it a free-floating Article II power, which I love as a phrase. And she says, there is no free-floating Article II power when it comes to his power over the DC National Guard of militia status, right? So it's bounded by Congress's power to govern the District and its military forces.

And the DC Militia Code is patterned after state statutes that delineate government, governors’ powers, right? And so there's a lot of other states that have similar patterns to what I was just talking about, where there's like a drill and training one, and then there's a, there's the specific missions you can do. And she says, this is what mirrors here. So she also throws out that third argument.

So basically she says, for the DC National Guard, they have not used the appropriate legal authority to come out as a state militia and do this mission. Other national guards, we get to 502(f) remember, and that's the language where it's, you know, “other duty.”

And it has to be––it can be to support operations or missions undertaken at the request of the president or the secretary of defense. And so this one explicitly does talk about the fact that that “other duty” phrase can include operations or missions, and that's what makes it different than what we were just talking about when we talk about the DC code.

U.S. government argues that the plain text of 502(f) “other duty” means operations or missions requested by the president or SecDef, and there's no limit there. It can be as long as the president or SecDef asks for it. Any federal mission, any time, any purpose. The only limit is that the state governor of the forces must consent.

You know, if the judge goes through, you know, this would swallow Title 10.  This would swallow the Insurrection Act limitations. This would swallow Posse Comitatus. This is, you know, not an argument that makes sense.

The plaintiff's arguments, however, is that 502(f) is just a training-related provision, hopefully from everyone listening to this podcast and how many times we've talked about it, you know, we know that's not true. There are specific elements in Title 32 that talk about using 502(f) for operational missions, right? So we know that's not exactly accurate either.

But Judge Cobb says 502(f)’s “other duty” is not an independent grant of authority for new federal missions. And that really should be the takeaway, right? You still need that mission authority, wherever it gets––wherever it might come from.

Her opinion does get confusing here, because she's, she focuses on the fact that, these operational missions need to have the authority to undertake them under state law.

And so I, the argument would be, you know, the governor can't mobilize his National Guard troops under Title 32 for a mission that would go against his state constitution or statutes. Because remember when he's in, even in Title 32, he's still the commander in chief. So he couldn't do things with them that would go against his state law.

But you're doing a federal mission, so you need federal mission authority of some type. And we've talked through these before, and she talks through the them in her opinion too, but it's unclear how she's linking it all together, right?

We talk about Homeland Defense missions, which is entitled 32 Section 904 says, okay, you use 502(f) for that. We've talked about border missions. There's section 112, right? That's your drug interdiction and counterdrug.

And she says, then why do all of these things exist, if 502(f) covers everything? Why do you need these other mission authorities? Which is a very fair point.

Finally, she also determines that out-of-state Guard units have to be requested under the EMAC, remember, the Emergency Management Assistant Compact, which was approved by Congress.

And she says, even for Title 32 missions, I think we're going to see a little bit more on that front, because I don't know that that's really been decided. It's usually for state-to-state and state active duty.

I'm not sure that there's a strong legal argument that even every Title 32 mission would have to go through EMAC versus it just being one mechanism you can use. But so she finds, though, no legal authority for either of the two.

Like I said, you know, this is stayed until 11 December. But assuming that this will be appealed.

Benjamin Wittes: Alright, and let's just game out a little bit and how we expect an appeal to go. It seems to me what you would expect from the DC Circuit is almost entirely contingent on the question of what panel gets selected. Do you share that sense?

Loren Voss: I do. So it's really hard for me to say what I think's going to happen next.

But I will also say she still has some claims that she hasn't heard, including violations of Posse Comitatus. And so there's some interesting elements that might also still happen at her level. But at the Circuit, I do not know.

Benjamin Wittes: You get the right panel at the Circuit, you're going to get one result. You get the wrong panel at the Circuit, you're going to get a completely different result.

But what about the Supreme Court? Do you look at this and say, alright, this is the kind of thing that it's easy to enjoy at the district court level and maybe survives at the appellate court level, but it's, you know, any friendly appellate court opinion on this subject is going to have a stay put on it, with a lengthy Sotomayor dissent or Kagan dissent.

And that's going to take, you know, 20 minutes? Or is this something that you could imagine as having legs?

Loren Voss: So I think my concern here is some of the arguments that the USG has been making in the other cases, right, and starting to pull in some of those constitutional Article II authorities. And talking about, this is a protective power federal property, federal mission protection.

And if you could––if there's a valid argument of narrowing the scope there to that type of mission and that type of mission authority, then I could see this being supported.

But I think when it comes specifically to the DC National Guard in state militia status––to me, that's the strongest argument, is that piece right there.

And you know, and they're in state militia status, right? This is very different in that it's not federalized, it's not Title 10. And so DOJ seemed to be crossing their arguments between the two of him as president and him as commander in chief of the DC Guard.

All that to say, Ben, you know, I am wondering the same question right now, and I don't think I have good answers yet.

Benjamin Wittes: That's fair. One cool thing about Lawfare is that when we don't have good answers, we don't actually have to fake it.

Alright, so let's talk about Portland, because you know, there are National Guard troops in a lot of different cities. We have a Ninth Circuit en banc. What's going on there?

Loren Voss: Yeah. For Portland, so we have, that's the Oregon v. Trump case. Remember we talked about Judge Immergut’s permanent injunction. She stayed that decision, but the part for the Oregon National Guard she only stayed for 14 days.

So the U.S. government obviously appealed that injunction. And then remember, besides that appeal now going up to the Ninth Circuit, we also had that previous appeal of TRO number one, which was going to be reheard en banc.

And so what they've done now is they've consolidated those two into one appeal. And then the permanent injunction was administratively stayed specifically on the part that enjoined federalization of the Oregon National Guard. Because that was the one that was the shorter 14-day window. But interestingly the briefing on that emergency motion to stay pending appeal is stayed itself, pending the SCOTUS ruling in the Illinois case.

And so they are waiting for SCOTUS to rule on Illinois v. Trump, and then they'll set their briefing schedule after that ruling is released. So that's kind of on hold, but at the same time, SCOTUS could come out at any time with a decision.

Benjamin Wittes: Gosh, they don't make this simple. What about the Seventh Circuit?

Chicago's got a case going on too.

Loren Voss: Yeah they're all starting to merge together into one Frankenstein case. So that case is the one that was appealed up to SCOTUS. We talked last week about the letter briefs, which was, you know, they specifically had to talk about the question of whether 12406(3), the phrase “regular forces” meant the military or not, and what the impact of that was.

So we kind of talked through those briefs last week. The reply briefs were due Monday. So I'll just quickly mention a couple things out of that.

One is I don't think that you should be surprised by their reply briefs. You know, very similar to what they had before. But two things that I think will continue to be relevant: one, we talked last week on here about an argument that the DOJ wrote, that said the protective function can be performed by the standing military under Article II, notwithstanding the Posse Comitatus Act.

And, you know, I was like, okay, what is, what does that mean? Does that mean they're saying that when you're doing the protective power, you're not doing law enforcement? Are they saying it's an exception to the Posse Comitatus Act?

And in the reply letter, they now explicitly state that the Posse Comitatus Act is subject to limited exceptions, such as the Insurrection Act.

And now they claim the President's Article II authority to protect personnel and property. So they have now explicitly put out that claim that that inherent Article II protective power is an exception to Posse Comitatus.

That's not necessary to decide this case right now where it is. But this justification for military action and what covers it, it's going to continue to come up. Chris Mirasola wrote a great piece yesterday for Lawfare on the protective power and this argument that people should read. But I would just expect this argument to keep coming up. And now they've explicitly said we believe it's an exception of Posse Comitatus and we can do law enforcement.

The second thing I wanted to mention is just a factual element, because the government previously acknowledged that they are coordinating better with local law enforcement, and that's reduced the need for federal officers to engage with protestors at the ICE facility.

And the state of Illinois had kind of used that as a ‘this is why, you know, SCOTUS shouldn't rule on this. It's not relevant.’ But what the U.S government argues in its reply letter is that there's violent resistance across the city and they need to protect DHS agents as they move throughout the streets of Chicago.

I just mentioned that as a, as this case goes forward, as the mission goes forward, what they're actually arguing is that they'll be doing something very different, maybe more akin to what was happening in L.A. where they're moving throughout the city.

And so you could actually see like National Guard members surrounding an ICE vehicle. Or maybe National Guard vehicles surrounding ICE and going through town, as something that you might see in the future, at least what they're proposing might happen next.

So just another interesting piece from there of what we might expect to see.

Benjamin Wittes: Whoops. Alright.

What about Memphis? Which is not to be confused with Texas, even though both states begin with T-E. What's going on there?

Loren Voss: Yeah, so Memphis was interesting. So this is our first state law case that we've talked about in a while. So remember, in Memphis, this is Tennessee National Guard troops deployed under Title 32.

This was something that the president said he wanted to do to combat crime. Governor Lee, asked for the, Trump asked for them to be mobilized under Title 32. This was a case, Harris v Lee. So it is a mayor and some local and state officials against the governor and the adjutant general of the state. And it's in Tennessee chancery court.

So it, the decision came out Monday. There was a temporary injunction granted that enjoined the governor and the TAG from implementing and continuing activation and deployment of Tennessee National Guard in accordance with the presidential memo, and the SecDef letter for the Memphis Safe Task Force is what theirs is called.

So Tennessee law, not an expert on it. But the stay, they stayed the temporary injunction for five business days so the defendants can file the application to appeal. And then if they don't appeal, then the stay comes off in five days, which you know, will be soon. So we'll see what happens there.

But basically there was a, the claim of a violation of the state constitution and state statute. Just like federal law, the courts refrain from addressing any kind of constitutional issue if they can decide it on a non-constitutional basis.

So they don't look at the constitutional bid at all. They look at the state, two state statutes. And so the first one is basically the governor can use the mil=, the National Guard in cases of invasion, disaster, insurrection, riot, attack, combination to oppose the government of, or the enforcement of the law, imminent danger thereof, other grave emergency, they may call into, you know, the National Guard or the Tennessee State Guard, blah, blah, blah, right?

So the, we know those provisions, right? Those kind of emergency provisions.

They've got a second one that, upon the request of a governing body of a city or county and its representation by resolution, there's a breakdown of law and order, a grievous breach of peace, riot, resistance, the governor may order into the active service of the state the National Guard.

So we've got the two provisions here. One, again, like emergency governor bill. The other one's saying there's a breakdown, there's an issue with enforcement of law. Some kind of local official has passed a resolution and asked for that. And so that are the two, those are the two provisions.

Interestingly neither one of those, they decide, is met in this case. So they also of course what makes it kind of mirror the federal law that we're talking about here is you know, the governor one claims sovereign immunity and says, you can't hear this. You can't hold me responsible.

Interestingly, the court says, the Tennessee Supreme Court has previously ruled that the Tennessee legislature actually waived sovereign immunity because there's a state statute that says notwithstanding any law to the contrary or cause of action shall exist for any effective person who seeks declaratory or injunctive relief, and any action brought regarding the legality or constitutionality of a government action.

And I love this. It's a thing that they have in state law. You can, anyone can sue the government if they think that something they did was not legal or unconstitutional.

So they also try to go through the political question doctrine, and they say, this is similar to what we saw in D.C. You know, the power committed to the governor as commander-in-chief is not unfettered, you know. The state constitution and statutes talk about him as commander-in-chief and then impose limits on his exercise of powers. And so this is statutory interpretation that is a role for the courts. This is not a political question, so you're kind of seeing it mirrored at the state level.

But you know, big takeaway there is just similar provisions about when the National Guard can be activated and they find that neither one of those two provisions were met in Tennessee. So we'll see what happens there next.

But you know, generally has not been a great day in court for this administration.

Benjamin Wittes: Well, let's go back to Chicago for a minute. Because in Chicago, Eric Columbus, there is––I don't, I just want to say I oppose all 233-page opinions. I don't care what the merits of them are.

District judges, do better. Brevity, it's the soul of wit. There's no reason for you to have 233 pages in a district court opinion.

Eric, what is going on in Chicago and why are judges there so verbose?

Eric Columbus: So in Chicago, this is a case that we've talked about several weeks in a row, I believe. Involves the use of force by ICE and CBP folks against journalists and protestors.

Benjamin Wittes: Do we get to say Bovino a lot now?

Eric Columbus: We do get to say Bovino.

Benjamin Wittes: Because every time you say it, I'm just gonna say moo.

Eric Columbus: That gives me all the right incentives, I think.

We have actually a two-page opinion and a 233-page opinion. And the two-page opinion is actually the more the more notable and newsworthy at this point for reasons I'll explain. So Judge Ellis, an Obama appointee, issued a preliminary injunction earlier this month enjoining––basically extending her temporary restraining order and joining ICE and CBP to limit their use of force against protestors and journalists, and to use certain types of in some kind of granular ways, rather, the conditions in which they can use certain types of––not munitions, but certain types of equipments and flash bangs and things of that nature.

And the government sought to stay pending appeal and got one from a Seventh Circuit panel which was a little bit more frank than a lot of these things are in the opinion. And I, it's not just because one of the judges was actually named Frank, Frank Easterbrook, but, the court said that the injunction was overbroad in a variety of ways because it extends to just a wide range of law enforcement officials.

And requiring them to limit the types of riot control weapons that they can use in, in, in specific ways, and requires them to submit various policies to the judge for judicial review going forwards.

The court also noted there were questions about standing and it was a case that we––this is something that has come up previously at the Supreme Court, in the case that has been criticized a lot where the Supreme Court reversed, or rather, I should say, that stayed an injunction in Los Angeles against ICE and CBP. 

And Judge Kavanaugh, the only justice, willing to explain his reasoning in support of the stay said that there was no standing because under a city of Los Angeles v. Lyons, you need to show to get an injunction at, in a case such as this, that there is an imminent likelihood that the past harm you face is likely to recur. And he found that wasn't the case there because it wasn't imminently likely that another person would be kind of grabbed off the street or approached by ICE again.

And so here the question is, will, would, are these protestors likely to be, have forced used on them? Again, and the court said we're not sure about that. And this, it looks like stuff may be winding down, Chicago. So maybe that's not the case here.

But then the court said something interesting, the Seventh Circuit, at the end. t says, do not overread today's order. We have not concluded that preliminary relief is precluded, and the district court has developed voluminous and robust factual findings that may support entry of a more tailored and appropriate preliminary injunction that directly addresses the First and Fourth Amendment claims raised by these plaintiffs.

Benjamin Wittes: How do you read that? Is that basically Frank Easterbrook saying to Judge Ellis, alright, don't gimme anything super overbroad, but you come back with something that's, you know, gonna put a muzzle on Mr. Bovino and we'll affirm it?

Eric Columbus: Well, I don't think it was––it was not sending it back to her. It was just granting this stay pending appeal.

And I don't know who the audience is for that, for the ‘do not over read today's order’. Maybe it's because it's not judge––it's not really Judge Ellis. She had already issued the PI and although she as the next, I think the one or two days later is when she then published her lengthy opinion in support of the PI.

But no one was asking her to change the PI, to revise the PI. They just said, look, we're gonna, I mean, the Seventh Circuit was just like, look, we're gonna put this on hold. But, you know, we haven't made our minds and we're not sure that the judge was totally off base. So everyone just sit tight.

I mean, I think Frank Easterbrook is the type of judge who is frank. And maybe it's a, it's an backronym as they say a name, that that fits who the person is.

Benjamin Wittes: Yeah, he's he is one of the smartest people on the federal bench, and he is not known for being coy. And so when I think of what's––you don't usually have to parse an Easterbrook opinion from meaning. It's usually pretty naked what he is saying. And I thought this was interesting, that it's a little bit opaque what he is saying here.

Eric Columbus: It's possible that he is not himself made up his mind.

Benjamin Wittes: That's very fair. Yeah. Alright.

Eric Columbus: But, sorry, I was just say that, just get quickly to the 233-page opinion, which I will not go into in detail, but that was what Judge Ellis––

Benjamin Wittes: The mere threat of going into it in detail is terrifying.

Eric Columbus: I understand that. And, but to give you the chance to say moo, that's where Judge Ellis basically expounded on her findings that ICE and CBP had basically not played straight with her, and had made numerous comments that were just not supported by the record.

And especially in judge, in––not judge, in Dan Bovino’s case––

Benjamin Wittes: Moo.

Eric Columbus: ––he had said things that were contradicted by videos that he was looking at at the time that he was saying them.

And the judge went through, in exhaustive detail, both Bovino's comments and the comments of the, his counterpart at ICE.

And basically every single incident that the plaintiffs had challenged, saying that was unconstitutional use of force, she went through with references to the videos that there were in testimony, references to the testimony itself. And it was kind of quite a remarkable thing.

But ultimately it didn't really add much to what she'd already done in terms of the bottom line.

Benjamin Wittes: Alright. But I'm interested in where you think her head is here, because in the case of which we talked about earlier this week, J.G.G., you know, eventually Judge Boasberg comes back to it and says, you know, you can only lie to me so much before I'm going to have a contempt proceeding.

You can only––and so what is the point of her documenting, in excruciating detail, misrepresentations by CBP and ICE to the court? Is it ultimately to have a contempt proceeding? Is it ultimately to, you know, support a record to reign in substantively what they're allowed to do in terms of use of force?

And do you have a sense of what her game plan is?

Eric Columbus: I think she's interested in making kind of credibility findings that helps her resolve disputed claims by both sides. I think to some extent, she realizes that her ability to point out places where ICE and CBP are just blatantly deceiving the court may have some resonance in future litigation elsewhere.

I don't think that she is interested in having, putting Bovino in contempt at this point. But Bovino, as we've seen, is like going all around the country. And it's, that's probably a lot of the same crew that tags along with him.

And this might have some impact on litigation elsewhere.

Benjamin Wittes: Hey, did I lose you guys?

Eric Columbus: We're, we can hear you.

Benjamin Wittes: All right. I'm sorry. I'm back. Alright. Eric, were you done? Were you done? Or do you have more?

Eric Columbus: I'm done.

Benjamin Wittes: Alright. Let us move on to the politicization of the Justice Department, Molly Roberts. We've had a wild and woolly weak in that regard, and you have been at the center of it.

Why have you been politicizing the Justice Department?

Molly Roberts: It's just too tempting.

Benjamin Wittes: That is the slogan of Mr. Pulte. And all right, so on a serious note about that, first of all, we have this crazy situation that has developed in the Letitia James, case in which people who were not involved in the prosecution, i.e., Mr. Ed Martin and Bill Pulte seemed to be dishing what appears to be grand jury information. And there seems to be a grand jury investigation of them for doing so.

So what do we know about this situation? Because I gotta say, this one took me a little by surprise.

Molly Roberts: Yes. It took me by surprise too, and that was after having read Letitia James' Motion for Finding of outrageous government misconduct, which had plenty that was crazy in it already. And yet still, I was surprised by these revelations with have to do not only with Letitia James case, but also with the investigation into Adam Schiff.

And actually most of what has been revealed has to do with Adam Schiff. But it's the same guys working on it, Pulte and Ed Martin.

So essentially what happened is FBI agents working on the Schiff case, which is in Maryland, discovered when they were trying to interview this woman whose name is Christine Bish. She's a California politician and a realtor who says that she's responsible for the initial report on Schiff, which means that she kind of went fishing around and found what she decided looked like mortgage fraud and started submitting complaints. And Bill Pulte eventually noticed one of those complaints.

So they were looking to interview her for the Schiff case and she said, why are you interviewing me? I've talked to someone who works with the Justice Department lots of times before.

And they had no knowledge of any of that. So they started looking a little more closely at what on Earth was going on. And it turned out that she had spoken with someone who had said that he worked for the DOJ as Ed Martin's lead investigator.

And that guy, his name is Robert Bowes. I think that's how you pronounce it. But if someone else has another pronunciation, please feel free to correct me. And he claimed that he was a financial fraud expert with OPM assigned to work with the DOJ. And he had been talking to Christine Bish frequently about the Adam Schiff case.

Of course, it turns out that he did work for––so first of all, he worked for HUD during the first Trump administration, so that would be his connection to housing law. And he does work for OPM, but he doesn't have any authority to do investigations for the DOJ.

And there's another guy who has also been going around talking to witnesses and presenting himself as someone who works with the DOJ, whose name is Strauss. And he is a formal federal prosecutor who Ed Martin tried to hire to work at the DOJ earlier this year, but it wasn't successful.

And he previously worked at the U.S. Attorney's Office for I think the, yes, for the Southern District of Florida. But he was reassigned because he was trying to pursue allegations of voting fraud related to the stolen 2020 election.

So these guys are going around saying that they work for the Department of Justice, and doing this without the federal prosecutors in Maryland and without the FBI knowing that they're doing it. And Bowes, he is believed also to have reviewed grand jury information related to the James Case, which again, he has no authority to be doing any of this investigating.

So he shouldn't be doing that. He's also been going around talking to––

Benjamin Wittes: Do we have any sense of how he got grand jury information? Because at least in my experience with you know, federal prosecutors, you kind of generally can't go to them and say, ‘Hey, I understand you have all this grand jury information on Molly Roberts, can I see it?’

And that's kind of true even if you work for the Justice Department, there's a sense of compartmentalization that, you know, if you're not one of the people who's, who should be seeing the grand jury information in a given case, they will as a, mostly as a precautionary matter, because it's not illegal to share grand jury information within the Justice Department, but it tends to lead to things like spillage of it to say people in California.

Molly Roberts: Yeah, realtors in California.

Benjamin Wittes: Do we know like how Ed Martin's, investigator came to be in possession of this stuff.

Molly Roberts: To my knowledge, we don't know how. We just know that he's believed to have accessed it, but there are obviously ways we could speculate as to how, if Ed Martin, who in the Letitia James case went to the White House right after the indictment with Lindsey Halligan and they together––this is Wall Street Journal reporting––they together bragged about how they pulled this off all on their own.

If they're working closely together, and if this guy's working for Ed Martin, I don't think it seems that unreasonable to believe that that could have been a channel through.

Benjamin Wittes: Oh, it certainly could have been a channel. I mean, the question is whether that is not the way the Justice Department is supposed to work.

Molly Roberts: No, it's not the way the Justice Department is supposed to work and. It's part of why this would certainly bolster the motion for outrageous government misconduct that Letitia James has filed. It was revealed after she filed it, but there was already plenty that was irregular in there about how Bill Pulte had handled himself, nd this relates to the Schiff case too, when it came to accessing the mortgage records of Letitia James', which it seems he may have done illegally.

I mean, first of all, it seems like he may have relied for his criminal referral solely on this fringe right-wing blogger. But also it seems that after that, when he embarked on the investigation, he was abusing his authority because he's not supposed to be able to make criminal referrals at all.

And he's supposed to be independent from Fannie Mae and Freddie Mac, but he fired their, almost their whole board and appointed himself to chairman and basically just started an investigation on his own against one person he decided he wanted to look for information on, which was deeply concerning to the Fannie Mae Ethics and Investigations Unit.

But when they expressed those concerns, he fired 12 of them. And that agency's Inspector General also was fired after he tried to get Brady evidence, potential exculpatory evidence, to the prosecution. And that was related to the Ethics and Investigation groups being concerned that he didn't properly access these files.

And also Fannie Mae investigators reportedly wrote a memo saying and had emails saying that they didn't believe that this was a real case of mortgage fraud. And again, Bill Pulte ignored it.

Benjamin Wittes: Alright, so help me out. What is the relationship between. The Letitia James outrageous government conduct motion and this sense that these guys are kind of grabbing grand jury information, shoving it in their, you know, in their clothes, and then distributing it to people who don't like Adam Schiff.

What's the, what’s the––there it all seems to be one story, but I'm not sure how they're connected.

Molly Roberts: I think that, first of all, what the, so for one thing, what Pulte is doing and the way that he's accessing mortgage information, what I just described is how he access it in the James case, but there are irregularities in the Schiff case too.

So he's following the same patterns in these two cases of how he’s––

Benjamin Wittes: The Schiff case, which we should add does not yet exist. Schiff, at this stage, is just just a senator from California. Has not been indicted for mortgage fraud.

Molly Roberts: The Schiff investigation, what I should have said. Yes.

Benjamin Wittes: And there's been, the fact that we're all talking about grand jury information in connection with the Schiff case is just like a wild impropriety.

Molly Roberts: Yeah. Yes. Yeah. I should have said Schiff investigation. He's not been indicted. There's a criminal referral. The criminal referral in that case comes from this woman––the information in it seems to come from this woman, Christine Bish, who's a realtor in California, and in the Letitia James Case, it seems to come from a fringe blogger.

So again, same pattern there. Same pattern of how he accessed the documents. Same involvement of Ed Martin, who's been appointed special attorney for mortgage fraud, which is not a position that typically exists in an administration, but is the means by which the president is seeking to find semi-plausible conduct to punish from his political enemies.

So what Letitia James describes in the outrageous government misconduct motion is a lot of conduct that I just went through regarding Pulte, that there's a similar pattern with, in the Schiff case, she doesn't include what we learned this week because it hadn't been reported yet. I'm, I imagine that if they had filed that motion now, it would've included all of this because this is even more outrageous than what's in that motion.

Benjamin Wittes: While we're on this subject, mostly speaking, the Letitia James Case and the Jim Comey case have tracked one another pretty closely. And the James case is sort of two or three weeks behind the Comey case.

But Comey has not filed an outrageous government conduct motion and James has, and this actually suggests a sort of, a little bit of a difference in trial strategy or litigation, pretrial litigation strategy between Abbe Lowell who represents Tish James, and Pat Fitzgerald and company who represent Comey.

Do you think, I mean, it seems to me the big difference here is that one case is all about Lindsay Halligan, which is the Comey case. You know, there's no––there's a record that had been stale for five years. She comes in and, you know, in four days or whatever it is, puts it in front of a grand jury and, you know, gets an indictment.

And in another case you have these kind of wild men characters who are, you know, you know, the bar rooms scene in Star Wars. And they're not they're not present because they do mortgages, right? Is that the difference here?

Molly Roberts: So one thing, and Roger can correct me if I'm misremembering, but at the Comey hearing this week, I thought there was mention of the possibility––not that it was indicated that there definitely would be, but of the possibility of an outrageous government––

Benjamin Wittes: Yeah, they’ve floated it a couple times, but they haven't actually done it.

Molly Roberts: And this is more outrageous, you're right, because you have these like Mos Eisley guys who are––and Ed Martin described himself as a lunatic, a wild man, in an interview on a conservative radio show. He said––

Benjamin Wittes: At least self-aware.

Molly Roberts: Yeah, exactly. Yeah. You gotta give him credit for something.

So in any case, yeah, I think that it's so conspicuously outrageous. Not that some of what Lindsay Halligan has done in the handling of these cases hasn't been outrageous too.

Benjamin Wittes: Alright. Meanwhile, let's talk about great American and civil liberties victim John Bolton, who had his preliminary hearing or a status conference this week conference, ironically in the same courtroom courthouse anyway, that the Schiff-Pulte-Martin drama was unfolding in.

What happened to poor John Bolton?

Molly Roberts: Yeah, so one kind of funny thing on that note, right before the hearing––which was a status conference––Abbe Lowell, who is representing John Bolton and also representing Letitia James was––

Benjamin Wittes: Which, by the way, can I just say the idea that John Bolton and tis James have the same lawyer, warms my heart. You know, like from one end of the political spectrum to another, we’ve got Abbe Lowell.

Molly Roberts: Yep. It's nice that they have something in common.

So Abbe Lowell was in the courtroom and he was sort of chatting with the lawyers for the government and he was saying to, I believe his name is Thomas Sullivan, who was presenting for the government. He was saying there was a lot of drama here at this courthouse today in reference to the Pulte-Martin stuff.

And Sullivan sort of said, oh, I don't really know what you're talking about.

Benjamin Wittes: Did you happen to overhear this?

Molly Roberts: Yeah. We were in the media. I was in the media room and they were, I don't know that these guys knew they were on, that the feed was coming through to the media room.

Benjamin Wittes: It was, that was a hot mic. And they didn't know it was on?

Molly Roberts: Yeah. Yes. And they were just chatting.

Benjamin Wittes: Oh man. The best stories are always when people don't know a mic is on.

Molly Roberts: Exactly. Exactly. So Thomas Sullivan's oh, I don't know. And Abbe Lowell says what do you mean it's your office? He says I'm paying attention to my cases. And then Abbe Lowell kind of explains what happened.

And then Sullivan says something along the lines of, oh, you know, I, you sure you don't have a mole in my office? Because you seem to know more about this than I do.

And it was, you know, he was joking, but it was quite amusing before the Bolton case, which then turned out to be really not crazy at all.

And one thing that struck me about it, and I'll talk more about the details of it, was that it was quite straightforward. And also the opposing parties seemed to be working together pretty collegially. And the judge noted that at one point too, which is quite different from Abbe Lowell.

Benjamin Wittes: And he’s not one of, you know, whatever, you know, whatever one thinks of the Bolton case––and I have my concerns about it––it is not an example of, it is not simply an example of an abusive prosecution, though it may also be an example of an abusive prosecution.

And Sullivan is not a Lindsey Halligan figure.

Molly Roberts: Precisely. Yeah. And then, and that was very clear, and it was just so starkly different from the arraignment and kind of the way that the interactions went there.

And so the case to the hearing was straightforward. The judge, Judge Chuang, was concerned that the timeline––and this was most of what the hearing involved––that the timeline that the both parties in a joint motion had laid out was seven months long ending in October. And he basically said––

Benjamin Wittes: That's, so this is the difference, the fundamental cultural difference between Maryland and Virginia.

It dates back to when they had almost had a war and George Washington had to bring them together at Mount Vernon, you know, to prevent war over navigation rights in the Potomac.

The modern iteration of this is the difference between the Virginia docket and the Maryland docket. You can go years in Maryland without getting to trial.You can't go weeks in Virginia without getting to trial.

Molly Roberts: Yeah. That's the rocket docket. And I don't know, this is the horse and buggy docket or something. But in any case––

Benjamin Wittes: This was not the fastest court in the world.

Molly Roberts: But Chuang wanted it to be faster than it was the point that he seemed to be trying to make.

He said, that's a really long time for any case. And the government said it's really complicated. There are a lot of parts of the intelligence community who have a stake in this, and we have to talk to all of them. It's not just one part and it's a lot of documents.

He said, we have our hands around these initial 10 documents that are in the indictment, but there are 65 in total, and that's more than a thousand pages and it's going to take a really long time. We have to have a––

Benjamin Wittes: I actually have a serious point to make about this. Jokes aside, which is, this is the kind of thing that in a case that has been responsibly handled, happens before an indictment.

Molly Roberts: Judge said that too.

Benjamin Wittes: And you know, it takes months and months and months when you do a search warrant at a former senior official's house to process every document and make sure it is still classified and make sure it was classified at the time it was retained. And to make sure that the equities that the relevant agency has are still––are valid and were valid at the time. And this is work that in a normal case, the FBI does prospectively, which is why it takes months and months between the time material is seized in classified documents cases and the time that somebody is actually prosecuted.

And if you––you can announce that, okay, we're rushing because, you know, it's really important that John Bolton be prosecuted tomorrow because Trump hates him. But it actually doesn't prevent you from having to do that work.

And sometimes when you do that work, what you find out is the document wasn't properly classified, or that the intelligence agency in question is not okay with it being used in an indictment in a prosecution because it will blow intelligence sources to say how you got it or to establish its provenance.

And this is the reason why, you know, look, John Bolton may have done some things that are really improper, but there's a reason why this case would did not move at lightning speed until Trump decided that he hated John Bolton and wanted it to, and Kash Patel decided that bagging this particular fish was really important.

And I think it's really worth pointing out that everything you are saying right now is a reflection of a vindictive prosecution.

Molly Roberts: Yeah. The judge said, in fact, I think he used the words “good prosecutor.” He said a good prosecutor would've done this already. What was interesting was that then the defense didn't have any issue with the long timeline.

And in fact said, yeah, it's really complicated. It takes a really long time to sort through all these things because you need to find the statement that might have been classified, but there aren't markings on what we're talking about here because they're diary-like entry. So then you need to find the antecedent document and you need to put those together.

So it was interesting because the judge seemed to think this is taking way too long and was essentially critiquing the government for how long it was taking and the fact that it hadn't gotten ahead of this and didn't maybe have all these documents already––

Benjamin Wittes: Case slow down, now we need this time too.

Molly Roberts: Exactly. Exactly. So that's what ended up happening.

Benjamin Wittes: Speaking of vindictive prosecutions, Letitia James, government files its response to her motion for selective and vindictive prosecution dismissal.

How is this different from the Jim Comey briefing on the same subject, which was argued this week?

Molly Roberts: So a lot of the arguments are very similar. I should say, even before I get to the arguments that as I think also happened to a certain degree in the Comey case, the government spends a lot of time in this motion not going through the legal arguments on selective and or vindictive prosecution, but kind of bringing in more facts about the alleged crimes that Letitia James has––that it's saying she's committed.

And so it didn't really, my understanding is that's not entirely normal. It introduced all these exhibits saying, nd exhibits that it hadn't brought in before, and exhibits that it had––one of them issued a subpoena for last week or something. So that clearly it also didn't have yet saying she definitely misrepresented what she was going to use this home for.

And then as far as the arguments themselves, they're quite similar to Comey's in that they say, okay, there's no evidence of Lindsey Halligan herself having animus. There's not enough evidence to impute the alleged animus of others, including President Trump, onto her. And even if the court does impute Trump's animus onto her, his statements can't be properly read as designed to dissuade or penalize.

And so that's very similar to what was being discussed in the Comey hearing. It was a quote that I read on Lawfare Live the other day, where he's saying, you know, guilty or not, we're gonna charge him.

Doesn't say exactly that, but guilty, not guilty, we have to move fast. And then that tweet addressed to Pam, where he says, justice must be served now.

Basically saying that you can't read those to be telling the Justice Department to do anything and bringing in other, the other statements of his where he says, I have nothing to do with this. And sort of focusing on those.

And so the overall argument, really similar on vindictive prosecution, does talk specifically about Ed Martin because you have to and says essentially he doesn't have any authority, so he doesn't matter. That's basically how they deal with him.

And then vindictive prosecution requires showing that the person wouldn't have been prosecuted, but for the vindictive motive. And there it says public integrity and financial fraud are priority is the United States. And there's also an exhibit in addition to all the exhibits on literature, James' conduct with some examples of prosecutions in the district over the past five or so years for low-dollar fraud cases.

It doesn't go into how career prosecutors didn't want to bring this claim and penned a declination memo, although Halligan firing career prosecutors, it does go into in the portion on selective prosecution and says that those decisions have no bearing on the case because they're internal. And then also on selective––

Benjamin Wittes: ––is not nothing, has bearing on the case except whether Lindsay Halligan says, I hate you, and I'm bringing this case against you. Because of my own independent animus against you.

Molly Roberts: Exactly. Yes. Yeah. And there, there are some really kind of amusing bits in there too. So Ed Martin had written this letter, even though he has no authority, and he doesn't matter, they feel that they have to address this.

He had written this letter to the Letitia James, where he said that he would take her resignation as an act of good faith. And the defense is saying that looks a lot like vindictiveness because they just want to punish her. So they're saying, you know, like––

Benjamin Wittes: Extortion!

Molly Roberts: Yeah. Even worse. Yes, exactly.

And they say the letter is the opposite of that. It expressly discloses the government's perspective on how defendant can timely accept responsibility and demonstrate respect for the law and that this is a good thing. And then another good one is they say on the selective prosecution point, okay, they say, and this is a difference from Comey's, which really focused on vindictive.

And they say, the comparators you've brought up, who are these high-profile Trump allies from Texas Attorney General Ken Paxton to Senator Roger Wicker to Secretary Treasury Scott Bessent, they say none of those are in this district, so they can't be comparators except Roger Wicker.

And then they say, and it's a misrepresentation to the court to say that Roger Wicker is accused of, or may have committed these same offenses. And the evidence they give for him being innocent of them effectively is just his office's statement saying, I'm innocent of these.

Benjamin Wittes: Which Letitia James has never said.

Molly Roberts: It gets the whole thing absolutely wrong because the point that they're making isn't, Roger Wicker definitely did mortgage fraud.

The point they're making is there've been press reports of Roger Wicker committing mortgage fraud. There were press reports of Letitia James doing it, although like less credible ones than the ones for Roger Wicker. And what was special attorney for mortgage fraud Ed Martin interested in? And what did he say was just, you know, an attack by a dark money left-wing group.

Benjamin Wittes: So that's interesting. It's actually, and just to be clear, none of us has any particular reason to think Roger Wicker should be prosecuted for mortgage fraud.

And that said, it does seem to me that there's a, she has a better argument on selectivity than Comey. She has a weaker argument on vindictiveness in the sense that the record of Trump hating her is much shorter.

And I also think the other thing that she has, which I'm not sure you could establish record evidence about, but it's hard to read Trump's tweets and social media posts about her without seeing a heavy racial dimension.

Molly Roberts: It's hard to do that because he calls her a racist without any reason to call her a racist, without any alleged racist conduct by her.

And that makes you ask the question, why did he even say the word racist? Might it be she's a black woman?

Benjamin Wittes: Makes a, he makes a point of referring to her name in a way that kind of draws attention to the oddity of the name Letitia if you're, you know, from Trump Tower. And he talks about her in a way that is––and you know, the vindictive, selective prosecution stuff does have a whole, there's a whole lot of case law about it that sounds in race like you're prosecuting me, but you've never, you don't prosecute white people who do this sort of thing.

And I, I don't know if she could create a record that would be cognizable to a court, but boy does it seem like there's a heavy shade of that going on here.

Molly Roberts: And yeah, to be clear, they're not trying to, they haven't made any reference to that, although they do quote racist in his insults against her. And when you, like you said, when you read his insults against her, that comes through, but they don't make any claim about it being a racist prosecution.

Benjamin Wittes: All right.

I am told that Jim Comey has just filed a motion to dismiss based on misconduct before the grand jury. I do not have any independent confirmation about this. I know this literally because somebody just put it in the YouTube chat. So, we're not going to discuss that because none of us has seen this brief yet.

But Roger it has been a wild and woolly week in the Comey case. We've done two whole livestreams about this, and we're going to try not to revisit matters we have already talked about, which leaves only about 30 matters that we haven't already talked about to discuss.

First of all, we did a whole here a whole Lawfare Live about the Comey selective and vindictive prosecution argument, which took a surprise turn to be about whether the grand jury had seen the indictment at all. And of course, Lindsey Halligan and Tyler Lemons, the prosecutors, appeared to concede that the grand jury had never actually seen the indictment that Comey was being made to answer.

That was on Wednesday and yesterday. The government filed what is styled as a notice for the correction of the record, which purports to say, at least as I read it and help me out and tell me if I'm reading it wrong, it seems to not say a definitively it was presented to the grand jury. What it says is the transcript says it was presented to the grand jury, and the transcript is authoritative, and therefore we're correcting our previous statements that––without saying that we're correcting our previous statements, we're correcting the record insofar as anybody ever said that it was not presented to the grand jury.

Is that what the government is saying or is there something else going on here?

Roger Parloff: I think that's right. The transcript you're talking about is when the foreperson hands up the indictment to the magistrate. So now there's, it's just the foreperson and a deputy foreperson.

The rest of the grand jury is not there, and there was colloquy and the foreperson did say there was the magistrate said, so the two-count indictment that was approved by the grand jury and the foreperson said yes.

What she might have meant was that, you know, the first document with three counts, we all agreed that we were no true billing the first and approving the second and the third. So in that sense, the rewritten indictment would have been approved by the full grand jury. But it, I don't know.

Anyway, when we were in the hearing Wednesday, Judge Nachmanoff was trying to pin them down on this and Lemons asked for sort of a huddle. And the three of them, the three prosecutors huddled and actually from my, I was in the media room, so I was looking from the bench. That's where our camera view is from. So I could see them huddling.

And Gabriel Diaz seemed to be taking the lead on this, even though he wasn't there at the time. And he came back and they said, you know, our position is that there was only one indictment and blah, blah, blah.

And then Nachmanoff wants to nail them down again, and actually says, but gets them to say, but that second document was not shown to the full grand jury. And then he actually has Halligan stand up and there's an interchange there. And Halligan is protesting that there was a, it's wrong to say that foreman––it was only the foreperson, there was also the deputy foreperson, but that doesn't really help you.

And as she sat down, he says, okay, he says but I just wanted to make sure that the entire grand jury never had the opportunity to see the indictment. You may sit down. Thank you. She does not protest. So it sounded like it was accepted.

Now, I guess it's sort of in play again.

Benjamin Wittes: I mean, I cannot figure out, and I have spent more than a reasonable person, more time than a reasonable person should spend with this material. Because it's, I mean, I've never actually seen a case where there was a question as to whether the defendant had been indicted.

But it's––like, I've been doing this for 30 years and I've never seen––

Roger Parloff: We've now had four judges who tripped over this factor. I mean, the original magistrate said I've never seen––I mean this, so this has never happened before. And then, and then Currie tripped over it. She couldn't make that––

Benjamin Wittes: So this is the judge who's considering the question of whether Lindsey Halligan is lawfully appointed.

Roger Parloff: That's right.

Benjamin Wittes: And then you have William Fitzpatrick, Magistrate Judge Fitzpatrick, who's got the, some of the grand jury behavioral questions. And then you have Judge Nachmanoff, and none of them seem to know whether there's a valid indictment.

Roger Parloff: That's right. Yeah. That's the situation.

Benjamin Wittes: I mean, just to, to needle the point a little bit, we actually have a question whether a U.S. attorney who was not lawfully appointed failed to present a grand jury with the indictment for which a real person is actually on trial. You know, there's a lot of layers to that.

Alright. So Judge Nachmanoff did a little bit of pre-research on this question, as best as I can tell, and he could not find a case in the Fourth Circuit that looked anything like this. The closest he could come was a case called Gaithers, which is a, you know, used to mean in the DC area, Gaithersburg, was a suburb of Washington, but now refers to a DC Circuit case from the mid-sixties. Which is the closest anybody can find to a case where the prosecutor just, whoops, forgot to present the matter to the grand jury.

So I took a quick look at Gaithers. Frankly, life is short and I'm gonna let the judge do this research and the parties do this research. It's not like my job to do mid-sixties DC Circuit, out of circuit stuff. It seems to me like this case is not very close to the situation that Gaithers describes, and the judge here honestly has a little bit of room to either dismiss the thing on this basis or not, depending on how offended he is by the incompetence of what Lindsey Halligan did.

I'm wondering, without going into the details of the Gaithers case, whether you agree with that, that there just isn't a controlling case here.

Roger Parloff: I agree. It's not controlling on the facts and it's not controlling on the law because it's in DC Circuit. One of the interesting things about that case is that one of the remedies that suggested is if, you know, 'cause these case, that case arises after it's already on, the guy was convicted and it's on appeal, you know, it's harder, it's a different situation than right now.

It, you know, if it's caught earlier, one of the things he suggests is why don't you turn over the grand jury minutes? It's yet another, like a 15th reason to give Comey the grand jury minutes.

I think he's going to get the grand jury minutes. I don't know if this is going to be the thing that sinks the indictment.

Benjamin Wittes: Yeah, I think the most interesting exchange in that whole hearing was when Judge Nachmanoff basically turns to Comey's lawyer Michael Dreeben and says, you know, what's the order of operations here? We've got like 30 motions to dismiss, and they're all pretty compelling. Should we consolidate them? Do you want me to do them in any particular order?

And I gotta say, I mean, Michael Dreeben is a spectacular oral advocate. I have no idea what the right answer to that question is. If you're representing Jim Comey, what's the motion you wanna win on?

Roger Parloff: I think, I think he––I mean, I agree with him. He suggested, but it'll be hard to figure out, logistically he wanted––

Benjamin Wittes: I mean, he said, do the unlawful appointment, do the vindictive prosecution. And by the way, do the, is there even an indictment question. And leave everything else for later.

Roger Parloff: Yes. And also, statute of limitations, which is late, he's gonna file that, or maybe he already has it by this point.

But relate on the theory that if it's a void indictment, the statute ran. But the trick will be how do you coordinate with Currie, who's, you know, supposed to be––he, the whole reason that issue was sent to Currie, the unlawful appointment, was so that the night, the judges of the Eastern District of Virginia wouldn't, they might have a potential conflict.

So if they're putting their heads together and say, okay, let's release it together, it begins to look like it's not cordoned off.

Benjamin Wittes: I think the other thing he could do is say, issue a consolidated order that says, I am, you know, irrespective of what Judge Currie does, I am just dismissing this on the following three bases, and opinion to follow.

And that way you're not tied up with you know, she has said she wants to get it done by Thanksgiving. She has one issue to deal with. He's got like 10.

Roger Parloff: Yeah, but you don't wanna moot hers out and her, you don't want hers to moot his out.

Benjamin Wittes: It’s a tricky little––defendants usually don't have this kind of embarrassment of riches.

All right, so Jim Comey also has two other motions pending. These are both also––one's a motion to dismiss and one is a motion for a bill of particulars that he had reply briefs due this week. And usually you don't have news break in a reply brief, Roger. But on this time we did.

What is a coil and why does and what did we learn from a truly astonishing section of this reply brief on the bill of particulars?

Roger Parloff: Yeah. I think there, there was a reply brief to the original motion to turn over the grand jury's minutes, which was based on a broad array of reasons.

And basically the bottom line is that he, they found out through discovery that––or maybe through or through their communications over the bill of particulars––that the no true bill count, the original count one––I know there's only one indictment really, but the original indictment count one was had to do with, a counterintelligence operation lead.

This was another discussion during that September 2020 Senate Judiciary Committee hearing. And the issue was back in 2016 allegedly. This is clear, the FBI received information called the CIOL that, suggested that it looked like Clinton, Hillary Clinton had plotted to distract from her own problems by attacking Trump with the Russia stuff.

And this piece of intelligence is now thought to be––I mean, at the time it was thought to be dubious of dubious reliability.

Benjamin Wittes: It came from the Dutch and it was quickly confirmed or believed by the FBI to be Russian disinformation. Okay. It actually shows up in Comey's book which predates this testimony. You know, if he was lying to Congress, he was lying in the face of his own book. Which, you know, usually don't do in which he said it was one of the reasons he had doubts about Loretta Lynch.

Because she––so, it, this it's actually was a big deal and a big deal in Comey's psychology. But the issue that Ted Cruz asked him, or that Lindsey Graham asked him about was limited to a particular notification on a particular day,

Roger Parloff:  Yeah. It was some in 2016. And what happened was the day before the hearing, four years later in 2020, that the night before, they send him a letter written by Ratcliffe, who is describing the CIOL, but they don't provide him with the CIOL.

And so then they, multiple senators, ask him about the CIOL. And he says, yeah, I read the letter, I'm not sure what he's talking about.

 And that is the no true bill count. They found out that is still part of the government plans to use that in count, the current count two.

Benjamin Wittes: Which in fact, it's the central component of the evidence.

The only thing other than the material that is indicted as count one, that's feeding count two, is this other thing that was no true billed.

Roger Parloff: And in addition, it's hard to say this orally right now without––I don't have the things right in front of me. But the indictment, original count one, which was no true billed, misstated his testimony and misstated the question.

I mean, it misstated the question that he was answering. And it's more, it's more craziness and you've got this. And so they sort of added to, you have now count two that was based partly on a no true bill and partly on a different count.

And and then the replay of it was never put before the grand jury. Anyway, the, it's quite a complicated mess. I think you're muted.

Benjamin Wittes: Okay. So Comey also filed a reply brief in the. On the on a different motion, which is his motion to disclose the grand jury infor minutes. This has been somewhat mooted. I mean, it's still out there, but it's been kind of overtaken by the grand jury disclosure. Order from the magistrate Judge.

What's going on in this motion that's not already going on there.

Roger Parloff: A lot of it is, yeah, there's a lot of overlap at this point. They did add interesting stuff about what they believe is exculpatory evidence that was probably not presented to this grand jury.

And one of the things they mentioned, actually, was that the fact that they doubt very much that the grand jury was informed that Dan Richman was no longer with the FBI as of June 30th, 2016.

Benjamin Wittes: And how do they know that?

Roger Parloff: I don't know how they know that. We know that because Anna Bower wrote an article about that. They didn't cite Anna. They might have, they might have learned that themselves.

Benjamin Wittes: But that, I'll just say there are only two places that have spent time reporting on this. One is a passing reference by the estimable Marcy Wheeler, and the other is a lengthy story by the estimable Anna Bower.

And so I just want to say, you know, you know, Comey defense team, you should cite your sources, guys.

Roger Parloff: Yeah. So that, that was one of the interesting new things. I think the rest was largely overlapping with what we've heard in in the Kirk, in, in the, in the other motions.

Benjamin Wittes: Alright, so shifting gears, let's do a quick immigration litigation roundup. We talked earlier this week about J.G.G. and Judge Boasberg reopening the contempt matter.

Is there anything I'm tempted to just incorporate by reference that we've already had a J.G.G. conversation this week. Okay. Anything further to say about that hearing?

Roger Parloff: No, that's where it was when we last spoke about it.

Benjamin Wittes: Alright. Then let's talk about the Abrego Garcia civil case. For those who don't remember, Abrego Garcia has a criminal case in Tennessee and a civil case in before Judge Xinis in Greenbelt, Maryland, which is not to be confused with Gaithersburg, Maryland.

And so what happened? Is he gonna get to go to Costa Rica? What's up with Mr. Kilmar Abrego Garcia?

Roger Parloff: This was actually a pretty interesting hearing. When last we left you on Abrego, I was sort of thinking that he was going to get re-released because of Zadvydas.

This is a habeas corpus, is basically one of the key points is ‘release me.’ And it's not the only one, but it's––and which, and Zadvydas is this Supreme Court case that basically means the immigration authorities can't keep you in jail indefinitely. They can only do it if there's an order of removal and they're about to imminently remove you, or there's a reasonable expectation that they're gonna remove you pretty quickly. I don't know the magic words, but that's the idea.

And they had really been jerking everybody around, including Judge Xinis, you know, they said we're moving you to Uganda, we're moving you to Eswatini, we're moving you to Ghana. And then when the, you know, the hearing would approach to prove these things, suddenly there would be a mad dash. And for the first time ever, they would speak to one of these countries.

And, you know, the country would say, what? No, we're not going to do this. And it was such bad faith, and so crazy, that I thought that, you know, she's gonna do it. At the last minute––n fact, beyond the last minute, they came up with Liberia and they claim came up with documentation. So the Zadvydas claim suddenly became weak.

But in the meantime, his lawyers had been pushing Costa Rica. They'd been saying, look, you are––

Benjamin Wittes: And just to be clear, the Zadvyas claim becomes weak because Zadvyas was all about, there was no country that would take Zadvydas.

Roger Parloff: Yeah. Yeah.

Benjamin Wittes: Because this is a career criminal who nobody would want. And so his detention ends up as an indefinite thing.

The moment you have a country that will take him, a detainee, then the government gets to argue, he holds the keys to his own cell. He can go to Eswatini tomorrow, he can go to Liberia tomorrow. And you no longer have a Zadvydas issue.

You may have a non-refoulement issue or some other issue. And of course, if you're Mr. Abrego Garcia, you really really wanna go to Costa Rica, which is a country that doesn't, you know, kill people, does have a, the same native language, it’s, you know, it's a culturally similar country to where you are from.

And so this is a very high stakes issue for the detainee question, but it is not one that sounds anymore in Zadvydas.

Roger Parloff: That's right. And so back in August when they were trying to get him to plead guilty in Tennessee, those authorities said if you plead guilty, you can go to Costa Rica.

And Costa Rica will give you asylum. They'll give you travel documents. You'll be assured you can stay there.

You won't be refouled to El Salvador. You won't be subjected to torture, persecution. All these assurances. He didn't plead guilty. And, but he said, okay, but I'm, I want to go there. And there is a provision in the immigration law that seems to say if the guy says he wants to go to a certain country, you have to try that one before you send him to a god-forsaken place he has no connection with whatsoever on a continent he's never been to,

I don't mean to say Liberia is godforsaken, but he's never had any ties to Africa. And that was a pretty good argument. But the government came back and said it's too late. You should have asked. You needed to designate Costa Rica earlier, back in 2019 when there was no reason to do but nevertheless, some technical argument like that.

And so where things stand now is really strange because there's been this curiosity all along that there doesn't appear to be any order of removal in his file.

There's never been an order of removal. There's been an order of withholding of removal. And the government has said you can sort of imply from that that there's an order of removal or the more sophisticated way of saying it is by operation of law, that's an order of removal.

But the judge is saying, no it's not. And how could, how can you detain him when there's not even an order of removal?

So she may end up releasing him on that basis. It's sort of the easiest to show she has jurisdiction. And of course what would happen is that they would immediately rearrest him. They would reopen, they would––but then he can make the Costa Rica designation.

And that's where we are. Really interesting.

Benjamin Wittes: Yeah Alright. Last but not least, Eric Columbus. We have developments in a case that I'm sure like almost all of our audience has forgotten about, which is the American Association of University Professors v. Trump. So this is about these university defunding cases. Remind us what this case is about and what happened this week.

Eric Columbus: Yes, this is specifically the University of California. It's the second lawsuit involving the Trump administration's efforts to strip the University of California system of funding.

The first one involved the DEI executive orders. And a class, a putative class of researchers succeeded in reversing the termination of grants that were terminated pursuant to that.

This one has various plaintiffs, including groups representing professors and students, challenging a broader array of attacks on UFC involving Title VI and Title IX. Title VI is about discrimination in federally funded programs; Title IX is about women's participation in athletics.

And notably the plaintiff is not the University of California, which is interesting here. The university is not standing up for itself in the most literal litigation sense.

But others are, and that may be a deliberate strategy. Who knows? The judge basically enjoined on numerous grounds the efforts of the administration to strike back at the University of California. Basically the university had, the government had taken away around $500 million funds and said the UCLA is not eligible for new funds. And then proposed a $1.2 billion settlement and said, look, you give us this money and do some other stuff that's unrelated, then we'll release you these conditions.

And the unrelated stuff involved getting rid of DEI pro––sorry, reviewing DEI programs, some type of administrator for reviewing curricular changes, banning personal statements discussing job applicants’ racial identity, various kind of things that are relevant to what you might call a right-wing educational agenda that this administration has been advocating.

And the judge is no, you can't do that. And the judge says, let's step back. You've got this approach that you've been doing everywhere, where it's a three-stage playbook as she put it. And there's a judge is a Biden appointee, Judge Lin in the Northern District of California.

Step one, you announce these big investigations about civil rights violations. Step two, you cancel their grants without following any procedural requirements. We're limiting the scope of the cancellations to non-compliant programs. And then stage three, you demand millions or billions of dollars, and––which is not authorized by law, even if they, you had proven the violation––and you require this wider range of policy changes.

And the judge kind of goes through how they used a playbook to target Columbia and Brown successfully. They've tried it against Harvard, so far unsuccessfully. And they're trying against the University of California.

And the judge is this is just wrong on, on like eight different ways.

It's unlawful coercion, kind of like similar to the jawboning cases. It's unconstitutional retaliation against people for exercising their First Amendment rights, 'cause you're clearly targeting kind of left-wing and liberal professors. It's the violation of the Spending Clause. It's not compliant with Title VI and Title IX’s requirements.

And the government tries to say, oh no, we took away the funds for other reasons. And then the judge quite convincingly says, no, you didn't. It's imposing unconstitutional conditions. And it's arbitrary and capricious under the Administrative Procedure Act, because it didn't take into account reliance interests of the professors who had received the grants or any other relevant interests.

And the judge deploys to, to good effect a lot of statements of Trump administration officials, including Trump himself, and also including Leo Terrell, who is the head of the Antisemitism Task Force, who has just said all these wild things that made their way into the opinion such as we're gonna bankrupt these universities, we're gonna take away every single federal dollar, expect massive lawsuits against these systems. And you know, I hope you can read between the lines, there are numerous ways to hurt them financially.

And sometimes it's important to realize when you're saying these things to Fox News, that there are actually people who hear them beyond your intended audience.

And that kind of came back to bite them here. And the government raised various standing and rightness issues, which the judge kind of dismissed. I mean, it's an unusual type of case in that it was not actually the university raising these challenges. But the court basically vacates the grant reversals and says that going forward, you have to follow any applicable Title VI and Title IX procedures.

You can't do anything coercive. You can't do anything that would unconstitutionally condition, impose unconstitutional conditions on any federal benefits.

So it's an interesting course. We'll see what happens. Interesting case. We'll see what happens on appeal.

Benjamin Wittes: Alright, folks, we have three questions in the Q&A.

They are all from anonymous, which makes me feel like I should be wearing a Guy Fawkes mask in responding to them.

Anonymous #1 asks, does the entire federal judiciary now have a particular understanding of what a proceeding is going to look like when Drew Ensign appears for the government?

So I take it, this question is meant to some degree, tongue-in-cheek. And is a reference to the fact that drew Ensign may not have been entirely candid with Judge Xinis and with Judge Boasberg, either because he was not candid himself or because he was misled by his client or both.

But the answer, I think, to this question––and if anybody has disagrees or wants to supplement it feel free––I think the answer to this question is that there are certain individuals who do develop a reputation for a lack of candor with the courts.

And a certain word of mouth exists among federal judges about that, and certainly within courts when people, when you for example, write an opinion or have a whistleblower that writes about you, these are things that do in fact get around courts. And they affect the credibility with which advocates appear in court.

So I don't think there's a, there's no formal answer to that. But if the question is, are there certain people who have argued cases for the Trump administration who are developing a reputation for misleading the court? The answer to that is absolutely. And it is actually one of the skills I think of John Sauer, the solicitor general, that he does not seem to be doing that, that he seems to have a real rapport with the justices, however much they may hate his the positions that he's representing.

I don't think you see the same effect going on with the SG’s office that you do with particularly certain parts of the Justice Department that are representing the, the immigration context in particular.

So I don't know. That's my sense of it, but, if any of you have either a different sense or a supplemental sense, go by all means.

Alright, anonymous next asks, I hear talk from some other commentators that various people might get pardons, prospectively or otherwise. Am I correct in understanding that accepting a pardon involves losing any Fifth Amendment privilege not to testify about the subject matter of the pardons?

Given that there is no possibility of self-incrimination, is the administration likely taking this factor into account, or did this detail escape the pardon attorney?

So a couple things about this. First of all, it is the case that when you've been pardoned, that abdicates your right against self-incrimination. You have no exposure.

The right against self-incrimination is not a right to privacy. It's a right to not be prosecute, not be made to be a witness against yourself. And if there's no conceivable proceeding, there is no capacity to violate the self-incrimination doctrine, which is why that you can get around it by, by immunizing somebody.

It's not just the pardon, but there's a federal immunity statute that allows both Congress and the Justice Department to give you immunity from prosecution. Either transactional immunity that you know, gives you a get out of jail free card for the whole thing, or a kind of what's called limited sort of derivative use for its immunity, right?

The idea that nothing that you say or what can be derived from what you say can be used against you. And the these are ways to protect your Fifth Amendment rights, irrespective of––even though you can be compelled to testify. So yes there is, if you pardon a bunch of people, their testimony can be compelled.

Is the administration thinking about that when it decides whether to pardon people? I have no idea. It certainly––the distribution of pardons does not seem to be anything other than profligate, and I can't think of who the person is who hasn't been pardoned because they're afraid of his testimony or her testimony.

But I don't––I certainly don't I don't know what the strategic considerations are there, except to say that it is not up to the pardon attorney. It is up to the president. And the president is a highly impulsive man who responds, I think, quite emotionally to these things that, you know, there's no like I don't think there's any other explanation to the, for the George Santos, you know, commutation than that this is a impulsive man who, you know, either thought it would be a good way to, to stick his middle finger at a whole bunch of people or actually felt something for poor George Santos.

Finally, the last question. Do any of the panelists anticipate a circumstance in which a majority of the Supreme Court justices suspend the presumption of regularity with respect to the current Department of Justice?

I will just speak for myself. I can answer that question with a single two letter word: No.

Molly, do you do you anticipate such a circumstance?

Molly Roberts: No. No. You might not have seen me mouth, no along with you.

Benjamin Wittes: Loren, Eric, Roger?

Eric Columbus: No. No. May see case-by-case skepticism, but not as a general matter.

Benjamin Wittes: I think that's exactly right.

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