Lawfare Daily: The Trials of the Trump Administration, September 18

[Intro]

Benjamin Wittes: It is Friday, the 18th day of September, the 2026. It is 4:00 PM in Washington, D.C. And folks, you, and I mean you, are watching Lawfare Live, the trials and tribulations of the Trump administration. I am Ben Wittes, editor-in-chief of Lawfare, chief trialler and tribulator and I am here with four separate Lawfare senior editors.

In alphabetical order, Anna Bower, Eric Columbus, Roger Parloff, and Molly Roberts, who with the last name beginning with R is gonna tend to be late in the alphabetical order, but not as late as Benjamin Wittes, who will almost always be last.

[Main Podcast]

Folks, the Kennedy Center is gonna, is th-the, the board has voted to shut it down. This was a decision made, it was a, you know, just based on the financial necessities and deprivations caused by not being able to put Donald Trump’s name on the outside, and that just dried up fundraising, and the result is that they, with tears in their eyes, they have said, sir, we need to close. And Roger, is there any reason in the world why an observer might be cynical about this?

Roger Parloff: There are, there are some reasons. A lot happened this week culminating in yesterday’s order not to demolish the Kennedy Center without 30 days’ notice. We’ll c- we’ll get to that. You know, for some time there’s been two pieces to this. One is t- should we the, the center has wanted to do renovations and to close it for two years to do those necessary renovations.

Obviously a lot of people suspected it was because they were, they were doing so badly financially as well. The suit challenges that and, and w- w- originally wanted to see if it would be possible to keep it do the renovations while also d- keeping a portion open. The other half of it was the renaming.

He had renamed it the, the, the Donald J. Trump and President Kennedy Per- Center. And so, there were two pieces, and in May, back in May, Judge Cooper, Christopher Cooper, decide-

Benjamin Wittes: Parloff Center.

Roger Parloff: I’m sorry, what?

Benjamin Wittes: The Donald Trump and John F. Kennedy and Roger Parloff Center.

Roger Parloff: I haven’t required that. A lot of, a lot of people are saying that, but,

Benjamin Wittes: Okay. Just- cause, ‘cause I think that they would, their fundraising problems would go away if they put Roger Parloff on the, on the face of the Kennedy Center.

Roger Parloff: It’s, it’s a good, it’s a good thought. But anyway, in M- in May, Judge Cooper did say that the renaming was a non-starter, that Congress was clear you can’t have a memorial to anyone else or anything like a memo- memorial, and it didn’t just mean something after somebody died.

It could be anything that reminds somebody of somebody else. So, he issued that, and then in August the board was gonna, He also found that their original- plan to close had not gone through the necessary hoops. It was, you know, basically the chairman apparently wanted to do this plan, and they did it.

They needed to fulfill their fiduciary duty and, and redo that. So August 13th, they were supposed to come up with a resolution. Did they still wanna close it after? And they still did wanna close it for two years, but there was no evidence that they had gone through a-any searching inquiry. But the surprise was they came back with three new renaming proposals, and those were renovated and restored by him.

And then in addition, if this entity called the Trump Kennedy Center Fund, and no one’s sure where that’s located, whether it exists, raised 100 million, they would also put on the building endowed by the Trump Kennedy Center Fund under the renovated and restored by Donald Trump language. So his language would be under Kennedy’s instead of above Kennedy’s, but otherwise the th-the same.

The third proposal was that the whole plaza on which the Kennedy building, Kennedy Center building is located, 17 acres, would be renamed Donald J. Trump Plaza. So His— Cooper was cogitating on, on these issues, and there was a status conference approaching this week on November— on, sorry September 15th, Tuesday.

On September 14th, a new resolution from the board surfaces, and it proposes... It, it’s sort of remarkable. It, and it makes it very clear that there isn’t going to be any reconstruction unless Trump’s name goes on it and the building. And it gives Cooper essentially, Judge Cooper, 10 options.

I, I’ll read it to you ‘cause I think this is really, you know, historic. I think historians and psychiatrists and clinicians will look at this for years to come. “The board understands that without such appropriate recognition, it is unlikely that President Trump will provide the fundamental oversight of the renovation of the building and lead the fiscal rescue of the center.

Accordingly,” it says, then it goes on, “So that President Trump can be legally and appropriately acknowledged on the facade, so, and so that he agrees to carry the burden of managing the renovation and provides the center with a much-required financial rescue.” They then list the 10 options Cooper can choose from, basically.

My own personal favorite is option nine, which says that you— we would say, “Acknowledging the unwavering support of President Donald J. Trump,” you know, having just threatened to-

Benjamin Wittes: Having just ascribed the waiver.

Roger Parloff: Yeah right, having just threatened to destroy the whole thing. That was the day before the status conference.

The next day, Judge Cooper issued his ruling on the earlier renaming proposals and basically rejected them all. They were, two of them were basically violated his preliminary injunction ‘cause he’d already made it clear that it wasn’t just this formula, it was anything like it would w- would violate the statute and, and his, his order. The part about the endowed by the Donald Trump-Kennedy Center Fund, that part was not ripe because the $100 million hasn’t been raised. In fact, we don’t know if a dime has been raised. But he also made it clear that’s a non-starter as well.

At the hearing, ee learned sort of w- where people were. What the government mainly wants to do is file a m- summary judgment motion, I think clearly so that it can appeal and, and, and it feels like it has a better chance with eventually the Supreme Court. What the his lawyer, what... It’s Representative Beatty who’s challenging this.

She’s a ex-officio trustee. She wants discovery because she thinks that all of the reasons being given for the urgency of this shutdown are lies. So, she wants discovery. And h- Judge Cooper, I think, feels like the closure of the building for two years is sort of, it’s gonna happen. You know?

We don’t have any acts booked. You know, they take about a year to book. And it’s gonna have to be re- everyone agrees it needs to be renovated. The question is, do you sort of string it out, or do you get it done quickly? And, and so he, I think he was hoping that maybe everybody could even agree on that, to close the building but keep the comp- the, what’s called the Reach, which is a set of buildings right next to it, open, and also have Kennedy Center-sponsored events continue off-site, you know, like the Mark Twain event, and that sort of thing.

I don’t know if the plaintiffs were responsive to that, but that’s the direction he was going. Then as soon as the thing was over, we learned that the Kennedy Center was literally being closed. That... And, and that wasn’t supposed to happen. You... the, preliminary injunction says you can’t close it yet.

He’s going through the process. He did invite the trustee, the board, the def- defendants, basic- Trump, basically, to submit a motion to dissolve the injunction. And, but instead it was closed immediately after the hearing. And, no one had mentioned at the hearing that that was going to happen.

And then the, plaintiffs couldn’t get a straight answer. Everyone they asked gave a different answer. The defense lawyers initially told them it had something to do with a fire alarm. Somebody had set off a fire alarm and they had to empty the building. But it was still closed the next morning and it, and other people were giving different excuses, and it was getting confusing.

And then late On, no on Se- September 16th, so that’s Wednesday night the AFP, the Agence France-Presse took photos of one of the Air Force One planes on the, on the tarmac, and through it you could see Trump, and you could see he was reading something. If you blew it up, it was a poster board that seemed to say, “Kennedy Center Demolished,” through the window.

And I should say that Molly Roberts and Anna Bower both instantly looked at the poster board and said, this is the work of William Pulte. And I think that has since been confirmed that when he walked out of the plane, Pulte was carrying the press the poster boards. To be clear, what it shows is the letters D-Y Center and “DEMOLISH” in all caps, and the edges of the window cut off the, what’s visible at those points.

So the... And, and Trump had made a statement in an interview, again, more than, more clearly than ever s- talking about I, I don’t have the language in front of me, but basically ripping it down, having to rip it down or something like that if his name didn’t go back up. So, they had an emergency order before Cooper.

The government responded only with they opposed an emergency meeting. They said it had been closed. The center had been closed because of acute risks to public safety, and they would revisit in seven days whether to reopen. But there was no commitment to reopen. They also made no mention about the demolition issue.

So at that point, Cooper issued this don’t demolish the building order. The... You know, there’s a companion case brought by the D.C. Preservation League in which the government had already said, we have no plans to demolish, and we’ll let you know if we get some. Here Cooper lays it out. You need 30 days notice if you change the pa- plan, including try- wanting to demolish the main building.

He also gave the plaintiffs discovery on the demolition issue. Now, he was vague about that. I don’t know what that means. I don’t know the degree to which you can even get discovery on what the president was reading in his plane. But anyway some discovery will happen.

Benjamin Wittes: Well, speaking of buildings that the president wants his name on, the United States Institute for Peace which is was headed by the very estimable, if oddly named, Ambassador Moose has board members that were ousted and barred from the building by armed people, and they have intervened, gone into court to prevent Donald Trump from putting his name on the USIP building.

And tell me, Molly Roberts, were they joining hands with a guitar and singing, all we are saying is give the U.S. Institute of Peace a chance?

Molly Reynolds: I don’t know why you don’t just sing all the music. There’s, there’s no need to be queuing this stuff up on YouTube. So, so yeah, I, a small correction to what they’re trying to prevent him from doing.

You said putting his name on the building. Interestingly, they have already put his name on the building, but they’ve done it in a non-permanent manner. They’ve bolted it in the silver lettering. And what they want to do next, or at least what, what the former staff members-

Benjamin Wittes: Carve it in ...

Molly Reynolds: carve it in, yes, indelibly. Yeah. So, so it’s already on there and-

Benjamin Wittes: No, it’s on there in magic marker, but they, they don’t want Sharpies.

Molly Reynolds: Yeah, sure. Yeah, that’s, it’s excellent way of putting it. You know, I, I think arguably they shouldn’t have done what they did, but, but these, these litigants didn’t put up a fuss because the litigation was ongoing, and I think they figured, well, you know, it’s just bolted on there. You can take it off.

Although, as with the Kennedy Center, we’ve learned it’s quite difficult to get some of this stuff taken down, and it may cause harm to the building in the process. But so, you gave some of the background in, mm, was it February 2025? This lawsuit started in March 2025, and it was shortly after the DOGE seized the, the U.S. Institute of Peace building on Constitution Avenue with the help of police and the FBI.

So they, the, some former members of the board, ousted members of the board sued and said that they shouldn’t have been able to— the administration shouldn’t have been able to dismantle the Institute of Peace, and they initially won. Judge Howell ruled that the takeover was a gross usurpation of power.

But then, about the worst panel you could possibly get if you’re these plaintiffs, Katsas, Rao, and Walker, stayed that decision on appeal and returned the institute to the administration, and so the headquarters is now under the administration’s control. The State Department has control of it, and they’ve been using it as an event space.

And it was in December that they bolted Trump’s name in silver lettering above the building’s title, which is engraved, and the State Department said earlier, before they actually put it up there, that they’d renamed the institute to the Donald J. Trump Institute of Peace to reflect the greatest dealmaker in our nation’s history.

So that had happened, and there— the argument was kind of sitting around, the case was sitting around because they had stayed the decision on appeal, and maybe that wouldn’t be so big a deal if then the appeal proceeded in a timely manner. But it got removed from the argument calendar pending the Supreme Court deciding Trump versus Slaughter.

The idea was that’s gonna bear on this, and so we’re gonna take it off the calendar, and we’re not going to address it. So, so it’s been on the calendar, and they recently said after Slaughter was decided, all right, we’re gonna get the ball rolling again. But what the plaintiffs are arguing here is that in the meantime, the administration has been doing dismantling work of the institute that goes beyond the status quo prior to the stay.

Sorry, not prior to the stay, prior to the, to the injunction that Judge Howell had issued. And so they’re arguing that they were kind of taking advantage of that, and that the latest example, what they’ve learned, they say that they’ve received information, they don’t say from where, but that the administration is preparing to carve the president’s name into the headquarters building, that a formal request for the work has been made, that a contractor has been selected.

So, what they’re asking for on an emergency basis is what they call a limited status quo preserving modification of the stay pending appeal that really just says you cannot carve his name into it. All they’re asking for is, while we wait for the appeal, just make sure they can’t carve his name in.

And in doing so, they say, they, they describe it as unsatisfied with the relative impermanence of external lettering, appellants apparently now intend to carve President Trump’s name into the facade of USIP’s privately owned headquarters building while this litigation is pending. And so anyway, you know, they’re asking him not to do it. They’re saying that that’s irreparable harm because, you know, it’s, it’s irreparable.

You’re carving it in there. They’re saying that that’s particularly of concern because this is a work of expressive architecture designed to be symbolic of USIP’s independent mission. And so, this would, you know, basically literally set in stone a different message. They’re also arguing and-

Benjamin Wittes: Oh, I see what you did there with literally. That’s clever.

Molly Reynolds: I didn’t do it. I didn’t do it. The, the, the plaintiffs did it.

Benjamin Wittes: Oh, I see. Okay.

Molly Reynolds: Yeah, yeah. Yeah. Thank you, though. Yeah, they’re very clever. And-

Benjamin Wittes: That’s very clever.

Molly Reynolds: Yeah. And so that’s what’s going on. You know, they read Slaughter’s— Because what the, what the appeals court panel had done, it said that the, that the government was likely to prevail on the merits, and the former board members are saying now that they think that Slaughter actually changes that in their favor, and that it confirms that Congress can create entities that are governmental in character but don’t exercise executive power, and the key question is whether it exercises executive power, and then you can’t do the at-will presidential removals.

So, we’ll see. In response to the filing, I don’t believe that the government has filed anything in response yet, but a spokesperson for the White House, Anna Kelly, called the institute a “once bloated, useless entity that blew $50 million per year while delivering no peace.” And so, we’ll, you know, see what happens next.

But yeah, not just the Kennedy Center trying to get his name— not just get his name, but get his name permanently engraved elsewhere in the city.

Benjamin Wittes: Okay. But I, I have two questions.

Molly Reynolds: Sure.

Benjamin Wittes: Is the United States Institute for Peace a government entity?

Molly Reynolds: Is it a government... I mean, what the, what qualifies it? I thought it was a private entity. It has a, it has a mix of, it has a mix of federal, it gets a mix of federal funds and private donations, if I recall correctly.

Benjamin Wittes: Right. But isn’t its board, I thought it, the whole point was it is not an instrumentality of the U.S. federal government. It’s a nonprofit that is sort of federally chartered and receives some federal money, like, like, is it covered by U.S. v. Slaughter?

Molly Reynolds: Well, I think that’s their argument. Their argument is that it might be governmental in character, but it’s not, like, an executive, it’s, it doesn’t exercise executive power. So that’s their argument. Their argument is exactly what you just said.

Benjamin Wittes: All right. Molly, the Supreme Court after holding everybody in suspense until two months before the election, the midterm election, and after letting the final rule issue on the Postal Service mishegas, I think is the technical name for the final rule said, slapped a stay on it and said it couldn’t couldn’t go forward or upheld the stay, really, from the lower court.

And so my question is, are Clarence Thomas and Sam Alito the only consistent members of, of the conservative majority, and the others just lacked the courage to do what needed to be done?

Molly Reynolds: Great question. So, the first thing I will say, ‘cause I think it’s worth doing just given how this is being read and what we know and don’t know, I think it’s reasonable...

I mean, I assumed, and I think it’s reasonable for you and many other people talking about this to assume, that this is 7-2. We don’t actually know that it’s 7-2, and what we know is that Thomas and Alito were in dissent, and then we know that Kavanaugh concurred, and we know that there was a majority.

So, we know that five other justices have to have been in this majority, but we actually don’t know what the final justice did. It’s possible that they voted to, t- well, for the stay on the injunction and just didn’t want to sign on to the dissent. We really have no idea.

Benjamin Wittes: Right. Amy Coney Barrett- Yeah ... was secretly-

Molly Reynolds: Yeah ...

Benjamin Wittes: or, or Neil Gorsuch was secretly-

Molly Reynolds: Exactly ... Exactly ...

Benjamin Wittes: with them, but-

Molly Reynolds: Yeah, yeah ... but- So, I mean, you know, again- ... didn’t want anyone to know I think it’s reasonable to assume otherwise, but so, so yeah. I think that it’s a good question. I, I agree. I think Thomas and Alito did what everybody expected they would do. I think that the kind of interesting thing about what Kavanaugh did is that he said, essentially, he focused on the equities and didn’t focus as much on the merits.

It was a little more complicated than that. He did a sort of different reading where he said, well, I could do, you know, an APA review of this, and I would say that it didn’t pass the APA review, but actually I think they have a good statutory case. So it wasn’t exactly on the equities, it was on this kind of different version of the merits argument, which might be because he has been using the Purcell principle to stop courts from stopping these, like, 11th hour changes, and if he did differently here, he would seem inconsistent.

And so, he kind of tries to do it or does it in this procedural posture instead. Honestly, he gave more of a, which is probably, which I think is to his credit, more of a tell to his thinking than anyone else in the majority. They did a super short, just a few sentence long, I think it was a three-sentence long opinion.

Although, it does more than it had to do. They could have just said that what the last sentence says, which is that the equitable factors applicable for obtaining emergency release don’t favor a stay. But they also said that the government was unlikely to succeed on the merits. They just didn’t say why.

So, I think that, you know, it’s, it’s encouraging because we know that the majority feels that way about the merits, even if it seems that Kavanaugh thinks that at least in some posture, the Postal Service would be allowed to do this, and this is just about the injunction. So now we go back and we litigate the merits at the district court level, and we find out what this means for 2028, and that probably makes it back to the Supreme Court too.

But to know that the majority said this about the merits, I think bodes well for that, and, you know, we’ll see where Kavanaugh goes then. I would imagine that Thomas and Alito would remain in the exact same place. I will say that the dissent, I was— I mean, I it’s— I’m not just saying I wasn’t a fan of the dissent because I disagree with that view.

I think that there were flaws in the dissent that are quite easy to identify, misstatements of the factual background, and kind of also just unfair elements. You know, Alito said that the states disagreed about the nature of the effects and that 12 states had supported the rule and said that they could comply, and that’s just not what happened.

It’s just not what the intervening states argued, and there was only ever one state, Missouri, that indeed said that c- it could comply, and it didn’t even quite say that it could comply. And then he also said that the states and the courts bore a, quote-unquote, “substantial share of the blame for the rule’s timing,” and implied that the litigation prevented the government from issuing the rule.

But that’s just not true. The l- last iterations of the injunction and the TRO actually allowed the Postal Service to keep working on the portal. And as far as the rule went, yeah, maybe they shouldn’t have issued the rule before the injunction was, as it briefly was, vacated. But they did issue the rule anyway.

That’s what, you know, when the Supreme Court wrote the last opinion saying, oh man, they can’t write a rule, they had issued the rule three days before that. So I don’t know. I think that that’s, that’s kind of absurd and, you know, it’s, it’s even more absurd to make those arguments about timing causing such a problem and saying that, you know, the, the, the plaintiffs filed these suits and threw sand in the gears at the last minute when the Supreme Court’s original order to vacate the injunction was on the grounds that the suits had actually been filed too early.

So, apparently, there’s, like, some insanely narrow Goldilocks window when that’s appropriate. But anyway, that, that’s more of the I, I think that the probably worst thing is the, I mean, it’s a mischaracterization of two things. It’s a mischaracterization of the position the states actually took in the briefing, and it’s a mischaracterization of the degree to which the Postal Service was impeded from issuing the rule.

And so, I don’t know, I found that troubling. I mean, I also found troubling the fact that he didn’t, Alito, in writing this dissent, didn’t engage at all with the disenfranchisement point. He didn’t argue that there wouldn’t be disenfranchisement and, you know, neither had the government, of course. So, yeah.

Benjamin Wittes: All right. Molly, what are the grand conspirators conspira- conspira- conspiring about this week?

Molly Reynolds: Yeah, so, so one thing is just we got kind of a few updates in some reporting. CNN had a very good story that shed a little more light on the DiGenova situation, as we spoke about last week, Joe DiGenova abruptly resigning from helming this investigation down in the Southern District of Florida.

And we learned a little more about why that was. One reason, apparently, was that he was upset that he didn’t have his own private SCIF, which, who among us? And then the second reason, or the kind of, you know, bigger story that seems to be unfolding here across reporting that we talked about a little last week too, was the idea that the Justice Department wanted things to move faster and wanted them to move faster on a narrower basis because that is what could mir- more realistically move quickly.

And it seems that there were frustrations with DiGenova descending down these rabbit holes, partly because he’s a, he was a true believer in the grand conspiracy. He really thinks it’s grand, and he wanted to make it grand and wanted to pull everything in. Oh, and there was also, he was sidelining the— They kept sending people down from main Justice to help him, and then he kept saying, no, you can’t help me.

But anyway, I think that the conversation about the narrowing points to, back to kind of where this all began, which is with former CIA Director John Brennan. And that brings me to the next update we got, which came in a filing from John Brennan’s lawyer. It was a d- declaration from his lawyer, Ken Wainstein, in the documents preservation lawsuit that he has brought here, that Brennan has brought here in D.C.

And so this lawsuit, to refresh everyone, ‘cause I think we only discussed it when it was first filed, is an attempt to get an order to the government to preserve kind of a range of documents related to their investigation of John Brennan, but specifically communications related to the charging decisions that have been made along the way in those investigations or d- or, or decisions not to charge, ‘cause, you know, we know a lot about these people resigning from the grand conspiracy, and this is part of why they bring in as additional information that DiGenova said what we discussed last week about needing evidence to bring these cases.

But so, so this declaration reveals a lot about what’s going on with the grand conspiracy, particularly as it regards John Brennan because Kurt Olsen, who has been unimportant and seems to be sort of taking charge of things now according to this declaration, was very chatty with John Brennan’s team.

So, what the declaration says is that John Brennan was subpoenaed to testify on October 15th, so next month, before a grand jury sitting in Fort Pierce, so that’s important information already. We knew that a grand jury had been stood up in Fort Pierce, but we didn’t have confirmation that any specific subpoena to testify had come from Fort Pierce, and now we have that confirmation.

And it was signed by Joe diGenova, and it said, “Contact DiGenova with questions.” So, they did that, and he said, yeah, we’ll, we’ll set up a call. And then the same day that they set up the call, he resigned. So eventually they make the call happen anyway, but it happens with Kurt Olsen and three other members of the prosecution team.

And Kurt Olsen is a election denier guy who’s involved in this investigation too and was, you know, in Puerto Rico checking out the voting machines before that, so he’s bopping around the administration. But in the call, he s- said there were multiple viable grand jury investigations, that one of them was this far-reaching investigation in Fort Pierce, so that is the grandest version of the grand conspiracy, and that includes the Mar-a-Lago search, which we’d learned recently there’d been subpoenas related to.

And he said there’s also an investigation relating only to the John Brennan thing alleged false statements before Congress in D.C. And he said Brennan’s a target of the narrower one. He is just a subject of the grand conspiracy. Now, the understanding previously was that he was a target. He was the only named target of the grand conspiracy investigation.

And, but he said the narrower investigation is still viable, and the issues there could be part of the larger one, such as being overt acts. So that’s a lot for one of the prosecutors to tell the defense counsel, and so it’s, you know, also a lot for us to learn.

And now it is on the record because it’s, because, Ken Weinstein put it in this declaration to the court in D.C. So, it’s a pretty big and interesting update. Yeah, please, Anna.

Anna Bower: Can I just, like, pipe up and provide some responsible speculation about maybe why Olsen was talking about Brennan being a subject of one investigation and a target of another?

Benjamin Wittes: And you should explain what those terms mean in the parlance of a grand jury investigation.

Anna Bower: Yeah. So, if you are a target, you are a putative defendant in the case. You are the person that the prosecutors are looking at charging. If you are a subject, you are, you know, just a person that they’re interested in that, you know, you could become a defendant, you could become a target, but you’re more so, a person that they’re interested in learning information from. You’re a witness in the-

Benjamin Wittes: Yeah ...

Anna Bower: in the case.

Benjamin Wittes: The distinction is a target is somebody they intend to indict.

Anna Bower: Yeah.

Benjamin Wittes: A subject is somebody whose conduct is of a s- is of interest, is-

Anna Bower: Yeah ...

Benjamin Wittes: of a matter of investigation.

Anna Bower: Right. So, it- it, but typically a- although Justice Department policy does allow circumstances in which a target can be subpoenaed to testify before the grand jury it’s a disfavored practice, particularly where the target, where the target and his or her counsel say that the person plans to plead the f- their Fifth Amendment rights.

And that can still lead to, you know, circumstances where if the U.S. attorney and the grand jury insist upon the target testifying and being subpoenaed, then you still can proceed. But, but Justice Department policy in the Justice Manual says ordinarily the subpoena should be discharged if there’s an indication that the person’s going to plead the Fifth before the grand jury.

So, it’s, it’s a practice that because of the perception of an unfairness you typically don’t subpoena the target to in, you know, under an involuntary subpoena to come and testify, particularly just because it looks like it’s unfair. Typically, they’re gonna plead the Fifth, all of that kind of stuff.

So, I think there might be some significance to Kurt Olsen for that reason, suggesting that Brennan is merely a subject of, of this one investigation, but then a target of a smaller investigation, although it gets a bit muddled because my understanding is that he’s saying the smaller investigation where he’s the target could eventually become a part of the larger investigation where he’s merely a subject.

Molly Reynolds: Yeah, that’s what I’m hung up on, right? Like, then he goes on and says that the narrower one might be an overt act in the larger one, of which you’re only a subject, but that, that doesn’t make any sense.

Anna Bower: Right. A-

Molly Reynolds: If you’re the target of the one we’re gonna use the acts that you’re gonna be indicted for alleging, allegedly having committed for the larger one, then aren’t you part of the conspiracy they’re gonna indict in the larger one?

Anna Bower: Right. The fact that he’s imagining that the the smaller case would be an overt act, a part of the bigger case itself suggests that Brennan would be an alleged co-conspirator in the bigger case. But I, I also will just say that it is kind of as we suspected, th-this filing suggests to me that Kurt Olsen is now the person who’s kind of leading this investigation, at least for temporarily.

And that itself is kind of remarkable because this is a guy who’s, as I understand it, formerly, you know, before the 2020 election, was like a products liability attorney. He’s, he’s not a former federal prosecutor. I think this is his... And he went from being the White House election czar to, for the first time, becoming a federal prosecutor at DOJ, and now he’s running the grand conspiracy case, apparently, or seems to be.

So, some real remarkable developments there.

Molly Reynolds: Yeah. And if I can add one thing, the last part of the declaration says that Kurt Olsen indicated that he was reporting to the U.S. attorney in the Southern District of Florida, Jason Reading Quiñones, but then to the Deputy Attorney General and Attorney General Todd Blanche.

So, you know, I think that when you get to the question of, oh, selective vindictive prosecution and trying to impute animus, I, I think it is not great for him to be making the representation that he’s reporting all the way up to Todd Blanche rather than, “Oh, this is just going on with the line prosecutors down in Florida.”

Benjamin Wittes: All right. Meanwhile, at the Fourth Circuit, Roger, one of the last cases to be dismissed because a prosecutor was irregularly appointed has seen an argument before a three-judge panel. And I gotta say, I’m not sure I have seen that many arguments in which it was easier to predict the outcome and the vote than this one.

What did you think?

Roger Parloff: That was exactly my takeaway. You know, you always begin these— journalists always begin these things with a this you know, a, a disclaimer that you can never predict the outcome just from an oral argument. I know ...

Benjamin Wittes: Sometimes you can!

Roger Parloff: Yeah, I think you can. And this one sure looked two to one to uphold what Judge Currie, h- the dismissal and a-along political lines.

I’m not sure if... The three judges are Albert Diaz, who’s an Obama appointee Julius Richardson, who’s a Trump appointee, and Henry Floyd, who’s an Obama appointee. Henry Floyd he, he was elevated to the Fourth Circuit by Obama, but he was actually originally appointed to the district court by Bush, I think, so, George W. Bush. So maybe you can edge into a little bipartisanship there. I don’t know.

I have always felt like... Now, this case hinges on 28 U.S.C. 541— 546, which is a provision that is explicitly about replacing U.S. attorneys when a vacancy arises. There’s also a more general statute, the Federal Vacancies Reform Act, that applies across government to high level, to, to when vacancies appear in appointments that require Senate confirmation.

And we’ve seen a lot of disqualifications for shenanigans involving the, that act also A-Alina Habba, Sigal Chattah, Sarcone. I think we’re up to about, of all of these, I think we’re about seven have occurred, the disqualification. I find the, the maneuvers under the FVRA, the Federal Vacancies Reform Act, sort of more obviously illegal than what’s happened here under 546.

And so, I don’t know how these eventually come up when they reach, and I assume they do reach, the Supreme Court. Maybe I’m wrong, but there’s a very, ambiguous in my humble opinion. There’s language about h- how long can this person, the— It gives the attorney general the power to appoint somebody to fill the vacancy for 120 days.

And then it says the, the, expiration it says, “A person appointed as U.S. attorney under this section may serve until the earlier of,” and then section C1, somebody is approved by the Senate, basically nominated by the president and approved by c-confirmed by the Senate, or “the expiration of 120 days after the appointment by the attorney general under this section.”

And in the, in the second case, the district court gets an opportunity, may appoint. And so, the issue is that 120 days, is it, can there be successive versions? What appointment by the attorney general, does that mean 120 days after each? Can the attorney general appoint a successor, or is there just one shot? You’ve got 120 days to try to nominate and get somebody through the Senate, and after that, the district court handles it.

And now if you begin to look at things like: what’s the purpose of the statute? What’s the structure? What’s, and the legislative history, which is sort of a no-no since Scalia. You, by and large, you aren’t supposed to look at legislative history, which at, at least in terms of the documents that, that that do- that chronicle what a- what actually happened.

But if you do look at those things, they, they all seem to move in, in favor of Judge Currie’s ruling. You, you i-if, if the government is right, and you can have successive appointments by the attorney general, and in fact, maybe you could have successive appointments of the same person by the attorney general, then the whole thing’s a charade.

And it, it makes the the section D about the district court appointing somebody superfluous. It also makes the whole idea of having the Senate confirm U.S. attorney appointments superfluous. That’s in a different statute. That’s in 28 USC 541. So, there are strong arguments you know, if you could say it’s ambiguous.

I think that the conservative, some, many of the conservatives are gonna say it’s not ambiguous. There’s nothing in here that prevents successive appointments. And in fact, prior to 2007, there were a few. They were rare, but they did occur, successive appointments. And Congress n- there were about eight of them over I think a 20-year period.

So, it was not common, but it happened. And anyway, I it’s a little murky. This one is gonna be a win, I think, for Judge Currie. I think Lindsay Halligan will remain disqualified and, and this case will remain dismissed. There was also— There are also issues about the attempt to ratify, Pam Bondi’s attempt to ratify Lindsay Halligan’s actions after the fact.

But this may g- may go to the Supreme Court, and at that point, I don’t know what happens.

Benjamin Wittes: I’m not sure, I’m unsure the government will appeal it to the Supreme Court. It’s not obvious to me why the Supreme Court would take it, given that there’s no circuit decision the other way. I suppose they usually do take SG cert requests, but it’s not a tremendously important question except to Lindsey Halligan, Letitia James, and Jim Comey.

All right. The latest order, Anna Bower, in the Katie Phang lawsuit regarding the Epstein files is out. How did my, is my old MSN green room buddy, Katie Phang, doing in her litigation?

Anna Bower: Yeah, Katie’s doing pretty well in her litigation over the DOJ’s failure to release certain documents related to the Epstein Files Transparency Act.

The, the judge in this case, Judge Sullivan, previously did enter a preliminary injunction to require DOJ either to release certain batches of materials publicly or to show cause as to, you know, why it is that they have certain redactions and to provide explanations to the court. In some of those documents, in response to, to that order the judge found that DOJ did show sufficient, you know, reason as to why it, it should keep these redactions for victim names, law enforce- enforcement personnel, that kind of thing.

But importantly, in this most recent order that came out, the judge found that the, the, that DOJ had not shown sufficient reason to keep these hand... to withhold these handwritten notes of an FBI interview that was the basis of a FBI 302 report that was typewritten. The reason that the Justice Department gave for withholding that was that it was duplicative and, and difficult to redact.

My understanding, although this is not referenced in the order, but it has been reported, and my understanding is that these handwritten notes relate to an allegation or an interview that was done with a woman who alleged an encounter with Trump himself when she was underage. That has been, you know, the reporting is that that is what these handwritten notes are about.

And so now the judge has said, you know, submit these documents to me for in-camera review ‘cause I wanna take a look at them. There’s no statutory exception for what you’ve said here which is that they’re duplicative difficult to redact. There’s nothing in the Epstein Files Tr- Transparency Act that says you can just withhold documents on, on that basis.

So, the judge ordered DOJ to submit these documents for in-camera review by September 24th and DOJ has subsequently already appealed that order, or, or at least gave notice of appeal. So, we will see what happens with that, Ben, but it, it, it certainly seems that the judge is taking this very seriously.

There was, it, at this point, the judge said, “It’s too early for civil contempt but it is within my power to, you know, pursue civil contempt if I need to.” So, kind of a, a warning shot there. But yeah, that’s the latest in the Katie Phang lawsuit.

Benjamin Wittes: Am I within my constitutional rights to send an email to a federal official promising that he will never know peace and calling him a monstrous human being? And what happens to me if I do that?

Eric Columbus: Yes, you are within your First Amendment rights. What happened to a man in Rochester, New York, the hometown of our fellow senior editor, Kate Klonick, is that he got a knock on his door from ICE agents. David Shriver sent an email to Todd Lyons, the head of ICE, in January of 2026.

Todd Lyons was the acting director of, of ICE at the time, and it really was, was quite an email. I think it’s worth reading in full. “You are a monstrous human being and will go down in history as America’s Reinhard Heydrich, the Butcher.” If you don’t know who Reinhard Heydrich is it, it’s worth looking up, a Nazi who was assassinated by the Czech resistance in 1942.

“The way you are protecting the obvious execution in Minnesota, even as we see the videos, will lead to your downfall. Even Trump will turn on you before the end, and you will be a sad, despised man who eats himself alive with shame at your own pathetic weakness. You will never know peace. You will seek to lose yourself to escape the burden of knowing the truth about yourself. But wherever you go, you will find yourself. You will torment yourself until your last day on Earth.”

Benjamin Wittes: Now, I just wanna say before Eric goes on that here at Lawfare Live, we do not endorse sending notes that are on the margins of threatening to public officials even when they are elegantly worded.

Eric Columbus: I, I mean, I don’t see this one as being on the margin. I think this is... He’s squarely saying, “You will torment yourself. You will, you know, you will hate yourself. You will eat away at yourself.” It, it, it doesn’t seem like a close call to me. It doesn’t-

Benjamin Wittes: I have no doubt that it is not a true threat and that it is constitutionally protected, and that and I also think that I— Well, let’s just say it is not Lawfare’s position that you, the listener or the viewer, should send a similar note to your least favorite public official.

Eric Columbus: That’s, that is fair. So, ICE is not so happy to receive this email. I don’t know if, if Mr. Lyons read it himself or, or some staffer read it.

It, it gets goes through the bureaucratic process, and five months later, they, a few agents show up at his door in Rochester. He’s on a trip to Europe, but his, his wife is there. They leave a note with him a, a big, a note with her rather. It says “Warning notice,” and, “You may be in violation of federal law.”

And it recites the statute it sa- that criminalizes threatening public officials. And it says that we have a, you know, the Office of Professional Responsibility has identified an email sent to Todd Lyons, which it has reason to believe may constitute a violation of that statute. And they give that note to his wife.

They apparently try to track him down in New York City and unsuccessfully. And he sues based on that, and it gets, it gets some publicity. This is in July when he sues. And DHS tweets and says “We investigate all credible threats,” et cetera, et cetera. And Judge Contreras, Rudy Contreras of the, in D.C. issue- who was an Obama appointee i- issued an opinion granting him an injunction i- in, in part.

And first goes through whether... ICE says there’s no standing because, look, there’s, there’s no likelihood that we’re gonna go after this guy in the future. And the, the leading case, ironically, on this is called Lyons, spelled the same way, but apparently no relation to Todd Lyons.

And but Judge Contreras says, no, of course he has standing, because this, what they’re s- even the, the, the... What he, they’re saying with this warning notice is that he could be prosecuted for his future speech, and that is an existing harm, and it doesn’t, it doesn’t matter e- even if he is not, in fact, later prosecuted. And the, they quotes a Supreme Court opinion from last year, which in turn quotes an earlier dissent by Justice Marshall saying that the point of the sword of Damocles is that it hangs, not that it drops.

And it, the Judge Contreras concludes that it’s coercive the, the warning notice, in violation of the First Amendment. There’s, it’s not just kind of a note, like, trying to persuade him to, you know, hey, wouldn’t it be nice if maybe, maybe don’t send these emails in the future. They are basically threatening legal action against him if he keeps at it, even though it is protected speech.

And then Judge Contreras tries to decide, you know, what can I enjoin here? And the injunction that he issues is against relying on the warning notice or Mr. Schrier’s email that he had sent to Lyons in any future prosecutions or investigative demands, or issuing, or, and also enjoining ICE from issuing any similar warnings to him.

So i- it’s a moral victory. It’s not exa- entirely clear what, you know, if is, the harm is remedied here. But at, at the very least, ICE has been made to feel I think, rather dumb in the public eye by this lawsuit, which is sometimes the main goal of a lawsuit.

Benjamin Wittes: All right. Well, people who brought lawsuits to prevent manual searches of electronic devices at the border when they were conducted without a warrant and without any suspicion were not merely trying to make an agency look dumb.

They were actually trying to get such searches stopped. But the Second Circuit has now joined several of its sister circuits to say, no the government can look at your devices at the border. And so, my question is, is this a surprise? Were people expecting it to go the other direction or is this just kind of what we’ve come to expect regarding the Fourth Amendment at ports of entry?

Eric Columbus: I don’t think it’s a surprise. I, I think that they’re, they’re m- i-it’s possible Supreme Court might take a look at this issue in a, in a, in a somewhat different way by virtue of the involvement of, of cell phones, which the court has recognized as a kind of a technology that perhaps should be treated differently.

But a-at this point, I don’t think this decision was a surprise. So this involves a, Mr. Alisigwe, I’m not sure I’m pronouncing his name correctly, who was convicted for bank fraud and conspiracy to money launder. He apparently would fake passports and IDs and then, and then open bank accounts in the names of real people.

And he was under investigation. He arrived by plane at JFK and during an interview with... He’s a, a lawful permanent resident, so he’s someone who they basically have to let into the country. But they, the, the CBP people interview him and they s- they, they ask to scroll through his cell phone and he, he lets them, and they, they find and then photograph contents of it.

They find, like, i-images of other people’s names and birthdays and Social Security numbers and some incriminated WhatsApp messages. And he seeks to suppress that evidence. He’s, it’s denied and he’s convicted, and then he a-appeals to the Second Circuit. And he loses.

The panel is Judge Menashi, who was appointed by Trump, Judge, I believe Judge Gonzalez, who is an Eastern District of New York appointee, who is of- has the interesting distinction of being appointed by both Biden and Trump. He was appointed by Trump in the first term, and then they ran out of time, so then he was appointed, reappointed by Trump. By Bi- sorry, by Biden. The third judge was Eunice Lee, who is a Biden appointee. And so there’s the m- there’s a split, there’s a majority of Judge Menashi writes, joined by Judge Gonzalez, and they conclude that there, you don’t need reasonable suspicion...

Well, sorry. They note that in general, you don’t need any heightened suspicion to search property at the border, and the border is, includes where you land your first known-

Benjamin Wittes: It includes ports of entry ...

Eric Columbus: Thank you. Includes ports of all ports of entry even if it’s very far from a physical land border.

And they reject the contention that you need, that, that a different standard should apply to a cellphone. Even though there’s a Supreme Court case in 2019 called Riley where the Supreme Court said that you often need a warrant in other situations to search a cell phone, even if a, a warrantless situation, even if a, a warrantless search would be allowed to search other property, like a search incident to arrest.

If, if it involves a cell phone, you need a warrant, you need, you know, a higher standard. But they reject e- extending that to the border search context. And they also reject the notion that the, the search would need to be limited to contraband, meaning things that are illegal in and of themselves bringing to the country, s- for example, child pornography, or evidence of crimes that are related to the border, like, like import crimes, for example.

They also reject a separate First Amendment argument that was advanced only by amici that said, saying that, look, this would be both over-inclusive and under-inclusive if you’re just bringing in, there’s no reason to ha- have a First Amendment limit on cell phones when you can still have First Amendment problems or First Amendment issues, at least, by searching, for example, a reporter’s notebook that is in their, as a physical document.

Judge Lee concurring says y- you need at least reasonable suspicion, and she says that cell phones are different. They are, they are not a routin- they are not a, quote, “routine search,” which is the standard often used in the case law. And she points to the Riley opinion as recognizing that cell phones are in fact different and, not...

She says, look, the, the holding of Riley is not the main point, but it means that we need to kind of conceptualize cell phones differently because the amount of information that is contained in a cell phone, which can basically have a person’s entire life, i- is not the same as what they would be physically transporting across the border, and our, technol- our, our jurisprudence needs to take that into account.

Benjamin Wittes: Well, I will just say to Judge Lee, good luck on that. You’re not gonna there’s no way that the Supreme Court is gonna say the government doesn’t have authority to search a cellphone at the border It’s just not gonna happen.

All right. Speaking of things I didn’t think were gonna happen, but did, ICE agent Christian Castro is now back in Minnesota and in jail after Texas authorities and courts seemed bent on keeping him a free man in Texas. Anna, how did this happen?

Anna Bower: Well, ma- I, he was in jail. I’m actually... I, I’m not entirely sure if he’s been released from detention yet or not, but he appeared in court. He was arrested in Minnesota this week and also appeared in court twice this week in Minnesota because, remember as we’ve discussed before, he is now charged both under state law for assault with a dangerous weapon and, and lying to a law enforcement officer, and then he’s also charged now under federal law for lying to an FBI agent.

Although the, the feds decided to decline to charge him on civil rights charges related to the shooting.

Benjamin Wittes: And is it, is the moral of this story, Anna, that when you shoot through a, a civilian’s house in an unprovoked manner and shoot somebody, I think in the leg, and wound them, you shouldn’t lie about it to the FBI?

Anna Bower: Well, yeah, you shouldn’t lie about it to the FBI or state law enforcement, and you also probably just shouldn’t shoot people who are, you know-

Benjamin Wittes: Well, it doesn’t seem like the-

Anna Bower: ... running

Benjamin Wittes: ... just shooting

Anna Bower: ... running

Benjamin Wittes: … got him in that much trouble. I mean, the- ... Texas was, and the feds were willing to protect him on the shooting. It was just like, but no, you lied to us. You know, that, that’s it.

Anna Bower: Yeah. It, at least with the federal charges, right? And I, and I will say that had he not lied about it you know, I, I, as we will discuss, I think some of the se- removal to federal court in the state charges and Supremacy Clause immunity stuff would be a little bit of a harder question maybe.

But, to that end, as I was saying, he appeared in federal court after being arrested on the, the state and federal charges this week. He was in detention, but in the state case, wa- the judge granted bail. I think it was a $200,000 bail. And then t- with some other conditions. And then in the federal case today, the reporting is that he, he was released on his own recognizance.

So, so it seems that he is you know, out. Or, or shortly will be out on both of those criminal charges. But Ben, I... You know, the next step in this, I would assume, at least in the state case, i- is going to be after things, you know, get started, the first thing that’s going to happen will be a notice of removal to federal court likely.

Would you agree with that?

Benjamin Wittes: Yes. I think the if my memory of removal law i- from the various Trump cases both in New York and Georgia are, is accurate, the standard would be sort of did he do this i- under color of his federal office? Which he clearly did. And is there a plausible federal defense? And if the, and the standard is not is it a winning federal defense, it’s kind of is it a colorable one?

And so, I assume the colorable federal defense would be, yeah, I feared for my life for some reason, which can’t be second guessed factually at the removal stage. And so, I think he’s a federal officer who fires into a house and is gonna argue that it was kinda self-defense or some kind of reasonable response to the circumstance, and that is a defense under federal law.

Whether he has it, an accurate statement of it, I very much doubt. But so yeah, I assume it does get removed to federal court. And it’s certainly the better forum for him. Do you, is my memory of the analysis correct?

Anna Bower: Yeah, yeah. And although I don’t think he’ll necessarily you know, r- say that a pure self-defe- I think what he’s gonna raise is Supremacy Clause immunity, that, you know, he was a federal officer doing what was necessary and proper in the scope or, you know, related to his federal duties. I, I think though that-

Benjamin Wittes: Right, but you still, you still have to establish that-

Anna Bower: Yeah.

Benjamin Wittes: ... something would be proper.

Anna Bower: That it was some kind of, right, the predicate would be-

Benjamin Wittes: And, and-

Anna Bower: Yeah.

Benjamin Wittes: ... The standard is, you know, he has to be able to argue that it would’ve been a-

Anna Bower: Right ...

Benjamin Wittes: proper use of lethal force, which it wasn’t, by the way, but it’s-

Anna Bower: No, it wasn’t.

Benjamin Wittes: But you’re not gonna have that argument at, at the removal stage. So I’m-

Anna Bower: But, but there’s all of these questions though with, with whether, you know, like, we’ve, we’ve talked about this before when there were Trump case removal stuff going on in Fulton County. There’s all these unresolved issues with the federal removal statute.

Like, what do you do when there are disputed questions of fact? Like, like this question of, you know, he might claim that X happened, and then the state claims that Y happened. You know, remember we had, when Mark Meadows tried to remove his case, he testified in federal court to, to try to you know, beef up his case for removal.

There was an evidentiary hearing w- related to it. But then more to the point for me, I’m not sure how he makes an argument that lying to state and federal officials is That there’s a colorable federal defense for that when he has been charged at the federal level for lying as well.

Benjamin Wittes: Yeah, that may be right, and especially because lying to other federal, to officers-

Anna Bower: Yeah.

Benjamin Wittes: …is not within the job description of an ICE officer.

Anna Bower: Right. And then one final thing I’ll just mention is, remember the 11th Circuit removal precedent, which is that a former federal... The removal statute does not apply to a former federal official who tries to remove.

That’s the reason why Meadows and all those people technically couldn’t remove and weren’t successful in removing you know, beyond just the facts of it all, which, I think was, was going to be another issue as well. But that was the 11th Circuit precedent that was established. And you know, I haven’t looked at in this circuit what the, if the court has, the circuit courts have looked at anything related to that, but I will just say that that is another issue here because I... My understanding is he’s been let go from his position as a ICE officer now.

Benjamin Wittes: All right. Roger doesn’t student, foreign student here on a foreign, on a student visa get to stay here until he or she finishes a term of study, or only for four years? And if the latter, what does that do to PhD students?

Roger Parloff: Well, at the moment, if this ruling holds up the foreign student will be able to complete their course of study. The— This is an interesting case. It involves a change in the visa policy in the star- in July of this year from what it’s been since 1978, so 48 years.

It involves a lot of people. This is called President’s Alliance on Higher Education (presidents being the presidents of higher institutions of educat— higher education) versus DHS. Judge is F. Dennis Saylor IV, he’s a George W. Bush appointee. And so, the new rule said applies to F visas, J visas, and I visas. F is foreign students, J is university researchers, professors, instructors, and I is foreign press.

And it’s a lot of people. Like, the foreign students alone is one point six million people. MIT is forty percent forty percent of its grad students are on F visas. Harvard is thirty-eight percent of grad students. A lot of undergrads too. The foreign press thing is quite interesting too.

The foreign... Now, what it does is it, it cuts their visa to four years, no matter how long their course of study. As for the foreign journalists, it cuts their visa to 240 days. And we know foreign journalists who have told us, “You can’t get a lease for 240 days.” And as a practical matter, what it means is, in all of these cases, of course, yeah, you can apply for renewal, but the renewal is almost entirely arbitrary.

And so, and so it becomes a pressure tool, especially for the journalists. I mean, if you write a story that displeases Trump and your 240 days comes up and you apply for renewal, it’s very easy to say, “no, there isn’t room this time.” And, and the same with the foreign students. You can discriminate against them for viewpoint discrimination point of view their statements, or the institution.

So, and it was passed with after 32 days of comments, which is very short. There were 22,000 comments. They were almost all negative. And according to the judge, Judge Saylor, the responses to the comments were not credible.

And the government was saying things like, “Well, this serves national security purposes. It prevents fraud and abuse somehow.” And they would give an example of where, you know, a handful of Chinese students had photographed military installations, but, you know, query, how will cutting their stay to four years prevent that sort of thing? There’s also-

Benjamin Wittes: Right, four years is plenty of time to photograph military installations.

Roger Parloff: Right, and you can do it on a tourist visa, too. So, there was no connection between the stated goal and what’s happening here. So, he did issue a Section 705 postponement that’s under the APA, the Administrative Procedure Act. So, it’s like a preliminary injunction, but it’s the APA version, and it’s nationwide.

So far, a lot of courts have said that C- CASA, you know, to the extent that it makes it harder to impose nationwide injunctions, doesn’t apply to the APA ‘cause that’s, that’s not equitable relief, it’s legal relief. I know this is sort of mumbo jumbo, but that’s, that’s the stated reasoning. And so, this is an important-

Benjamin Wittes: And Judge Saylor— And Judge Saylor, if memory serves, is in the district of Massachusetts. Is that-

Roger Parloff: That’s right. Yeah. Sorry.

Benjamin Wittes: Yeah, so this would appeal to the Fifth Circuit-

Roger Parloff: First ...

Benjamin Wittes: to the First Circuit, sorry. I don’t know why the word fifth came out. I meant the First Circuit. Hear what I mean, not what I say, people. And thence to the Supreme Court, it will get a friendly hearing at the First Circuit, I’m confident, and the s- the Supreme Court is a tougher venue, obviously.

All right, speaking of the First Circuit, it has rejected the Trump administration’s third carde- par- country deportation policy. Boy, there is no word I won’t trip over today. Roger, what is that about? This is E- Eswatini?

Roger Parloff: Yeah, among other things. This is really, really important. I mean, this happened about five minutes before showtime, and otherwise it would be, I think, I would hope it would be number one.

Benjamin Wittes: But I- Even more important than the, than the writing, the engraving the president’s name on multiple buildings?

Roger Parloff: It’s a close call, but, but yeah, I would, I would n-nod in that direction. So, and it’s unanimous. Seth Afraim, Jeffrey Howard, Lara, Lara Montecalvo, so that’s Biden, George W. Bush, and Biden.

And remember, this is the case that early on Brian Murphy, a much cr- you know, criticized judge by the, in, in the MAGA community tried to stop this third country policy. This is the policy of I’ll t- I’ll discuss it in its July 2025 form. It says, if we w- if you have a final order of removal, and it’s, you can’t be effectuated because you have a withholding of removal or, or you have a credible fear of facing torture or persecution, they will send you to a third country, and they won’t give you— it’s a bifurcated thing. If they can get— if they can pay that third coun-country, say Ghana to give it, quote, “diplomatic assurances” that nothing bad will happen to you, and the, and Secretary Rubio says, I find that credible, then you don’t get any hearing at all.

You don’t get any chance to, to enunciate a reasonable fear, not under the torture, convention against torture, not under the other, the other existing statutes relating to persecution. And you just go. And so we’ve sent people, I guess, I can’t remember the worst places I guess South, I mean, South Sudan.

I, I mean, you know, these were the... these are re- Central African Republic. You know, these are horrors. And so, Brian Murphy tried to stop this early on, and he issued a TRO and then a preliminary injunction, and the Supreme Court stopped him. Remember that stay. And so, for a long time, they’ve been able to send people to the Central African Republic.

Well, now it’s come back— it came back to Brian Murphy for summary judgment, you know, more, he can look at everything, and he ruled against the government again. And now that’s on appeal, and the First Circuit is saying, Yeah, we’re going to uphold almost everything. There were— I, I’m sorry I, I start, I interrupted myself, but the diplomatic assurances was one thing. And in that case, you get no hearing at all. If there’s no diplomatic assur-assurances, you get like 24 hours. But 24 hours isn’t very much if you’re a detained non-citizen who may not speak the language and so on.

And of course, no one’s ever— this notion of blanket diplomatic assurance has never been known before. There, there has been something when trying to deport an individual and the, and the foreign country will say, Okay, we will give you diplomatic assurances, we’ll protect him. Then you do... There is law that you need to honor the, that.

But there’s never been an attempt to s- what does it even mean, blanket assurances? Ghana’s gonna protect all of these people? They’re how, how will they do that? And so, basically, they uphold Murphy’s ruling, which I think is a se- a, it’s an Administrative Procedure Act 706 vacatur. It’s a final Administrative Procedure Act basically the equivalent of an injunction. And the equivalent of a nationwide injunction. So it’s a big, big deal. They also go past, blow past a lot of jurisdiction-stripping statutes and which are so-

Benjamin Wittes: Gonna be more important to the Supreme Court than they are to the First Circuit.

Roger Parloff: Yeah. Yeah. And so, it’s an important ruling while it lasts. The most important thing is something I don’t know because I’ve, I’ve really been rushing through this because it happened before, and I was trying to keep an ear on what was going on here. I don’t know if it takes immediate effect. I n- I know that earlier... Well, I’ll just leave it there.

So that’s an important thing to find out.

Benjamin Wittes: All right. So, both its, its circumstances of effectiveness and terms of longevity are very much open to question, but will create some consternation for the administration for as long as it lasts. All right, Anna Bauer, w- I have three federal workforce questions for you before we wrap.

The first involves Judge Illston in the Northern District of California, who has held that DHS leaders were arbitrary when they decided to cut FEMA’s staff by half, and they found that doing so damaged the agency’s ability to fulfill its mission. Does that mean that half of FEMA’s staff is going to go back to work?

Anna Bower: No, it doesn’t. It’s not clear actually what the remedy will be yet. The judge felt that the requested relief, the re- the relief requested by the plaintiffs in the case was overly broad and no longer seems to, like, fit, some of the conditions that were on the ground when they first filed suit.

So, the judge, instead of ordering immediate, an immediate remedy o- ordered a conference for the, the parties basically to confer and try to see if they can figure out, you know, what a, a... Some kind of arrangement that they can come to given that their motion for partial summary judgment by the plaintiffs was granted.

So, we will see what happens with that. But the reason why this opinion, I think, is really interesting, Ben, just to give you some background, FEMA, i- after Hurricane Katrina, there was a lot of criticism of DHS’s handling and management of FEMA. So as a result, Congress passed some reforms in which it transferred functions that previously were handled by DHS over FEMA to FEMA directly, which is... And it established FEMA as this kind of distinct entity within DHS. And that statute also gave, you know, FEMA its own authority over personnel, certain personnel decisions, things like that.

So the argument here by the labor unions that sued was that this decision to cut the s- the staffing and not to renew certain employees by 50% wasn’t actually made by FEMA officials. This was a decision that was made by DHS officials. But in the course of this litigation playing out, there was a lot of discovery issues that came up and eventually resulted in the judge, Judge Illston, finding that the DHS and FEMA officials had, you know, intentionally acted to deprive the plaintiffs of certain evidence in the case because they were using Signal auto-delete messages including after the suit had been filed and when they were named defendants in the case.

So, under the Federal Rules of Civil Procedure, this led to an, a disfavorable inference against the government in the case.

Benjamin Wittes: Did they include Jeffrey Goldberg on the Signal chats?

Anna Bower: Je- Jeffrey Goldberg, as far as I’m aware, was not included on the Signal chats. But it, but it really for the government was a, a very disadvantage ruling because it meant they couldn’t contest the idea that DHS was the organization that ordered this staffing cut, that it wasn’t actually FEMA, and so therefore, it was beyond the, in excess of statutory authority, that it was arbitrary and capricious, all of that.

And so that is why ultimately we, we kind of got this partial summary judgment. I mean, it’s, it’s not just that, right? Like there’s other deposition stuff-

Benjamin Wittes: 50% of FEMA are gonna get their jobs back, people, because government officials used Signal to, to hide stuff. That’s, you know-

Anna Bower: I d- I don’t think that that’s gonna happen, but I think it’ll be some other type of remedy.

Benjamin Wittes: But, if, but if they do, they should all give donations to the Signal Foundation. All right. Last item, penultimate question. Judge O’Toole, also in the District of Massachusetts, it’s a big week for the First Circuit on Lawfare Live today, has temporarily blocked the Office of Personnel Management from asking job applicants which Trump executive orders and policy initiatives are significant to them, and how they would implement those initiatives.

So, Anna, which Trump executive orders and policy initiatives are significant to you, and what steps would you take to implement them?

Anna Bower: Well, I’ve never really thought ... You know, Ben, I’m, I think that this is a violation of my First Amendment rights-

Benjamin Wittes: The journalistic privilege-

Anna Bower: ... for you to ask me this question

Benjamin Wittes: of not having opinions.

Anna Bower: Yeah.

Benjamin Wittes: I’ll just say for me- But ... it’s getting rid of the penny

Anna Bower: That’s an, that’s... I didn’t even know that that was an executive order.

Benjamin Wittes: Or at least a, a policy initiative. Anyway, tell us about the opinion.

Anna Bower: Anyway, my policy initiative for myself is to find out who the administrator of DOGE is.

But about this decision from Judge O’Toole this was again, a suit by labor unions to temporarily stay this, you know, new question that is on certain federal employment applications. As you mentioned, it asks applicants to talk about, you know, their fa- I can’t rem- I can’t recall the exact language, but essentially their policy initiatives that they are interested in, and then how they would implement them.

And this wa- the argument here is that this is really kind of a partisan loyalty test u- under the guise of a more neutral kind of question about administrative policy or executive orders. And, and the judge found that at this initial stage the, the plaintiffs here are likely to succeed, that they have reasonably interpreted this as a political litmus test, that there’s no legitimate i- interest because, you know, the CSRA already prohibits employment decisions based on political affiliation, that there’s, that this is not narrowly tailored because there’s no connection between jobs like air traffic controller and, you know, a person’s political policy interest.

So, for all of those reasons, right now there’s a temporary stay that has been entered through this order in which the federal government is not supposed to use this question for future employment decisions.

Benjamin Wittes: All, all right. Anna, one last question. Who is the administrator of DOGE?

Anna Bower: Ask me next week, Ben.

Benjamin Wittes: All right.

Consider that a preview, folks. We’re gonna ask that question to Anna next week, and she is gonna have interesting things to say in response. We have one question on the queue, and it has Molly Roberts’ name all over it. Matt asks, “Lawfare’s excellent podcast on 18 U.S.C. 592 focused almost exclusively on the prospect of the president might use the armed forces to interfere with upcoming elections, but the broad language of the statute would appear to apply to more than just the military.

The statute bans having people with guns at the polls or armed people. Given that ICE agents are, in the words of the statute, “armed men,” and the Secretary of Homeland Security is a person in the civil service of the United States, is there any good argument that the statute should not also be understood to prohibit the deployment of armed ICE agents to polling places?”

Molly?

Molly Reynolds: I am going to try to not mess up the, like, do a weird double negative thing. The argument that it does prohibit the deployment of armed ICE agents to polling places is a good one, yes. So, the ICE angle would get you around the Posse Comitatus Act, but it shouldn’t, I don’t think, get you around 592.

So, as long as they’re at the polling places, you know, near enough to them, I feel like there’s a very good argument that that’s an issue. But Ben, if you disagree, please say so.

Benjamin Wittes: No, I agree completely. I think it would prevent ICE officers from being armed at polling places, but it would not forbid them from being in uniform, maybe in body armor-

Molly Reynolds: Yeah.

Benjamin Wittes: with very intimidating demeanor. And so, I think you can probably, if you’re the administration get pretty far, but I think once you put arms in their hands, you have a prohibitive 592 problem.

Roger Parloff: Yeah. And I, I think they’re-

Eric Columbus: It’s pending lawsuit, right? Sorry, Roger, go ahead.

Roger Parloff: Yeah. Yeah, I think we discussed it last week.

I think it was just filed in the D.C. court, d- district court. And I’m having trouble remembering the parties. But I know that Denver was ...

Eric Columbus: It was some civil rights group.

Benjamin Wittes: Yeah, it was up- it was the city of Denver and some civil rights groups.

Roger Parloff: Yeah. And, But it hasn’t been-

Benjamin Wittes: And we-

Roger Parloff: Go ahead.

Benjamin Wittes: and we agreed that there was a significant ripeness concern about it.

Roger Parloff: Yeah.

[Outro]

Benjamin Wittes: Folks, we’re gonna leave it there. This podcast is part of Lawfare’s live stream series, Lawfare Live, The Trials and Tribulations of the Trump Administration. You can subscribe to Lawfare’s YouTube to receive an alert the next time we go live.

Thanks this week to our excellent senior editors in reverse alphabetical order, Molly Roberts, Roger Parloff, Eric Columbus, and Anna Bower. The Lawfare Podcast is produced by the Lawfare Institute. You can get ad-free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter at our website, lawfaremedia.org/support, and you should do that because it is a crime to give material support to designated foreign terrorist organizations.

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