Lawfare Daily: The Trials of the Trump Administration, September 4

[Music Plays]

Benjamin Wittes: It is Friday, September 4th, 2026. It is 4:00 PM in Washington, D.C., and I got to tell you folks, we have won. Lawfare has survived a motion to dismiss in Judge Boasberg's court, and the press is ignoring it. It is, you know, it's almost like, it's not the most important thing that happened this week, but it is the most important thing to me, and so we are leading the show with it. Eric Columbus, why don't you describe for the audience our spectacular victory that is just taking the legal system by storm?

Eric Columbus: Sure. So, this is a lawsuit that we, meaning the Lawfare Institute, meaning our lawyers, meaning before I got here, or actually no, but I think probably not before I got here. I think, I think it was this civil action number 26-798, suggesting it was filed in 2026. A, a lawsuit against the Department of State involving something known as the Case-Zablocki Act of 1972, which I'm sure every listener has committed to memory. That act requires the State Department to make public in generally speaking, in international agreements that the United States enters into, and there are some exceptions for classified documents, things involving the military and, and the like. But it, otherwise, these are required to be made public within 120 days of going into force.

Now, this does not provide a statutory cause of action, but the Administrative Procedure Act basically does, in general allow f- plaintiffs to go into court and sue where there is a agency, final agency action that is, is not, that, that agency's obligated to do something but it doesn't do it. And this is also being used in litigation by journalist Katie Fong to obtain certain Jeffrey Epstein files.

Now the, the, the State Department has, we allege in our complaint, has not made public the vast majority of international documents that it was supposed to make public during the, this second Trump administration. And the State Department moved to dismiss our lawsuit challenging us both on, on standing and on the, the presence of any official agency action. They're not, they're not significant-

Benjamin Wittes: Did they call us a old lady walking her dog?

Eric Columbus: They did not. Well, we did not have an aesthetic injury in this case because it, there's really nothing aesthetic to appreciate about international agreements. We had a, an informational injury basically alleging that we, the statute is supposed to provide us with certain, provide the public with certain information, and that we are not just any person who is deprived that information, but that we are journalists who report on among other things, international affairs and that it was extremely important for us to have this information.

We were not, the State Department said that we had not sufficiently alleged standing, and it, it's not entirely, their arguments are kind of hard to follow. They, they, and the, the district court rejected them. The, the State Department also said, "Well, we haven't proven that, that there is final agency action in this case, because who knows? Maybe we're going to eventually put these things up and these documents up." And the court said, "Well, basically, no you have made quite clear over the past year and a half that these documents have not gone up."

Now, we also asked for some type of a injunctive relief to require the State Department to put documents up on an ongoing basis in compliance with the statute. And the judge granted the State Department's motion to dismiss that part of our complaint holding that we had-

Benjamin Wittes: We never cared about that part anyway.

Eric Columbus: We had not established that there was, we had not made sufficiently concrete a, a allegation that the State Department had a policy or a commitment to not doing this going forwards beyond the fact that they just had not done so so far.

Benjamin Wittes: So, important question. We have now survived the motion to dismiss what happens now? Are they gonna appeal this all the way to the Supreme Court so that we'll have, like, “Lawfare v...” Is it “Lawfare v. Rubio” or “Lawfare v. Department of State?”

Eric Columbus: Well, they are, they are both defendants, but the caption in Judge Boasberg's opinion is the Lawfare Institute v. The United States Department of State, et al.

Benjamin Wittes: Well, I think we should all call it “Lawfare v. Rubio.” But anyway do we assume that they are going to appeal it, or will they now, seeing the writing on the wall, reading Judge Boasberg's, Chief Judge Boasberg's very learned opinion that they can't possibly poke a hole in, are they gonna comply and release the materials? What happens now?

Eric Columbus: Well, I think we would need to establish which specific documents we believe they are with- withholding. Things that are, are, that were within the scope of the Case-Zablocki Act and that have not been put up within 120 days of entering into force. So I think we would need to establish that, and then I assume m- move ourselves for injunctive relief at this point because this was just on a motion to dismiss, and then force them to do something.

I don't think that at this point the State Department would appeal. It's not entirely clear to me that they, that they could appeal at this point, given that they have not been commanded to do anything, and this, this order does not resolve the litigation.

Benjamin Wittes: All right. Well, I will just say it's a great day for the Lawfare Institute. Our victory is not total yet, but we, on we march. And you know, it's not always that we get to feature ourselves at the beginning of Lawfare Live: The Trials and Tribulations of the Trump Administration. But folks, that is what you are watching, and I am here with not one embarrassed senior editor of Lawfare, but four embarrassed senior editors of Lawfare. Molly Roberts, Roger Parloff, Anna Bower, and Eric Columbus, whom you've already heard from. We got a lot of stuff to get through today.

Molly, we've had actions on the elections executive order. Has the li- have the litigants had a victory as resounding in that case as we have seen in ours?

Molly Roberts: I fear not quite as resounding. So, we talked about this on a separate Lawfare Live earlier this week and over the past few weeks. We've been talking about the developments which are coming fast and furious because after the Supreme Court stayed an injunction, another injunction got in place pretty quickly. New, well, another injunction was already in place. Then a new TRO was put in place in Massachusetts.

So I guess what's most important to talk about now is what happened yesterday, which was a hearing in the federal district court in Massachusetts before Judge Indira, I've been pronouncing it wrong. Not “Ind-eer-a”, it's Indira, I learned in the courtroom, Talwani. And that was about whether she should issue a preliminary injunction, a new preliminary injunction now that the USPS final rule is out. So that's what the hearing was about, but it was a little odd because she already had this temporary restraining order in place, and the first thing that the Justice Department lawyer said was, "If you don't rule today from the bench, we are going to right away appeal the TRO that we've already appealed to the First Circuit to the Supreme Court." And this is odd because TROs aren't generally appealable, but she indeed did not rule from the bench. She said right at the outset she wasn't going to, and they did indeed appeal that to the Supreme Court.

So we're in, and I'll talk about the hearing and what happened in it in a bit, but as far as where we are, we're in a sort of weird posture where the replies to this appeal to the Supreme Court of the TRO, Justice Jackson, who's in charge of the First Circuit, has said are due on Tuesday. But Judge Talwani said she was going to try to move really quickly on this preliminary injunction. If she does that, the TRO is gone. It gets dissolved, and then it, we start over with, with this injunction, which presumably the Justice Department will then appeal that to the First Circuit or directly to the Supreme Court.

So kind of odd that there's the need to appeal the TRO in the meantime, but I would, I mean, and so I suppose the matter is before the Supreme Court, but I, I'm not sure that that's exactly the right way to look at it. I think the more immediate place to look is at Judge Talwani to see what she does, whether she issues a PI, which judging by the hearing, she probably will, and then I would expect that to move up through the courts. So that's what's happened, and yeah, then I can talk about the hearing a bit if you like.

Benjamin Wittes: By all means.

Molly Roberts: All right. Sounds good. So, I think that the most interesting part of the hearing was the way in which it revealed how unprepared the federal government is to launch this postal service portal to which states are supposed to submit their lists, despite the fact that they're alleging irreparable harm from having a temporary restraining order in place, or that they would have irreparable harm from having a, an injunction in place preventing them from launching the portal.

And that came up in a number of contexts throughout the hearing. We talked on the last Lawfare Live about how we also have a whistleblower complaint that suggests that the development of the portal has been haphazard and sloppy. And so, the discussion of the portal in the hearing focused both on, well, is it going to cause disenfranchisement because it doesn't even seem to be ready? She didn't, she didn't address the whistleblower complaint because it's not officially in the record, and she kind of mentioned being in a political time. But she did discuss the idea that whole batches will be rejected and sent back to the states, and that could cause disenfranchisement.

But she has a lot of declarations from the plaintiffs here. It's a combined, it was a hearing of combined, it was a combined hearing of two cases. One involves voting rights groups, and one involves 23 states and the District of Columbia. So she has a lot of declarations from them explaining why, and in fact, every state, they believe that this could cause disenfranchisement regardless of whether states say that they're able to comply. And that was part of the back and forth, too. There was a lawyer there for the 12 intervening states, and they kept saying, "We can comply."  So she has lots of declarations from people saying this is gonna cause a lot of trouble, and she made a point of saying, "I have very little from the Postal Service. I have very little from the states who think that they will be able to comply, and that's one of the reasons I'm quite concerned about disenfranchisement."

So that was kind of one of the focuses and sort of what we learned about what to expect will actually happen based on the record. And then another focus was, is this portal even ready? And she repeatedly pressed the government lawyer, the Justice Department lawyer, on whether the portal was ready, and he repeatedly said he wasn't able to make specific representations. Ultimately, she pushed him to file something by 3:00 PM that day, pushed the Justice Department to, and they got a declaration from someone in the Postal Service saying it will be ready, quote-unquote, "sometime next week," which I doubt was terribly reassuring to her. It was rather vague, and it-

Benjamin Wittes: When are the first mail-in votes being sent out for the election?

Molly Roberts: I think that there ha- I, I believe that this week states are beginning to transmit their ballots. And it, it's-

Benjamin Wittes: I, I thought North Carolina was today.

Molly Roberts: Yeah, North Carolina. Exactly. It's, yeah, North Carolina, I think, I think it was, might, may even have been yesterday or may have been today. It was this week. And so, I mean you know, this is the other thing that I guess I should mention that's kind of, like, galling about the government's position in this case is that, you know, the reason the Supreme Court said it wasn't ripe was there wasn't a final rule yet, and that's what the government had been saying. "It's too early. It's too early." And now the government is saying, "Well, you can't do anything to us now because it, it's, it's too late. The elections are here, and if you tell us we can't do this now, we don't have enough time to protect the integrity of the elections."

But, you know, of course, the flip side of that for the states is, “We have no idea what's going on. We don't know whether we have to comply. We may end up trying to comply with this unlawful order, which, you know, could...” Again, it, it, it, it, it causes chaos if you have to completely redesign how your ballots are formatted, regardless of whether USPS is ultimately enabled to reject ballots. It could cause harm just the fact that the process has been thrown into disarray, and people who think that they're, you know, who are ready to get their ballot sent out can't do it yet because there's a delay. So, so, you know, I, I think that kind of the bottom line is regardless of what happens, I'm sure this has done some degree of damage already.

So I guess the, you know, big takeaway on the portal is that it didn't really seem ready. Another takeaway for me, or what I found interesting, was the intervening states. Their lawyer said, you know, "No matter what you do here, if..." Well, he said, "We think that there isn't standing for the plaintiffs, the, the organizational plaintiffs, and so there's no recourse really for the people who are in states whose states aren't suing. And no matter what you do, either because you find they don't have standing or because you just use your discretion," Judge Talwani, "we want you only to apply this to states that...”So, so if you issue an injunction that says that USPS can't do any of this, “We want you only to do it in states that have shown, that have proven, we want the burden of proof to be on them that there's going to be disenfranchisement.” And otherwise, we wanna be able to comply."

And she said, "Why do you wanna be, why is that so important? Why do you have to be able to comply? And, you know, you're allowed to make compliant ballots if you want. So what do you mean? You want it to be allowed that USPS can reject those ballots?" And he said, "Yes, that's exactly what we want because otherwise cities and counties within Texas might send in ballots that are non-compliant, and that would be bad, and that would hurt election integrity." And she had framed it as, "So you want your voters to be disenfranchised? You want there to be less of a right to vote in your state?" And he effectively said, "Well, we don't believe there's a risk of disenfranchisement, so no. But we do want USPS to be in charge." So she kind of altered her question, and she said, "Okay, why would you want election integrity," which is what you're saying you'd like, "in your state to be decided by the Postal Service?" Which I'm not sure there's a great answer to, right? It, it doesn't seem in accord with federalist principles certainly. If they wanna stop cities and counties from submitting flawed ballots, they could do that with state law.

So that's what stuck out to me. There was, of course, a lot on the merits, which was interesting, and had to do with whether there was statutory authorization for this and then sort of a constitutional layer on top of that statutory question that spoke to what does authorization have to look like and is the major questions doctrine implicated, and Judge Talwani seemed to think that it was.

There was a lot of back and forth of “is this major?” “Is this minor?” And there was one point in which one of the, I, I believe it was the lawyer for the intervening states was saying, "This is, we like the major questions. We s- we states like the major questions doctrine, but we don't think this is major, we think it's minor," and that's because in the Supreme Court's major questions doctrine cases, there have been economic programs, hundreds of millions of dollars involved. And she said that she's not a business court. “Sometimes the people in front of me are people. This isn't just a question of dollars, it's a question of voting.” And if she finds that major disenfranchisement is likely, does she need dollars to deem it a major question? Which, you know, I think her answer to her own question was probably no. So, yeah.

Benjamin Wittes: And so what are we waiting for now from what courts?

Molly Roberts: Yeah, so we're waiting for her, I mean, I don't wanna assume a PI from her. We're waiting on her decision whether or not to issue a preliminary injunction. That's one thing we're waiting for. And then we're waiting for the Supreme Court's decision of, first of all, whether even to hear the appeal, to entertain the appeal of the temporary restraining order, but, you know, possibly whether to stay the temporary restraining order that the administration has requested.

But if the preliminary injunction comes in from her, the temporary restraining order will be dissolved, and it won't matter that that went up to the Supreme Court. We'd expect an appeal of the preliminary injunction. And again, it, Tuesday is when the replies are due for that, and she said she was gonna move quickly. I was sort of surprised that she didn't get anything out today, but I suppose it's not 5:00 PM yet.

Benjamin Wittes: Yeah, it will come down while we are recording to be maximally inconvenient for-

Molly Roberts: Yes, it will come down when I've already hopped off the call, tragically.

Benjamin Wittestragically. Exactly. All right. All of which brings us to the subject of the ballroom litigation. And it's been a big week for the ballroom. Molly, bring us up to speed.

Molly Roberts: Oh my gosh. Okay. So we discussed this on the other Lawfare Live too, so I don't want to be too repetitive, and also I should promote the piece that I have on this on the question of “AESTHETIC STANDING!” All caps, exclamation point, or, you know, “aesthetic” with “ae-“ or “esthetic” with “e-“, I preempt you on, on that one. That's another major debate, at least in the past four-

Benjamin Wittes: A major question.

Molly Roberts: It's definitely, absolutely, absolutely a major question. Not hundreds of millions of dollars involved, but one or two letters involved depending on how you look at it. So, okay. So I think the upshot here is that the ballroom is getting built and the Supreme Court has said the ballroom can get built. That's not, of course, technically, exactly what has happened, but that is the practical result.

What the Supreme Court has done is stayed the injunction against the above-ground construction of the ballroom, but I think that there's more that has to happen legally, but it's effectively gonna be the end of the matter. The Supreme Court did this 5-4, and Chief Justice Roberts wrote with the Democratic-appointed justices in the dissent, and it did it primarily on the basis of standing, although it also addressed irreparable harm. So standing was sort of the merits prong of the test for an injunction, part of the merits prong. It didn't otherwise want to talk about the merits, surprise, surprise.

And then irreparable harm, of course, is another component of the test for a preliminary injunction. So very quickly on the irreparable harm point, the court essentially accepted the national security justifications that the government had been putting forth about the need to shield from a kinetic impact, and it kind of wasn't interested in discussing the fact that the government itself blew this hole in the ground or the fact that the government had initially made the representation that it, anything that happened below ground, which is where originally the national security impact was supposed to be, wouldn't affect what happened above ground. And then, you know, they were allowed to continue building below ground, and then they started saying it was an integrated hole.  They weren't interested in any of that. They said, "We have declarations from all these fancy national security professionals," and so national security irreparable harm.

Then on standing, so on standing, what the court said essentially was that the woman walking her dog, Allison Hoagland, the architectural history professor through whom the National Trust for Historic Preservation was suing, didn't have standing to sue because her injury was not sufficiently concrete and particularized. This was kind of odd and confusing and maybe surprising to people who'd been following the Supreme Court standing doctrine because aesthetic standing has a long history in the Supreme Court. That history is mostly having to do with environmental cases, and this was a case that had to do with instead a historic site or a cultural connection to a site. But the D.C. Circuit at least-

Benjamin Wittes: Crocodile  standing versus building standing

Molly Roberts: Which is very, very different apparently. And I guess that, you know, the, the kind of, I wanna get to the end of it quickly because again, I said I didn't wanna be too repetitive, but I've done a lot of repeating. But what Chief Justice Roberts asked at the end, and this is the core question, and this is the distinction that I think a lot of people feel that the majority failed to make. They did sort of a circular reasoning thing where they said it's mere offense because it's not concrete and particularized. Well, why is it not concrete and par- particularized? Because it's mere offense. And they didn't really explain what specifically about her injury made it fall short in terms of concreteness and particularization, although you would, I think there are ways that she, they could feasibly have done that, but they didn't really.

So Chief Justice Roberts wrote, "I want to look at a crocodile can adequately answer the ever-critical what's it to you? question of Article Three standing, while I want to look at the White House cannot, no matter how distinctive the particular viewer's interest in looking at it may be." And he makes that point, and then he asks, "If a standalone concrete and particularized aesthetic injury," which is what he believes this is, "can be recast as mere offense, then what saves all these environmental plaintiffs' aesthetic injuries from being classed as mere distaste for actions of government or private industry?"

And I think that's a great question, and I think lots of people who follow standing doctrine wonder if this means anything for environmental standing or wonder whether it means there's just a distinction that's been made now between environmental standing and other forms of aesthetic standing, which may now have much more trouble in court, as I imagine Roger will discuss when he gets to the, well, when he gets to later in our program today.

Benjamin Wittes: When he gets, for example, to the triumphant arch.

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So Roger, the administration has announced, and I for one am proud as an American, that we will no longer have to bow before France as the country with the most triumphal arch. Ours will loom upon, up- a- above the pitiful Arc de Triomphe. In a mere two weeks we will break ground on this. And I know the question that everybody is asking you today, like people are stopping Roger in the, on, in the street asking him this question. They're saying, "Sir, does anyone have standing to stop this too? To stop the groundbreaking of the arch?" And what are you saying to them when they, when they do that?

Roger Parloff: Well, the people bringing that case include three Vietnam veterans. And they, so, you know, the, the, and they have sort, a different, there's a different quality to their argument. I mean, the Supreme Court didn't expressly overrule all previous s- standing arguments about aesthetic interests counting. And so if you can show that your, your aesthetic interest is concrete and particularized that you're still apparently in the ballgame. And there are some very moving arguments that they make about how important it is when they visit Arlington Cemetery, when they visit their comrades in arms who died, and, and also the fact that they hope to be buried there eventually.

And, the, the, the, I think they sound some different in kind. Michael Lemon the lead plaintiff says things like, "The thought of being interred in the shadow of what I believe to be a personal vanity project is profoundly disturbing to me." Sean Burns, who was burned over half his body in a, in an attack on his Navy ship says he's not sure if, if this is built, would he still want to be buried there? "It will become a symbol of one ruler's unrestrained authority to do as he wishes, regardless of the law, regulations, and traditions of our country. Furthermore, it will stand as a disgraceful insult to those resting in Arlington National Cemetery who fought and died to defend our democracy."

The, and the, these are not isolate. I mean, there's a lot of this. And it's conceivable that somebody on the Supreme Court who did not find the architectural historian's distaste sufficient might be moved by some of this some of this stuff. There is an architectural historian also in the, among the plaintiffs, a fourth plaintiff. I, I think that that claim is probably dead in the water at this point.

And then there's some more things I could say about this case, but I, I think, I, I don't it's possible that those, I mean, I certainly think at the Tanya Chutkan level which is where this is at the moment, that those could prevail. But at the Supreme Court, I, I, I don't know. Obviously, it's an uphill battle.

Benjamin Wittes: It's hard for me to imagine, if we imagine the target is either Brett Kavanaugh or… You know, Amy Coney Barrett or maybe even Neil Gorsuch, it's hard for me to imagine that you could draw a principled distinction and say, "Okay, it is not good enough to be an architectural historian who has a deep, profound sense of the m- meaning and symbolism of the White House and the…” You know, like, and “being offended by the vanity of the ballroom is not enough, but it is enough to be a Vietnam veteran who has been desires to be interred at Arlington Cemetery and has a deep symbolic sense of the vanity of the arch and would not want to be buried at Ar-"

Like, I'm, I'm having trouble seeing where the distinction between those is, though they're obviously of different moral weight in terms of in terms of how much we identify with the per- one is a professional judgment, and the other is a sort of deeply personal judgment. But they seem, like, hard to disaggregate as a matter of principle to me.

Roger Parloff: Yeah. They certainly it's, it, it's not a, a, a clear-cut distinction how, how, how they're gonna prevail in light of what just happened. I will say that… A- and in fact, I should probably say it's not even what the plaintiffs themselves, the plaintiffs' lawyers themselves have argued since the ballroom because there's been an exchange in court since the ballroom ruling, you know, when there's a ruling like that, lawyers file what's called a notice of supplemental authority. And so each side has done that. Usually they're quite brief. The plaintiff's notice in this case was seven pages which is long in my experience. Like, there are some districts where y- you can't write more than 200 words. So, and I think that reflects some concern about what's, how to go forward.

And the, what they said, what the, what they, their distinction frankly i- is a little murkier than even the one that I outlined in my humble opinion. They said "Plaintiffs have been clear that aesthetic injury, that their aesthetic injury derives not from the specifics of the arch's design, but from the interference that any sizable arch in Memorial Circle will work on the existing landscape." Unlike in ballroom case, in other words, “plaintiff's injury is not based on the construction of something that gives them offense, but rather on the destruction of a landscape that they regularly visit and that holds profound personal significance for each of them in its present state.” I don't know. Does that, does that do it for you?

Benjamin Wittes: I, I, I mean, I, I, I said this before on the show the other day when the live show the other day, that I, I really think the right plaintiff here is somebody who is individually inconvenienced or impeded from doing the things that they want and have the right to do. And I, I think looking for somebody who's offended by it is the wrong instinct. And looking for somebody who, you know, the arch casts a big shadow over their food truck and, you know, will impede business, right?

I, I, I think, you know, you're looking for, the, the examples that I keep coming back to is somebody whose commute is going to be significantly lengthened by long period of construction right at the base of the Memorial Bridge, or in the case of the, the ballroom somebody who wants to use Lafayette Square or the Ellipse for some reason and can't, like a protester or something, because they're closed because there's heavy machinery there.

I think those people have a better, it's a, it's a morally less significant standing claim, but I think it's a legally better standing claim than somebody who is relying on the aesthetic standing doctrine in any form.

Roger Parloff: I, I-

Benjamin Wittes: Sorry, go ahead.

Roger Parloff: I, I actually do think there's a possibility though that wounded war veterans are different and-

Benjamin Wittes: It is hard to say no to them.

Roger Parloff: Yeah. And I also think… Oh, there, and there's one other thing before we leave this topic, I just wanna mention that a, a TRO there was some activity yesterday and today is there a time to address that? … Yeah. So yesterday Todd Burgum tweeted that they're going to start breaking ground on this project within the next two weeks.

So, that was a bit of a surprise. The, the status of this case was that we're close to a sum- it's fully briefed on, on, on, in terms of a summary judgment mo- motion. Earlier there had been a preliminary injunction motion and, and the government said, "We don't need to have a preliminary injunction. We agree that we're not moving forward immediately, and we'll give you 14 days notice before we do anything."

So, I think the plaintiffs thought that meant 14 days notice in a court filing, not in a tweet saying, "We're gonna do it within the next 14 days." But be that as it may they today while I was in court, they, they did file a TRO motion to a temporary re- motion for a temporary restraining order to make clear over the next 14 days nothing will happen and we can brief an, an some sort of either further TRO or, or a preliminary injunction to prevent this from going forward before Judge Chutkan rules on the on the merits of the whole case and, and ca- has a chance to issue the permanent injunction

Benjamin Wittes: Well, within the f- next 14 days, by which I mean right now, a large storm is passing over Washington, D.C., and so if you happen to hear thunder or if we happen to have internet blippage that is the reason, and I apologize for it.

Speaking of heinous villains in the Lawfare Live: The Trials and the Tribulations of the Trump Administration series, I wanna call out one, which you know, we have been using a lot of different themes for different music, and most of the copyright holders have been very sporting about it. Taylor Swift did not raise any issue when we used her music. Bruce Springsteen did. I wanna give him a, a, a, a little asshole point for that. But there is one organization that has been, really out-assholed all the others in that, and that is the United States Olympic Committee, the International Olympic Committee, which every time we have used, and it's totally fair use, by the way, the IOC theme music in order to introduce the Davey Hearn case they have complained to YouTube about it.

And so I am not going to play the IOC theme to introduce this segment. I'm gonna sing it, because that way they will have to, it, they, their algorithm won't, won't pick it up. They will have to no- some human will have to notice that the host of the show is singing this, and it's not, and they will have to make a human judgment it's not fair use, even though it is fair use. I'm only gonna sing a few seconds of it, and it's in the context of a discussion of an Olympic canoeist. And so, you know, you wanna fight us about this? Bring it, people. We're gonna fight you all the way to the Supreme Court. Here I go.

[Ben sings the theme of the International Olympic Committee]

Okay. Davey Hearn, Olympic, get it? Olympic canoeist, indicted and prosecuted for cutting a 350 yard or foot, I don't remember, slice- vandalizing the, the paint at the bottom of the Reflecting Pool, which he did not do. Charges dropped Roger Parloff, and the question is, are they dropped with or without prejudice? And who is worse here, Jeanine Pirro or the U.S. the International Olympic Committee?

Roger Parloff: Well, I don't, I don't wanna take sides there. But so Judge Todd Adelmann had a hearing today on this just now, 2:30 PM. And he did not, I'm not holding the, withholding the ball. He did not make a decision. He took it under advisement. He said it won't take very long to make a decision. And it, it, it was a very, it took about 40 minutes. I, this does not seem, you know, at a-

Benjamin Wittes: You were there, right?

Roger Parloff: Yeah, yeah. It was a more searching inquiry that, than I thought it might require. But there isn't a lot of law. There's, like, one superior court case. This is in the D.C. Superior Court, remember, not in the D.C. Federal Court, even though it is U.S. attorneys prosecuting it. That's the way it works in D.C.

And, and I think Judge Adelmann wants to get it right, and he has actually been nominated twice to the federal bench, and Republicans have not let him get on. So I think he might still hope to make it one day, and he wants to, this is an exposed, an unusual- an unusually publicized case bef- in the Superior Court, and I think he wants to get it right.

He began with a long series of questions to the prosecutors basically what are you waiting, what are you hoping, why are, why do you wanna keep this open to, you've told us in your motion to dismiss that there was no economic loss. And once you realize that, that you had no case, and you wouldn't have brought the case if you had known that in the beginning, so w- what are you waiting for? What's to dismiss with prejudice? And the answer was, "Well, you know, that's speculative. We don't know what could happen down the road." And he said, “I mean, you're not talking to new witnesses, right? I mean, this happened months ago. Are you investigating anything?” And he said “not at this minute, but I can't say that 10 seconds from now I might not be investigating.” And, and it went on like...

And then he said, "And what about these statements from the president attacking..." You know, because harassment is an issue if you're going to, i- is there a danger that the government is going to harass the defendant? That is a reason to dismiss with prejudice. And here you have the President of the United States attacking the government's 20-page motion to dismiss, you know, saying he doesn't agree with it, attacking the U.S. attorney, saying he wants to reconsider prosecuting this guy, and mentioning that one of the reasons he wants to prosecute Hearn is that Hearn once contributed to ActBlue. And so he says, you know, this is not just a concern about reprosecution, but a concern about meritless reprosecution.

So I think, you know, the, the tea leaves are, are looking pretty good for Hearn. On the other hand, the, the, Hearn's people had wanted some additional discovery. They'd wanted grand jury minutes. He did not seem to wanna go in that direction. He did not seem to want to re- relitigate whether bringing the case at all was bad faith. He, so he didn't seem to think that was necessary. And once the Hearn's lawyers agreed that you don't really need to show bad faith in order to get a dismissal with prejudice here it seemed like that's what he wanted to hear. And I, I, I suspect that's where we're going.

Benjamin Wittes: I cannot imagine that this gets dismissed after a litigation on the point without prejudice. It's, the government doesn't get to behave this way in a respectable court and then h- walk away with the option of re-indicting the case, and I can't imagine any self-respecting judge would hold otherwise. And that's true in federal court, it's true in superior court, and it's true irrespective of the party of the appointing president of the judge. I- it's, you just can't make the kind of concessions that they've made here and then come back and say, "Yeah, but we don't, you know, we don't know what the future will hold. We, we'd like to have another bite at this particular apple."

Roger Parloff: I think that's right, yeah.

Benjamin Wittes: All right. Anna Bower has been extremely patient and it is time to talk about the St. Paul City Church defendants because there has been a flurry of motions in that case. Anna, remind us which this case is, ‘cause most people here have forgotten that the state of Minnesota exists. And, and so much less that there is litigation there.

Anna Bower: Yeah, so, so this is the FACE Act case that was brought against dozens of protesters who went to City's Church during the ice surge in Minnesota. This is the case involving Don Lemon and Georgia Fort, the journalist. And, and we talked about it before I think as recently as about two weeks ago, we talked about some of the motions that were filed in that case. But we have a flurry of new motions, Ben, to the extent that we can't get through all of them because there are at least, like, 50 motions. I haven't even been-

Benjamin Wittes: So when you say a flurry, you really mean, like, a flock.

Anna Bower: Yeah, it is a lot of motions. I mean, I haven't even been able to get through all of the motions. Keep in mind, there are so many defendants in this case that, you know, it's almost kind of like Fulton County RICO case against Trump levels of you know, some, like, i- it, it felt at one point like I was doing a logic problem for the LSAT, trying to figure out who wanted to be severed from the case and who wanted to be tried together. This is kind of similar in that there's, there's motions to sever, there's motions to join other motions, there's you know, standalone motions that some defendants are filing just on their own behalf, but then others, people are joining. And, and it's all, you know, a, a little bit hard to keep track of who is doing what.

But, some things that I will mention that, that have come through in this flock of motions one is that there's this issue related to 19 USC 1509, which is a statute that allows the U.S. Customs to seek records through an administrative kind of summons to get things, certain types of records. And, and those records are supposed to be under the statute, you know, related to some kind of customs issue. But what seems to have happened here, and it's not entirely clear if the phone providers in all cases actually responded and, and provided records pursuant to these summons, but what seems to have happened here is that the Department of Homeland Security, HSI, served under this statute summons on phone providers for things like cell phone location data related to these protesters. And, and seemingly, potentially re- received that data, but it was under the authority of this statute related to, you know, customs authority. And this case has, as far as I can tell, absolutely nothing to do with customs. So there's a, a number of motions related to motions to suppress based on that lack of authority. Also arguments that, you know, this is in violation of the Fourth Amendment under Chatrie. So things like that.

Other things that we've got as well in this flock of motions include motions for sanctions or, or to dismiss based on outrageous government conduct. Some of the things that are mentioned in, in those types of motions include a lot of the government's, I mean, frankly, outrageous behavior related to using AI-manipulated photos when, when a number of these protesters were arrested. There were these AI-manipulated photos that were put out on the White House's Twitter account. Some of the, the lead defendant in the case was called a far-left agitator. You know, things of that nature that are mentioned in, in, in th- that type of motion.

So those are just a few things that I'll mention, Ben, but it certainly is shaping up to look like, you know, the judge in this case is, is going to have hands full in terms of-

Benjamin Wittes: Some omnibus opinions to write.

Anna Bower: Yeah. So there's a, there's a lot going on.

Benjamin Wittes: And do we have a trial date set for this case yet?

Anna Bower: Eric, remind me. I think we do have a tentative date. No, we don't? Okay. I, I would have to look back the. I, I think that we do, but I don't recall. I, I… Ask me that again next week and I'll tell you. All right.

Eric Columbus: Yeah, my, my shaking my head was just to plead ignorance rather than dance-

Anna Bower: Okay.

Eric Columbus: around the question.

Benjamin Wittes: All right. It is now time to turn to the grand conspiracy.

[Music Plays]

So,

Anna Bower: Ben, I'm really upset that you didn't go with my suggestion for a pop intro to The Grand Conspiracy, which involved a Taylor Swift song.

Benjamin Wittes: Well, the, the thing is, like, first of all, you know, the more recent the music, the more likely we're gonna have copyright problems.

Anna Bower: Yeah, but you said Taylor is, you know, has-

Benjamin Wittes: Taylor has been, Taylor has been chill so far. Look, if you want us to rotate in some Taylor on, on The Grand Conspiracy, send me what you want. And next week, we, we, we don't have to do the same theme every every, every time.

So, our friend, friend, personal friend, and friend of the site, Dan Richman, has a grand jury conspiracy or grand jury subpoena in the grand conspiracy case, Anna. So tell us, why would a grand jury in Florida want to talk to Dan Richman about anything?

Anna Bower: Ben. I, it, I mean, on one hand, you know, it, I, I don't know. But on the other hand, as we've discussed before-

Benjamin Wittes: I mean, he's a super funny guy. I love talking to Fran-

Anna Bower: Yeah.

Benjamin Wittes: To Dan Richman. If I could like-

Anna Bower: He's an expert in criminal procedure, maybe-

Benjamin Wittes: Subpoena people for dinner, he'd be like high on my list, but…

Anna Bower: Yeah, look, he's an expert in criminal procedure. Maybe Joe diGenova wants some, wants some tips. But no, I as we've discussed before this grand conspiracy case seems to be an effort to loop in kind of all of the conspiracy theories that Trump has had over the years about a deep state plot against him that kind of ropes in people from Brennan to Comey. It goes from, you know, over a decade ago with the s- the so-called Russiagate investigation up to, you know, more recently, Jack Smith. And so Dan Richman, it seems-

Benjamin Wittes: Remind us who he is, ‘cause-

Anna Bower: Yeah, so Dan Rich-

Benjamin Wittes: Other than that he looks like me and that Susan Collins confuses us sometimes, I think like a lot of people don't, probably don't know who Dan is.

Anna Bower: Yeah, Dan is a, a longtime friend of Comey's who was a, a confidant of Comey's when Comey was the director of the FBI. He served as a special government employee for a time and, and was kind of an informal, you know, conduit or, or media liaison at times in that he would speak to the media about his perceptions of, you know, what, what Comey was doing or, or thinking, kind of, during the time of Comey's tenure as FBI director.

And famously, Richman was the person to whom Comey gave the, the memos that related to Comey's interactions with Trump. I, the request that Comey back off from the Flynn investigation, things of that nature were in those memos. I- it, there was, at the time that those memos were, were given to Richman, my understanding is that none of the information in those memos were classified. But, subsequently after the fact, there was I believe been, you'll have to remind me, it was one word, correct? That was retrospectively-

Benjamin Wittes: I belie-

Anna Bower: Classified in those memos.

Benjamin Wittes: I believe that's correct. I believe in, there was one word, but not, I think it wasn't in the memo that was, was it in the memo that was given to Dan or was it in a memo that was at Jim's house in his safe? But it was one word and the one word, I'm not giving anything away here, was “Egypt.”

Anna Bower: Yeah.

Benjamin Wittes: And it was, it was retroactively classified at the confidential level. And yeah I, I can't imagine that that is a matter that, what is it, 10 years later, nine, eight years, nine years later? That can't be the grand conspiracy, can it?

Anna Bower: It, it, look, who knows? But it, that is one possibility.

Benjamin Wittes: Because it sure as shit isn't grand.

Anna Bower: It is one possibility that, that there is something of, of related to that, that that prosecutors in Florida for some reason, again, putting aside the question of jurisdiction and venue there, there's, there's po- the possibility that there's something related to that that prosecutors want to talk to Richmond about.

Of course, also Richmond was the confidant that w- th- was the s- the person that supposedly Comey in the E- Eastern District of Virginia case brought by Lindsey Halligan the subject or the predicate conduct of Comey's alleged false statements to Congress had to do with his communications with Dan Richman and then Richman’s communications with the media. So there also could be some effort to revive or to ask Richmond about things related to that case or to that conduct.

But we just really don't know, Ben. It's, it's really unclear and seems to be a part of this potpourri of different things that Joe D- d- diGenova is looking at down in Florida.

Benjamin Wittes: Right.

Anna Bower: And it's still not clear exactly where that's going.

Benjamin Wittes: Just help me out here. Where does Jim Comey live?

Anna Bower: Jim Comey lives in Virginia, correct?

Benjamin Wittes: And where, yeah, correct. And where is the FBI building?

Anna Bower: In also in, it's in Vir- is it in Virginia? Correct?

Benjamin Wittes: No, no, it's in Washington.

Anna Bower: No, it's in D.C.? Okay.

Benjamin Wittes: Yeah.

Anna Bower: I, I don't know these things.

Benjamin Wittes: And where is, where is the Columbia University Law School?

Anna Bower: It's in New York!

Benjamin Wittes: I, I see. And so all of these communications between Dan Richman and, and Jim Comey, how many of them do we know of that were within 500 miles of the Southern District of Florida?

Anna Bower: I'm not aware of any. And again, the, the theory here appears to be that if they can somehow get, get the conspiracy to the point of roping in the search at Mar-a-Lago, that is how that is how you get venue and jurisdiction in Florida.

Benjamin Wittes: Right, and-

Anna Bower: But remember, that happens, like, 10 years after.

Benjamin Wittes: Yeah. There's some, there's an elapsed time issue. Look, I'm just- I, I'm just saying the grand conspiracy would have to be really grand to get you to Florida in f- five years later.

Anna Bower: Yeah, yeah. And, and one other thing I'll mention as well, you might recall that there, the FBI still had a bunch of documents that it had seized from Richman’s computer and, and electronic devices that then during the case that was being prosecuted against Comey in EDVA was subsequently sealed because a judge found that y- you know, Richmond, after that was over, filed a motion for return of property. The judge found that essentially the g- the government's conduct had been unlawful and in violation of his constitutional rights. There, the, the, like, there was a sealing of that material, but it was still on file in EDVA.

So there also may be the, it, it may also be the case that prosecutors want to question Richmond because they still have not yet been able to access those materials that are sealed in EDVA. I'm not sure. It's, it's all kind of confusing and murky, Ben.

Benjamin Wittes: Well, I will just say about Dan Richman that while he was orchestrating a grand conspiracy, for which I am confident that the Southern District of Florida grand jury, I'm re- it's gonna get to the bottom of it, Dan was also writing a book about the early history of the Justice Department and federal law enforcement in the 19th century. And that book, so it was like one hand is writing the book, and the other hand is orchestrating a grand conspiracy. And that book is actually coming out pretty soon. And so, you know, he's a multi-talented guy and and I, I'm excited about the book.

All right. Let's turn to the First Amendment, Eric Columbus, because Judge Wise of the Northern District of California, and by the way, if your name is Judge Wise it's really, it's like being named Judge John Minor Wisdom or something. It's you know, it's important when you have the name Wisdom in your name. Has ruled that it was a First Amendment violation and a due process violation for the Trump administration to revoke the legal, legal status of students whose views they didn't agree with using security-related justifications. Who are these students, Eric? And by chance, are they Palestinian?

Eric Columbus: Well, the specific plaintiffs in this case are an anonymous woman named Jane Doe and The Stanford Daily which is the, as you might guess, the daily publication of Stanford University, the, the student newspaper. And they are suing because Jane Doe is a former university student who's here on a student visa, and she has strong views about Palestine and Israel and has expressed them in the past, but is currently a little bit afraid to do so for fear that she will, that deportation proceedings will be instituted against her, just how they were for Ms. Ozturk, for Mahmoud Khalil, and for several others whose cases have been proceeding through the system over the past year and a half. And, and likewise, The Stanford Daily has a bunch of students who are here on student visas and want to write about issues inv- involving Palestine and Israel, but fear the consequences of doing so.

And this is very s- it's similar in many ways to a case brought by the American Association of University Professors in New York, sorry, in Boston that were challenging the existence of a, what they allege was a, a policy of, pursuing pro-Palestinian students on student visas in violation of the First Amendment. This statu- this lawsuit challenges the specific statutes that the government used. And the record was largely lifted from the AAUP case in Boston and also the stipulated facts by the parties. No one really disagrees with what's been going on here.

The, the statute the main statute in question, there are two of them, but o- one of them says that i- if the state, “Secretary of State has reasonable grounds to believe that a non-citizen's presence or activities in the U.S. would have potentially serious adverse foreign policy consequences, then that non-citizen is deportable.” However, if it, if it basically involves the, “the alien's past, current, or expected belief statements or associations” if they're lawful then y- you can't do so unless the Secretary of State “personally determines that the alien's p- mere presence would compromise a compelling United States foreign policy interest.” Now, that's a pretty high bar, but the, the State Department has hel- has argued that it's not really reviewable. And so they're, they're basically going after the statutes themselves in this suit.

Judge Noel Wise, she is a Biden appointee, one of the, the last ones in, in 2024. She found that, to start off, that for the purposes of this case, non-citizens have the same rights under the First Amendment and the same due process rights under the Fifth Amendment as, as citizens. And she held that strict scrutiny is applicable to this case and that the government's asserted interests are, are clearly compelling wanting to combat terrorism, wanting to combat antisemitism, but that this wasn't really close to the least restrictive means of combating of achieving those interests. And for example, in combating terrorism Judge Wise noted that there are already statutes that allow you to deport people who are engaging in terrorist activities or engaging even in criminal activities that are harmful to U.S. interests.

And she also held that this is, is unconstitutionally vague. This does not give a, a normal person fair notice of what is the type of conduct that would get them kicked out of the country. And on that, on that latter point, actually there have been two other judges who have agreed. One was the district judge Michael Farbiarz in the Mahmoud Khalil case, and another was a judge also in New Jersey in 1995, who just happens to have been the sister of Donald Trump. And you know, the, the, the scriptwriters are really mailing it in-

Benjamin Wittes: And then died.

Eric Columbus: I think. That's just kind of too easy and too obvious and involves a Mexican official. It did not involve the First Amendment, that case.

So, then, then there's another statute that says basically that the Secretary of State can revoke a visa at any time, and she also said that that was in- in- inconsistent with the First Amendment a- as applied in this case, and that would not be, and it has the same due process pr- problems. She did not grant the requested injunctive relief because on the first statute it, it, there's actually language within the Immigration Nationalities Act that says only the Supreme Court can en- enjoin application of it.

And as the second statute, she the, the plaintiffs wanted injunctive relief as to them, but she, she held that she couldn't really do that because they were proceeding anonymously, and that she basically said that if, if in fact they try to, anyone tries to do anything to you, come back to me and we'll, we'll figure it out. So she basically tried to skirt that and postpone it for, for the time being.

Benjamin Wittes: All right. Speaking of people who need a judge to intervene on their behalf Former President Nicolás Maduro has asked the court in New York to throw out his case on grounds of sovereign immunity. I can think of a few problems with that argument off the top of my head, but it's not entirely laughable. So Eric what is he seeking and why is it not going to work?

Eric Columbus: Well, he is seeking to dismiss on, on sovereign immunity going with two different sovereign immunity arguments. One is head of state immunity, and the other is official act immunity. And those are, are, are, are related but very different. I'll go, we'll go through them one by one.

Head of state immunity basically means that you, you cannot prosecute a, a, another country's head of state. And Maduro argues, I think correctly, that there's never been a criminal trial of a foreign leader who was recognized by his own country as the head of state at the time charges were brought. And you might say, "Well, what about Manuel Noriega?" And the, the answer appears to be that Noriega was never really considered a head of state in, in Panama and not-

Benjamin Wittes: He was the head of the military.

Eric Columbus: Head of the military, and there were actual heads of state who, through whom he basically operated. They did his bidding. But he had taken power in a coup, and the Panamanian constitution did not recognize him as head of state. The U.S. Stopped recognizing Maduro as head of state in ni- in 2019, but he argues that that doesn't matter because he was still the de facto head of state. He was the guy who, who ran the country, and that's a little bit in tension with the, the Noriega example.

And he, he also points out correctly that Delcy Rodríguez has said shortly after his arrest that he is the same, he is, in fact, the head of state. I don't know if she's, has said that recently. Perhaps she could be… She seems very eager to do the bidding of the United States. I don't know if it would help if, if she said the opposite for the prosecution.

Official act immunity is, is different. It, it's for you, it's the argument you cannot prosecute people based on acts that they performed on behalf of a foreign government. And-

Benjamin Wittes: Isn't it a little bit ironic for the Trump administration to be resisting an official acts immunity claim by a head of state?

Eric Columbus: Well, a- and that's an, an irony that is not lost on Mr. Maduro or at least his lawyers, and that he cites Trump v. United States in, in, in a few places. And he says, you know, "Look whatever you think of what I allegedly did, I was clearly acting on the state's be- on the government's behalf. And you say in your indictment that I, I corrupted the government, but you know, we don't look at motive. We don't look at, and you, you know, we say, as the, the, the, the Supreme Court said in Trump v. United States, we don't look at the motives of, of acts.” And, and, you know, quote, "Nor may courts deem an action unofficial merely because it allegedly violates a general affable law. Otherwise, presidents would be subject to trial on every allegation that an action was unlawful, depriving immunity of its intended effect." That's a quote from the Trump case that made its way into Mr. Maduro's brief.

And, you know, he, he cites various acts that, that involve you know, fudging diplomatic passports and, and help using them in the pursuit of, of, of, of illegal narcotic trade you know, meeting, you know, using the army improperly meeting with officials of foreign countries all in, in, in service of this conspiracy. But he points out that these are all acts that were performed basically in the service of the government. And he was not some rogue actor. He was, you know, the guy running the show. And it was all done for better or worse on behalf of the government.

And he also says that there's then no reason to defer to the executive branch, which is, I, I think, a place where he may have some, some trouble here. He says, he notes that in, in, in other cases-

Benjamin Wittes: This is why his argument is gonna fail.

Eric Columbus: He, he, he notes that in other cases, the, the Second Circuit has said you d- you defer when determinations are consistent with the common law, but did not reach the question, apparently, of what happens when g- the executive branch's actions or viewpoints are, are in derogation of the common law, and he feels that that should distinguish his actions here.

We wrote about this in January as part of our, our coverage of Maduro's arrest which had been just a few days earlier, and we, we correctly predicted, as anyone could have correctly predicted, that he would raise these official immunity actions claims, and we discussed in greater depth there w- how it might play out.

Benjamin Wittes: All right. Anna, let's turn to our immigration roundup. And we've had an interesting development in the matter of the ICE agent who was in Texas and should've been in Minnesota facing charges. This one I gotta say I didn't see coming. What happened?

Anna Bower: Yeah. It's a little bit strange, Ben. This is, not an immigration case again, but a criminal case. But involving an ICE agent who shot a man in the leg through a door in Minnesota during his time working in Minnesota, then went to Texas and was the subject of this extradition fight between Minnesota and Texas that we've been talking about for the past several weeks. And Minnesota had not yet succeeded in getting him extradited from Texas to Minnesota when these charges dropped.

He has been now federally charged a- after already having been charged at the local level in Minnesota. And specifically he's charged with six counts of making false statements to the FBI in relation to the l- events leading up to that shooting. The indictment describes, you know, this, th- basically very quick interaction that happened where he's trying to apprehend someone. A, a person comes out of the house, helps the other person up who's trying to get in. They go inside, he shoots through the door. But then he later told officers when he was interviewed about this that, you know, there, there were, there was this incident where someone came out and was beating him with a shovel. You know, things of that nature, and the whole thing lasted minutes, whereas actually it was just 11 seconds. He ends up shooting the person. So he's, he's charged with making false statements.

But there was some drama surrounding this as well, Ben, in that one of the federal prosecutors who worked on this case had, had recommended that and wanted to charge him with civil rights offenses as well but was ultimately, you know, shot down from doing that. And then he, the prosecutor made his reservations about that decision known and ultimately was, was fired f- because of it. So it's a, it's an interesting move from, from the Justice Department because they are willing to go so far as to charge this man with lying to federal officers, but not willing to actually, you know, charge him with the shooting itself or with civil rights offenses related to the shooting. So we'll see what happens. I'm not entirely sure yet how this will impact the local case if at all. But it's a, it's a bit of a surprising development.

Benjamin Wittes: Although it does, it is a development that solves the Texas extradition situation.

Anna Bower: Yeah.

Benjamin Wittes: And that honestly may be the purpose of it, to relieve, normally we don't talk about the Justice Department in such political terms, but this is you know, different times, radical times, radical conduct. You know, it may be designed to save Rick Perry-

Anna Bower: It gets Greg Abbott out of a pickle, yeah.

Benjamin Wittes: I, sorry, Rick Perry, Greg Abbott out of the particular political pickle of having to decide what to do with the guy before the election.

All right, Judge Boardman, Roger District of Maryland has enjoined, no surprise here, that new executive order that in the face of a Supreme Court decision that says birthright citizenship means birthright citizenship purports to say that birthright citizenship doesn't necessarily mean birthright citizenship. Any surprises here?

Roger Parloff: N- not really. It's, it is a very, you know, a month after the Barbara decision. Yeah, this, this new executive order came out, and it sort of tries to nibble around the edges and say there are still some live issues here, and it, it, it tries to carve out some new exceptions.

Some has to do with if you're here as a result of a commercial transaction when you're, if the child is born. Another one has to do, I, I don't have the exact language, I'm sorry. Another has to do with y- if your parent is a d- a designated terrorist. And of course, we've seen that Marco Rubio can designate people as designated terrorists overnight. And, and if you have a tattoo ICE can say you're a member of that group. So it's a, it's a very fuzzy and category.  So, and there are other things like if you're born on a ship, but that isn't, there's some strange things. So if you're born in a U.S. territ- ter-territory or territorial waters that Congress hasn't said you would be a citizen if you were born there…. That one I, I, I don't, might even be correct.

So there's, the, these are highly specific exceptions. And so what the judge did, and so there are a couple, there were many, many birthright citizenship cases. The one that went to the Supreme Court was called Barbara, came out of New Hampshire. This one is called CASA. It's the one that, you know, we, we had that decision about universal injunctions earlier. It comes out of the District of Maryland, and the jud- judge is Deborah Boardman. There are certified classes in both, and in fact natio- nationwide classes, and they are identical.

So, the, the, the Supreme Court seemed to rule in Barb- Barbara that everyone in that class was now safely a citizen. And the government was arguing, "No, it didn't say that. It said everyone in that class now is not necessarily disqualified from being a citizen, and we can still sort of chip, try to chip around the edges." So, she rejected that argument.

She, but she, it, it's not, it doesn't invalidate the executive order, you know, lock, stock, and barrel 'cause it, it just says, because that would be sort of an advisory dec- opinion at this point. She's saying that “for the class in front of me, which is a lot of people, it's all current and future persons who are born on or after February 20th, 2025 blah, blah, blah, and, and the person's mother was u- unlawfully present, so on and so forth. All of these people the executive order is unconstitutional as applied to them. That will be a huge group of people. But she also says you know, there's a provision 2(d) that isn't implicated. That's the one about being born in a territory or territorial waters of the U.S. where citizenship is not conferred by statute. And, and there's another provision, 3(d), that where a- about issuing public guidance that hasn't issued yet that d- aren't included.

So it, it's not, it's not crystal clear, but it, it, for most people that are implicated by this thing it's, it's a big victory.

Benjamin Wittes: All right. Speaking of the opposite of big victories, it was I was kind of surprised earlier this year when a panel of the Second Circuit ruled against Mohsen Badawi who is one of the Palestinian students or one of the Pa- is he a student or a, but he's here on a visa that, as you described Marco Rubio just decided to revoke because he's Palestinian and anti-Israel. And the Second Circuit picked up the matter en banc this week. What do we know about what the court is thinking in that case?

Roger Parloff: Yeah. So, Badawi I believe he's a LPR, a, a, a le- a legal permanent resident, and in fact, I think he's the one who was arrested. He went to his final interview to become a citizen, and then he was arrested. And he's one of the five showcase sort of people that were either Palestinian Palestinians themselves or they were pro-Palestinian protesters. Him and Mahmoud Khalil, Bader-

Benjamin Wittes: Right. I think he and Mahmoud K- Khalil are Palestinian, and then Ozturk is Turkish, of course, but was, is being, being, they're going after her because of pro-Palestinian advocacy.

Roger Parloff: That's right. And then Bader Khansari and Yunseo Chung. And then there were some lesser figures. But, so the, with all of them, the issues were First Amendment issues where they and, and also the issue that Eric mentioned about was this w- was this statute that Mar- Rubio was invoking unconstitutional as applied and at the very least as applied.

And of course, they were all arrested, and then the problem was, can they, they go to the district court when you would think this is sort of basic, this is habeas corpus, this is the whole, the great writ. This is when you use it. You're being arrested because of your First Amendment protected rights, and you're thrown in jail. This is the beauty of American habeas corpus.

But there is also the, there are these jurisdiction-stripping provisions in the immigration code that the government argues means you can't go to district court. So habeas doesn't apply to you, and you go to these increasingly faux courts called immigration courts that are just basically employees of Todd Blanche. And-

Benjamin Wittes: And have no authority to consider constitutional challenges. Even if they were fully independent, they, you can't raise the, "And this statute is unconstitutional as applied to me," in that context, right?

Roger Parloff: You sure, you certainly couldn't, and all the judges thought you, immigration judges thought you couldn't. In the course of arguing these cases, some of the DOJ lawyers are claiming, you know, sort of, are, are coming up with arguments, "Well, maybe you can. Maybe you can." Even though the judges themselves don't think they can.

But w- what will likely happen is you will lose your argument to the immigration judge, and then eventually you can appeal the immigration judge's ruling to an Article Three judge, a, a, a Court of Appeals judge. That's how it works. But but there will, like you say, there won't really be a record on the constitutional issue that you're raising. And it will also be after about nine months being in a detention center, if you haven't died already in the detention center, which, which does happen.

And, and so, the argument was the, either that these jurisdiction-stripping provisions don't apply or that you know, there's sort of a, they'll be, your claim will be worthless if you, the whole claim is that you are being detained in violation of your First Amendment rights, and if y- you can't vindicate that if you've already spent nine months in jail by the time you can raise it.

So, but, the Third Circuit has accepted the jurisdiction-stripping argument. That was in Madawi's case. And then in July, in a big surprise the Second Circuit also accepted it. It was a panel that had Debra Ann Livingston, who is a, a George W. Bush judge, a decent judge; William Nardini, who's a Trump appointee; and Stephen Menashi, who's a Trump appointee. So it was a pretty tough panel, and it was unanimous. And and so, t- this week maybe yesterday, I'm, I'm, I'm not sure, the Supreme, the Second Circuit, sua sponte, or on its own granted rehearing en banc. So, the, the Menashi the, the, the earlier ruling is vacated and-

Benjamin Wittes: And we might end up with a circuit split.

Roger Parloff: We, yes, and as far as if I were a, a betting man, I would not feel great about this going to the Supreme Court.

Benjamin Wittes: Yeah, I would not either, especially because this is not all that far from the cases that Congress was thinking about when it created this jurisdiction-stripping regime. And you know, the intent was to prevent district courts from letting a whole lot of people out of the immigration system and creating an alternative venue, and that's exactly what it's doing here.

Anna, Judge Vargas in the Southern District of New York has overturned the State Department's hold on processing immigration visas from 75 different countries. And what on earth is going on there?

Anna Bower: Yeah, so just briefly because we're running out of time and still have other things to talk about this is a State Department policy that suspended the issuance of immigration visas to people from 75 countries on the basis that there was a determination that people from those countries are likely to become a so-called public charge, so, people who are likely to rely on welfare benefits essentially.

And under y- you know, the Immigration and Nationality Act- and relevant law, it's actually supposed to be an individualized assessment by a consular officer. And so Judge Vargas looked at this on a partial summary judgment motion and said you know, "This is supposed to be an individualized assessment not you know, just a policy that you kind of make for 40% of the world's countries. And so, for that reason, you know, I'm gonna grant partial summary judgment."

And in the days that followed that grant of partial summary, summary judgment suspending that policy, the plaintiffs then went back to Judge Vargas and, and filed a motion to enforce because it seemed that the State Department was not taking steps to actually suspend that policy. It, it was canceling interviews still with people from those 75 countries. There was a third-party contractor who sent out a notice that effectively said, you know, "Nothing's changed." So there was reason that the parties had to believe that the Statement Department was still going forward. The State Department, meanwhile, said, "No, no, no. Like, we're, we're gonna change things, but we have to do extra training with people. So that's the reason why these interviews have been canceled." Judge Vargas held a hearing earlier this week that I was not able to go to, so I don't know exactly what happened at that hearing.

And unfortunately, the order that she issued after that hearing was quite cryptic in that she said that the motion to enforce was granted in part and denied in part and then ordered the parties to file a status report. But it is not clear from the text of the mo- or from the text of the order by Judge Vargas exactly to what extent or why this m- this motion was granted in part and denied in part and we have not yet seen the status report yet. So, stay tuned on what happens with whether the State Department will actually follow through on enforcing the judgment.

Benjamin Wittes: Finally, Roger, the Third Circuit has put itself on the scoreboard in the mandatory detention department. Not that this matters from a s- the Supreme Court's clearly gonna hear this, and it's not up to any of these circuits, but what did they do, and which side are they on, and what is the current score?

Roger Parloff: They this has to do with m- y- yeah, mandatory detention in immigration cases. This ch- change in the interpretation of this statute after I think 29 years. And to allow mandatory detention to be applied even to people that are arrested in the interior of the U.S. rather than close to the border, and even after being here for decades, and even if you have no criminal backgr- background.

And the Third Circuit voted 2-1 against the Trump policy. This makes it eight circuits that have rejected the Trump policy on statutory grounds against two that have accepted it. The First, Second, Third, Sixth, Seventh, Ninth, 10th, and 11th have voided it. The Fifth and Eighth have upheld it. And I think that we have of the 30 circuit judges that have ruled 20 have voted to strike it down. I think the only significant statistic is that four on- four of those judges have crossed party lines, and all of them went in the direction of rejecting the Trump policy, including three Trump appointees and a Reagan appointee

Benjamin Wittes: All right. So we have no questions on the board today but we do have two from last week, which we're gonna deal with before we wrap. David asks, on the Kennedy Center matter, who would have standing to force the trustees to actually maintain the facilities? Roger, my understanding is that there really isn't a standing issue in the Kennedy Center case because the plaintiff is herself a member of the board. Is that right?

Roger Parloff: Well, the Judge Cooper doesn't think there's a standing issue and and, and plaintiffs don't. Yes she's a, and I've forgotten that… Ex officio. She's an ex officio member. I think the government does take the position that ex officio members can't really vote and that they don't have standing, but I, I think that's weak and it's under it's sort of i- in the past. So, I think she's on firm ground.

Benjamin Wittes: All right. John asks, "Has anyone tried to use some version of the Corner-Post-Loper-Bright-Jarkesy trifecta to argue that immigration judges and courts are unconstitutional and cannot be used to deport immigrants? If so, how has this argument been received?" Eric, my understanding is that Congress kinda has plenary authority over the border, and so it's kind of allowed to set up whatever system it wants for this sort of adjudication. I don't remember how far back in my memory that r- the recesses of that lie, but it's not really a regulatory question, right? It's kind of a Congress gets to decide who gets to come here, right?

Eric Columbus: Yeah, that's right. And we, we did discuss last week one Loper Bright issue involving h- what deference to a Board of Immigration appeals in- interpretations of the statutes, which is no, no longer a thing since Chevron was struck down in Loper Bright. So that, that is a way for the courts to kind of be more liberal or if you will, or, or pro-immigrant than the Board of Immigration appeals has been in some cases.

Corner Post is, involves the statute of lim- when statute of limitations expire on challenging agency actions. I, I don't think it's really at play here. Jarkesy, I'm not sure if I'm pronouncing that correctly it held that the SEC needed to, the SEC was violating the Seventh Amendment when it de- denied a jury trial to folks who it alleged were engaging in, in securities fraud. And Jarkesy, however, distinguishes immigration by, by saying that immigration falls into a class of issues known as public rights and, and citing a opinion from 1909 that holds or at least notes opines that Congress can prohibit immigration and punish people for invi- who violated those prohibitions without having giving them a jury trial.

Benjamin Wittes: All right. We're gonna wrap.

[Outro]

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