Lawfare Daily: The Trials of the Trump Administration, Nov. 7

[Intro]

Benjamin Wittes: It is the Lawfare Podcast. I'm Benjamin Wittes, editor-in-chief of Lawfare with Lawfare Senior Editors Anna Bower, Molly Roberts, Roger Parloff, and Eric Columbus.

In the November 7th episode of The Trials of the Trump Administration, we talked about the criminal trial of the man who threw a sandwich at a federal immigration officer in Washington D.C. We talked about a hearing in the prosecution of James Comey, litigation over conditions at an immigration detention center in Illinois, and so much more.

[Main Podcast]

It is Friday the 7th of November, 2025. It is 4:00 PM Washington time. And you are watching Lawfare Live.

I'm Benjamin Wittes, editor-in-chief of Lawfare. And watch, this is easy 'cause all my guests are Lawfare senior editors, and so I can just say, and I'm here with Lawfare Senior Editors Molly Roberts, Eric Columbus, and Roger Parloff.

Folks, good to see you all.

We have a relatively light week this week. And the reason we have a light week is that the, perhaps the biggest event of the week––depending on how you weigh a Supreme Court argument on a major case against the Sandwich Guy trial––we already did an entire Lawfare Live just on the Supreme Court's tariffs argument.

So we're not talking about the tariffs argument today. There's a whole Lawfare Live for you. It's on today's Lawfare podcast. You want an hour dedicated discussion by four serious tariffs case experts, we got you covered.

But not here. Because here, we are going to start with Sandwich Guy. And we might not get much further than Sandwich Guy, because there is so much to talk about, and that trial was so awesome.

So let me start, Molly, you were there the whole time. The world's simplest case. It was only going to take a few hours, and you were there for four days.

And I want to start with the question, why was this more complicated than everybody expected it to be?

Molly Roberts: Yeah, well I should begin by saying that I really relished the opportunity to be there.

I hope that satisfies everyone because I know people want puns and I, honestly, it's you guys.

Benjamin Wittes: Ugh. Ohh, ugh.

Molly Roberts: It’s you guys who have the puns. It wasn't even, it wasn't even me who had the best puns, but there you go. I'll go for the lowest hanging fruit. Which is not intended to be a kind of, a sort of––I don't know about fruit sandwiches.

Benjamin Wittes: Lowest hanging…salami.

Molly Roberts So, I think it became more complicated because both sides saw it as more important than you would think a case that silly would be.

The government wanted to make an example of Sandwich Guy as sort of this menace to society because he was interfering with the brave law enforcement officers deployed in D.C. seeking to enforce President Trump's agenda.

And the prosecution wanted to make him into an example of a courageous dissident who was being targeted unfairly for his deeply held convictions.

And so he was a lot more to both sides than just some dude who got apparently drunk on a Sunday night and tossed a sandwich at a cop. So, and then it became more complicated on the substance because of that kind of bigger picture. There was just a lot of debate about the definitions of forcibly, assault, and all the other verbs that were in the statute under which Sandwich Guy was charged.

Benjamin Wittes: All right. So I wanna start with a nerdy question that goes back to sort of early post-January 6th Lawfare coverage of these trials, which is that the name U.S. District Judge Carl Nichols is not unfamiliar to people who have followed post-January 6th stuff.

Judge Nichols was of course the Trump-appointed judge who, unlike all the other judges on the district court did, he heard a lot of January 6th cases. So he was not an outlier in that respect. All the district judges did.

But he did rule that––he was one of out of 14, I believe, who ruled that the obstruction of a congressional proceeding statute could not be used in, as the government was trying to use it to refer to indict insurrectionary activity on January 6th.

And that that was much ridiculed at the lower court level. And then as it got higher and higher, eventually, of course, it gets adopted by the Supreme Court. And so he is a judge who is prescient as to the Supreme Court's instincts about certain things. He is also rather disliked by a lot of, you know, people in Washington who were, wanted active prosecutions of a bunch of those people.

How did he do as a judge in this case? What, like, what's––if we're trying to fill out our picture of Carl Nichols, is he, did he have it in for Sandwich Guy 'cause he's the wrong kind of insurrectionist?

Was he fair? Was he you know, would you know that he was the guy behind the the original ruling in the––remind me what the name of that case ended up being at the Supreme Court level, Roger.

Fischer, right. That, that he was the original mind behind the Fischer decision. How should we understand how his, how he performed?

Molly Roberts: Yeah. Well, it's very empowering to get to judge the judges, so I'm happy to try to answer that.

I think from the beginning, things felt a little weird, at least to us in the press because he conducted all of individualized voir dire with a husher on, so we just couldn't hear anything.

And that immediately led to the defense filing a motion for a public trial. The idea was that it was the Sixth Amendment violation, which the D.C. Circuit is found is not true if the transcript is available after the fact, even if it, even if you have to pay for it.

But that already, I think, felt weird. And felt weird to the defense in particular because here's the case––

Benjamin Wittes: And by the way, at Trump's trial in New York, they did the same thing right under New York state law. So it's not an outrageous position.

Molly Roberts: Yep. Yeah, exactly. Not an outrageous position, but I think the feeling was, here's this case where the Justice Department has tried really hard to make an example of Sandwich Guy.

Pam Bondi explicitly said, Sandwich Guy is an example. He's an example of the deep state we're up against. So that's kind of as public as can be.

And then what we're not getting, you know, a public ability to hear what the makeup of the jury is ultimately going to be. So I think people felt bad about that.

Going forward in the case, there were a lot of other instances in which the defense seemed pretty frustrated too.

I would say that the jury instructions ended up being quite favorable to the prosecution. The defense wanted “forcibly” and “assault” to require essentially a risk of real meaningful physical harm. And what they didn't want on assault was for injury to be defined, including touching offensive to a person of reasonable sensibilities.

And that ended up in the jury instructions. And there was even

Benjamin Wittes: And why is that even germane? I mean, he threw a sandwich. He didn't fondle the guy.

Molly Roberts: Yeah, right. Well, I mean, it's your def––it is your definition. Exactly. And it's hard not to look at that and think, that's where that's coming from. Right.

And then if you keep touching and you mean offensive, like the person could be pissed off by it, then like, what if you blow bubbles in my face can I say like, you know, I can reasonably be offended by that 'cause that's super annoying and maybe could plausibly sting my eye a bit.

But, you know, so, so yeah it seemed weird. And there was even a dispute on the final day when the jury sent a note to the judge and everyone thought, ah, a verdict in the simplest case in the world.

And it wasn't. It was a note that said, can you define bodily harm and how's it different from injury?

And ultimately the judge said, oh, they're interchangeable. And that was not what the defense wanted to happen, because that meant that bodily harm would then take on the same person of reasonable sensibilities definition.

So, you know. I don't know that he was in the bag for Sandwich Guy. Or not for Sandwich Guy, for the government. Anti-Sandwich Guy. But I think that if you looked at the decisions that he made over the course of the trial, they definitely tended to favor the prosecution more than the defense.

Benjamin Wittes: Alright. So we have referred to this as Sandwich Guy and Roger points out to me in the chat that we should name him at least once.

I mean, it's an iconic case. He's always going to be known as Sandwich Guy. But who is this guy and how, what do we know about him? I know he used to work for the Justice Department.

Molly Roberts: Yes. His name is Sean Charles Dunn. He was the paralegal at the Justice Department when this happened. He's 37 years old, which, I don't know. It was funny. I

, there was a friend of his in the courtroom who was kind of chatting and saying that when this happened, everybody said, oh, this is some Georgetown frat bro. And then it turns out he's 37 years old. And that actually Sandwich Guy is a little pleased, because everybody thought he was in college.

Right, right. I guess by the time you're 37, you want to have people think you're younger than you are.

Benjamin Wittes: Oh, I mean, I'm totally down with that. You know, people you know, I sort of feel like if people confuse me with a teenager, I'm doing it right.

Molly Roberts: Yeah. I'm not sure I'm at that point yet. I'm always kind of offended when I get carded. But what can you do?

I go, I'm 32. And I sound like more of a child. But anyway, I so, so that that's who he is. I mean, he's a gay guy, which is part of what was going on here. He was at a LGBT Club on U Street and they were having a Latin night. And he thought––and he says this in video that ends up surfacing in the trial, and he said it afterward in the press conference too, he thought that these agents were there to do an immigration raid on the club. And it's Latin night.

And so when he started yelling shame, shame, shame, and said, you're fascist, et cetera, he was saying that––and when he threw the sandwich, he was doing all of that because he was trying, he says, to help immigrants, to stop this immigration raid from happening.

Benjamin Wittes: And what were they doing there?

Molly Roberts: Well, you would learn from the trial that what they were doing was high-visibility crime patrol and prevention. You heard that, like, dozens of times during the trial. So that was their mission.

It was a mix of DC Metro Transit Police and CBP. The officer who had the sandwich thrown at him, the one who said he could feel it through his ballistic vest and that he could smell the a onions and the mustard, he was a CBP officer.

So essentially this was part of the deployment of federal troops throughout federal law enforcement, throughout D.C. And they were joining up with local forces too, to walk around and sort of send the message of “don't do crime because we're here watching you.”

Benjamin Wittes: And so, what is the officer's account of it?

I understand that there was some comedy and, but, you know, you can't get up on the witness stand and say, I never felt threatened. It was kind of like having a marshmallow thrown at you. And, you know, it was like a pillow fight.

What's, what was the CBPs officer's account of it such that this falls into the realm of criminality rather than mischief or––like, walk us through the prosecution's case for a minute.

Molly Roberts: Yeah. It's funny that you say a pillow fight, because in closing, the defense compared the throwing of the sandwich to an 8-year-old having a temper tantrum and throwing a stuffed animal at his parent not wanting to go to sleep.

Honestly, I cannot say to you that the prosecution via the witness made it sound all that threatening ever at all. He talked a lot about the speech that accompanied the sandwich throat to sort of establish this environment of menace. He was cussing, he was screaming, he was right up in my face.

And I mean, you can't punish speech as assault, obviously. First Amendment. And the judge had to, in fact, remind the jury after closing again that you can't do that, because the prosecution kept mentioning the cussing and the screaming.

You can use it to give context for his mens rea, but you can't––it's not what you're going to punish. So they definitely did that. They definitely talked about how loud he was, how angry he was. A lot.

And then when they talked about the sandwich itself, yeah, it came through in kind of what I was describing. They used language that made it sound a lot more violent than it was. So they had a filing where they described the sandwich as being thrown at point-blank range at one point in the prosecution in its opening statement––

Benjamin Wittes: I love that phrase, by the way.

Molly Roberts: ––and said he cocks it back, you know? So it sounds like a, sounds like you're talking about a gun.

And then they asked the witness, what did the impact feel like? And that's when the witness says, I could feel it through my ballistic vest. I could smell the onions and the mustard, which, you know.

Benjamin Wittes: And did the witness who the government is portraying as the victim here, did the witness have a sense of humor about it? Because I would, I have to say, I would have trouble not cracking up.

Molly Roberts: Yeah. I think the witness was trying really hard not to have a sense of humor about it in front of the jury. But did he have a sense of humor about it? Yeah, we know he did.

Not only was he about to crack up, but we know from what the prosecution brought into its case––sorry, the defense brought into its case that he got gag gifts from his colleagues at CBP, one of which was like a plushy sandwich, and he put that right up on his shelf and one of which was a patch bought from a vendor in D.C. that says, felony footlong.

And you can see what this image looks like online. They’re very much around. And he put that on his lunchbox. Like, you can't get cuter about this whole thing than that. And that's kind of what the prosecution was saying.

Has something terrible happened to you and you carried around a memento after? No.

Benjamin Wittes: You mean the defense?

Molly Roberts: Yes. I keep saying that, switching it. But yes, that's what the defense was saying. That would be foolish for the prosecution to have said.

But the prosecution said, oh, you know, why are you smiling? Because he was smiling. He was almost laughing.

And he said, essentially, that he was smiling at the idea of the defenses, that he was BSing a little. The defense was suggesting you said that you could smell the onions and the mustard.

But here's a sandwich. Here's a video of the sandwich on Instagram, with soundtrack by the song “Money Talks” for whatever reason. And with the caption “this sandwich is going up in history.” And it is intact. It's wrapped. So what do you mean, Agent Lairmore, that you could smell the onions and the mustard?

And the prosecution says, oh, the reason that he was sort of laughing, 'cause that's when he sort of starts to laugh, is basically that the idea that he couldn't smell the onions and the mustard was ridiculous to him because he had mustard on his uniform and he had a ring of onion on his radio antenna.

So they were trying to say the sandwich exploded. They were trying to say, basically, this was thrown really hard, this was thrown really close. And they were using language with violent connotations to do that.

But I mean, how well is that going to work? It's––when it comes down to it, it's a sandwich.

Benjamin Wittes: When did you know that there was no way they were getting a conviction?

I mean, we––whether there's one holdout for conviction and the jury hangs, or whether there's an acquittal, obviously you don't know until the jury comes back, but there's a point in watching every case that results in an acquittal where a sharp observer says, there's no way you're getting a conviction here.

When was it with this?

Molly Roberts: So after that moment where the defense shows the video of the sandwich intact on the ground, and she's cross-examining the witness, she says, that sandwich looks like it's in its wrapper. Can you tell what's on it? And he says, no, ma'am.

And she says, can you tell if there's mustard? He says no. And she says, can you tell if there's ketchup, no mayonnaise, lettuce, tomato? And he's going no. And she goes, in fact, the sandwich hasn't exploded at all.

And you––you cannot not laugh. I could not not laugh. The officer almost could not not laugh. The jurors were barely keeping it in. One of them was covering her face with her notebook.

That’s the moment.

Benjamin Wittes: Alright, so in your piece about this, which I refer to everybody, you talk about the sort of comparative sense of menace that the prosecution is trying to make. Menacing the conduct of Mr. Dunn, and the defense is trying to make menacing the fact of the prosecution, although make amusing the conduct of Mr. Dunn.

Which is hard, actually, to create a sense of menace while doing comedy. That's actually a pretty significant bit of trial advocacy skill, I think.

Did the defense, in your judgment, make a compelling argument that this is not merely a funny case that got overcharged, but that there is something scary going on the government side?

Molly Roberts: I think so. I'm going to say yes. I think at moments, it really was just funny. I think at other times, when the defense––and the defense made a big point of talking about dissent and talking about his ideological views. So I think that if you just read the text of what they were saying, it's a compelling argument.

I guess the reason I hesitate is, it's just hard to see––you watch the video and it's hard to see it as anything but amusing. And I think you have to be able to step back from the hahaha––which is hard to do. I had trouble stepping back from the hahaha––and think about the context of everything that's happening in the country right now to sort of stop laughing, get your straight face back on, and realize that it actually is menacing.

Benjamin Wittes: Sorry, I was in a different window greeting the people in the, who are joining us by YouTube.

So talk about the menace. What is the, you know, no harm, no foul. Sandwich Guy throws a sandwich, nobody gets hurt. Sandwich Guy gets indicted, jury sees through it.

What's the problem? Where's the menace?

Molly Roberts: I mean, first of all, I mean, is it no harm? Is it no foul?

He had a SWAT team sent to his apartment. And he had to, he got fired from his job. Obviously that's separate from the prosecution, but he did.

He had to go to court for not only two days like the judge said, but four. And so did these jurors, so did these 12 citizens of the United States doing their civic duty, leaving the actual jobs that they have to do.

I mean, not that jury duty isn't a job, but leaving the regular jobs that they have to do, for this. I mean, so I think there's some degree of harm there. But then second, this statute, which is 111(a), is a statute that was used against many of the January six offenders and is now a statute that the Trump administration has been using against other protestors and wants to continue using against other protestors.

And it's a statute that the one of the president's executive orders on that subject is recommending that law enforcement look at first when it comes to bringing cases against domestic terrorists. And so I think that the definitions of “assault” of “forcibly,” I think that the likelihood that the government uses the statute to punish people matter in a much broader context than Sandwich Guy.

And of course there's also just a massive chilling effect. This isn't just gonna chill you when you're thinking about throwing a sandwich at a cop. Which, to be clear, I don't believe you should throw a sandwich at a cop.

Benjamin Wittes: Are, we're against that?

Molly Roberts: I come down hard––well, you know, hard against that.

Benjamin Wittes: At least soft against that. It's a soft object.

Molly Roberts: ––the role, I suppose. Yeah, exactly.

But yeah, I mean if you're thinking of going to a protest, if you're thinking of joining a crowd of people that a administration official might plausibly characterize as threatening, this could deter you from doing that. The willingness with which the government will bring first a felony assault charge against you––and then, when the grand jury won't indict on that, drop it to a misdemeanor. It absolutely could.

And that's––the government said you should worry about that. Jeanine Pirro said, if you mess with us, we'll mess with you, effectively. She said, you know, he thought it was funny, so there.

We charged you with a felony. It's not so funny now.

Benjamin Wittes: Alright, so I want to ask one other question about the menace quality, which is that this is the same office that fired all the prosecutors that brought those January 6th cases.

And you have a feeling that if you throw a sandwich at a, say, an illegal migrant, while ICE is doing arrests, they're not going to bring a felony assault charge or let––or even a misdemeanor assault charge. That there's something one might say selective, or even vindictive, although probably not in the term of art sense of those terms, about the way––

Molly Roberts: Yep.

Benjamin Wittes: ––Jeanine Pirro is talking about using statutes like this. I'm wondering how that plays in. It seems like not all sandwich throwing is going to be prosecuted under this law.

Molly Roberts: Nope. I think you basically said it. The idea is, when you're throwing the sandwich, are you trying to interfere with the enforcement of President Trump's agenda?

So I think that it's pretty clear that if you throw the sandwich at the immigrant, you're not––I wouldn't expect a case to be brought for that. And the defense had filed a selective and vindictive prosecution motion and had said that the class of people to which Sandwich Guy belongs is basically throwers of soft objects, and that generally you don't prosecute them under this statute.

And the judge said he was going to do deferred ruling on it and then never formally addressed it in open court. It's nowhere on the docket either. He brought up at one point in the trial, I think the defense might want to talk about this, and then they didn't say anything about it. So I guess that was just the end of that.

And my understanding is that it's quite hard to get cases dropped for selective and vindictive prosecution, but I think it's true. A, throwers of soft objects usually aren't charged. And B, the other class they say he's similarly situated to is these January 6th offenders.

And here they all are pardoned when they did more than throwing a salami sandwich from subway at a CBP officer in a ballistic vest.

Eric Columbus: Molly, I have a question for you. Do you think that what the jury did yesterday in acquitting Sandwich Guy. Was that jury nullification?

Molly Roberts: You know, it would depend on the juror, and there's obviously no way of knowing how many people thought that this was unjust.

So even if, according to the judge's definition of assault, this qualified as assault, they didn't want to convict the guy, I can imagine there were some jurors who felt that way. I can also imagine there were some jurors who heard that definition of assault and heard the words bodily harm.

Even though bodily harm was eventually defined the same as injury, and said, okay, under these instructions, that's not assault. There couldn't have been any reasonable apprehension of harm here. Having a little mustard on your uniform isn't harm.

So I could see it going either way, and I think it was a tossup throughout, when you listened to the arguments that the defense was making, they were making it pretty clear that this was ridiculous that it was even a case.

So I think it was kind of dancing along that line of sort of asking the jury to look at it exactly the way you're describing.

Eric Columbus: So did the––in order to convict, did the jury need to find that the officer reasonably, had a reasonable apprehension of harm and that the touching was offensive to a person of reasonable sensibilities?

Is that right? Yeah, basically.

Molly Roberts: So you had to prove both forcibly and one of the verbs. And forcibly had to do with the reasonable apprehension of bodily harm. And then assault had this question of injury. And injury was the reasonable sensibilities.

Benjamin Wittes: Roger, you have a thought.

Roger Parloff: Yeah, just. I just––it's, yeah, it is more of a thought than a question.

I just wanted to mention on the menace front, this was 111(a), I don't believe 111(a) was ever charged as a misdemeanor in the January 6th cases. If there was something that was less than actual assault, like some sort of pushing or even with contact––and sometimes I wondered why they charged a lesser felony, civil disorder, it, the, here they tried to get felony assault, which is an eight year minimum. I mean, not minimum, it's an eight year maximum. Sorry.

But you know, and this is obvious. The pardons, you know, the guy who caused Caroline Edwards to fall back and hit her head on the concrete, and she's still suffering the consequences of it.

He was pardoned. You know, somebody with I think 38 priors.

The guy who injured Aquilino Gonell, to the point where he can't perform, that he had to quit his calling. He could no longer be a police officer. He was, you know, the guy that sprayed Brian Sicknick in the face. And he collapsed later the evening and the next day he died at the age of 42 of stroke.

Obviously, the coroner or whatever called it natural cause.

Jeffrey Smith, who committed suicide: he was hit in the head with a pipe thrown by––well, I guess we don't know if that guy was pardoned or not. Anyway there's just a disconnect in everyone recognized, but I thought I'd say it.

Benjamin Wittes: Yeah, I'm not sure that requires much of a response. It is clearly right, and it is a reminder of the fact that prosecutorial discretion with statutes like this is a remarkably powerful instrument.

Alright. If you have questions for Molly, please put them in the Q&A and we will be back for them a little later on.

But there were some other important developments this week other than Sandwich Guy. And we're going to, we're going to tick through them. Let's do our criminal trials matter first.

In the Comey criminal trial, Roger, we had a hearing on the filter protocol, which kind of crept up on us. I did not think this was a very substantial matter when it first arose, and then all of a sudden it gets more and more substantial because there's clearly privileged information in the grand jury.

And then all of a sudden, the judge turns around and on his own motion orders all the grand jury materials disclosed to the defense.

Bring us up to speed here. What's the issue that they're fighting about? And how big a problem is this for the government's case?

Roger Parloff: Yeah, this was sort of a sleeper hearing. I wasn't expecting much and neither was anyone else. I––in fact, when I got there. I wondered if I had the wrong day, because there were no satellite trucks, there was nothing out front. I went in and I could think there was one tripod.

I went up to the sixth floor and there was nobody there. I asked a court guard if this was a hearing today, and he said there was. And then the sniffer dogs came out. But it was partly that you know, it was a side issue and partly that it was the same day as the tariffs and the same day, probably more important of Sandwich Guy’s, the final day.

But it turned out to be quite easy.

Benjamin Wittes: The press has its priorities.

Roger Parloff: Yeah. And by the way, I just did a, there's a dispatch that we just posted online if you want to hear what happened at the hearing.

But basically this was, there are, turned out there were four search warrants that were issued to Dan Richman, Professor Dan Richman, back in 2019 and 2020.

And the prosecutors have those, and they had asked to do a filter protocol because the, there was a danger that some of these would be attorney-client privilege. And Comey responded

Benjamin Wittes: Because Richman was at the time––immediately after Comey's firing, retained as one of Comey's lawyers.

Roger Parloff: Exactly. And Comey’s lawyers responded that we weren't at the protocol stage, because first the government needed to explain, had some explaining to do about whether they were violating, whether there should be a suppression motion.

And I guess the way it works out is that these came out of the Arctic Haze investigation, which related to, in part at least, the, an article that the New York Times published in April of 2017, that allegedly included a classified, had access to a classified document.

And so––but the exact, exactly whether there had been filter, there were two issues whether––well, one was that Richman had, his lawyer go through these, at least with respect to three of the search warrants. And he could assert privilege. And then it was returned to the government with a privilege log.

But Comey never went through. And Comey's lawyers never went through. So that's one issue.

Another is that when Richman's lawyers returned it, that was for privilege. But there was never a, the––according to the govern-, according to the defense––what's called a responsiveness review. Were the documents responsive to the enumerated categories of the search warrant what they were looking for?

So what the government seems to now be doing is going back and looking at documents that may include non-responsive documents, which would never have been properly seized, and going through.

And that would be unconstitutional. That would be a Fourth Amendment violation.

 There's also a question that somehow an FBI agent this time around, in 2025 while going through these––and it's unclear whether he was unaware of which documents Richman and his lawyers had previously marked as privileged or not––but he went through and he started to read something, and at some point it kicked in and he realized this looks like an attorney-client privilege conversation.

And he, according to the government, he did the right thing, and he brought in a supervisor. But the defense doesn't know, how did that happen? And were there other taints?

And that agent apparently did present the case to the grand jury. So all of these things angered the––they angered the Magistrate, Magistrate Judge Fitzpatrick, William Fitzpatrick.

Bcause the trial is starting in two months. And there's no time to, it's very hard to you to impose on the defendant the obligation to go through all this stuff.

And he was saying this, you know, this, procedurally this is highly unusual. It has the feeling of indict first, investigate later.

And so he was saying, you know, defense, you're going to get everything you want 'cause but you're going to have to work like the devil to, to get it to, to, you know, for us to meet the deadlines.

And in that context, he said he's going to turn over the grand jury minutes too. And now, Comey wasn't asking for the grand jury minutes at this hearing. He had already asked for them from Nachmanoff, the judge––Nachmanoff, the presiding judge in the connection with a different motion, which was broader and which had to do with a lot of potential wrongdoing going on.

But one of the pieces of wrongdoing that he mentioned was this piece, the taint. So it's not unrelated. The––and so he issued those orders on Wednesday, and there was actually no discussion at the time.

Then this morning, the government appealed the grand jury portion of that order.

Benjamin Wittes: Yeah. And so wait, let's talk about how that happened, because that was supposed to be delivered by the end of the day yesterday.

Roger Parloff: Yeah.

Benjamin Wittes: And they did not comply with it and then appealed it after the fact. How does that work?

Roger Parloff: The––it seemed, it looks like the right hand doesn't know what the left hand is doing. Or, when they filed that motion, they said they invoked––the they didn't put it this way, but they sort of invoked the Emil Bove rule, that there was only an order, oral order, but there was no written order.

And that didn't happen to be true. There was a written order that––and it was filed late November 5th and arrived early November 6th, and they might not have seen it 'cause it was part of the––if they didn't go through the, it was part of the other order about the subpoena stuff.

So, it was just a paragraph and maybe they overlooked it expecting a separate order. I don't know. But it's a written order.

And I don't know what their theory was, but they raised it for the first time this morning, which is November 7th. And then a few hours later, Nachmanoff said it was based on a lack of delegated authority. They were saying this issue was delegated to the magistrate judge for, you know, limited purposes.

And this wasn't one of them. And Nachmanoff rejected that, said, no, this is within the scope. And then the other was under 6(e) something or other, if you're going to disclose something, you're supposed to make a specific finding of particularized fact. And so he remanded it to the magistrate to say, you know, and said, make that particularized finding of fact.

But it sounds to me almost ministerial. I mean, it sounds, he'll just put into writing what he said during the hearing. To me, I, that's my impression. I don't think it's going to be hard to get those minutes turned over.

Benjamin Wittes: And what happens––this obviously asks for a level of speculation on your part, but I, my impression, there's a separate motion from the Comey people for access to the grand jury material, because their theory is that Lindsey Halligan engaged in significant misbehavior in front of the grand jury, knowingly or unknowingly.

Roger Parloff: Yeah.

Benjamin Wittes: And I, if I were the government, I would be nervous about Pat Fitzgerald having access to that material, particularly because you haven't even filed yet your response to the motion for access to that material.

So, am I wrong to think that the moment Fitzgerald & company get their hands on that document or the, that set of minutes and transcripts, you're going to see a flurry of new motions about what she did in there?

Roger Parloff: Yeah. I mean, that is obviously, it's speculative for me but yeah. I mean, I think the only thing that could, you know, the question here is timing, how soon they'll get those minutes. I think it's in the cards they're gonna get those minutes.

You know, the, Nachmanoff had set a schedule on that motion you're describing, which is the broader motion. Which does include privilege taint as one of several things, and I will, I want to credit Marcy Wheeler for pointing this out to me 'cause I was overlooking this. 'Cause it's sort of a minor part of a very big motion, but––emptywheel is Marcy Wheeler.

But so, and so they will eventually get it. I don't know if they will get it as instantly as the magistrate wanted, but I think they may will, it will. He has an ample reason himself for ordering it.

Benjamin Wittes: All right. Let us move on to the next thing in this saga, which is that Judge Currie finds that the transcripts provided by the government of the grand jury process are not complete.

What's going on there? I gotta say, I didn't even know about this, Roger, until I read it on the agenda, which gives you an idea of how hard it is to keep up with the pace of events in these cases.

Roger Parloff: Yeah.

Benjamin Wittes: What's going on here?

Roger Parloff: And I think this is another thing where almost anyone who gets in, judge, who gets involved in the case wants to immediately read the grand jury minutes. You know, that something is so odd here.

And so Currie, you know, Judge Cameron McGowan Currie from South Carolina, the designated out-of-district judge who's deciding the unlawful appointment issue, was the indictment signer Lindsey Halligan, properly appointed as interim U.S. attorney?

Benjamin Wittes: And just to be clear, this is a completely different motion, completely different judge, in a completely different state, right?

Roger Parloff: Yeah. Yeah. And so she wants to see the grand jury minutes in order initially in order to see what role Halligan played. Were there other, I think, you know––she didn't explain it to us to see if other AUSAs were presenting and so on. And they, so they––and she wants it the next day by end of business, they send it to her. We've complied and she starts reading and she sees that Halligan in her questions is referring to things she told the grand jury earlier that aren't in the transcripts.

And apparently she––and they also don't include what happened after the presentation of evidence the instructions to the jury and the stuff relating to the no true bill. And so she demands on I think October 28th she demanded, I think the rest of the minutes. I'm, no, I might have the wrong, no.

Okay. I think it's, she noticed this November 14^th––no November 4th. The interesting thing is that in the meantime, on Halloween, something else has happened. Which is that Pam Bondi is trying to shore up the case that Lindsey Halligan is––

Benjamin Wittes: Oh man, you just jumped shift the next item on the agenda, Roger.

Roger Parloff: They are interlaced, as I'll prove it up.

Benjamin Wittes: Okay.

Roger Parloff: Okay. So, and again, I need to credit Marcy Wheeler on this one. So, so on October 31st, Pam Bondi appoints her in a second way through as a special attorney. I think a special––I think that's what it's called, under 509, 510, I think 515, and I think also a 518, but I don't know.

And then she also says, and I, look, I read the min, I reviewed the minutes. And don't worry, everything's fine. I retroactively ratify everything that Halligan did. Including the signature. And she does that about a month after the statute of limitation has passed.

So anyway, then, like I say, on November 4^th, so that's four days, five days later, Currie notices that the grand jury minutes are not complete, and she demands the complete minutes.

And then the next day AUSA Lemons responds and said he's complied. He's now filed all of the transcripts. The problem was that they hadn't previously been all transcribed and he didn't possess the recordings that they were with the transcription service, and nobody had ordered those, so he ordered the recordings and then he had them transcribed.

So, it's inconceivable that Pam Bondi had everything she needed in order to ratify what Halligan had done. But so those are why I'm treating those two together.

Benjamin Wittes: Alright. So, is there more to say about that as an issue of its own at this point?

Or should we consider the Bondi attempt to retroactively make kosher the pork in this case a fully treated issue?

Roger Parloff: I think that's a strategic question. If she wants to, if she thinks it will help her to make yet another retroactive filing and say, now I really have reviewed the minutes, right, and now I really ratify what she did. So we'll see.

Benjamin Wittes: Alright. Meanwhile, Reuters reports that the White House has fired the IG of the Federal Housing Administration, which has got to have played the biggest role in this administration of any federal housing administration ever, because he was trying to turn over some information to the Eastern District of Virginia about what Mr. Pulte has been up to.

What do we know?

Roger Parloff: Yeah. All I know certainly is what I read in a Reuters article on November 3rd, which I thought was a very explosive article and I thought we ought to mention. It's by Sarah Lynch, Chris Prentice, Marisa Taylor.

Yeah, the White House fired Joe Allen, the inspector general.

This makes, you know, the––I think we're up to almost two dozen of the igs and yeah, he was––FHFA is, it, you know, it typically regulated Fannie Mae. It wasn't something––you know, don't let your eyes glaze over, I'm not gonna talk about Fannie Mae.

But you know, it's not the center of usually of an administration. But Bill Pulte, the current head of it, has been fishing out, you know, he's been going through mortgage documents and to try to make cases against Letitia James and Lisa Cook and Adam Schiff.

And suddenly he was fired. And according to the article, he was fired––I mean, not Pulte, the IG. The Inspector General––after he, quote, after he made efforts to provide key info information to prosecutors in that office, meaning the Eastern District of Virginia, according to four sources, the information he turned over was constitutionally required, two of them said, while a third described it as being potentially relevant in discovery.

That makes it sound like it might be Brady material, but I'm, you know, I'm sort of speculating.

And then it continues. His ouster also came about as he was preparing to send a letter to Congress notifying lawmakers that the FHFA was not cooperating with the Inspector General's office. Three of the sources said, these individuals said that the FHFA director would typically have been notified of such a letter.

So that sounds like a very big deal to me, but.

Benjamin Wittes: And firing, am I wrong here? Or, firing the IG does not really solve your problem if you're the government, because if this is Brady material, it's discoverable whether or not you've fired the IG. Right?

Roger Parloff: Well, he was trying to notify the prosecutors. So I don't know if the prosecutors yet know about it.

Benjamin Wittes: Right. But presumably now that Reuters has reported it, the defense knows about it, right.

Roger Parloff: Some prosecutors somewhere know about it. Right. I don't know that the one other thing is, oh yeah, there is no Inspector General, at least at the moment for the FHFA. According to its website, the position is currently vacant.

Benjamin Wittes: Well, I am happy to serve in that role if nominated.

Alright. Let us turn to the fourth senior editor who has joined us on Lawfare Live today. Anna bower. Anna, in the Comey case as well, the defense has now––or the prosecution has now filed its response to the defense motion to dismiss based on selective and vindictive prosecution.

You and I wrote a lengthy discussion of that motion and its contents, and specifically looking at what it had to say about the substance of the prosecution's case that it means to present. So, walk us through, what is the, you know, ever since Jim Comey was indicted, we've all been sort of scratching our heads saying, what is the lie he is supposed to have told?

Does this motion answer the question? And what is the lie?

Anna Bower: Yeah. So, look, the indictment alleges––and there's all, I'm gonna try to boil this down to the simplest thing possible, keep in mind there's like a lot of complexity to the questions that were posed to Comey in the testimony he's alleged to have lied during.

But to boil it down to just what is in the indictment, he is alleged to have lied during congressional testimony about whether he ever authorized someone else at the FBI to serve as an anonymous source in news reports about the Clinton investigation. So there's like a number of different necessary conditions there, right?

You've got to have someone else at the FBI. You've got to have authorization. You've got to have that it was anonymous, and then you've also got to have that it was about the Clinton investigation.

All those things have to be there for the government to prove up its case beyond a reasonable doubt. It was not clear, though, exactly what the factual predicate was, because the indictment just says, Comey lied about this when in reality he had authorized someone, person three, to actually do these things.

We didn't know who person three was when the indictment first came out. And we didn't know what exactly, you know, which news report was it? What was the, you know, underlying conduct here that they're talking about.

In this vindictive prosecution motion, we get what seems to be the most detailed version of the government's case yet. We, in the interim period, have learned that person who is authorized, who was supposedly the authorized source in these news reports is Dan Richman, a Columbia law professor, a longtime confidant of Comey's, who also at one point served as a special government employee at the FBI.

And the government in its brief in, by the way, a very strange type of way because the language is quite odd in that it doesn't fully connect a lot of these facts that it sets out to the precise charges in the indictment, but it sets out at length a number of facts that seems––it seems to suggest are related to the charges in the indictment.

And in the main, what it does is set out a series of four different sets of exchanges or communications between Comey and Richman, or between Richman and others, that it is suggesting shows in some way that Richman was authorized to anonymously engage with the media about the Clinton investigation.

So, for example, it starts in October of 2016 with these email exchanges that occur between Richman and Comey, in which they're talking about a New York Times article that was written by Michael Schmidt and others.

It then goes forward to February of 2017, where there's an exchange via email between Chuck Rosenberg and Dan Richman, in which they're talking about an article that's being written. There's also an April of 2017 exchange between Comey and Richman. And then finally a text thread in May of 2017, which is after the time that Comey had already been fired, in which Richman is texting with Michael Schmidt, the New York Times reporter, about a story that Schmidt is writing.

So it has these different buckets of exchanges through a period of time. And it's trying to suggest, it seems, that this is kind of, you know, the government's case in the main, as it relates to this false statements charge.

But Ben, as we write in the piece, if you look at it, it really just does not even come close to showing that there is a lie in Comey's testimony. And for a variety of reasons––I don't think we need to go through them all because, you know, people can read the piece––but I will say that one of the threshold issues which I just published a separate piece about as well, is that three out of the four sets of communications happened after Dan Richman already resigned from the FBI.

And even then, the other exchange occurred that this October slash November, 2016 exchange between Comey and Richman occurred at a time when, based on public documents that we reviewed occurred at a time when Dan Richman technically may not have even been a special government employee for the FBI.

And remember, there's that “at the FBI” part of the testimony that has to be there for the predicate. Then you get into all these other things that we discussed in the piece about whether these things show authorization, whether Richman was being authorized to be an anonymous source, and as we go through one by one, Ben, none of these communications cited in the brief show that.

So it really just, when you get to the end of it, you have to ask yourself, where is the lie? Because it's not in the brief.

And that's not even to mention, by the way––and I'm going to wrap up here, that there's also this other extraneous material that the government includes related to this, like, allegation that there was a burn bag room that was found in the FBI that included these handwritten notes.

It seems to be that the government is in some way trying to shoehorn in this count that was no-billed by the grand jury that related to Comey allegedly lying about the so-called Clinton plan, about tying Trump to Russia in the 2016 election. The grand jury rejected bringing charges against Comey related to that, and the government seems to just throw in this stuff about that in an effort to try to maybe get some of the facts that they wanted to get public related to that no-bill charge out there.

It's really unclear. They might be trying to fit that into count two, which is the obstruction of justice count.

I'm not sure, but it's very strange and very much surplus. So Ben, what did you make of this? What am I missing here in terms of design?

Benjamin Wittes: Well, I am going to seize moderator control here and turn the subject to your latest article.

Anna Bower: All right, cool.

Benjamin Wittes: Which sorry, Roger, were you trying to get in?

Roger Parloff: Yeah, just related to what Anna was just saying, one, one thing that came up at the hearing Wednesday was that because of that motion and the way it's seemed to be throwing a lot of spaghetti at the wall, I mean that response, they are now contemplating a new motion relating to––their concern is that the government is planning to remember the charge that was no-true-billed that, that the government is trying to sneak that back into the case, right?

As evidence of at least count two, the obstruction count. And so he, he'll, he, they may be working on a motion relating to that.

Benjamin Wittes: Alright, so in the meantime, Anna, you have elliptically referred to your latest article, which posted I think just a few minutes ago. Which relates to the question of whether Dan Richman was in fact at the FBI at all.

And so let's start with the question, why does it matter if Dan Richman was at the FBI.

Anna Bower: Yeah, so as I noted, you know, the indictment alleges I, in terms of Comey making a, it alleges that he made a false statement. That false statement is that he said that he had never authorized someone else at the FBI to be an anonymous source in news reports about the Clinton investigation.

Benjamin Wittes: So it's not a legal question, it's actually a question about the question he was asked, right? He's said to have lied in response to this question. The question says anybody at the FBI.

Anna Bower: Right. And there, there are legal questions that relate to this, right? Because it comes up already in the pretrial motions where his defense counsel is arguing that the questioning is fatally ambiguous.

And so one of the arguments in that motion that the defense makes is, oh, well, you know, any reasonable person wouldn't think that at the FBI means anything other than someone who's a full-time employee at the FBI. The person who Comey is alleged to have, in fact, authorized at the FBI to be an anonymous source of news reports is a guy, Daniel Richman who was a special, had a special government employee status for some time at the FBI.

You know, special government employees typically are kind of like outside experts or advisors or con consultants who work on a part-time or intermittent basis. They're not full-time employees, there's restrictions on how much you can work, that kind of thing. Richman worked on some encryption issues, and in the piece that I just wrote, I reviewed a huge tranche over the course of several weeks of FOIA documents that, that relate to Richman's appointment and employment as a special government employee at the FBI.

The reason being that, you know, the timing here really matters in terms of his employment, because the government has to prove, as a part of its case that Comey authorized someone at the FBI to be this anonymous source.

And so when you look through these documents what you find is that, you know, Richman was first appointed in 2015 to be a special government employee, like I said, on these encryption issues.

There was a one-year term that expired in on in June of 2016. But actually when you continue to go through the documents, what they indicate is that Richman's first term as a special government employee expired in June of 2016, and he was not, his reappointment to a second term was not approved until many months later in, in December of 2016.

And even then, he didn't complete the paperwork. So it may be that his––

Benjamin Wittes: He’s most organized guy in the world.

Anna Bower: Well, it may be that his appointment was not validly effectuated. And in any event, after that second approval of being reappointed in December of 2016, he then resigned not long after, in February of 2017.

And Ben, like I kind of alluded to earlier, this really matters, because all of the communications that are set out in the government's brief that form the factual basis of their allegation––or seem to form the factual basis of the allegation that Comey authorized someone at the FBI to engage anonymously with the media––all of those communications take place at a time when it appears that Dan Richman was technically not an employee of the FBI.

So it raises the question, what does “at the FBI” mean, and how could this kind of formal status question affect the government's case?

Benjamin Wittes: All right, we are going to move on. If people have questions about this case, about this new story, about Sandwich Guy, please leave them in the Q&A. We’re going to have time for a bunch of questions today. So, load them up and I will––as they might say in the Sandwich Guy case––cock them and fire them at point-blank range in a few minutes.

In the meantime, Eric, we have impoundment action going on with respect to the SNAP payments during the shutdown. That is going to sound like total gibberish to a lot of people, so what is an impoundment? What is SNAP? What is going on?

Eric Columbus: SNAP is the Supplemental Nutrition Assistance Program. It used to be known as food stamps, but then it was rebranded. An impoundment is when the government refuses to spend money that has been appropriated. Now, the government here would, and I think actually both sides w would not say that this is an issue about impoundments so much––well, maybe the plaintiffs would.

It's, there, there is not money that has been appropriated for SNAP due to this shutdown. But there are contingency funds that may or may not––the government may or may not be obligated to, to fund. So, so this is actually our second week in a row talking about SNAP where we left off––

Benjamin Wittes: Which we, you know, back in the day, we wouldn't have called SNAP a Lawfare issue. You know, there's guns and butter, and this was, we did the guns. SNAP is part of butter. You know, it's just not like our thing.

And all of a sudden, SNAP is national security law.

Eric Columbus: Well, I mean, to the extent that issues involving clashes between the executive and the legislative, separation of powers issues, in this day and age, trench upon national security issues, it's really at the heart of it, unfortunately.

And where we left off last Friday, two district courts in Rhode Island and Massachusetts had issued injunctions requiring the administration to make at least partial payments, SNAP payments, to the states for the month of November. This is a program that is funded by the feds. They give money to the states, which then disperse them to state citizens.

And Friday afternoon, Trump said I don't want Americans to go hungry. He says, in a Truth Social post. I asked the court to clarify how we can legally fund SNAP as soon as possible. If we get the appropriate legal direction by the court, it'll be my honor, all caps, to provide the funding.

So on Saturday the Rhode Island judge puts his oral TRO in writing and says, you can either fund SNAP fully using SNAP contingency funds, which had been set basically set aside for this purpose or a, and a separate pot of money called Section 32 funds, which are, can be used for a bunch of different things. Or you can do it partially just using the contingency funds. But you’ve got to do it by Wednesday and you’ve got to expeditiously resolve these administrative burdens that you talked about in your briefs.

And so Monday says okay okay. The government says okay, we'll do it, we'll do it partially. We'll do just the contingency funds, but it might take weeks or months because we haven't done this before. And we're not going to do, pay the full amount using the additional Section 32 funds because there are some restrictions on those funds that we think Congress wouldn't want to be used for this. And it would leave a gap in other programs, other childhood nutrition programs.

Tuesday. Then the plaintiffs file a motion saying, you know. The government's not complying with your order, judge. You’ve got to make them comply. You said Wednesday, they're not doing it by Wednesday. And they said, and their decision not to pay the full benefits was basically arbitrary and capricious.

One hour later, Trump, for reasons unknown, post something else that says SNAP benefits will be given, which increased by billions and billions during crooked Joe Biden's disastrous term in office, will be given out only when the radical left Democrats open up government and not before. I'm leaving out some the color there, if you will.

The plaintiffs bring it to the court's attention and the government says no no no, pay no attention to the man behind the curtain, we're complying. We gave the states the info that they needed. And so I'm leaving out some steps, but basically it looks like the diff, the government says they're gonna pay 65% of the monthly benefits for November.

And there's a hearing on Thursday in which the judge basically tears into the government, says, look, you didn't comply. You were supposed to make the payments by Wednesday. If they were administrative issues, you should have dealt with them a long time ago. And he puts that in, later in the day, into an order.

And if you at the latest, you should have dealt with these issues when the shutdown began. And if you couldn't deal with these issues, then you should have supplemented it with the money from the other funds, and that your decision not to do so is arbitrary and capricious, because you fail to consider the impact on the recipient on SNAP recipients and you are, you were wrong on the law.

Your fears that Congress won't replenish the depleted Section 32 funds is highly unrealistic and any way. It's pretextual because it's really for political purposes. The government appeals fairly quickly. It tries to take it up to the first circuit, get a stay pending appeal.

But then at the same time, or rather today they appeal, sorry, they said they filed their appeal in the morning at like maybe 10:00 AM. But at the same time or roughly the same time, the Department of Agriculture, which administers SNAP, puts out a memo, says that they're working towards paying full benefits.

So it's very confusing. And the First Circuit, which the government asked to rule by 4:00 PM has yet to do so. So it's odd, it's not entirely clear. A lot of people felt the government would not appeal this because of, for, just for the political, for political reasons. They may feel that the politics are on their side. I have no view on that.

They may also feel like legitimately that the law is on their side. That's kind of a closer question. It's a little bit confusing as to why the government did not appeal the original order by the judge from last week, why they waited until they were put into this position where they said they would comply with an order that required them to pay money by Wednesday when they clearly had no intention of paying it by Wednesday.

So, this will probably go to the Supreme Court in short order over the weekend, and it's become a very high-profile issue in the shutdown.

Benjamin Wittes: All right. Meanwhile, we have in the––we have a only a very brief immigration roundup this week. We have a TRO in the challenge to conditions at Broadview, which is a major immigration detention facility.

What's going on there? And since when have federal courts been particularly interested in conditions in immigration detention?

Eric Columbus: Well, they have from time to time. I think this is higher profile than most because Broadview is where––they've been calling this Operation Midway Blitz in Chicago, and Broadview is the place where they're taking everyone who they're are rounding up in Chicago. They're taking them to Broadview, maybe later sending them to other facilities or kicking them out of the country. But in the first instance, they're sending them to Broadview, which is right outside of Chicago. It's been getting a lot of attention as a result.

Plaintiffs claim that they're crammed up, a hundred people at a time into a small holding cell without a, without hot meals, nowhere to sleep, the dirty floor, the open toilet, smells like excrement. And that they're not given much food. Somewhat ironically, they claim that they're given a, a. piece of a subway sandwich with one slice of lettuce and one slice of ham and for breakfast, lunch and dinner.

And the government has been, in their papers, have been somewhat ominously warning that if you make this too onerous for us in terms of what we have to give the detainees, we'll just shut the place down and might have to compromise our enforcement activities in Chicago.

The judge uses a TRO that it largely gives the plaintiffs what they want, but does not specify the consequences of non-compliance. The plaintiffs wanted the government to basically shut it down and possibly release people if the government was found to be noncompliant.

So, but the district court judge requires them to provide adequate space to sleep, clean bedding, adequate supplies of soap and menstrual products, toothpaste, towels and toothbrushes, three full meals, waters, telephone services for attorney-client protected conversations with their lawyers.

This afternoon, the government gets back to the judge in a status conference and it says, basically we're trying to comply with most of the stuff. The one thing that we don't, that we object to is toothpaste and toothbrushes, because that can be used as weapons. We're happen to give people toothpaste––toothbrush can be used as a weapon, the toothbrush rather, not the toothpaste.

We're having to give people toothbrushes if they ask, but if they don't ask, then we're not going to give it to them. The plaintiffs for their part are skeptical that they're, this is really being compliant with in terms of access to attorneys and even to some degree with conditions. And they demand the right to inspect the facility.

So that's where we stand. For now.

Benjamin Wittes: Alright. And finally we have a request for a preliminary injunction, which I understand has now been granted in a Chicago case, challenging ICE use of force against journalists and protesters. What is going on here?

Eric Columbus: So, this is another case we've talked about before.

It's like what the case we just discussed. It's in Chicago. It involves Operation Midway Blitz, and also raises the question of the extent to which judges in both cases raise the question to what extent judges can effectively supervise what's going on in fast-moving, fast-changing conditions and required the government to government law enforcement and correctional officers to take action.

Basically the––what the judge did was more or less extend a temporary restraining order that she had put in place a couple of weeks ago. She did not––she added a couple of requirements to it, but they were small. She added a requirement that they had to, officers had to display on like two portions of their uniform a unique identifier. Not necessarily their name, but like a badge number that would identify them.

What's been most notable for the past week though, is that she's basically hauled into court a high level, CBP and ICE officials who have not really acquitted themselves too well. And she––as Judge Ellis, who's an Obama appointee has made clear her dissatisfaction with him and especially Gregory Bovino, who has become an increasingly high-profile CBP officer and has been you might say, kind of running border patrol, running point for them on these issues here, these enforcement issues.

And Border Patrol is, if you could believe it, giving ICE a bad name with the aggressiveness of their enforcement actions, the judge went out of a way to, to claim, apparently correctly, that judge––that rather that Greg Bovino lied a couple of times. He lied about, he told a reporter that he'd been hit in the head with a rock before he deployed tear gas.

She demonstrated that he had not, in fact, been hit with a rock. She also, he also apparently lied on the stand, by saying that he would, he had been that he did not deploy force on our protestor literally after watching a video, which he has shown kind of tackling the protestor.

So, for those who have not been following along the TRO basically restricts their ability to use force against protestors and against journalists who are, those are the ones who brought the case you know, challenging the degree to which CBP and ICE were pushing back against these people.

Unlike in the conditions of confinement case, DOJ or CBP and DHS appear to be unhappy here, and they claim that they're going to appeal. So that would make a somewhat interesting appeal. The judge in her written product was quite measured. She did, however, at her hearing yesterday recite a Carl Sandberg poem by the City of Chicago in its totality.

Benjamin Wittes: Excellent. Alright, we are going to get through all of our audience questions today. I am going to decide who they are directed to, but if anybody who they're not directed to wants to jump in on them feel free.

Kit asks––I think of Roger––does the vagueness of the indictment in the Comey case provide another argument for the defense to get the grand jury material, so that they can be sure of what the government is alleging now, and that it is the same as what was presented to the grand jury?

Roger Parloff: Cert––I don't know, maybe Anna will have an answer. The, I think this motion that seems to be upcoming about the second count––I mean the second count, until we get a bill of particulars, we don't know what's being charged at all. The second count talks about misleading statements.

We don't know for sure if that's the one mentioned or the ones that relate to the first count, which is false statement, or if they relate to the count that was thrown out by the grand jury, which was a different alleged false statement. So, yeah, the vagueness is part of the problem. I'm not sure if that's why the grand jury minutes will be turned over.

Benjamin Wittes: But I do think that the question is onto something. Yeah. Because it's been a week or so since I've looked at the motion for disclosure of the grand jury materials, but part of the argument for it is that they want clarity, the defense wants clarity, that the material that was presented to the grand jury, the allegations that are presented to the grand jury, are the same allegations that they're trying to get out of the government in the bill of particulars.

In other words, that he's not, they're not trying to get one thing tried and, having gotten a different thing indicted.

Roger Parloff: Yeah. And it, it's not just, there's two things going on. The defendant has to be on notice of what the charges are, but the grand jury also has to have indicted for the same thing that the government is charging.

Anna Bower: There's also the issue that we mentioned too, of the potential related to whether there was evidence that was presented to the grand jury that might have been attorney-client privilege. Remember they brought up the question of the potential, the investigator who testified maybe had been the person who was exposed to potentially attorney-client privilege information.

I, I missed the question that you read, Ben, because I was typing my own question in the chat. But the other thing I'll say too is that I think that this grand jury minutes question is potentially related to the selective or vindictive prosecution question as well, in that, if there was misconduct before the grand jury, it might implicate prejudice, right. Or, or vindictiveness. So, point is that there's like, is that the question is like, what was the relevance of getting the grand jury minutes? Or am I misunderstanding?

Benjamin Wittes: Well, it is part of the relevance that you're trying to verify, you're trying to pin down exactly what was charged. What are the, what are the facts? And I think the answer to that is part of it, but it is by no means exclusive.

Anna Bower: Yeah.

Benjamin Wittes: Alright. Lawrence asks, does the situation of the attorney general having claimed to have reviewed material she seems not to have had available to her, raise the question of a motion to show cause, that is, a contempt motion.

Would such motion be strategically advantageous for Comey? Roger, what do you think?

Roger Parloff: Not really. I don't think so. I think they've got plenty on their plate right now. And it just seems like recklessness or, you know, that she didn't, neg––you know, she, it sounds like she didn't look at the minutes very carefully if she didn't notice that stuff was missing the way that Judge Currie did.

Benjamin Wittes: Yeah. I will just say on this, that this is not, you know, a defense lawyer, their job is to get their client acquitted. Not to you know, pick a fight between the attorney general and the judge. But if I were Judge Nachmanoff and I thought that the Attorney General were making factual misrepresentations in my court, that might be an issue that I cared about.

Right? But I don't think, I think it's a capillary from Pat Fitzgerald's point of view. Javier asks of our Sandwich Guy correspondent, is the Sandwich Guy verdict likely to be precedential at all with respect to any other protesters? For example, if someone starts throwing rotten fruit?

So I will just say a jury verdict is never precedential in the sense that it binds anything. But it can be guiding to prosecutors in terms of what sort of stuff they might want to put in front of other juries.

What do you think, Molly?

Molly Roberts: That, and also I think that the jury instructions that the judge settled on, because as Roger was mentioning, this statute isn't usually used to charge misdemeanor assault.

So a lot of what he was trying to do was kind of figure out how it should be used and what definitions would be appropriate. So I can imagine other judges looking to those jury instructions when they're trying to make similar determinations.

Benjamin Wittes: Jeff asks, Judge Ellis said that Bovino––moo––lied about being hit with a rock after video evidence showed it wasn't true.

Ellis also noted that Bovino denied using force on a man. He was filmed obviously tackling to the ground. Is this perjury? What can she do about it, given the likelihood that DOJ doesn't care?

Eric Columbus: The first one, the first lie was made to the press, so not perjury, the second lie was made in court, or rather I think believing it in a deposition.

And if he was sworn in as he probably was, then it would be perjury. However, people lie on the stand and lie in trials all the time. And it is typically not much that is done about it. Except here, she obviously caught him and found him not to be credible. And to the extent that these distinctions become relevant down the road––and at this point, I mean, the litigation is ongoing––it will, may certainly affect how she and possibly reviewing judges gauge his credibility on other matters.

Benjamin Wittes: All right. And Andrew asks, what could the Southern District of Florida grand jury subpoenas possibly be about? Reporting is that they relate to interference in the 2016 election by Obama administration officials, but what crimes have statutes of limitations that have not lapsed?

So the only person on this call other than myself who I know has dabbled in these very dark waters is Anna. So Anna, I'm going to throw this question to you.

Anna Bower: So the––look, people who have been clamoring for an investigation for years about related, that kind of is related to 2016 stuff, but also they're trying to tie it in with the Mar-a-Lago search warrant, it's, it gets a little bit galaxy0brained. So bear with me.

But to answer your question, what they've been saying for a long time on the right is that this investigation that they want to bring, which is what they're calling the grand conspiracy charge, everyone on the right who are, who's thinking about this online that I, you know, I followed this kind of these conversations closely.

They're saying that this grand jury that is set to be impaneled in January in Florida is going to be the grand jury that they suspect will investigate this so-called Grand Conspiracy. And it relates to a conspiracy against rights charge that they want to bring. You know, I have not looked very closely at exactly how they would do that in terms of bringing a conspiracy against rights charge.

But regardless, the kind of gist of it is that they're trying to argue that there was this big conspiracy to do the Crossfire Hurricane or the Russia investigation that was orchestrated by the intelligence community.

And that years later there was an effort to cover it up with the Mar-a-Lago raid or search warrant. And so that's kind of, I think the gist of what the theory is––

Benjamin Wittes: And the theory of the statute of limitations is that the, the conspiracy continues to this day, and therefore the statute of limitations has never run.

Anna Bower: Yeah. And so the conspi–– and the rights that they're alleging were being infringed are against, I believe the idea is that it was Trump's like First Amendment rights to campaign and that kind of thing.

Benjamin Wittes: And there's also i suppose a possibility of a Klein Conspiracy under 371 that, you know, fraud against the United States.

But look, Andrew's question here is a very pertinent one, and the––look for there to be litigation to quash subpoenas if they are issued on the theory that there is no applicable statute that could authorize them. And I think this is an extravagant theory, and when you have extravagant theories they tend to produce pre-indictment litigation over the investigative techniques.

Alright. We have one more question before we go to Anna to ask the last question of the day. This is a follow-up for Eric from David. Does the fact that Bovino––moo––is a sworn federal agent change his potential liability for perjury?

Eric Columbus: Not as a legal matter. The perjury laws apply equally to everyone.

Whether you think that someone in that position should be held to a higher standard or not, is an interesting question. I don't think that law enforcement officers are more likely to be prosecuted for perjury. One may argue it's the opposite. Realistically, very few people are prosecuted for perjury at, at all.

Benjamin Wittes: Except James Comey.

Anna, you get the last question today.

Anna Bower: Yeah. Okay. So, typically grand jury materials are not publicly disclosed because matter of a criminal rule 6e() that prohibits the disclosure of matters that occur before a grand jury.

I am curious, you know, these judges that are ruling on these really important questions in the Comey case and in the James Case, are going to have grand jury minutes.

There might be things that happened before the grand jury that are relevant to the decision that the judge makes and that a judge might want to put in an order or a ruling on the matter. You know, there are exceptions related to disclosure that occurs in connection to a judicial proceeding, that kind of thing.

So is this––what are the circumstances in which we might learn publicly what occurred before the grand jury as a result of these rulings?

Benjamin Wittes: Right. You're going to learn next week is what's going to happen, and here is why. Because first of all, rule 6(e) does not bind the defense. And the defense is either, has either received this material or will, when Judge Nachmanoff presumably affirms the magistrate judge.

And at that point the, what restricts the infor-, the grand jury material is no longer 6(e). What restricts the grand jury material is the protective order that binds the defense from disclosing discovery materials.

Now, I don't know what that protective order says. As a general matter, I haven't read the protective order in this case, but normally the rule in a protective order is you can't disclose it willy-nilly.

You can only disclose it in the context of legal briefs to the court. Well, the reason the defense wants the grand jury material is so that it can make motions saying, Lindsey Halligan did X, Y, Z that are wrong, that are inappropriate. So I don't think––and I, correct me if I'm wrong about this, Roger––I don't think there's anything that prevents them from doing that.

And that means that as soon as they find things in the grand jury documents that are that they believe are supportive of their claims, that there have been improprieties, they will be put into documents and there will be exhibits that will be the relevant grand jury information. Am I wrong about that, Roger?

Roger Parloff: I think there might be an extra step. I think they might have to first submit the brief in redacted form with respect to the protective order stuff and then get the judge's permission to release it. And I even think that––I haven't looked at Fitzpatrick's order––

Benjamin Wittes: Fitzgerald.

Roger Parloff: Fitzpatrick, William Fitzpatrick, the Mag––

Benjamin Wittes: Oh sorry. We have a Fitzpatrick and a Fitzgerald.

Roger Parloff: I would need to look at it again, but I think he might have even said that he was, they were being provided under seal. Which is a little, not even an extra level of protection beyond the protective order. So I'm pretty sure it would require an extra approval by Nachmanoff to––

Anna Bower: But yeah, because there's a procedure by which the government can designate something as sensitive or protected under the protection order. And so there might be some weirdness with that, but.

Benjamin Wittes: Right. But it, but the point is the purpose of the protective order is to allow the material to be used for litigation purposes only, not for, you know, having fun with the press.

Right. And so, but their main purpose for this stuff is going to be litigation purposes. And I think they're going to have, just knowing what I know about what Lindsey Halligan did, they're going to have a lot to talk about. And there's no way that Judge Nachmanoff is going to keep that stuff out of court.

That's just one citizen's opinion, but it is mine.

Anna Bower: Yeah. And there's going, even if it is, if, even if the filings are redacted, I think we're almost certainly going to see some type of media coalition or something like that, that intervenes to try to get those things unsealed or unredacted at some point. You know, it eventually, I think things will come to light if there are things that are included in the litigation about this.

It's just a question of when.

Benjamin Wittes: Yeah, I think it's going to be faster than that. Because I think, you know, we have two months to trial and. The and all the pretrial motions, including everything that Fitz––Patrick Fitzgerald, not William Fitzpatrick. Everything that they want to do, they have to do in the next two months.

And there's going to be a lot of text of those grand jury minutes that are going to bear on motions they're going to want to file or memos, they're going to want to file in support of existing motions. And I just don't see how that stuff doesn't end up in open court.

Folks, we're going to leave it there because I am either right or I'm wrong.

But I've made my point and you know, we're going to find out whether I'm right or wrong and I don't need to make it at any further length. We're going to be back next week and, there will be new stuff happens between now and then, and we'll see you then.

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