Lawfare Daily: The Trials of the Trump Administration, Oct. 17

[Intro]

Benjamin Wittes: It’s the Lawfare Podcast. I'm Benjamin Wittes, editor-in-chief of Lawfare, with Lawfare Public Service Fellows Loren Voss and Michael Feinberg and Senior Editors Roger Parloff and Eric Columbus. In the October 17th episode of The Trials and Tribulations of the Trump Administration, we discussed the first indictment by the Trump administration accusing defendants of being part of Antifa, the indictment of John Bolton, the courts’ enjoining the deployment of National Guard in Illinois, and so much more.

[Main episode]

It is Friday, October the 17th, 2025. It is 4:00 PM Eastern Time and you are watching Lawfare Live. I'm Benjamin Wittes, editor-in-chief of Lawfare, and I am here with Michael Feinberg, Lawfare public service fellow, Loren Voss, Lawfare public service fellow, and Lawfare Senior Editors Roger Parloff and Eric Columbus. Hey guys.

So, it's been a busy week, although less busy than some other weeks we've had, and I have high hopes that we are actually going to be able to finish on time today. But let us start with the first major Antifa indictment. So far, Antifa has been just something the president talked about, subject of an executive order and all that jazz, but it hasn't been the subject of litigation. Until, that is, today.

Mike Feinberg, walk us through it. What is the indictment that was handed up today in the Northern District of Texas?

Michael Feinberg: So this is a bit of a weird indictment. Before I get to the indictment itself, I'm going to go back in time, a couple months and talk about the initial complaint, which is largely for the same conduct against the same individuals, yet contain zero mention of Antifa.

It just describes the conduct of what I will call an attack on an ICE facility in Texas, for which the perpetrators were swiftly apprehended.

Benjamin Wittes: Just to be clear, let's talk, let's describe the attack. What happened at the ICE facility? And what was the magnitude of the issue?

Michael Feinberg: Yeah, so, attack is––it's not hyperbole to use a verb that loaded.

There were gunshots fired at ICE officials. This was an actual armed assault on the facility. Now when I say assault, I'm not talking about, like, individuals and helicopters fast-roping down. It's more––not amateur hour, but it's people who, probably save for one, do not have any formal tactical training.

The one who I'm excluding from that appears to be a former marine reservist. And according to the allegations submitted by the Department of Justice, this individual provided makeshift tactical training to the rest of the group. It's not clear what that entailed. They are alleged to have had a fairly large stockpile of weapons.

So some of them may have been familiar with firearms even beforehand, but there was a brief assault on the facility and the individuals who conducted it were pretty quickly apprehended.

Benjamin Wittes: And how many individuals were there?

Michael Feinberg: I want to say 11, although the indictment only applies to two of them.

Benjamin Wittes: All right. So it's a, leaving aside whether we call it Antifa and what statutes we indict it under, and whether we call it material support for terrorism or something else, it's a non-trivial event of a type that we––you wouldn't have any––like, Americans of quite diverse politics would have no trouble A) recognizing it as a significant terrorist event or assault and B) the sort of thing that is reasonably prosecuted. Is that fair?

Michael Feinberg: Yeah, I mean, look, wherever you stand on what ICE is currently doing or what this administration's policy towards undocumented immigrants is, I would hope we would all agree that attempting to murder federal agents is still beyond the pale and something that should be prosecuted.

So this is not ginned up.

Benjamin Wittes: Yeah. So, 11 people arrested, it's not made up.

Michael Feinberg: Correct.

Benjamin Wittes: And then two of them are indicted today. What is the difference between the indictment and the criminal complaint?

Michael Feinberg: The main difference is the insertion of allegations against and descriptions of what the administration is claiming is an Antifa cell, which I'll get to in a second, because I think that wording is problematic. And a real renewed emphasis on material support for terrorism charges under 18 USC § 2339A, which is actually the less frequently used material support charge. We can sort of take those in succession.

Benjamin Wittes: Yeah. So, so let's actually, let's take them in reverse succession.

Because normally when we think of material support, we are thinking of material support for a designated foreign terrorist organization, which is a––it doesn't have to be linked to a specific act of terrorism. It's, you know, we designate Hamas as a terrorist organization. You provided material support to Hamas. You are guilty under that statute.

This is a different statute. It's not, it doesn't involve foreign terrorist groups. It doesn't involve designation. It's actually a statute that, as I haven't looked at it in years, but it requires that you provide material support to the terrorist act, to the actual act of kind of terrorism, right?

Michael Feinberg: Kind of, kind of. Kinda sorta, to use a technical term. So what § 2339A does is it basically imputes material support to terrorism if you provide assistance for certain predicate offenses that are frequently used by, used, or violated by terrorist organizations. In this case, it was an attack on a federal facility and the attempted murder of federal employees.

It also applies to things like attacks on airports or attacks on certain types of critical infrastructure. It's a material support charge that is not based on the identity of the offenders, but rather on the nature of the offense usually being tied to political violence.

So, you know, you don't actually need, under 2339A, a formerly designated terrorist group. Now, in the overwhelming majority of cases that get prosecuted under this provision, you are dealing with a designated foreign terrorist organization. I was only able to find one example of a case where it was used in the domestic setting, and that was in a series of death threats against the creators of South Park.

But even there, it's not clear. It may have been for some of the mockery they made of Islam in a series of cartoons they did. So, there may have been some ties to designated terrorist organizations, but––

Benjamin Wittes: By its terms, by its terms––

Michael Feinberg: By textualist interpretation, you don't need it. Right.

Benjamin Wittes: Yeah. Right. Yeah. And in fact, it predates, I believe somebody should correct me on this if I'm wrong, but as I remember the 1996––

Michael Feinberg: Yes. It was part of the omnibus bill. Yes.

Benjamin Wittes: It was because this statute was not broad enough to encompass, you know, donations to support the organization that weren't tied in any way to specific terrorist acts.

So like if you give to, you know, Hamas or Hezbollah, but you don't give to support specific terrorist acts, this is not going to cover you. And so the law that we now call the material support law was kind of an effort to expand this because it was actually tied to specific predicate offenses and acts.

Michael Feinberg: Yeah. And actually, you know, it was created in the ’96 bill, I forget the exact title. It was an Omnibus Anti-Crime and Effective Death Penalty Act. I think. Something along those lines. You just highlighted something really important, which is that it doesn't have to be tied to the specific terrorist acts.

And in fact, the most prominent use of this statute in the early years after 9/11 was actually going after a number of US-based charities that the government alleged were supporting terrorist organizations overseas. So there was a very famous series of cases against a group called the Holy Land Foundation.

Some of the prosecutions were successful, some fizzled out. They were very controversial. There was a major Supreme Court case during the Obama administration about whether this statute implicated First Amendment concerns in a way that should have rendered it unconstitutional. A divided court did find for, in favor of the statute's constitutionality.

But this is the first time I'm aware of it being used, like I said, in a wholly domestic context where the actors are Americans, the victims are Americans. There is no foreign ideology or overseas organization implicated. There is no international kerfuffle that either caused or has been the result of the action.

We're sort of turning a page here, but we should be very clear. It is not a page that is unreasonable. Like, what happened is very much within the framework of the statute's intended purpose.

Benjamin Wittes: Alright, so here's a thing that is highly unusual about the indictment, which is that it starts by––I looked at it very briefly this morning, and it starts by saying, these guys are members of an Antifa cell. And it describes Antifa as an enterprise.

And for those of us who have some measure of doubt as to whether there is in fact a thing called Antifa, whether you call it a group or an enterprise or a whatever, there's something that rings––I don't doubt that these people fired guns at an ICE facility and should be prosecuted for that, but I am a little bit wary of accusing them of membership in an enterprise whose existence, I don't know that I believe actually is a real thing––

Michael Feinberg: Yeah, and––

Benjamin Wittes: ––so,what do you make of the fact that there is a deliberate effort in this indictment to treat Antifa as though it were a coherent, I noticed they didn't use the word group or organization, but a coherent enterprise that can be analogized to, you know, the Irish Republican Army, or Hamas, or, you know, or the Tamil Tigers.

What do we make of that? Is that indicting them for a fiction? Or is that a framing device? How do we understand that?

Michael Feinberg: Yes. So, it has always been the position of the FBI during my entire tenure, and for a large part of which I was actually working domestic terrorism matters, that Antifa is not an enterprise.

It's not a formalized group. There's no hierarchy, there's no charter, there's no network, there's no org chart. It is rather a shared philosophy. And, you know, to sort of make an analogy to another area of terrorism, I've always viewed talking about Antifa as a terrorist organization, it's sort of analogous if you looked at like what Baader-Meinhof or the Red Brigade were doing in the seventies and talked about the Frankfurt School as a terrorist organization.

Like, there's an underlying philosophy that certainly inspires the actors, but that doesn't mean it's an actual thing.

Benjamin Wittes: Let me offer an example that may resonate a little bit more with our readers. If you looked at various white supremacist groups that engaged in terrorist activity, the Ku Klux Klan, the you know, the Aryan Nation, right?

These are groups that engaged in it and then you concluded from that white supremacy was a terrorist organization. It's a bit of a category error.

Michael Feinberg: Yeah, you're looking at the underlying philosophy instead of the actual organization. But look, this is very much of a piece of what is not the administration's legal strategy yet, but their political strategy, which is to try and create this overarching networked enterprise that is carrying out anti-ICE, anti-government operations, whether they be armed attacks like this one, or protests or even certain local and federal legislative efforts.

And that's where it gets interesting to me because I think by injecting this into the indictment, they've taken what was pretty much an open-and-shut case on the merits and injected an element of politicization, which I think is going to make it––not easy, but easier for the defense to argue that their prosecution is somewhat ideologically driven.

Benjamin Wittes: Or even that their prosecution is based on factual falsity.

Michael Feinberg: Yeah. Right––

Benjamin Wittes: I mean, so if you fired a weapon at an ICE facility, allegedly as an agent of an enterprise called Antifa, representing a cell, and it is true that you fired the weapon, and it is not true that you were an agent of a cell of an organization called Antifa, query whether you are guilty of the indictment or not.

Michael Feinberg: Well, I mean that, yeah. I mean, I don't want to make too much of that because it's very easy to supersede an indictment and fix things.

Benjamin Wittes: Yeah, but we––

Michael Feinberg: It’s not a good look––

Benjamin Wittes: ––no, but I would say we, we have to evaluate the indictment that has been filed, not the indictment that might someday supersede.

Eric Columbus: Well, would you even need, would you even need to fix it though? Because as Mike has pointed out, under 2339A, you don't need to tie it to support for an actual terrorist group.

Benjamin Wittes: Correct. Yeah. And that's, look, I mean, they, you know, but I'm not sure I've ever seen an indictment before that in which the facts so clearly allege a violation of the statute, and yet then you lard it with facts that may not be true.

And so you have you have––yeah, it states a, it states an offense under the statute, but it states a lot more than that. And what in addition it states is, you know, borders on fiction.

Michael Feinberg: Yeah. And look, there are ways they could have written this that would've gotten the same point across without causing all of these problems.

Perhaps the organizers in their communications, which the government claims to have, refer to themselves as an Antifa cell, you simply say a self-identified Antifa cell. Right? You don't make it out to be one cog in a larger machine when there is zero proof and quite a lot of evidence to the contrary that the machine exists at all.

Benjamin Wittes: A few other technical questions before we move on to the next subject.

Michael Feinberg: Yes. But I do have to correct one of my earlier points 'cause Eric did raise something well. When I was talking about the Holy Land cases, I was talking about the material support statute as a whole, not the provision we're focusing on now.

Benjamin Wittes: Right. So the provision we're focused on now predates 1996––

Michael Feinberg: Correct. Yes.

Benjamin Wittes: ––1996 was an expansion of that. And the Holy Land case is under the latter statute.

So, Mike, what happened to the other nine people covered by the criminal complaint?

Michael Feinberg: Not entirely clear, that I was able to find in admittedly hasty research.

It appears that they were all apprehended. There is at least one news story floating out of a local Texas publication, I believe, where one of the defendants alleges she had nothing to do with this whatsoever and was picked up some miles from the site and doesn't really understand how she got wrapped up in this.

And there's some conspiracy theorizing. Well, what sounds like me as somebody who worked in law enforcement, a little bit like conspiracy theorizing. The problem is, with potentially fictionalized element thrown into the indictment, you have to take that theorizing with a little more seriousness than you otherwise would.

Benjamin Wittes: I mean, I have to say, I am not sure I have ever read an indictment with a more serious set of alleged facts pumped up more irresponsibly than this one.

Michael Feinberg: Yeah. Which is good because this is also––this appears to be by career AUSAs. You know, the indictments we're talking about today, both this one and Bolton, I think are of a very different type and order than the ones we've spoken about before, like Comey and James.

These are career employees filing them. They do not appear to have had direct presidential interference, at least that has been reported.

Benjamin Wittes: Bolton did.

Michael Feinberg: Yes. But we'll get to that in a second, because there's actually––I reread the Bolton indictment and there's actually some more things that give me a little bit of comfort that it was a little more above-board than I thought it would be.

Benjamin Wittes: Let's get to the Bolton indictment now. Yeah. The Bolton indictment, which is not for Antifa-related activity but is for recording and transmitting classified information to your loved ones for diary-keeping purposes and maybe book-preparation purposes.

Roger came down yesterday, frankly, it was a little bit more substantial than I expected it to be. And it had a kind of David Petraeus-y feel to it. What did you make of the Bolton indictment?

Roger Parloff: Yes, that's right. So yeah, I came down yesterday. He was arraigned this morning in Greenbelt. Theodore Chuang has been appointed.

It's 18 counts under the Espionage Act, eight for transmitting and 10 for withholding national defense information. That's under 793––18 USC 793D and E of the U.S. code.

It's 26 pages. It's professional, it's signed by six people, including five career people and U.S. Attorney Kelly Hayes, who's also experienced real person.

Thomas Sullivan, a national security––the chief there in that department he's been in the district of Maryland for 12 years, I think was with the E-D-N-Y for four years. I've been personally told that he's a legit guy.

And it tells a very disturbing story. And it begins the day before he becomes National Security Advisor, April 8th, 2018.

And he and these two relatives, which have been reported to be his wife and his daughter, set up a messaging chat group, an encrypted chat group on, you know, commercial-type app. And then for his entire period at the NSA as a National Security Advisor, which extends to September 10th and then maybe five days afterwards, they are, he is sending to them rather, you know, notes for a diary.

Obvious, obviously planning a book. It appears that he's planning a book from day one. And so voluminous notes, 20 pages, 50 pages of notes containing allegedly classified information or national defense information. And he's also using two private email accounts, allegedly an AOL account and a Google account.

And that continues. He––we know that he leaves in September, September 10th, 2019. He has a book deal by November. Two months later, he submits a draft in December. And that's when and this part we knew about, that's when Ellen Knight, who's doing the pre-pub says well, she gets it, and then in January she says, I think there's some classified information in here.

And she's also worried about the incredible detail, which suggests that he has kept notes, which you're obviously not supposed to do, and which he has signed that he won't do. Signed that he won't do, you know, when he joined the NSA, signed that he wasn't doing when he left the NSA.

And then the most interesting––and then, you know, there is the bit about the, he writes a very, the book is very, very, obviously very negative toward Trump. Trump is incensed. He tries to enjoin the book. Judge Lamberth criticizes what he sees as, when he looks at, disputed information.

I'll go. He says there's, that Bolton has likely jeopardized national security, but by then the cat is already out of the bag, so he doesn't issue an injunction. The case is settled a year later, June of 2021 now. And at that, and one month later, Bolton notifies the FBI––and this is pro-, this is the most interesting and most important stuff, that he notifies the FBI himself that he's been hacked probably by Iran.

But allegedly he does not tell them that account contained any classified information, and he doesn't tell them that he's been sending stuff to his wife and daughter all, the entire time. And then he gets, a few days later, July 25th, he gets a sort of an extortion-type email from apparently a hacker. And he says, I do not think you would be interested in the FBI being aware of the leaked content of John's email. This might be addressed to his lawyer. I'm not sure. Some of which have been attached, especially after the recent acquittal.

I'm not sure what that's a reference to. ‘This could be the biggest scandal since Hillary's emails were leaked, but this time on the GOP side. Contact me be before it's too late.’

So a representative of Bolton's notifies the FBI. That's the good news for Bolton. But he does not give the FBI the attached documents that allegedly that the extortion person had attached to that letter.

And in fact, the next day, Bolton's representative tells the FBI that he will be deleting the contents of the personal email account that had been hacked. Then there's another extortion email in early August. “Okay, John, as you want, apparently we'll disseminate the ex, the expurgated sections of your book by reference to your leaked email.”

They don't say if they then gave them to the FBI or what. So, and then the indictment says at no point did Bolton tell the FBI that while he was the National Security advisor, he had used the hacked email account to send Individuals One and Two documents related to the national defense, nor did he tell the FBI that the hackers now had this information.

So then we jumped to August 22nd, 2025, and we don't know. So that's an important thing. We don't know what occurred in the middle. But that's the search.

And then the search allegedly uncovers––t's for electronic devices and there they can clearly at least, they see, either see for the first time or they can prove for the first time that he has been doing––I shouldn't say that, that they are able to prove that he's been, say that he has been send––transmitting these things to Individual One and Two.

And they also find some hard documents, hard copy documents that they say include national defense information. So, those are sort of, those are the facts. I think they paint a very troubling picture. They do sound a lot like Petraeus, who to me––

Benjamin Wittes: At least Petraeus warned his girlfriend.

He told her, be careful. There's code word classified stuff in there. Michael, Mike, you say you want to push back on the Petraeus analogy. Is this more or less bad than––assuming the facts as stated in the indictment, whichl as I will argue in a moment, I do not want to do yet––is this better or worse than the Petraeus case?

Michael Feinberg: In what sense? It is different. I don't know whether I would be able to rank them in terms of if the allegations are true, which let's just arguendo say they are, this is probably worse because if I recall correctly, Petraeus gave hard copies of number of binders to his paramour who was writing a book about him.

Benjamin Wittes: And there's no evidence that a foreign power attempted to or successfully obtain––

Michael Feinberg: Yeah. And when you deal with hard copies, it's a lot harder, if not impossible to get hacked. There's a, yeah, Bolton used a wildly––if what he, if he did what the government said he did, he used a wildly irresponsible medium to do so.

But there's a couple, there are a couple of distinctions from the Petraeus case, which I speak, which I think speak not necessarily to the quality of forcefulness of the indictment, but do say something about the overall way that this case may have been politicized. And there's two things that come to mind.

The first is Petraeus was never charged with transmission. He pled to a criminal information solely for retention. I'm not aware of an Espionage Act case where you charge transmission and there is not a foreign power or a foreign powers proxy involved at the other end. So this is just––and it's not clear like it seems based on the indictment, the transition, the transmission is to Individuals One and Two, not to the Iranians.

Benjamin Wittes: Although it may have made its way to the Iranians as a result of the hack.

Michael Feinberg: Yes, exactly. There, the other way I would distinguish it from the Petraeus case is the way it was investigated. I know for a fact when Petraeus's house was searched, it was done very lowkey by two agents who were not dressed as law enforcement.

There was a concerted effort made––

Benjamin Wittes: Was, did the FBI director at the time tweet about it that there were FBI agents?

Michael Feinberg: You know, I don't, I don't think there were live, real-time deatils.

Benjamin Wittes: Did the New York Post run a story concurrent with the execution of the search warrant?

Michael Feinberg: No. No. In fact, it––

Benjamin Wittes: Was I present?

Michael Feinberg: You were not present. The President did not tweet about it. The FBI director did not give real-time updates. It was just handled in what I have no problem saying is a more professional way. Now we can point out the fact that it's not fair that very senior government officials get treated in a way where their searches are generally a bit lower-impact on their life than your average government employee.

But you can't deny that Bolton was treated materially different than not only Petraeus, but Cartwright, or Sandy Berger, or Hillary Clinton, or countless other executive branch officers with whom the government has first attempted to negotiate and then tried to subpoena.

Like there is an escalation usually which occurs over time. That occurred instantly here. And another good point of comparison I would point out is President Trump himself. You know, the only reason the search at Mar-a-Lago became public was because the president disclosed it.

There was no FBI press release. There were no cameras by the government filming what was going on. Agents were in suits, not rain jackets.

Benjamin Wittes: I wasn't there.

Michael Feinberg: You weren't there. So, so those are two real differences between the Petraeus case. But you know, before we move on, there's one really interesting thing in the indictment that does speak to the politicization, which I think we do have to at least raise for people because it's not necessarily self-evident just from a reading.

The government, in this case, chose to admit that it was aware of what Iran had collected on John Bolton, which means that at some point the government has declassified and gotten use authority for what we can be. 99.9% sure is Signals Intelligence.

Benjamin Wittes: That's really unusual for those––

In the entire post-war period from the end of World War II up until today.

I'm only aware of one other case where that happened, and it was one of the prosecutions that Robert Mueller's special counsel office did. I've never heard of it happening in a run-of-the-mill case. I have never heard of the agency that collects Signals Intelligence even entertaining the possibility of doing that.

This doesn't happen without presidential say-so.

Roger Parloff: What's the specific reference in, what are the references in the indictment that are unusual like that?

Michael Feinberg: Well, in order to––they say that Bolton was hacked by Iran. And it has been reported in the media, you know, in the past few hours that the reason this was not prosecuted under Biden was because there was a belief that the collection capabilities they would have to give up to prove this all in court were way more important than one individual prosecution.

That calculus has obviously now changed. And it is difficult not to view that change except through a political lens.

Benjamin Wittes: Which brings me to the reasons that I want to be cautious about this indictment. I was surprised by the seriousness of the allegations here. And I was impressed by the list of career officials who were on the indictment. All the things that both Roger and Mike have flagged.

And yet I also am very aware that this comes in a––we know that the president personally hates John Bolton. We know that, as a result of this last point that Mike makes, that he hates him enough to give up U.S. signals intelligence capability vis-a-vis Iran, which is not something we do, in order to go get him.

We know that JD Vance said, publicly revealed details of this investigation in real time at the time of the raid so that we would––revealing that the White House was quite read-in on details of this investigation. We know that the president has called for John Bolton to be jailed. We know that the president wanted revenge for Bolton after the impeachment, first impeachment, in which Bolton in fact, did not play the role that he should have, but the president blamed him anyway.

And we know that the same Justice Department, although not the same people who are bringing this case, and the same FBI leadership that brought, that did this raid, which took the time to humiliate Bolton by behaving very differently from the way it normally behaves, which announced that it was doing it, that same Justice Department is the department that brought the case against Jim Comey and against Letitia James, and is plotting other such frivolous cases.

And we know two other things. One is that they were in a huge rush to bring this case. Number one, that they were in a rush to bring it such that they were bothering to tell CNN ‘we're under a lot of pressure to bring this by the end of the week,’ which, by the way means going to a grand jury before the end of the week, which comes dangerously close to talking about events that will or are imminently to take place in front of a grand jury.

In my opinion, you should not be doing that. And number two I will just ask Mike a few questions. Is it normal for the FBI to bring a case so quickly after a search warrant in matters involving classified information?

Michael Feinberg: If there are exigent circumstances where there is a possibility that something is going to go overseas to a foreign adversary, the FBI will move heaven and earth to get the indictment and arrest done as soon as humanly possible.

If the situation is one where the information has already been disclosed and there is no ongoing risk, this would normally take months for the sole reason that after you obtain, during a search, what you believe to be classified material, it has to go through something called an original classification authority review.

And what that is, is you have to figure out where the information came from. What agency owned it? Was it something they came up with themselves or did they get it from another source? You need to then send the information to that agency, and then that agency needs to evaluate it and determine whether it is in fact classified.

You do that even when you have a document that has banner mark, portion markings and banner markings throughout it, detailing whether it's classified. So here it sounds like we're dealing with a diary, which means it should have taken considerably longer to figure out what was classified. So again, I don't think this is something that would happen without very heavy top pressure from the senior most levels of the executive branch on every agency in the IC to get this done immediately.

Benjamin Wittes: So this is what I have to say on this. The presumption of innocence is always important. The burden of the government to prove its case element by element, beyond a reasonable doubt, to a jury beyond a reasonable doubt. Full stop.

The presumption of innocence is never more important than in a case in which the President personally hates the defendant, in which he has been read in, his White House is actively talking about the investigation in question in which the administration the case is irregular and departs from the way the Justice Department and the intelligence community normally behaves, in which the same Justice Department is known to be going after the President's political enemies.

And I am no fan of John Bolton. Met him once. I don't like the guy's mustache. I don't like his politics. I have no grief for John Bolton. I want to see every fact in this indictment proven beyond a reasonable doubt before I'm going to say okay, he's guilty. Reg, this is not the regular order, and there are a lot of factors playing into here that aren't, that should not be playing into a criminal justice process.

And that doesn't mean that John Bolton is innocent, and it doesn't mean that there isn't a legitimate case for this case. But I want to see every detail proven and every motion litigated before I am willing to attach a presumption of regularity to what happened here.

Mike, that is my only comment.

Roger, Mike, do you have thoughts on that?

Roger Parloff: Eric did. Were you gonna say something?

Eric Columbus: Well, I was gonna, well, go ahead, answer Ben's question, I can say it afterwards.

Michael Feinberg: Look, I’ve been through a lot of law enforcement and intelligence training in my career. Beginning when I was an attorney in the private sector up through my role as an executive of the FBI and one case that people often talk about––and this isn't going to seem linked at first, so just gimme a second––is the OJ Simpson trial.

And the sort of cliche that gets talked about a lot in law enforcement circles is that they tried to frame a guilty man. And when they did that, they introduced a whole lot of churn into what would've been an otherwise simple trial.

And every time the president tweets about one of these cases, every time the director of the FBI provides live updates on an operation, you're introducing churn that makes it less clear-cut for the prosecution. And there's a real irony that by talking about what they want to do so much, they're making its realization much more difficult in the long run.

Roger Parloff: Roger, the, there's a big gap here between the July 2021 hack and you know, the search. And when the FBI sees the extortion note that says, do you want me to release the attached documents?

And they, and Bolton's representative is good enough to provide this, but not the attached documents, I mean, there has to be follow-up. And so I don't know what happened at that point, if there was, you know, follow-up and eventually he came clean and said, okay, I, I've been sending these things back and forth.

I, you know, I don't know, they wouldn't drop it getting that sort of clue. What do you think happened during the gap? I mean, yeah

Michael Feinberg: I think what happened is you had a change in presidential administrations and the new one has an ax to grind.

Roger Parloff: But there would've been follow-up, right? I mean, there, they must––

Michael Feinberg: Not necess, not necessarily. I mean, look, in the intelligence community of which the FBI's National Security Division is a part, you always hear the phrase used “sources and methods.” And in every counterintelligence or counter espionage, prosecution, there is a cost benefit analysis of, is putting handcuffs on this subject worth what we're going to have to give up in court?

And it has always almost been the case that we never give up Signals Intelligence. I mean, to use an extreme example, the Alger Hiss controversy occurred in the 1950s. We did not make––

Benjamin Wittes: Forties, late forties.

Michael Feinberg: ––the pumpkin patch was late for, okay. Whatever. It was a long time ago. And we didn't make the VENONA documents, which is how the government discovered what he was doing, public until the late nineties, right?

So this is very out of the ordinary to have happened. And as somebody who spent his entire adult life in the intelligence community, I am utterly failing to think of any explanation, other than the change of administrations and the president's revenge campaign, that can explain this timeline.

Benjamin Wittes: We need to move on to domestic deployments.

But Eric, you had something you wanted.

Eric Columbus: I was gonna ask, Mike, if you the original classification authority review, which you said was, seemed to be unduly rushed. Is it possible that took place during the Biden administration?

Benjamin Wittes: No, because the search––

Eric Columbus: Well, didn't they have the search of his, the physical documents was in August. Right. But didn't they already have the documents that he had transmitted electronically?

Michael Feinberg: Well, not necessarily. We, we don't know. The indictment doesn't say. But it's important to remember like, just because you conduct a cyber intrusion into somebody's server does not necessarily mean you get everything in that server.

Like there are targeted operations to get specific documents. There are things that are more akin to a smash-and-grab where you get in before their safety precautions know you're there and you take what you can blindly. We just don't know. And, you know, that's another thing that should have taken time was comparing what the government sees in the search this summer with what it may have known through its own penetrations of the Iranian systems. That's another reason to move slowly, not to rush it.

Roger Parloff: Alright. They did know earlier the stuff that was in the original book draft so that you know.

Michael Feinberg: Yes, yes.

Benjamin Wittes: Okay, we're going to move on. There will be lots of time to discuss the details of the Bolton prosecution.

But meanwhile, Chicago. Loren, what gives?

Loren Voss: Yeah. So, wasn't expecting a Seventh Circuit decision, but you know, we got an opinion anyway. So just to remind people, we had Judge Perry, Northern District of Illinois last week, you know, gave the written opinion and giving a TRO right. And that TRO was, defendants are temporarily enjoined from ordering the federalization and deployment of the National Guard of the U.S. within Illinois.

What we had the Seventh Circuit do is actually for the motion to stay the TRO pending appeal. They granted it in part, and what they actually did is they stayed the part of the TRO that stopped federalization, but not the part that stopped the deployment of federalized National Guards. So that's like two negatives.

So basically what happened is you can still federalize the National Guard in Illinois, but you cannot deploy them. So, kind of similar to where we are in Portland right now. So, the Seventh Circuit came out with this opinion yesterday. The panel was Rovner, Hamilton, and St. Eve. Great panel that is Bush, Obama and Trump appointees respectively.

So you have, you know, a variety there. But I will say, this opinion, it does not clarify a lot of the questions that we have on standards, right? So it says we have to give a great level of deference to the president's decision of whether or not those three predicate situations in 12406 are met.

And we were focusing on the rebellion or threat of rebellion. And then the third one, which is unable to execute the laws with regular forces. S,o great level of deference, but precisely how deferential the standard is not a question that we want to solve at this stage, right? Like they say, we don't have to worry about it yet.

What is interesting in this opinion is a couple things. One is they use ICE's own claims of success against them. So, they walk through some of the facts and they say, you know, the federal government argues that they need these National Guard troops to enforce federal immigration law. But DHS and ICE have said that Operation Midway Blitz is a success.

That they've done this many arrests. They've actually declared that the protests have not slowed them down at all. And so they say, you know, that this is what the facts are. I will also say that they mirrored the district court judge's language in calling the federal government's information unreliable.

And that the, you know, even when the people said they had firsthand knowledge, they still said unreliable. The district court judge, Perry in that case, had referenced some circumstances where they talked about there being assaults on federal agents and they found that federal grand juries had refused to return indictments in at least three of those cases.

Which, you know, to, she says that equates to a finding of a lack of probable cause that there was any crime. So them saying that there was assaults on federal agents did not happen. Then they kind of go into a conversation, and this is the interesting one, on the statutory interpretation. Right?

And so there's two different pieces here. There's, you know, the second situation, which is about rebellion or threat of rebellion. And then the third one about enforcing the laws. There is different definitions of what rebellion means at this point. But there is a great couple lines from the court that says you know, the critical analysis of a rebellion centers on the nature of resistance to government authority. Political opposition is not rebellion.

A protest does not become a rebellion merely because the protestors advocate for a myriad legal or policy changes, are well-organized, or call for significant changes to the structure of the U.S. government and use civil disobedience as a form of protest or exercise their Second Amendment right to carry firearms as law currently allows, right? And then they say, like they go on to talk about just because there's isolated incidents, that is not a rebellion.

Benjamin Wittes: And so, you know, as someone, as someone who has an ongoing, personally has an ongoing campaign of civil disobedience in taking the form of a campaign of littering near the Russian Embassy I actually really appreciate––and I'm being totally serious––I really appreciate that holding. I am willing to accept whatever consequences there are for the fact that I dropped dead sunflowers in front of the Russian Embassy. I film myself doing it.

It's not a rebellion! You know, it's a defiance of it's a protest that takes the form of defiance of the law.

And you want to give me a ticket? That's fine. It's not a rebellion. It's not a basis to deploy National Guard troops.

Loren Voss: Yeah. And so, yeah, I loved this paragraph. And found it very strong to talk about, okay, there's protected speech, there's rebellion, there's a whole bunch of activities in between. And the government seems to be, the federal government is focused so much on these activities that the Seventh Circuits is saying no, this is protected speech, this is not rebellion. And calling out those activities.

So the definition of rebellion, still unclear, still arguing, you know, very narrow or very broad depending on which side you're on. And then for the third provision or the third situation, the ‘unable to execute the laws with federal forces,’ there is disagreement over what ‘unable’ means. There's disagreement over what federal forces mean.

And so we're trying, you know, to figure that out. So the Ninth Circuit said that unable meant that the gov federal government was significantly impeded, right? It can't be minimal interference, but it doesn't have to be unable to do so. That is not the way that the Seventh Circuit is necessarily going, although they don't fully define it.

Right. But they think it has to be more than just a little bit of impediment. Then there's the district court for Oregon is saying unable means like it's a bifurcation, it's a yes or no. You are either capable or you're not capable. And so they're kind of advocating that. Seventh Circuit didn't really say which way they're going to fall on that, just kind of highlighted those differences.

There's a huge fight too over what regular forces mean. There's actually like three different versions going around. The DOJ is actually arguing different things in different cases. So, in the Illinois case, DOJ said that regular forces was the status quo.

Not all forces. So, you know, at the point that they were having to call up ATF marshals, DEA, FBI, like all of that, that was beyond regular forces. In Oregon's case, the DOJ argued that it was federal officers, but not state/local officers. And then you have the Illinois District Court, which says regular forces actually mean regular armed forces.

You also saw the Ninth Circuit asking that question last week in a hearing of, you know, what does this mean? Could that mean the military? If you look at the provision right before 12406, 12405 seems to refer to it as the military. Seventh Circuit basically says, we do not need to fully resolve these thorny and complex issues of statutory interpretation because we say that the administration can't meet its burden under either standard.

Now I flagged these issues because they're going to keep coming up. Right? And so we haven't talked about the Newsom case in California for a while. But one of the things that happened there so there's going to be a hearing on the 22nd of October for the stay in the Ninth Circuit. But Governor Newsom has actually motioned for the Ninth Circuit to vacate its stay at least in part or issue an injunction.

And he is talking about how the facts on the ground are changing, right? In says, you know, two of, at least two of 300 of the guard members have moved to a different state. And the defendant said they're going to move them all, right? And they're trying to deploy them elsewhere. And they also said it was all about protecting federal property.

If it's really about federal property, then lift the state of the TRO except for when needed to protect federal property. And then they asked, you know––or issue an injunction saying that they've continued to renew the federalization all the way through January. And the reasoning on the ground is no longer valid.

So we expect all of those issues that we just talked about that were completely unclear to keep coming up as the facts slowly move along that spectrum. And you actually have to figure out where that line is.

Benjamin Wittes: So I think while we have been talking, the government has gone to the Supreme Court on, with an emergency motion on this Seventh Circuit case.

Do we know anything about that at all?

Roger Parloff: It, it seeks––I'm sorry, did, Loren, I'm assuming you haven't seen that. Yeah, it seeks a stay and an administrative stay.

Benjamin Wittes: Which they will, I suspect, get, at least on the administrative stay for, while the court thinks about it. Yeah?

Roger Parloff: Yeah. The administrative stay, I think so.

Benjamin Wittes: Alright. Well we will catch up with the Supreme Court on this subject.

Roger Parloff: Oh, what other, one other question I had for Loren. Yeah. Were you surprised there was no, or was there an attempt to seek en banc review of, in the Ninth Circuit when––

Loren Voss: Not for the Ninth Circuit. I think a request has been made for the Seventh.

But I mean, it I haven't seen one for the Ninth.

Roger Parloff: I meant by the, by the petitioners in the Ninth Circuit.

Loren Voss: Yeah, I haven't seen that request in the Ninth Circuit yet.

Roger Parloff: Well, okay.

Benjamin Wittes: Alright.Thank you, Loren. Let's go back to the politicization of the Justice Department to a case that's a little simpler than the Bolton case.

It doesn't involve Signals Intelligence, it doesn't involve, really, facts or anything. The case against Jim Comey, Roger, the big Comey brief on vindictive prosecution is due on Monday, I believe, but in the meantime, a little skirmish has erupted over what's called a filter team. Bring us up to speed.

What is the Justice Department or the EDVA and Pat Fitzgerald fighting about here?

Roger Parloff: Yeah, this is a little curiosity. The government asked for a filter team protocol to be set out. And what that means is they say they have gathered but quarantined, they haven't looked at it, they are in possession of evidence from the search of an attorney's electronic devices from a previous government investigation, unquote.

And so they want to look through that and the gov-, and the attorney has said, has designated that he says some of this is privileged, and he's filled out a privilege log. And so the way you would go through, you would now, you, you would have U.S. attorneys from a different district who aren't involved in the case, who would cull through these documents and decide, in the first instance, are they privileged or not.

And Comey has said that we're not, he want––before we get there, he wants to challenge the validity of the search. But the weird thing, so, we don't know what attorney this is. We don't know what investigation this was. You know, maybe, did they do this with Dan Richman? But if they did, that would be this investigation, wouldn't it?

Or was it an earlier investigation of this very same––I don't know what it is, but it's just a curiosity for a case that I thought was simpler than this. I, you know, and it makes me wonder if they're trying to shore it up sort of desperately and add new counts or something. Because you ordinarily you would do this before indictment, you would get a, you know, you would ask the chief judge who's handling the grand jury to allow you to do this sort of thing. But anyway, it's just a strange curiosity. Yeah.

Benjamin Wittes: It's, you know, one of a hundred little skirmishes that we're going to have in this, but it's yet another one that suggests that the prosecution was not ready for prime time here to not have dealt with this issue already.

Normally it's the kind of thing you do when you collect the information in the first place. Meanwhile the president has announced another list of people he wants prosecuted, and they include Andrew Weissman, Lisa Monaco, and Adam Schiff. What do we make of that?

Roger Parloff: Yeah, I, you know, that's all we have is this clip from, you know, the president saying this, which has been accurately going around social media, but we didn't want to leave it out either. The, these may be, you know, his, who's on deck here. We knew about Adam Schiff. I did not know that Lisa Monaco or Andrew Weissman were on deck.

But of course Andrew Weissman, you know, he punished his whole firm. That was, I forget which firm it was, but it was either, do you remember?

Benjamin Wittes: It was Jenner.

Roger Parloff: Jenner. Yeah. So, why not go after him criminally as well, I guess.

Benjamin Wittes: Right. Well, and of course he's gone after Lisa Monaco's job.

Yeah. Lisa, who is now the, I don't know, vice president for Worldwide Government Affairs at Microsoft. And the president has been yelling and screaming about how Microsoft should fire her.

So, alright, well, speaking of people who have in fact quit in frustration there is the U.S. attorney for the Western District of Virginia.

Because getting rid of the U.S. Attorney for the Eastern District of Virginia isn't, apparently, isn't good enough. So, what do we know about what happened here? And Western District of Virginia is kind of far away. What's going on in like Roanoke that, you know, is bothering President Trump?

Roger Parloff: So, yeah, this was a very good New York Times article, Devlin Barrett and Michael Schmidt. And it, it describes how the U.S. attorney there, Todd Gilbert, who's a Republican appointee––I mean a Trump appointee––and his deputy were both forced out because Kash Patel was, is, was pursuing this investigation there that stems from his burn bag.

Remember his burn bag? And he thinks––

Benjamin Wittes: Right, so just for those who don't remember, Kash Patel and Dan Bongino, I forget which of them announced that they had discovered a secret room where there were a whole bunch of Russia investigation-related documents in burn bags. And apparently this secret room is in the Western District of Virginia.

Roger Parloff: Well, what is probably in the west, there's a classified document storage facility.

Benjamin Wittes: Right, it’s not even the room, the secret room. It's the, when you empty the secret room to go burn the stuff, you move the burn bags to the Secret document facility in the Western District of Virginia.

And so, therefore…

Roger Parloff: Yeah, that's in Winchester, Virginia. But the evidence was that Patel himself was directing this investigation. And Zach, Zachary Lee, a veteran prosecutor in that office was saying, you know, there's nothing here worth pursuing. And DOJ ordered Gilbert to replace Lee with somebody named Robert Tracci, or Tracci.

And Lee was demoted. Blanche, Todd Blanche, personally spoke to Gilbert about this investigation, and when it didn't go fast enough and they, it didn't verify Patel's paranoid delusions or whatever he is pursuing. They got rid of Lee, and eventually Gilbert left.

So, it also mentions in passing another investigation going on in Philadelphia relating to––that one is whether intelligence officials lied. Remember the intelligence assessment in late 2016 or early 2017

Benjamin Wittes: The so-called ICA, the intelligence community assessment.

Roger Parloff: Yes. Yeah. That said that that Putin was not just interfering in the 2016 election, but that his goal was to favor Trump.

And they're still trying to get to the, trying to disprove that. Which, which is always sort of puzzling to me because, I mean, knowing what we know, I mean, wouldn't Putin seem foolish if he weren't, if he hadn't been supporting Trump? I mean, are you crazy? I mean, who would you––. Because, w

Benjamin Wittes: Right, because Hillary Clinton was really gonna roll down that red carpet for him in Alaska.

Roger Parloff: Yeah. Anyway.

Benjamin Wittes: Alright. Eric, we have an injunction against mass layoffs in, during the shutdown. How long is that gonna last?

Eric Columbus: Well, it's a TRO technically.

Benjamin Wittes: Oh, sorry, not injunction.

Eric Columbus: So it will last a few days I think until there is argument on a A TRO, which is from, rather on a preliminary injunction, which is scheduled for October 28th.

So this is the case that I've talked about last week, and I think maybe also the week before involving a union challenging reductions in force notices, or RIFs, to bunch of employees, thousands of employees, that were issued during, at the beginning of the shutdown itself. And they're arguing that the administration lacks the lawful authority to do that during a shutdown.

The shutdown is––first, the shutdown is not grounds for reduction in force. And then secondly, that you actually cannot perform the work to carry out the shutdown because the people who are doing it are shut down and it's not an exempted activity under federal law.

So, the judge concluded that this was arbitrary and capricious action by the government, and that the layoffs were chaotic. A lot of people did not know that they, in fact, had been, received a RIF, because it was on their, their government, sent to their government email accounts, which they had not allowed to access during, because they had been furloughed due to the shutdown.

There's somewhat surprising line in here as the judge is going through the temporary, the factors in terms for granting a TRO. She says, this is Judge Illston in the Northern District of California. And she says, at the hearing, counsel for defendants refuse to answer the question of whether or not defendant's actions are legal, instead saying that defendants were, quote, not prepared to address the merits today.

That's not a great thing to have a judge, to have to say to a judge, and then have right, repeat back in her opinion.

Benjamin Wittes: Not prepared to say that the client's behaving lawfully

Roger Parloff: One, one, I would assume they might have a bit more to say about it at the preliminary injunction hearing on October 28th.

So we will pick that up again then.

Benjamin Wittes: Alright. Roger, we have two immigration updates. The first involving our old friend Kilmar Abrego Garcia, both in his criminal case and in his civil case. What's going on with Mr. Abrego?

Roger Parloff: Well, we have not heard in the civil case. We're waiting to hear from Judge Xinis about whether to release him.

And I had sort of thought we might hear this week. We haven't. This is the, we talked about last week the, has to do with the Zadvydas decision.

Benjamin Wittes: I just want to cut in and say if Judge Xinis hasn't ruled yet, given what a serious and businesslike judge she is, that means she's writing a very substantial opinion.

Do you agree?

Roger Parloff: Yeah, but there's also been some sealed documents filed, and so there's, remember there's a, there's some moving parts. You know, is Costa Rica still a possibility? Could the government say, okay, let's send them to Costa Rica after all? Or could they actually get further along with Eswatini? Could they get better evidence? So I don't know if that sort of maneuvering is going on as well.

The, a lot is happening in the criminal case, where his, he filed a bunch of motions, some of which are pretty interesting. The main, the most, you know, one of them is the motion to compel, you remember, relating to his motion to dismiss for vindictive prosecution.

And we got a little, some other, some glimpses of information. The government is basically saying we're not providing anything. Everything is protected by deliberative process, executive privilege, attorney work––attorney work product privilege.

But they do have the, according to his, Abrego’s lawyers, they do know that there are 12 emails that went back and forth between McGuire, who's the U.S. attorney now bringing it, and the deputy attorney general's office. That's Blanche's office. And so they would like to get, they would like to see what is in those.

I think that might be disputed by the government. So I'm going to hedge that. But that is what the, Abrego’s are saying that. He also says there's multiple emails from Ben Schrader to McGuire. Ben Schrader is the guy who quit the chief of the criminal division rather than bring, basically, this case.

So that's interesting. The only thing they will provide from Ben Schrader are his, you know, public––his, the letter that, and the blast email, which are benign, that he left for his office. His official statements for why he resigned or of, at resignation. There's one other thing in there that's interesting, where the Abrego's attorneys alleged that when it gets beyond Maguire, when you, when they begin to ask, okay, what's going on?

What are the discussions in DHS about, about this case, about why to bring this case, why to resurrect this case after it had been, you know, no one had pursued it for 900 days. Why did they suddenly remember the traffic stop was in 2022? They don't pursue it until he's in El Salvador. That's what they're trying to get at.

What, why is this resurrected? And what they say is that no one from the DOJ, including the deputy attorney general's office, has responded to McGuire's inquiries. So they're saying that DHS and all these other agencies are basically stonewalling McGuire. Again, I don't know if––I imagine the government disputes that, but I don't know.

So, those are interesting. There's also a couple motions to suppress. One is based on the traffic stop itself and one is based on his––or you know, from 2022––and one is based on his, when they pick him up in March of 2025, just before, you know, three days before they take him to El Salvador.

In the first, it's sort of interesting, you remember he's stopped because he's going 75 in a 65-mile an hour zone. And the guy, the driver, the highway patrol has his body camera on, and he does tell Abrego, you're going 75 in a 65-mile an hour zone. And Abrego says I was going 70. He, he says and that it's a 70 mile an hour zone. And apparently, it is a 70 mile an hour zone.

Or at least the defense, Abrego's attorneys think they can prove that. And they, there's no evidence of what his real speed was. And so they say the stop was, even the, you know, if they're right, the highway patrolman should have known what the speed limit was, if that's why they were stopping him.

And it's an unreasonable stop, and then the fruits of that would be suppressed. I don't know. That's sort of interesting.

Then the other one has to do with something that has happened a lot, which is when, you know, remember he's arrested in, this year, in March. He's bringing his son home from work, and he's stopped without any warrant, and he's detained, and, and so on. And repeatedly, and they've acknowledged there's no warrant, but there's this blurriness about what's what, if any––I think they tell him ‘your status has changed.’

And there is a lot of blurriness about these stops without warrants, whether a warrant is needed or whether the fact that, you know, umpteen years earlier there was an order of remove, removal, that's all you need. So, that's what that one's about.

And apparently he also made some statements once he was in custody that they're disputing whether there were Miranda rulings about. Whether he got his Miranda warnings, that, that's a matter of dispute.

Benjamin Wittes: Alright, I will just say about Abrego's criminal case. Watch that vindictive prosecution motion, because whatever else is going on in Abrego Garcia's case––and that is a super interesting and complicated case––that motion has implications for Letitia James. It has implications for Jim Comey's similar motion. And it has implications for the motion I expect John Bolton will eventually file, as well as everybody else who is politically targeted by the administration.

Abrego is like, two or three months ahead of every other criminal case that's going to raise that issue.

Finally, Roger, we have some movement in what we used to call the J.G.G. case, but we now have to call the Sanchez case. I'm not playing, I'm still calling it J.G.G. It was hard enough to keep the three letter cases separate from one another.

I don't wanna have to rename all the cases. We're calling it J.G.G.

Roger Parloff: Yeah. I think that's one of the relatively easy things to decide about this case. The next step is a tough one because the plaintiffs have filed a motion for a prelim, preliminary injunction and a cer––to certify the class.

The plaintiffs at this point are all of the citizens, oh, and non-citizens who were taken from U.S. to CECOT in El Salvador under the AEA Proclamation. And then they're now in Venezuela. And what they seek, at this point, is determinations of whether they are, TdA, Tren de Aragua. They seek an order that would, for the government to facilitate plaintiffs’ ability to contest their AEA designations, including submitting a proposal to the court regarding how they intend to do so.

A lot of problems with this case at this point. They're in Venezuela. We're in, you know, it says––we seem to always be one step, step behind. You know, we, we, Judge Boasberg found that he didn't have, the U.S. did not have custodial, what's the––constructive custody over them in CECOT. Now we have pretty strong evidence that there was constructive custody over them in CECOT, but they're not in CECOT anymore.

They're in Venezuela. And they're certainly in danger. There's good evidence that they're in danger. They're in danger from both sides. Maduro side. But the anti-Maduro people who think they're Tren de Aragua they're in trouble. And they're in so much trouble they're willing to come to this country again.

But what Boasberg can do with this, I don’t know.

Benjamin Wittes: Right. Not all problems are remediable by courts, including by excellent district judges who, for whose, for whom no good deed goes unpunished by the Supreme Court. Alright. We have four questions in the queue. We have eight minutes.

We are going to finish on time today. David Emory, what's on your mind?

David Emory: Okay. Attacks on Venezuela country, on their citizens and reprogramming RDTE to pay DoD salaries are two blatantly illegal actions. Since SCOTUS says we can't prosecute after the president leaves, who has standing to sue to stop these actions during the time he's in office? Congress could and should impeach, but we know that's not going to happen.

Benjamin Wittes: Alright, so this is a relatively easy question with respect to the Venezuelan, Venezuelan citizens killed on the high seas by U.S. strikes. And the answer is nobody has standing to challenge that. And that is why, one of the reasons why––at least under current standing law, whether that, whether that standing law should be relaxed because the result is ridiculous, is a different question––but there is nobody who is likely has standing, who is killed in these boat attacks.

Now, there are a few important wrinkles to that, which is someday, if you blow up enough boats, you're going to blow up a boat with an American citizen on it, and that American citizen certainly has standing.

So that's the mechanism by which you get standing to challenge the boat bombings. Which, by the way, I think are frankly lawless and I'm not I'm not defending in any way. The other question is a trickier one. So, if you are somebody for whom there was appropriated money, and that money was reprogrammed illegally, you have standing to sue.

Now the question is, how clearly is it––that money has to have been obligated. And so, but you know, if you're, if you have enough billions of dollars at issue, and some of it has been obligated, you might trip over somebody who has standing there.

Now, whether that person will choose to sue, or just choose to wait until the shutdown is over and then Congress replenishes the funds and then they get paid, they might not want to litigate it. But there are people, probably people who have standing, depending on just how careful the administration is or isn't in reprogramming Defense Department money.

John Hawkinson, the floor is yours.

John Hawkinson: Thanks, Ben.

As to posse comitatus and the difficulties of justiciability, with the San Francisco District Attorney's announcement reported by Politico, that she, quote, won't hesitate to charge federal agents with excessive force and similar, does the PCA have implications for the usual kinds of law enforcement immunity that would normally be a defense to such charges?

And if so, is that a plausible way around the apparent difficulties of enforcing the PCA?

Benjamin Wittes: So, I cannot answer the question because my knowledge of the PCA is just not good enough to do that. Loren and Scott are––Scott is not with us today, and Loren is disappeared. Eric, do you have a sense of the answer to that question?

Eric Columbus: I mean, the idea, John, would be that the PCA would rebut some kinds of law enforcement immunity.

John Hawkinson: Yeah. Something like that.

Eric Columbus: I don't know, but it's not clear. I mean, that would require a finding that the PCA itself is being violated. Wouldn't it?

John Hawkinson: I don't know. I'm just kind of spit balling.

Eric Columbus: Yeah. I don't know. I would've to think about that. It seems unlikely, just the way things are, but I mean––

Benjamin Wittes: Alright, so I am, I think you've stumped us, John. Let me suggest that you save this question for Loren and/or Scott the next time they are on the show.

Roger Parloff: It, is it federal agents or is it federal military?

Is it National Guard?

John Hawkinson: It's specifically agents of the federal government, which I think is a term of art and I'm not precisely sure about. But the art, the Politico article spends some time on that. Okay.

Benjamin Wittes: Okay. So, Jeff asks, who has standing to sue over the Venezuelan drone strikes? I've already answered that.

What could they sue about and against whom would they file suit? So, we sort of know the answer to these latter two questions because these were the questions that came up in the Anwar al-Awlaki case. Who was, of course, a U.S. citizen. And therefore, you know, alleviates the standing problem that happens if these are Venezuelans.

And al-Awlaki sued––or al-Awlaki’s father, really––sued under a due process deprivation theory. And there were a lot of reasons why he lost that case. But there are wrongful death theories, basically, that you could allege if you if you can claim that the U.S. military or intelligence officers intentionally killed you, right, without any kind of due process.

So that's the answer to that. Finally, the anonymous attendee, and we're gonna close with this question and we're gonna end on time. How do each of you define constitutional crisis? And are we, by your definition in one.

Eric, what's a constitutional crisis, and are we in one?

Eric Columbus: It's not gonna be helpful, but I have no idea what a constitutional crisis is, and if it is, means that bad, that ju-, that courts are doing bad things and not enforcing the Constitution, I would suggest that is something that's been true for long stretches of our constitutional history. And you could look at the time when the Equal Protection Clause was basically in, in interpreted the 14th Amendment was interpreted to allow de jure segregation in schools and public accomm––public facilities from Plessy until Brown.

And you could look at the complete non-enforcement of the 15th Amendment and courts allowing that to happen, of not having blacks the right to vote, mostly in the South, for many decades.

Were those constitutional crises? I mean, those were things that probably were worse harms were being done to Americans, the larger number of Americans then than now.

So I don't really have a good answer to that question.

Benjamin Wittes: Roger, what's a constitutional crisis and are we in one?

Roger Parloff: Well, in, with the, I-know-it-when-I-see-it test, I think we're in one. But, but I don't know if I'm saying something sensible. The thing I just can't, you know, you have the President of the United States very openly announcing the enemies he's going to prosecute whether there's evidence or not.

And you have Congress that doesn't care and you have a, well, the Washington Post can't muster up any sense of self, you know, righteous indignation. It doesn't distinguish this from the trivial, some trivial thing that happened under Biden.

Yeah I think we're there, but I'm, I can't really define anything.

Benjamin Wittes: I will just say I hate the term constitutional crisis. I think it's a completely meaningless term and, and I think we're certainly in a democratic crisis.

But, you know, the constitution kind of works. The parts of it that work, work, the parts of it that don't work, don’t work. And whether you consider that a crisis is really up to you.

Here's what's a crisis: we are now a minute over. We are ending on time today, or at least no more than a minute late. We're going to be back next week. A lot of stuff will be different, but we'll be here and so will you.

Natalie Orpett: The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad-free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter at our website, lawfaremedia.org/support.

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