Lawfare Daily: The Trials of the Trump Administration, Sept. 26

[Intro]

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

In the September 26th episode of The Trials of the Trump Administration, we talked about the indictment of James Comey, the Supreme Court's decisions allowing President Trump to withhold foreign aid funds and to grant certiorari in the litigation over his firing of independent agency leaders, a preliminary injunction against the removal of Guatemalan and Honduran children, and much, much more.

[Main Episode]

Benjamin Wittes: Hey folks, welcome to this week's Lawfare Live. It is Friday, September 26th, 2025. It is 4:00 PM Washington time. I'm Benjamin Wittes, editor-in-chief of Lawfare here with––and I love it when the titles are all the same so that, you know, you don't have to go through so-and-so-whose-title-is-blah, blah, blah––Lawfare Senior Editors Scott R. Anderson, Roger Parloff, Eric Columbus, and Anna Bower.

Benjamin Wittes: Hello everybody.

Roger Parloff: Hello.

Anna Bower: Hello.

Benjamin Wittes: Alright. We've got a rich agenda today as they say, and we're gonna start not where you expect us to start. We are gonna start with personnel matters in the federal government because, you know, we wanna keep people guessing.

The Supreme Court has, Roger, decided to hear the Slaughter case, which is not to be confused with the Slaughterhouse cases. It involves the Federal Trade Commission, and remind us what the Slaughter case is and why we care.

Roger Parloff: Yeah, this was Slaughter––Rebecca Slaughter was fired from the FTC Commission.

She's an FTC commissioner. And so, and this seems to tee up, her case seems to tee up the direct replay of Humphrey's Executor, which also involved the firing of an FTC Commissioner and whether that's lawful. And so on September 22nd, which I think was Monday or Tuesday, the Supreme Court did grant, they, they, they stayed the lower court order that gave Rebecca Slaughter relief.

So now she is fired or she leaves the commission. But, and then more importantly, maybe they grant cert before judgment, meaning they'll review it, give it a full review which is actually what both she and the government did want relating to the Humphrey's Executor issue. That's exactly what we thought––whether statutory removal protections violate separation of powers, and, if so, whether Humphrey's Executor should be overruled.

They also took a second question, which Slaughter did not want them to take, which is whether a federal court may prevent a person's removal from public office, either through relief at equity or at law. So, very, very broad formulation of the question.

So, at the same time, they also denied cert before judgment to Wilcox and Harris, who are the people that––on the NLRB board that was fired and the Merit System Protections Board who were fired, they had asked that if cert was granted that they could participate. Kagan––the three you would expect dissented. Kagan, joined by Sotomayor and Jackson.

And she said, the majority's emergency stay. As a result, the president quote “may thereby extinguish the agency's bipartisanship and independence.” She thought they should not do this on an emergency docket. She emphasized that Humphrey’s was unanimous and our emergency docket should never be used as it has been this year to permit what our own precedent bars.

Still more, should not “be used as it also has been to transfer government authority from Congress to the President, and thus to reshape the Nation’s separation of powers.”

Benjamin Wittes: I have no doubt and have never doubted since Seila Law that Humphrey's Executor was a dead precedent walking. I am––now, this does not mean it's appropriate to kill it before, you know, in the emergency docket, before it's dead in real life.

But do you have any doubt that there is, that the only real remaining merits question on Humphrey's executor is whether there's a Federal Reserve exception to the new rule, which is that Humphrey’s Ex––that there's no for-cause removal at, so supposedly independent federal agencies. Am I, am I jumping the gun there, or is this, you know, we can, we can pretend all we want that this is an issue in play. But Humphrey's Executor has had an, has needed an executor for some time.

Roger Parloff: They seem dead set on that. I––there might be, it might be that Scott and Eric are actually more steeped in this than I am, but it certainly seemed like that to me.

The, the second question is the one that really scares me, which is, you know, how, how broad is this ban they seem to want to place on ever replacing removals from public office? Which sounds like it goes a lot further than removing principal officers even. So that part really scares me.

Benjamin Wittes: Scott, Eric, do either of you have thoughts on you know?

It––at the beginning of this administration, Scott, you and I had a number of exchanges that basically said the likelihood of the administration winning a case on the merits as opposed to in the emergency docket is going to be, inversely or directly proportional to how high up the official is, right? And how political the official's role.

And you know, if you're Maureen Comey and you have all the civil service protections and you're completely nonpolitical that's a very different situation from if you're an agency head. And the––and that this is actually less about Trump than it is a longstanding ambition of the conservative legal movement, at least when you're talking about independent agencies.

And so my question is, should we understand this as a Trump thing, or just as a kind of natural outgrowth of conservatives being dominant on the Supreme Court? How do you understand this, and how certain are you that Humphrey's Executor is a, is a dead precedent walking?

Scott R. Anderson: So, I'll hop in first, Eric, if that's okay with you. And, and I'll invite you to, to, to follow up. You know, obviously Humphrey's Executor has been on the ropes to say the very least, probably a dead man walking for a long time. I think the question is how far past Humphrey's is dead territory, like with the blast radius from Humph––breaking through Humphrey's is on at least two different dimensions.

But before I get to that, I do think it's worth bearing in mind, the, I think you're absolutely right. Humphrey's Executor and independent agencies clearly is part of a longstanding, ideological preference, dating all the way back to, you know, at least Morrison v Olson even further, arguably. And it's big like a tenet of the kind of Federalist Society school of thought that most of the conservative justices come from––Justice Thomas kind of predates it, right? But like the rest of them are Federalist Society kind of descendants.

And so you're not surprised to see this come up in this sort of context. We saw the logic underlying Seila Law. You saw the logic underlying a couple other decisions the last few years. They'd never gone all the way. And this administration deliberately pushing it and forcing them to go all the way in the direction that they'd already so solidly signaled we're inclined to go this way. The challenge is a––the problem that, as Justice Jackson points out, is they haven't actually gone this far yet.

So it really is really a weird posture. I'm like a little bit bored with some of the criticisms of the emergency docket, just 'cause the court’s so intent on doing it and sometimes there are arguments for the court moving quickly. There's a very valid, valid point here that's weird to use the emergency docket to countermand your own precedent when you haven't actually overruled that precedent.

And not only that, to be snippy and obnoxious towards district court judges who fail to anticipate that you intend to overturn your precedent as they have been a number of cases. It's bizarre and it's unfortunate that that's the route that choosing to take in this sort of place and that may reflect a little bit of a, a Trumpier edge to it particularly around, because here there is this question of saying, well, we still need to work out exactly where the line is.

We know a bunch of these cases are going to pile up. We want to deal with them in one opinion, but in the meantime, we're not gonna just enforce our existing precedent as it is. We're gonna give the executive branch what it wants, even though it's contrary to our precedent.

I think that's a little wild, but this court's doing it. And why? I don't know, but I think that's a fundamental principle there.

The bigger question, the more important question though, is how far does this go beyond independent agencies? We have strong reason to think from––I think it was just Kavanaugh's dicta in Wilcox that it's not gonna go all the way to Federal Reserve Board, at least when acting in their kind of monetary, monetary policy domain, like in the manner of the First and central––First and Second Banks of the United States, which is the historical precedent that he noted there. I think there's reason to believe it's not gonna go quite that far, but there's a big spectrum between here and there when you're talking about presidentially appointed, Senate-confirmed positions.

And then the real question is, well, what about inferior officers? And what about regular civil servants? How far down does that go? And that's why that second question that Roger flagged is so disturbing, because that could encompass all of them. So is the court really going to use this case, which doesn't raise any of those on the merits to address that broader question?

I kind of doubt it, but it does suggest that a number of justices are inclined to want to answer that question one way or the other. And that is, I think, again, underscores the fact that they, there's a, there's a clique here that wants to make movement on these particular issues, and they wanna ma––maybe wanna do it even more aggressively than the case that they have before them, have already teed up.

Benjamin Wittes: Yeah. So I, I have a, a philosophical question for all of you about the Supreme Court term that's coming up, which is, imagine that in this term first of all, this is not the only merits issue we're gonna get to in this term.

We're, we're gonna have a, we're likely to have an a, a disposition on, on birthright citizenship. We're––we may well have a disposition on the Alien Enemies Act Proclamation. And, and we could get to a Lisa Cook question, which is not quite the application of Humphrey's Executor to the Fed, but is something like it. It's kind of a related set of questions.

So I'm––I am interested in your all's thoughts on what does a win-loss record in this term have to look like for you to say, okay, the Supreme Court's doing a lot of things on the emergency docket that maybe are look a little bit skewed toward the administration, but as the dispositions actually come in on the merits, they're being kind of a fair actor.

It seems to me the administration is overwhelmingly likely to lose on the on the birthright citizenship. I can't see how they win on that. I can't see––Alien Enemies Act is a little bit more complicated, but they can't win at the Fifth Circuit on that. I, you know, so, at least not on the panel of the Fifth Circuit.

So what if they win on, what if they lose on those two, but win on Humphrey's Executor? Do you look at that and say, okay, the Supreme Court's kind of fair actor here? Or do you look at that and say, wow, you know, you have to be really extreme before they're gonna before they're gonna rule against you if they're the administration. I'm just gonna throw that out there and, and see what y'all think.

Roger Parloff: I'll defer to some somebody else if, if you, if you want. I, I'm––each decision that comes up, I'm just, I just begin to brace. And if I'm pleasantly surprised I'll, I'll take it. I, I don't––I'm not confident about the Alien Enemies Act. And if, if even so, yeah, I, I'm gun-shy now.

Scott R. Anderson: It's hard. It's not a numbers game. Like, you know, we have to break from this mindset about wins and losses, because the actual holdings really matter on this case. But the part that's disturbing about what the court has been leaning into, I think particularly recently, is that it's really upsetting what I think of as kind of the de facto separation of powers.

In theory, it hasn't––except perhaps in the Appointments Clause context––stripped a lot authority away from Congress, because Congress could still amend all the legislation that it has interpreted as channeling all these claims, challenging administrative action into administrative procedures. The administration has handicapped or could amend IEEPA to limit the president's ability to tariffs or could do a million other things.

And from the courts, from a perspective, I'm sure they would defend it, saying ‘we're not upsetting the separation of powers here. We're leaning into statutory presumptions and leaning in a particular direction that doesn't have the effect of the upsetting the constitutional order. We're just applying the statutes as we understand them.’

But the simple reality is that they are undermining decades of practices of Congress and decades of actions of Congress in favor of giving the administration the leeway to accomplish a lot of what they want over the next three years. Even if there may be pain at the backend for the federal government at the end, for example, when the Court of Federal Claims finally processes a lot of these grant payments and contract cancellations and determines they were illegal and has to pay people out of them, which I think it actually eventually will, if those cases ever actually fully go forward.

The problem here is that it's not the, you know, underlying core separation of powers that's actually being disturbed in most of these cases. It is the effectiveness of the statutes as we've enacted them because the court is, has a strong presumption against intervening in the separation of powers between the political branches, and that gives such a strong advantage to the executive, 'cause the executive can always adapt its interpretation and its incredibly high threshold for action. Incredibly high collective action cost for Congress to respond in any meaningful way.

And by the way, it's not gonna happen until after Democrats take control of the house, if they do, if not the Senate and the next Congress. Because the president has really strong control of his party in Congress, even though they only have control of the two chambers by incredibly slim margins, that is a problematic sequence.

You are disempowering Congress. You are forcing Congress to do things wildly different than what it's done before. And I think that's a real problem, particularly if it starts bleeding into the impoundments context and a bunch of these other fundamental authorities. And we're gonna end up with a really, really different effective separation of powers, de facto separation of powers that is way more leaning towards the executive, even if they haven't actually changed that much of the underlying constitutional law.

Eric Columbus: I, I mean, I think there's a category of, of things that, as Scott has mentioned, precede Trump, in which the, the court getting to the endpoint that everyone basically felt it was plowing Arizona slowly towards, over the past couple of decades, such with Humphrey's Executor. And then you've got areas where the court seems to be a little bit afraid of Trump and a little bit afraid of Trump's bombast and speculation that he might just disregard judicial decisions.

And I think that makes the court maybe a little bit more gun-shy than it would be otherwise. And I'm glad Scott mentioned tariffs because that is in, in perhaps unique category as the president's signature initiative. And how often does the Supreme Court tank the signature initiative of the president?

In the Obamacare case I, I think it was in the, I was in the minority in thinking that it would be upheld because I, I just felt like, how can the courts just strike this down? And, and you––I didn't have a, a theory there, but I think my reasoning was kind of similar to Justice Roberts in the end, and that he didn't necessarily have much of a theory either.

He said he upheld it as a tax, but I don't think anyone found that reasoning very convincing. So, so you might see deference to the president in that realm largely because it's his biggest pet project. But I would agree as also at the end of the day, as Scott said, we're not just kind of, it's not a, you know, counting numbers here.

It's––every case is, if not different, is in a, in a separate category. We can dump them into categories and, and analyze how the court thinks that way.

Roger Parloff: Can, can I just say and maybe I shouldn't, but you were mentioning the unitary executive. Obviously this is not a Trump thing. In fact, to some extent it's despite Trump.

It's something they, you know––this is a longstanding theory that the, as Scott said, that has been a legitimate conservative philosophy that's been developing. But it was always developed under conventional presidents, responsible presidents, basically.

And now we're confronting it in this unusual context. And I don't know how far to go here, but let's just say you have to begin to imagine the unitary executive in the hypothetical context of, you know, a, a thoroughly dishonest, corrupt, maybe criminal, maybe deranged president. Is this really so smart?

And does this affect your––and so what I would like to see from the Supreme Court is some glimpse of recognition that endlessly giving more and more power to the president might be a bad idea.

Benjamin Wittes: Alright Eric, my good friend Pete Strzok lost what remains of his wrongful termination case, which has been lingering around for a long time. A big chunk of it settled a while back, the Privacy Act components of it settled I want to say about a year ago or so. But what remained were his claims that his termination itself had been illegal? Judge Amy Coney––not Amy Coney Barrett. Amy Berman Jackson. Sorry. Every now and then I get judges' names wrong.

Amy Berman Jackson––as she's known in D.C., ABJ––throughout the rest of the case, in a rather brief order, I thought. And what did you make of it and what did she find?

Eric Columbus: Sure. Just to back up for maybe the, the two people on the call who don't remember Peter Strzok.

He was fired by the FBI in 2018 after the inspector general discovered the year before that he had exchanged like thousands of text messages with an FBI attorney named Lisa Page that were very critical of people that he was investigating, including President Trump. And these messages, I think were largely exchanged in during 2016.

And he sued the next year alleging that the, as Ben mentioned, the Privacy Act was violated when his texts were made public, and also alleging that his firing violated the First Amendment in the Due Process clause.

There were years of discovery, including depositions of high officials such as FBI Director Chris Wray and I believe the president himself and the court finally decided it just now, and it was a very, it was a brief six-page order because the, some of the documents had been submitted under seal, and the judge wanted to get the consent of the parties before releasing the full opinion that would reference those documents. So we, we expect to see a longer opinion soon, but we have enough to know what, what happened here.

The judge started by noting the question is not whether termination was the, the appropriate sanction, but rather whether it violated the First Amendment, and she can––she basically applied the Pickering test for balancing First Amendment rights against government interests in employee actions.

And she concluded that Strzok’s interest in expressing his opinions about political candidates on his FBI phone at that time was outweighed by the FBI's interests in avoiding the appearance of bias in investigating those very people and protecting disruption of its law enforcement operations. And she also found that there was no evidence that he had been treated more harshly just because his comments were about the president.

And, very briefly, she said there was no evidence that he had any property interest in his job or that he lacked notice and opportunity to be heard.

Benjamin Wittes: Alright. Well, I suppose he would have an opportunity to appeal that as it is a final disposition. But honestly, I suspect without knowing that he will not, as I think you would have to find––I'm not sure what the appropriate standard of review for that would be, but it seems like a hard case to win on appeal.

So this actually may be the end––although I guess we'll have find out in 60 days––may be the end of the Strzok-Page litigation pages. Page's litigation ended with the settlement, but Pete still had some outstanding issues and these get rid of them.

Alright, let's talk about––speaking of getting rid of executive branch officials and firing them, which is a common theme so far in, in our cases, Eric the––like Pete Strzok and like the head of the FTC, the inspectors general, who have been dismissed, wanted a federal court review. And the dismissed inspectors’ general lawsuit has been dismissed. Why do they not have a case and who got rid of it?

Eric Columbus: So, okay. Four days into his term, Trump fired a bunch of inspector generals without providing Congress 30 days’ notice or a substantive case-specific rationale, both of which were required by statute. And they're seeking read and statement and back pay.

Judge Ana Reyes of the district court in D.C. ruled just this week against their bid for reinstatement because she found they had not suffered any irreparable harm, basically because typically your inability to do your job is not irreparable harm to yourself. She put aside temporarily the question of whether they could get back pay.

She noted that even if their ability to do their job was something personal to them, a personal harm, if she reinstated them, Trump could just fire them in 30 days anyway, fully lawfully, by giving Congress notice, and could even put them on administrative leave during that 30-day period. So they wouldn't be able to do their job during that time anyway.

She also noted that, as people might be imagining, it's not all clear whether Congress can impose those limitations due to these unitary executive issues and Appointment Clause issues that are lurking in Humphrey's Executor follow up and, and elsewhere. And so, so basically they're out of luck.

If, down the road, she concludes that these congressional requirements are valid, then they may be able to get some back pay, but they're not getting their jobs back.

Benjamin Wittes: And dumb question about this. I mean this seems to me to be related to the issue of shunting a whole lot of cases to the Court of Claims, right? It’s kind of a cousin of it, right?

It's a different legal theory, but the question is, if the president fires you, do you have a right––and the president fires you maybe in frank violation of the statute––do I, is that just a monetary problem? As in, are you––might you be entitled to compensation? Or are you entitled to some kind of reinstatement that gets you your job back?

And there's a million iterations of this question. Like, if you’re Maureen Comey, right? If you're some FBI leader who's, you know, on the FBI, they're like, is that a claim matter that you get compensated for it? It's kind of like a tort, right?

You get fired illegally, they have to pay you out? Or do you have some right in the federal employment? And if you don't, what prevents the gov––what prevents the president from just firing a whole lot of people illegally and basically sending the bill to the appropriators? I remake the federal government and yeah, you––we're gonna have to pay 'cause it's all illegal, but there's no reversing it.

It seems to me, nd when Congress says about the IGs, you can't fire them without giving us 30 days’ notice and stating a reason, they're not saying––that's not to protect the monetary interests of the people serving as IGs. That's to prevent, you know, politically motivated firing of IGs from happening at all.

And does the court address that at all, that they're really undermining the purpose of the statute here?

Eric Columbus: Not really. I mean, I think they're a little bit boxed in by––Judge Reyes is a little bit boxed in by notions of what constitutes irreparable harm.

This broader issue, of course, is at play in that second question, that in the Humphrey’s Executor and rather in the Slaughter case regarding Humphrey's Executor. And it's also––it plays in the Lisa Cook case. So, and it, it's, as you point out, it's–– if you can't reinstate these folks, then it's really meaningless protection.

Benjamin Wittes: Sorry, I keep––people keep stopping and catching me by surprise.

Alright, so I just wanna say that, you know, since the beginning of this series, Roger has been warning about this problem in about 10 different areas, right? We've been dealing with it in the dismissal of personnel and, you know, when you dismantle a federal agency, can you dismantle it and then just pay damages and then you are done, right?

We've also been dealing with it, which we're gonna get to in a minute, in the context of, you know, huge groups of grants, right? Can you dismantle entire programs by canceling grants? And then you pay payout costs on the individual grants, which have to be litigated separately, right?

Or can you attack the programmatic firing of federal officials by way of shutting down agencies and or the destruction of grants as a group, right? The refusal to––and I think this is like something that we've been focused on in discrete areas, but this is an, a really interesting, picturesque example of it where Congress passes a law to prevent the political firing of IGs and it basically turns into a damages statute, which is like whatever it was for, it was not to protect back pay of inspectors general and make sure that, that they you know, that they're compensated when they're fired.

Alright, let us move on to yet another person who has been removed from her job––or they've attempted to, the president has attempted to remove––and doesn't think this is appropriate, which is Lisa Cook. Roger, so Roger first noticed the other day, and flagged for me, that my old friend Paul Clement, whom I've been lamentably out of touch with for many years, has come on as on her legal team at the Supreme Court level.

And, Eric, what Lisa Cook's claim is not quite a Humphrey’s Executor claim. She's not saying that she––the president isn't saying, I can remove you without cause even though the statute says there's––cause he's saying you've committed mortgage fraud. And I know that because my, somebody alleged it on Twitter who runs the Federal Housing Administration and, and therefore I, that's enough for me.

And amazingly, this brief creates, sort of for the first time, the question of what counts as cause. And so I wanna bring up––start with the question that we've, like we've talked about before, but how is it possible with all these for-cause requirements in federal law, over a gazillion years, we don't know what it means to fire somebody for cause from one of these positions?

And whether, you know, the Federal Housing Administrator saying, ‘yeah, you committed mortgage fraud’ is good enough?

Eric Columbus: I think one reason why we don't know is that people have not often been fired for cause. Not often. Usually when the president appoints you, you're probably not going to screw up in a dramatic, dramatic fashion such that either that president or subsequent president, if your term is long enough, is going to have a way to fire you based upon something other than a policy disagreement, which basically everyone agrees does not constitute cause. There also are some––some statutes are more specific in and define cause, but, but this one does not.

And we've, we've discussed the Cook case in the past two sessions, so I won't go through it in great detail again, but I'll just note that, first, it is very interesting that Paul Clement is involved.

He has, has developed somewhat of a resistance practice, if you will. This is, by my count, at least the fifth time that he is standing in opposition to a Trump action. He represented WilmerHale against––

Benjamin Wittes: And just to be clear, Paul is a deep, deep conservative, was solicitor general in the second Bush administration, is one of the truly great––if you had to, in anybody's top five Supreme Court oral advocates of our time and brief writers, Paul would be somewhere in the top five.

For many people he would be one or two, but there's only a very small number of Supreme Court advocates who are in his class.

And he has been, you know, doing a kind of ongoing one-man demonstration of what the Federalist Society could have looked like, had it been, I don't know, actually touched by principle. Sorry I cut you off, but I

Eric Columbus: Not at all––

Benjamin Wittes: ––need to make sure people know who Clement is.

Eric Columbus: He is the epitome of the elite conservative bar pre-Trump.

And he was, you know, as conservative as it comes. He resigned from two firms at various points was––they wouldn't let him take on controversial clients. In one of the cases it was to represent––to advocate on behalf of the constitutionality of the Defense of Marriage Act after Congress, after the Holder Department of Justice declined to defend it.

Benjamin Wittes: And I think in another case it was a gun––it was to take on gun rights clients.

Yes. He has been very consistent. He takes on mostly conservative, I mean, they're conservative values, but at this point, those include––you know, that for, you know, there's a deep, deep reservoir of principle, and he is a genuine expert on a whole range of legal matters.

And when Judge Ho in New York had needed advice, an amicus about what to do about the Eric Adams case, he asked Paul Clement to be a, you know, a court-appointed advocate for advisor. And Paul did that. I mean, he's really surround––you know, actually taken a series of cases that––

This is what some of us thought the conservative legal movement was supposed to be about. Let's, let's just put it that way.

Eric Columbus: Exactly. I mean, he represented WilmerHale, my old law firm, against Trump's unconstitutional executive order against them. He represented a Wisconsin judge arrested by ICE, and he represented the federal bench of the district of Maryland, which the DOJ sued to try to get rid of their rule requiring an automatic stay in habeas cases, most notably in immigration habeas cases where petitioners tried to, to keep themselves from being deported.

So his––it sends hopefully a signal to the Supreme Court about the seriousness of this case that he's taking. And his brief, which was filed yesterday, is very good. It, you know, largely repeats arguments that have been made before in, in the lower courts, but also does it with a little bit more flavor of, of focusing on the facts, which are not directly presented, but there are news stories indicating that Lisa Cook did not in fact engage in the mortgage fraud that Bill Pulte has accused her of doing.

And that's kind of not really ,directly in the case, the accuracy of it, at this point, but it's kind of obviously floating beneath it some way. And Paul and his brief kind of ties it together and says that if you give her a hearing, if her due process rights are vindicated, then she will have an opportunity to bring to bear all these, you know, the actual facts. And that will have, or should have, some sway in what the president's ultimately decides to do.

And today, the solicitor general filed his reply brief. And I found one line in it kind of amusing, if you will. On page 14, the solicitor general says that Cook warns that courts must prophylactically cabin the Federal Reserve Act for cause standard, lest presidents mask policy-based removals as removals for cause.

But the presumption of regularity requires courts to presume that the president will properly discharge his duties and will not use statutorily prescribed removal causes as pretext. Now, I was a little surprised by that because no one on the planet believes that President Trump acted regularly in this manner.

And everyone knows that he is doing this as a pretext. The question is whether he's allowed to do so. And it, it was a little bit surprising to me that the district general kind of highlighted that––

Benjamin Wittes: You have to presume what you absolutely know to be untrue. Yeah. I have one––Anna.

Anna Bower: Oh, I was just gonna add, I think that this due process point is important. An opportunity to be heard point is important because it's a nuance that a lot of people have missed in the course of all of this.

There's this question of like, oh, well, if she didn't commit mortgage fraud, why hasn't she come out and, you know, provided all of this evidence to, through the media to the public?

And I, I mean, it could be that there's other reasons for that, but one of the legal reasons you maybe wanna do that relates to the due process and opportunity to be heard claims that they're making. And the government's, you know, argument has kind of been like, oh, well she had an opportunity to be heard because she could respond through the media or on Twitter or social media or whatever, kind of informally.

But, you know, it kind of–that's the government's argument, then if you go ahead and do that, then, you know, you might then kind of give them some ground to say, ‘oh, well this is all, she's already had her opportunity now because she's gone out there and put it all out, and the president hasn't changed his mind.’

So I think that that's something that's important, because a lot of the narrative around this is like, why hasn't she come out and kind of tried to provide all the exculpatory information.

Benjamin Wittes: I will just say one other thing about this brief which is that the counsel of record is Abbe Lowell, who is Lisa Cook's lawyer normally on a Supreme Court brief.

If you are designated the council of record, you are presumably gonna make the argument I would be, if I were advising Abbe Lowell or Lisa Cook, and I had the option of having Paul Clement do this oral argument rather than Abbe Lowell, for any number of reasons––including experience before the court and a real rapport with the justices, including the, particularly the conservative justices––I think it would be insane for Abbe Lowell to give this argument himself under these circumstances.

Eric Columbus: Just saying, yeah, I think Abbe Lowell would agree with you on that.

Benjamin Wittes: Well then, isn't it normally the case that when you, that the person who is going to do the argument is listed as counsel of record on the merits brief? I don't know. Actually, it's a good question. 'Cause when I saw that, I was like, did he bring Paul on to write the brief? But then he's gonna do the argument himself?

Eric Columbus: I mean, I––it's not clear at all that there will be an argument. Yeah, I certainly this at this stage would seem unlikely, maybe down the road, but––

Benjamin Wittes: Right, because this is not a merits brief on the––this is a still, we're still in emergency docket land.

Eric Columbus: Yes. Gotcha.

Benjamin Wittes: Okay, alright. Let us move on to our favorite game show, Who Wants to Dismantle a Federal Agency? Our contestant this week is Scott R. Anderson, who really badly wants to, say the word WITOAD but also to dismantle the Voice of America. Scott, you have a Widakuswara update for us.

What's going on?

Scott R. Anderson: I have at least two Widakuswara updates as we've seen a busy week happening both at the district court level and at the appellate court level where we have parallel proceedings happening at the appellate court level. We had oral argument this week in the matter that is still before the appellate court coming down from the en banc decision over the summer.

As folks may recall, there are kind of two live issues still before the court. One is, can the district court, as it had been done, enjoin the VOA from firing an array of employees and contractors and sort of other employee relationships? That element of the preliminary injunction the district court judge had issued had been stayed by the district court. And the en banc court let that remain stayed, but they still had to actually address the appeal on the merits.

Meanwhile, they had another prong of the injunction that the district court had issued, saying essentially, you also need to pay your various grants and grantees that had not been stayed, well, had been stayed by the district court. The en banc court then said, no, actually we're not gonna stay that, we're gonna let that argument go forward. But the, the preliminary injunction has remained in place, and both of these were set to hear argument before Judge Katsas, Judge Henderson, and Judge Wilkins in a panel.

Finally addressing kind of the merits of this decision, notably just a few days before the oral argument that have to believe on Tuesday, we actually saw the parties agree that the grant agreement was no longer in play, because the government said essentially, look, because we've been complying with the preliminary injunction the judge issued, we've actually paid out all the money that the people are––the grantees are owed.

And the parties confirmed, they said we want assurances from the party, from the government, that they're not gonna use their effort to cancel the underlying contracts, which is what they tried to do and was enjoined by the district court judge to resist further payments that we're entitled to or to try and claw back any money they paid us.

But if they give us those assurances, we're willing to concede that this has effectively been mooted out. The government gave those assurances with a little bit of griping and ultimately that matter didn't end up before the court. So the grant side of this appears to be paid out. Middle East Broadcasting Network, all those networks appeared have gotten their full allotment of money and they've agreed that those issues are no longer before the court.

Instead, this is just about the efforts to remove personnel. And it was an interesting oral argument because you saw––and briefing, because you saw the government essentially just trying to side itself in and go into the wake created by NTEU v. Vought. That's the decision the D.C. Circuit issued, also written by Judge Katsas––maybe a month and a half ago now, a little less––that said, essentially, look, all these legal challenges to shutting down the CFPB can't go forward. The employment challenges have to go through specialized administrative procedures and the challenges from non-employees to shutting down the CFPB are too broad 'cause they're just saying you're trying to shut down the CFPB.

They're not specifically about any specific final agency action. And therefore, maybe those parties will be able to challenge further future specific final agency action. But there's none currently on the table in the current challenge as laid out in––at least as seen by Judge Katsas.

Notably, interestingly, in these oral arguments, I would say while the first argument, Judge Katsas said expressly, I think this is still a hard for one for you, government. Judge Henderson was quiet. Judge Wilkins kind of came in pushing back against the government's views on this, but Judge Katsas seemed to be aligned, agreeing with the government that NTEU pretty much took care of this issue.

Although it's worth noting NTEU v. Vought is still eligible for a petition for rehearing en banc. That could still come. It could still come anytime in the next week. I think they have 45 days from the decision, which I believe is August 15th. So it could take anytime in the next couple––I think those are business days too.

So they've got a, a little while yet to file, and the mandate has an issue. That's why their, you know––CFPB hasn't seen an additional wave of RIFs, because the preliminary injunction is still in place there. But Judge Katsas, even though he is willing to say, hey, I think like an NTEU, a lot of your employment claims have to go through special administrative procedures, I'm not entirely convinced there isn't final agency action here.

At least you seem to imply that much because in the VOA case, you saw the agency do much more specific things about canceling contracts, officially deciding, we're firing people, we're shutting things down, and do a more specific way and also say––much more expressly in a way that they haven't rescinded––hey, we we're trying to shut down the agency, they have rescinded a little bit about the full scale shutting down. They're saying they're gonna do some of their statutory duties, but they've made clear that they're trying to substantially reduce a lot of these functions.

CFPB, the government has actually walked back from a lot. They've also rescinded, although they've tried to do it twice, they've rescinded their––both rounds of their RIFs. And that was part of the reason the panel in that opinion said, well, we're not sure what the government's trying to do here. There's no final agency action to challenge. Maybe there will be in the future.

There isn't yet. We'll have to see where this comes out. In this particular case, I think there's at least a glimmer of hope with the panel that Judge Katsas will view things differently. Judge Wilkins very clearly did think there was final agency action, and that might provide an avenue by which the various plaintiffs who are not strictly employees of VOA––that includes a number of contractors, a number of overseas affiliates who rely on VOA for content or just for listening and receiving that whole ra––diverse range of plaintiffs involved in this, actually three consolidated cases.

They might yet be able to get the judgment through the district court and address the actual merits of that under the APA. And even if they don't, it's still possibly we hear a rehearing en banc again, that could still come. The NTEU case. The parties just haven't moved for it. My guess is that they're trying to run down the clock on their 45-day window since they have the underlying injunction so that even if they lose the rehearing en banc, CFPB employees will still get an extra 45 days of employment before they see another wave of rifts come down. But we'll find that out in the next week or two.

Benjamin Wittes: Alright, so I was about to ask you for an update in AIDS Vaccine Coalition when this Supreme, there's––

Scott R. Anderson: ––One more Widakuswara thing too, but I'll get to it. That's all right. Well, this is just the appellate court. There's a district court level where more craziness is happening.

Benjamin Wittes: Go for it. Because, but let me just give you a headline here because I was about to ask you for an update in AIDS Vaccine Coalition, when the Supreme Court seems to have handed down an order in AIDS Vaccine Coalition while we've, of course they did while we've been talking. So what's gonna happen is you're gonna talk about Widakuswara while Anna Bower reads this one-paragraph order, which appears to have a Kagan dissent attached to it. And then we're gonna talk a minute about AIDS Vaccine Coalition, but Whits su update number two first, which will give Anna. I'll wait.

Anna Bower: Can I just say I have not been following this case like at all. So I–

Benjamin Wittes: Good.

Scott R. Anderson: All the, all the, I'll hang, I'll hang around and talk about it. We can circle back in a few minutes. Just gimme a minute. After I talk, I'll read it and I'll try.

Benjamin Wittes: So, yeah, so here's what, here's what's gonna happen. All right. Let me amend the––we're gonna amend the proceedings here. Scott is gonna give Widakuswara update number two.

We are then gonna do some crosstalk and, you know, while he reads the one-paragraph order and maybe the first paragraph of Kagan’s dissent. And then we will proceed with more Scott before he turns into a pumpkin at five o'clock sharp. Scott, go.

Scott R. Anderson: So Widakuswara at the district court level has another set of proceedings, even as is happening at the appellate level. There's another element of the preliminary injunction that says, hey, VOA officials, you still have to meet the statutory minimums for the VOA, which are actually fairly detailed, unlike certain other federal agencies.

And in this case, Judge Lambert at the district court level took the dramatic step of after making several requests for additional information from Kari Lake and other VOA officials, actually said, you guys are gonna have to sit down for a deposition from the parties. That happened, excuse me, about two weeks ago, I think September 9th, and on a later date as well.

The transcripts finally released this week where we have over 500 pages of highlights of these interviews with Kari Lake. There's some additional officials who were interviewed where some more depositions may yet be forthcoming. This appears to have been a slight shift in the rules governing how they're released. I haven't quite figured out from the docket yet.

Regardless, there have been highlights that the Post and other newspapers have picked up. I recommend taking a look at it. But the fundamental issues, it's not clear to me that, having not yet read it cover to cover, all 500-600 pages of the, of this deposition. That it does a lot more to address Judge Lambert's underlying concerns. And that is a problem for a Judge Lake, or, pardon me, for Kari Lake because the reason that they're pursuing these depositions is 'cause there's an outstanding motion to enforce the preliminary injunction that the judges make clear result in contempt proceedings against Lake and potentially against other VOA officials.

Now that we have these depositions in place, the court has had them for a couple weeks. We've had them for a couple of days. The court yesterday scheduled a hearing for Monday on that motion. So we're gonna get a sense about where the court's gonna go from this. But I'll flag this is really, really significant because this court is the first district court to be really be in this difficult position that a lot of courts are gonna find themselves in, where they have to decide, how much leeway do we give an agency in interpreting its statutory mandate?

And at what point do we have to say, you guys are just straight up violating the law, and we have to impose sanctions on you? And how do they go about doing it? It's a question that other courts are gonna have to face against an array of other agency actions and efforts to dismantle agencies in the weeks and months to come, particularly around CFPB and a couple other agencies that follow very similar patterns.

This is the first court to do it, and Judge Lambert is the first judge and he's really being very deliberate and careful and strategic about how he's approaching this. So this is gonna be a big moment on Monday, so keep an eye on that. I think it's 11:00 AM scheduled. The hearing’s worth tuning in. I don't believe there's any virtual dial-in, but we'll see if we can get some updates or see if somebody who might be able to participate. I think it'll be really interesting. Now I'll read this one paragraph and circle back to you guys.

Anna Bower: Yeah. And I, so yeah, it gave me, like, I tried to read it and I was like, this is the absolute worst case to just kind of randomly parachute, parachuting in front of a live audience.

Benjamin Wittes: Well, let me say that I think this case––we're gonna hear from Scott in a minute who actually knows the case––well, this case strikes me as a, the––potentially, this decision, a very big deal. And the reason is that it relates to the September 30th deadline and for what is effectively a pocket rescission.

And I think what the Supreme Court just said––and Scott will contradict me if I'm wrong––but I think what the Supreme Court just said is they're putting, you know, they're putting a stay on Judge Ali's order such that the, which was already there temporarily. An administrative stay such that the government doesn't have to obligate these funds by September 30^th which means that the pocket rescission is effectively successful.

And I, I want to be very tentative about how I say that because I've literally eyeballed this while some while Scott was summarizing Widakuswara at the district court. But I think it's potentially a very big deal and I'm going to just keep talking until Scott looks up, which will signify that he is prepared to say whether I'm full of shit or not. Scott, am I full of shit?

Scott R. Anderson: No, I think you're basically right, although there are a few outstanding questions about this. The thing to bear in mind about this is that this basically takes the administrative st- stay, excuse me, Chief Justice Roberts had issued maybe two weeks ago, three weeks ago.

In this case, it makes it permanent. That was not a complete stay of the preliminary injunction Judge Ali issued. That was a stay only for the portion of the approximately 4, essentially 4 billion of the 11 billion, roughly, funds in dispute that were subject to the pocket rescissions request. And Chief Judge Roberts said, okay, if it's subject to this pocket rescissions request, we're we're, we're not going to hold that up, but the rest of it, the preliminary injunction stays in place. You have to keep processing it because the government's argument essentially is we have made this––well, the government argued both ways.

The government argued first, the Impoundment Control Act is an exclusive remedy, so no one can ever sue over Appropriations Act violations that would've presumably applied to the full $11 billion. Instead, the argument Chief Justice Roberts appears to have bit into is that the ICA provides an exclusive remedy, at least in regards to the $4 billion subject to the pocket rescissions request because once you make that request, the government's not supposed to have to act on it.

And there's this question about what happens at the end of that window if the request is still outstanding when the funds expire. That's the, what makes it a, a pocket rescission––the eyes people who actually believe in that. So what I take this to mean although it is again with all these things and I'm reading it very quickly, so I wanna take a look at it.

That is, you could read that as saying the pocket residual request is essentially successful, because they're essentially saying, we read this as being an exclusive remedy. The fact that it only applies to the $4 billion as opposed to the full $11 billion if I'm reading this correctly does mean it's a slight, that slightly narrower version, not the full range of ICA presumption.

The government did argue at least as I recall in its original petition for cert. But nonetheless, that's a big deal. If you buy pocket rescission, the government could have done it for the full $11 billion. It just didn't. My guess is it's because they knew the equities were going to be a problem, or maybe they would get face pushback on the Hill, who knows exactly.

The one other saving grace about this that––I'm looking through Judge Kagan's dissent to see if she addresses it. I don't see it, although I don't know yet. Is outstanding question is this question of remedies. Remember we're still doing this, all this at the preliminary basis. There is this question of if, if later the court determines that in fact the government did have to pay this out, could it still be, the government still be on the hook for it?

And there's at least two arguments people have put forward––one statutory, one related to the court's equitable power––saying yeah, actually, you could, even if––after the money expires. The government could still be found on the hook for it. Judge Ali didn't wanna rely on those for the district court, because he said basically while the D.C. Circuit has signed off on these, they raise separation of powers questions. I think he's right. They do at least certainly the equitable remedies one, the statutory one, like a little bit more of a hook.

But he said they're there, that's a possibility; I'm not going to rely on them. That's why I'm going to issue a preliminary injunction saying you need to keep acting as if you're going to pay them out on September 30th, just in case. Who knows if the Supreme Court buys into that remedy, which would allow it to pursue an alternative venue.

And that would change arguably the equitable calculus because you would say, well now we're not weighing the risk that these parties will never get their money. We're weighing the risk. They will get it a month or two later versus you know, now that said, it's not discussed in here, and the language here certainly seems to strongly suggest they view the ICA as an exclusive remedy, which would say, which maybe would lean in the pocket flavor, pocket rescission direction.

But I don't, I don't actually a hundred percent know. I need to sit down and read this more carefully to a hundred percent be confident of that. My guess is I, that we're not gonna a hundred percent know at the end of this, but at least for the moment, it looks like the government's not gonna have to pay out that money on September 30th.

I don't think that's different. That's what we was already in place because of Chief Justice Roberts’s administrative stay. Right now, it's just more permanent, and we've gotten some more hints about why it's an issue and now it's probably going to go, I guess, back to the lower courts or directly here.

I mean, the D.C. Circuit I think actually has already passed on this. So they have to decide on a petition for cert, and they'll have to decide whether they approve of that and then vacate the panel opinion presumably.

Benjamin Wittes: Alright, so that is Scott's virtuoso read a Supreme Court order in front of the live audience.

Scott R. Anderson: And it is nine pages long, for the record. Not, not one paragraph.

Benjamin Wittes: No, I said it took me a little more order is nine pages is one paragraph, but then there's a Kagan dissent at two and a half.

Scott R. Anderson: But still, yes. Fair enough, fair enough.

Benjamin Wittes: But I, I just wanna say that, that that is Scott's virtuoso read. I mean, this is a dense case that has been up and down and it is on a subject that none of us––you know, impoundments, that none of us except Molly Reynolds knew anything about until relatively recently. We learned fast.

Anna Bower: I still don't know anything about it.

Benjamin Wittes: So, so I just wanna say, look, we're gonna have analysis of it. That's all you're gonna get right now.

Alright? I know a whole lot of you are here to talk here about the indictment of James Comey and the politicization of the Justice Department going after the Justice De––the president's political enemies.

And look, we buried this, and I wanna tell you why. Because it is important when you come to Lawfare that you get the full range of litigation going on involving the Trump administration. Also because Scott had to go at five o'clock, and Anna didn't have to go at five o'clock. That's the other reason. So, Anna, what do we know? Jim Comey? Yeah. Criminal.

Anna Bower: So we know that Jim Comey was indicted on two felony counts. It feels like it was five years ago already, mainly because I stayed up half the night trying to figure out what exactly the factual basis of the indictment is by going back and reading like all of the Russia, the Russia documents, the Durham Annex, the, these recently released documents that could be the subject of some of the factual basis.

Because although we know that Comey was indicted on one false statement count and one obstruction count, the indictment does not tell you a whole lot at all about what the underlying conduct is. We know that it relates to his 2020 Congressional testimony. And, and we know that in part because it––that is the only testimony that is within the statute of limitations.

But strangely, the indictment actually quotes from the 2017 testimony that he gave that then was kind of raised anew at the 2020 Senate Judiciary Committee hearing in which Senator Cruz is asking Comey about this, you know, issue of whether or not he ever authorized leaks. And so this––and Comey says something to the effect of, I stand by my 2017 testimony.

And, and there's a lot of questions about, you know, does that mean that he's then incorporated somehow all the 2017 testimony into the 2020 testimony? But the indictment, you know, uses the language that Cruz is summarizing. What else we know, Ben, is that the indictment says, you know, that that was the false statement that, you know, he had never authorized these, you know, media disclosures.

But we don't again know what exactly the media disclosure was. There are two options as far as, you know, we can tel, having talked about it at Lawfare and Ben and I, the piece that we wrote, looking back at that one option is the McCa–Andy McCabe matter, which relates to an October of 2016 Wall Street Journal article and, and the differing recollections that McCabe and Comey have about whether or not McCabe told Comey after the fact about McCabe authorizing that disclosure to the media.

That was a, a Wall Street Journal article about the Clinton Foundation investigation. The problem with that being the potential underlying conduct is that it seems like there's actually no real inconsistency there between the question of whether or not Comey beforehand authorized the disclosure. Both McCabe and Comey agree consistently over and over again, including in their congressional testimony, that they didn't discuss the leak beforehand. And that–

Benjamin Wittes: –there is no doubt that McCabe had the authority to make the disclosure.

Anna Bower: Right. And McCabe had the authority.

Benjamin Wittes: Right, he didn't need authorization from Jim Comey to do it.

Anna Bower: Right. And, and the only question is what their recollections are after the disclosure already happened and the article was published. And, and so it would be very, very, very, like, I mean, just the biggest loser of a case, if that is what this is predicated on.

I––and I will say too, you know, we do know that the alleged leak was probably related to a Clinton Investigation article because there were actually two sets of documents. One included the charges that the grand jury approved, and then the other included a no bill in which the grand jury rejected at least it, it rejected one charge.

That was about the so-called Clinton plan. That was basically like a Russian disinformation campaign. There were certain documents that the intelligence community ultimately kind of assessed to be composites or, you know, not authentic documents, but people on the right have suggested that these documents suggest that, that there was a Clinton plan with the campaign to try to you know, start the Russia-Trump interference narrative as a way to distract from the Hillary emails issue.

And, and the grand jury did not buy that Comey had lied about whether he received a referral about those documents. They rejected that. And we know from the fact that this person one––and person person one, I'm getting that right?

Benjamin Wittes: Right.

Anna Bower: Person one is, yes, that person one is likely Hillary Clinton or the, you know, Clinton because of the consi––the way that in that no bill indictment the description of, of everything. So, so that leaves beyond the McCabe stuff, which was about the Clinton Foundation investigation, a separate option, which is the Dan Richman stuff.

And the Dan Richman stuff is about you know, Dan Richman, who was hired as a special government employee worked with Comey at the FBI, was a friend, as well, of Comey's. People probably know the name because later, after Comey was fired, this is, you know, the person who received some of the memos.

But before all of that happened, there also was the fact that Richman, you know, was kind of an informal liaison at, at times to the media on behalf of the FBI and, and Comey. And there was a, you know, internal leak investigation at one point about whether or not there were inappropriate disclosures related to Richman's interactions with, with some members of the media, including Michael Schmidt, who at one point wrote an article on which Richman is quoted on the record but also in the FBI investigation.

Richman says something to the effect of like, you know, I, yeah, I gave him more information than I quoted. Saying in this article or something. And so the question is––

Benjamin Wittes: Which is, by the way, always true with all––

Anna Bower: Yeah.

Benjamin Wittes: ––quoted sources in every story because you don't publish an interview with––when you do an interview, and then you use some of it, right, in the thing, I mean, that's a truism.

Anna Bower: Right. And also other things in these documents that are, that were released by Kash Patel earlier this year are that Richmond says, Comey never asked me to speak to the media. Like it was like an informal, you know, it wasn't like he was directing him, ‘Hey, go be an anonymous source for this particular piece of information, I'm authorizing you.’

It was, it was just more of like, Richman talked to the media because that's what he did. And he did it both before and after. He was a special government employee. And he said, over and over again, at least from what we can tell, because there are redactions in these documents that, you know, Comey did not ask me to go and talk to the media or direct me to do so.

Benjamin Wittes: I mean, can I just say the Tropic Vortex documents are sufficiently redacted that it is impossible, so I think–

Anna Bower: –this is Arctic. This is Arctic case. Arctic Case. Sorry. Yeah.

Benjamin Wittes: You know, Tropic Arctic Haze Vortex.

Anna Bower: There's also Arctic Frost as well.

Benjamin Wittes: So, right.

These are all these are all post-2016 election leak investigations that involve various news stories that appeared about the Hillary Clinton investigations, of which there were several, and the Russia investigations.

And so, the, these documents are sufficiently redacted that you can't say, well, they clearly show that Comey never authorized Richman to have X discussion or Jim Baker to have Y discussion or––you, you can't say that because the, the documents have these big black––whole pages are blacked out.

But here's what you can say with absolute certainty based on these documents: these matters were investigated by the FBI and decla––the prosecution was declined by the Justice Department under Bill Barr.

There was a decision, I guess it's five years ago, not to prosecute Dan Richman, who doesn't ever seem to have been much of a sub––he was a subject of one of these leak investigations, Jim Comey, Jim Baker, or anybody else.

And these matters were closed. And they were opened again the other day because the president hates Jim Comey that much, that he fired a prosecutor and put in somebody who was willing to and that is, by the way, by itself extremely unusual to reopen a matter based on no new information. Right?

First, you disclose a whole lot of information to Chuck Grassley about a matter that you then announce your reopening with no new, no intervening event, just because you hate somebody. That is not, shall we say, the highest traditions of the U.S. Department of Justice.

And I wanna ask you, Anna, a question out of left field, which is, if we can just do this, should we expect Letitia James to be indicted within the next few weeks as well? Because I, I don't like––you could show the grand jury in her case, only the document.

Anna Bower: Well, right. And this, and this is the problem, is that the––so often, grand jury abuses are only restrained by norms and policies and, you know, because there, there are, like, you're only supposed to bring something before a grand jury if you actually think that there's probable cause.

If you think you can prove a conviction beyond a reasonable doubt, there are DOJ norms and policies around, you know, showing exculpatory things that you know are exculpatory. Having to show those to a grand jury. I mean, I find it kind of like based, and again, this based on the public record and we don't know the underlying factual allegations.

So it is a little bit hard to discuss and maybe that's part of the point of releasing an indictment that they did, yes, that doesn't lend itself to actual real public analysis because we don't know what it's about. But it, you know, like based on what we know, I find it so hard to believe that they put everything before that grand jury.

That is like they would've known, there's exculpatory and contextual information that they must not have put before the grand jury, because otherwise I have no idea how the grand––12 grand jurors found probable cause.

Benjamin Wittes: Alright, well, I will just say this, on the theory that this, that person the relevant person is Dan Richmond and not Andy McCabe, which seems to be the prevailing theory, although I, I'm agnostic.

Anna Bower: Although it wasn't last night, so–

Benjamin Wittes: Right.

Anna Bower: It might change again tomorrow.

Benjamin Wittes: It's, it's going back and forth. These things are shifting back and forth, but if it turns out to be that this is about Dan Richman's activities, I just want to say the following. There is another person who occasionally, or on one occasion in particular did media interface on behalf of Jim Comey in a high-profile incident.

And that was me. And by the way, Dan Richman and I look a little bit alike. We, some, we have sometimes been confused. We're roughly the same height. We both have this kind of, you know, very short, gray hair. He's a little, like, scanter than I am, as a––but we kind of look alike.

And Susan Collins, when Jim Comey said he'd told a friend in, in a public hearing, told a friend to tell Mike Schmidt what was in one of those memos, she said, was that Mr. Wittes?  And so we get confused with each other sometimes. And I just want to say Jim Comey never asked me to give material anonymously to the press either.

And so when I see that in Dan Richman's–in the FBI documents about Arctic Blast case, and Dan sort of suggesting he was kind of acting on his own and he had you know, he has, sort of has a trust relationship with Jim Comey and does his thing. And you know, that quite rather mirrors my own experience.

Dan and Jim are much closer than Jim and I are, and Dan has done it a lot more, but I am pretty confident with, that I know what is in those blacked out passages. And it's not because anybody's told me nobody has, it's because I know something about having the kind of relationship with Jim Comey in which sometimes you just move to pick up the phone and call Mike Schmidt and say, Hey, I've got some information for you.

And you're doing that on your own initiative. And I am––I would be very, very surprised if the substance of those blacked out paragraphs supports this indictment, and you can call me on that if it turns out to be the case. Folks, we gotta move on because we bring you the whole scope of Trump litigation here.

Anna Bower: There's so much to talk about though that we didn't get to.

Benjamin Wittes: Well then let's do a Substack live when we talk about more of it.

Anna Bower: Wait, but can I ask you a question really quickly?

Benjamin Wittes: Yeah, sure.

Anna Bower: The chat wants to know if you had to testify in James Comey's trial, will you wear a dog shirt?

Benjamin Wittes: I had not thought about that. But the answer is of course, I will wear a dog shirt. With respect to the court, I will of course wear a jacket and I think I would probably wear a tie too. So maybe a dog shirt, a jacket, and a dog tie, I think is the only appropriate thing.

I don’t––I don't think it would be appropriate of me to testify in a dog t-shirt, okay. That's––I, I do not think I am likely to be called as a witness, because one thing I am certain of is that that paragraph does not refer to me. I, I'm not sure whether––

Anna Bower: It, it was a hypothetical Ben. It was a hypo––

Benjamin Wittes: I'm not sure whether it refers to Andy McCabe or Dan Richman, but I think it has nothing to do with me.

Alright, Roger, let's make sure we don't end today's show without going through the, our usual immigration roundup. We have an awful Ghana case where people were sent to Ghana with assurances that they wouldn't be.

People who were not Ghanaian were sent to Ghana with assurances that they wouldn't be repatriated to countries where they may be mistreated, and then they immediately were. What's going on with that case and what do we know about it?

Roger Parloff: So I, I think last time we mentioned that Judge Chutkan had denied the TRO because she––they were already in Ghana and she felt there was a addressability issue, a problem that she was––the plaintiffs couldn't show they were likely to prevail on, on sort of, jurisdiction, that she had the power to tell Ghana to do anything, or even to tell the government to tell Ghana to do anything.

And then a little after her ruling, the plaintiffs filed something under seal. And then on Monday afterwards, ABC reported that all of these people had been returned to their home countries, where immigration courts had ruled that they would face that they had credible claims that they would face persecution, torture or death.

And then just about an hour ago or two, another––the plaintiffs filed another sealed document. We––there were five plaintiffs of the 14 that were in this predicament. And it's sort of mysterious, obviously. If you're, you know, speculating, it's conceivable that these are status updates about the status of the plaintiffs, and you would not want to publicly say that so-and-so is back in the country where he fears torture. And, but I I, the fate of this case, I, I don't know. There had been the, government. The, the petitioners were also trying to just make public the declaration that the government filed at one point, initially in camera only Judge Chutkan could see it. And then Chutkan said, why, why should only I see it? And can't the defendant see? And they said, yeah, okay.

And so then he gave it to the defendants, I mean, to the petitioners. And, and, and then the petitioner says, why can't we make this public that's been briefed? And, and we haven't heard any more about that.

That's a declaration by Jonathan Pratt, the head of the State Department’s Africa Bureau. So––and that was nine days ago, so things really seem to be frozen in light of these sealed documents. And I, I––it's a little mysterious at the moment.

Benjamin Wittes: We have a preliminary injunction in Kettlewell which involves Honduran and Guatemalan children. Bring us up to speed, Roger.

Roger Parloff: That's really the identical thing that we talked about, or Anna talked about, a week or two ago. The Guatemalan Children's Case. That's another––

Benjamin Wittes: This is Judge Kelly, right?

Roger Parloff: Yeah. Both of these cases share that the government claims that a diplomatic representation has been made to it, and it doesn't seem like anyone thought that the diplomatic representation was really going––was really true or was going to be followed.

That was the situation in Ghana, and nominally Ghana told them, oh, we won't return these people to anywhere where they would face torture. And yet on the plane ride over, there's evidence that on the plane ride over, ICE officials tell the plaintiffs, you're going back to your home country, we're just going through Ghana.

So, and then Ghana is telling its people, we're not keeping them. We're just sending them back to their home country. Anyway, this was the Guatemalan Children's Case. The theory, was that we're just reunifying these children with their parents. Guatemala has requested it.

This is an extension of that, although it, it's, it's not a class action. It’s 59 Guatemalan children and, and 12 Honduran children.

And the judge found exactly the same thing that Judge Kelly found, which was that there was no reunification going on. The, quote, the foundation of defendant's argument for their authority to transport plaintiffs out of the United States is that the defendants are reuniting plaintiff children with parents abroad. But counsel could not identify a single instance of coordination between a parent and any government, American or Guatemala.

And that also includes Hondurans. So that's basically that one. It's basically identical and it, it's the same event. It was the same night they were going on at different, and, you know, on different coasts, well, not, not the coast, it's Tucson, Arizona.

Benjamin Wittes: Oops, alright. Let's talk about Molina v. DHS, which involves aliens detained without probable cause now in D.C. because that's a thing now. Roger, what is this case? And is it the new normal?

Roger Parloff: Of course it's, it's just accusations at this stage. It was a––I think it was filed yesterday. It sounds something like the Vasquez-Perdomo case we talked about in, in L.A. where, but in L.A. the claim was stops without reasonable suspicion. The claim here, right––

Benjamin Wittes: And stops and detentions are not the same thing.

Roger Parloff: That's right. These are detentions without arrests and detentions, without warrants and without probable cause.

And instead of being detained for 20 minutes, which Brett Kavanaugh doesn't think is a big deal these people were detained 40 miles away in Chantilly, V.A. overnight and in one case for four weeks. And this all begins August 11th, which is, when Trump sort of takes over D.C., the emergency, various, an emergency orders is issued.

And the claim is what? You hear, what, each––there's four plaintiffs, individuals, and then the, the nonprofit CASA Inc. But the plaintiffs all say that they were arrested. They were handcuffed without any inquiries. They, they weren't asked for ID, they weren't asked for questions about their immigration status.

It was just, apparently, they looked Latino and they were arrested and then they were taken to Chantilly. And so, the first one had TPS status, that sort of thing. Those are the accusations. But it's––like I say, it's just, and, and also it's maybe interesting. It's not just because of what's going on. It's not just DHS and ICE. It is Customs and Border Patrol. It's U.S. Border Patrol and it's Drug Enforcement Administration, because all of these agencies are being enlisted into this process.

Benjamin Wittes: All right. We got two more cases to talk about. We've got the mandatory detention cases. The kind of––this is not a single case. It's a group of cases. Roger, give us a little roundup of these of these cases, especially the class actions.

Roger Parloff: Yeah, this is a big deal. And we sort of touched on this, I think last week or the week before. There was that seemingly obscure case. Yajure Hurtado. It was a Bureau of Immigration Appeals ruling.

But one of the––basically in, on July 8th, the Trump administration announced a new interpretation that the DOJ, I guess, a new interpretation of the detention laws for immigrants. And the effect is that a huge number of people will now if, if they're correct, and if courts don't stop them, will now be mandatorily detained. Most of the people––so there were two cat, there were three categories, but two are the most important of, of detention.

And one was typically used at the border, people arriving, but, you know, the––they were seeking admission. That's what it says in the statute, or applicant for admission. And, and there––you, if you caught them, they were mandatorily detained. But people that were apprehended inside the country who you know, might have been here for 10 years, for 25 years, then you started a proceeding.

The proceeding may ask––may last months, so you hold a bail hearing and there's a different provision for that. Now they are saying that the first provision will also apply to a tremendous number of those people that have been here a long time. And so, we're suddenly seeing hundreds of these cases or dozens of these cases.

And there's at least three class actions. One, one started in Massachusetts this week that's going pretty quickly. There's one in this central district of California with our friend Sunshine Sykes. And then, there's one in Western District of Washington in Takoma.

And so it, it's––and, and the––most district courts are ruling that the interpretation is wrong, but, and––and at least one Trump administration, Trump appointee has so ruled. But at least one Barack Obama appointee has ruled the other way. There's a very good article by a friend, Kyle Cheney and Myah Ward in Politico, about these cases as well.

Benjamin Wittes: Sunshine Sykes, by the way, who along with Sparkle Sooknanan, is in the top five for best-named federal judges. I still think Sparkle Sooknanan takes the award, but Sunshine Sykes is pretty awesome. All right, we got one more case.

Roger Parloff: Maame Ewusi-Mensah Frimpong of, of the Vasquez-Perdomo gets honorable mention.

Benjamin Wittes: No, there's, there's a whole, like––somebody should do like the, the top-10 list of names of federal judges. Because we've got some total winners in this, okay. But I think Sparkle is really in a league of her own.

So, we've got one more case to talk about, which is that, Roger, the Fifth Circuit, the government has gone en banc in the Fifth Circuit in the Alien Enemies Act case, and I wanna know why.

Roger Parloff: Yeah, I was surprised they are seeking en banc review.

Benjamin Wittes: That is, they lost at the panel. They lost one of the conservatives they need, it doesn't matter ultimately what the Fifth Circuit says because the Supreme Court is going to hear this case. And so why, why is this just an effort to––I, like, it seems like a strategically silly thing to do. And I'm not––like, not bad or mean or anything, just kind of inexplicable and I was kind of trying to figure out why they would do this.

Roger Parloff: So, obviously I don't know. And, but, and the reason Ben is saying that it doesn't make sense is that there effectively, there is a stay. There isn't a really a stay, but the government has stayed removals from the Northern District of Texas and everybody knows they really shouldn't try to get around it until the Supreme Court lifts that.

And this is that case. So why, why are you delaying the inevitable? The Fifth Circuit had somebody on, the judge on the Fifth Circuit had delayed the mandate? Maybe that––they took that as a clue that the judges at least wanted to mouth off about this and they would give them an opportunity.

You know, I suspect, I, you know, I, I suspect that there will be a vote. They will deny––you know, I'm going out on a limb––they will deny rehearing, but people will blow, blow off steam, you know. We'll hear from Judge Ho what he thinks about this. And maybe it's an opportunity for people to vent their egos and get their two cents in before it goes to the Supreme Court.

Or maybe there's a fear, an honest fear that if it's conceivable that if you didn't do this, maybe the government, maybe the court would just deny cert. That way they'd be stuck with this. So I, I don't know.

Benjamin Wittes: Alright, we have two questions from the audience and they are both from the estimable Andrew Steele. So I am just bringing Andrew on to pose his two questions and we will address them. Andrew, the floor is yours.

Alright folks, we're gonna wrap up. We are gonna have––like Durham had the Durham Annex that has been released by Charles Grassley, we are going to have the, the Bower Annex in which Anna Bower and I discuss politicization to our little heart's content. We haven't figured out quite where or when we're doing it.

It may be we're going to––as soon as we figure that out we will announce it. And we're going do a whole Lawfare Live on that. Stay tuned.  We will get that scheduled right away. Folks, we're gonna be back next week. Oh. Roger, you have your hand up. What's?

Roger Parloff: Just, I wanna say that you and Anna have written a lot online about this, that you should read, and, and I just also think that because you've written online there's a level of horror about what's happened here that we aren't expressing.

Yeah. You know, that this is not a joking matter. This is a line that's been crossed that changes the way we need to look at Pam Bondi and Blanche––and, and Todd Blanche and, and this DOJ, even though we thought we knew it. This is, this is worse. This is something new. And this will, this will be the worst This will be the most remarkable motion to dismiss based on selective and vindictive prosecution that's ever existed, if it even gets that far anyway.

Benjamin Wittes: So yeah. So let me actually, before we wrap, let me address that briefly because we, we today had to bury this inside a much, you know, we try to cover the range of events in litigation most of which is civil, not criminal involving the Trump administration.

And this is one thing that happened this week. It is a truly shocking thing. A former Justice Department official wrote to me today, or, or yesterday when this happened, that this should fundamentally change every American's understanding of the Justice Department. It's the most shocking abuse of prosecutorial authority in the modern history of the Justice Department.

And I think that was, clearly, it is not a hyperbolic statement. This is a use of the Justice Department that we just are not used to. And one interesting thing. People, you know, say, well, you know, the grand jury isn't a real protection, because a grand jury will indict a ham sandwich and that sort of thing. And that's wrong.

The grand jury isn't a real protection against basic ethical federal prosecutors because ethical federal prosecutors, or nor even normal, psychologically normal federal prosecutors, do not bring cases that they can't possibly win. And once you breach that and you say, I'm gonna bring a case against person X because I hate him, which is a, a wildly unethical and inappropriate thing to do, all of a sudden the grand jury becomes a very real protection.

And one of the three charges that Lindsey Halligan tried to bring yesterday is not––did not go through. And, by the way, there are a bunch of people who don't have felony charges against them in the District of Columbia or in L.A. because of––because the grand jury is actually a real protection.

It's just a real protection against something that, in our modern society, we have not traditionally needed protection against, which is genuinely malicious, vicious, vicious people using the power of the federal government to abuse other people because they hate them for political reasons.

And that, once you actually––and so another example is the of this is the Eighth amendment. You know, cruel and unusual punishments is normally understood to be a reference to the particularly cruel deaths of the Stuarts in England, right? The, the torturing people to death, basically. It has broader, it has been read to include more things, but that's clearly what it referred to in the original understanding.

Well, you don't really need protection against being tortured to death in a normal, civilized society. But then there comes a point where maybe once again you do, and you realize that these civil liberties protections that we think of as largely not real anymore are actually very real. They're just protecting you against something that nobody's threatening until the day that somebody is.

And that's the significance of what happened yesterday. All kinds of things that we think of just the other day. It's only a few weeks ago. Roger is saying a selective and vindictive prosecution claims you always file them, but they never win. Guess what guys? This one's going to win. And it's going to win in a way, assuming it get the case gets that far, it's going to win because selective and vindictive prosecution is actually a real thing you need to be protected against. Just not in the criminal justice system as we have practiced it in a bipartisan fashion in the federal level for the last X number of decades.

And once you take that away, all of these civil liberties protections that seem like they're very old become very important. And we saw a little bit about that yesterday. We're going to see a lot more of it. And, by the way, I just want to say this as clearly as I can. Letitia James did not commit mortgage fraud.

Lisa Cook did not commit mortgage fraud. Both are at some risk of being indicted for mortgage fraud. These are not people unlike Jim Comey, who are, you know, whose social circle is composed of Southern District of New York prosecutors who are itching to litigate this. Letitia James, to my knowledge, is not a particularly wealthy person.

When you do this to Jim Coney, you've got a fight on your hands with Pat Fitzgerald. And by the way, you wanna talk about a mismatch. Lindsey Halligan versus Pat Fitzgerald not a fair fight guys.

Anna Bower: Yeah. Is she gonna try, is she gonna try the case? Do they, who's gonna,

Benjamin Wittes: Well, somebody of her ethics is going to try it.

Somebody of her rough talent, somebody who's not afraid of losing their law license is gonna try it. And Pat Fitzgerald is, I think the technical term is a tough-ass motherfucker. And just ask Rod Blagojevich. And, and, I think it is really important that we not forget that when you take the same power that you array against Jim Comey and you end up in a fight with Pat Fitzgerald, when you array that power against somebody who does not have the resources to defend themselves, things get really ugly and really dangerous, really fast.

And so we turned a corner yesterday. And Anna and I and any other Lawfare people who want to join to discuss it will do so in the politicization annex, which we will schedule right away.

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

You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for our other podcasts, including Rational Security, Allies, The Aftermath and Escalation, our latest Lawfare Presents podcast series about the war in Ukraine.

Check out our written work at lawfaremedia.org. The podcast is edited by Jen Patja and our audio engineer this episode was Ian Enright of Goat Rodeo. Our theme music is from ALIBI music. As always, thank you for listening.