Lawfare Daily: The Trials of the Trump Administration, September 25

[Intro]

Eric Columbus: It’s Lawfare Live, The Trials of the Trump Administration. I’m Eric Columbus, Lawfare senior editor, pinch-hitting for il capo di tutti capi, Ben Wittes. It is 4:00 PM Eastern on July— on, sorry, on September 25th, and summer goes by so fast. And I am here with my fellow senior editors, Anna Bower, Roger Parloff, and Molly Roberts.

So, one brief announcement before we begin. Please make sure to tune into Lawfare’s YouTube channel at some point next week starting Tuesday morning, to watch the second installment of Lawfare’s Deportation, Inc.: The Rise of the Immigration Enforcement Economy series, produced with SITU. We have a typically fun-filled action-packed show for you today, and we are gonna start off with some of the top news of the past week.

[Main Podcast]

And the top of the top is the Trump administration’s ban on CNN, MS Now, and Politico, which was recently quashed by Judge Kelly in D.C. via a, a temporary restraining order. Why don’t we start with Roger, who will bring us up to date on that?

Roger Parloff: Yeah. So, this all, as you probably know, this started at 3:04 PM on Friday with a tweet from Trump, who President Trump, who said he would ban CNN, MS Now, and Politico.

He would pull their hard passes, which is the main pass that gets you onto the White House grounds for White House correspondents. There’s pro- there’s over 1,000 of them. CNN had 40, MS Now had about 22, I think, and Politico had 16. There was no ex- no notice, no opportunity to contest no...

And the explanation was basically just fake new- that you are fake news, variations of that theme. Fake news being his general term for critical news. The next morning it took effect, reporters were turned away. They filed, on Monday, they filed suit. The theory was Fifth Amendment due process.

They hadn’t been provided any notice or opportunity to object or defend themselves. And then two First Amendment claims: viewpoint discrimination and retaliation for First Amendment protected activity. All of those w- seemed like pretty slam dunks based on prior case law.

And that… the theory was that most of the White House forums certainly are what’s called a non-public forum. And that’s— I mean, eh, the White House itself is obviously not a public forum in the sense that anyone can go there and say, I have a First Amendment right to get in. But once the White House chooses to invite people in and pr- provide press s- facilities, particularly places like the Brady Briefing Room, that at that point, you cannot exclude bona fide correspondents arbitrarily and certainly not based on a c- viewpoint on the basis of viewpoint discrimination.

And that’s sort of been clear law in the D.C. Circuit since 1977, a case involving a, a Robert Sherrill, who was a White House correspondent for The Nation. And in any case the day before the TRO was to be heard the government responded, and the response tried to sort of retroactively shift the focus.

The response focused on, it claimed that st- th- these three organizations had violated standards of professionalism and decorum, particularly by allegedly publishing sensitive and classified information raising national security concerns. This was the first any of these theories had been mentioned.

Trump had mentioned none of them on Friday or Saturday or Sunday or Monday. And then at that time, they sent each of the— the government sent each of the news organizations a letter and the— It’s an, an odd letter. It do- it has no letterhead. It’s signed only by White House Press Office, not by a person.

And they list for each maybe three or four articles that allegedly offended this vague standard. And they’re sort of cagey about whether they’re saying it, it, the, what’s wrong with it. Is it false? Is it classified information? Is it sensitive? What exactly what’s wrong with them?

And, and they also gave him, gave the organizations for a first time, they said you have until Friday to respond to this, as if the, the pulling of the hard passes had not been final. And so, it was sort of a, a post-deprivation stab at due process. Judge Kelly rejected all of these arguments on the 24th, I think that’s yesterday.

And seem... And he took the, the, the easiest path, which was due process, a violation of due process. He also noted that- And he relied on that Sherrill case going back to ‘77, and also a case in 2020 involving Brian Karem, who had a dispute had words with Sebastian Gorka in the Rose Garden, and a few weeks later was suspended for 30 days.

There was another case where the D.C. Circuit ordered his, that he had been violated due process. So, I should also say one last thing with... another striking thing about the government’s papers is that they s- they understood that Kelly, w- Judge Kelly was bound by these D.C. Circuit precedents, both in the Sherrill case and the Brian Karem case.

But they said they thought they were… both ought to be overruled. So, it sounds like they seek, are going to eventually seek may seek en banc review or a Supreme Court review to try to overturn 49 years of law, at least in this district. The, and m- and they also relied quite a bit on the AP case, which is another you may remember when this term the AP was excluded from...

Not from— they didn’t have their White House hard pass pulled, but from smaller locations in the White House, the Oval Office, the Air Force One the, the certain White House pool. They were pulled from certain White House pools. And I think I’ll let Eric talk about that or maybe some of the o- u- my colleagues.

The... I will say that case is still being litigated. And, the ruling that they were relying on, which was a two-to-one split decision, was in a stay order, and it’s unpublished and has no bind— it’s not binding precedent. But anyway, all of these are very live issues that are likely to continue going up.

And then so, I think I should give other people a chance to-

Eric Columbus: Yeah, so I actually in a prior life I worked on the AP case. I was at the Knight First Amendment Institute, and we did an amicus brief on in support of the Associated Press. And the Associated Press was Trump was mad at them for, it’s amazing the stupid times we live in.

He was mad at them for refusing to refer to the Gulf of America. And they decided to keep calling it the Gulf of Mexico. And so, he kicked them out of the pool that has access to the Oval Office. And the district court Judge McFadden, who like Judge Kelly was a Trump appointee, said this was impermissible viewpoint discrimination.

The D.C. Circuit two to one stayed that injunction, basically on the theory that these are, the Oval Office is a ca- capacity-controlled space, and the president retains much more discretion about who to invite into his office, basically, than t- into a, a place like, say, the White House grounds in general or the briefing room where there is much less of a limit on space, and you can have much more generally applicable terms for that if, so w- if, which if someone can satisfy, then they get admission regardless of their viewpoint.

One thing that I found interesting about Judge Kelly’s opinion is that he did not mention the First Amendment at all, not even the phrase First Amendment. And so, it’s it really was limited, a- and the relief he granted was really limited to the restoration of the hard pass. So w- what happened last night at one point apparently was that MSN, MS Now, and I think also CNN were denied admission to some ceremony at the White House where… with Premier Xi of China.

And they had applied for credentials for that, and apparently Steven Cheung denied it to them. He’s the White House communications director. That technically is not a violation of Judge Kelly’s order because Judge Kelly’s order you know, applied only to the, the hard pass issue, of access to the White House grounds.

And I assume they might amend their complaint to raise this as well, and I think you’ll see the First Amendment issue. If they do that, the First Amendment issues may come kind of roaring back in the briefing and hearing on the preliminary injunction, for a prelim- preliminary injunction, because at this point it’s just a temporary restraining order.

Molly, Anna, do you guys have any, any thoughts on this you want to add?

Molly Roberts: Yeah, sure. I mean, I think kind of two things. One, it definitely provoked a lot of conversation about wherefore national security deference and, you know, it was interesting that the judge here basically said, well, I can’t credit that, but a lot of the reason that he said it or, you know, reason that he cited was certainly President Trump wasn’t talking about national security before this, which, you know, suggests that when the connection is as thin on the facts as it is here, I mean, it doesn’t suggest anything, it’s one judge, but, you know, at least some judges are willing not to lend credence to that.

But I’m curious, and I’m curious what others think about, you know, let’s say that President Trump had said national security from the get-go. Let’s say that they had done a better job when explaining the problems with the articles than, you know, using one that, and this is kind of a notable fact that I think stuck out to all of us, but citing one about the Iran war where a senior administration official was quoted, in saying that’s an issue because it’s sensitive national security information, and then it turns out that it was J.D. Vance who did a background call with reporters, right?

So, so I think it’s interesting to see, okay, yeah, so it falls short when you do this, and then there’s, of course, the question of, if you push the limits on invoking national security like this, do you lose credibility? Does that erode the presumption of regularity around national security justifications in other cases?

So, I’m kind of interested in that. And then, yeah, again, I’m interested in if you do a little better of a job at it, I’m kind of, you know, curious whether this judge or another judge would be more inclined to take it seriously. And then, yeah, I mean, I think the other thing worth noting, and it may have genuinely just been miscommunications, was there was kind of a flap yesterday morning where it looked like the administration wasn’t complying with the order, which had been issued overnight around midnight because the reporters showed up at the White House, and they were denied their passes, the hard passes.

And then the plaintiffs said, we want an emergency hearing. They’re not complying. And Judge Kelly ordered the government to respond by twelve thirty, and they responded, and they essentially said, no, we said they should be restored, and it was just working its way through the system. And again, that, that could very well just have been miscommunication, but there was sort of a moment there where people were worried about flat-out non-compliance and, you know, at least speculating after that, well, you know, maybe they always intended to comply eventually, but maybe the delay was a little bit of, you know, thumbing their nose.

But there’s no, no evidence for the fact that it was. So, yeah.

Eric Columbus: Okay. Next on our list of breaking news, the D.C. Circuit today in a two to one decision rejected a challenge by the, by Anthropic to Department of Defense’s exclusion of Claude from its supply chain. Roger, do you want to lead off on that one?

Roger Parloff: Sure. Yeah, this was the pa- it was a two to one split panel.

The majority was Neomi Rao and Greg Katsas, both Trump appointees, and the dissenter was Karen LeCraft Henderson, who is also normally very conservative. She’s a George H.W. Bush appointee to the appellate court, and I think Reagan appointed her to the district court originally.

And it involves... You know, there are these two statutes that relate to supply chain risk. This co- concept for— It’s really aimed at foreign adversaries and bad actors, st- bad chem- either state actors or otherwise. And there, o- one was enacted in 2011, and one was enacted in 2018.

The first one was the one that was challenged in California and where Anthropic won a, a few weeks ago before the district judge. This one which applies... that, that one applies only to DoD. This one was enacted later to protect infrastructure and power grids from malicious actors that might not be u- under DoD.

I- it- it’s broader, the other agencies, but it includes DoD too. And this one, you ch-channel your... If you seek judicial review, you have to go initially to the D.C. Circuit Court of Appeals, which is ob-obviously unusual, but that’s why it’s here. So, the questions seemed, you know, at least superficially almost identical.

You and you had a much more conservative panel here than the more liberal judge in California. That wasn’t the obviously the basis- of the stated basis of the difference. As it worked out there, it’s a mainly a, a difference of there, there are small differences in the definition of supply chain risk.

In the case in California, the definition is the risk that an adversary may sabotage, maliciously introduce unwanted function, and otherwise subvert the design integrity manu- manufacturing, production, distribution, installation, blah, blah, blah, of a covered system. The definition in the statute before the D.C. Circuit is the risk that any person, not an adversary, but any person, may sabotage, maliciously introduce an unwanted function, extract data, and otherwise manipulate the design.

Not subvert, but manipulate. Now, to t- to, to many people th- those are both describing so- some very malicious and sinister conduct, which was not present with Anthropic, which was just a sort of an anodyne contract dispute. But and, a- and if, a- and that ind- indeed is how Henderson interpreted it, but the majority said that the word adversary was critical, and similarly, that the word subvert was significant.

So, th- they found that the absence of the word adversary in this statute, the absence of the word subvert, that all that was needed here was manipulation, and it didn’t require a malicious purpose. So, sh- and they wrote... they said that they were not in conflict with the district court in California.

We have no quarrel with the Northern District’s conclusion that the use of the critical noun, quote “adversary,” combined with the sinister strings sabotage maliciously introduce and otherwise subvert, indicate that bad motive is required to support a designation under that earlier statute. Judge Henderson said she did what’s sort of, she said, “According to today’s decision,” this is in her dissent, “the contract will have a choice. Agree to the secretary’s demands, or risk being designated a national security threat.” She also did, she quoted the Senate report on what the legislative history was. And of course, that’s a, you know, a no-no to textualists.

You’re not supposed to do that. But it too, she said the, “the history supports Anthropic’s reading, and it refutes the view that manipulation of a covered article encompasses anything like the conduct that, under today’s, holding gives rise to a supply chain risk- that is, a contractor’s honest and upfront enforcement of restrictions on a covered article’s use disfavored by the government.”

Molly, do you… you read it too. Did you have a…

Molly Roberts: No, I think it’s a good rundown. You know, I was more persuaded by Judge Henderson’s kind of grammatical analysis of the statute where she gave an example of if you had a rule at a library that said, do not shout loudly, talk on the phone, play music, or otherwise disturb others, quiet music through headphones is probably okay, you know?

So, the idea is that words from part of it are reaching, other parts of it, and that maliciously did reach these other parts. So yeah, I found that more persuasive, and I definitely thought that it was interesting that the D.C. Circuit took care to say that this isn’t in conflict with the ruling from California, even though, you know, again, I think that it’s more persuasively read than it is, but that also makes it, I think, a little less clear what we should expect to happen going forward.

Anthropic has said that it’s looking at all its legal options, and it’s possible that they’ll try to get cert, but there’s not, according to the D.C. Circuit, a circuit split. They could also petition for a rehearing en banc. So yeah, I’m curious to see what will happen.

I think, you know, it is also the case that the ruling in California still is blocking the, any of the restrictions on Anthropic, on Claude being used by contractors not in the Department of Defense, and the D.C. Circuit hadn’t blocked the DoD stuff. So, I think from a what’s happening day-to-day perspective, it’s not all that different from how things already were.

Eric Columbus: Did— Sorry, why the D.C. Circuit did not block...?

Molly Roberts: So, the, the D.C. Circuit case was just about the Department of Defense and use of Claude in the Department of Defense, rather than use of Claude across all of government, all government agencies.

Eric Columbus: But that’s still probably a fairly big chunk of change-

Molly Roberts Yeah ...

Eric Columbus: right?

Molly Roberts: Definitely, but it wasn’t... They, they— Like my understanding, and Roger, you tell me if I’m wrong, but my understanding is that’s already how things are, that the D.C. Circuit, nobody had, they hadn’t blocked this. The D.C. Circuit, which who this went to, was routed to originally, didn’t stay the designation at any point, so it was already the case that it—

They had a phase-out period that DoD had implemented, but that wasn’t because of the court. So, they’re just continuing to phase out just as they were phasing out before.

Roger Parloff: It’s certainly true that it, this was more a part of the Northern, the California case that initially there were these wild statements that both Trump and Hegseth made that ha- would have had extremely broad, sort of, they were calling for a, in effect, a secondary boycott on Anthropic or anybody who used Anthropic couldn’t do business with certainly the DOD or any, or maybe any federal contractor.

It, it— things seem to have... I mean, the judge made clear that those— that judge in California made clear that those social media posts are inoperative, and the government has acknowledged it’s not trying to impose any sort of secondary boycott. So, I think the stakes have gotten less urgent for Anthropic for sure.

Eric Columbus: Although, yeah, I mean, if I were them, I would, between the two choices of assuming they want to keep fighting, I would seek en banc review, rather than seek cert right now, right?

I mean, they’re much more likely, I think, to get a sympathetic-

Molly Roberts: Yeah ... Yeah ...

Eric Columbus: sure-

Molly Roberts: Yeah, they’ve got a terrible panel. Yeah.

Roger Parloff: Yeah.

Eric Columbus: Yeah. Great. Moving on. T- this morning, the Supreme Court, on its sh- infamous shadow docket allowed the DHS to use its Systematic Alien Verification for Entitlements database, also known as SAVE database, not to be confused with the SAVE Act, allow them to use that database to share that database with states for use in, in to a certain extent, in determining who is eligible to vote, and they stayed a district court order by Judge Sparkle Sooknanan.

Molly, what’s this all about?

Molly Roberts: Yes. Okay. So, we’ve talked about this in various contexts a few times, including in the context of Judge Sooknanan’s order. So, the SAVE database, which you just explained what the name of it stands for or what the letters stand for, was a database that was created under an immigration law that was supposed to have DHS help agencies at the federal, state, and local levels prevent federal benefits from going to non-citizens, effectively.

But in President Trump’s 2025 executive order, he instructed DHS to expand the database, basically to make it have greater search ability, to reconfigure it. So, to add natural-born citizens’ records, which, don’t really know why, to connect Social Security records, including Social Security numbers, and to allow these bulk queries.

And so, Judge Sooknanan had blocked the use of this tool. She said it violated federal privacy laws that prohibit the non-consensual disclosure of sensitive information, the Social Security Act and the Privacy Act, and that it could result in voters being wrongly removed from rolls because it’s inaccurate, according to the evidence, including court declarations, and she found it arbitrary and capricious.

And the i- the idea here is that states can query th- the SAVE database. They can ask DHS to return to them information about whether there are non-citizens on their voter rolls according to this new expanded database. That, you know, the, the plaintiffs in this case have described as an error-laden master citizenship database.

So, that’s what she had done, and then the D.C. Circuit denied the government’s motion for a stay, and then there’s a merits appeal, and it’s still pending, and I believe it’s fully briefed. There was also a conflicting court order from Florida where a judge there had ordered DHS to restore the abilities, the new abilities in the database, but for the plaintiff states, in that case.

It’s various Republican states who wanted to be able to use this database. So now the Supreme Court has granted the stay. It looks like a six-three decision, with the liberals in dissent, and effectively what that means... Well, it means that states for now can use this database to verify their rolls, but they can’t actually do the bulk searches, and that’s not because of anything that the judges have said about whether that’s legal.

It’s because we’re in the 90-day quiet period before elections where you can’t do purges of voter rolls. So, in the longer term, or, you know, in the longer term before this appeal is resolved or if the appeal resolves the same way, the states can do the bulk searches. Anyone can do these bulk searches, DHS can too.

But in the short term, only individualized inquiries, which obviously has much less of an effect if you’re trying to go and en masse verify your voter rolls. So, it probably won’t have much of an effect on the midterms, is the bottom line there.

It could have more of an effect going forward and likely will. So, the majority relied mostly on this 1996 law that’s about the exchange of immigration-related information among agencies, and said that law creates an obligation to respond to inquiries, and that all these confidentiality laws are overridden by that obligation.

And they do that by reading this provision that says, “notwithstanding any other provision of federal, state, or local law, no person or agency may prohibit or restrict the exchange of this immigration im- citizenship information to...” They read that to say that the sharing of information is necessarily authorized regardless of the confidentiality statutes, because otherwise officials would be in this impossible predicament, where they would either have to violate the statute that says that they must share the information or violate the other statutes.

And then on the equities, they say that the government suffers irreparable harm because it has that duty under that law to respond, and it’s being prevented from using the program it believes is best suited to that task. Which is a little— I mean, and this is what, you know, the dissent says too. The dissent is written by Ketanji Brown Jackson.

But that’s a little... And the majority’s unsaid. That’s a little, sounds a little incredulous to me given that the database, again, there are declarations that show that it’s inaccurate, and so the idea that this is the po- program best suited to the task, eh I don’t find that terribly persuasive, and neither did Ketanji Brown Jackson, who said you’re not looking at the disenfranchisement harms to the voters, and that would certainly outweigh, obviously this is on the equities on the irreparable harm question, but that would outweigh the harm, quote-unquote, she calls it the nonexistent harm, that the government experiences when it is prevented from taking an action that it likely lacks the authority to take.

She says it lacks the authority, which leads me to the merits part of the dissents, where she basically says that the statute doesn’t grant an affirmative power to exchange citizenship information. It just bars people and agencies, which is indeed what the statute says, from restricting the sharing of information.

So, the point is that officials shouldn’t be able to interfere with otherwise lawful exchanges of information. She says there’s no impossible predicament. You just follow the law either way. You exchange information where it’s statutorily permitted, and you don’t exchange it where it’s prohibited. And she goes back to the history of the statute, which was about state and local governments not cooperating on immigration enforcement to support that point.

She also cites a 1999 OLC opinion that read the thing the same way. So, that’s effectively where we are. She also, you know, somewhat interestingly, I guess, for people who are interested in the shadow dock... Did you say shadow docket when you introed it, Eric? The shadow docket, the interim docket, the emergency docket.

In any case that docket, she dings the majority for issuing a ruling about these provisions that the court hasn’t ever interpreted before without full briefing or oral argument, and she calls their analysis a back-of-the-napkin assessment.

Eric Columbus: Back of the napkin, she said? She didn’t say back of the envelope?

Molly Roberts: Ba- back of the napkin.

Eric Columbus: Because I didn’t know that, I don’t think of napkins as having-

Molly Roberts: Yeah, it’s just like a on the napkin assessment.

Eric Columbus: Yeah.

Molly Roberts: Yeah. Exactly. No, it’s a good point. It’s a good point.

Eric Columbus: Yeah. So bottom line, this is probably more a 2028 issue than a 2026 issue, right?

Molly Roberts: Yeah. Yeah.

Eric Columbus: ... this does not require states to do anything.

Molly Roberts: Correct.

Eric Columbus: It just allows them to do anything.

Molly Roberts: Voluntary.

Eric Columbus: To do something, and it doesn’t give the federal government any authority to do anything. It just allows them to share information which states then may use or not use as they wish.

Molly Roberts: Yeah, that’s right. I mean, the states, they have the ability to verify their voter rolls if they want or not, if they don’t want, and, you know, the federal government can’t tell them based on any search they run, purge these people or not purge these people, regardless of what the results are.

So, you know, there’s... It’s, you know, this repository of information that if the federal government has a state’s voter roll, it could then run the voter roll against that information, and perhaps that could assist the federal government in its efforts to investigate and prosecute voter fraud. But otherwise, yeah, no, it’s a voluntary thing that really is largely up to, I mean, it is up to how the states want to use it or not use it.

But they can’t use it in any particularly effective way ahead of the midterms anyway.

Eric Columbus: Exactly, yeah. Thanks. Next up, we’ve got various developments in third country removals litigation with DHS kind of going up and down from the district court, to the First Circuit, to the Supreme Court.

What happened this week, Roger?

Roger Parloff: Well, last Friday when I, we did discuss that the, the First Circuit had rendered a ruling in this very important case that th-this is the challenge to the Trump administration’s third country removal policy which third country removals practically didn’t exist un-until the Tr- this, this Trump administration.

And they’ve developed their new policy gave, as I mentioned last week, and I won’t go into it in the same detail it just gave people either no no- there were two buckets, and one group would get no notice or opportunity to raise what’s, what are called reasonable fear claims about the country they were being sent to, and the other would get nearly no opportunity, maybe 24 hours to object.

And the unanimous panel of the First Circuit struck, or agreed with Judge Murphy, the district judge, that that was invalid. And they invalidated it under the APA nationwide. The interesting thing was, and actually last week, you know, that happened just before shortly before we had the podcast, and I s- told you, I didn’t know whether it was effective immediately.

So, after the podcast I contacted the lead lawyer and for the petitioners, Trina Realmuto, and she said it was immediately effective. The, there was no, certainly no, they did not mention any stay. The ambiguity was that Murphy had a, an injunction and, in place, or a an APA stay.

And the, when the U- when the First Circuit first took the case, they did stay that injunction pending appeal. And then here was the published ruling. So, she thought it was obvious that dissolved the stay. But, there’s also when, you know, when a court of appeals rules, there’s the mandate doesn’t come down inst- instantly.

There’s a seven-day delay, or I’m not sure if that’s the number in all circuits, but before it I think it is. A- so that, that means that the district judge doesn’t get his jurisdiction back for seven days. And, Circuit there is law that says that the, the ruling goes into effect a, a published ruling becomes binding precedent upon issuance.

You don’t have to wait for the mandate. Why does all this matter? It matters because the, Percival, James Percival of DHS, was taking the position that, no, until the mandate comes down this doesn’t bind us. And so, he was still trying to get people out of the country under this policy that the First Circuit had just struck down.

And so, I th- a day or two ago the plaintiff’s lawyer ran to the First Circuit and said tomo- you know, at night, and said, look, tomorrow they are sending more people to Burundi, Central African Republic, and Rwanda under this policy you’ve struck down. And look at this tweet from Percival. You can see he’s not honoring your ruling.

And so, they did. They dissolved the injunction in response. And then, and then o- and only then, the government ran to the and filed a cert petition, and a petition for ad- administrative stay from the Supreme Court. And Todd Blanche wrote on, on, in a tweet, without even allowing the government a chance to respond, she means, he means to the plaintiff’s lawyer’s emergency petition.

You know, the, the planes are you know, they’re bundling people into planes again against your— Without even giving the government a chance to respond, and in the dark of night, a federal appeals court blocked us from conducting all third cou- county, country removals of illegal aliens, an entirely legal and invaluable tool to stem the tide of illegal immigration.

Well, that wasn’t really the whole story. On September fif- 18th, you know, it- they issued a published ruling after full adversary briefing. This was just... Anyway. So, they have moved. They did file the cert petition, I think yesterday. Judge Jackson is the- Circuit Justice, she did not issue a administrative stay herself.

She set a briefing schedule for the plaintiffs to respond on Tuesday at 4:00. The government had asked, had a-a— put in their cert petition, ‘cause they know who the circuit justice is. They said, if the circuit justice doesn’t give us this administrative stay, please refer this to the whole court. The request for the administrative stay.

So, it’ll be interesting. S-so far at least it looks like they are not granting an administrative stay. But anyway, that’s where it stands. I should say, the government, you know, this is the case that the Supreme Court has. You know, they entered a stay of Murphy’s first order, which has allowed about 25,000 people to be sent out of the country under this policy.

So, you know, if they uphold the First Circuit’s ruling it’s going to be a remarkable situation and there’s a lot of reasons to think they won’t, including a lot of these jurisdiction-stripping provisions that the First Circuit rejected, but which the some of the s- many of the Supreme Court justices seem responsive to.

Eric Columbus: Roger, we’re gonna stay with you and talk about Paramount.

Roger Parloff: Yeah. And I can do this quickly ‘cause this was— We were only following— This was the Paramount Skydance merger. We’re not— We don’t cover antitrust matters but we a piece of this was whether CNN would change hands and it would the chair— CEO of Paramount Skydance is David Ellison, and there is thinking that he has been very responsive to some of the president’s criticisms of CBS and that perhaps he would have things in store for CNN.

A consent decree was worked out here, and which was a little surprising to many people, but apparently there was a threat to move Skydan- Paramount Skydance out of Los Angel- out of California, which may have concerned the governor. And so, in the consent decree, there is, there are sort of weak provisions that are supposed to— There’s, the, it, it’s supposed to create something called an editorial independence board.

There would be five people appointed by the merged entities board of directors, but, and it’s supposed to establish a set of guiding editorial principles for both CBS News and CNN and it— But whether how much power it would have and what it would do exactly is very vague.

But, that seems to be where that stands. There was a hearing yesterday, I think, and I did— I was not able to attend that or to listen in. I understand Cory Booker sent a letter asking for searching inquiry. I... So, he, the judge may want the lawyers to respond to that, but I think it’s… looks like it may be over.

Eric Columbus: Anna and Molly, we have an update in the grand conspiracy. What has happened? Is the conspiracy getting grander or less grand, or remaining the same?

Anna Bower: Well, technically, I think that it’s an update in the Trump classified doc- documents case, but we have learned a bit more about the grand conspiracy case by way of this update in that case.

This relates to the injunction that Judge Cannon previously entered towards the end of Jack Smith’s case against Trump for unlawful intentio- retention of classified documents, in which she prohibited anyone affiliated with the Justice Department or the investigative team from transmitting or conveying any information about volume two of the special counsel’s report to anyone outside of DOJ.

It was a very broad order prohibiting Jack Smith and his team from talking about the report, and subsequently has been the basis for DOJ, you know, saying that it can’t release the report under FOIA. It came up during Jack Smith’s subpoenaed testimony before the House Committee on the Judiciary, in which he, you know, couldn’t talk a whole lot about that case because of this injunction entered by Judge Cannon.

And then it also, of course, has come up in the context of a prosecution in the Southern District of Florida against a former DOJ empl- employee who was accused of transmitting a copy of the report to her personal email under, I believe, the name Bundt Cake Recipe. That was the name of the file that she allegedly used to send it to herself.

But, now, in relation to this injunction and the grand conspiracy case, a group of former FBI officials who have been either subpoenaed or approached to testify in relation to the grand conspiracy case have intervened to try to get a modification or clarification of Judge Cannon’s order.

And it’s really interesting, Eric, because y- you know, it, I think it’s good law- defense lawyering, first of all. But it’s interesting because first, we get some a background about, you know, when all of this happened. These, these former FBI agents who were on the classified docs case were first approached in July or August and then more recently some of them have been subpoenaed to testify before a grand jury in Fort Pierce.

But also, their, they, DOJ has indicated to their counsel that this is indeed in relation to a potential conspiracy case under 18 U.S.C. 241 or 242 so the conspiracy against rights statute that we have been talking about a lot in relation to the grand conspiracy.

But, the motion to intervene here and get a, an order modifying or clarifying Judge Cannon’s injunction is very interesting because they raise these points that I think are good ones, that, you know, these former FBI officials wanna go before the grand jury and are willing to testify before the grand jury or to do voluntary interviews with the FBI, but they’re kind of s- stuck in this situation where they, because the predicate of this investigation is this idea that the, these FBI officials or people, other people at DOJ conspired to deprive Trump of his rights by bringing this case, this prosecution against him, what they want to testify to are, you know, the factual predicates of the case itself, and things that would be in volume two or the report and seemingly would, they would be prohibited from discussing before a grand jury because that’s, you know, people outside of DOJ, the grand jurors themselves.

And so, the question is, how is it that they can go and testify about these things without violating Judge Cannon’s order? And based on this filing, it seems that DOJ has been quite uncooperative with defense counsel in terms of indicating its own position on the extent to which you know, it plans to ask about certain things, the ex- what its actual position is o- on how these individuals will be able to testify without in any way, you know, violating the order.

So, it’s a quite interesting filing. And the final thing I will mention before I want Molly to jump in here is that in addition to asking for clarification or modification of this order so that they can go before the grand jury and testify about these things without having to, you know, invoke the f- the Fifth Amendment or without, you know, potentially violating the order, they also ask for a modification or clarification that these grand jury witnesses can then go and speak publicly about what they testified about.

So, this is kind of potentially a roundabout way that we could find out some information about what is in volume two because, y- you know, witnesses before the grand jury are allowed to talk about what they testified to. They’re not prohibited under Rule 6E, the grand jury secrecy rule, in the same way that DOJ prosecutors are.

So, i- these witnesses, if they’re allowed to do what oth- what other witnesses do could potentially, depending on what the ruling is here be able to then go out and say, hey, this is what I testified about. So, it’s quite interesting, and it all comes at a time when their argument has been scheduled for January, I believe it is, of 2027, before the 11th Circuit on the separate litiga- I mean, it’s kind of related, but separate litigation by the Knight Institute which tried to intervene in the case to get a modification or lifting of Judge Cannon’s order related to Volume 2, and that was denied, and so then they’ve now appealed up to the 11th Circuit.

And that briefing is complete, and there’s arguments set in Birmingham for January 2027. So, that’s all kind of going on in the background, and then now we have this additional motion to intervene for separate reasons. But nonetheless, I’m curious to see what happens here, and if anything, it’s going to force DOJ to publicly respond to this and potentially provide more information about its position on Volume 2 and then what exactly the predicate is here for the grand conspiracy case.

But Molly, did I miss anything, and what do you make of all this?

Molly Roberts: No, I think it’s a really good rundown. I guess just two small additions that I thought were interesting. So, one, part of the reason they’re not bound by Rule 6E is because they’re not government witnesses, and part of the reason they’re not government witnesses is that they were all purged because of what they did.

So, you know, just another sort of, I mean, I don’t know if irony is the right way to describe the whole thing, but I think it’s, you know, also interesting. So, they also, they say that, you know, also this information, if you do bring charges, is bound to come out anyway because it’s going to be Brady evidence because, I mean, this is what they say.

They say the most inculpatory evidence against the original defendants in United States versus Trump et al will become the most exculpatory evidence for a law enforcement officer accused of violating their constitutional rights. And so, you know, I think that’s true. And I think also it reads a little bit as, I don’t wanna say a threat because that sounds a little, you know, more menacing than I mean, but it’s basically explaining to the Department of Justice, you know, these are the consequences of your actions here might be that the truth comes out about the Mar-a-Lago search and, you know, the predicate for it, and maybe that’s not what you want to happen.

So, I think the whole thing is pretty fascinating. I am curious, Anna, what you think Judge Cannon will do. It seems to me that if she grants anything, she might say, you can testify to the grand jury, but you can’t speak publicly, and say something along the lines of, you know, the purpose of the order was to make sure this didn’t make it to the public, and if you testify to the grand jury, it’s not necessarily gonna come out in the public, but if you speak publicly, it sure does.

But I don’t know, and, you know, I am very curious to see what she does.

Anna Bower: Yeah. If there’s one thing that I’ve learned about Judge Cannon, it’s that she’s not gonna let these people talk publicly about volume two. Although it really does, you know, she seemed so concerned i- when the shoe was on the other foot about the, I mean, not that these FBI agents have been accused of anything yet, and they are apparently have been told, at least some of them, that they are witnesses rather than targets.

But, you know, it’s just quite interesting that Judge Cannon who’s always in the Trump case been very concerned about the ability of defendants or putative defendants to be able to speak publicly about you know, happenings in their case to then potentially prohibit these individuals who, who are making kind of some arguments that when Trump made them, or sim- made things kind of in that vein, arguments in that, in, of that flavor, they were quite appealing to Judge Cannon.

So, because remember, there were a ton of instances in the classified documents case when Trump’s lawyers brought up, you know, his First Amendment right to speak about the case and all this, and w- you know, whatever and fair trial rights and all that. But, anyway, yes, it’s interesting. I think that the point that you make about the Brady material stuff is something that we’ve raised before of, like, it seems to me that it’s kind of obvious that if you bring this grand conspiracy case, all of the evidence, all of the stuff that was, that predicated the Trump prosecution has to be things that are, that should be turned over to the defense and would potentially be admissible at tri- at a trial, if it goes to a trial, because that is the exculpatory evidence for anyone who’s accused of depriving Trump of his rights.

And then the final point that I will make as well that I thought was really interesting in these in this motion, is the point they make about how the apparent a crime here is deprivation of rights, which requires, you know, a conspiracy to deprive somebody of their constitutional rights, which apparently is Trump.

But previously, in the litigation after, in the aftermath of the Mar-a-Lago search Trump’s own attorneys didn’t even, you know, declined to allege that there was a callous disregard for Trump’s constitutional rights in that search. And that search itself and that w- prosecution that resulted from it seems to be kind of the hook that they’re trying to use for this whole case.

So, I thought it was a good point. Roger, any final thoughts before we move on? Because I know you’ve covered this case so closely as well.

Roger Parloff: No, I think you guys covered it, but thank you.

Eric Columbus: Great. We have eight more items. We have, in theory, 30 more minutes, so I’m gonna try to pick up the pace a little bit starting with myself. And we, an Iowa state court dismissed a suit by Trump and a Iowa congresswoman against the Des Moines Register and pollster Ann Selzer over a poll that they published three days before the 2024 election that, to everyone’s surprise, showed Trump behind by three points in Iowa.

This was big news at the time. The poll obviously was not an accurate representation of the final results and probably was not an accurate representation of sentiment in Iowa at the time. And Trump in December sued them, claiming that it was a, this was fraud and violated various Iowa s- fraud and misrepresentation statutes and caused him harm.

This— the poll— the, the suit bounced back and forth between the state and federal courts and was just now dismissed by an Iowa district judge, a state judge, on grounds, on the First Amendment and separately on I— on grounds that it did not in fact state a claim under the Iowa state statutes.

We will leave that latter part aside. Those who are curious about Iowa l- fraud laws can look up the opinion themselves. But on the First Amendment issues, it really was a bit of a bloodbath for Trump. The... Trump apparently argued that this was not a First Amendment issue at all because it’s between two private parties, the lawsuit, and the, the judge easily swatted that aside by pointing to, you know, defamation law jurisprudence where there is no government entity involved, but there’s still First Amendment issues very much at stake because the question is, what can the state and what can the government in the form of the judiciary do to police speech?

And then Trump tried to argue that, oh, this is in fact commercial speech, but because it’s not, because in, in th-this is commercial speech and therefore is subject to a lower level of speech protection, of constitutional protection. And the judge said, no, that’s ridiculous. Tr- y- Trump’s arguments were basically that this was a product, this was a, a business that was publishing the entity, that was trying to... a for-profit business that was publishing the speech.

And the judge said, this is ridiculous. The vast majority of s-speech is in, by media is done by for-profit entities, and this would remove would, this would diminish the constitutional protection for a, a vast array of speech that in fact is entitled to it.

And then finally the, the judge r-recognized that fraud is an exception to First Amendment protections, kind of, i- in a similar vein as, as obscenity, defamation incitement. But even taking as accurate the factual allegations in Trump’s complaint, which were basically that this was a garbage poll that was po- you know, possibly made up, that, that didn’t in fact represent a accurate sample of the Iowa population that none of this possibly amounted to, to fraud as fits within the constitutional protection.

Eh, sorry, none of it would constitute fraud in the sense that it would be acceptable as a carve-out from the First Amendment under the Constitution. ‘Cause basically, there is no relationship between Trump and the newspaper. There’s no way that Trump could show that the newspaper owed him a duty and that Trump reasonably relied upon the polls to his detriment.

He had no con- It’s not like he was, like, buying the poll from the newspaper and they gave him a garbage poll. They just published this out into the world. There was no kind of specific, contractual nexus between Trump and the pollster. And so, the court found that is, it was dismissed the court, the case on the basis of the pleadings.

Another First Amendment issue that came up this past week, and this is, we don’t know that much about it, but a Bluesky user was indicted in the Eastern District of Tennessee for posting months apart quote, “time to bear spray ICE,” and then subsequently in I think three months later, “kill the ICE military police.”

Now, it’s a very bare-bones indictment. We don’t know the context of, if any, of what those, those posts were, whether they were a response to anything, whether there’s any further information that would indicate that this was actually a threat to injure or murder federal officers, which is the statute that this, this user was indicted under.

But it seems questionable at the very least that this was actually a, quote, true threat, such that the First Amendment can so such that a, such a prosecution would be constitutional un- under the First Amendment, because the, you know, courts have held that if something is just hyperbole, it’s an expression of anger that would not, in fact, make a reasonable person feel threatened, then it’s it cannot be prosecuted under the First Amendment.

And something of this nature would seem to be the type of thing that you could find on social media in many places, shall we say, and is probably not something that can be prosecuted. But we will follow this case as it develops, and as we learn more, maybe there’s more context there.

But I think it serves as a useful reminder that the things you say on social media can be read by people beyond the people, beyond those who you want to read them, and that even if you are anonymous on social media, if you say something that might be perceived as threatening, the provider of that service is likely going to turn over that information if the feds seek it and have a colorable basis for it.

Turning now over to our immigration docket. Roger what do we got?

Roger Parloff: Well, Judge Lewis Kaplan up in, in Southern District of New York issued a permanent injunction now in a case of, in a conditions case about a, a de- detention holding center at 26 Federal Plaza in Manhattan.

We have, I’ve been asked you all have periodically asked questions about these cases pending around the country about conditions, detention conditions, and I really have not been up to speed on a lot of them. This is a very good… it’s 125 pages. It’s a after trial, so he’s really, it’s a very painstaking look.

Th- this is not a de- detention center per se, it’s a holding center, but you can see what’s happening. And he mentions that there are five other of these cases at least around the country. Four other courts have at least preliminarily found either illegal or unconstitutional conditions. But, it’s a simple story.

You suddenly had this surge of immigration arrests with no prior preparation for facilities to handle them, and that was then exacerbated in July of 2025 with the mandatory detention policy that had never existed before, where all of these, mostly non-violent people, many living here for decades as productive citizens, all have to be, no matter what their ci- they have to...

And so, in this case, he tells what happened. You know, you have these, the, this place has holding cells where you’re only supposed to be for no more than 12 hours. So accordingly, it has no showers, no beds, no cots, no windows. But they begin this policy and by May they decide, you know what? We just, we need to hold people longer up to 72 hours.

So, begin to think about that, 72 hours without showers and all of those things. These are toilets with you know, a half wall. These are group holding cells. As of May, before May they might have had about 10 people at a time on the 10th floor. By May, it was now 40 to 70 people in these holding cells.

By August, it was over 100. Some days it was over 150. By the time the suit was filed in August 2025 they were afraid that it was gonna have to hold more than 200. If I’m understanding it correctly, they do have a day when it held 193. Also, they were not sticking to the 72 hours. It was up to five days, one testified.

One said nine and a half days. One said 10. One claimed three weeks. Same clothes the whole time. You know, women, inadequate, they don’t have enough m-m-menstrual products to provide people, toilets clogging, no me- inadequate medical screening. You know, they discover somebody, you know, is positive for tuberculosis after they’ve stayed for six days in a room with 70 to 170 other people.

So, the... it’s, there are diagrams of what it would look like to put 87 people in one of these rooms. I don’t wanna sound offensive, but it will remind you of those drawings of slave ships. It’s some pretty real horror that he’s describing here. So, it’s the, the violation is due process.

It’s - it’s sort of punishment you punishment without you obviously aren’t convicted of a crime. You can be detained civilly in situations, but it’s not supposed to be punitive. Well, the deliberate indifference to inhumane conditions and punitive conditions.

And because, you know, Trump and M- Stephen Miller and Percival have all been clear that they want people to be self-deporting, it, the, the judge suggests you know, this is not a mistake, at some level. This is, at some level, it’s intentional ‘cause it incentivizes people to self-deport.

So, it’s a strong and disturbing read.

Eric Columbus: And I gather you have one more item for us, Roger, on immigration, right?

Roger Parloff: Yeah. There was a JGG argument today before the D.C. Circuit. This is the case that... Actually it, this i- JGG still is in this caption, but this was the case that started it all, the Alien Enemies Act case.

It’s not the big event. The main event will be next week when we have an en banc court sitting on you know, whether Judge Boas- Boasberg can continue fact-finding into what happened when those people were sent to SACAT despite his court order. And that one is next week. This one is his attempt to ac-accommodate to g- the people that were sent to SACAT and imprisoned and cl- say that they were tortured.

They were then, of course, released and sent to Venezuela. A, a group of them wants to challenge their, the thing they were never permitted to challenge w- before they were sent to SACAT, which is whether they wanna sa- their TDA, their Trende Aragua designations. It’s a very hard case to bring for a lot of case, for a lot of reasons.

Basically, you know, you have to show that they were in constructive custody to begin with, and that they’re still collat- suffering collateral consequences even though they’re no longer in custody at all. It’s a two, it seemed to be going in a two-to-one direction. The judges were Neomi Rao, Harry Edwards, who’s a Carter appointee, he’s 85, and Raymond Randolph, who’s a George H.W. Bush appointee, he’s 82. I would say Rao and Randolph were generally skeptical.

The grounds might be different, but… but I’ll leave it there.

Eric Columbus: Now, Roger, am I correct? You did a podcast re-recently, recorded a podcast recently with the ACLU lawyer who’s arguing these two cases. Is that right?

Roger Parloff: Yeah, with Lee Gelernt. And we talked mainly about the, what I call the main event next week which will be about the— which is really about criminal contempt or potential criminal contempt or sanctions short of criminal contempt. And, but we also mentioned this case that occurred today at toward the end.

Eric Columbus: So, anyone who is more interested in learning more about this can dig that up, Roger.

Roger Parloff: And I should say Lee Gelernt argued both, which is unusual to argue two D.C. Circuit case within five days. He asked for if they could possibly change that, and they said no.

Eric Columbus: We now have an unusual docket. It’s our Elon Musk docket. It m- maybe it used to be more common, but we now have three entirely unrelated cases all involving, in some way, Elon Musk. Anna, you’re— you can lead us off here.

Anna Bower: All right. Yeah. So, this is not so much Elon Musk as it is DOGE, but the two are kind of impossible to separate from each other.

So, so this is the case that we haven’t talked about in a while that has now come to an end. It was a case that a collection of states brought, or a coalition of states I should say brought against DOGE and the Department of Treasury related to ear- the, those early days of DOGE when they were kind of just getting access to everything in the federal government, including sensitive information with the Bureau of Fiscal Services within the Treasury Department.

And early on, Judge Vargas did issue a preliminary injunction to prohibit that access. But subsequently now, we are, you know, past the date of DOGE’s own expiration within the initial executive order establishing the United States DOGE ser- DOGE service. And so, as a result, Judge Vargas has issued a dismissal of the case on mootness grounds because, you know, DOGE is both past that initial 18-month duration of its tenure.

The Treasury Department also included in filings claims that there’s no longer a DOGE team at Treasury. I think a lot of this is a part of the kind of mainstreaming of DOGE that we’ve seen. It went from being a kind of discreet thing and having these DOGE teams to DOGE... Former DOGE employees are now just like employees in their various departments, where the DOGE ethos is still maybe being implemented, but they are simply, you know, employees at Treasury or employees at the State Department or in their various departments instead of being DOGE people or DOGE teams.

So, as a result of the expiration of that, no more DOGE teams being at Treasury, Judge Vargas has dismissed this case. So, that basically brings th- t- that particular case to an end. But, and I’m gonna wait until Ben is back to discuss this with him, I think. But there are still other ongoing DOGE cases, including the Appointments Clause case in Maryland in which a discovery has been ongoing.

There have been some interesting filings over the past month related to depositions that have been taken in that case, interrogatories. And I think because Ben is my main interlocutor on the WTOD question I’ll wait until he’s back to discuss some of what I’ve found in those filings.

Eric Columbus: We would not want Ben to miss a, a single moment in any way related to the question of who is the administrator of DOGE. The second of our three Elon Musk docket items is a rather unusual one in that it does not involve any court in the United States. The Department of Justice a day or two ago filed an application to intervene in a case before the General Court of the Court of Justice of the European Union in which Elon Musk and X, or X meaning the company, not meaning his son se- are seeking to overturn a decision of the European Commission that found them liable for violations of the European Union’s Digital Services Act and imposed a fine of 120 million euros.

Now what’s interesting here is not necessarily the specific legal issues involved, but the fact that DOJ is going to bat in a foreign country for U.S. tech companies. And we don’t really know whether this is something f- U.S. tech companies in general or just kind of a, a favor for Elon Musk.

The issue here… there’s the underlying violations of the act, which I won’t get into, but what DOJ is saying is that the remedy imposed, was improperly calculated, the amount of the fine because under the EU’s laws it’s, there’s a cap of the p- the possible fine based upon who was the provider of the services.

And the EU defined that as encompassing basically Musk himself because there’s, there is a company that provides the X services in Europe, and maybe it’s, that may be a... I’m not sure if it’s just Europe or a, a general international company that is in turn owned by X, and there may be a further company above it, and then ultimately owned by Musk.

And DOJ is arguing that in essence, that the European Union, it was improperly pierced the corporate veil by, you know, holding that liability can run all the way up to Musk himself. And I, you know, it’s a little odd. I don’t know how DOJ is, you know, what, even what body of law DOJ is using.

I mean, I assume it’s European Commission law or how DOJ would have any particular expertise on these issues that Musk himself would not have. But it’s, I presume this was somehow important to Musk and is carrying the flag, if you will, on behalf of American tech companies to be getting involved in this case.

Roger, there’s one more Elon Musk item. What is it?

Roger Parloff: There’s a very— It’s actually another, it’s another case where DOJ has intervened on behalf of Musk. But it’s a very important case about a hyperscale data center. It’s a data center in Memphis, although it’s near the border with Mississippi, and the case is filed in the Northern District of Mississippi.

The... And it’s this data center called Colossus, which gives you an idea. And I think it has something like 37 gas turbines, and each turbine is the size of a, you know, a single stan- a family home. And they did not go through any of the normal federal environmental prerequisites to doing this.

And so, NAACP sued under the Clean Air Act. Clean Air Act, and a lot of environmental laws of the ‘80s, or whenever they were passed, allow citizen suits. They allow the federal government itself to bring the suit, but alternatively, if the feds don’t, citizens can bring the suit.

And here, the NAACP is bringing it because it’s in a, these things are often or located in very poor areas, and the claim is that this is polluting and they haven’t done the proper. So, the government intervened, which it has the right to do, but what it has never done before is it said, we also have the right under ite- Article II to dismiss the case ‘cause we are the ultimate enforcers of federal law, and we don’t want this law enforced.

That’s never been done since any of these environmental laws were enacted. And they also throw in some national— You won’t be surprised, Molly. They throw in some national security claims and some national economic security claims. One even has to do with y- Well, part of it is you’re endangering AI competition and then, and part of that is you’re endangering Grok, which is an important part of the military eff- I didn’t get that part.

But anyway the, the claim is unbelievably broad and new and dangerous. And the judge, in a status conference said, “Well, I, something to the— I haven’t seen the transcript. It’s not… but something to the effect that I’m not gonna... I will prob— I will probably deny that, and we’ll go ahead and have the preliminary injunction hearing on the NAACP’s request in October.

And so, the government said you have until September 10th to formally deny it. And if you don’t, we’re gonna say that you— that’s gonna count as a denial, and we will appeal.” And the September 10 passed, and they have now constructive... They have appealed the constructive denial.

So, that is a very important case. It will go up to the Fifth Circuit ‘cause it is a Mississippi case.

Eric Columbus: And now, Roger, I believe we have only one more item, and like, probably majority of the items today, it falls into your extremely capable hands. What is-

Roger Parloff: Well, thank you. Maybe this is... And maybe I should explain why we’re even doing it.

C- it is, it’s a civil suit, Passantino versus Weissmann. It’s a defamation suit. Stefan Pas… We’re doing it ‘cause c- we do some follow-up January 6th stuff. So, this involves Cassidy Hutchinson, who was an important player in the, in January 6th investigations, and has been as a result reportedly an important target in sort of retribution campaigns that but anyway, her initial lawyer was Stefan Passantino, who was sort of, provided by the Trump-aligned group groups. And he represented her in three depositions before the ju- Senate, before the select committee investigating January 6th. And then she fired him and gave a fourth deposition, which was televised, and you probably saw that.

That was... And then she, through an intermediary, she said she had some more to say, and she would waive attorney-client privilege. And in that, she described her preparation by Passantino. And then, a former prosecutor, Andrew Weissmann, who is also a sort of a, a political pundit, I think he’s an MSN… I think he’s still with MS Now.

He tweeted, he referred to him as the one who coached her, meaning Cassidy Hutchinson, to lie, and Passantino sued. And so, that suit was thrown out this week on the pleadings. And s- it, it’s sort of interesting because the judge was assuming for the sake of argument that Passantino was a private party, not a public, not a public figure in which case defamation, he doesn’t get the that Weissmann doesn’t get the protections that he would ordinarily have of ac- you know, Passantino doesn’t have to show actual malice.

He only has to show negligence in acquiring the truth or investigating the truth. And the judge found that, but he had failed to make that showing. The transcript, meaning the transcripts of Hutchinson’s testimony to the January 6th committee, far from contradicting Mr. Weissmann’s statement, supports it.

And Hutchinson had testified to the January 6th committee that Passantino advised her, quote, they don’t know that you can r- “they don’t know that you can recall some of these things. So, you saying, ‘I don’t recall,’ unquote “is an entirely acceptable response to this.”

And the judge writes commenting on that, quote, “he repeatedly urged her to say, ‘I don’t recall,’ based on the unverifiability of that response, not based on the truth.” So, the that was the basis for dismissing the suit. Very—I would think a very embarrassing result for Passantino.

[Outro]

Eric Columbus: Thank you, Roger. Thank you, Molly. Thank you, Anna Bower. This podcast has been a part of Lawfare’s livestream series, Lawfare Live: The Trials of the Trump Administration. Subscribe to Lawfare’s YouTube to receive an alert the next time we go live. Don’t think we have any questions in the chat that were not already answered during the course of our discussions.

So, we will adjourn until next week. The Lawfare Podcast is produced by the Lawfare Institute. You can get ad-free versions of this and other Lawfare products 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.

The podcast is edited by Goat Rodeo, and our audio engineer this episode was the stalwart and irreplaceable Anna Hickey of Lawfare, who just bumped up the script again in the, our internal studio chat so that I was able to read it. Our theme song is from Alibi Music. As always, thank you for listening.