Lawfare Daily: The Trials of the Trump Administration, Oct. 3

[Intro]

Benjamin Wittes: It’s the Lawfare Podcast. I'm Benjamin Wittes, editor in chief of Lawfare, here with Lawfare Public Service Fellow Loren Voss and Senior Editors Roger Parloff and Eric Columbus. In the October 3rd episode of The Trials of the Trump Administration, we talked about a hearing in the litigation over the National Guard deployment in Portland, Oregon, states suing the federal government over immigration enforcement conditions being placed on federal grants, federal unions challenging expected firings during the shutdown, and much, much more.

[Main episode]

It is Friday, the third day of October, 2025. It is 4:00 PM in Washington, and you are watching Lawfare Live: The Trials and Tribulations of the Trump Administration. And in case you haven't noticed, the Trump administration has been trialing and tribulating a lot this week. We've got a fair bit of ground to cover most recently.

A hearing that took place in just a little while ago in, of all places, Portland, Oregon. So let us start with Portlandia.

Loren Voss, public service fellow at Lawfare, you listened to the hearing. Give us, before we get to the hearing itself, give us a little background. Why are we starting in Portland, Oregon today?

Loren Voss: Yeah. So the state of Oregon and the city of Portland brought a case against the president, SecDef, the Department of Defense, DHS, and DHS secretary. We're talking today about a motion for a TRO and a stay of Secretary Hegseth’s 28th September memorandum.

So, he federalized 200 members of the Oregon National Guard, and this TRO is to stay that federalization. This is all around. If anyone was following the president on Truth Social last weekend, his post about war-ravaged Portland and the need to deploy troops and his authorization of “Full Force if necessary,” this all comes from that statement.

The state of Oregon has maintained that there is no need to federalize these troops. And so they have brought this TRO to try and stop that from happening. There was a hearing this afternoon––

Benjamin Wittes: Wait, but before we get to the hearing, you know, I know that Portland had some issues during the George Floyd protests. There were, you know, people who were kind of barricading the courthouse and whatnot, and there was, there were some, some issues both in Portland and Seattle.

But I don't particularly have a sense of Portland as war-ravaged these days. It's, I mean, the word I would use for like Mosul or something. What is going on in Portland that might prompt, even with a bit of hyperbole, the president to call it war-ravaged?

I mean, Reed College is a wild place, but it's not that wild.

Loren Voss: So, this actually revolves around one single facility. There's one ICE facility in Portland. There were a number of protests in June and some arrests. The last arrest was I think 19 June. The state of Oregon and the city of Portland is arguing that they're all lawful protests now.

There's typically about 30 people outside of the site. The, there is a wide divergence in the facts that are being argued. In this case, the government is arguing that the protestors are violent, they're impeding government vehicles. They pointed out that the building did have to close for three weeks, but that was end of June, beginning of July.

But they're stating that the Federal Protective Services, which is, you know, a law enforcement agency with DHS is overwhelmed, both with these protests and the threat of protests. They pointed out doxxing that has occurred and a couple other things.

So there’s––it's interesting, just when you get to the facts, there's a significant dispute over, how violent are these protesters? How serious is this threat? How overwhelmed are the local federal forces?

And then, you know, is local law enforcement helping or refusing? And during the hearing today, there was a dispute between the two parties on whether or not local law enforcement was helping.

Benjamin Wittes: So there's a––taking the government's argument at face value, which I understand the plaintiffs here do not, there is a violent protest centering on one ICE facility.

And the government in response is planning to send federal troops to Portland, or National Guard. What are, what is planned or what has been announced that this suit is in response to?

Loren Voss: Right. So, Secretary Hegseth issued a memorandum federalizing 200 Oregon National Guard members under Title 10 § 12406. That was the same statutory provision that was used in Los Angeles.

There's a debate on, you know, which of the different provisions underneath it they're using as a factual predicate. But it's the same one as before. And so those 200 troops are supposed to protect federal property and federal operations, but presumably around that one ICE facility.

Benjamin Wittes: Alright. So, the government announces this, you get a lawsuit, and then we swap––before we even get to today's hearing, we've got, like, musical chairs with the judges. What's going on there?

Loren Voss: Yeah, so yesterday defendants filed a brief suggesting that Judge Simon recuse himself to avoid the appearance of partiality.

His wife is in state government. And so they said that she'd interfaced in her official capacity with the defendants. And she had made public statements that this was a violation of law. She, you know, she'd been in a press conference with the governor. The judge decided to recuse himself yesterday.

And so we had a new judge appointed late yesterday afternoon west coast time. Judge Immergut, so she just got this yesterday. She got, she had the hearing today, D.C.

Benjamin Wittes: And what do we know about Judge Immergut? Other than that she continues the long tradition on Lawfare Live of judges with vaguely amusing names.

Loren Voss: We know that she was appointed by Trump during his last administration. I haven't seen a whole lot on her rulings or personality since then. So we––I can't tell you much more than that she is indeed a Trump appointee. But during the hearing today, she seemed like she had done a lot of research.

She was somewhat skeptical of some of the arguments the government was providing, even if she, you know, she was deemed to need to be highly deferential. She was like, you know, where in the record are these facts that I'm looking for? And she said that she would rule either late today or at the latest tomorrow.

Benjamin Wittes: And so tell us a little bit about––and you know, I ask about what we know about these judges, partly because, you know, oftentimes, judges, particularly at the district court level, are just, you know, way more complicated and interesting than people assume based on the party of their appointing president.

And particularly in places like the Ninth Circuit, in a state with two Democratic senators, the fact that somebody is a Trump appointee actually may mean very little about what you can expect of them from a performance in a particular case. So tell us about the hearing today. You said it ran just under two hours.

What was, what was Judge Immergut's main concerns in talking to the respective parties?

Loren Voss: Yeah, so, in her opinion, this is going to come down to the statutory claim of 12406. And she read it, actually, to the parties, right. And so just to remind everyone, that allows three predicate situations to mobilize National Guards.

So the first is invasion or danger of invasion by a foreign nation. That one's not one we're talking about today. The second is rebellion or danger of rebellion against the authority of the government of the United States, which is one of their claims. Interestingly, the judge opened it up and said, I don't think anyone's actually argued that we're in danger of rebellion, but correct me if I'm wrong.

And they were like, actually, we have argued that. And then the third one is that the president is––

Benjamin Wittes: Wait, the government's argument is that there is a rebellion ongoing in Portland, Oregon?

Loren Voss: That there is a danger of rebellion.

Benjamin Wittes: I see. Okay. Danger of rebellion. That's like the Necessary and Proper clause, it's like, you know, it's, it's a degree of attenuation from actual rebellion.

But alright. Alright, so we got danger of rebellion. What else we got?

Loren Voss: Then the third one is the president is unable, with the regular forces, to execute the laws of the United States. Right? And so that's the one that, you know, we saw in the L.A. case, and that's what the Ninth Circuit decided that the federal government was likely going to be able to prevail on.

And so we saw a lot of conversation specifically on that today, and whether or not that was met. I'd say the judge, though, did look a lot to the Ninth Circuit decision in Newsom v. Trump, you know, on how deferential she needed to be on whether or not those statutory preconditions were met, right?

And so that opinion talked about needing to be highly deferential, but the opinion that that decision needed to be conceived in good faith in the face of an emergency and a colorable basis, right, for those decisions. So there is a, you know, some level of review on like, you know, the government arguing that it is not something that can be reviewed.

The Ninth Circuit didn't really look at that subsection on rebellion because they thought, you know, the section on enforcement of federal laws was enough. They did go on to state, you know, that minimal interference is not enough, right? If it was just minimal interference, why would you have subsections one and two? They would just be completely subsumed.

But that then leaves the judge with some questions, because this is a very different scenario than L.A., right? There was 2,000 troops. There was actually violent protests going on. So, she had a couple questions first, was like, how was this decision actually made by the president? What am I looking at?

So, the Secretary of Defense, when he authorized those 200 troops federalized, included that June 7th memorandum that the president put out which talked about violence across the nation, but was assumedly to deploy troops to L.A. right? And there was no specifics in it. But it's also from June 7th.

So she had a question of, is this what we're referring on. Is it from that long ago? Then what is, you know––then you can't say it's about current and ongoing events. And so she had some specific questions on, okay, was, is this the decision that we're looking at here? And then, what are the geographic and temporal requirements of this decision, right?

Is it, you know, is it the fact that there was a shooting in Dallas at an ICE facility? You know, is that what you're counting? And everything that you seem to be having in the record was about earlier incidents of violence, you know, June type things.

The defendants did talk about President Trump's Truth Social posts as a possibility of how that decision was made. She seemed skeptical that we should be turning to Truth Social to determine presidential determinations of federalization and deployment of National Guard, but that they––oh, you're muted, Ben.

Benjamin Wittes: Oh, sorry. I said really? It seems like they are official presidential statements.

Unless somebody wants to challenge the authenticity of a Truth Social post as representing the position or view of the president, I'm not sure why it's any different from the president standing in the, you know, before a podium in the press room and saying, here's what I think.

Loren Voss: Well, and that was one of the pushbacks that the defendants had, is there's no requirement in the statute for how these determinations are made. They don't even have to be written, right. They could, they could be oral decisions.

I will say that one of his Truth Social posts came out after the decision and the deployment, and so there was something about, okay, well you can't, like, post hoc say that's what did it. So it seems to then, you know, she's trying to actually understand the facts here, which we already talked about a little bit of like what really happened here right?

So they did talk through the DHS request for assistance that was provided in the case as well. And at least DHS is arguing that the facilities have come under a coordinated assault by violent groups intent on obstructing, lawful federal actions. Those groups are aligned with designated domestic terrorist organizations.

Right. And so, that is at least the claim on their side. The judge really seemed to focus though on specific examples and look at what dates they occurred, seemed to not think that including things like Dallas was in the scope, but then started to really look at, okay, well, talk to me about the federal forces not being able to execute the laws, right?

The Ninth Circuit said there has to be more than minimal interference, but it doesn't have to be no ability to execute the laws. And it was hard for the parties to come up with an example where that had been overwhelmed. So the def––you know, the government argued that, well, we've had to move more federal forces in, we've had to move a hundred different people from different organizations.

The state of Portland introduced a number of night logs of the police force and the nights leading up to this order showing that there was quiet and no request for forces for numerous nights prior. So the argument back is that there's just, you know, at most, there is minimal interference.

But once again, we get down to the facts in that case, and what's really going on.

Benjamin Wittes: And did Judge Immergut discuss at all the significance, if any, of these being allegedly coordinated by a designated domestic terrorist organization?

The reason I ask is that, you know, the president issued this executive order ‘designating’ Antifa, which is not obviously an organization, as a domestic terrorism organization, which he does not have the obvious authority to do in any sense other than that you have the authority to designate something a domestic terrorist organization.

But now, in your description, they're sort of arguing that in court that this has some significance. And I'm curious how Judge Immergut responded to that.

Loren Voss: Yeah, so it actually didn't come up in that level of detail. It was used to say like, here's the predicate decision, here's what's been going on, but most of the focus was on the fact that Secretary Hegseth’s actual order, and what they say they're going to be doing, is a small amount of troops doing federal property and federal mission protection.

And they didn't really talk about those wider, you know, claims of, you know, war-ravaged Portland, you know, the terrorists coming out, you know, “full force.” Because they now seem to be saying that their mission is actually going to be much more narrow and just be protection of that ICE facility in a small number against protestors.

So there really wasn't a conversation about what does this mean if domestic terrorists are involved.

Benjamin Wittes: All right. So she says she's going to rule on the TRO, I assume, tonight or imminently. Is that the status of things?

Loren Voss: Yeah, that is what she said. Either tonight or by tomorrow.

I will say she also did both in her questioning and in this, and the remarks made by both sides, get into a little bit of debate over Posse Comitatus and whether or not that applied here.

And that, I would say, was particularly interesting because the government's argument now is that 12406 is not just immobilization authority, it's also a mission authority, and as such is an explicit exception to Posse Comitatus. Which is a little bit different what they originally––originally in the L.A. case, in the Newsom case, they argued, you know, a constitutional Article Two authority.

But then by the time they were in court and, you know, by the time it came to the Ninth Circuit, they seemed to be arguing this same thing, which is that 12406 allows them to deploy forces and allows them to do law enforcement. But they, you know, they make a couple other arguments, which is, oh, we're not going to do law enforcement, so don't worry anyway, right? Like, that's not what our mission is. It's the protection of these federal properties.

They also say that, you know, Posse is criminal statute. No civil course of action. That's similar to what they've argued previously. Interestingly, in this case the state of Oregon argued, okay, but we're also making an APA claim, and you can try to get into the APA through a criminal statute.

So we'll see what happens there. But there was an interesting discussion on PCA that I think is interesting because there seems to be a debate actually on what counts as law enforcement activity and how much, whether or not, you know, they're doing the Federal Protection Mission, that is law enforcement or not.

And there was really some, you know, up in the air descriptions of activities both from what happened in the Ninth Circuit in L.A. and what's happening here, and whether or not that that would be law enforcement. And so we don't really have a good answer on the PCA piece and where that's going to go.

But I just wanted to mention it in the context of the, you know, this new argument that 12406 is sufficient both as a mobilization authority and a mission authority. Right? And so they've kind of moved away from that constitutional argument.

Benjamin Wittes: All right. Roger, you listened to this hearing as well.

Do you have thoughts on it?

Roger Parloff: Just a few. I, I totally agree with what Loren said. I thought she was very skeptical.

And I, I think it may be interesting because we may get you know, the, the Ninth Circuit standard here was something like colorable assessment of the facts and law within a range of honest judgment.

And it sounded like she did not think that any of the things being said by the government fall within that range, which is quite a quite a criticism. On the Posse Comitatus Act, I also agree with Loren, but I think the thing there is that it might just not be ripe. They aren't even deployed yet.

They're being––they're in training and you know, remember, Breyer waited until––in the initial hearing, he didn't rule on Posse Comitatus. And then he took a lot of evidence and then made a ruling. I don't think they're there yet, so that it might just not be ripe.

Benjamin Wittes: All right, let us move on to our weekly immigration roundup. And we're going to begin with a sort of an immigration case, a massive, I think it was 166-page opinion out of Massachusetts from Judge Young, which has some of the most extraordinary rhetoric of any district court opinion I have ever read.

Eric, tell us a little bit about Judge Young's opinion in AAUP.

Roger Parloff: Did you want me to start on that, Eric, or––

Benjamin Wittes: Oh, sorry. Roger, you were going to get us started on that one.

Roger Parloff: Yeah––

Benjamin Wittes: I'm sorry.

Roger Parloff: It, it certainly is an immigration opinion. And it, you know, there's two things in there. There's the ruling and there's how it gets there, how it expresses itself.

Those are really separate things. It's a very ambitious case. It's brought by the American Association of University Professors and the Middle East Studies Association.

And basically they allege that there's been this ideological deportation policy executed by both the State Department and the Department of Homeland Security to deport, to remove people and to cancel visas of high-profile people who have merely protested, participated in pro-Palestinian protests.

So, it's a First Amendment viewpoint discrimination thing. And, of course, neither of these organizations have been expelled. Their theory is that this is being done in order to suppress speech across the board, protests across the board, and that their speech––members, members of these organizations, their speech has been chilled.

And so it looks at all the cases we've been talking about individually, Mahmoud Khalil, Yunseo Chung, Badar Khan Suri, Mohsen Mahdawi, Rümeysa Öztürk, and sees them sort of big picture. What's the policy here? And he held a nine-day trial.

Benjamin Wittes: Wait, so I want to stop you right there.

Because if I'm Sam Alito, I don't need to hear more than I've already heard, which is you're aggregating a whole bunch of individual cases of people who are perfectly capable of litigating their own cases, and you're doing it under the auspices of Mesa or AAUP.

And I know that trick and I also know how to get rid of it, which is to say something about individualized injury and standing and stuff. And so my question is, before we get to the merits of this, how vulnerable is this to, you know, ‘okay, that's all very nice, 161 pages or 166 pages of opinion, but there's no standing on the part of these organizations to raise this thing in the first place’?

Roger Parloff: So, there will be a big issue about standing, and it gets into organizational standing and associational standing and––which is not within my expertise.

And it's also sufficiently arcane that if you don't want to grant standing, you can do it. And, but I also think they made, within the boundaries of the existing law, you know, members of their associations testified about the work they were doing and why they stopped doing it when they saw what was happening.

And so––and not just one, you know, it's a lot of evidence. I think it's plausible within the bounds of what the law used to be or was, you know, right up until this case was decided. So I don't, I, I don't, I think it's plausible. But you're right, that'll be a big issue.

And so, it's, at times––the piece, the article, it's 161 pages and a lot of it is meticulous. I mean, a lot of it is informative and meticulous and new stuff, I mean, stuff I haven't seen before.

And the conclusion is this court finds as fact and concludes as a matter of law that Secretaries Noem and Rubio, and their several agents and subordinates, acted in concert to misuse the sweeping powers of their respective offices to target non-citizen pro-Palestinians for deportation, primarily on account of their First Amendment-protected political speech.

They did so in order to strike fear into similarly situated non-citizen pro-Palestinian individuals proactively, curbing lawful pro-Palestinian speech and intentionally denying such individuals, including the plaintiffs here, the freedom of speech that is their right.

And so, that's the theory, and there's a lot of strong, specific evidence that showed that, you know, in internal discussions the public officials, quote, consistently referred to campus protests related to Palestine as per se pro-Hamas, you know, things that––and he talks a lot about the wiggle words, antisemitism, and it's never defined. Pro-Hamas, and it's never defined. Hamas sympathizers, and it's never defined.

And so these parts of the ruling are quite convincing, in my humble opinion. Then there are places where the rhetoric, I think, goes off the rails and undermines the seriousness with which his findings ought to be taken.

Benjamin Wittes: And just to be clear, this is a Reagan appointee.

Roger Parloff: It's a Reagan appointee. He's 85. William G. Young. I should have said that early on, district of Massachusetts.

He says, though it was unnecessary to decide at one point, he suggests that Trump, who, you know, we're talking the––we're not trying the case, is really against the secretaries and the their subordinates, but he's saying that Trump, in approving this stuff in ratifying this behavior, is violating his oath of office and the Take Care Clause.

And then to my mind, he implies that in, you know, in a more gracious era, he would've been impeached or prosecuted.

It says, in the golden age of our democracy, this opinion might end here. After all, the facts prove that the President himself approves truly scandalous and unconstitutional suppression of free speech on the part of two of his most senior cabinet secretaries. One would imagine that the corrective would follow as a matter of course, from the appropriate authorities, yet nothing will happen. The Department of Justice represents the president, and the Congress is occupied with other weighty matters.

And then the end of the decision, from 148 until the end, he sort of despairs about whether any remedy is possible. If you were going to look at this in a charitable way, it might be sort of like, if you remember Judge Wilkinson's ruminations for the Fourth Circuit in, I think, the Abrego Garcia case.

But, but it's, I, it's not really as classy as Wilkinson. He says the reason is that the rapidly––the reason he doesn't know if a remedy is possible is, the reason is the rapidly changing nature of the executive branch under Article Two of our Constitution.

And while he is properly, not now a defendant in these proceedings, the nature of our president himself and then he goes into that. I think I'll, I'd like to hear what Eric thought about the rhetoric and anything else here.

Benjamin Wittes: Yeah. So Eric, first of all, what do you make of the standing question?

Is the idea that there's going to be standing here going to hold up as this goes up on increasingly conservative appeals? Or is this going to run into a buzz saw?

And number two, assuming that the opinion itself is bulletproof, what do you make of the rhetoric?

Eric Columbus: First, I just want to note just in the interest of full disclosure I used to work for the plaintiffs’ counsel here, the Knight First Amendment Initiative. And I did some research, some background research, that eventually made its way into this case, but I did not work on it at all.

So in terms of standing, I, I, I think, you know, standing is notoriously malleable. It kind of remains to be seen in, what higher courts makes of it. I also think one reason why it remains to be seen is that we don't know what the remedy is yet. And you have sta––as the Supreme Court has emphasized, you, your standing depends upon the remedy you seek, and obviously the remedy that is eventually given to you.

And it's not clear what that remedy is going to be, for reasons that Roger explained in terms of the style. I agree that it is quite weird. It's written in the form of a letter to an anonymous correspondent, if you will, who sent a postcard to the judge in June that said, in kind of like creepy handwriting, Trump has pardons and tanks, dot, dot, dot. What do you have?

And then the judge wrote dear Mr. or Ms. Anonymous: Alone, I have nothing but my sense of duty. Together, we the people of the United States, you and me, have our magnificent Constitution. Here's how that works out in a specific case. And it's literally at the top of the opinion.

And then the rest of it is, then it starts below that with a case caption and 161 pages of analysis. And then at the very end there's like a conclusion to the letter writer and say basically like, you know, this is how I came out. And, and then literally it says, the next time you're in Boston, stop into the courthouse and watch your fellow citizens decide the case.

And it, it's,––

Benjamin Wittes: I’d like to say that's not a normal way of writing a judicial opinion.

Eric Columbus: Yes. And, and the, the phrase YOLO comes to mind when you're at the end of a distinguished legal career and you are not particularly happy about what's going on. You want to maybe write something that will get read more often than the typical district court opinion.

He goes, multiple asides, some of which Roger has mentioned, but he has a footnote where he talks about the birthright citizen––moves to cancel birthright citizenship by Trump and how that's unconstitutional. He has, I think, I think it's like four pages on why the use of masks by ICE agents is a terrible thing.

And, you know, none of this is necessary or for the case. And most judges would accordingly leave it out. But I think Judge Young may be kind of despairing of what's coming. But also, as Roger said, a lot of it is very meticulous and there's a huge section, I think from pages 15 to 93 or so, that discussed in great detail, summarizing the testimony of this two-week trial and explaining how the administration went about deciding to go after each of these pro-Palestinian non-citizens and mark them for deportation.

And it goes into great length in that, and it's really valuable––will be valuable for the historical record down the road to have that. It's also, I think, quite interesting that––I mean, these, this is, I, the administration could have in theory said, you know, screw you guys, we're not going to play ball this hearing. We're not going to send our, our agents to testify.

And that, in normal circumstances, would not have ended well for them. But we have seen in other cases, the administration doing things that are quite unusual. But instead, it was a fairly normally handled case by the administration in that ICE agents, several of them––I don't know how many testified and at great length, and we had a very long trial about this, which led to lots of information coming out and both testimony and documents that had not been available for before.

So it was a very interesting case.

Benjamin Wittes: All right. So, we have a new suit or a somewhat new suit on federal grant conditioning on immigration enforcement. This is State of Illinois v. Noem.

Eric, tell us about it. What's going on in this case?

Eric Columbus: This was a case where DHS conditioned some disaster and emergency relief and management grants on states cooperating with federal immigration enforcement in a variety of ways.

And it followed a presidential executive order intended to prevent money from flowing to so-called sanctuary jurisdictions. 20 blue states sued in federal court in Rhode Island and the case is before Judge William Smith, an appointee of George W. Bush. And among other things the states argued this was––

Benjamin Wittes: Who is not to be confused with William Jones, an appointee of Ronald Reagan.

Eric Columbus: William Young,

Benjamin Wittes: Young, sorry. But there's probably a Judge Jones, Young, Smith. It's very confusing

Eric Columbus: Five-letter monosyllabic Anglo-Saxon names.

Among other things they argued was arbitrary and capricious agency action. And also that it was unconstitutional under the Spending Clause because it was coercive and ambiguous and not reasonably related to the purpose of the grants.

And you may recall the Spending Clause analysis from the Obamacare case in 2012, I think, where the Supreme Court struck down the requirement that states expand their Medicaid programs in exchange for 90% funding from the federal government.

And the court's reasoning was that it was coercive to the states to basically say, you must do this or else you will lose this tremendous amount of money.

So DHS had some threshold arguments and said, look, you know, we've actually decided not to enforce this for many of the grants. And the court said, well, you know, you're doing that only for FY 2025 and you're, you're still asserting your ability to do this, so it's not moot. So DHS said, okay, fine, but it's not right because we have yet to publish our notice of funding opportunities for future years.

The court was like, come on, your grant announcements have these terms. It's obvious what you're going to do. DHS also tried to channel this into the Court of Federal Claims, as we've seen some other cases.

And the court said, well, we've seen that in cases, recent cases involving grant terminations and damages claims, not cases involving conditions for future fundings, the court then went on to the merits and concluded that this was arbitrary and capricious because it was very much of a blunderbuss approach by DHS.

They didn't consider whether specific statutes allowed it at all. They didn't consider competing policy concerns. They just noticed, oh, it's all DHS and DHS is involved with immigration enforcement, therefore, your FEMA grants, even though they have got nothing to do with immigration, can validly be conditioned on your playing ball with us on immigration.

Then the court went to the Spending Clause analysis and concluded that one, it's coercive because there are massive amounts of money involved, like 22 billion.

And secondly, it's ambiguous and that it was not really clear what is being asked of the states of what it means, even though they––some requirements were listed, what does it mean for them to comply in immigration enforcement?

And third, that it wasn't reasonably related to the funding program at issue. These were immigration, this is a FEMA Emergency Grants Program, and you're importing conditions relating to immigration enforcement. And the Supreme Court said in a case called South Dakota v. Dole, that you have to, there has to be a reasonable match between what the grant program’s about and the condition you're trying to apply.

In that case, in South Dakota v. Dole, the court upheld a requirement that you could condition certain federal highway funds on states raising their drinking age to 21, because of the close nexus between driving on highways and injuries caused by underage drunk drivers.

So, the court struck this down. I think it's a, it's probably a bulletproof opinion. It's not even clear to me that the court, that the government will appeal at this point.

Benjamin Wittes: So just another example of assuming, Eric, that you're right. And when the lower courts do their jobs really well, you get compliance and no appeal and then we forget about the cases. And so we tend to see the ones go up where there's some degree of vulnerability in the lower court opinions and we forget and sort of pocket the gains of when the courts do their job.

Well, alright, Roger, let's turn to some of the individual immigration matters. We finally have a U.S. citizen suing over wrongful immigration detention. Roger, just for those who don't know, how often should U.S. citizens be detained in immigration detention?

It's not a trick question.

Roger Parloff: Well, this is, it is actually about stops. And I guess if they're only stopped for 20 minute,s Kavanaugh doesn't really care.

Benjamin Wittes: But this person was not stopped for 20 minutes, right?

Roger Parloff: Well, one of them was 20 minutes. One of them was a little over an hour. So I don't know if this is going to pass muster, but it is a citizen, and it happened twice within three weeks.

And this is a complaint. So these are allegations. It's not very far along, but the allegations are interesting. So, and that's why we're going to pay attention to it.

This is Leonardo Garcia Vengas or Venegas. He's a construction worker in the Mobile, Alabama area. This is in the southern district of Alabama, in front of Jeffrey Beaverstock is the judge.

He was born in the U.S., Mexican heritage, and he's not a day laborer. He works for a, you know, a particular company that works on private, big private construction sites that are usually owned by, you know, big companies like Lennar or, is it D.R. Horton? Or something like that. Big, big companies.

And, so, there are raids going on these sites, and as he describes it you know, armed men in camouflage with masks run past the white and black workers and grab him and the other Latino workers. And he shows them his real ID, which is supposed to, you know, show your US citizenship.

And they say, well, it's fake, or, we think it's fake, or it's not. And they take him offsite and there's some manhandling, there's some, he alleges assault. And it's not a very polite procedure. And you know, it can be 12 blocks away, and then they check to see if his social security number is real.

And if it is, they do release him. So, and I understand, I've seen on the internet, some people are now calling these Kavanaugh stops because he sort of wrote his concurrence in the Vasquez Perdomo case saying, you know, it happens.

 So I don't know. He's suing. The attorney is making a big point of the fact that it's private property and there's no warrant. I sort of don't know if that, if he has standing to raise that, 'cause it's not his property and I don't think Lennar is going to go up to the Trump administration and say you were on our property without––I don't, I don't think Lennar is going to make a stink.

So I don't know if he has, I don't think he has standing to raise that. I might be wrong, I might be wrong. I shouldn't opine, but that'll be an issue.

Benjamin Wittes: And, but certainly the sei––the, it's not just a stop. He's moved 12 blocks. He's seized, right.

Roger Parloff: I, I, maybe.

Benjamin Wittes: Like, I think when you're talking about a Terry stop, which is where this idea of a stop comes from, it's a brief momentary stop on the street with a few questions and maybe a, you know, a patdown. You're not talking about being put in a van and then moved someplace and then have to be released.

It's a stop, not an arrest. And I think there's something very mischievous about conflating the two.

Roger Parloff: Well, maybe that will be a strong point for him. I just don't know the Terry stop definitions.

Eric Columbus: I'm sorry, if I could just jump in one, that was Ben. What you said makes a lot of sense.

That was also true, however, in the, the case that went up to the Supreme Court in the Vasquez Perdomo case. Yeah. And that––

Benjamin Wittes: But the difference in that case is that Kavanaugh's writing only for himself and nobody else is commenting on it, right. And so you could imagine that Kavanaugh is saying something that he has exactly one vote for.

Although––but I don't understand how the government defends under Terry or under the interim order in Vasquez Perdomo a, a case where they're, you know, shuffling people away and holding them in detention for an hour. You know, that doesn't sound like a Terry stop to me.

Roger Parloff: They’re holding them at the vehicle while they, at the police vehicle while they check his social security.

Benjamin Wittes: But after moving him 12 blocks

Roger Parloff: Yeah. In one. I mean––

Benjamin Wittes: It requires, that's more than, I don't know if it's an arrest, but it's more than a stop.

Roger Parloff: Mm-hmm.

Benjamin Wittes: I don't know. I mean, it's been a while since I've read Terry v Ohio, but it doesn't seem to me like that's a––I know how Kavanaugh described it, but it doesn't seem to me like a brief, kind of momentary stop-and-check or stop-and-frisk.

Roger Parloff: Yeah. Another challenge is that he's seeking an injunction. And of course, last time, of course it was just Kavanaugh, but there, there was a stay, and what Kavanaugh said was that they hadn't met the Lyons test. That, that, how do we know, okay, it's happened to him twice. How do we know it'll happen a third time? And

Benjamin Wittes: Right, yeah.

I mean, we, I would just say we don't ask that question in the First Amendment context. Yeah. Right. In the First Amendment context, the chill is itself an injury. And I think once you've been arrested or detained or stopped twice for being Hispanic in a zone where it's apparently lawful to be white or black, but not to be Mexican-American, I––there's gotta be some point at which a presumption attaches that you're suffering a risk––by dint of, you're suffering an injury by dint of the risk.

Roger Parloff: But I think one of the Vasquez Perdomo plaintiffs had been stopped twice also. And I don't know if Kavanaugh knew that––

Benjamin Wittes: But, well, he would've known it if he'd bothered to read, bothered to read the record.

Eric Columbus: Or the dissent.

Benjamin Wittes: Or the dissent. But I suspect he has even less regard for the dissent than he does for the record. That's just a guess.

Okay. So, Roger, we also have an update in the Abrego Garcia case, which I guess we're now supposed to call the Abrego case, but I'm going to continue calling the Abrego Garcia case because I'm afraid that people won't know what I mean if I don't.

The––this is an immigration judge, has refused to reopen his withholding of deportation case. I assume that is good news for him, right?

Roger Parloff: No, no. He was trying to reopen it in order to make an asylum claim. and we have not seen, at least I have not seen, I don't think we have seen the ruling.

The, it's, these asylum, these immigration things are supposed to be confidential unless the alien releases them. And he did not. The only reason that we know about it at all is that Department of Homeland Security violated that privilege and issued a tweet that gave its version of what happened.

So I don't want to comment too much about what the theory was, but it seemed to be that one aspect was that, if for third-party removals it's really up to, it's a different procedure that's within the DHS, you don't go to the immigration court. Another problem is that the threat of removal is not concrete enough here. There’s been talk of him going to Uganda or to Eswatini. Eswatini is––I'm sure, I'm sure I'm not pronouncing it correctly. It's the former Swaziland.

It's––but apparently it's not, there is no order of removal to these either place. And so he, the immigration judge, won't take it seriously, which raises the question of, then why are you detaining him?

Because he's not detained in the criminal case anymore. And if removal is not imminent that'll be an issue. Anyway, this will get hashed out. There's an October 6th, that Monday, hearing in before Judge Xinis in the second habeas case, or the second case, which is a habeas second civil case. He's now detained in Moshannon. He's been moved from Farmville. So hopefully, we'll learn more about it.

His lawyers are trying to get discovery. His––the government is trying to avoid it. Government is also claiming that the, you know, trying to get in a stay because of the shutdown. The government he has responded that no, that would violate the habeas––it would amount to suspension of habeas corpus, among other things.

There's also though a big development in the criminal case that just happened and it's a 16-page ruling that I haven't read. But judge––

Benjamin Wittes: We have, this is, to give you an idea of what an awesome audience we have, Andrew Steele of the Greek chorus is currently reading the Crenshaw opinion in Abrego Garcia for us, having alerted me that it exists while you were talking.

And he will come on as soon as he is done eyeballing it to give us a sense of what’s going on in that, in that decision. This is in the criminal case. Yeah. In the mea––

Roger Parloff: I'm sorry. Go ahead.

Benjamin Wittes: In the meantime, Roger, talk to us about the mandatory detention cases. We've got some action on summary judge––on, on, on class certification and summary judgment out of the District of Washington.

Roger Parloff: Yeah, so remember we've got all these cases, probably more than 30 at this point around the country.

On July 8th, the government changed its policy regarding interpreting two different detention statutes which are honestly not crystal clear, but they've been interpreted in a certain way for 29 years, and the government decided to change it.

There's one provision, §1225 b (2)––8 USC § 1225 (2)––that says, for an applicant for admission or an alien seeking admission, there's mandatory detention.

And that's been interpreted to mean, you know, somebody apprehended at the border. And then 1226 (a) says, if you are awaiting, waiting for a pending, if you're waiting for a decision on removal, you're eligible for parole or a bond hearing.

A bond hearing, not parole, but––and the change is that almost everybody, even if you've been in the country for 10 years, even if you're in Kansas, even if you've been here 30 years, if you aren't, if you didn't go through inspection, they're treating you as an applicant for admission and there's no––and detention is mandatory.

So all these cases, about 30, almost all have gone against the government. About three have gone for the government. The first class action was decided this week, but it's in the western district of Washington Takoma, but it only applies to that district, if that. It really only applies to the Northwest ICE Processing Center.

And the Takoma Immigration Court, it rules against the government and it has to be a declaratory judgment because there is a jurisdiction-stripping clause that prevents injunctive relief in class actions. And we're going to have another one of those in Massachusetts October 14th, a hearing on that. And she just ruled for the individual granted an injunction for the individual in that case.

But the, what she does about the class will come up October 14th.

Benjamin Wittes: Alright. Meanwhile, esteemed audience member Andrew Steele has read the Crenshaw opinion in in Abrego. What we got, Andrew?

Andrew Steele: Too kind, Ben. Thanks for having me on and glad to chime in. I want to credit Chris Geidner––Law Dork on Substack––for his notification that alerted me this was within the past 20 minutes or something.

So it's a 16-page memorandum opinion on defendant Abrego's motion to dismiss for vindictive and selective prosecution. The government obviously opposed, and the court walked through the different grounds that were raised.

I'm not going to really go into the different cases that were analyzed and distinguished, because I haven't looked at those, but the, the background, of course is Abrego living in the United States for a number of years, and the traffic stop occurred in Tennessee in November 30th, 2022.

This was by the Tennessee Highway Patrol and they didn't even issue him a ticket and sent him on his way, but they made a referral to Homeland Security Investigations the next day, or just around then, which didn't follow up on the investigation. And until sort of 2025, it seemed like that case had effectively gone away.

But then it turns to the deportation of Abrego under the Alien Enemies Act to seek out, and his exercise of his sort of rights to challenge that. Then the very same day that Kristi Noem made a statement that Abrego was arrested after his release that he's a––Kristi Noem stated that he's a known MS-13 gang member, trafficker, domestic abuser.

And the same day, Todd Blanche stated that the government had started investigating Abrego after a judge in Maryland, who is Judge Xinis, questioned the government's decision.

So this is sort of the background on the government's actions. First deportation, and then in June, after his release opening in a criminal investigation that led to his indictments. If I recall correctly, that the like local head of the criminal division in the middle district of Tennessee resigned.

That doesn't come up in the opinion, but I guess we'll get to whether it might come up in discovery. So then the court sort of analyzes all of that context of what the Judge Waverly Crenshaw breaks down is actual vindictiveness versus implied vindictiveness.

And I think the actual vindictiveness is what he sort of locates in those statements from Noem and from Blanche, and basically saying that the deputy attorney general statements sort of raised the suspicion, yeah, could directly establish the motive motivations for Abrego's criminal charges stemming from his exercise of his constitutional and statutory right to bring suit against the executive defendants, and that that was pretextual rather than a genuine desire to prosecute him.

And then basically along the same lines, there's a concept of presumptive vindictiveness where sort of like a reasonable third person viewer would look, infer it from, exactly, the situation.

Benjamin Wittes: Yeah. And so, does it conclude, I take it it doesn't throw the case out. It grants discovery on the question.

Andrew Steele: That's exactly right, yes. So that's where, that's where things stand.

The conclusion is that Abrego has carried his burden of demonstrating some evidence. The prosecution against him might be vindictive, and that without further discovery, the court cannot move forward. So, the government could produce evidence showing legitimate reasons.

I'm interested to see how the Justice Department official’s resignation plays into that discovery or whether it would involve, like, depositions or discovery from, from Todd Blanche himself. So yeah, that's where it's at. It seems like it's a win for Abrego alongside what might not have been in the other decision today.

Benjamin Wittes: And a win for Jim Comey as well.

Yes, indeed. I, you know, these motions very rarely proceed past, get past this stage. And if you're contemplating filing one, having a judge in the middle district of Tennessee, say, grant one or grant discovery in one based on the behavior of Todd Blanche, that's a, you know, going to be a boon to the people who are writing another motion. And they're going to be reading that very carefully.

Thank you, Andrew. All right. We got a few more cases to go through. It's time to play our favorite weekly game show, Who Wants to Dismantle A Federal Agency? And our contestant this week is Eric Columbus, who is going to be firing lots of people using the shutdown as an excuse. He's going to be RIFing them, in the parlance of our time.

And he's got a problem, which is that the American Federation of Government employees has sued to stop him or stop the administration from shutdown-oriented RIFs. I got the same question I've got about all these cases about this, which is standing.

You know, it's a––this is a union suing to stop something that hasn't happened yet and that we don't know if it's going to happen. Why should I take this seriously at this point, Eric?

Eric Columbus: So, the union is the American Federation of Government Employees, which is, you might guess from the g in their name, has folks in the federal government who may be affected by a reduction in force.

And at this point, it's, they filed a complaint, I think it was on Tuesday. And they have not done anything else yet. They have not asked for TRO, they have not asked for a preliminary injunction, I think in large part because there have not been any actual reductions in force yet related to the shutdown.

What has happened is that OMB sent a memo to agencies in the waning days of the fiscal year, by which I mean, I think either Monday or Tuesday, instructing them to consider reductions in force for employees in programs that lack funding due to the shutdown and that are, quote, not consistent with the president's priorities.

And what the plaintiffs are arguing is that the work necessary to do the reduction in force process which would be conducted by people who are not themselves RIFed is not covered by any exceptions in the Antideficiency Act, with regard to what you can do when there's a lapse in appropriations.

So to back up, the Antideficiency Act is a statute, a longstanding statute that says that more or less you can't spend money that Congress has not appropriated. And interpretation of that statute is why we have government shutdowns. The Office of Legal Counsel has said, you can in fact do work that is necessarily implied by other statutes.

For example, social security funding is not done pursuant to yearly congressional author appropriations. It's done out of the Social Security Fund, which it comes from money that we have paid into it, and is legally allowed to happen and it mandated to happen regardless of whether there is a lapse in appropriations.

So then, that then raises the question of like, well, these checks don't go out by themselves. There are human beings who are responsible for the bureaucratic tasks that require, that are involved in that process. And therefore, it is a necessary implication of all the other statutes that, say, social security checks are supposed to go out the door.

It's a necessary implication of that, that you have to have people, humans involved in that process. So when what the government is, is saying basically is, is that this––the work needs to be done for to implement a reduction in force is fairly implied by other statutes. This is really kind of, terra incognita in that it has not come up in, during previous shutdowns.

As we have seen, this administration is eager to, to take any opportunity to reduce the federal workforce. We've a––despite the president being the same as the president during the last long shutdown in I believe, 2019 his rhetoric is very different than it was then about the value of federal workers who are, whose jobs are being threatened.

And that's, I think many people would say largely the effect of the fact that he has given such prominent roles to people like Russell Vought, who is the head of the Office of Management Budget, and who has previously said in 2023 as a private citizen, but as someone who's very much in the Trump circle, that the goal should be to quote traumatize federal workers as much as possible.

It's an interesting symmetry between what the government is trying to do to undocumented immigrants to what they're trying to do with federal workers, trying to get people to leave by attrition, either leave the country or leave the government.

Nick Bednar, who is a professor at the University of Minnesota and a, if you will, kind of a hero of the republic over the past year, he's a professor who studies public––the role and the law of public employees––has written two pieces for Lawfare just this week on reductions in force during shutdowns.

And I can't improve on his analysis, he concludes that it's very difficult to predict what might happen, but that the government might well prevail on the theory that the go agencies need to prepare for the possibility of what life looks like when the government reopens if the government reopens at a much lower level of appropriations than what has previously been appropriated. In that case, then these RIFs could be considered to be very necessarily implied by other statutes.

He points out, however, that, procedurally, RIFs are very hard to get right, and that it is quite possible that the administration will mess it up in some way, and then maybe confronted with the fact that when appropriations are resumed that employees who have been RIFed get sent to the front of the line in terms of hiring and they may need to rehire some people who they had RIFed under this process.

Benjamin Wittes: Alright, one federal employee who had a good week was Lisa Cook of the Fed, who got a––I don't know, is it proper to call it a stay of execution from the Supreme Court? Which they issue, you know, pretty rarely. Her dismissal––they have now granted cert in her challenge to her dismissal for alleged mortgage fraud.

And they have done it with––agreed to hear the case, I believe in January and said she can stay on while they do it. This is the opposite of what they usually do, which is to say, you know, we're not going to hear something, and the administration can do whatever it wants in the interim.

So, am I right, Eric, to look at this as a pretty good sign that there are five votes in on the Supreme Court for the idea that Bill Pulte saying ‘you committed mortgage fraud’ is not cause for dismissal of a Fed governor?

Eric Columbus: I would say it's more likely than not, I would not bet any sums of money that I would be reserving for my kids' college education or for a mortgage or even for a decent sized education.

Benjamin Wittes:  No, we're gonna keep mortgages out of this.

Eric Columbus: Well, yeah, I don't, fair point.

Benjamin Wittes: Don't go there with the mortgage.

That's a fair point, because you bet your mortgage on it. Then you'll be accused of mortgage fraud by the Federal Housing Administration.

Eric Columbus: Yes, that's s very fair point. So this is my fourth consecutive week discussing the Lisa Cook case. And I enjoy it. And I won't go rehash it again, as I did the first three times, but this is the, the area where the Supreme Court has attempted to carve out some protections for the Fed from the, its general soon-to-be-formalized rule that the president can fire basically anyone, even if they have for-cause protection, that those statutes are invalid.

And in the, this will be an, an overruling of the Humphrey’s Executor case and the legislation in which this is the––sorry, the litigation, which this is, has come up, is a case called Slaughter, which will be argued, in which the Supreme Court has basically said in every other, in all these cases, they've let Trump fire the person temporarily pending resolution of the case in the merits.

The Slaughter case is going to be argued in December, and I would bet my kids' college education on the fact that they're going to overturn Humphrey's Executor and allow the Supreme Court––allow Trump, rather––to fire, to tear up for-cause protections for presidential appointees.

But in Slaughter, in their brief order lifting the stay in the Slaughter case, they had dicta saying, oh, well, but this doesn't apply to the Fed, because the Fed is special for reasons that no one really thought––

Benjamin Wittes: Nothing to do with, it's old and it has to do with the National First Bank of the United States. And by the way, it would really suck if the president could fire Fed governors, right?

Eric Columbus: Basically, basically that. So then Trump said, well, okay. Fine. I will fire––guess I'd have to fire her for cause.

Benjamin Wittes: Sorry. I get, by the way, you guys are all fired for, cause it's, it's you know, mortgage fraud. It's the only way

Eric Columbus: So Trump said, fine. You want me to fire you? Say, I can only fire her for cause.

Fine. I'm firing her for, cause she's a, she's committed mortgage fraud. And it has since emerged that, you know, quite likely, she has not committed mortgage fraud. I'd be shocked to realize that the Trump administration may be playing a little bit fast and loose to the facts here.

And basically, what's going to happen, what the Supreme Court then said, is that just this week after it was all briefed, we are going to hear this case, the oral argument, in January.

So this is probably a good sign for Lisa Cook. However, Steve Vladeck has pointed out that there have been only like four cases where the Supreme Court has agreed, has moved something from the shadow docket––or, let me rephrase, that has decided to hold oral argument on, on the shadow document, on a case in the shadow docket.

And in all four of those cases they wound up overturning the lower cou––the lower court's opinion. I believe so. It's, you know.

Benjamin Wittes: we gotta be careful with that.

Eric Columbus: So it's still anybody's guess as to what might happen. This is probably, this is a good sign for Lisa Cook, but there's still a lot of, we're in, you know, maybe the fifth inning.

There's a lot of ballgame left to be––

But at least we don't have to talk about Lisa Cook next week, right?

Eric Columbus: Yes. I'll be struggling to find something to talk about, but luckily there have been, I think, literally four cases, one of which we've discussed already, that would Lawfare Live-worthy, that have been decided since we began talking at four o'clock.

Benjamin Wittes: Alright.

Finally, Roger, it's been a banner week for the politicization of the Justice Department. We've got a bunch of stuff. Let's tick through 'em. We have new grand juries and guess where: in Fort Pierce, Florida.

What do we know about that? How, what crimes have, you know, been committed recently in Fort Pierce that you would want a grand jury there?

Roger Parloff: So we don't know a whole lot about this and so, but I just wanted to put it on the radar screen because Mike Davis put it on the radar screen.

He's a conservative activist who's very well-placed for things going on in the Trump administration normally. And he broke, I think, the news that the Southern District of Florida U.S. Attorney had opened two new grand juries, one in Fort Pierce and one in Fort Lauderdale.

And the very fact that Mike Davis was tweeting that as something important suggested that this might have something to do with either the Mar-a-Lago investigation or the special counsel's team, or, but we, we really have zero, I have zero information on that.

I just wanted to put it on the screen.

Benjamin Wittes: Yeah. I will say it almost certainly means something, and it almost certainly means something bad. That's, I think, all we can say about it. Meanwhile, speaking of bad things, we have an ongoing bloodletting among prosecutors in the Eastern District of Virginia.

I think we've lost three so far, including Jim Comey's son-in-law, but they're, it may be four. How, what do we know about who they are? Roger?

Roger Parloff: So, the new ones that I've learned, of course, Erik Siebert was pushed out or whatever happened there, the U.S. attorney, right?

Benjamin Wittes: I'm, I don't count political people but I'm talking about the career people.

Okay.

Roger Parloff: This week we learned of Maya Song, who is Siebert's top deputy, and also I think Wednesday, Michael Ben’Ary––

Benjamin Wittes: Both of whom I believe served under Lisa Monaco in the deputy attorney general's office. Is that right?

Roger Parloff: Certainly. I think that's true of Michael Ben’Ari. Maybe both.

Benjamin Wittes: I think Maya did as well. Although don't hold me to that.

And neither of them, to your knowledge, had anything to do with the non-pros decision that was then overturned with respect to Comey, right? Neither of them were of them involved in the case.”

Roger Parloff: I––one, you know, right-wing influencer apparently said so online.

But I don't know that that makes it true. There was also, I think there was right-wing influencer activity relating to the Lisa Monaco connection.

So, but he was the top national security official in the office, right?

Benjamin Wittes: We don't want national security prosecutors in the Eastern District of Virginia. That's, you know, you never know what they can get up to.

Roger Parloff: Yeah, he's the lead prosecutor on a case that is set for December.

And it's a big case. It's the alleged plotter of the terror attack in Afghanistan that killed 13 American servicemen during the withdrawal and 170 Afghans. Mohammed Sharifullah.

So, that cannot be a good thing for the office to lose the top guy on that case right at the moment.

Benjamin Wittes: All right. Meanwhile, down in the Eleventh Circuit, in the blast from the past department, there is our mandamus petition seeking the release of volume two of the Jack Smith report.

Remember all that? Volume Two is the volume that deals with the classified documents case. Roger, am I wrong to be exceedingly pessimistic about the likelihood of success of this case?

Roger Parloff: Well, it depends how you measure success. I think there's some interesting things here.

So, yeah. Two nonprofits, the American Oversight Group and the Knight Foundation, have been trying to lift Judge Cannon's order from January, I think it's January 21st of this year, indefinitely keeping that entire report under wraps.

What happened was––and you may remember, she was a, she regards herself as sort of a stickler for Southern District of Florida local rules. And there is a Southern District of Florida local rule that says you're supposed to rule on motions within 90 days.

And, if you don't, the movement is supposed to compile a notice to remind you to move, to rule.

And so each of these people waited 90 days, nothing happened. They filed their notices and then another 90 days passed. 180 days with no ruling, no denial. And I just have to ask, you know, what non-political reason would there be to just let it sit there?

I mean, how is that not an act of political loyalty? And I, you know, we remarked before that there were things about the way she handled things that we thought were odd. And maybe as a result, you know, a lot of conservative professors came to her defense and said, oh no, she's fine, judge, we're, we're just biased?

How do you explain this? What is that, other than just, you know, delaying this as long as possible. What I think will happen, obviously now that there is a mandamus she'll rule, she'll deny it and that will be appealed.

But she will have delayed the whole process 180 days. Now, down the line, you know, as long it's up to Pam Bondi, I think, whether to release it, unless you–I don't see how, I don't know if a Freedom of Information Act you get around the fact that it's normally it's up to her––she has discretion.

So it's not coming. I don't think it's coming out during the Trump administration, but I still think it's an interesting thing that happened here.

Benjamin Wittes: Yeah, I, look, I mean, the Knight Institute folks, I––back, I want to say, like nine months ago at the, when they were contemplating this, I actually consulted a bit with them about it.

And I think it's a completely righteous case and it is outrageous that we have a president who handled classified information in this fashion and has managed to bury it with the assistance of a federal judge. I mean, it's very it's really, really upsetting. And I, and you know, and is now going to supervise the indictment of John Bolton over what will surely be less outrageous handling of classified information.

And so, you know, it's a, it's a grotesque thing and I, I really wish the petitioners well on this. I wish I were more optimistic about the likelihood of success, but I, it is a very righteous case.

Alright, two more cases to get through. Lindsey Halligan has not yet been disqualified as U.S. attorney in the Eastern District of Virginia, but the U.S. attorney for Nevada has been. And that brings, I think, to two, after Alina Habba in New Jersey, the running count of U.S. attorney disqualifications.

What do we know, Roger, about what happened in the great state of Nevada? Wait, you need to unmute yourself.

Roger Parloff: Not enough is the answer. I don't know enough.

I, this is one that sort of escaped me. I, I do assume it's another Alina Habba analysis. And I think we have another case brewing against the Los Angeles U.S. attorney, Bill Essayli.

And you remember James took us through the very rather tortured analysis of what happens to U.S. attorneys and what should happen and so on. But I don't have much, I don't, I don't have that one.

Benjamin Wittes: Alright, finally, we have a no true bill in another grand jury matter. And this one has a twist, which is that the U.S. attorney here in the district decided, okay, I know how to get around this, because I'm also the local prosecutor. So I will go across the street to superior court, or across the square to superior court, and indict the same case in a different court.

And for reasons I just can't imagine, that sort of pissed off the magistrate judge. So, what do we know about what's happened here?

Roger Parloff: Yeah. There was an article in the New York Times about it by Alan Foyer. And it's sort of a routine case. It's not a––it's a rou––you know, it's a drug possession. I mean, it's a firearm possession case.

It's not a politically sensitive thing. It's not throwing a subway sandwich at an ICE guy or something like that. But they couldn't get an indictment. He had been in custody and they had to release him. And the prosecutor––this was in the, before the federal grand jury, and so the prosecutor did go to the Superior Court grand jury, which you can do in D.C.

You, there is no other place. I don't know, maybe in Guam, but you know, there is no other, state where you could do this. And went before the Superior Court and did get an indictment and brought it to the magistrate judge.

And the magistrate judge was angry, Zia Faruqui, and wrote an angry decision. And then just today and rejected it and said, but no come back and tell me why you did this and, and we can talk about what, but I've never seen this done. I––we did it during COVID because the federal grand jury wasn't sitting, but that wasn't a situation where, you know, the federal jury said no, and you went around the back and there were other federal grand juries you could have presented it to.

Now, the interesting thing is, why would it be easier, you know, two blocks away? I mean, it's the same. It's a D.C. grand jury. What––and I, so I don't know the answer to that.

I think, you know, it could be that there's something about this federal grand jury that has become hostile to this U.S. attorney's office. I don't know if that's personalities or past practice, but anyway.

Jeanine Pirro’s office came in with an 18-page motion today, emergency motion to set aside Judge––Magistrate Judge Faruqui’s order. Went into James Boasberg, he's the chief judge, and they had a hearing at 2:30 and I couldn't attend because I was listening to the Oregon hearing. So I don't know where that is and how it's going to be handled. The papers from the U.S. attorney, I have to say, were sort of convincing.

I haven't seen the other side as far as there is a mechanism to do this, and it sounds like it might be mandatory for the magistrate to accept it, but it does all also sound like, I don't know that this has ever been done before as a way of circumventing you know, a federal grand jury that's hostile to you.

Benjamin Wittes: Alright. We have one question in the queue, and it is from Dexter. Dexter, the floor is yours.

Dexter: I just want to understand the reason why we're not freaking out about the fact that federal money wasn't spent––appropriated by Congress, and from my understanding that money is gone now. So why even pass a budget bill? Why even shut down the government?

My wife works for the federal government, so I, I don't understand why we should just pass it because he's just going to say, next year, I don't want to, I don't want to do it anymore. And the Supreme Court has basically allowed that.

I'll leave that to, to the discussion.

Benjamin Wittes: So I have a few thoughts on this, and then if anybody else does, feel free to add on.

So the first thing is, when you say why we're not freaking out about it, a lot of people are freaking out about the the impoundment issue. And there was a lot of litigation about it, both in front of Judge Ali and in the National Endowment for Democracy case, which was actually successful.

The, so I mean, what I think is fair to say is that the Supreme Court is not freaking out about it, at least not in the sense of doing anything on the emergency docket about it. And they did allow the pocket rescission to happen. They did not say that the pocket rescission was legal, by the way.

And so I think you actually have a kind of complicated picture that basically looks like, as long as there is a Republican Congress that won't do anything about a pocket rescission, the Supreme Court is not going to intervene on an emergency basis. But it has not said that a pocket rescission is lawful. And I do think the picture would change pretty dramatically if you had Democrats in control of one of the houses and could vote down the pocket rescission in a timely fashion.

Dexter: If I may, Ben, can I ask the question please?

What is functionally the difference if they, if they do a pocket rescission, but the Supreme Court hasn't said that it was lawful then?

I'm struggling to understand what the difference is. They've literally done the thing they wanted to do.

Benjamin Wittes: Yeah. So there's a big difference between the two, and it is that in one case it has been validated, and in the other case, it has simply not been stopped.

And there are other mechanisms that you could imagine that one might use to stop it, just not in a situation in which the part you have unified party control over both the executive and legislative branches.

But for example, if these––if these appropriations had been clearer, not grant–– basically, not appropriations for grants that had not been assigned, but appropriations that affected particular individuals, those people would have standing to sue, much like the National Endowment did.

And they got their money, right. And so I think it really matters on the specific––and of course, Congress can stop a rescission. So, you know, not saying that it's lawful matters, it doesn't matter for this particular incident, right, for the specific appropriations that went forward here, I don't think, you know, the administration wins this round for those $4 billion or whatever it was.

Dexter: And I may eat up too much of your time, but I'll just throw out my last point that that had me mad. I was like going off. The issue is there, is that, okay, so the Taft Act, I guess, puts them into a contract legal negotiation, and that's what the Supreme Court said you need to do. But then the money's no longer available, now that we're in a shutdown. And I mean, I just don't understand––like if you were a lawyer, like, because I don't believe this is a Trump thing. This is Russ Vought, and I think he knows that if you are a lawyer litigating this case, it doesn't matter because I can just do this.

He intentionally submitted the rescission based on the timeline that he knew would not, you know––

Benjamin Wittes: There is no question that would violate the law. There's no question that it was dirty pool and I, you're not going to get me to defend it.

You're not going to get me to say that it's okay. I'm merely saying that it is different from the Supreme Court affirmatively okaying it. It’s more passive than that.

Roger, you get the last word today.

Roger Parloff: I just want to say, I, I am freaking out about this and it, it may be that I'm, I'm, I, I might have this wrong, but that that ruling, the emergency ruling from the Supreme Court in the AVAC case, it said––the application, it said the government at this early stage has made a sufficient showing that the Impoundment Control Act precludes respondents’ suit brought pursuant to the APA.

Precludes it. It is not like it precludes the $4 billion claim. It precludes all of it.

And I think what they're saying is this notion that I think is pretty crazy, and I––that the Impoundment Control Act, which was meant to strengthen Congress's hand against the executive actually cuts its hands off. That unless the head of the GAO brings a suit, which I––isn't gonna, there's no other way to challenge these things anymore. And that seems to be their tentative ruling.

It, granted, it's only a stay. But it's, I, yeah. I, I'm freaking out about that.

Benjamin Wittes: With Roger freaking out, we are going to leave it there. Loren Voss, who dominated the first 25 minutes of the show and has been a silent presence ever since, Eric Columbus, Roger Parloff, thank you all for joining us today.

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