Lawfare Daily: Trials of the Trump Administration, Oct. 24

[Intro]

Benjamin Wittes: It’s the Lawfare Podcast. I'm Benjamin Wittes, editor-in-chief of Lawfare with Lawfare Contributor James Pearce and Senior Editors Scott R. Anderson, Molly Roberts, Roger Parloff, and Eric Columbus.

In the October 24th episode of The Trials of the Trump Administration, we talked about the arraignment of Letitia James, legal challenges to the appointments of Lindsey Halligan and Alina Habba as U.S. attorneys, litigation over the federalization and deployment of National Guard troops, and so much more.

[Main episode]

It is Friday the 24th of October, 2025. It is 4:00 PM in Washington and you are watching Lawfare Live. I'm Benjamin Wittes, editor-in-chief of Lawfare, and I am here with Lawfare Senior Editors, Roger Parloff, Molly Roberts, Scott R. Anderson, and Eric Columbus, and former Lawfare Public Service Fellow James Pearce.

Now what is your title at the Washington Litigation Group?

James Pearce: I'm a senior counsel at the Washington Litigation Group.

Benjamin Wittes: And folks, we got a packed week to go over. So let's get right into it. We're going to do things not necessarily in the expected order today, because different panelists have to leave at different times.

And so, we're going to start with all things Scott Anderson, who has the first of our hard-outs. And Scott is handling domestic deployment matters today. So, Scott, bring us up to speed on goings on in the Ninth Circuit, where a panel reversed the injunction against the deployment in Portland, Oregon. And now we may have an en banc reconsideration of that.

So, what's going on in the Ninth Circuit?

Scott R. Anderson: A lot is going on in the Ninth Circuit, Ben, to say the very least. We've seen a lot of interwoven complicated parts moving both in the Ninth Circuit itself, at the panel level, at the en banc level––and the Ninth Circuit has a very weird en banc process to complicate things even further––and at the district court level. To kind of put things in position to where we were at the beginning of the week. We of course have two district court decisions coming out of Newsom v Trump. These are the California cases.

These are a couple of weeks old, both of which the district court judge there, Judge Breyer had said essentially, you are not––meaning the federal government is not––complying with 10 USC 12406, the mobilization authority they used to federalize the National Guard, and is violating the Posse Comitatus Act. Provided relief on both of those counts.

That relief was stayed by panels of the Ninth Circuit: the first one stayed pending appeal, the second one administratively stayed. I believe it's still subject to the administrative stay. I haven't actually seen a decision on a longer stay in that regard. We saw that matter, there was a––weeks ago at this point, after the first decision to stay the initial decision about 12406 from Judge Breyer, a judge on the Ninth Circuit after the panel opinion decided to state that opinion, said ‘I want there to be a reconsideration en banc.’ Did it sua sponte. They did a couple weeks of briefing.

And then that decision has been kind of hanging out there for a while. We're waiting to see are they going to grant rehearing en banc. They came back today earlier this week and said, no, in fact, we're not going to rehear that matter on banc, something that triggered a pseudo-dissent. It wasn't always framed as a dissent, but an effective dissent from I think eight active-duty judges, which are the only ones whose votes actually count in regards to the en banc determination, whether to go en banc, but then also a number of senior judges as well, including a fairly heated pseudo-dissent but from Judge Berzon, a fairly prominent judge on the court, Clinton appointee, basically arguing, ‘look, the panel applied the wrong standard and this shouldn't stand and should be reconsidered in a future matter on the merits, if not en banc.’ That's notable.

At the same time this week, we also saw a different panel of the Ninth Circuit, applying the same standard that Newsom v. Trump panel applied, reach a similar conclusion in the appeal of the first TRO issued by Judge Immergut in the district court for Oregon. This is the injunction that prevented the deployment, or, pardon me, the federalization of Oregon State National Guard troops. And one of two TROs Judge Immergut eventually issued. She later issued, a few days later, a second TRO prohibiting the deployment of any federalized National Guard troops from any state to Oregon.

That was after there was an effort by the Trump administration to deploy California National Guard to Oregon after the initial TRO barred them from nationalizing or federalizing Oregon National Guard themselves for whatever reason––and they did not go do a very good job explaining at a hearing that was just happening just a few hours ago––the Justice Department decided to only appeal the first of those orders. And a Ninth Circuit panel determined on the basis of the first of those orders, ‘hey, we looking at this, we're applying the standard that the panel came up with the Newsom v Trump,’ which is the same panel Judge Immergut said she was applying as well. Judge Immergut applied that highly, highly deferential standard, basically saying all the president needs to do is make a state a colorable set of facts and present it in good faith. And she said, I don't think the president even meets that incredibly low bar in this standard. On this deferential standard, he should still lose.

The Ninth Circuit panel applied that standard, but they essentially said, look, the way Judge Immergut is applying the standard, it's not as deferential as it should be. The president can consider any sort of facts, no matter how long ago, in weighing whether or not they think this bar should be set yet.

And they essentially said, even though we're both applying the same language as to what the standard means, the Ninth Circuit panel said, ‘Hey, we actually want this to be as, this should be even more deferential.’ And that therefore, Judge Immergut committed a clear error. That's the standard of review for sort of factual determination of these––

Benjamin Wittes: And pause a minute there.

Where did the Ninth Circuit come out with the idea––where does the idea come from that the standard of review is even more deferential than the Supreme Court has said?

Scott R. Anderson: So it's hard to say, because we actually don't have the Supreme Court saying anything of this––although we might soon, literally during this live, live recording at some point.

Benjamin Wittes: Yeah, we're going to get to the, we'll get to that, the Chicago case in a minute. We're still in California here.

Scott R. Anderson:, Yeah. So, you know, the argument about all these cases really hinges primarily on one 1827 Supreme Court case called Martin v. Mott, which said in the context of the Insurrection Act, a separate but related statute that does similar things but is different from the statute in place here, Section 12406 was installed by the 1903 Dick Act, not by the 1807 Insurrection Act. Which itself actually had predecessors that dated it a few years prior in the first and second Militias act.

That decision has language in it that says essentially the determination as to whether an––I can't remember exactly which problem it was, but whether the conditions are met for the Insurrection Act––which are similar, insurrection and invasion, inability to force the federal law––is exclusively vested in the president.

And the executive branch has cited that language at numerous points, including at every phase of this litigation and all the litigation about domestic deployments to say that means only the president gets to decide, the court has no rule in reviewing this. The Ninth Circuit panel, both in the Newsom case and now more recently in applying the precedent from that case in the Oregon case rejected that proposition.

But they did say, actually, this needs a highly––that does mean that we could defer heavily to the President in terms of how exactly we evaluate whether these prongs are met. And notably, actually, the Seventh Circuit reached more or less the same conclusion. They also said it was a heavily deferential standard, although they didn't quite get there the same way the Ninth Circuit did.

But what does that mean to be deferential? What does it mean to be too deferential? Judge Immergut applied what she thought was a highly deferential standard, even as she described it. Again, it just has to be a colorable case in good faith.

And she looked at it and she said, look, all the factual predicates, the basis for saying that the president is facing a rebellion or cannot enforce federal law with the regular forces––the two conditions of 12406 the executive branch has invoked––she said, you're mostly citing things that happened two or three months ago, and that the pattern is simply not there in more recent months to show why you need this sort of response.

The Ninth Circuit took issue with that. They said, actually, that's not an accurate reflection of the record as we read it. And there may be some basis of that. I, you know, you need to do a closer scrub of the record than I had the opportunity to do. But more foundationally, they said a district court judge doesn't get to second-guess that thing. You––really, the president can bring in any facts he wants. It's for him to determine how relevant they are.

But the real question then becomes, well then at what point do you shift from a highly deferential standard to absolute deference? What the Ninth Circuit expressly rejected, which is the president's contention that only the president gets to decide. That line, it's not a clear line and how exactly to evaluate it. But the one thing that's exceptional is normally the district court's judge's evaluation of the facts are given heavy, heavy weight, particularly when they're applying a standard as articulated.

Here, the panel determined there was a clear error. Notably though, immediately after that opinion issued, within hours, a judge did the same thing that happened the first Newsom decision. They said, we are motioning, one judge is motioning sua sponte to vote on whether to take this matter en banc with the overall court.

And Judge Sid Thomas on the Ninth Circuit, who is the en banc coordinator––I don't know whether he's new to this role or he just wasn't involved, because he actually, I don't believe did issue the similar order in the Newsom case––but in this case, within hours he said, I want briefing from both parties within 48 hours of whether we should take this en banc.

Really really exceptionally narrow timeframe. And the reason I believe he did this is because Judge Immergut at the district court had said, look, once the Ninth Circuit rules on the first TRO you have appealed, we are going to have a 72-hour briefing schedule to decide whether that second TRO will still stand on its own, or whether the logic of the first one having been stayed also means I need to stay the second one.

The parties have rocketed through that briefing, particularly the government. They beat the 72-hour time mark, timeline. And there was a hearing on that just a few hours ago in the district court. The district court judge said there, well now we're in this unique situation where we're facing a potential hearing en banc. We don't know if this panel’s stay of my decision is going to actually stand or not. If they take the matter en banc, that will vacate the panel opinion, in which case the, it wouldn't be stayed.

And she said, essentially, look, I don't know how I'm going to come out on this. I'm going to decide by Monday.

In the meantime, that gives a couple more days for the Ninth Circuit en banc to say––or I should say, the whole active-duty core of judges on the Ninth Circuit to decide whether they are going to actually take this matter en banc or not. And notably, I think it's possible they will, even though majority chose not to do so in the Newsom case. This is actually a really different case. Like, the facts just apply really differently and you could easily see judges coming on different sides of the different matters.

That––and so we don't know when the Ninth Circuit's going to decide on that could come any moment. And once that happens, that could render the TRO, leave it in place, or could provide Judge Immergut a basis where she says, no, I actually really do have to vacate it.

And to complicate this all the more, we also had a hearing Wednesday from the Ninth Circuit panel back in that first Newsom opinion, because the Ninth Circuit had faced a new request by the government of California to reconsider its stay of the district court's injunction, on the grounds that the facts have just changed on the ground, and that the original justification for what the government is doing doesn't still hold.

We don't know where the Ninth Circuit panel's going to come down on this, but notably they really pushed the government pretty hard on its assertion that no, we can't reevaluate timeline. Like, once you make this determination, it's locked in.

The government really stuck to its contention that this is an absolute deference situation. Only the president gets to decide. And for the Ninth Circuit panel that had already rejected this proposition, they say, ‘well of course we have to be able to evaluate changes in circumstances, because we have a role here, even if it’s a highly deferential one. So they'll see how they come out on that.

At the same time, at least one judge in some quotes I read, I wasn't able to hear the hearing myself, but in some readouts I've read, notably, at least one judge will push back on the state of California's contention that 12406 was not an exception to the Posse Comitatus Act. Said, essentially, ‘I think it kind of is.’

That would be a problem for the second bundle of arguments that the district court ruled in the state of California's basis on, that’s been subject to that administrative stay that comes in with the PCA and whether they violated that.

So, needless to say, there are like five different parts of this broader dispute happening in the Ninth Circuit and the district courts there, and we could see action on all of them in the days to come.

Benjamin Wittes: Alright. So there is going to be a short quiz on this in the second half of the show. So I'm just warning you all, I hope you were taking good notes. This will factor into the grade.

Scott, give us the bottom line. Are there troops in Portland right now?

Scott R. Anderson: There are not troops in Portland right now. They can federalize troops right now. The first TRO says you can federalize troops. I don't actually know whether they have or not, I should actually look in that. But they can't deploy them yet.

I mean, they can't actually have them doing any of the things that they want to do with them yet. That's what the second TRO that's still in place is still restricting. And that could change by Monday.

Benjamin Wittes: But in Los Angeles, they were there and now they're kind of mostly gone home, right?

Scott R. Anderson: Yeah. The active duty and California State National Guard troops, at one point there were several thousand deployed to Los Angeles over the summer. It's down to about 300 state National Guard troops that are still federalized. Of those, about 200 have actually been onward deployed, or at least set to be onward deployed, to Portland and to Chicago as part of operations there, or at least have been discussed in that regard.

That came up in the hearing that happened earlier this week on Wednesday. They said only like––it seems like only 85, was the number that I believe was discussed in the hearing––state National Guardsmen are actually still deployed in California and federalized doing that mission.

Now, which way does that cut? And then on the one hand, the cast state of California is arguing, circumstances have changed. You don't have the need for this extraordinary authority anymore. At the same time, the government can say, yeah, but we're barely using it. We're only using it for 85 guys. We're not using it for 4,000 anymore.

So I don't know which way that argument cuts, but it's true. The California mission is largely wound down at this point in California. We've heard rumblings about a potential deployment to San Francisco. The president appears to have backed off that threat of doing that. Something like that could still happen. There's no legal barrier to that currently in place. But––or, I should say, no judicial barrier––but for the moment, the California mission is largely wound up, except for that little residual force that's still federalized.

Benjamin Wittes: Last question, and this will be on the quiz. How many Ms and how many Ts are there in ‘Immergut?’

Scott R. Anderson: I believe it's two Ms and one T.

Benjamin Wittes: There you go.

Alright. Meanwhile. Halfway across the country, in the Seventh Circuit––well, it's not, I guess. It's in the Supreme Court.

Scott R. Anderson: Not there anymore.

Benjamin Wittes: Yeah. We've got the Chicago deployment, and we are clicking refresh on the Supreme Court website sort of by the minute, on the assumption that the justices will not miss an opportunity to drop a case in the middle of Lawfare Live.

What is going on with the Chicago deployment in the courts?

Scott R. Anderson: Well, as folks may remember, the posture from the conversation last week, which I think Loren was here for, the Seventh Circuit––similarly, we saw a challenge in the district court to the planned deployment in Chicago. The district court applied their interpretation of the appropriate standard for 12406 and those prongs. The government has invoked rebellion and inability to enforce the law with––the regular federal law with regular forces.

And they said, we don't think these are met, much like Judge Immergut did in regard to Oregon, and issued an injunction that was then appealed to the Seventh Circuit here.

But the Seventh Circuit panel reached the opposite conclusion the Ninth Circuit panel did in the Newsom case and in the Oregon litigation, and declined to stay the injunction issued by the district court. They said, ‘we are applying a deferential standard. Except in Martin v. Mott does––they didn't phrase it quite the same way, or, actually, I should say, they actually say Martin v. Mott doesn't apply, but they said nonetheless, in national security circumstances like this, we generally are highly deferential to the executive branch.

So they got to the, kind of same place by a different route. Regardless, they said, we're applying a quote unquote highly deferential standard to the president's determinations here.

And we don't think they're met. And we agree with the district court that they were largely not met. They did lift the injunction. They stayed––I should say, they stayed the district court's injunction on federalizing the troops. But like the Oregon situation, they said, ‘but you can't deploy them yet. We're not gonna do that, because that's where the harm comes in in terms of encountering different sorts of troops,’ right. So the Justice Department, then, instead of trying to take it en banc, which was an option they could have pursued, they went directly to the Supreme Court.

This is the first time they've brought this domestic military deployment disputes to the Supreme Court. Thus far, they've done them through the appellate courts, in part because they've had success in the Ninth Circuit. I believe it was on Friday that the Solicitor General filed petition seeking an immediate administrative stay of the injunctive relief issued by the district court––I believe it was a TRO––and then also seeking a more permanent stay.

Notably, the Supreme Court did not grant the request for immediate administrative stay. There is no administrative stay yet in this case, but they did say, ‘hey, we want briefing on this quite quickly.’ That matter is now fully briefed and it has been for several days. And the core issue is, again, under 12406 two or three––again, rebellion or inability to enforce the law through the regular forces––what is the standard review? The executive branch is still arguing the president gets to decide and the courts have no rule in this. And under that standard of review, is the district court's determinations clearly in error?

Have they either applied the wrong legal standard, or have they made sort of a wrong application of that standard to the facts? And that's what we're waiting for the Supreme Court to weigh in on. And obviously, that decision to have ramifications not just in the Seventh Circuit, but also for a lot of the disputes around 12406 that are happening in the Ninth Circuit.

One thing I would say, though, is that it doesn't exhaust the field. There's a whole other array of arguments that comes after 12406 about the Posse Comitatus Act, about the protective power, about a variety of other legal issues raised by these deployments that will still get litigated out even if the 12406 matter gets resolved.

And even if it does get resolved, it will still only be on the preliminary basis that we're getting so often at the Supreme Court these days. There will still be fuller litigation, lower courts, as to whether that is the right outcome, much like we’ve seen in the Newsom matter.

Benjamin Wittes: And again, what is the state of things on the ground in Chicago?

As in, is the government––the Ninth Circuit says, you know, the plaintiffs keep losing in Portland, and yet there are no troops in Portland. The government wins in LA and yet there are no troops in L.A. anymore. And what's the––but it's kind of the opposite in Chicago, right?

Scott R. Anderson: Well, my understanding, my recollection is that I believe there are troops that have, are actually actively deployed to parts of Chicago. And have been for a while actually, before there was any clear sense of mobilization, presumably doing some sort of other DOD mission within kind of the mission set before they formally declared this sort of operation.

And we've also gotten reports of things like Texas National Guard that have been federalized, although the Texas governor has been very vocal in his support of it. This is the quote unquote Meal Team Six photos that have gotten some criticism about the certain––the physical fitness of certain people in the Texas National Guard that was photographed, that looked like they're going undercover as Mike Ditka. Which is maybe a good idea in Chicago.

Regardless, the key point being there are folks on the ground there. They're still not allowed to do anything yet. That's what the injunctive release is still sort of barring. And I believe there's still a bar on federalizing the Illinois National Guard, yet.

I actually now am doubting––I need to go back and double check that. But no, that's the, that's what the Seventh Circuit allowed to happen. They can let the federalization, they just can't let the actual deployment, full mobilization happen, as I recall.

So, you know, it's in a holding pattern. They're staging, but they aren't actually able to execute and start moving on any of these things as of yet, by my understanding.

Benjamin Wittes: All right. Scott, as soon as you leave the screen, the Supreme Court is going to rule. In fact, I believe the Supreme Court is like literally watching, the clerk is watching in order to release the opinion to make sure that you are no longer here in a position to discuss it. Thank you for bringing us up to speed.

Alright. Let us turn to the politicization of the Justice Department in all its forms.

Molly Roberts, you were there today for the arraignment of Letitia James in Norfolk, Virginia. Give us a little overview of what seemed like a pretty standard kind of arraignment, with the caveat that the prosecutor seemed very unfamiliar with, you know, how the criminal process works.

Molly Roberts: I think that's a good summary. It was fairly standard. It was fairly low-key. There was no big drama. Most of the attendees in the courtroom appeared to be, like me, members of the media and media-adjacent interested in what was going on. The prosecutor is a man named Roger Keller, who is an assistant U.S. attorney from Missouri.

This is similar to what happened in the Comey case where Lindsey Halligan, the interim U.S. attorney for the Eastern District of Virginia wasn't able to find any career prosecutors in her district who wanted to try this case. So she brought in someone from the outside. It turns out that he is a civil litigation attorney, and this definitely showed here and there during the arraignment.

There was a little confusion at the beginning where he seemed to think that if James wanted to have the trial a little later than the speedy trial date, she had to waive her right to a speedy trial, and the judge basically said, yeah, no, she doesn't have to do that. I can just make an oral finding that she––that the ends of justice are best served by her having it a little later.

So that was sort of the first snag. Turned out there were actually snags even the day before, when he had to file his notice to appear and he didn't know how to save a PDF and it got a little messed up.

But today, the more substantive snags started with that. And then, most interestingly came later in the discussion of the motion that James' team filed yesterday related to––well, including excerpts from the article that our colleague, senior editor, Anna Bower, published in Lawfare, featuring texts that Lindsay Halligan sent to her that appeared to disclose grand jury information.

And there was a bit of back and forth over how the government wanted to respond to that motion and whether they were going to oppose any of the relief proposed there. And that relief included the need for the government to keep a log of any contacts that its attorneys or agents have with the media.

And the prosecutor strangely said, well, you know, the defendant is active on the internet too. And seems to be implying––well, he said that any restrictions imposed on the government related to the log should be imposed also on the defendant, so seem to be implying that Letitia James should be subject to the same restrictions as government attorneys or any attorneys, which to my understanding is not how it works.

And there were other bumps here and there that sort of betrayed a––

Benjamin Wittes: Yeah, but let's dive, let’s dwell on that a moment, because that's a kind of a profound error.

You know, the government is bound by any number of internal policies, rules of criminal procedure, has to respect certain––you know, all, there are all kinds of rules that restrict what a government attorney can say.

An individual defendant has a First Amendment right to protest their innocence. I, you know, and there's something of a weird category error of suggesting that there's a kind of even-steven quality, you know––well, you know, on the one hand, yeah. Lindsey Halligan is texting stuff to Anna Bower complaining about her tweets, about New York Times coverage of grand jury matters. And on the other hand, Letitia James is tweeting that she's not guilty.

Molly Roberts: Yeah.

Benjamin Wittes: That doesn't, like, yeah. One of those things is not like together.

Molly Roberts: Yeah, a slight false equivalence. Many people, many very fine people on both sides. But yeah, I, it was strange.

I thought it was unclear either whether he was referring to the question of keeping a log and somehow implying that Letitia James or her defense team had to keep a log of every public tweet she sends, or whether he was even saying that she shouldn't be allowed to make the tweets. It was very muddled.

And the judge said it's unclear, because it was unclear, and essentially, very delicately instructed Roger Keller to take a little time and think about how he actually wanted to oppose the motion or not.

Benjamin Wittes: Alright, so we're going to come back to that motion in a minute, but before we do, I want to deal with all things James Pearce, who also has a deadline by which he needs to turn into a pumpkin.

And James, there is this thread that runs from Alina Habba, who is not the U.S. attorney in New Jersey, to the Jim Comey case, to this case. And it is the question of the legality of appointments of interim U.S. attorneys. As I understand it, Abbe Lowell today, Letitia James's counsel made clear that he intended to file a motion as Comey has challenging Lindsey Halligan's appointment.

So, you have some involvement in the Halligan matter––in the Habba matter––which was argued at the Third Circuit this week by you, or at least in part. So bring us––let's start with Habba, as it is the furthest along. And she has been ruled to be unlawfully appointed and has appealed that, or the government has appealed that.

So what is the status of that and what happened at the argument?

James Pearce: Yeah. And there's some important differences between the Halligan and Habba cases. And before answering, I think a little bit of background is helpful just on three different statutes that come into play here, because in fact the challenge to Halligan is very different as a statutory challenge than the one to Habba. Though underlying them both, as you quite rightly say, Ben is a question of the propriety and lawfulness of the appointment in the first place.

So in the Habba case––well, back up and I'll give, I'll fill in some of the statutory details, right. So, presumptively, a U.S. attorney should be nominated by the president and confirmed by the Senate. That's 28 USC 541. That's kind of the default statute, the way to fill the U.S. attorney position.

Congress recognized that, you know, particularly in times of transition, it would be useful to have a statute that allows for some flexibility to fill a U.S. attorney position somewhat more quickly. And so there is 28 USC 546, which allows the Attorney General to appoint a person for 120 days.

That person cannot have been someone who the Senate refused to provide––for whom the Senate refused to provide its advice and consent. And then after that––

Benjamin Wittes: No Ed Martins.

James Pearce: No Ed Martins. After that 120 days, one of––so, either at that 120-day period, when it ends, the district court may appoint someone, or that person can be knocked out earlier if the Senate actually confirms someone that the president has confirmed.

So you've got the default statute, you've got the U.S. attorney-specific statute. We actually have two more to get through to kind of understand the whole terrain here. So there's also something that that folks are probably familiar with called the Federal Vacancies Reform Act.

That's not specific to U.S. attorneys. That's executive branch-wide. And that's something that has existed essentially since the founding, though in different iterations. And that is designed to ensure that executive branch agencies don't have a leader. And so it, it sets out another default rule, which is essentially that the first assistant takes over for a period of time, typically 210 days.

And then there are ways that could be potentially extended, if nominations are made and nominations are rejected. But that is a statute, another statutory basis that the Department of Justice has used interchangeably with the specific provision for U.S. attorneys.

So that's three of the four. And then we’ve got to get to the fourth one, because this comes up in Habba, which is essentially the argument that the government is relying upon along with the Federal Vacancies Reform Act, which is that the attorney general herself is vested with a series of powers that she can then delegate as she sees fit to various officers and employees.

And in the Habba case, the government has made two arguments. One is that Habba is validly serving under the Federal Vacancies Reform Act because the Attorney General made her into a first assistant. But then the government says if you don't buy that argument, Habba is also acting as a special attorney or a special assistant who is operating with the delegated power of the attorney general herself. And so doesn't need to go through, you know, Senate confirmation; doesn't need to go through 546, the U.S. attorney-specific provision; doesn't even need to use the Federal Vacancies Reform Act. You can use this special delegation theory.

So those are the four theories on the table. All of them have come into play in Habba. At this point in the litigation, it's really just down to the last two, the Federal Vacancies Reform Act and the delegation theory. As you noted, Ben, the district court here––this is Chief Judge Brand of the Middle District of Pennsylvania, sitting by designation over the New Jersey matter––he concluded that neither the Federal Vacancies Reform Act, nor the delegation theory supported Habba filling the U.S. attorney position.

One, because she––on the Federal Vacancies Reform Act, because she was not the first assistant at the time that the vacancy arose. As I mentioned a moment ago, the attorney general essentially put her into the first assistant position after the vacancy had arisen, and so the court concluded the Federal Vacancies Reform Act did not permit that.

And then the court also rejected the government's broader delegation theory. And the sort of principle reason the district court rejected that argument was that the Federal Vacancies Reform Act has what's known as an exclusivity provision, which says basically other than the Federal Vacancies Reform Act or some sort of position-specific statute you cannot, government, use general vesting and delegation statutes to kind of run an end around and do arguably exactly what the government has done here.

And in fact––

Benjamin Wittes: Just to be clear, the theory there is if there's a specialized statute to govern a particular category of vacancy, you’ve got to use the specialized statute, right?

You can't just say, okay, there's a vacancy, I can fill it under some general authority, when there's a specific statute that says, here's how you fill this vacancy.

Is that fair?

James Pearce: That’s exactly right. And just to put a slightly finer point on it, what it basically says is you, government, you can either use the Federal Vacancies Reform Act or a position-specific statute like the one that exists, 546, which we'll talk about in a moment with Halligan.

But what you cannot do is use the sort of, as you just said, generalized vesting in delegation statutes. And I think it's relevant here that the legislative history from 1998, which is when the most recent Vacancies Act, the Federal Vacancies Reform Act, passed, actually used these specific examples, the Justice Department's reliance on the very vesting and delegation statutes that the department is relying on, at least in part here.

And so the long and short of it is the district court said this delegation theory just runs right into that exclusivity provision in the Federal Vacancies Reform Act. So that takes us to the Third Circuit argument on Monday. And I think it's,

And was Emil Bove on the panel?

James Pearce: He is now on the court. He was not on the panel. It was Judge Restrepo, Smith, and Fisher, all who have been on the court for quite a long time. So ––

Benjamin Wittes: I am super eager, James, to get to the part where you have your first argument in front of Judge Bove.

James Pearce: Ah. Well, we'll see if, we'll see if I'm so eager for that. But maybe that day will come.

The panel was not sympathetic, generally, to the government's arguments. I think right from the, almost maybe a minute in––the government went first as the party that lost below and was appealing––about a minute in, Judge Smith picks up the brief and says, ‘you know, counsel, I've got a pretty basic question for you here. I'm looking at the brief, I see all the parties listed here, and I see Alina Habba and it says, you know, special assistant or acting U.S. attorney.

Like, what is she exactly?’ And what, you know––because the government, you know, on the one hand is making this federal Vacancies Reform Act and also making the delegated theory claim.

So not a good start.

Benjamin Wittes: And just to be clear, wait, is this the same Judge Brooks Smith who was opposed almost universally for this position by every left-of-center group because he was considered in the Bush administration to be so right-wing that it was a sort of abomination that he might be put on the Third Circuit.

James Pearce: I believe it is the very same Brooks Smith.

Benjamin Wittes: Yeah. I remember I may have written an editorial about Brooks Smith. Which I may have to repent.

Eric Columbus: Do you want 30 seconds of gossip on Brooks Smith?

Benjamin Wittes: Sure, please.

Eric Columbus: Well, it's actually gossip about his nomination process. Confirmation. I was working for Joe Biden at the time. Joe Biden, I believe, voted against him. I'm not positive. I believe he did.

At the time, I was told by a colleague that Senator Ted Kennedy was calling around trying to find some Democrat to vote for Brooks Smith. Because he felt that Brooks Smith was actually not that bad a guy, should be confirmed. But Ted Kennedy being Ted Kennedy, the liberal lion, could not be the one to do it.

Benjamin Wittes: Well, there you go, Brooks Smith. Many years later, redeeming Ted Kennedy's faith. Anyway, sorry I interrupted you, James. Go on about the argument.

James Pearce: Yeah, I mean, there's not a whole lot to say other than the top line, which is that the panel was quite––I don't want to say hostile, but it raised a lot of questions on all sort of parts of the government's theory.

Both––the government's claim, of course, was that a first assistant at any time during the vacancy was sufficient under the Federal Vacancies Reform Act. The court had questions along those lines. Another argument that the district court didn't reach below is whether Habba’s nomination to the same position acted as a bar. That was an argument that the defendants and I, you know, as an amicus advanced.

And the court had questions along those lines. And the court also had questions as to the delegation theory, though, I will say when Abbe Lowell argued, he took the view that in fact the attorney general could delegate all of the criminal powers in a single district, which, is a––you know, I think a significant part of what a U.S. attorney does. And so you might call it a concession, or at least that argument might give the court some pause about where you draw a line, if in the defendant's view, that would be a permissible delegation. I'm not sure it would be a permissible delegation myself.

But by and large, the panel was, as I said, not sympathetic. And when both Abbe Lowell was up and when I was there, not a lot of hard questions there. So we'll see what happens. But not good signs from the panel for the government.

I see. Roger wants to chime in as well.

Roger Parloff: Yeah. I just wanted to ask you a question. What is the status right now in New Jersey? Who's running the show? Is Alina Habba? What, yeah, what's the status?

James Pearce: The district court stayed the operation of its own decision. And so, I take that to mean that Habba is continuing, under the government's view, to be acting both as the acting U.S. attorney––and in fact, it came up in argument that if she's the acting US attorney, when would her, when would she expire? The answer to that is at some point in February. But then the government still is holding by its delegation theory. So that's, that, that is my understanding of the state of play there.

Benjamin Wittes: One last question on this. Who were you amicus for?

James Pearce: Yeah, so I and our firm represents the Association of Criminal Defense Lawyers of New Jersey. We represented them below and had a chance to both file a brief and argue in front of the district court and then have that same opportunity.

And our client comprises many, many criminal defense lawyers who represent many, many federal criminal defendants in the district of New Jersey.

Benjamin Wittes: Alright, so, the Third Circuit is one place where this collection of disqualification issues is arisen. Another, of course, is the Eastern District of Virginia, involving Lindsey Halligan.

It seems like it is a more difficult case for Lindsey Halligan than maybe even for Alina Habba. But the first person to raise this is not Letitia James, who hasn't raised it yet, just has said––Abbe Lowell, who also has this case has said he's going to, but Jim Comey has already raised it.

So how does the Lindsey Halligan case differ from the Alina Habba case, and how bad is the situation for her?

James Pearce: So one clarification first. Abbe Lowell has in fact raised it, filed a 22-page motion today. The arguments in that motion look fairly similar, though somewhat less detailed than the arguments in the Comey motion. And Molly––

Benjamin Wittes: You blink, you miss a motion to disqualify a US attorney.

James Pearce: Molly can correct me on this, but I believe that the parties, at least Abbe Lowell on behalf of Letitia James, agreed that the challenge to Halligan should be channeled to the same judge in South Carolina who's already been identified by Chief Judge Diaz of the Fourth Circuit to handle the disqualification challenge in the Comey case.

So they're both teed up. And, you know, the government of course hasn't responded yet, but both of the defendants have filed their opening challenges at this point.

So yeah, as you just said, the challenge to Halligan is different. It is on the statute that I mentioned as the U.S. attorney-specific provision. So 546, 28 USC 546, the one that provides the attorney general with a 120-day period and then presumptively moves to the district court with not mandatory, permissive language saying at that point, the district court may fill the vacancy.

So the kind of central claim that both Letitia James and James Comey are making is that 120-day period is a single 120 day period. Maybe it could be filled in their view by multiple interim U.S. attorneys. They draw a distinction between an interim U.S. attorney under 546, and the acting one under the Federal Vacancies Reform Act.

And once that 120-day period lapses in both of the defendants’ views, it is the district court and the district court alone who would be empowered to fill the position. And the arguments they make are textual, structural, historical sort of drawing on consequences, you know?

So, for example, if it were in fact the case the attorney general could make multiple why would you ever, why would the government ever need to get a Senate-confirmed U.S. attorney? Because on one view, you could just keep swapping in somebody after 119 days.

I believe, to be honest, that the government took the position in the Habba litigation below, when 546 did come into play, that the government could even have the same person continue to go in, you know, every 119 days. Which would, you know, render the rest of the statutes superfluous and clearly undercut and thwart the role that the Senate has to play.

Benjamin Wittes: See, that's actually how my appointment as editor-in-chief of Lawfare works. I'm actually the interim editor-in-chief, and every 119 days I get reappointed. And nobody's sued to have me disqualified.

James Pearce: Yeah. It's an excellent way to avoid you know, Senate review.

Benjamin Wittes: They’ve never confirmed me.

James Pearce: Yeah. So, you know, it's a more straightforward challenge, right? You don't have to kind of kick between these different statutory regimes to figure it out. But it's also one where there's really not been any meaningful case law developed.

It's not obviously correct, the defendant's position. And you can sort of think of hard hypos, you know, what happens when––you know, it's hard not to see these cases through the prism of the way that the current administration has used them in a manipulative and circumventory way.

But you can think of cases where someone has served for some period of time and then dies, right? And it would seem reasonable for the attorney general to be able to appoint someone to fill another 120-day period. There is––and both the Letitia James and Jim Comey motions point out, a fairly helpful memo from then-OLC––I don't remember if he's the Assistant Attorney General or the Deputy Assistant Attorney General––Sam Alito, who is writing in 1986 at a time when the, when 546 has been sort of recodified.

It's an older statute, but some changes were made. And so it's sort like an early analysis of it. And the Alito position does tend to support the defendant's position here, which basically says, look, what Congress was trying to do was give the attorney general one 120-day period.

If that lapses, it's the district court's job. If the district court doesn't act okay, you know, maybe there's a role then for the Attorney General to make a successive appointment. But we know, of course in the Halligan case, that wasn't the case. The district court did act. Siebert, Erik Siebert had been appointed under 546, had filled the whole 120-day period and then had been appointed by the district court.

So, yeah, it'll be interesting to see there. I think there's some teeth to this challenge. Not a necessarily dead ringer win but I, if I had to pick a side to come in on here it would be on the side of Comey and Letitia James. I think they have the better of the arguments.

Benjamin Wittes: All right. James, hang on for just one second. We are going to jump ahead to completely unrelated matter that has in common that it involves James Pearce because he's got to go in a moment.

So, Eric, we have a decision from the DC circuit refusing to stay a quashing of an FTC––a subpoena against Media Matters, which is represented in the case by none other than James Pearce.

Give us a little overview of the dispute at the DC circuit, and then I'm going to ask James to speak briefly on behalf of his client before he turns into a puff of smoke.

Eric Columbus: Sure. So this involves Media Matters, which I think some people may know and some people don't. It's a liberal group that describes its mission as monitoring, analyzing, and correcting conservative misinformation.

And in May, the FTC sent a civil investigative demand, which is kind of like a subpoena, to Media Matters, and asked for a ton of information from them regarding their work, including questions regarding litigation between it and the X Corporation, formally known as Twitter.

Media Matters sued in district court in DC to quash the demand and saying it's violated the First Amendment, because it was issued in retaliation for their past reporting, including specifically an article that got a lot of play reporting that corporate advertisements on X had appeared next to antisemitic posts and other hateful posts.

And they also had written about Elon Musk––of course, the owner of X–– endorsing an anti-Semitic conspiracy theory. And so in, in August, Judge Sooknanan, Biden appointee, granted a preliminary injunction for Media Matters. The FTC sought a stay pending appeal. And the DC circuit panel two-to-one denied a stay pending appeal.

The two consisted of Judge Millett and Judge Wilkins, both Obama appointees. The one was Judge Walker, a Trump appointee. And there's a long backstory here, which forms the basis of Media Matters’s case. Basically in October, 2023, Media Matters went after Musk in the ways that I had mentioned by talking about ads on X and by talking about Musk's endorsement of antisemitism.

And in response, Musk went ballistic. He threatened a, quote, thermonuclear lawsuit against Media Matters. Various right-wing leading lights weighed in including Steven Miller, who accused Media Matters of fraud and said, you know, there two dozen-plus Republican attorneys general who can get involved. And then magically, within days, the attorneys general of Missouri and Texas announced investigations and issued demands on Media Matters. And X sued media matters.

Media matters countersued against Missouri and Texas, and successfully, eventually prevailing on the grounds that this was First Amendment retaliation against them. So the FTC––so the district, the court, the majority of the court of appeals upheld the preliminary injunction in an unusually long opinion for a stay motion, for a motion for a stay pending appeal.

And they said, look, basically, we know what this is about. This is, they sent this very broad subpoena seeking all types of information about reporting. They asked for information about documents involved in litigation with X.

The FTC chair, Andrew Ferguson, had a leaked memo campaigning for his job, said he would stand up to the left and investigate efforts to boycott, you know, to have advertisers boycott X. Three people who had criticized Media Matters reporting were hired by the FTC under Ferguson. Mike Davis, who is a leading––lunatic, might be too strong a word, but someone who's very much opposed––

Benjamin Wittes: He’s just a strident activist, conservative, former congressional staffer.

Eric Columbus: That's why you are the editor-in-chief of Lawfare, and I'm not. Well said.

Benjamin Wittes: Interim.

Eric Columbus: Of course. Every 119 days.

Yeah. He met with Andrew Ferguson a couple of times right before the demand was issued, and the court said, look, you know, we're ruling on a preliminary injunction. The full facts have not been developed. But on the current record, the preliminary injunction stands.

Judge Walker then issues a dissent that goes on, I believe, for like 25 pages. And he says, look, you know, this is ridiculous. These are––none of these people who were talking about were at the FTC when the actions that Media Matters is allegedly retaliated against for occurred. It was in 2023. These folks didn't get here until 2025. They were not involved in any of this. It can't be retaliatory.

And then it goes on to, at great length, list––kind of in response to the notion that Andrew Ferguson was kind of tipping his hand and saying that he would go after people like Media Matters––he notes that Media Matters was not mentioned at all on Ferguson's, if you will, campaign memo, where he was trying to campaign to be named FTC chair.

He talks about Lina Khan, who was Ferguson's predecessor as FTC Chair under Biden, who he notes at great length had in her prior positions named various tech companies and recommended that the FTC investigate them. And he has like 15 pages of Lina Khan, when she, I believe she was at Yale at the time, talking about how Facebook, Amazon, Uber, other tech companies should be investigated for various violations under the FTC’s jurisdiction.

And he says, well, if she can––he wasn't necessarily suggesting that she couldn't––how could it possibly be the case that Andrew Ferguson wasn't allowed to? So, so I don't know whether the court, whether the FTC will try to take this up to the Supreme Court, given that the administration's trying to be somewhat judicious about what it takes up and this is smaller beans than a lot of the stuff, the issues they've been covering.

But it'll be interesting to see how this case progresses. And this is just one of many areas in which the administration is allegedly retaliating against its ideological enemies. And the evidence here may be a little bit weaker than in some of the other cases, but it's still quite interesting.

Benjamin Wittes: Yeah. So James I have a couple questions for you about this.

The first is, what's wrong with Judge Walker's point that, you know, actually there's been a bit of a history recently at FTC of people kind of having campaigns of saying, I'm going to go after so-and-so. And if Ferguson has really done that here, it doesn't really separate him from his predecessor very much.

Albeit it's not, you know, Lina Khan's gripes against the big tech companies, our policy and behavioral gripes. Not that they pissed off, you know, Elon Musk with allegations of antisemitism. Does his point have any merit?

James Pearce: I mean, so yeah, the argument is turnabout is fair play, something like that. Or that, you know, in––or, you know, this happened before, but was never a problem.

It's hard to know exactly what he is driving at here. I will say this, the arguments that, that he advances and the amount of time he focuses and the opinion on Lina Khan are not reflected in any of the arguments that the FTC itself made. So these are things entirely introduced by Judge Walker.

And look I'm not going to weigh in on what Lina Khan did or didn't do, but I mean, if you're going to––if you take Judge Walker on what he's like, claims about Lina Kahn and her targeting are accurate, he's saying, well, there was targeting in the past and that was bad, but this targeting now, even if it was bad, it had like, there was similar targeting in the past, so that makes this targeting okay.

I mean, I don't quite follow the rationale if that, if that is it.

Benjamin Wittes: I mean, why isn't it a complete answer to Judge Walker to say if, you know, Facebook and Google had a problem, they, you know, have lawyers and they could do what Media Matters did here, which is sue, and maybe we would've taken exactly this same view.

James Pearce: Yeah, right. I mean, I think that's probably another indication of why you're the editor-in-chief of Lawfare, because I think that is a more succinct way of putting exactly the same point.

Benjamin Wittes: Alright. Second question, which relates to Media Matters as an institution. My impression is that this once extremely prominent organization has been really reduced by this campaign.

And it has mostly kept relatively quiet about it. But I, my impression is that Elon Musk's financing of essentially a war against them––even when it was not the U.S. federal government that was issuing subpoenas, it was just state AGs and, you know, and private actors––that it's really taken a toll on the organization.

And so, I'm curious for your sense of what the––that this is not Facebook or Meta, you know, that is in a really in a position to bare its fangs at the FTC. This is actually, it's a nonprofit organization. It's a––and that this is really a case in which there has been, you know, an effort to silence a voice. And it has been, to some degree anyway, fairly successful.

James Pearce: That's unfortunately accurate. I mean, not only Elon Musk, but as Eric rightly summarized the state AGs from Texas and Missouri, then the FTC.

It's been really a campaign at different levels that has put a huge amount of pressure and then had the types of really deleterious consequences for an organization doing extremely important work that is not resourced in the way that those that, that Lina Khan may or may not have been focused on in, in her time in government.

So, I think we see the decision this week to not stay the injunction pending appeal as, you know, of course it's not the end of the road, but hugely important in enabling Media Matters to continue to do its important work.

Benjamin Wittes: Alright. James, thank you so much for joining us today. And we are going to let you go, and we're going to return to our regular order, which is to say, we're going to go back for a minute to the Letitia James arraignment.

Remember the Letitia James arraignment? It happened earlier today and Molly talked about it a bit. So Molly, let's talk about this motion a little bit on the, on the disclosures to Anna Bower.

I was actually a little bit surprised by it, because it's kind of gentle. Abbe Lowell did not ask for a finding that there––a contempt citation for, you know, though, he did allege that there was a Rule 6(e) violation. Normally when a defense lawyer is going to do that, he's going to ask for, you know, ask for contempt or ask for a show cause order, why somebody shouldn't be held in contempt.

And this motion, at least as I read it, sort of says, ‘hey, there's violations of DOJ policy. There's violations of ethical rules, there's violations of of rule 6(e). And so we are asking the court to issue an order saying, stop violating these things and don't do it anymore.’

And I'm curious what the judge made of that. I don’t, like––that’s not––that's a weird motion.

Molly Roberts: Yeah, it was gentle. And my understanding was that Abbe Lowell was not known for being gentle, so I was surprised.

What the judge made of it was––so, my understanding is that the judge also could, on his own, read that motion and say, I'm going to initiate a contempt proceeding.

And he didn't. And he said, I read this motion to say I don't need to make a finding of wrongdoing. And so is that right? And Abbe Lowell basically said, yes, that's right. And of course the government said, yeah, we also think you don't need to make a finding of wrongdoing. And then they proceeded to the question of whether the government was going to oppose it and on what grounds.

You know, the only thing that I can really think is that there are these other motions in play, including, Abbe Lowell sort of teased one possible motion that he might make where he says you haven't actually properly alleged the crimes with which you are purporting to charge her. Basically, the behavior you're describing that she's engaged in isn't behavior that you can use to charge her for bank fraud and false statements to a financial institution.

And so, you know, the only thing I can think of is he has these other motions that are more on the substance of the case that he thinks should be sufficient––or, I mean, not that the improper appointment is on the substance of the case. But that one is, and if he is going to file to have the case dismissed on that, that's on the facts.

And it's possible that Tish James would rather the case be dismissed on the facts, so that she can say, you know, the judge found that I was innocent rather than say it was a technicality based on the silly thing that Lindsay Halligan did. But I don't know, maybe you agree––

Benjamin Wittes: Although normally you don’t––I mean, this may be part of it. You normally don't ask to dismiss because of violating––

Molly Roberts: You just them in contempt.

Benjamin Wittes: ––6(e). You normally ask for some sanction or the judge will, and so maybe from their point of view, it's like, well, you're not going to develop any new information here.

We may as well focus on our motions to dismiss because they'll do more work for the client.

Molly Roberts: Right. They'll do more work for the client. And you don't want this matter to overshadow that matter. So that's the only thing I can think of. But I did think it was odd, because he's very clear, in the motion, that these rules were violated.

And so then just to say, ‘and we don't want him to violate them anymore,’ seems…weak?

Benjamin Wittes: And do we know when the government is slated to respond to this motion?

Molly Roberts: I have that written down somewhere.

Roger Parloff: It’s October 28th..

Benjamin Wittes: October 28th. Roger, you, like me, have spent a lot of time over the years noodling around cases in which defense lawyers throw around allegations of 6(e) violations or other ethical infractions by prosecutors.

I can't think of another time where the defense basically asked the court to say, ‘tell them to stop.’ And I was wondering if you could think of an analog to that, or whether it's as odd as it seems to me.

Roger Parloff: You know, I thought––well, I don't, as for previous examples, I can't think of anything quite like this one. But I think, you know, she dances along the edge of propriety, is how I read the exchange. And that it's not, you know, gross.

And at times she says, ‘I can't say that 'cause I, because of 6(e).’ And you know, ‘I can't answer that.’ So I don't––I think that what Molly was saying is right. She's, they're not going to get more information. Everything, you know, is in that article that was said, because it was all text. And I think maybe they felt they're not going to get a contempt ruling out of this. It's too, too close to the line.

Benjamin Wittes: And they’re not going to get a dismissal out of it.

Roger Parloff: Yeah, of course not. Yeah. So, but I think it's atmospherics when it gets to the motion to dismiss based on unlawful appointment, and selective and vindictive and, yeah. And they might have an outrageous misconduct motion in the second round, which is what Comey's going to do.

And it is just, you do want to inform the judge, make sure they're informed about what's happening. I, so I––it sort of made sense to me.

Benjamin Wittes: Interesting. All right. One motion that is not gentle, Roger Parloff, is Jim Comey's motion to dismiss based on selective and vindictive prosecution. Which is quite a document.

And so I'm curious what you made of it, and I’m curious how you think the government responds to it, because I've been scratching my head thinking, what are the possible things you can say in response to this motion that would mitigate it from the point of view of a federal judge?

And I’ve got to say, I had a little trouble with it. So give me your thoughts.

Roger Parloff: Yeah, I agree. This is the mother of all motions to dismiss based on vindictive and selective prosecution. You know, normally when these are filed, there are three possible outcomes: denial, which is almost always the result; once in a thousand years you get a, some discovery will be granted. So you can, if they think there's a reasonable possibility of vindictiveness, that you can get discovery to see if that's really what's going on. And then it ends there. And theoretically, you can get dismissal without discovery.

Here, it's inconceivable that this will be denied outright. I don't really see the point of discovery. I think, you know, it's on its face.

I don't see how with a straight face you say what, you know, how do you––now, the reason I say that, so the motion is mainly on the vindictive side. And that's, so that's based on First and Fifth Amendment, mainly. The selective prosecution has equal protection elements to it. And it's for retaliation for protected expression––which here is criticizing Trump––and also for personal animus. Frankly, I didn't realize personal animus was also grounds, but it is, there's good law on that.

And here, I guess, as you've probably seen, they submitted a 60-page exhibit with links to his––so it's not 60 pages of tweets, it's 60 pages of links to all of his attacks. I mean, it would take, you know, probably a thousand pages to––

Benjamin Wittes: Trump has spent a lot of time attacking Jim Comey. It's a hobby of his.

Roger Parloff: And so then you can use both direct evidence and you can use circumstantial evidence. So, you know, the direct evidence is the smoking gun Truth Social post, September 20th at 6:44 PM. Pam, dot dot dot, we can't delay any longer, dot dot dot, it's killing our reputation and credibility. You know, and saying things like I've been indicted five times and impeached twice, we gotta do something in retaliation.

You know, it's––so, that one is hard to get around. And then you've got a ton of indirect and circumstantial––and even that word is too weak. I mean, during his first term, he talked about siccing the IRS on Comey. Then he fired his daughter for no discernible reason. And then––

Benjamin Wittes: But her name was Comey. That's a pretty discernible reason.

Roger Parloff: Yeah. And then, you know, so the statute of limitations is running out. We've had three investigations of him that resulted in no charges.

There was one by the IG in 2019 that ended in 2019. One by Durham. And then one by Siebert, you know, during Trump II. And Erik Siebert said nothing there.

And so they forced Siebert out and they called in, I mean, you all know the story, Lindsey Halligan, the––with no experience. And five days later she gets this sort of tortured indictment that's sort of unintelligible, that misstates the transcript it purports to rely on.

And, you know how you can call, you know, and––and she's the only one who signed it, which is important. And no one else in the office will touch it. I just don't see––I don't see it. You know, I don't see the defense. I don't see, if you say––is the government really going to say this isn't vindictive? What?

Benjamin Wittes: Right, this is just, the case was brought solely on the merits of the threat to the republic of Jim Comey's lies to Congress.

Roger Parloff: Yeah.

Benjamin Wittes: Alright. So we've talked a lot about potential disqualification of Alina Habba and Lindsey Halligan, but the government has a lawyer they want to disqualify as well, and that is Jim Comey's counsel, Pat Fitzgerald.

What is the argument there, and what is the––and have they moved to disqualify him? And on what grounds?

Roger Parloff: No, they haven't. This was this is sort of a flap that Judge Nachmanoff was not––well, I mean, he's taking it seriously, but he's not, I don't think he's taking the part seriously about that this is likely to end up disqualifying Patrick Fitzgerald.

But you know, this is the thing about––the government asked for a filter protocol to be established on an expedited basis, is it needs to go very very quickly to examine documents that are now, what do you say, quarantined. That were taken from a search of an attorney in a different district more than five years ago, in an investigation that closed without criminal charges being brought, relating to offenses that aren't charged here.

And Nachmanoff––and they suggested, Halligan suggested, or he accused Fitzgerald of quote, “improperly disclosing classified information,” unquote. And, but that apparently was a garbled or a dishon––I mean a, I think a misrepresentation of what is already public in the Inspector General report.

He disclosed something, it wasn't classified. And then later the Trump the administration went back and classified it after the fact. And so one of those documents that, that's not disclosing classified documents. Anyway, his basic reaction to this is this, you should have done this years ago.

The government should have done this years ago. You've known Comey's––I mean, Fitzgerald's been in the case since at least September. There's no rush. Let's go carefully. I'll give 14 days for the government to, for Comey to respond. And we'll see what you're talking about and whether there's anything here.

So he has until October 27th to respond.

Benjamin Wittes: Alright, so meanwhile we have small updates in both the Bolton and the Adam Schiff cases. Or in Adam Schiff’s case, the non-case of Adam Schiff. What's going on in those?

Roger Parloff: Yeah I just wanted, just for people to know, the Abbe Lowell––I mean the Bolton case is moving on a more slow, slower schedule than these Virginia cases. That one's in Maryland and in Greenbelt. And so the first hearing will be, the first status conference will be November 21^st.

And that will probably also be the first CIPA hearing, the Classified Information Procedures Act hearing. And that will only be scheduling itself. So that's moving slowly.

Benjamin Wittes: And do you take that to be, because the Maryland docket just is slower than the Virginia docket? You know, Virginia judges, Virginia federal judges take a lot of pride in moving their cases quickly. It's a part of the local culture.

It even has a name. Or do you think it is that this is actually a classified information-heavy case that's been brought by, pardon me, real federal prosecutors, who actually take their time to know what they're doing? Or do you think it is that the––I mean what, it seems to me it probably has elements of both of those. Yeah.

Roger Parloff: I think I mean obviously Bolton has speedy trial rights that he's not invoking. He, he's not in a rush. He's, you know, like all of them, he's not in custody or anything. I think so, I––beyond that, I, and I do think––and you're right about, it's not the Rocket Docket over there. But it, I think they're just going to, they seem to be just taking it––

I think, it sounds like both Comey and James feel that, I mean, especially Comey, this was such a rush job before the statute of limitations, that time is on their side. That they got a bumbler, you know, that their, the prosecutor doesn't know what she's doing. She wasn't involved in the investigation.

But––and then you have these out-of-town attorneys coming in, parachuting in. They're not prepared. So I think they want to go quickly, and they have the right to. But, and that's not the case in Maryland.

Benjamin Wittes: Alright. There's another selective and vindictive prosecution motion.

And it isn't brought by Abbe Lowell, who called the fact that he was going to file one the worst-kept secret in Washington. And it isn't brought by Jim Comey with 60 pages of links to Trump's attacks on him.

It's brought by Kilmar Abrego Garcia, who has a less good case for it than probably these other two. And that makes it only the third-best such motion that has been filed in the United States in the last, I don't know, ever. Roger, what's coming up in that, and are we going to see Todd Blanche get called as a witness?

Roger Parloff: Well, to answer that, I should first mention something that happened today in the civil case, which is that––the case trying to, his civil case in Maryland, trying to––

Benjamin Wittes: And recall, folks, that his civil case is in Maryland before Judge Xinis, and his criminal case is in Nashville, Tennessee.

Roger Parloff: That's right. And so today––and we've been waiting, it's a habeas case and we've been waiting to see if Judge Xinis would release Abrego because they weren't doing a good, they weren't making progress on their attempts, alleged attempts to send him to Uganda or to Eswatini, or Ghana was also mentioned.

Well, today they mentioned Liberia. And they said we're sending you to Liberia. They've agreed to accept you. It's not on your list of feared countries. And in their motion they said the capital is Monrovia, and that's named after a U.S. president. And they speak English there.

And so anyway––but they say they planned, they expect to effectuate removal as soon as October 31st. So––

Benjamin Wittes: Which would put a damper on the criminal trial.

Roger Parloff: Yeah. So that’s why I just want to put that placeholder in there, because that would moot out all of this stuff. And it's not inconceivable it could happen. I think Judge Xinis wants to see more due process than that. But there are, it's possible that that could happen.

Getting back to this motion. So, this is supposed to go to a hearing November 4th and 5th. The basis is, the crux of it is, you know, the criminal case arises from the November 2022 traffic stop. And he was––after that stop, he was released without even a ticket. And then 900 days passed and nothing was done.

And then he was picked up and sent to CECOT. And so on April 1st, after he was sent to CECOT, that case was formally closed. That investigation––nothing was going on with it, but it was closed.

Then the Supreme Court said, bring him––well, the Supreme Court, April 10th, says you need to facilitate his return, in essence. And then on April 17th, it's reopened, and––the criminal investigation of that 2022 stop. That's April 17th of this year.

And then, so May 21st is the indictment. 6th, June 6th that he comes back. And then Blanche gives an interview to Fox, and he says, you know, in essence they told us, you know, they claimed that we did something wrong. You know, a judge in Maryland said we did something––we were taking criminals and hardened criminals and getting them out of the country. And this judge in Maryland said we did something wrong.

So we decided, okay, you don't think he's a criminal? Well, we're going to take another look at him. We're going to take another look at him, see whether he is a criminal.

And, you know, that sounds like revenge for having brought the suit and having won it. And having had courts say, yeah, you were wrongly sent out of the country.

The other way to spin that is, well, once they figured that he might be coming back to the country, they had to protect the public because they really did think he was MS-13 and dangerous and he committed crime. That will be their argument.

So, the defense has subpoenaed Blanche, Associate Deputy Attorney General Aakash Singh, Counselor to Blanche James McHenry, and two HSI agents. Homeland Security Investigations.

They have also subpoenaed Ben Schrader, who is the chief of the criminal division––who was. And he quit in Tennessee, or in Middle District of Tennessee, and he quit when the, when Abrego was indicted.

So, McGuire, the U.S. attorney, he wants to say, well, look, I'm the decision maker. You can't––the case was presented to me April 27th. I looked at it. I've done human smuggling cases before. This was similar. I decided to pursue it. Nobody made me, and that's what you get. I'll, I'm willing to testify. Anything that happened before then is irrelevant.

The judges already said he's not, like, he's not buying that, exactly. He does think the events that happened are relevant. There's a presumptive vindictiveness based on at least Blanche's statement to Fox.

So, but it'll be interesting to see how much discovery he allows. McGuire has also said he has no objection to subpoenaing Schrader, but he is trying to not produce two memos and multiple emails. Exchanges that he had with Schrader about why Schrader did not want to bring this case. And so those are interesting things to be determined if this goes forward.

Benjamin Wittes: Alright. That is, I think, all we have on the agenda today. And––oh, sorry. There's one more item on the agenda, which is that there was an oral argument also before Judge Bove’s court, although I don't think before Judge Bove, in the Mahmoud Khalil case. Roger, how'd it go?

Roger Parloff: Yeah. This is a really tortured case and there's a lot of moving parts.

There are two orders, at least two orders that are being reviewed. And one is more––so, I'm a little at sea, as you can tell. One issue will be, you know, should he––is he, is it correct that he's being, that his habeas is in the District of New Jersey rather than in Western District of Louisiana? He's going to win that one.

The harder ones are jurisdiction-stripping. Because there's a very bad set of facts here that I, that, if this gets to the Supreme Court, will be bad news, which is that there are parallel tracks going on. There's an immigration proceeding going on in Western District and the judge here is deciding some of the same things.

And the judge in––the immigration judge ignored one of his rulings. The immigration judge in Louisiana. And so he instructed the government to tell the immigration judge in western––in Louisiana to sort of reconsider her ruling in light of his previous injunction. And he was sort of ordering the IJ to change her ruling, which looks like appellate jurisdiction, which can't be.

You know, a federal district judge can't be an appellate judge for an IJ in Western District of Louisiana. So it's a very tortured situation that isn't going to be great in the long run. I think I'll just leave it there, because it's too in the weeds.

Benjamin Wittes: Alright. We have only one question in the queue, probably as a result of our technical problems today. Thank you, Zoom. I'm going to direct this one to Eric, unless Roger or Molly has thoughts on it. Pete from Norway asks, what is the situation with regards to ICE arrests and new deportation cases? Is the government awaiting ongoing cases being decided before proceeding heavy-handedly again?

Eric, my impression is that the government's ICE activity proceeds apace and with a fair degree of vigor, notwithstanding inflatable dinosaurs and frogs and other protestors. Do you have a sense that there's been much of a pause?

Eric Columbus: I believe that's right. In general, I'm not sure whether Pete may be in, in the context of this, the discussion of––that Roger's been talking about regarding Khalil. If Pete is referring to the ICE focus on activists and what they would say is retaliatory prosecutions––not prosecutions, retaliatory deportation proceedings based upon their pro-Palestinian advocacy.

I have not seen reports of new arrests beyond the ones that were, that have been the subject of litigation for the past, I don't know, five, six months or so. Which may suggest that on that front, either they've exhausted the ones that they were pursuing or that they are tactically waiting to see what, how courts resolve the ones like the maybe half-dozen that are in litigation now.

Roger Parloff: I did happen to see on Bluesky and also on Twitter. The State Department was saying that we hear––on their own tweets, the official State Department site was saying, we hear Bluesky is a great place to search for visa revocations. Or, I don't know if I'm saying it properly, but I'm, we are inspecting––we are inspecting your, what you write. We're––and we're trying to chill your free speech here.

Eric Columbus: Yeah. And that reminds me that they have recently revoked visas, or they have said they've recently revoked visas for people who apparently were exulting in––

Roger Parloff: Oh, yes. The, Charlie Kirk.

Eric Columbus: After the death of Charlie Kirk.

Yeah. It's not clear to me how many of those folks were, are in this country, as opposed to just holding a visa but are not currently being in the U.S. And the First Amendment issues are much attenuated, basically to nothingness, if you are outside the country and you have your visa revoked. If you're outside the country and you are not someone who's––if you're not using the visa, if you will.

Benjamin Wittes: So, all right, we are going to leave it there, folks. Again, apologies to members of the Greek chorus, who were irrationally excluded by Zoom in a fashion that surely raises due process considerations, also raising due process considerations.

Not to mention issues of impersonation. Every single member of the Lawfare community who entered this Zoom as a panelist was misnamed and given the name of a different Lawfare person. And as if to compound this, Molly showed up from Mike Feinberg's house with his background and the name Eric Columbus.

So, this is like the three personas of Molly Roberts. Folks, we're going to do this again next week. Maybe Zoom will have gotten its act together by then. We suspect the full litigation picture will still be wild and woolly, and we will be there to talk it all over with you.

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