Lawfare Daily: The Trials of the Trump Administration, Sept. 12

[Intro]

Michael Feinberg: You need to resign. If not, come Monday, we will fire you and you'll lose your pension and your benefits. Or maybe we'll just transfer you to Huntsville, Alabama, where the FBI maintains a campus.

Benjamin Wittes: It's the Lawfare podcast. I'm Benjamin Wittes, editor in chief of Lawfare with Lawfare Public Service Fellow Michael Feinberg and Lawfare Senior Editors Scott R. Anderson, Roger Parloff, Anna Bower, and Eric Columbus.

In the September 12th episode of The Trials of the Trump Administration, we talked about the Supreme Court’s staying of multiple lower court orders, including on immigration enforcement and the cancellation of foreign aid funds, a federal appeals court upholding E. Jean Carroll's defamation judgment against the president, the politicization of the FBI, and so much more.

It is Friday the 12th of September, 2025. It is 4:00 PM in Washington, and I am here with Roger Parloff, who is back in Washington from his stint as a maquisard in the Jura in France. Roger, welcome back.

Roger Parloff: Thank you, Ben. Good to be here.

Benjamin Wittes: And Scott R. Anderson and Anna Bower. Our, our redoubtable senior editors are here with us as well. Hey guys.

Anna Bower: Hey hey.

Benjamin Wittes: And we have two new faces on Lawfare Live this week: Lawfare’s newest senior editor, Eric Columbus, is here with us. Hey, Eric. Howdy. So, Eric is has written for Lawfare before. Some of you know his byline. And many of you, I suspect know his first Twitter and then Bluesky presence.

He is a former Justice Department lawyer, a former lawyer for the House of Representatives, and a general man about legal town, and the newest member of the Lawfare team. Eric, welcome aboard. And we are gonna be joined later in the show by the estimable Mike Feinberg, who I don't believe has ever been on Lawfare Live, but needs no introduction to this group, has been on Lawfare programming before.

Mike is our newest public service fellow and comes to us from the FBI. And we'll be talking various FBI things. But that is all later in the show, because we are starting with tariffs.

You know, sometimes you guys complain that we don't give enough attention to the tariffs case. Well, today we're leading with it. Scott, the Supreme Court has yanked the tariffs case. Granted expedited review. We're gonna, it's gonna be the fastest thing ever. What's happened? What do we know and what does this say about where the justices may be on the federal circuits striking down of the use of tariffs for purposes of IEEPA?

Scott R. Anderson: So, it's an interesting development. Not at all unexpected. I don't think anyone that has been following these cases––and there's two separate lines of cases, technically, there are a few others, but there are two main ones that have kind of come to fruition alongside each other––V.O.S. Selections in the federal circuit, which came outta the Court of International Trade, and Learning Resources in the D.C. Circuit, which came out of district court in the, in D.C. federal court.

V.O.S. Selections, we saw an opinion we talked about, I think, two weeks ago now, in from the federal circuit, which chose to hear the matter en banc, meaning they jumped right to the en banc phase, basically rejecting the proposition that the pres-, IEEPA gives the president the authority to install tariffs of the scope he's installing them.

He accept–they suggest that some tariffs may be permissible, but not the scope under which he's installing them, either under the worldwide tariffs or under the fentanyl, country-oriented, country-specific tariffs on Mexico, China, and Canada that were challenged separately from the global tariffs.

Now, what's notable about this, the D.C. Circuit––the D.C. District Court, excuse me––had reached a similar conclusion, but on a different basis. They actually said IEEPA doesn't authorize tariffs at all as a statutory matter. And notably the two courts had reached contrary jurisdictional conclusions, Court of International Trade and the federal circuit concluding, yeah, we actually should hear any challenges to this action exclusively in our court because they relate to tariffs.

The D.C. District Court said no, actually, CIT––Court of International Trade––does not have exclusive jurisdiction under a statute over this because in fact, this is a challenged IEEPA action and IEEPA doesn't authorize any tariffs. And that was their, their substantive conclusion, their merits conclusion.

IEEPA actually is excluded from rev-, authorizing tariffs whatsoever, and therefore no challenge to it can be exclusively vested in the Court of International Trade by a statute that says, any statute relating to tariffs––challenges to a statute relating to tariffs––has to be in the Court of International Trade.

It's a very unfortunately worded jurisdictional statute for this particular dispute because I don't think anyone knows what the right answer is. The Supreme Court's gonna have to decide 'cause there has to be one when you have exclusive jurisdiction or not. So is inevitably gonna find its way before the Supreme Court.

What's a little novel about this is that people may recall after the district court decision in Learning Resources, the private parties there actually petitioned the Supreme Court for certiorari before judgment, basically saying, let's just go straight to the Supreme Court on this now, this was months ago. And the Supreme Court's been sitting on that request.

Now we see the V.O.S. Selections decision come in two weeks ago. Oh, and notably, I should say, the Trump administration opposed that request at the time. Now we have the V.O.S. Selections decision, which is contrary to the administration. The administration very quickly petitions for cert and says, let's do this on an expedited basis.

You can read this as being some tension between the two. And I think some people will and have read this as the court showing some deference or favoritism towards the executive branch on this particular issue––because, of course, they ignored, ignored the request for expedited hearing from the private parties, but granted it very quickly on behalf of the government.

And then technically they did grant Learning Resources’ request as well. So we're gonna hear both cases together at the same time in November. I think this is more a reflection of how the Supreme Court usually approaches these things. They're super, super, super reluctant to grant cert before judgment ever.

And they are usually, usually highly deferential to the executive branch in foreign relations and national security cases––which this arguably is, at least a foreign relations case––in particular, but also generally deferential to the government generally on whether to hear matters at all, whether to grant cert and then the scheduling of those matters, how urgent they are, how they bear on policy matters.

And the Trump administration was not shy about saying, look, this V.O.S. Selections decision is interfering with our policy, even though the actual, you know, tariffs remain in place because the outcome of that decision was stayed by the court pending appeal. They say it’s––

Benjamin Wittes: But they're, they're right about that. Right. I mean, it stayed for a few weeks or until October, but you know, their entire revenue strategy and their basis of interactions with entire swaths of the world is based on the ability to, for the president to wave his magic wand and impose tariffs. I, I mean, in so far as they have a foreign policy, it's to threaten tariffs against countries, right?

So they're, they're not wrong. That, I mean, if, if you build a foreign policy on this deranged basis, you do––one thing you do get to argue to the courts is that this has foreign policy implications,

Scott R. Anderson: Right. Maybe I, I see a contrary argument here, which is that the actual tariffs were stayed. The court could easily have stayed the tariffs further once it granted cert––if it did grant cert again––it was always gonna have to grant cert in this case eventually.  And then the real question is the expedited procedures. Well, yes, you know, this is arguably disruptive, even though it's not actually disrupting the policy because there's the threat that it will be invalidated the backend.

But I would note that has always been a threat here. No one thought that these were on super sound legal ground to the, to begin with, so insofar as certain actors are calibrating their responses to take into account the possibility that the Trump administration's actions will ultimately be invalidated, they're still doing that.

And I actually don't think this has changed the party's calculus at all. That said, you know, this is the sort of thing the court routinely defers to the executive branch on. I think it's usually for a, on average good reason, even if you can see contrary arguments in this particular case. And I'm not surprised to see the court do that.

This all means we're gonna get oral arguments early in November. We're gonna have briefing on a fairly quick clip, although not super expedited before then. Especially because all these things have already been briefed before. And then I'm assuming we're gonna get a decision before the end of the year maybe even before the end of December. Just in time for Christmas shopping season. So, get ready for at least a little price resolution before you have to buy Christmas presents for your loved ones.

Benjamin Wittes: And how do you game out the voting on this? I mean, at the end of the day, I look at this and I say, you know, IEEPA’s a super broadly worded statute that basically says the president can do whatever he wants in the economic sphere for foreign policy reasons against anybody.

And it, it doesn't say except for tariffs. And I don't see how––except in a very, you know––I, I don't see how a text-oriented court comes to the conclusion that the president does not have the authority to issue tariffs for irrational individual reasons that no reasonable person would see as having anything to do with national security.

And I, I say that just with reference to the actual known philosophical and ideological premises of six of the justices. It's, it's very hard for me not to count to five on this. Do you think I'm wrong?

Scott R. Anderson: I'm a little more dubious of that. I, I'm at least, you know, not confident one way or the other because this is all gonna come down to the major questions doctrine and the scope of the major questions doctrine.

Remember this is, this court signature doctrine, something a lot of conservative justices have bought into. And the basic premise is that when you have a statutory delegation from Congress to the executive branch, and the executive branch uses it in a way that is not expressly or fairly clearly authorized by the statute to, that has broad social ramifications and economic ramifications, then you have to subject that to particular scrutiny and be confident that Congress clearly intended to be able to do this, at least on the global sanctions I think it is, or probably on the global terrorist.

Benjamin Wittes: No, nowhere in our jurisprudence have we ever suggested that the major questions doctrine applies in, in national security matters. Given the broad deference that this court owes to the president in fields of foreign affairs.

Scott R. Anderson: It, it is––that is gonna be the contrary argument. And that is where we saw a portion of the federal circuit come down on this. A bipartisan portion––again, this was not an ideologically split decision in the V.O.S. Selections at the federal circuit––said essentially, look, the minority said, the dissenters said, we think this is entitled to the level of deference you're gonna get. But is this a conventional foreign affairs case? Trade is really different from conventional foreign affairs cases, 'cause the domestic ramifications are huge.

And if you look at the sheer scale of impact about what's being done here compared to other cases the Supreme Court has said fall within the scope of the majors questions doctrine––think about the student loan cases regarding, you know, the COVID-related emergency authorities.

This scale is astronomically larger than anything else that has already been found to fall under the scope of the major questions doctrine. So it really puts the major questions doctrine scope. That's the issue, is how far can we push this? Are we just gonna say, oh, if anything touches outside the United States, major questions doctrine does or doesn't apply?

What I will say is that I'm not sure which way this court's gonna go on where the limit is on the major questions doctrine. I think the fact that there's a trade case, not a sanctions case, makes me think it's more likely it does apply. If this were a sanctions matter, it would be less likely. And if you subject this case and the statutory authorization to the level of scrutiny, the major questions doctrine suggests is appropriate, it becomes a much harder case for the government.

So it really all hangs on the scope of that doctrine and how far it goes. And I will say, I think a lot of the statutory arguments and legislative history arguments, we've seen both lower courts pull in here about the 1974 Trade Act and how we read that in relation to IEEPA, those enter in a lot more when you're looking for evidence of clear intent on the part of Congress.

And they actually do weigh against the government here, I think in a way that we wouldn't normally, in a normally weighted statutory interpretation, but major question doctrine deliberately stacks the odds against the government. And all those factors, I think, will weigh in more. I don't know which ones the Court’s gonna hang its hat on, I suspect the justices won't fully agree on that, but we'll get there.

Now, this is all about the global tariffs. I think the country-specific tariffs specifically related to fentanyl––because they are less about economic policy, even on their face––maybe seeing a better chance of being upheld. The global tariffs are expressly about trade policy, you know, and trade is something that is a, is certainly a foreign relations issue. It's not exclusively a foreign relations issue. So how ‘foreign relations’ does it need to be for major question doctrine not to apply at all or weigh at all? That's a hard question for the Court. The Court hasn't clarified that. It's a new doctrine, we just dunno.

Benjamin Wittes: Alright. Speaking of the Supreme Court, the Supreme Court. Equally unsurprisingly, slapped a stay on Judge Ali's ruling in AIDS Vaccine Coalition. Scott, remind us what the heck AIDS Vaccine Coalition is and how many times it has gone up and down the ladder and what Judge Ali did and why we are so unsurprised that the Supreme Court has stayed.

You think you’re having a bad year, guys? Imagine being poor Judge Ali. So remind us about the judge on the D.C. Circuit, district court who is having the worst year of any of us.

Scott R. Anderson: Well, it is his very first year as a federal judge. Judge Ali was sworn in I believe in January of this year, at the very end of the Biden administration. This is maybe the very first matter held to hearing on happen very quickly.

Benjamin Wittes: It’s the first case he's ever had to hear.

Scott R. Anderson: It’s extraordinary. There's a, a wonderful profile of him and using him as a vehicle to examine the D.C. district court generally, that's facing the biggest raft of these cases in the New York Times Magazine, I think by Emily Bazelon, maybe two months ago, three months ago. I highly recommend it to folks.

He's a very interesting guy. I think he's handled this case very savvily, given that it is a really hard case with genuine questions of first impression––not one, but like several questions of first impression implicated by it. But where we were essentially on this case is that, remember this case had gone all the way to the D.C. Circuit panel where they had rejected a preliminary injunction Ali had issued earlier in the case because they said no, the Impoundment Control Act is exclusive remedy for appropriations violation, and that means the D.C. District Court lacks jurisdiction.

The en banc looked at this on a petition for rehearing and decided not to grant the petition for rehearing, but coincidentally, the panel decided to revise its opinion and effectively change its substantive holding where they changed their holding to say, actually, what we were talking about is just about challenges arising from the Impoundment Control Act. If there is a basis for a claim on another statute like the 2024 Appropriations Act, that can be a separate grounds from which we we’ll have to deal with if the plaintiffs raise that note.

You know what, the plaintiffs did raise that, and Judge Ali expressly relied on that for that prelim-, initial preliminary injunction. Regardless, a legal fiction so that the en banc could avoid having to reverse the panel opinion, which is something the D.C. Circuit does not like to do en banc.

It's very––it's doing all sorts of weird things en banc this term precisely 'cause of this friction between these conservative panels and the conclusions they're reaching and their views and their desire not to expressly rebuke them. Sent the matter all the way back to Judge Ali, who basically then had to issue the exact same preliminary injunction he issued previously, clarified a couple––around a couple points about rescission.

Two, on the basis of the 2024 Appropriations Act exclusively and not the Impoundment Control Act that was put in place on September 3rd. Right before that happened, the government introduced a rescissions request for the majority––not all, but the majority of the funds in dispute in this case to Congress, which has 45 days to process. But this money all expires in less than 45 days, on September 30th. So this is the government trying to implicate what is commonly known as a pocket rescission.

The government has argued, including in this litigation now quite expressly, that if this money is still around and the Congress hasn't acted on the rescission request, once it, the money expires that money will then cease to be appropriated, and therefore we don't have to spend it and we win.

To prevent that outcome from happening, Judge Ali––or from, I should say, mooting the case––Judge Ali had installed a preliminary injunction that said, government, you need to keep working on processing and obligating these funds up until the September 30th deadline, so that if on September 29th we decide you have to spend all these funds, you can do it by September 30^th, and you don't moot out our potential conclusion that you are obligated to spend these funds just 'cause you are not taking the steps to affirmatively obligate them.

Again, it was very mu-, very clearly designed to try and keep everything as neutral as possible so that the courts would have maximum flexibility. But the Supreme Court has stepped in now and stayed that preliminary injunction.

I think three things are possible here in this case, which we don't know which one it is and why the Supreme Court, what it was thinking when it chose to stay this preliminary injunction, which does make it a poss–– raise the possibility that the government, even if it loses, could say, yeah, but we don't have time to obligate all these funds now because we haven't been doing it for the last week and no one's required us to, since preliminary injunction is gone.

One possibility is the government's tipping its hand. The Supreme Court, I should say, is tipping its hand that it's side, gonna side with the Trump administration and that thinks the plaintiffs are gonna lose in this case. That's possible. And so that they're not gonna have to face that outcome.

A second possibility is that the Supreme Court just hasn't fully wrapped its head around what exactly this preliminary injunction was intended to do or why. I found this doubtful because Judge Ali has been very clear about this and is very expressive about it, but I wouldn't rule it out entirely as a possibility.

The third possibility––which I lean towards, but I'm not a hundred percent sure––is that there were two possible grounds the parties raised: one about the court's inherit––inherent equitable remedies. And another about a statute enacted shortly before the Impoundment Control Act, intended to preserve the availability of funds that were subject to litigation at the time. Theparties have put forward, ‘hey, both of these are grounds by which, even if the courts don't resolve this matter by September 30th, the courts can obligate the government to keep that funding available until the resolution of this litigation.’

And therefore we don't actually have to firmly resolve this by September 30th. Judge Ali––very understandably, I think––said, I, I don't wanna rely on those at this stage. Let's just do the preliminary injunction and keep the government working on this.

I suspect the reason they don't wanna rely on them is because they raise clear separation of powers concerns and they've never been litigated by the Supreme Court, even though the D.C. Circuit has suggested that they're both valid––or at least, at least the equitable remedy is valid. I don't recall whether they had specifically waited on the statutory remedy. Well, the statutory remedy in my mind is more persuasive because of that separation of powers concerns. So it's possible the court is tipping its hand instead that it thinks one or both of these remedies are likely available.

If we get to the point that the government loses and the money is, cannot be spent, purportedly, by September 30th, then they will use one of these remedies to say, ‘no, actually the money doesn't need to be spent by September 30th. You've got extra week or two, whatever time you need, government, until we resolve this dispute with finality.’

We don't know which of those that is because the Supreme Court didn't explain itself on this particular matter. We don't know what the basis of it is. Did say that the parties, the private parties, not the government, are intended to file a brief today. I had––did not see it filed last time I checked, but I haven't checked in the last hour or two. And then may get a Supreme Court additional motion on, on all that, they will have to issue some sort of indication before September 30^th, so I suspect in the next week or two we'll have clarity on this

Benjamin Wittes: And how much time, if you, if you imagine that we want, we want the ability for Judge Ali and then subsequent appeals to, on September 29th, say, ‘you must go ahead and process this money and obligate this money.’

How much time does the government need in advance of September 29th to be in a position where it is––where it can comply with such an order? Well, does anybody know the answer to that? We, well, the State Department has actually specifically represented in this litigation an answer, and they said it was gonna take them 45 days.

Scott R. Anderson: Weirdly, the exact amount of time that the, the Impoundment Control Act gives Congress to act on a rescissions request, which I don't think was entirely a coincidence. But regardless, they said, ‘hey, look, we need to start obligating this stuff on August 15th if we're gonna pay it out by September 30^th.’

And they said this actually months ago in this litigation, and Judge Ali has structured his preliminary injunctions all around that timeline. And he really made, he's made this point, time and time again, including a very sharp footnote in this latest preliminary injunction saying the government is complaining about––it's the fact that it is somehow unable to do a rescissions request or a complaining about this timeline.

Now, this timeline is a timeline of their own making. They could have made a rescissions request months ago. They could have sought to appeal my preliminary injunction months ago, which the government actually did not seek to do. They let it stay in place for a very, very long time.

I––the subtext of that, I, I suspect because they were leaning, planning to lean on the pocket, pocket rescission theory, which did not come into play until 45 days out from the deadline. So this is a timeline of the government's own making.

If we take it on their face, their representations, then the time that they have not––for this week, since September 8th, up till today, they have not had to be processing these unless––at least they haven't been compelled to do so by the preliminary injunction––that means they may be five days less of worth, of, of obligated funds that will be available, even if they decide they are gonna lose. And every day that passes, that's less and less and less.

And presumably that is the harm to the government that they sought the stay for. They're gonna say, well, look, the court's directing us how we handle our obligations day to day and directing us to obligate these funds that we may not have to pay out. That's a big waste of government resources.

And the Supreme Court has suggested it's, has been very sensitive to the suggestion that micromanaging an agency and forcing agency to do things it doesn't otherwise have to do actually is a real cost to the government. They've weighed that very heavily. But in this case it could also moot out the argument even on the merits, and that would be a real problem.

That's why I think, I think the Supreme Court has to have––unless it's already decided, hey, this is dead, dead on arrival, the government's in the right on this––I think it has to be open to some of those equitable or statutory remedies. Or else it is, you know, rendering itself moot, because its decision is someone that if it doesn't, even if it decides before September 30th, the government just genuinely may not be able to comply with by its own timeline.

Benjamin Wittes: Alright, we will keep an eye on this. Speaking of things that the audience often reminds us that we need to check in on, the Second Circuit Court of Appeals this week handed down its opinion in the $83 million Eugene Carroll case, upholding the judgment in some contrast to the holding in the, from the appellate division of the New York Supreme Court in the, in Leticia James's suit against the Trump organization. Roger what did the Second Circuit find? And what do you make of it?

Roger Parloff: Yeah, this is as you said, this is the $83.3 million verdict. This is called Trump––I'm sorry, Carol I, Roman numeral one. So this was the first case filed in 2019. And this was the Bergdorf Goodman incident. It was just defamation at this point. She was a––a New York Magazine article came out, which excerpted a, a forthcoming book in which she described this incident in the Bergdorf Goodman fitting room, digital penetration by Trump.

And he responded with a series of––she also alleged penile penetration as well,  but later on, a jury will reject that. Anyway, it, it's filed as a defamation case, but he is president and he––a series of defamatory statements that she is, has fabricated this in order to sell the book for political reasons, for other things.

There's also the line about “she's not my type,” which was not one of the alleged defamations, but it figures in. That’s this case. It's because of a sl––because he's president, there are a bunch of potential problems. And he raises an immunity question called Westfall Act. It goes off and is bounced around in courts for a while, and then Carol II is filed.

That's when the New York, New York State enacts a law in the––after the MeToo movement that permits adult women who have been raped in the past or had other sexual abuse to bring a suit for a window of time. She brought a new suit. He makes new defamations. That's Carol II.

Carol––he's not president by then. It's a simpler case that goes to trial first. That's the $5 million verdict that's been upheld, that was upheld last December by the Second Circuit. And rehearing was denied in June. So this one then goes to trial and it's the big one in terms of money. It's, it's unanimously upheld per curiam. All the judges are democratic appointees, so unanimity may not, you know, mean what it might otherwise mean, given everything.

I, I think the issues that, you know, we need to look at––some of the issues are state law issues. So, I don't think the Supreme Court can get involved on those, and so I don't think we need to really spend much time on them. The ones that are conceivably federal issues, one is the puni––just the size of the punitive damages. It's very unusual. The compensatory were $18.3 million. The punitives were $65 million, so that's 3.6-to-1 ratio punitive, that's very high. The Supreme Court has implied that more than four to one is probably per se unconstitutional.

Sometimes, in some cases, more than one-to-one will be unconstitutional, if it's grossly excessive. The court here upholds it, says the record in this case supports the district court's determination––hat's Lewis Kaplan below––that the degree of reprehensibility of Mr. Trump's conduct was remarkably high, perhaps unprecedented.

He's talking not just about the attacks on her, the nature of them, but that they were continuous over five years. They, they accelerated over time and that nothing could stop them. They went on during the trial and, and so on like that. So, that is the first, you know, conceivable issue that could go higher.

Benjamin Wittes: And that, and that would just be an, a straight 8th Amendment excessive fines case?

Roger Parloff: No, it's a due process. I, I think they replaced––

Benjamin Wittes: Right, right. But eighth excessive fines as incorporated through due process, right?

Roger Parloff: Maybe so. I, I’ve thought of it as a due process––okay. Could be right. I, I'm not sure.

The other is there––he did raise a presidential immunity issue.

Benjamin Wittes: Yeah. Why isn't all this, all this is conduct from when he was president? Yes. Nixon v. Fitzgerald says he should be immune. I don't understand why this isn't a––I mean, the, the opinion seems to imply that it was all waived. How could his people have waived that?

Roger Parloff: Alina Habba was his lawyer at that stage.

Benjamin Wittes: I see.

Roger Parloff: That's––but they, they chose to, yeah. The, the other thing is––

Benjamin Wittes: And for those in the, in the audience who are wondering, Nixon v. Fitzgerald says the president is absolutely immune from civil liability for conduct within the outer perimeter of his presidential duties.

And I would think that responding to allegations of––made in official fora against him is more plausibly within the official duties of the President than, you know, telling Justice Department officials to you know, to try to flip the Georgia election. But, you know, what do I know?

Roger Parloff: I, it's, it's one of those, it's an open question. It was never decided in the, Clinton case, Clinton v. Jones, or––and when the president denies as president something he did beforehand, that obviously has nothing to do with the presidency, is that an official act? And so that's open––and so, and so they, but he never raised it until December 2023, which was four years into the case.

Benjamin Wittes: So the question that the Supreme Court would face really is, is this a waivable immunity, or is it something that––it kind of doesn't matter if you flub it, because it attaches to you and gloms onto you and protects you even if you don't plead it.

Roger Parloff: That's right. And the, and there's an additional issue, which is law of the case. I, because this was actually decided, this––the question of whether he had waived presidential immunity––was decided by the Second Circuit in 2023 when he raised it. It went immediately up and it was decided.

And, in fact, you know, I mentioned there's Carol I and Carroll II in Roman numerals. In Hindu-Arabic numerals, which is where we put the Second Circuit cases, there's Carroll 1, 2, 3, 4, and now 5 and 6. So, Carroll 3, and this is now Carrol 6. Carroll 3 was about this. And so––and he did not raise there some of the clever arguments he's now raising here. Now he, he tries to argue that Trump v. United States changes everything. There was something in there that, that he can use.

Nobody can see exactly what he's talking about there. But there is another case which existed at the time of Carol 3, Helstoski, which was decided in 1979, I think, which has to do with legislative immunity. And it is very, very hard to waive legislative immunity. There has to be, you know, a Speech or Debate Clause Immunity has to be explicit and unequivocal renunciation.

So, that's another. Also––so those are the ones in this decision––also, this same case, there's a separate opinion that came down in August on the Westfall Act too, because he sort of re-raised that, and they rejected that in a separate opinion. That's another, you know, conceivable federal issue here. If, if a higher court wants to reach out and take this.

Benjamin Wittes: Right. So how do you game the cert likelihood of this? It seems to me Trump has, I don't mean to be cynical about any of our justices, but there are two or three at a minimum who will grant him cert on request, depending on whether you count Gorsuch among them or not.

I don't know that I quite know how to get to four on this. It does seem like if you're a Trump sympathetic but centrist or one of the, one of the non-flag-flying or RV-driving justices, it does––you could argue that this is just money and he's got a lot of it, right?

Roger Parloff: Yeah. I, I think that Trump will––he has already sought en banc review on the Westfall question, even though it was unanimous, so I think, you know, E. Jean Carroll is not young and he will delay as long as he can. And so I think he will go through all of these motions.

As far as getting the Supreme Court, it does seem, even, even to me––it seems like, like a long shot. And punitive damages––I, I'm not an expert, but they haven't––I don't, I don't think they wanna revisit punitive damages.  I think Justice Thomas was actually one of the few that did not think there was any due process limit on, on punitive damages. So, I, I don't know. I, I think it's gonna look––it would look so bad to reach out and rescue him from this one.

Benjamin Wittes: I think that's probably right, although God knows looking so bad has never stopped them before. Alright. E. Jean Carroll wins one this week.

Eric, let's stick with the Supreme Court and talk about Vasquez Perdomo, which is the Los Angeles case that had stood for the rather innocuous position that the, that ICE in conducting raids in Los Angeles can, can't do obvious discrimination, like stopping people 'cause they speak Spanish or 'cause they look like they may be, you know, I don't know what an illegal migrant looks like, but I mean, it seemed like the injunction was pretty baseline ‘you can't do obviously illegal stuff that the government claims it's not doing anyway.’

And yet the Supreme Court stays it. So what do we know about what the Supreme Court did here and why?

Eric Columbus: So, just to, to, to back that up a little bit, the district court had entered an injunction that had barred ICE from stopping people where ICE relied on only four factors, either solely or in combination:

The apparent race or ethnicity of the person they stopped; whether the person spoke––the person speaking Spanish or speaking English with an accent; the person's presence at a particular location, like a day-laborer pickup site or a car wash; and the type of work the person does. And so five men in June who'd been in the midst of, of the, the big surge of federal law enforcement in L.A.–– five men who had been arrested by ICE sued, seeking an injunction against, against relying on those factors alone.

And they were joined by a couple of advocacy organizations whose members had allegedly suffered the same, union/worker organizations. The District Court granted a TRO, and the Ninth Circuit panel denied the government's motion for a stay pending appeal. And all four lower court judges were Democratic appointees.

And as we have so often seen, the Supreme Court granted the stay. Gave the back of the hand to the lower courts without any opinion of the court. Justice Kavanaugh filed a concurring opinion and Justice Sotomayor joined by Kagan and Jackson dissented. So there're basically three issues in the case.

First, do the plaintiffs have standing? Second, does it violate the Fourth Amendment to stop people in reliance on those four factors without more? And third, if so, is the scope of the injunction appropriate to prevent future violations? And I would take those in order. The seminal––on standing, the seminal Supreme Court case actually also comes out of Los Angeles, a 1983 case called––the year 1983––called Lyons.  A guy named Adolph Lyons alleged that the cops pulled him over at two in the morning and for no reason at all, at some point, put him in a chokehold. He sued for damages and also for an injunction to say, ‘look, look LA cops, please don't do chokeholds to, to me or to anyone except to prevent death or serious injury.’

And in a 5-4 decision, the Supreme Court said that Lyons lacked standing to pursue his claim for an injunction because it was just speculation to assert that Lyons himself would again be put in in a chokehold. Now the lower courts here in this case concluded that this was a very different case from Lyons.

Because the Lyons––the chances that Lyons would be stopped for, stopped for, you know, pulled over by the cops and then put in a chokehold was quite low. Of those two things happening once. But here, this is very different because there's just a question of the, of a stop. Not a subsequent action. And the, the lower courts concluded that there was a realistic threat that these plaintiffs would be stopped once again, relying on nothing more than the four factors.

One plaintiff had been stopped twice in the span of 10 days, and there was evidence in the record that ICE went back to the same places repeatedly. And, you know, Mr. Lyons at least could try to drive in a way that he would be less likely to be pulled over by the cops. But these plaintiffs couldn't do anything to avoid being stopped by ICE unless they, they chose to just stop going about their lives.

And Justice Kavanaugh, in his concurrence, basically says this, this is a lot like Lyons. And he, just, did not address the, how the lower courts dis-, dis-, distinguished lions. And, you know, these lower courts wrote like 130 pages of opinions to between them and he just, you know, doesn't really engage at all. And Justice Sotomayor's dissent echoed what the lower courts said. That's the standing issue.

The Fourth Amendment issue, then. There is a Supreme Court case––in 1975, the Supreme Court held that, to stop someone for immigration purposes, officers need only reasonable suspicion to believe that someone's here illegally. Now, that's a lower standard than probable cause, and it's the same standard that's used for, say, a stop-and-frisk.

If the cops come up to you on the street and they wanna check to see maybe if you've got a gun or something, it, it has to be specific suspicion about you personally. It can't be, just, can't be generalized. The court also held in that case that the Border Patrol did not have reasonable suspicion to pull over a car when the sole basis was the apparent Mexican ancestry of the occupants.

And basically, the Supreme Court said, look, there are tons of people who look like they have Mexican ancestry, and, but a relatively small proportion of them are, are aliens, or––and who are here illegally. But there's kind of a––in dicta, for some reason, they add another sentence that says, well, you know, the likelihood is high enough to make Mexican appearance a relevant factor. It just can't be the only factor.

Now 25 years after that, 24 years, the Ninth Circuit says, has a case where––a checkpoint in a county where 73% is Hispanic. And the Supreme Court says––sorry, the Ninth Circuit says, where a majority or a substantial number of people share a specific characteristic, you can't use that for reasonable suspicion.

So you can't use apparent Hispanic ancestry, as in the Ninth Circuit, or at least you couldn't, at all, after that case. Where, when you are in an area that is predominantly or very largely Hispanic.

Benjamin Wittes: On the theory, as I understand it, that it's just not probative of anything there because 70% of the citizens or people who are here legally will also have look like they have Hispanic ancestry, whatever that means.

Eric Columbus: Yes. 70% of the residents, the people who might be going through the checkpoint,

Benjamin Wittes: Right.

Eric Columbus: The total denominator. So, the lower court didn't find those fact four factors enough. They noted that about 47% of the Central District of California is Hispanic. As to the factor of speaking Spanish or English with an accent, they said, look, that's far too common.

They had stats that show that, I think, in that district, 38% of residents speak Spanish at home and 55% speak any foreign language. The third factor of being in a specific location, they couldn't find any evidence in the record that that was probative. Even if there are illegal immigrants who could be found working there.

And the type of work, likewise, they found no reason to say that was relevant because types of work, like daily laborers, typically include both illegal immigrants and legal immigrants. And Justice Kavanaugh was, was equally dismissive of these arguments. And, and by dismissive I don't mean that he thought they were stupid, but he, he literally had just one sentence where he basically repeated what the government's case is and did not engage at all with the lower courts.

And said, look, there's a high number of, percentage of illegal immigrants in L.A. They––many of them don't speak English. They, they gather in certain locations to seek daily work, and they often work in certain types of jobs that that are, are specifically attracted to them because they don't require paperwork. And that's it. It was literally one sentence that was a very long sentence, but it was still just one sentence.

And Justice Sotomayor, in dissent, basically unloaded on this, and, and basically said that any Latino who works a low wage job is fair game to be seized at any time––taken away from work and held until they provide proof of their legal status to the agent's satisfaction.

I, I would modify that slightly to say that that applies in the Central District. It's not clear whether it would apply in cases elsewhere, but it certainly might. Sorry, Central District of California. And she, she pointed out that, that the government suggested that they had cases where a workplace was known to have hired a hundred undocumented folks the previous week. And they, they, they might want to go there.

And she said, look, if you wanna do that, knock yourself out. It's not covered by this injunction, because it applies only to those four factors. And if you, if you have additional factors, then that's not covered by this. There's also kind of a, a tension between Kavanaugh and Sotomayor in what these stops are like. Kavanaugh used the term “brief” many times. “Brief” stops.

Benjamin Wittes: Channeling the Terry stop idea.

Eric Columbus: Exactly, yes. Of a stop and frisk. But as Justice Sotomayor noted––and, and there's these, these ideas and the, the record has as evidence of––they're hauling people away and taking them to other locations to check their, their documents, maybe where they have better databases to, to verify or better equipment to see whether a document’s a forgery, and taking them away from maybe half an hour, taking them away from work, presumably.

They, they may not be getting paid for that time. And in some cases, the allegations are that the ICE agents have been rather violent in apprehending people. I mean, and certainly we've seen that in videos all around the country and in some of these allegations here. In this case where, where that––and to which Kavanaugh says, well, you know, look, if that's––that's a separate issue. If you wanna file an excessive force claim, go, you know, deal with that somewhere else.

And so, I mean, this is, this is like just, you know, again, this is what we've seen over and over again. This kind of––sorry, before I get to that, one thing. The last point, which Kavanaugh did not get to, was the scope of the relief.

The government says you can't have a districtwide injunction. It's just like the nationwide injunctions that we've seen that this court has, has, has recently frowned upon. And Kavanaugh did not address that. Sotomayor said it's very different. It's just district-wide. This case is brought in this district, and there's absolutely no way to have an injunction that applies only to the plaintiffs because as the district court put it, it would be a fantasy to expect that law enforcement could and would require whether we given individuals among the named plaintiffs before stopping them.

Benjamin Wittes: Alright. Let us turn to the other big case immigration case that happened this week, which was the Guatemalan children case. Anna, this started in front of judge Sparkle Sooknanan, but it transferred this week to Judge Tim Kelly. There was big hearing on Wednesday. You were there, or you were there virtually. What happened?

Anna Bower: So this is the L.G.M.L. case, which we are now calling the Guatemalan children's case. This is the case that arose over Labor Day weekend when the government in the middle of the night and with only, you know, an hour or two's notice began to make an effort to remove minor unaccompanied children to Guatemala.

That was Judge Sooknanan who put a stop to it, who was the emergency duty judge. But it, now, is before Judge Kelly, who is a Trump appointee, who held a hearing this week on Wednesday on the plaintiffs’ motion for a preliminary injunction, which would potentially, if granted, extend the order to stop these removals while the litigation continues.

There's also, as a part of this, the question of whether a class should be certified. At first the plaintiffs were seeking, you know, just to certify a class that included unaccompanied minor children who are of Guatemalan origin who are in the custody of the Office, Office of Refugee Resettlement, which is the department of HHS that is in charge of the custody and care of these children. However, it has since expanded its request to include, you know, all unaccompanied minor children in the custody of ORR because of developments that occurred a week after Judge Sooknanan entered her temporary restraining order, in which it became clear that the government may have been make taking steps to also remove children who are from Honduras and El Salvador.

So, we get to this hearing on these issues. Roger and I covered it. I am gonna try to go through this quickly because we have so much more to get to. We have a piece that Roger and I wrote that's up on the site covering the hearing. I also wrote a piece in––that really details all the background of this case.

But during the hearing, you know, Judge Kelly, I think, made it clear that he was making an effort to take the government's argument seriously. The government's argument is essentially, you know, even though there is this whole corpus of law that protects these children by put––by stating that they have to be put in removal proceedings, despite that, the government is saying there's a separate authority under the statute that gives the Office of Refugee Resettlement duties and responsibilities with respect to the care of these children.

And one provision says that one of those responsibilities is reunifying children with parents abroad, where appropriate the government is reading that provision as a kind of independent authority to repatriate children to their countries of origin where they have parents––regardless of, you know, whatever the other statutory protections might say related to immigration.

Judge Kelly was taking this argument, I think, seriously and thoughtfully, but as the hearing proceeded, it seemed to me that it was very clear that he was not buying that argument. You know, he had a lot of questions about, where has the government ever made this argument before? Because it, it is quite clear that the government has not relied on this provision before to mass-deport unaccompanied children.

I, I will say that one thing that I get the impression from coming out of the hearing is that. Maybe he has some questions about to what extent he should certify a class and, and to, you know, how broad that protection should be.

But one other thing I will mention that was interesting, coming out of this hearing, before I wrap up, is previously we had Drew Ensign, who is, you know, a well-known figure for our listeners in, in these immigration cases.

He's the guy who was before Judge Boasberg in J.G.G. who allegedly made repre––misrepresentations to Boasberg about flights that were leaving in the AEA case in that––in that, in those circumstances, in, before Judge Sooknanan, he made the representation that all of these children were kids whose parents had requested that they return to Guatemala.

Well, before Judge Kelly, he asks Sarah Welch, who was representing the government this time around, she's a DOJ official who's a former Jones Day corporate lawyer. And so he asked about this, you know, representation that was made, because it never appeared again in the government's briefs. And when he did, she said, you know, I can't represent anything to that effect.

And he said, well, should I treat it as withdrawn then? And she said, I––you––yes, you can treat that as withdrawn. I can't affirmatively represent some––that that is correct. So it became clear that that was not an accurate representation that, that DOJ made before Judge Sooknanan. And then they now, have now walked that back. Roger, you were there as well. Do you have anything to add to all of that and what was your impression?

Roger Parloff: No, I think that that does it, that, that does it justice.

Benjamin Wittes: All right, Roger, we have, a decision in the matter of Yajure Hurtado in the BIA case, which expands the mandatory detention of aliens challenging their removability. I confess I was unaware of a case before the Bureau of Immigration Appeals looking to expand mandatory detention. What on earth is this case and should I have had my eyes on it all the time?

Roger Parloff: Well, this is––and I'm gonna do this broad-brush. This is an important case to immigration lawyers.

And I, I actually have, there have been cases pending on this same issue. This is a big, big shift in longstanding practice. And, you know, the Trump administration has been pushing several enormous shifts, and this is one of them.

This would––you know, some––I'll say “illegal aliens” ’cause that's what the government now says––are subject to mandatory detention. If you catch them, they don't––they aren't––they can't get a bail hearing. Others get a bail hearing. And this just says no, longstanding practice was wrong, almost everybody that enters without inspection is subject to a mandatory detention. It's, and, and, so this would mean people that have been here 15 years, you know, who have never committed a crime, who have children and grandchildren who are U.S. citizens, and they get arrested and, and they're, they can't––they're not eligible for bail while they protest.

So this is a big issue. I’m, I'm gonna sort of leave that one there 'cause it's very gnarly and I'm not an immigration lawyer. And I hope that there is a, a practice advisory that actually came out yesterday by the American Immigration Council about, you know, this case. They say that there are 29 district courts across the country that have rejected this theory, including two since that ruling, which was just a week ago.

So, this will be hotly discussed and there's a, a hotly debated and it's––there's a class action out of the Central District of California. So we'll hear more about it.

Benjamin Wittes: Alright. So we had another decision, this one denying a stay at the D.C. Circuit of Judge Jelani Cobb’s preliminary injunction, in an effort to expand––the theme here is expansion, right? Expand mandatory detention. And here the government is trying to expand expedited removal procedures. So what's going on here? Yes. And, and again, I'm gonna do this broad-brush. I won't do it justice, but actually there are two cases in front of Jia Cob.

Roger Parloff: One is called Make the Road and on late August she is, she––and in both, both of them involve expansions of the use of what's called expedited removal. So, there are two ways to remove people and typically one is called Section 240. That's sort of the normal one that you've heard of, with an immigration judge, an appeal to the BIA, an appeal to the court of appeals.

This one, there's almost no judicial involvement. Expedited removal. And it was originally used––it, it was authorized in 1996. And, and it was originally used, you know, like––you capture somebody 25 yards over the border. Do you give them all the rights that, you know––or can you just take them back to the border, basically?

And, and, but the statute that authorizes expedited removal––expedited removal might take a few days. It might take hours. It could be done in hours. The normal process is weeks and months. But the statute that authorizes it is potentially broader. It wasn't applied broader, but it was potentially broader.

And now the Trump administration, no, we're gonna do it as broad as conceivable, as the statute says. So that would mean anyone who cannot prove they haven't been here over two years and anywhere in the country you could be, you know––and the fact that you can't prove you've been here more than two years doesn't mean you haven't been here for 15.

And you aren't gonna get the procedures to––it's so quick. You may not be able to prove that you have been here two years, even if you have, so these are important. She has tried to stop two expansions. And both are being appealed to the D.C. Circuit. And the government is saying, first of all, that she––obviously that she got it wrong, but they're also using some jurisdiction-stripping provisions, that you can't use injunctive relief for this kind of thing at all. So, these are, these––I think they're important cases. I just wanted to have the readers be aware of them. The listeners.

The other, the other case is called Coalition for Humane Immigrant Rights v. Noem And so we will hear more about those.

Benjamin Wittes: Alright. And yes, I did misname Judge Cobb, who is Jia Cobb, not Jelani Cobb, who is a New Yorker writer.

Alright, Mike Feinberg, let's change gears and talk about matters FBI. Three of your former colleagues have just sued the director of the FBI and others, alleging the––improbably, in my view, that they are so obsessed with their social media presence that it’s getting in the way of their performance of, you know, things like running the federal government.

One of these miscreants is a former acting director of the Bureau. We've talked about him on the show before. Mr. Driscoll. What do you make of this lawsuit and what––more importantly, what should I make of this lawsuit?

Michael Feinberg: This is marking a turning point in terms of how aggressively the senior leadership of the FBI––namely Patel and Bongino, and as of now the second deputy director who I believe reported for work this week––they're really getting more aggressive in their sort of ideological hierarchical purge of the senior executive service ranks of the organization.

What has been happening and what has been widely reported on by people like Adam Goldman over the past six to eight months is that when there was somebody they wanted to push out, they would essentially call them on a Friday, say, ‘you need to resign. If not, come Monday, we will fire you and you'll lose your pension and your benefits. Or maybe we'll just transfer you to Huntsville, Alabama, where the FBI maintains a campus.’

This is the first time we're seeing them actually terminate people's employment, and it's the first time that we are seeing them do so not for reasons of what the individuals investigated in the past, although there is some of that here.

What we're seeing is they are firing people for refusing out––for refusing to carry out personnel decisions that are clearly in violation of FBI policy and clearly illegal. There were a number of line employees under Driscoll and Jensen––respectively, the assistant director of the Critical Incident Response Group and the assistant director in charge of the Washington Field Office, who were believed by Patel or the White House to have been involved in investigations against Donald Trump.

Jensen and Driscoll were told to fire these people. Jensen and Driscoll refused. And so Jensen and Driscoll themselves were fired. The case against Evans is a little bit more nuanced. He appears to have been fired because he was one of the senior human resources executives at the time the COVID vaccine policy was being enforced. But what all three of them have in common is that they have been fired for explicitly following FBI policies that conflict with the directors and the White House's personal wishes.

Benjamin Wittes: And is your impression that––I mean, so far we have seen very few people contest their dismissals. You've spoken publicly about the circumstances of your departure and you're kind of the only one. Do you take this as a sign that other former Bureau people are starting to speak out?

Should we look at this as the thin edge of a larger wedge, or is this three just very egregious cases where, you know, candidly, one of them is a, you know, former head of the Bureau if only for an hour and a half, and did a service under circumstances that were very widely admired in the Bureau. And so has a, a degree of, I don't know if it's––

Michael Feinberg: Political capital.

Benjamin Wittes: Political capital, yeah. Among the workforce that other people may not have. How do you read it with respect to what it says about where others are about speaking out, about taking legal action, et cetera?

Michael Feinberg: So I'll say a couple of things. These three plaintiffs are materially different from everybody else who has left the FBI under what I will politely refer to as strange circumstances, in that they were fired. Everybody else has resigned. They have resigned under threat.

And I'm personally aware of at least a few who have engaged counsel and do plan on going forward with a firing under––with a lawsuit under a constructive firing theory. But in general, if you voluntarily resign regardless of the circumstances, I, I was not an employment lawyer, but the little I explored when I was in my own sort of dire straits, was that a res––

Benjamin Wittes: If you wanna sue, make them fire you.

Michael Feinberg: Exactly. If you resign, you take a lot of your legal options off the table. I do not think this is gonna be the thin edge of the wedge. The people who are getting––basically everybody who is gonna push back against Patel and Bongino is pretty much gone at this point. And the people that are being promoted, by design, are individuals who are not yet eligible to retire and receive their pension.

So you're not gonna see pushback from those people. I have very personal experience in that matter. You know, I think, frankly, Driscoll and Jensen––one of whom I worked under, one of whom I know personally––are people of unusually high integrity and courage when it comes to stuff like this. And I fear their actions are not going to be the norm.

Benjamin Wittes: All right. Speaking of things that are not the norm, we have a Bolton search warrant affidavit that was unsealed and it is almost all completely uninteresting, because it is either stuff that we knew or redacted except for one rather fascinating section heading. And, and that section heading may tell us a lot.

So, tell us a little bit about that section heading and what, what you think it might portend.

Michael Feinberg: I assume you were referring to the section heading that makes explicit John Bolton's AOL account was hacked by a foreign power.

Benjamin Wittes: Yes. And that there is an entire section that is just under that section holding that is all redacted. But this strikes me as a, a highly probative section heading. Yeah.

Michael Feinberg: Yeah. So, it raised a lot of questions for me. But I'll confess this may not be the appropriate venue for them because they are entirely questions of counterintelligence and cyber-investigative techniques rather than pure legal.

Benjamin Wittes: Hey man––

Michael Feinberg: Have at it?

Benjamin Wittes: All right. It's in litigation, it's in a court. We're allowed to talk about it. The boundaries are porous here. Go for it.

Michael Feinberg: Yeah. So, so this is weird. The––let's broadly break down foreign powers into two categories: friendly and unfriendly. And obviously, there's ones who are sometimes one and sometimes the other, but generally you got good guys and you got bad guys.

Let's say that this is coming from good guys, which is not as insane an assumption as it sounds, because the government is giving credence and willing to cite it in a court document. Why was John Bolton's email account being hacked by a service that is friendly enough to then turn over the fruits of that hacking to the U.S. government?

Benjamin Wittes: But should we assume that's what happened or should we––

Michael Feinberg: No, no, not necessarily. There's, there's three possibilities.

Benjamin Wittes: ––assume a hostile power hacked it and we hacked them?

Michael Feinberg: That's one of the three possibilities. The third, the second possibility is a hostile power discovered this and saw that it was in its interests, for some reason, to turn this over to the U.S. government.

And that's not actually as insane as it sounds. Some people in the audience or among the panelists may be familiar with the concept in national security or counterintelligence of a walk-in. And a walk-in is basically when a U.S. citizen walks into a foreign embassy and offers to spy for that foreign country.

What most people don't realize is the most common result of that is that the foreign country notifies the United States even when it's an enemy of ours. There's a whole bunch of complicated reasons for that, but that's generally what happens. And it's entirely possible that this information was discovered by a foreign power, and there were reasons that they deemed advantageous to themselves to turn it over to the U.S. government.

That is unlikely, but entirely possible. It raises the issue of creating a really screwed-up incentive system for how we treat cyber intrusions as a matter of policy, but it's not something that could be taken off the table. The third possibility is the one that you raised, which is a foreign power hacked into John Bolton's accounts and we––or an allied nation, probably one of the Five Eyes––in turn hacked into them.

Now, that is the one that makes the most sense. But I'd, you know, there's a wrinkle there. In order––there's a couple wrinkles, actually. This was not a classified affidavit. There are no banners at the top and bottom, which have been X’ed out. There are no portion markings for each paragraph. So, this was offered to the court under unclassified circumstances, which means this is eventually gonna have to be turned over to the defense––

Benjamin Wittes: Oh, I think we may have lost Mike. So I will, we will take that over and just say that––

Michael Feinberg: ––is willing to burn some sort of, if we hacked into a foreign government or––

Benjamin Wittes: No, you're, you're back.

Michael Feinberg: Okay. So what I was saying is. This is not classified, CIPA is not gonna play a role with respect to this search. And what that means is that we are willing to give up in open court the fact that either we or allies have SigInt or cyber access into a foreign adversary.

I could not stress how rare that is. I don't know that I ever saw us get approval for affirmative use of SigInt––which is what this would be considered, right––in an unclassified case in close to two decades of working counterintelligence matters. The few times we proposed it to the agency that owns most of those techniques, there wasn't even a discussion. There was some laughter at our expense, but this is not something that's usually done.

And what I extrapolate from that is that because this was offered at an unclassified level, there was some very seriously high executive branch approval for what happened. Events may prove me wrong. I could be not thinking of something, but the inclusion of that headline in an unclassified document was really weird.

Benjamin Wittes: Alright, so, let me bounce one other thing off you before we move on, which we have to do. It seems to me, the other thing that headline says is it answers the question of freshness, right? This stuff––everything else was sitting around, that we knew of, other than stuff whispered in the ears of journalists was about a book that Bolton published five years ago now.

Michael Feinberg: June of 2020, I believe.

Benjamin Wittes: Right. So, this is more recent, and presumably what's in those blacked out passages is X Country hacked John Bolton's AOL account, and in that AOL account was the following evidence of classified material that is improperly stored at his house. Is that a fair presumption?

Michael Feinberg: Yeah. This is probably how they got over it. And I don't know, because the use of SigInt in a criminal proceeding is so rare. I'm only aware of one case and it was under very different circumstances. Because it's so rare, I question if this was a recent hacking or if this is an old hacking that got recently processed.

You know, a lot of the stuff that we collect, we don't actually analyze right at that moment. It sits in storage for a little while. Or issues of legal. It gets–

Benjamin Wittes: Or it get processed by NSD under one administration which decides which––

Michael Feinberg: declines to prosecute––

Benjamin Wittes: ––which declines to pursue it further. And then, say a new FBI director who's already, has an enemies list––which is convenient because it helps you know whom to investigate––finds out that there is this disparaging material about a presidential critic. And that is of course catnip.

Michael Feinberg: Yeah. And I just, because this is such a set of rare circumstances, I don't know how that gets over the staleness requirements. There's going to, we're gonna have to have another discussion about this as the case progresses and we learn when the information was collected, when it was processed and or translated and disseminated, and how that might toll what would otherwise be a prohibitive statute of limitations.

Benjamin Wittes: Alright, so I am gonna skip the Charlie Kirk matter because everybody else is covering it exhaustively and it is not yet fully in litigation. But Mike, do you have, before we move on from it, do you have any thoughts related to the FBI's performance in, in that regard that we should talk about before we skip it?

Michael Feinberg: I have a lot, actually, but I'll keep them short out of consideration for the other topics we still have remaining. The first is the individual, the subject who is now in custody, was captured in 33 hours. So I spend a lot of time now critiquing the FBI. I do wanna take a moment to praise the workforce of the Salt Lake City office and the local management there.

I know the SAC, he is a very squared away person of high integrity. I want to also praise local law enforcement, which played a huge role in this. And I also want to, you know, point out that there was a lot of luck involved. The guy turned himself in, it came after information that was revealed, that investigation was divulged to the public, which may have upped the pressure, but a lot of things came together.

And that's a good ending. I'm not gonna address Kash Patel’s tweeting during the investigation other than just say it's anomalous and inappropriate. But other people more eloquent than me have done so. I'm just gonna point out one thing about his behavior that has not gotten any media attention yet.

Anybody who has worked in law enforcement, whether as an investigator or in a prosecutorial capacity, knows, in their bones, from day one, if you have a personal relationship with a victim, that is not an excuse for you to lean into the investigation and take charge. On the contrary, it is something that should mandate your recusal. For Kash Patel to regularly talk about the personal relationship he had with Charlie Kirk––

Benjamin Wittes: ––and we've lost Mike again, but let's just say, I'll finish his sentence for him, is bad.

Michael Feinberg: Is horrible. Yes. That is yet one more huge violation of norms.

Benjamin Wittes: Alright, we're gonna leave it there. Everybody else is saturating on Charlie Kirk. We're gonna do it minimally here. Instead, we're gonna focus on Rebecca, Rebecca Slaughter of the FTC. Roger, explain to us why we should focus on what, why we should talk about Slaughter instead of Charlie Kirk.

Roger Parloff: Well, we, we should only talk about her very, very briefly because that's all the, that the Supreme Court did. Chief Justice Roberts granted an administrative stay. And I think even the, the Supreme Court would agree that that has no weight. It's just until September 15th, which I think is Monday, to get a response.

But this is, she's a commissioner. This case involves two fired commissioners from the FTC, and of course this––so this implicates the Humphrey’s Executor line of cases. We've been looking at Wilcox and Harris and Boyle.

And, of course, this in some senses is the big one because Humphrey's Executor itself involved the FTC. So, we'll we'll be looking to what happened there. Lauren AliKhan, did rule for Slaughter on this. In, in fairness, she ruled back on July 17^th. She gave short shrift to the Supreme Court's stay order in Wilcox and Harris.

But the, the court had not yet issued Boyle, which is where it really got angry about people ignoring its, its stay orders and, and started insisting that stay orders were controlling. So, anyway, that's where that one stands.

Benjamin Wittes: Alright, we have a clamoring in the chat to talk about Lisa Cook and it is the next thing on our list.

Eric, Roger says that Slaughter is the big one, but when I think about the Humphrey’s Executor big one––I mean, there's big one in the FTC sense of overruling Humphrey’s, but then there's the big one in the Lisa Cook sense of, does overruling Humphrey’s imply that that applies even to the Fed? So, it seems like Lisa Cook is really the big one, right?

Eric Columbus: In a sense, yes. In, in part because she is a––doesn't stand alone, but is one of what, maybe 14 governors on the Board of Governors of the Federal Reserve, and could be a stalking horse for whether Trump could fire Jerome Powell or just beyond that––what does, Powell only has what, like a year or at most left on his term––whether Trump could hold the threat of firing and whether any president could hold the threat of firing of any successor to Powell or to any governor on the Board of Federal Reserve.

So, Trump purported to fire Lisa Cook on August 25th, ostensibly because she had allegedly claimed two different properties as her primary residence on mortgage applications––which when you do that, it typically helps you get a lower mortgage rate 'cause you're less lucky to default on your primary residence.

We don't know anything about the circumstances. We don't know if she actually did something wrong. We don't know if, if the facts are true. We don't know whether it was, if she did do this, whether it was just oversight by some her accountant.

What we do know is that the Federal Reserve Act 12 U.S.C. 242 says that each governor has a 14 year term unless sooner removed for cause by the president.

Now, as basically Roger has previewed, and listeners may recall, the Supreme Court has basically blown up nearly every statutory protection for presidential appointees. But in the Wilcox case, it carved out in dicta an explicit protection for the Fed. And stated reasons don't, didn't really make much sense, but the unspoken reasons seems to be that they feel that politically messing with the Fed could carry far worse consequences.

Benjamin Wittes: It's basically that, you know, the unitary executive is the unitary executive, but the Fed's really important.

Eric Columbus: Yeah. something like that. I thought the whole government was really important, but––

Benjamin Wittes: Yeah. But, but, but not like the Fed! I get it.

Eric Columbus: It’s like all animals are equal, some animals are more equal than others in “Animal Farm.” So, now, so the statute allows removal for cause and Cook sued, and she argues mainly that her removal was not in fact for cause and that it thus violated the statute. She says that. She claims––and I'll pause and say that this, every single person in the world would agree basically that Trump's stated reason was pretextual.

Well, it didn't have to do with her mortgage. And that even if it wasn't, it still doesn't constitute cause. She also says that she's entitled to notice an opportunity to be heard before getting fired, which she did not receive. The government obviously disagrees on those points and says that even if she was fired for cause Trump's action is not subject to ju judicial review.

So, judge, this is Judge Cobb again had the case and she looked at the history of the statute, similar statutes and dictionaries to try to figure out what it means to be fired for cause. And she, she knows that generally, and this statute dates back to, to 1913, but then it was removed in 1933, so she focused on 1935 when it was restored.

But she found dictionary definitions to be inconclusive. She knew that, generally speaking, prior statutes around that time limited the grounds to some combination grounds for termination to some combination of inefficiency, neglective duty or malfeasance for presidential removal of agency heads or members. But here, Congress said just for cause.

So Judge Cobb said, well, you know, that's gotta mean something more than inefficiency, neglect, or malfeasance, but it can't mean anything. The president wants given the, the, the Congress's strong desire at the time to insulate the Fed from, from political meddling. So the judge drew a line basically and say, look, it has to relate to in-office conduct. It can't relate to anything that took place before that. Now there's a, a wrinkle there is that the, the judge said, look, it could include conviction and incarceration 'cause that obviously would interfere with performance.

Now, quite tellingly, she did not mention indictment in there. Because is certainly possible that Trump would try to would, would have DOJ indict her, have a grand, have a grand jury seek to indict her, shall I say for this behavior. But the judge implicitly indicated that that would not be good enough.

Benjamin Wittes: Alright, so. So I, we need to, we need to speed through the rest. So we have so what is her status going into? I think there's a Federal Reserve meeting next week, right?

Eric Columbus: I believe it's on Tuesday. And this, we may be talking about this case again next week because the D.C. Circuit said a very, the government appealed D.C. Circuits had a very aggressive briefing schedule, last brief due Sunday. This could be at the Supreme Court Sunday night or, or, or Monday morning. And so we might get a resolution

Benjamin Wittes: very soon. Alright. Meanwhile, speaking of the D.C. Circuit, they also issued an opinion in the matter of the register of copyrights. I assume that is a similar Humphrey’s Executor type of question.

Eric Columbus: Well, there's some wrinkles there. Basically one wrinkle is that, there's a question about whether she is in the legislative branch or in the executive branch, but she works, the Register of Copyrights works for the Librarian of Congress and, but is a presidential appointee. The Librarian of Congress is a presidential appointee, but is generally regarded to be working in the legislative branch, similar to the head of the GAO.

And it's the Library of Congress is a, is a kind of a hybrid organization, right? There's, there's D.C. Circuit case law that says that with some copyright authorities, the copyright royalty Board, I believe it's called, is clearly an executive function, but at the opposite extreme, and don't think there's case law on it.

The Congressional Research Service, which advises Congress is clearly doing the work of Congress and would be a legislative agency. So there's, there's questions about where she, where she sits. And so where did the D.C. Circuit leave it? The D.C. Circuit said, concludes, so the, the, the judge below, judge Kelly said there's no irreparable injury here 'cause at the end of the day, she'll get her job back or not.

And if there's damages, she could get those. But losing your job is generally not irreparable injury. D.C. Circuit said not so fast, this is very different. This is a generally extraordinary situation. Basically because. There are a lot of, there, there are real separation of powers questions because it's not clear among other things, whether she is in the legislative branch or the executive branch.

And if she's in the legislative branch then her firing is arguably unconstitutional because only the Librarian of Congress could fire her. And the she could not be replaced under the Federal Vacancies Reform Act as, as, as the president purported to do. And the facts are a little strange, apparently. She's like still on the job. 'Cause of this, the chaos of everything and the president's kind of apparently not caring much about what happened here.

Benjamin Wittes: Alright, finally, Roger. We have a argument at the Fourth Circuit in one of the DOGE cases, one of Anna's favorite DOGE cases, AFSCM v. the Social Security Administration. Remind us about the underlying Fourth Circuit panel opinion and what happened at, at oral argument.

Roger Parloff: Yeah, this was the this is DOGE penetrating Social Security Administration, getting access to, I, I guess I got all the digital penetration cases. This today. This is 300 million, 400, I just hundreds of millions of the most sensitive personal information, the entire nation.

These poorly trained, poorly vetted DOGE children. And the Judge Hollander in April 17th said that, basically you're hitting a fly with a sledgehammer. Why can't the information be anonymized in essence? This was a fishing expedition. The, the she, she issued a preliminary injunction.

The, the analogous the, the tort that this might resemble is my, my now favorite tort intrusion upon seclusion. And and then on April 30th, the Court of Appeals for the Fourth Circuit denied a stay, but agreed to hear this en banc on June 6th. The Supreme Court inter-, stayed explaining nothing specific six to three you know. Probably six to three, certainly three dissents.

And, and so then it came back and, and, and they had Fourth Circuit had already decided that they would hear en banc. The so this was that en banc hearing on the preliminary injunction. But the problem is, and, and so, but more than half, I would say, or at least half of the argument, which went on for about 80 minutes was not about the substance of the case, but about what do we do after the Supreme Court has already stayed you know, and they said that it's gonna stay in effect no matter what the Fourth Circuit does.

And so some are wondering, well, maybe we just, is I mean, and so there were 15 judges, and of course you can listen to it on YouTube. They don't label the judges. So, and I don't recognize the voices of the Fourth Circuit judges. The Politico did do an article where they identified many of them, but basically they were saying things like, how do we do anything other than reach the same conclusion? Why don't, I mean, we don't know how or why, but we know what the answer is plaintiff surf and if.

And they were referring in particular to the Supreme Court's opinion in a ruling in Boyle, which is the one where they got angry and said they said they were themselves, their ruling was controlled by what they, their stay order in Wilcox. Meaning these things do have impact. And, and so, there were other judges who felt, well, they have an independent obligation to go forward. One was saying, we have 150 page opinion by a district judge after two months of work. And then we have a cryptic, you know, several paragraph opinion with no reasoning which do we defer to?

And the other, and another judge said, well, you know, you deferred to the court above you. So I don't know if they seemed perplexed about what to do. I think they felt almost like they didn't say this, but like, a clerk you know, who's told by the judge, I wanna come out this way, go write the opinion.

And they didn't perceive that to be their job. So I, I don't know what they're gonna do. Some, some brought up unrelated things. This same court, in a similar case, AFT v. Bessent had a panel decision two to one that adopted a weird a, a weird reasoning that actually somebody, one of our participants, regular participant, David Emery had been asking about earlier, and I, I wasn't prepared at that time. But in that panel, they, one of the judges said that, well, in a preliminary injunction case, you, you're, you're, you, you, you, you, you're trying to decide if the plaintiff is likely to prevail on multiple rules, decisions they have and they have to prevail on all of them. You know, standing irreparable harm the merits. And so I'll just read you that ruling a, a, a could.

Some of the judges clearly wanted to just take this opportunity to overrule that ruling, which was in a, he explains it in a, in a, in a footnote, an example for clarity. If plaintiff's on a case had a 70% chance of prevailing on each of five independent issues, but they needed to prevail on all of them to receive relief, then their likelihood of overall success is 75% times five, which is about 24%. So despite being three to one favorites on each issue, plaintiffs are three to one underdogs on the case overall.

So plaintiffs lose I, I think they, it, so one judge wants to take the advantage to, to, to overrule that, even though it's, it's not in this case anyway, it's, it's quite a mess. A lot of people were expressing were venting. And one judge, Judge Wynn, according to Politico, he was also pointing out that you need to write so that the judges don't have amnesia later when a different president is there, he's saying. I, I, if you're going to apply these things equally, there needs to be an opinion 'cause otherwise it's too easy to just rule for Trump and then rule against the Democrat when he takes over. So anyway, that's, that's an interesting argument.

Benjamin Wittes: Alright, quickly, I wanna get through a couple of audience questions. I'm gonna limit us to audience questions that are directly on matters that we've talked about today. So Josh asks in the most optimistic timeline for Eugene and Carroll, when might she get the $83 million? What do you think, Roger?

Roger Parloff: I haven't added it all together. They're good at delaying. I, I, I, I, I'm, I, it seems like at least another year.

Benjamin Wittes: Yeah, generally speaking, look, you have, assuming she does not get cert or on banc review, you gotta give her you gotta give them six months on the cert petition and probably three months, maybe a little more on the, en banc review minimum. So I would say if you, you get, if, if all goes well for her, she gets, you know, $85 million a year from now.

Linda asks, has there been any news of legal repercussions for the murder of 11 people in that boat off the coast of Venezuela? Answer, no. I love it when we do yes or no questions.

Matt asks for Eric, is there not a conflict between Justice Kavanaugh's assertion that the plaintiffs lack standing because they are no more likely to be stopped by ICE than the general public? And his conclusion that ICE may focus is enforce its enforcement efforts on people who share the plaintiff's specific characteristics, ethnicity, language, and occupation?

Eric Columbus: That's an interesting question. I I would rephrase that a little bit. There's, Kavanaugh didn't say that they're not more likely to be stopped than the general public. It just that there wasn't a sufficient likelihood that they would be stopped at all. So then the question becomes, is this decision itself almost like, change the facts such that it would kind of in focus ICE's actions to the point where there would be a reasonable probability of them being stopped again and Justice Kavanaugh would, would, would say no. There still is just a vast pool of people and ICE is not likely to be stopping the same people. Again, even though the record indicates that in one case they did.

Benjamin Wittes: And even though if you're the sort of person who say, goes at to a particular Home Depot parking lot looking for work it and that's a place that ICE hits over and over again. You know, it's, it's not simply a matter of luck who gets who gets stopped. All right, folks, we are gonna leave it there. We only ran 11 minutes over today. Roger, Eric, thank you for joining us today. Thanks also to Mike Feinberg, Scott Anderson and Anna Bower, who all had to drop off earlier.

And thanks to you all for joining us. We will see you next week.

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