Lawfare Daily: The Trials of the Trump Administration, April 11

Summary

The Lawfare Podcast Summary: "Lawfare Daily: The Trials of the Trump Administration, April 11"

Release Date: April 14, 2025
Host/Author: The Lawfare Institute
Episode Title: Lawfare Daily: The Trials of the Trump Administration, April 11

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I. Introduction

In this episode of The Lawfare Podcast, host Benjamin Wittes and a panel of experts delve into the ongoing legal battles facing the Trump administration. The discussion centers on recent Supreme Court decisions affecting President Trump's executive actions, particularly focusing on the Abrego Garcia case and the Alien Enemies Act litigation. The panel also examines the administration's aggressive stance against law firms and federal employees who have challenged its policies.

II. Supreme Court Decisions and Their Impact

A. Abrego Garcia Case

The Supreme Court's recent ruling in the Abrego Garcia case marks a significant moment in the litigation against the Trump administration's immigration policies.

• Background: Komar Abrego Garcia, a Salvadoran citizen with a withholding of removal order, was improperly deported to El Salvador by the administration despite a judge's finding that he would likely face persecution from gangs upon return.

• Supreme Court Ruling: The Court ruled that the lower district court was not in error in mandating the administration to take steps to return Garcia to the United States. Justice Sotomayor, joined by Justices Kagan and Jackson, concurring, suggested the Court could have employed stronger language.

  “The Supreme Court did, as far as we can tell, unanimously come down and say the administration does need to work to get this person back.” — Anna Bauer [06:30]

• Implications: The ruling implies that while the Court expects the administration to facilitate Garcia's return, it stops short of ordering specific diplomatic actions. This sets a precedent for how courts may handle wrongful deportations in the future.

B. Alien Enemies Act Case (Trump v. JGG)

Another pivotal case involves individuals deported to El Salvador under the Alien Enemies Act, which has been heavily criticized for its broad and vague application.

• Supreme Court Decision: Similar to the Abrego Garcia ruling, the Supreme Court emphasized due process, though the decision presented a more complex landscape regarding its application to approximately 150 individuals currently detained under the Act.

  “These are signs that the courts, following the Supreme Court's lead, are going to put some real teeth into this analysis.” — Roger Parloff [38:57]

• Challenges: The administration faces significant hurdles in defending the legality of deporting individuals without substantial evidence of their affiliations or threats, leading to increased scrutiny of executive overreach.

III. Administration's Response and Compliance Issues

Following the Supreme Court's decision in the Abrego Garcia case, Judge Zenith (pronunciation uncertain) issued an amended order requiring the government to "facilitate" Garcia's return rather than "effectuate" it. This nuanced language provided the administration with some flexibility but did not absolve them from taking action.

• Government's Compliance: The administration's delayed and vague responses to the court's orders have raised concerns about their commitment to compliance.

  “They gave her nothing, basically. And then the hearing rolls around at 1 pm and it is quite a wild ride of a hearing.” — Quinta Jurecik [15:49]

• Court's Frustration: Judge Zenith expressed frustration with the administration's lack of cooperation, highlighting a potential erosion of trust between the judiciary and the executive branch.

IV. Impact on Law Firms

A. Executive Orders Targeting Law Firms

The Trump administration has issued executive orders targeting prominent law firms, compelling them to undertake pro bono work aligned with the administration's agenda. This move has been perceived as an attempt to weaponize the legal profession against dissenting voices.

• Key Orders: Law firms such as Jenner & Block, Latham & Watkins, Simpson Thacher, and others have been compelled to comply with these orders, leading to litigation and resistance from the affected firms.

  “This is an extraordinary ... the last sentence ... is so damning.” — James Pierce [58:13]

B. Responses and Litigation from Law Firms

Many law firms have resisted these executive orders by seeking preliminary injunctions and appealing decisions, arguing that the orders infringe upon their professional autonomy and free speech rights.

• Litigation Developments: Courts have been quick to grant temporary restraining orders (TROs) to law firms challenging the executive orders. However, the administration's non-compliance and continued resistance undermine the effectiveness of these judicial remedies.

  “These are not lawyered actions. It is hard to imagine that the White House counsel ... can feel at all comfortable with actions that at the end of the day, he's going to be associated with.” — James Pierce [58:13]

V. Federal Employees and Independent Agencies

The administration's aggressive litigation strategy extends to federal employees who have successfully challenged policies or obtained injunctions against wrongful firings.

• Case Update: Employees from the National Labor Relations Board and the Merit Systems Protection Board have faced repeated firings despite court rulings in their favor. The Supreme Court's intervention, granting stays that reinstate these employees only temporarily, underscores the administration's unwillingness to comply with judicial decisions.

  “Harris and Wilcox were reinstated. The government this week nonetheless went to the Supreme Court ... requiring ... a response to the stay application from Harris and Wilcox by Tuesday of next week.” — Roger Parloff [84:50]

VI. Press and Access Cases

The administration has also targeted media organizations, limiting access and attempting to control the narrative around its actions.

• AP Case: A preliminary injunction was granted in a case where the Associated Press (AP) was denied access to certain government facilities based on its viewpoint. While the injunction mandates the resumption of AP's access, the administration has appealed the decision, reflecting ongoing tensions between the judiciary and the executive branch over media freedoms.

  “Judge Bates was careful, measured, but seemed very conscious of the aberrant nature of what was going on.” — Anna Bauer [63:51]

VII. Other Developments

Additional cases highlight the administration's broader strategy of using legal mechanisms to suppress opposition and enforce compliance.

• DeleteMe and Other Ads: The episode also includes a series of advertisements for various services, which were not covered in this summary as per the instructions to skip non-content sections.

VIII. Conclusions and Insights

The episode underscores a challenging period for the rule of law in the United States, with the Trump administration increasingly leveraging executive power to undermine judicial decisions and professional independence.

• Judicial Resilience: Despite the administration's resistance, courts remain committed to upholding due process and maintaining judicial oversight over executive actions.

  “There are signs that the courts ... are going to put some real teeth into this analysis.” — Roger Parloff [38:57]

• Administration's Risks: The administration's confrontational approach risks eroding credibility with the judiciary and impeding its ability to effectively manage governance issues.

  “It's very interesting to see kind of how long we're going to get that sort of resigned or sort of the tone from the court.” — Roger Parloff [15:28]

• Future Outlook: As litigation continues across multiple fronts—immigration, law firms, federal employees—the balance of power between the judiciary and the executive will be crucial in determining the future trajectory of U.S. governance and civil liberties.

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Notable Quotes:

• Anna Bauer [06:30]: “The Supreme Court did, as far as we can tell, unanimously come down and say the administration does need to work to get this person back.”

• Roger Parloff [15:28]: “It's very interesting to see kind of how long we're going to get that sort of resigned or sort of the tone from the court.”

• James Pierce [58:13]: “These are not lawyered actions. It is hard to imagine that the White House counsel ... can feel at all comfortable with actions that at the end of the day, he's going to be associated with.”

• Roger Parloff [38:57]: “These are signs that the courts ... are going to put some real teeth into this analysis.”

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This summary encapsulates the critical discussions and insights from the Lawfare Podcast episode, providing a comprehensive overview for listeners who have not tuned in.

Transcript

[Benjamin Wittes]

The following podcast contains advertising to access an ad free version of the Lawfare Podcast. Become a material supporter of [e-mail] lawfare that's patreon.com Lawfair also check out Lawfare's other podcast offerings, Rational Security, Chatter, Lawfare, no Bull and the Aftermath. Are you still quoting 30 year old movies? Have you said cool beans in the past 90 days? Do you still think Discover isn't widely accepted?

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[Anna Bauer]

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[Benjamin Wittes]

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[Anna Bauer]

But the long and the short of it is that the Supreme Court did unanimously come down and say the administration does need to work to get this person back.

[Benjamin Wittes]

It's the Lawfare Podcast. I'm Benjamin Wittes, lawfare's Editor in Chief, here with lawfare Senior editors Anna Bauer, Quinta Jurecik and Roger Parloff, Legal Fellow James Pierce and Contributing Editor Bob Bauer. In a live recording on April 11, we discuss the status of the civil litigation against President Trump's executive actions, including the Supreme Court's decision in Abrego Garcia's case, the Alien Enemies act case, the attacks on law firms, and so much more.

[James Pierce]

So I think there's something developing here that we need to take seriously. Not that the administration necessary will.

[Benjamin Wittes]

Welcome folks to this week's lawfare Live. I'm Benjamin Wittes, Editor in Chief of lawfare, and I'm here with Roger Parloff, Lawfare Senior Editor, fellow extraordinaire James Pierce, Senior Editor, Quinta Jurassic Senior Editor Anna Bauer and lawfare special guest Bob Bauer, Contributing Editor and you know, scholar, gentleman, street fighting lawyer, professor at NYU and man about town. Hello Bob.

[James Pierce]

Hello. I was sorry he who is man about town was struggling a little bit with the technology. So I apologize if I'm a few seconds behind.

[Benjamin Wittes]

You are right on time. And since by definition the show doesn't start until you show up, we can get started now. Guys, we have our first kind of unambiguous Supreme Court decision saying something almost like the Trump administration loses and although not quite. And not quite, not quite unambiguous and not quite the Trump administration loses. But let's run with it. So in Abrego Garcia last night or yesterday late afternoon, the Supreme Court mostly said that the district court was not wrong to require the administration to take steps to bring back this gentleman that they had. I don't think the word is too strong rendered to El Salvador. And today there is was a hearing in the district court on the subject. So Quinta, get us started with the Supreme Court. What did they do last night? What's the background and what is the to the extent there's a division among the justices on the subject, what is the nature of the division? And then we will have Anna, who's fresh out of court, give us an update on what happened in Greenbelt, Maryland.

[Anna Bauer]

Thanks, Ben. So I'm going to start with a little bit of background on the case because I think it's important to distinguish this case, the Abrego Garcia case, from the other case involving people who are stuck in this Salvadoran prison, the center for Terrorism Confinement, or SECOT in the Spanish acronym. So the Alien Enemies act case. The case title is Trump v. Jgg. That is the one that has gotten a lot of attention previously that involves these Venezuelan men who were identified by the Trump administration on the basis of it seems very thin evidence as members of this gang trende Aragua and removed under the Alien Enemies act to secot. And there is a question of the legality of the administration's use of the statute. What kind of legal avenues are available for challenging one's detention and removal under that statute? And then the question of what will happen to the, I believe about 150 or so people who are currently incarcerated at SECOT under those conditions. That is not this case. I break up.

[Benjamin Wittes]

We're going to come to that case next. Exactly second on the agenda.

[Anna Bauer]

I think it's important to distinguish them because I think they have been sort of merged a little bit in the public discourse. So this case, it does involve secot. It involves someone who was shipped there sort of in the dark of night by the administration with minimal legal process, but it does not involve the Alien Enemies Act. So this, as you say, is the case of Komar Abrego Garcia who is not Venezuelan. He is a Salvadorian citizen. He was in the United States. He had been in immigration court, had what's called under the ina, a final order of removal, but was granted a withholding of removal, which essentially means he could not be deported to El Salvador specifically because a judge found that he would likely be persecuted by gangs in El Salvador if he were to return. Importantly, there's one point in this case or other, there's a sort of very confusing instance in which he is identified by someone as maybe a member of the Salvadorian gang. Ms. 13 it doesn't seem like there's a huge amount of evidence behind that, but the administration does keep harping on it, so I will note it. At any rate, Mr. Abreco Garcia ended up being picked up by DHS. He was put in a detention center and ended up somehow being removed to El Salvador along with all of the people who were removed under the Alien Enemies act and placed in secot. Even though he had this withholding of removal to El Salvador. And the administration admitted in the lower court that his removal was the result of an error. So they were upfront, at least initially, saying they were wrong to have put him there. So then we get to this point where the lower court, the district court, court judge Paula. I'm not sure quite how to pronounce her name. Sinis, probably Zenith Zenis. Okay, let's go with that.

[Benjamin Wittes]

But I don't know.

[Anna Bauer]

It's Xinis. If you know how to pronounce it, please let me know. She ordered essentially that the government had to go and figure out how to bring this guy back. The administration very quickly appealed it. We got to the fourth Circuit. There was a unanimous panel, including very conservative judge Harvey Wilkinson, who said, you really do have to go get this guy back. Wilkinson had some language there, though, saying we need to be conscious of the fact that this could potentially intrude on the executive's power to conduct foreign affairs. So he had this suggestion that the judge should want the administration to facilitate the return of Abrego Garcia rather than demanding that it effectuate his return. And then we get to the Supreme Court. There had been a stay of this order demanding his immediate return. A few days went by. I think there was definitely some anxiety, certainly on my part, about what the court would do. And we ended up with this order that basically took the Wilkinson approach, I think it's fair to say, indicated that the administration does need to take steps toward getting this person back from El Salvador where he was improperly sent. But that the court needed to do so. And I'll just read from the ruling here with due regard for the deference owed to the executive branch in the conduct of foreign affairs. Now, it's an unsigned order. There are no dissents. I will leave to the scholars among us whether that means that it is technically unanimous or whether we can just say there are no dissents. But I do think that is notable. And then there is also a concurrence from Justice Sotomayor, joined by Justices Kagan and Jackson, essentially saying we think that we could be a little bit stronger in the wording here, essentially. But the long and the short of it is that the Supreme Court did, as far as we can tell, unanimously come down and say the administration does need to work to get this person back. And that importantly also, and I'll read this language again, the government should be prepared to share what it can concerning the steps it has taken regarding the return of Abrego Garcia and the prospect of further steps. So that is where we were as of last night. I think what I would say is this is essentially the Supreme Court sort of giving the administration some wiggle room. We can call it a presumption of regularity. If we like to say we're going to give you some flexibility here. We're not going to tell you you have to call up Nayib Bukele and tell him give us this guy back. But it is an indication that the court is not going to just let this person rotate in secot. Then that is going to lead us into the events of this morning in the early afternoon where I think we saw just how this presumption of regularity actually played out in practice.

[Benjamin Wittes]

Well, so let's so before we do, I think there's one more thing that I think is important to say about the Supreme Court decision. It's not just a question of how much wiggle room it gives the government. It's it's a recognition that, you know, you the, the courts actually can't exercise the tools of the foreign policy authority. And so to say you must retrieve him assumes that something's possible that actually requires diplomacy to get done. So does anybody. Bob James, before we Roger, before we turn to Anna for the the, I don't know, the post game show or the the district court game show, do you guys have thoughts on the Supreme Court handling of the matter?

[James Pierce]

I can say in a sentence, I know there are some who've argued that it's a partial win for the administration or a split decision. I don't see it that way. Now, I do think we have to see how it plays out. But when we get to it, I think we should pair this with another no dissents noted decision. And that was in the Venezuelan deportation case where there were soon due process principles that were emphasized again, apparently on a unanimous basis. So I think there's something developing here that we need to take seriously, not that the administration necessary will. We'll hear from Anna on that score, James.

[Benjamin Wittes]

Roger, do you have anything to add on this? No.

[Roger Parloff]

I mean, I guess. Well, yeah, one point, which I think Quinta alluded to and I think is worth emphasizing, which is I think the court is trying to balance the idea that the administrator, its role and the court's role is circumscribed and it is operating with the court is operating with an idea that it has a good faith administration. And I think for those of us following out in the world, there is lots and lots of evidence to the contrary. And I think Anna will probably talk about that in just a moment. But it's hard to imagine what else the court could be doing. And I think that's what its institutional role is. And I do think that's what is to be made of the nature of the short, unsigned opinion. It's saying, look, I think you have to read between the lines that the court, just like Judge Wilkinson, like all of the judges that have seen this, thinks this is just really atrocious behavior, but it can't come out and say that. It's got to say, and I think in fairness, needs to recognize, as I think your intervention suggested as well, Ben, that it's not the Court's role to go out and be doing what the administration ought to be doing. So I think it's very interesting to see kind of how long we're going to get that sort of resigned or sort of the tone from the court. I think that is Chief justice in his most institutionalist mode and that is his inclination throughout. At some point, we might hit something where that tone and that deference goes away, but we are still squarely in that ballpark.

[Benjamin Wittes]

All right, so fast forward now. About an hour after the Supreme Court decision comes out, Judge Zenis issues an order of her own. Anna, take it from here. What happened and take us right up through the hearing you went to today.

[Quinta Jurecik]

Yeah, so Judge Zenas entered this order following the Supreme Court's decision last night, and it directed the defendants with the government to, quote, take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible. Keep in mind that this is an amended order that changes the language from effectuate which the Supreme Court seemed to take issue with and said that it might overstep the court's jurisdiction to changing it now to facilitate the return of Garcia to the United States. And along with this amended order, Josh included a directive in which she required her file by 9:30am this morning, three different types of information. One is the current physical location and custodial status of Abrego Garcia. And she wanted this to be from someone with relevant personal knowledge within the administration. The second category of information, beyond his current custodial and physical status was what steps the government has taken up to now to facilitate his return to the United States. Keep in mind that at this point, at the point when the Supreme Court entered an administrative stay of her original order requiring the effectuation of his return, the order had been in effect for, like, three days. And I think it was the very day that he was due to be be returned to the United States in compliance with the order that the Supreme Court actually stayed that original order. So there was a significant period of time that you would suspect that the government, if it, you know, suspected that there might be. That they might have to comply, that they would have taken some type of step. So she wanted to know up to this point, what has the government done to facilitate the return. And then finally, in the third category, she wanted to know what potential steps might be taken in the future to facilitate Garcia's return to the United States from El Salvador. So she asked for those three categories of information by 9:30am this morning. Around, I want to say it was about an hour before that deadline, the government filed an extension, a request for an extension, saying that it wasn't practical. Practical for them to be able to provide that information. They complained that it was 30 minutes, minutes into the business day, and, you know, it's basically too, too short of a time period for them to be able to reveal that they wanted the judge, I believe it was by Tuesday, to extend the deadline. But the judge ended up coming back and saying, no, I'll give you until 11:30. So 11:30 rolls around and we're all sitting there doing what we do at Lawfare, which is refresh the docket. And there's no order or. Excuse me, there's no.

[Benjamin Wittes]

We do more than refresh the docket. We also chat on slack while refreshing the docket.

[Anna Bauer]

It's.

[Benjamin Wittes]

It's serious multitasking going on.

[Quinta Jurecik]

Yeah, we send pennies were paid to.

[Anna Bauer]

The federal Judiciary while we refreshed.

[Quinta Jurecik]

Yeah, we figure out who is on PACER and who's on court listener and who is, you know, the designated refresher of the docket. But so I'm sitting there refreshing the docket and there's nothing. And about 45 minutes after the deadline and we're all thinking, oh, maybe they filed under seal. Maybe there's some local rules in Maryland that we're not aware of. And sometimes, you know, motions to file under seal can be delayed getting onto the docket. But sure enough, no, it wasn't that the government tried to file under seal. They filed about 45 minutes after the 11:30am deadline. And in the filing that they submitted, they essentially reveal no information. And they say that they are not prepared to respond to the court's request for information. They're still evaluating the Supreme Court's two page order, essentially two pages, I believe, maybe it was four, but not a very long order. And they say they're still evaluating it. They, they claimed that they're, you know, this is delicate foreign policy matters. They, they say that Abrego Garcia is in the custody of a foreign sovereign. And so, you know, they're going to have to evaluate things before they can figure out what they're going to reveal, essentially. So they give her nothing, basically. And then the hearing rolls around at 1pm and it is quite a wild ride of a hearing. Then Drew Ensign, who previously was representing the government in the JGG case before Judge Boasberg, showed up on behalf of the government because as folks might remember from news reports over the weekend, two of the career attorneys who previously had been working on this case were put on administrative leave. So Drew Ensign apparently was assigned to work on the case going forward. He showed up on behalf of.

[Benjamin Wittes]

He's now going to represent the government in all cases because they've fired all the other lawyers.

[Quinta Jurecik]

Yeah, they've fired a lot of people where a lot of people have left. So Drew Ensign is there on behalf of the government and Judge Zenas starts the hearing explaining why we're there, says the Supreme Court ruled I amended my order. You've now got this new order that requires you to facilitate the release. I ordered this information and you've given me nothing in the written filing that you submitted. So I'm going to ask you these questions one by one and go down the list. So she proceeds to then go through the questions, the first being what is the current physical location and custodial status of Abrego Garcia? Drew Ensign cannot answer her questions on this point. And it was really remarkable in that. Keep in mind, the. The filing they submitted earlier that day said that he is in the custody of a foreign sovereign. So they admitted that they. Or at least implied that they know what his custodial situation is. Then when Drew Ensign is directly asked, where is he? By the judge, he says, I don't have that information. And then he says, you know, what I can say is the plaintiffs have represented that his last known whereabouts were in a prison in El Salvador, and the government, any information contradicts that. So a very lawyered statement in which he will not just come out and say, we believe that he is in El Salvador, which is where his last known location was. And again, they already said earlier that day, he's in the custody of a foreign sovereign. So the judge is very frustrated by this, says it's extremely troubling. You know, at one point, she even says to. To Ensign, you know, I'm troubled because you have. You're not giving me anything that your client has relayed to you or communicated to you about these factual. This information that I've requested. It doesn't really suggest that you have a full and effective relationship with the cl, and it means that there's no evidence in the record. So I want you to communicate to your client, basically, that if they want to combat the situation, then the best thing they can do is communicate information to you. So then we go on to the second question. Again, the Ensign says that he does not know what the government has done over the course of the last several days to facilitate the return of Garcia. He. It's kind of like a broken record at this point where he's again and again saying, you know, I don't know. I don't have that information. He does, in terms of any kind of substantive argument, make the argument to the judge that, in their view, the Supreme Court's ruling means that before the judge, there should be some kind of briefing about, you know, due regard to the executive, because that's one of the phrases that the Supreme Court used in which it said that the judge could amend her order with due regard to the executive branch. And then finally, last subject, potential steps the government might take to facilitate release. Again, Drew Ensign has absolutely no answers for the judge and says all the things about, you know, we need to evaluate. We need to evaluate exactly what this order means. And, you know, there's three branches that are involved in this and foreign policy. And all of those reasons he repeats, again, the judge is really not having. It is upset that Drew Ensign is suggesting that they put things off in terms of any kind of further information or further briefing until Tuesday of this coming week. She says, meanwhile, all the irreparable harm is going to continue. This guy's going to continue being held in a place that he was wrongly sent. And so she decides that she's going to require the government to give daily status updates on on exactly what it is that it's been doing to facilitate his return. And then once it finally is prepared to provide the information requested in her directive, then she's going to hold a hearing the next day. She also directed the plaintiffs, you know, to respond accordingly insofar as what relief or remedies if she should grant if the government does not comply.

[Benjamin Wittes]

All right. Thank you for that. Very thorough account. Super helpful. So I want to before we go on to jgg, so we're looking at like the next report is due tomorrow, right?

[Quinta Jurecik]

Yeah, that's my understanding. I last I checked before we we got on the live, I don't believe that her written order is out yet, but she mentioned at the end of the hearing something to the I hope you can tell me to answer these questions by tomorrow at 5. So I suspect that by tomorrow at 5 is the first daily report that will be due.

[Benjamin Wittes]

Let us move on to jgg, which is less obviously a victory for people deported to El Salvador. And in fact, there's been kind of a bit of attention in the debate in a bit of a debate about how to understand it. Some people see more in the fact that there are nine justices who say there has to be due process. Some people see more in the fact that they don't see, you know, nine justices agreeing on the modality of the review or that the, you know, it's going to be it's more obviously going to be available to people who haven't been deported yet than people who have already been deported. So, Bob, I'm interested. You you took a very sunny view of with which I agree, by the way, of the the decision last night in Abrego Garcia, do you take a similarly sunny view of JGG or is that one more complicated from your point of view?

[James Pierce]

I wouldn't characterize my view in either instance as entirely sunny because I don't know how the weather is going to play out over time. I don't know where all of this is going to end up. And of course, the court's pronouncements so far have been on the emergency docket. But to the extent that you can draw some conclusion about what's going on here, or let's put this way, a preliminary conclusion about what's going on here. I do tend to view the two orders here in which there were no noted dissents on fundamental due process issues as an encouraging sign. Bearing in mind we have nine justices widely divergent within their jurisprudential perspectives, even within the so called conservative members of the Court, widely divergent in their institutional sensibilities and their conservative perspectives. And yet I do think that this administration, for a number of reasons, and we can talk about the component parts, this administration is driving so hard on arguments that push against fundamental intuitions about our system of justice in the United States and constitutional safeguards for individual citizens that they are going, I think, to meet with real grief now. It does not mean that horrible injustices will not occur in the meantime. It does not mean that the sort of foot dragging non compliance that Anna so effectively described here won't be a continued problem that the courts will have to deal with. But I think there are some markers being laid down here. And what's really interesting is I don't know that the administration cares. I don't know how much it actually cares.

[Benjamin Wittes]

And that is most visible, by the way, I think in the, not in these cases, but in the attorney and the law firm cases, for reasons I will go into when we treat them there. But I agree that that's a big question. You know, it's does the administration care? And if not, how effective can the courts be in this iterative conversation that they're having with the executive over 10 different compliance issues? And this would be a good example of that. So, so tell me how, and I'm going to ask Quinta and James the same question. How do you read jgg when, when you look at jgg, if, if somebody said it, you know, I'm a, you know, you're standing in front of a group of smart college seniors and you have to explain jgg, what, what did the court require and why do we care?

[James Pierce]

You know, I think I probably said what I can say about it at this point, which is that, you know, fundamentally there was a ruling on habeas that was of course disappointing to some that the case has now been moved away from Judge Boasberg and heading south. Maybe literally as well as figuratively. Or figuratively as well as literally. But at the same time I did think that what they put forward in the way of an insistence on fundamental due process, while again, I think it's too early to see how all that would Play out.

[Benjamin Wittes]

Yeah.

[James Pierce]

I would describe it again if I'm talking to this audience that you described, I would describe it as a victory for the plaintiffs. Not 100% victory, but a meaningful victory for the plaintiffs. I don't know if I'm answering your question. I hope that I am.

[Benjamin Wittes]

No, fair enough, Brenda. I think you're more anxious about it than that.

[Anna Bauer]

Is that fair? Well, I have a major advantage here, which is that I wrote a quick piece for the Atlantic which I think that the readership of the Atlantic probably includes some bright high schoolers. But it's certainly less technical than a lot of our listeners here. And the argument that I made then I'll just read what I wrote to take advantage of the work that my past self did was that the decision is strangely antiseptic. It marks a major loss for Donald Trump and its refusal to allow him to snatch people away in the middle of the night. But it also exhibits a disturbing willingness to ignore the brute facts of Trump's actions and their human cost in favor of remaining within the more comfortable world of high minded detachment. And what I mean by that is that yes, as Bob says, absolutely, we had a commitment to some level of due process here. I think I was disturbed by the absence of attention given in the per curiam ruling to the way that forcing these people to go through habeas significantly restricts what kind of relief might be available to them, particularly in the fact that they will probably have to go through the 5th Circuit. There's been a really disturbing trend of ice sort of moving people around in a way that makes it more difficult for them to access council and file a habeas claim in the District of confinement. And then also just the fact that the per curium ruling didn't address the people who are stuck at secot. It was, if you read only the procureum, you would have had no idea that there were roughly 150 people under the Alien Enemies Act. More I think about 260 in total, but about 150 in the alien Enemies act who were in a Salvadorian prison with no process possibly for the rest of their life. And that I think worries me because I think it speaks to a lack of urgency on the part of the court to address these matters. I will say I feel a lot better about the JJJ ruling now that we have some indication in the Abrego Garcia ruling that there is, you know, a recognition that it is possible for a court to require some level of effort on the part of the executive to get somebody back. Obviously, as we've discussed, the circumstances are very different. I do think that that was encouraging. I was very worried that Abrego Garcia, the the ruling was really going to foreclose any kind of relief to the people at Secot. But I do just think that there is a posture in the court as a whole, or at least as expressed in the per curium, that is not treating this situation more broadly as the emergency that it is. And I think that that is reflected in a variety of ways. I worry in the in Brago Garcia, for example, that it sort of was seeking a delay of a confrontation between the administration and a judiciary without really recognizing that delay does not forestall it altogether.

[Benjamin Wittes]

James, what do you think is there do you have is the court's calculation here not much we can do for the 260 who've been shipped out already. So let's be bloodless about that and, you know, not rent our garments over it. But but make sure that there's process going forward or is or do you think there's something else going on here?

[Roger Parloff]

I tend to. So I read the decision initially with a with a good deal of pessimism and without ascribing to the court its view on those individuals who are already in Sukkot, I tend to think that the court concluded there was not much it could do. Maybe some on the court rent their garments over that, and some of them thought, gosh, this administration is really acting improperly, but that is what the voters elected them to do, and there's nothing we can do about it. The language from Abrego Garcia more recently, I think, tends to bear that out, which is the court is at least saying we expect the government to facilitate sort of the point I made a little earlier, act in good faith. Despite what I think are a lot of indications that we're not getting good faith from the government. I would say that, and I agree with Bob's view and Quinta's as well. And I think you said this too, Ben, which is I am heartened by language in JGG that there needs to be a review through the habeas mechanism. And I'm further heartened by the fact that judges, district court judges appear to have picked up and run with that in the Southern District of New York and in the Southern district of Texas. So I do think that those are signs that the courts, following the Supreme Court's lead, are going to put some real teeth into this analysis. It will be interesting to see how much those courts, and ultimately the Supreme Court will on the Alien Enemies act, get into the kind of analysis that Judge Henderson did in the Court of Appeals, which is, is Trende Aragua really the government of Venezuela? Was there really an invasion or a predatory incursion? I suspect the government's gonna come back and say, cause I think it said this already. Things like, like, yeah, that's, that's, those are determinations for the president and not subject to, to judicial review. It'll be interesting to see how, how the courts and ultimately the Supreme Court, because I think this is headed back to them on that type of question, handles that. So I hope there's teeth in that because I find those, I find the likelihood that the government could plausibly satisfy that to be very low. But we'll see again how much the Supreme Court, with the lower courts obviously acting first, requires the government to prove those things up.

[Benjamin Wittes]

All right, so this brings us to Roger. Roger, you've been following the descendant cases that have emerged from ggg. Jg, Sorry, so bring us up to speed. The Supreme Court spawns a bunch of, of habeas cases in different locations. Tell us about the spawning.

[F]

Yeah, yeah, the, well, it begins first, first with JGG itself. Like what happens to jgg. And the evening after the ruling, DOJ files. So apparently they do work after hours on certain cases at doj, even in the immigration department. They, they filed a petition to dismiss the case and to dissolve the order to show cause that was pending in front of Judge Boasberg. That's basically in order to show cause why that was about whether the government had defied his orders. The next day, I, he, Judge Boasberg issued an interesting order. He vacated the preliminary injunction, obviously. But then he said, plaintiff shall file by April 16, indicating if they still have a basis for proceeding on a preliminary injunction motion in this court and if so, proposing a briefing schedule. So I, I thought that was interesting. I, I, I would have thought there might be a joint, you know, submit a joint status report. There's nothing here about. Well, I thought it was interesting because obviously the court has just said this was filed in the wrong jurisdiction. D.C. shouldn't have it. This is a habeas case. It has to go to where the people were confined, which at that time was Texas. But he doesn't. And so he may think there's a way for him to continue. And one thing I, maybe I'm, maybe other people disagree. But the, the order of the Supreme Court does not explicitly dissolve the class certification specifically dissolves the tros. And of course the class includes the people that are now in El Salvador. So the question is, is there a way to. And some of those people who are now in El Salvador, they have submitted declarations through their attorneys or through on their behalf by family members. So I don't know if there's a way they can, can be turned into named plaintiffs and remain in D.C. because there is this, some case law which Quinta and, and Ben and or Natalie have talked about in their piece. Some Guantanamo prisoners were permitted to bring habeas in D.C. even though they were out outside of the country. So JGG isn't completely dead. The other piece of it is the, of course that whether there can be, whether he can go forward with the contempt proceeding. It's not literally a contempt proceeding yet, but it's going in that direction. And he didn't say anything about that either in his order, Judge Boasberg. Maybe because it was obvious to him that he can't. Maybe because it's obvious to him that he can't. So that case is not completely dead yet. Meanwhile, all five named plaintiffs have filed their own class actions in other places. Three of them were in the Southern District of Texas where they were confined. And so they've, these are little class action habeas. One includes the El Valley Detention center down there, which is a very important detention center where, where most of these people were. It's near Harlingen, where they took off from. Two of them are in Orange county, which is in Southern District of New York. So they have a little class action. But as I, I'm forgetting now, I think Quinta or, or James mentioned, you know, that part of the ruling that did decide to make this a habeas. That part of the JGG Supreme Court ruling that said, no, this has to be broad as habeas is. You know, I can't think of any policy reason that's, that's positive for doing that. You know, I could, you know, you could argue, oh, my hands are tied. The, the precedents say that. They didn't say that. You know, the precedents weren't so clear, but they really do hobble, providing meaningful relief and they sort of ensure that people, especially indigent people who speak other languages will fall through the cracks. The other case isn't really a spin off, but I think it's an interesting case I'd like to mention. It's DVD versus Department of Homeland Security. It's in the District of Massachusetts. It's actually, we, we, we, we've been unaware of it. It's just been under our radar until recently. It is a class action and a TRO. It's, it's for, and, and if you remember, in JGG, there was, there was a third plane. The 137 who are in El Salvador under the Alien Enemies act act, ostensibly are the first two planes. The third plane, which leaves after Judge Boasberg's written order. The, the irs, I mean, the irs, the ins, the government says, don't worry that those weren't ae, those weren't Alien Enemy act people. That was all people with final orders under Title 8, Conventional Immigration Procedures. And all of the immigration lawyers were saying, well, wait a minute, a removal order has to designate the country. And very, very few Venezuelans are going to have be designated to go to El Salvador. How can this be? This is very implausible. And it's developing in this that a policy change has occurred sort of quietly and it seems to have occurred on February 18th. And the practice was you have a lot of people that, like Abrego Garcia, who is removable, but not to his own country. And what they do is they usually release them on parole if they aren't dangerous and they have regular check ins and, and then if somebody's going to try to move them to some third country, they get notice, they get a warrant, they have a chance to say, oh, that third country is dangerous for me, too. Here's why. On February 18th, apparently they eliminated that policy and they say, no, we're not going to do that anymore. And so this class action is a bunch of people, a Cuban, a Honduran, a Guatemalan, in Ecuadorian, who are in that situation. And one of them is confined, but the others aren't, which is why it's not a habeas. And it's a very interesting case and we're learning more about through it, about what the Trump administration has done here.

[Benjamin Wittes]

I want to start by reading the opening two paragraphs of Pam Bondi's and Russell Vogt's memo. Did you know Fast Growing Trees is the biggest online nursery in the United States with thousands of different plants and more than 2 million happy customers. They have all the plants your yard needs, like fruit trees, privacy trees, flowering trees, shrubs, and so much more. Whatever plants you're interested in, Fast Growing Trees has you covered. Find the perfect fit for your climate and space. Fast Growing Trees makes it easy to get your dream yard order online and get plants delivered directly to your door in just a few days without ever leaving home. Their alive and thrive guarantee ensures your plants arrive happy and healthy. Plus, get support from trained plant experts on call to help you plan your garden. I've been redoing my cabin in the woods recently and gutting a house is pretty expensive. Instead of paying thousands more for expensive landscaping, I have a honeycrisp apple tree. Coming from Fast Growing trees to plant, I couldn't be more excited about the shade and frankly the apples and the cost savings is really hard to beat. You don't have to drive around to nurseries and big garden centers and choose plants from a limited assortment. Fast Growing Trees makes it easy to order online and your plants are delivered to your door in just a few days. Whether you're looking to add privacy, shade or natural beauty or apples to your yard, Fast Growing Trees has in house experts ready to help you make the right selection. With plant experts on call to offer growing and care advice, you can talk Talk to a plant expert about your soil type, landscape design, how to take care of your plants and everything else you need. No green thumb required. This spring they have the best deals for your yard, up to half off on selected plants and other deals. And listeners to our show get 15% off their first purchase when using the code lawfair at checkout. That's an additional 15% off at fastgrowingtrees.com using the code lawfair at checkout fastgrowingtrees.com CodeLawfair Now's the perfect time to plant. Use Lawfare to save today. Offer is valid for a limited time. Terms and conditions may apply. Delete Me makes it easy, quick and safe to remove your personal data online. At a time when surveillance and data breaches are common enough to make everyone vulnerable, your data is a commodity. Anyone on the web can buy your private details and the data brokers make a profit off of your data. But this can lead to identity theft, phishing attempts and harassment for you. But now you can protect your privacy with Delete me. I'm active online. I also have enemies. For some reason. There are these people out there who don't like me very much. So I have to be out there on the one hand, but my privacy is really important to me on the other. I've had online harassment, identity theft. There's a reason for all of that. There's this data about me that's all for sale. My name, contact information, Social Security number, home address, even information about my family members. And it can all be compiled by data brokers and sold online. Or at least it used to be. Now DeleteMe keeps an eye out and gets the data brokers to delete sensitive data about me before people can use it against me. So take control of your data and keep your private life private by signing up for Deleteme now at a special discount for our listeners. Get 20% off your delete Me plan when you go to join delete me.com lawfare20 and use the promo code lawfare20 at checkout. The only way to get 20% off is to go to joindeleteme.com lawfare20 and enter the code lawfare20 at checkout. That's joindeleteme.com Lawfare20 code lawfare20 if you're a parent or share a fridge with someone, Instacart is about to make grocery shopping so much easier. Because with family carts you can share a cart with your partner and each add the items you want, since between the two of you, odds are you'll both remember everything you need. And this way you'll never have to eat milkless cereal again.

[F]

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[Benjamin Wittes]

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[F]

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[Benjamin Wittes]

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[Anna Bauer]

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[Benjamin Wittes]

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[Roger Parloff]

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[Anna Bauer]

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[Benjamin Wittes]

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[Benjamin Wittes]

In response to the district court's TRO on against the executive order concerning Jenner and Block, the law firm, she writes. On March 28, 2025, an unelected district court yet again invaded the policy making and free speech prerogatives of the executive branch, including by requiring the Attorney General and the OMB director to pen a letter to the head of every executive department and agency. Local district judges lack this authority and the Supreme Court should swiftly constrain these judges blatant overstepping of the judicial power. In this particular case, a Local district judge has mandated that the Attorney General and OMB director personally send the below notification about Jenner & Block LLP, a law firm committed to the weaponization of justice, discrimination on the basis of race, radical gender ideology and other anti American pursuits. Of course, as noted in the court order, agencies are permitted to carry on their ordinary course of business which carries with it the authority to decide with whom to work. So this is a memo notifying the agencies that they have a TRO and they're not allowed to target Jenner and Block. Bob, you have been the White House counsel and you have studied the White House Counsel's office as very few people have. Have you ever heard of the Attorney General risk, you know, writing a kind of sneering, stick your middle finger up at a district court memo by way of complying with a court's order? I was just trying to think if I've ever seen anything like that, that as a, you know, as a, as a means of complying with an order. And I can't think of anything in the same ballpark. Am I missing something?

[James Pierce]

I don't think you are. I, you know what came to mind? I was trying to think what's a fair answer to that question. I was thinking of some remarkable statements that not long before he was imprisoned in connection with the Watergate matter, Attorney General John Mitchell, under Richard Nixon said about the law very specifically was picked up on tape in a conversation with Henry Kissinger and Richard Nixon talking about a weapons ban involving Pakistan and in effect saying there's no legal authority for us to do what we're going to do here. We're just not going to be picked up on it. In other words, nobody's going to notice. That's pretty shocking. But he said it behind closed doors and I don't expect that he thought that it was going to come to the light of day. This is all out in the open, confrontational. And I noted the last sentence of what you read there. There's not only this attack on the court, but then there's the clear cut statement. I mean, I wouldn't even characterize it as a suggestion. You really can't do anything about what we're planning to do here. You've issued a TRO and it doesn't mean anything.

[Benjamin Wittes]

That's right. You issued your order, will formally comply, denounce.

[James Pierce]

Correct.

[Benjamin Wittes]

You can't make us do business with.

[James Pierce]

We don't want to do business with Jenner and Block. We don't want them engage with any of their employees. We don't want to issue security clearances to any of their personnel. That's our call. And that has nothing to do with your tro, and it doesn't reflect in any way in our compliance with it. Now, I have thought, and I hope I'm not wrong, that this behavior, the rhetoric, the defiance via those sorts of mechanisms or slow walking are going to serve this administration ultimately very poorly in the courts. I think this is ultimately going to be very damaging to them. In the short term, they may not care. They may think they're racking up wins that are pleasing to their constituency. In the long term, I think it's very damaging. But to answer your question directly, it is very difficult to see the hand of lawyering. I won't say lawyers. I don't know who to call out for this. Maybe there are some lawyers who were howling into the wind in the administration, saying all the right things and being ignored, but these are not lawyered actions. And it is hard to imagine that the White House counsel at his desk can feel at all comfortable with actions that at the end of the day, he's going to be associated with.

[F]

Right.

[James Pierce]

In one way or another, you know, the lawyers who are there are going to be tainted by the behavior of an administration conducting itself in this fashion. Fashion.

[F]

Can I ask Bob a question?

[James Pierce]

Yes.

[F]

Because he, he spoke earlier about, you know, people are gonna. Something to the effect that people are gonna come to grief because of this sort of conduct. And we're seeing contempt, like conduct in a lot of different contexts. Yes, but what does contempt look like against the Attorney General of the United States? What. What can you do? What, you can't put them in jail. Well, what.

[James Pierce]

What does it look like?

[F]

Can you.

[James Pierce]

I'm not looking at imprisonment. What I meant to be clear, I mean, courts can find holding contempt and they can assess fines against recalcitrant executive branch officials. What I really had in mind is the way in which. And it's going to be very difficult to actually trace it, but we may be able to see glimmers of it now, that this sort of behavior is going to affect their ability to win arguments about things that they actually care about, because they will have absolutely no credibility, including with judges that would normally be sympathetic with the administration's policy goals. I mean, I just think they're miscalculating here. Now, again, they may not care. This may be very constituency focused. This may be very boss focused. This is what Donald Trump wants. And as you can see, this is the other thing that would horrify any White House counsel that I'm aware of from past and at least the ones I've known and the ones I've studied. Some of the language in these executive orders appear to have been dictated by Donald Trump or alternatively by somebody who's good at mimicking his rhetoric. I mean, this is a bad, bad look, both in form rhetoric and in substance. We'll see. But the answer to Ben's question is no. I, I, it's an extraordinary the last sentence that you read, the first part of it is really lamentable, but the last sentence that you read there, I think is so damning.

[Benjamin Wittes]

I, I found it, I found it astonishing. It only came to my attention yesterday, though. It's, it's somewhat older than that. James, you have, you know, been a pretty recently been a lawyer for the government. And some poor soul, probably Drew Ensign is going to have to walk in. I mean, maybe not, but is going to has to walk into court and talk about this document as a, as, as a act of compliance with the court's order. And it's already been introduced to the court. And so I just want to ask you, what do you like, what do you do if you're the lawyer? I mean, it, I guess it formally complies, right? It notifies them of the thing. It also has this line, as Bob points out, that says, and by the way, we're going to violate it and you can't stop us. What do you do if you're the Justice Department lawyer who has to, like, walk in and pour gasoline on, on himself and set it on fire in front of whichever. I don't know which judge this is in front of, but which whoever has the Jenner and Block case.

[Roger Parloff]

I don't know if hiding under the table is a possible answer to this question, but something along those lines. I want to answer your question a bit more seriously, but I have to. Just one other thing that you noted that I think further emphasizes Bob's point that there's no way this went in front of a lawyer is one line that caught my ear was the free speech prerogatives of the executive branch. By the way, the executive branch doesn't have First Amendment right. That is a law that safeguards citizens from government intrusion. It's not a sword that the government can use. But I think, Ben, your question gets to something that's gotten a lot of discussion recently also in connection with the Abrego Garcia and the departments placing on administrative leave of the attorney who was candid with the court in responding to, say Basically, like, I don't have information that's responsive to that. I've been frustrated and unsatisfied, you know, to again, emphasize Bob's point about losing credibility. I just don't see what a government attorney can do here to try to revive what is already lost credibility here. I mean, the order just speaks for itself. And I think an attorney is basically just relegated to what Drew Ensign was doing today in front of Judge Zinnis, which is, I don't know. I don't have information about that, you know, my client. Like, I'm only authorized to represent, you know, what's here and nothing more. And that is going to be highly unsatisfactory to a judge. It's going to be non responsive, and it's ultimately going to harm the government's. Not only their. Their credibility, but their ability to actually prevail on the merits in a lot of these arguments.

[Benjamin Wittes]

So the Greek chorus informs me that the Jenner case is in front of John Bates, who is one of the most serious and scholarly and temperamentally conservative judges on the bench. He's an extremely serious guy, and nothing that we are saying amongst ourselves here will not leap out at him on the page.

[Anna Bauer]

I should note that. Sorry. Go ahead, Anna.

[James Pierce]

Go ahead.

[Quinta Jurecik]

No, go ahead, Quinta.

[Anna Bauer]

Yeah. I mean, as Jamie Santos. Hi. Jamie. Points out, he was also. Judge Bates was also not amused during the course of the hearing. I mean, he gave the advocate for the Justice Department, Richard Lawson, I think, a fair shake and didn't go after him or anything like that. But at one point, I believe, if I was hearing correctly, he referred to the language at the beginning of the order as reprehensible. I think that's right. And was not at all amused, as Jamie points out, when Lawson tried to crack a joke about why he, as a political appointee, was running around representing the administration in so many cases. So I think from that hearing at least, Judge Bates was careful, measured, but seemed very conscious of the aberrant nature of what was going on.

[Benjamin Wittes]

Right.

[Quinta Jurecik]

Can I add something to this, too, which is that it's not just that they sent this notification out and it had this language in it. They also were really dragging their feet on it. Judge Bates issued his order on March 28th. They, I think, were first required to submit a status report on it on March 31. They claimed in the status report that they had not been able to send the notification out of the judge's order to all agencies who were affected by the executive order because of logistical difficulties, without specifying exactly what those logistical difficulties be seems to be something as simple as just sending an email to the agencies. Jenner and Block in their summary judgment motion also noted in a footnote that they had tried to confer multiple times with the government about whether or not the notification had gone out and were unable to get an answer. And then finally, the government did file notification that they'd send it out. We also had a report this week that I wrote about regarding more than a week after the court's order, the Department of Energy sent out requests for employees to seek disclosure from their government contractors about any business dealings that they have with Jenner and Block and Wilmer Hale and Perkins Coie and all those law firms that already have had sought TROs and successfully received them. And so it seems like a likely violation of the court's order. Of course, that email was then rescinded a few days later. But there's a lot more to this than just the language. There's a lot of seemingly bad faith conduct surrounding it as well.

[Benjamin Wittes]

Yeah. And that's, I think, a really important feature of it. And Anna didn't mention that she broke the story of DOA's emails on this subject. Doe, sorry, but you know, you have these, this situation where the notification is delayed and then is in this really inappropriate language that sort of teases the desire to violate the order. And then, of course, you have agents, agencies that are actually not complying with the order. All right, we are going to lose Bob Bauer, who has to drop off. But before we do, Bob, I just wanted to ask you whether you had any thoughts on the extension of the going after law firms principle to going after individuals, what we might call executive orders of attainder.

[James Pierce]

You mean the risks of particular, you know, individual leakers that, that, that executive order that.

[Benjamin Wittes]

Yes. You know, we're going to have an executive order denouncing Chris Krebs and. Or Miles Taylor. Yeah.

[James Pierce]

So if I could let me say something briefly about that and then just go back, if I may, just to one, one point about law firms, I, I don't want to miss here because there was some other news in that space and I think it's relevant. But on the first, of course, this is an example again of how is it that anybody you could imagine in the White House would advise the senior staff, that is to say any White House counsel, any lawyers who advise the senior staff that this is the appropriate subject for an executive order. Now, I haven't studied these very closely. I don't know that I really need to Spend an awful lot of time honing in on the nuances of what they did here. But it's this bullying, personal vendetta, vindictiveness wrapped up into what at least the administration's claim would be a lawful, quote, unquote, exercise of executive authority. And I think it's extraordinarily dangerous. But I think also I hope this is true self defeating very quickly. And I, I really have enjoyed this conversation. So thank you for inviting me. I just wanted to add one more thing. And in the middle of all that we've discussed about the way the administration is dealing with law firms and the legal profession, the President bragging, Stephen Miller bragging that he now has pro bono commitments for administration of initiatives almost up to a billion dollars. The President bragging that he might force somehow these firms to undertake as part of their pro bono commitments, assistance to him in his trade, trade deals or in the representation of coaling interests, coal mine coal industry interests. In the middle of all of this, some of the biggest law firms in the United States are continuing to negotiate and reach deals with the administration. You took a look at the entire picture of this, the executive orders, the way this whole thing has played out up through all the points that you just made about non compliance. And we find out Latham and Watkins, Simpsons, Thatcher, others, Big bad Scadden Arps. Big bad Scadden Arps, Paul Weiss. I'm missing one of them that just in the last 24 hours was part of that last set that we know of that cut a deal just now announced.

[F]

And those Shermans.

[James Pierce]

Pardon me.

[F]

Yes, Sherman and Sterling.

[James Pierce]

Exactly, exactly. And there are rumors of others, Kirkland and these firms have concluded that it is appropriate for them to continue to do business with this administration around these kinds of rule of law issues and the role of the legal profession in the United States. And it's completely and totally disgraceful.

[Benjamin Wittes]

I will just say on, on that note, before Bob goes the bully, never takes your lunch money. Only once, you know, if you give it to him, he's coming back. Guys, you think you're escaping Paul Weiss and you, you know, you're just going to do pro bono work that you would have done anyway. Yes, it never happens that way.

[James Pierce]

Well, and we'll say that's right. And his reading already of these agreements has been different from the reading that the firms have provided publicly. I mean, I mean, there's no secret about the way he does business. It's the way he did business in New York and it's the way he did business in his first term. Anyway, thank you again. I really appreciate it.

[Benjamin Wittes]

Thank you, Bob. And with that, Roger, let's turn to the law firm litigations, because there are these law firms who have actually litigated the thing, and they get their TROs and preliminary injunctions in matters of hours. So what's going on with the. How many law firms is it, like four that have actually litigated it?

[F]

Three are litigating. I imagine Sussman Godfrey, which was recently hit with one of these, will litigate, too. It's not hard. You know, they get the TRO within 24 hours. After they file, it's done. You know, it's root and branch unconstitutional. So. But, but this is one place where the government has not been trying to appeal quickly. They're in no hurry because, like you say, it doesn't really matter if you enter these TROs, they can violate them with impunity. If, you know, if you are, if you lack integrity, you can continue, you have a lot of leeway. So, you know, they plug along. They're going to go to a preliminary injunction hearing the week of April 21, I think, all three of them that have been filed. And so we'll see. The. As Bob said, meanwhile, the treasure chest that Trump claim believes he has acquired here is about $840 million.

[Benjamin Wittes]

It just went up because the Wall Street Journal is now reporting a new batch of firms, elite firms that have settled. I have not read the story yet, but it was literally texted to me seconds ago.

[F]

Oh, okay. So. But as of so. And like Bob says, and, well, you all say, we don't know. I mean, the way Caroline Levitt describes these things, it's not just the pro bono that they would have been doing otherwise. So we really have to see what this turns out to mean. But the main event does not seem to be in court because, you know, it's. It's nice to see people like who. Who is fighting and people like Paul Clement being, you know, representing Wilmer Hale and people stepping up, but I don't see it making a difference.

[Benjamin Wittes]

Yeah. As one, as one law firm person said to me, you know, the message from the White House is, you know, good luck getting, getting meetings with anybody, and no court's going to prevent us from, you know, from choosing who we give meetings to or not. And, you know, go ahead, sue us.

[F]

There was a report in Bulwark today that maybe 500 associates at Allen and Overy, Sherman and Sterling tried to convince their leadership not to do this, but obviously it didn't work. And Anyway, Corinta. Yeah.

[Anna Bauer]

Just a question. When you have a billion dollars of pro bono work, what does that actually get you? Is the administration going to run out of work to do, and in what context are they actually performing that work? Because I think that, I think that, like, there, there is a degree to which Trump has this habit where once he finds a new button that he can press, he just presses it as much as he can. And you see that with tariffs, you see that with these visa revocations of international students, you see it with pardons. He's just going to keep mashing the button. And I wonder at a certain point about the economics of this and what it actually looks like.

[Benjamin Wittes]

So we don't know the answer to that question. If you look at the firm's statement, they just say they've agreed to do, you know, X amount of pro bono work, which they all say we were going to do anyway, that are in areas of mutual concern and that they're not. The White House isn't assigning us work. If you hear the way Trump talks about, he's going to put them to work on trade deals, on, you know, reviving the coal industry. And so, you know, I think there's some of it you're going to have to wait and see. But, you know, again, Trump holds all the cards here because he can. These orders, these settlements aren't legally binding or anything. And so if he, you know, doesn't like the way Paul Weiss is behaving, he can just slap that order back on them. And, and so I think, you know, the pig will come back to the trough off one.

[F]

One other, one other change. I'm sorry, did I interrupt?

[Benjamin Wittes]

No, no, go ahead.

[F]

One other sort of morphing is that, you know, the first ones were really in. They were really these executive order bills of attainder where there would be, you know, we're going to defame Mark Pomeranz and we're going to punish everybody who ever touched Mark Pomerantz, and we're going to defame Mark Elias and, and that. And, but when you get to Simpson, Thatcher and Kirkland and Ellis, I don't know if there is. And, and, you know, you're Sherman and Sterling. I don't know if there are people that are. And even enemies in particular, you know, a firm with 4,000 lawyers, somebody must have rubbed you the wrong way. But at this point, it's just sort of a protection racket. It's just something, you know, and, and.

[Benjamin Wittes]

It'S just a shakedown.

[F]

And it Gets higher and higher. You know, it was 40 million for Paul White. Oh, 100 million for SCAD. 125 this time. And the longer you wait, the higher it's going to be. You know, this is where we are now.

[Quinta Jurecik]

Yeah.

[Roger Parloff]

Can I jump in with just one? I mean, I hesitate in some ways to suggest this, and, and it's not really plausible, I think, but you want kind of the height of perversity. Imagine a world where the pro bono work and this gets to the question you asked me a little while ago, Ben. The pro bono work of the firms that have signed on is to go into court deputized as government attorneys and to defend against the tr, you know, the litigation brought by the Jenners, the Wilmers and the Perkins Cooey. And so the person who has to.

[Benjamin Wittes]

Defend to do the things that AUSAs won't do.

[Roger Parloff]

Exactly, exactly. That's. That's what you will see now.

[Benjamin Wittes]

No, I think that's exactly right. All right, so we did get in the executive orders targeting companies. A good outcome this week related to the press, a preliminary injunction in the AP case. Give us a little bit of a sense of that. That.

[F]

Yeah. And this was Judge Trevor McFadden, who is a Trump appointee. It's a good read. It's interesting. You know, he was very careful. He didn't grant a tro. The central hurdle with this is obviously there are small spaces like the Oval Office or, or the Air Force One, where you have a very small number of pool reporters. And who gets to be one does involve a choice, but he had to develop a record to make it super, super obvious. And, and he did, you know, it just, I'm, you know, and the issue here was the eight. Basically, it seems it's the AP style book. It's that which everyone else uses. Still says that recommends calling it Gulf of Mexico. Calling the Gulf of Mexico Gulf of Mexico. And he's upset about that.

[Benjamin Wittes]

The problem style book, by the way, we call it the Gulf of Grenada. I don't, you know. Yeah, I don't, I don't know why Grenada's sovereignty is being ignored in, in this conversation. But, you know, it's the Gulf of Grenada to us.

[F]

But the problem will be, what we've just been discussing is how to enforce it. They, you know, you finally, after all that, you get a preliminary injunction and it says, you know, it orders you to rescind the denial of the AP's access to certain places based on AP's viewpoint, you could still deny them access for other reasons. Like for misbehavior or, or, or, you know, so now you need to start over with making a record about violations of this. Meanwhile, they've appealed. So, you know, we'll probably get an enforceable order around the time. If there's another administration when it, when it comes in, it's a, it's a very frustrating thing when the administration seems to very comfortable with contemptuous in all its meaning behavior.

[Benjamin Wittes]

Still, I do think the fact of the opinion is important and the fact of the opinion that it's by Trevor McFadden is important. All right, let's fire some federal employees. James. Independent agencies bring us up to date.

[Roger Parloff]

Sure. When we spoke about this a week ago, the, the two principal cases, the Merit Systems Protection Board, Kathy Harris and Gwen Wilcox from the National Labor Relations Board, after having had success, they were fired. Having success in the district court and getting permanent injunctions and being reinstated. As of a week ago, an emergency panel had granted a stay to the government which meant that they were essentially fired again and out of their positions. We're back there again, actually, but we've had a sort of a turn one way and a turn back in this week. The week began with the en banc D.C. circuit overturning the stay that the emergency motions panel had put in place. That same panel that had ruled on JGG of Henderson, Millett and Walker, that was a split panel that we talked about last time. That en banc decision meant that again Harris and Wilcox were reinstated. The government had asked for time to file a stay in front of the Supreme Court. The en banc panel in even sort of a closer division didn't grant that time. And so Harris and Wilcox were back in place. The government this week nonetheless went to the Supreme Court, sought a stay, asked for an administrative stay, and also took the somewhat unusual step of asking the Supreme Court to treat their stay application as a petition for certiori before judgment. In other words, get this up to the Supreme Court on the merits as quickly as possible. The Supreme Court, or actually the chief justice who's the circuit justice for the D.C. circuit, granted the first part of relief there, put in place an administrative stay, which means Harris and Wilcox are fired again. For those keeping track home, I think that's the fifth reversal going back and forth and back and forth and that the chief justice order asked or required a response to the stay application from Harris and Wilcox by Tuesday of next week. So that's, I expect we'll see something by then, if not up before then, will be very interesting to see Ultimately whether the Supreme Court, where I think all watchers, including myself, believe this is ultimately headed, will go ahead and accelerate this, take this on certiori before judgment, or we'll leave it for the D.C. circuit to resolve. Meanwhile, I should say in the D.C. circuit merits briefing has continued. I think by today the reply brief from the government, who is the appellant here, is due and so it will be fully briefed. Up, up. I have a hard time imagining that this ends up staying in the D.C. circuit, though. It would take the rather unusual step of certiori before judgment. But given not only these cases but a challenge from current FTC members who were fired, as well as other similar litigation in other kind of other similarly situated challengers, I think it's not unlikely the court will end up getting this on their merits docket even before the end of their term, which would require hearing argument on it essentially within the next month.

[Benjamin Wittes]

And what about probationary employees? This was an area where the Supreme Court actually also gave the administration a little bit of a victory this week.

[Roger Parloff]

Yeah, that's right. So earlier this week in a stay application in a case arising from Judge Allsup in the Northern District District of California, who folks may remember had ordered sort of overturned the firing of, I think it was maybe 16,000 probationary federal employees in that case. There were a number of organizations, I think it was four labor unions and some nonprofit organizations that had sued on behalf of the employees. The employees have to go through a separate track, not through the court systems. They have to go to the Merit Systems Protection Board. Judge also had entered a preliminary injunction. The Ninth Circuit had affirmed that or at least had denied the government's efforts to have it undone. The Supreme Court, I think on Tuesday of this week, in a 7 to 2 ruling, very brief, just a paragraph on the docket, concluded that the challengers there would not have standing. Interestingly, they called them all nonprofit organizations, which is somewhat not so. Some of the there were labor unions and now there's actually a state, the state of Washington. So it's unclear what that will mean when it goes back. There hasn't been any movement in the district court docket since the Supreme Court's ruling. But to your point, Ben, yes, it was a victory for the government insofar as the preliminary injunction is now stayed and we'll see what then develops on the district court do.

[Anna Bauer]

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[Quinta Jurecik]

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[Benjamin Wittes]

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[F]

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[Roger Parloff]

You are. You are muted.

[Benjamin Wittes]

Ben all right, all of which brings us to our weekly question with which we are going to close today, save for audience questions. Anna Bauer, who is the administrator of DOGE this week?

[Quinta Jurecik]

The administrator well, we learned this week from reporting by the San Francisco Chronicle that Doge is not one but three. Or maybe it is three and yet one the Doge and Trinity. The Doge and Trinity, the Father, the Son, and the Holy Doge. The reason that I mentioned this is because there was reporting that Amy Amy Gleason, the alleged acting administrator of Doge, at least in a formal capacity, had some messages that she was sending to a health care group chat in which she defended herself and said that she was not the one responsible for the mass firings and various other things that people have attributed to Doe Doge. She explained that there is the United States Doge service created under the executive order, which she is in charge of. And then she said that's completely separate from the DOGE teams that are hired directly into each agency. And then that's also completely separate from the larger DOGE policy agenda that Elon Musk is advising the president on. So DOGE is everywhere and yet nowhere. DOGE is three, and yet one. DOGE is there is an administrator and there's not. I don't know, maybe there's three. Maybe there's one. No answers, Ben.

[Benjamin Wittes]

All right, excellent. We're going to speed through questions. I'm going to identify, I'm going to direct them to somebody and keep answers short. What do we know about the statutory and fiscal basis for the agreement to house detainees in El Salvador? Quinta?

[Anna Bauer]

I have been obsessed with this question. The answer is nothing. We know nothing. The administration has said nothing. I am hopeful that in the Abrego Garcia case, we might actually start getting some more information about what is going on here if the administration doesn't just invoke state secrets about everything. But it's a huge question and I think a lot depends on it because whether or not the JGG class petitioners who are still stuck in El Salvador are able to sue for habeas in the sense of being in constructive U.S. custody, I think really depends on the terms of that agreement.

[F]

All right, there is a AP article the plaintiffs have sometimes relied on that they claim to have they. They say they have seen AP or no, Reuters. I'm sorry, it's. What's one of them? A memo from Bukele that says it's $6 million for one year and then they will reassess it. And the other piece of evidence that the plaintiffs use is Kristi Noem's tweets where she says it's one tool in our toolbox, implying it is a federal program of some sort.

[Benjamin Wittes]

All right. In the Abrego Garcia case, the Trump administration could have delayed further by requesting en banc review at the D.C. circuit instead of a direct appeal to SCOTUS. Why didn't they? Too much confidence in the conservative majority on the court. No, there's a very simple answer to this question, which was there was no stay on the order at the district court and the clock was ticking. They needed somebody to step in and stay the order. And they were not going to get a stay from the en banc D.C. circuit. They could only get that at the Supreme Court.

[Roger Parloff]

Just one clarification. It was the 4th. 4th Circuit, not. Not D.C. but otherwise. I agree with that.

[Benjamin Wittes]

Right. Sorry. My apologies if you don't have Jay WILKINSON at the 4th Circuit, you are not getting and there's no conservative majority anymore at the 4th Circuit fully acknowledging that in this climate it is a mere pipe dream. Might Trump's this is a great time to buy post coming less than four hours before announcing a tariff pause constitute a public record in the context of Justice Roberts, Footnote 3 in the Immunity case, could this constitute a public record of market manipulation that could be admissible in trying to hold Trump or anyone criminally responsible for this official act? James, what do you think?

[Roger Parloff]

I think anybody who any understanding what footnote three means should get a prize of some sort. Otherwise, I think the likelihood here is if there's something below zero, that how.

[Benjamin Wittes]

Is what they've done different from the extraordinary rendition after 911 that W did on the theory that people were terrorists? I know there were fewer people, but. So the answer is it's much worse than what w did in extraordinary renditions. The extraordinary renditions, you know, people are have mixed views of them, but they involve people who were genuinely believed to be terrorists, who were being rendered to countries who had outstanding legal process for them or sometimes in a small number of cases to a black site. These were, you know, high value al Qaeda people or at least believed to be in the vast majority of cases. There were, they were, there were a few mistakes, some of them very tragic, by the way, and this. But they, they were not in the United States. They were not, you know, people who had who you owed due process to under the U.S. constitution and immigration law law. They weren't in violation of court orders and you weren't deporting people who were not really individually suspected of anything to indefinite confinement by authoritarian governments for no strategic purpose. And so I actually think it is much, much worse than the extraordinary renditions which are comp themselves a complicated subject. Can the eighth amendment's prohibition of cruel and unusual punishment come into play with respect to the detainees deportees and El Salvador? If so, how would that work? If not, why not? Answer. You know, look, it gets back to that constructive custody question. If there, if we're subcontracting, mistreating people to the Salvadorans, you get all kinds of possibilities. You still have a jurisdictional question. Who has jurisdiction to look at it? Two more to go. What do we know about the statute? We already answered this question. Ensign stated that the government might assert privilege over some of the information and a Bauer presumably the state secrets privilege. What would the basis for that claim of privilege possibly be and how could it be challenged? And did Ben and Natalie have a bet about this question? Whether it would come up at today's hearing and who won that bet.

[Quinta Jurecik]

Okay. So there, there. Oh, yeah. All right. Well, let me start with yes, he did say privileges, but he didn't say which one. So it.

[Benjamin Wittes]

Could he assert any privilege?

[Quinta Jurecik]

No, he didn't assert any privileges. He said, and something to the effect of, you know, your honor, we, we might invoke some privileges, but I don't know which ones yet.

[Benjamin Wittes]

Did Natalie assert confidently that he was going to assert the privilege?

[Quinta Jurecik]

Natalie, privilege.

[Anna Bauer]

I think she's not here to defend herself. We're going to table this.

[Quinta Jurecik]

But, but there was, I mean, I will say with respect to myself, I did think that they might today go into this hearing and invoke state secrets because they've done that in jgg. We've talked before about there doesn't seem to be a lawful basis to do so because typically that is invoked with respect to classified information. It's unclear to me exactly though what they might be, you know, what basis factually they might have to invoke that.

[Benjamin Wittes]

And did, did, did anybody in the Lawfare ecosystem say confidently they would not invoke the state?

[Quinta Jurecik]

Yes, Ben, you are correct. You did say they would not.

[Benjamin Wittes]

We're gonna end it right there.

[Quinta Jurecik]

Yeah, yeah.

[Benjamin Wittes]

Look folks, we're three minute, four minutes over. We got through all the questions this week. Thank you to our special guest Bob Bower. Thanks to senior editors Roger Parloff, Quinta Jurassic Anna Bauer, thanks to James Pierce who's extraordinary fellow that's like to go with extraordinary renditions at Lawfare. And thank you to the estimable long suffering Anna Hickey who makes this all possible every week. We will see you next week.

[Anna Bauer]

The Lawfare podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter at our website lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for our other podcasts including Rational Security, Allies, the Aftermath and Escalation. Our latest Lawfare Presents podcast series about the war in Ukraine. Check out our written [e-mail] the podcast is edited by Jen Patya and our audio engineer. This episode was Ian Enright of Go Rodeo. Our theme music is from Alibi Music. As always, thank you for listening.

[Roger Parloff]

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