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- [00:01]
Benjamin Wittes
The following podcast contains advertising to access an ad free version of the Lawfare Podcast. Become a material supporter of lawfare@patreon.com lawfare that's patreon.com Lawfair also check out Lawfare's other podcast offerings, Rational Security, Chatter, Lawfare, no Bull and the Aftermath Picture this. You're halfway through a DIY car fix, tools scattered everywhere, and boom. You realise you're missing a part. It's okay because you know, whatever it.
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James Pierce
Is, it's on ebay.
- [00:44]
Benjamin Wittes
They've got everything. Brakes, headlights, cold air intakes. Whatever you need. And it's guaranteed to fit. Which means no more crossing your fingers and hoping you've ordered the right thing thing. All the parts you need at prices you'll love. Guaranteed to fit every time.
- [01:00]
James Pierce
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- [01:22]
Benjamin Wittes
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James Pierce
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- [01:30]
Benjamin Wittes
Full price plan options available, taxes and fees extra. See full terms@mintmobile.com.
- [01:40]
James Pierce
I think that there are some folks who watch re Judge Wilkinson, see that he's a pretty good weather vane for the Supreme Court and may not want to get an opinion like Judge Wilkinson's.
- [01:52]
Benjamin Wittes
It's the Lawfare Podcast. I'm Benjamin Wittes, Editor in Chief of Lawfare, with Lawfare senior editors Anna Bauer, Quinta Jurassic and Roger Parloff, and legal fellow James Pierce. In a live recording on April 18, we discussed the status of the civil litigation against President Trump's executive actions, including Judge Boasberg's finding of probable cause of contempt by the government in the Alien Enemies act case, the wrongful removal of Kilmar Abrego Garcia, the funding freeze cases.
- [02:29]
Roger Parloff
And so much more if the allegations in that case are accurate, that they are still trying to bundle them out of the country that apparently nine justices of the Supreme Court all agree is illegal.
- [02:46]
Benjamin Wittes
Hey folks, welcome to this week's lawfare Live. It has been a wild and woolly week and we are we had to do one emergency live stream about it and this is our non emergency live stream. But it's the second of the week. We got a lot of ground to cover. We've got El Salvador cases. We've got grant terminations. We've got another TRO hearing in law firm case. We've got universities. You know, it's just been one of those weeks. I am here in the hammock studio with James Pierce, lawfare fellow extraordinaire in residence, Roger Parloff. Joining from the sconce studio, we've got Anna Bauer joining from the brick dungeon of her palatial mansion. Anna, I have not seen this room before. Do you hide bodies in it?
- [04:01]
Anna Bauer
I.
- [04:03]
Quinta Jurec
This is where I hide the administrator of Doge, Ben.
- [04:07]
Benjamin Wittes
Okay, well, we're going to get to the administrator of Doge, so, you know, you better be prepared to produce him when. When I ask, you know, or her. That's true, since formally it is a her. And from the Ansel Adams studio, it is Quinta Jurec. Hello, Quinta. Yeah. If you don't say anything, they don't see you because, you know, there you go. All right, let's get started. We're going to start with the what you know, we call the Salvadoran dungeon cases. We had two major developments this week. First, Judge Boasberg issued his ruling on the. Not on the contempt matter, but on the probable cause of contempt matter. And then we had in the abre in JGG, and then we had in Abrego Garcia, the 4th Circuit's very dramatic ruling by Judge Wilkinson yesterday. So, James, get us started with the contempt ruling. Give us an overview of where we are with that.
- [05:29]
James Pierce
Yeah, certainly. Thanks, Ben. So, as you mentioned, it was ultimately a probable cause of contempt hearing. And to jump to the end for a moment, interestingly, the government has actually already appealed that, and it's not clear that it is an appealable order. But the government certainly didn't like what Judge Boasberg had to say. To make sure everyone's on the same page. This stemmed from the temporary restraining order that Judge Boasberg put in place when he learned after the five named plaintiffs in the JGG case moved for judicial intervention in an effort to stop their removal to El Salvador. As part of the mass removal that took place under the Alien Enemies act, there was an emergency weekend hearing in which at one point, Judge Boasberg, upon learning all of the relevant facts, directed the government to stop the removal, Saying things like, if you need to turn planes around or not discharge the individuals in El Salvador, I leave those operational and logistical details up to you, but you do need to cease that removal. That language will become relevant in a moment. As I'll explain as I think most people who have followed this closely know that in fact did not happen. And then a whole bunch of litigation followed from there. This particular order focused on whether the government's conduct in response to the tro. And there was both an oral order that Judge Boasberg gave during the hearing and a follow up written order that came about 45 minutes later. There was a plane in the air at the time. And nonetheless all the individuals ended up in El Salvador, at least as far as we are aware. Except I should mention the five named plaintiffs. Also one other relevant fact that folks who follow this closely probably are aware. Some individuals, I believe it was all women, although perhaps Roger and others could correct me, were returned when it turned out that sicot the prison in El Salvador was not prepared to accept female detainees, which at least evinced or demonstrated that it is possible for the return to happen. So this was an order on whether there was probable cause that the government had not complied with the TRO that Judge Boasberg put in place. The first question that he dealt with here is whether he actually had the basis, sort of the jurisdiction to go to move forward and decide it. So the government had said, well look, in subsequent litigation when it made its way up to the Supreme Court, the court said, these are all habeas cases. They have to be filed in the District where the individuals were detained. That was not the District of Columbia. And so therefore court, you do not actually have the authority to move forward with anything, including determining whether there has been non compliance with your tro. Judge Boasberg disposed of that. He relied on a Supreme Court case, unanimous Supreme Court case from the early 90s case called Willie that involved the imposition of Rule 11 sanctions in a civil case where after the sanctions were imposed, it was determined that there was not actually a basis for that case to be in federal court. Chief Justice Rehnquist writing and Judge Boasberg analogizing to that case, says, look, the government has to comply with these orders, even if on appeal, the order is ultimately reversed. When he moves through that, then he gets to this question of whether or not there was contempt, although again, ultimately he is not going to land with an order of finding. But instead of probable cause determination, I should pause for a moment on the probable cause piece. Judge Boasberg notes it is not required for a court to do what he is doing, which is taking kind of a first step of making a probable cause determination. But he believes that it is sort of a best practice to assure the kind of Procedural safeguards. And for those of you familiar with the criminal justice system, it is not unlike, one might say, a grand jury reaching a probable cause determination of a criminal violation, and then they're being kind of moving forward to a potential adjudication with beyond a reasonable doubt standard.
- [10:07]
Benjamin Wittes
So, James, can I. Can I pause you there and just ask you. Usually when I've seen this done, it's done in the kind of. In the negative, the judge issues a show cause order why you shouldn't be held in contempt rather than issuing a probable cause order that you should.
- [10:30]
James Pierce
That's been my experience as well. I'm not entirely sure why Judge Boasberg not only adopted a different path here, but then actually went and gave in his probable cause analysis a pretty comprehensive factual and legal recitation as to why he thought each of the elements were satisfied. But, yes, it has been my experience, both in criminal contempt and somewhat less though, some experience in the civil contempt world, where you get that sort of probable cause finding in the negative, and then you kind of go and do the legal and factual work to prove it up. But that's not the path he adopted here.
- [11:12]
Quinta Jurec
Can I just say, though, I wonder if it's because there was already a hearing about whether or not the government violated his order. Right, because there was that hearing a few weeks ago. And so instead of having a hearing after. Does that make sense? We already kind of had the hearing on show up and tell me why I shouldn't hold you in contempt.
- [11:41]
Roger Parloff
It was in order to show cause why there wasn't a violation of my order. They didn't use the word contempt.
- [11:47]
Quinta Jurec
But.
- [11:50]
James Pierce
Yeah, ultimately, I don't think. I mean, one could worry that there's a notice type problem here, but I just don't see that as a concern. I think there's been. Judge Groenberg has been generally pretty careful about signaling what he is trying to do and giving the government ample opportunity, including in this very order, by designated, a probable cause finding and giving the government, as we'll talk about in a moment, kind of two different doors or paths to go down. The contempt analysis, as some folks may know, is determining whether there is a clear and specific order. That's question number one. Number two, whether there has been a violation. And third, whether that violation has been willful. And I think a pretty detailed accounting. Judge Boasberg walks through each of those. He describes the order that he issued first orally. He focuses ultimately on the written order, but then comes back to say the oral order gives further context to establish precisely what it was that he had directed the government to do, which was not to remove individuals. The government's argument here was remove just meant not leave the U.S. it didn't encompass and then be transferred into El Salvadorian custody. And by the way, who you don't even have the authority to order us once they're in the air or once they're out of U.S. custody. I think Judge Boasberg, in my mind, fairly persuasively walks through why that's not a compelling argument and more than that, a mischaracterization of what he had actually directed the government to do. So that is how he determined there was in fact, a clear and specific order. He moves then to whether it had been violated in that discussion. I think he's, in his words, the government has essentially conceded a violation on his interpretation of it. In other words, that the government failed to had the opportunity, but failed to keep the individuals, the detainees from being discharged into El Salvadorian custody. And then finally, in talking about the question of whether it was willful, uses pretty strong language here. I'll quote some of it. He says from the opening hours of Saturday, the government's conduct betrayed a desire to outrun the equitable reach of the judiciary. Such conduct suggests an attempt to evade an injunction and deny those aboard the planes the chance to avail themselves of the judicial review that the government itself later told the Supreme Court is, quote, obviously, unquote, available to him. So pretty strong language there on the willfully piece. So that all in service of his ultimate conclusion that there was probable cause of contempt of criminal, not civil, contempt. And then at the very end, he leaves these kind of next steps. One is that the government can purge itself of contempt by, in fact, complying with his order, bringing folks back so they can have the process to which they are entitled or be prepared for essentially moving forward with contempt proceedings. Interestingly, under Rule 42 of the Federal Rules of Criminal Procedure, the prosecuting entity would first be the government. Unless the district court determines in the interest of justice to appoint a special prosecutor or the government itself declines. I suspect the government is not going to purge itself. I think some of the signals from the White House have been quite clear about that. So it will be very interesting to see what happens at this point. One last thing that Judge Boseberg kind of adds at the very end of his opinion that is interesting, probably anticipating where this litigation might go as he comments on what he thinks is an exceedingly doubtful basis for invoking the state secrets privilege. We know that the government has Already noticed that as part of all of this, Judge Boasberg has quite a bit of experience from his time on the FISA court and with DDC litigation. So that may well come into play, but that's where we stand. I think it's April 23rd where the government has to sort of make clear which path it's choosing. Though I think it's, as I said, highly unlikely that they are choosing anything other than the second door.
- [16:21]
Benjamin Wittes
All right, so help me out, because I've been. Ever since he issued this order, I've been trying to puzzle through this, which is, he gave them two choices. One is tell me, you know, purge the contempt somehow, which functionally means bring them back. The second option is tell me who the miscreant is, who made this decision, which we all kind of know from news reporting, is Steve Miller. But we don't have that in the record in a way that you could use. So assuming that they choose neither and they say we're not cooperating with this witch hunt, which a liberal, unelected district judge decided to do, can you hold the government in contempt without identifying the specific perpetrator, or do you need to identify an individual?
- [17:23]
James Pierce
I think you have to identify a particular individual. And Judge Boasberg himself has said, you know, the government should be prepared through declarations and hearings. And as I mentioned, under Rule 42, it's ultimately would not be him that is doing this. It would be to complicate this even more, either the government itself or more likely some sort of a special prosecutor. But I don't think, and certainly I'm not aware of a sort of a government writ large being held in contempt. I stand ready to be corrected on that by anybody who's seen that. But I do think you need to come up with particular contemporaries, not. Not just sort of a. An entity that has. That has engaged in contumacious conduct.
- [18:12]
Benjamin Wittes
And so what do you do if you're the judge and the government, you know, asserts privilege after privilege, some of which will be frivolous, and some of them may not be frivolous. Attorney client, wise, executive privilege, you know, blah, blah, blah. And by the way, executive privilege is stronger than it was the last time the Trump administration was in office because of this immunity decision. What do you do if you're unable to identify the condemner?
- [18:51]
James Pierce
Yeah, I think that's a great question for which I don't have an answer. I mean, again, it's not. It won't be the judge himself, Judge Boasberg. It will be the special prosecutor Taking whatever steps that prosecutor can take. I'm assuming here that the government is itself not going to engage in the prosecution of this contempt, criminal contempt case. But, yeah, you know, I think this, like, unfortunately, a lot of what we're looking at these days, it's this sort of clash of the government just putting up kind of obstructive wall after obstructive wall. And, you know, it's not, it's not clear to me how that. How that ends or what either the special prosecutor or Judge Postberg and I should pause for a moment. It's not obvious that Judge Boasberg would preside over any criminal contempt. It is not unusual in these matters where you have, you know, for the very reason that it is, the court, one court would seem to have an interest in the matter when it is issued the order that it would go to a different judge in the District of Columbia to oversee any criminal contempt proceeding. It doesn't answer your question. It doesn't say what that judge would be able to do. But just to put that out there. But I don't know. I think that poses quite a challenging quandary.
- [19:59]
Anna Bauer
Can I raise one interesting possibility here? So one sort of quirk of the way that Boasberg has fashioned the contempt proceedings so far is that he's pursuing criminal contempt or he's indicated that he's found probable cause to pursue a finding of criminal contempt, which. So for listeners, that criminal contempt is backward looking. It's a punishment. And the president can pardon a contempt charge as opposed to civil contempt, which is sort of forward looking and leaning on enforcing compliance. I think there's reason to think that Boasberg may be going with criminal contempt because the extent to which how much of this case is in how much of his jurisdiction is very unclear right now. And so backward looking kind of avoids some pretty naughty questions about the extent to which he can find anyone in civil contempt. But the interesting thing about the way that he's fashioned this order of either purge the contempt or tell me who's responsible so I can pursue criminal charges, is that it might open a way for him to sort of stack civil contempt on top of the criminal contempt. If the Justice Department, then the administration refuses to hand over that information about who is responsible or if there is contemptuous conduct in the process of any kind of prosecution. Although, as James says, I don't think it's clear that Boasberg himself would be presiding because then you could have contempt in refusing to abide by the court's order going forward. Within the contempt process. So it's kind of nested and at that point it's no longer criminal, it's civilization.
- [21:42]
Benjamin Wittes
I've heard of double hearsay. I'm not sure I've ever heard of double contempt Contempt. Yeah, it's the. It's nested, embedded contempt. But you have teed up beautifully. My question for Roger, because this all raises the question of how much of the case is still in fact in front of Mr. Judge Boasberg. He spends a fair bit of time in this case, in this decision, explaining why he. Why the vacating of his original order doesn't moot the contempt question. But how much of this case does he still have?
- [22:30]
Roger Parloff
Yeah, that's a really good question. He, I mean we, the plaintiffs. He had invited the plaintiffs to file and say whether they were still going forward with. They thought they could bring a motion for a preliminary injunction. And I wasn't sure what he meant. So they have come back with a proposal to do several things and they, to begin with, they take the position that the class here was never dissolved, even though the TRO was by the Supreme Court. I mean, and it's true, if you track the language, the court only vacates the tro. There are. But it's gets strange and what they've come back and want to do is a couple things. One is the immediate thing is they would like to do, I think a nationwide class TRO or, or on notice alone requiring that anyone who is going to be taken out of the country under this proclamation needs to get 30 days notice and all and an opportunity to be heard, which is the same thing that, you know, the German enemy aliens during World War II were offered. So and because it's only notice that they're seeking with respect to that and they're not seeking release, they're not even seeking to not be transferred out of the country from this order. They say that would not be a habeas. At the moment though, you have a class with no named plaintiffs. All of the named plaintiffs are out of D.C. and in fact they're now involved in new lawsuits. So you're going to need a new name plaintiff pretty soon. All of this sounds pretty aggressive to me. And then he also wants. And then I think they would. That's their immediate goal. They wanted to have a TRO on that actually a hearing this afternoon. They couldn't. He did not give them that. He gave it Monday afternoon at 5. That's again, that's a. Nate. I, I read it as a nationwide thing and it seems aggressive. Then they want to also bring back. They would like to form a class on behalf of the people in el Salvador, the 137 that were sent out under this proclamation without due process, and on the theory, using the jurisdictional theory that was used with the Guantanamo prisoners, the Rasul vs Bush case. And so that too would be a pretty exciting thing that, that I think will require a, an amended complaint. And, and they would. I forget their timeline for filing that, but they plan to file an amending complaint. And then they, they also would like a class of all of those who are confined right now for criminal matters. And I. That part I didn't understand at all what their theory was for getting jurisdiction in D.C. for, for those that were so confined criminally. I, I don't know why that wouldn't be a habeas and require dispersed filings. But anyway. But all of this is just the plaintiff so far. And Judge Boasberg hasn't given, you know, indicate any indication that he's going to bite on any of this.
- [26:55]
Benjamin Wittes
All right. In the meantime, though, we do have Quinta, a bunch of people who have gone ahead and just filed habeas cases in their local jurisdictions, right?
- [27:10]
Anna Bauer
That is right. I think there are more. Every time I check. There are over five. Let's, let's go with that in local jurisdictions. Off the top of my head, there's been a class certified in sdny, I think the Western District of Pennsylvania, District of Colorado, Southern District of Texas. There's one in Northern District of Texas, which I want to get to in a minute. And then I also know of at least one case in Greenbelt that is currently an individual plaintiff who received a temporary restraining order barring the administration from removing him. But the litigants are seeking clas certification. So the Northern District of Texas issue I think I'm going to be a little hazy on because it is currently happening. I see some people in the chat have mentioned this, but this is in the Bluebonnet Detention center in Anson, Texas. This is a group of Venezuelans. They had sought a TRO after being handed paperwork yesterday that indicated that the administration intended to ship them out of the country under the Alien Enemies act, applied for and did not receive a TRO in that district. Now I believe that case is being litigated by the national aclu, which has also now filed an additional filing before Boasberg in jgg, asking for him to expedite his ruling requiring additional notice along nationwide along the lines of what Roger was saying, reasoning that these people I think it's been less than 24 hours since they received this paperwork and the notice, I'm using air quotes there, if you're listening to the podcast later, is basically a piece of paper that says you're being detained in remove it under the Alien Enemies Act. It's in English, there's no translation, there's. I'm reading it right now. Very little or no information about what process is available to these people. So it certainly seems like the administration is now trying to play games with the meaning of adequate notice or time to contest the removal. And the last I had seen, I think the ACLU filed an emergency motion before Boasberg about 20 minutes minutes ago. And it doesn't look like the docket has updated but. So that's a, that's a case where most of these cases, judges have granted either class wide tros for a specific detention center, a specific district or you know, starting with one plaintiff, maybe expanding it with the exception of this case in the Northern District of Texas.
- [30:11]
Benjamin Wittes
And just to be clear, when the you file, the government hands you a piece of paper, the ACLU files an emergency habeas motion and the judge doesn't do anything. There's nothing that prevents after a reasonable time, subject to executive interpretation, the government from just deporting you. Right.
- [30:42]
Anna Bauer
I think that, I mean I don't think see how that wouldn't be the case. I mean I will say it's also worth noting there is at least one individual who has actually filed individual habeas petition from Secot. So this would be the second. I think his name is Edeckson Quintero something. Apologies, I don't have it in front of me. So this would be the second.
- [31:07]
Benjamin Wittes
The case is Edeckson v. Dickerson.
- [31:10]
Anna Bauer
Thank you. Yes. Which I'm. I believe Etoxin is his first name. So I'm a little confused there. But at any rate this would be the second case filed individually on behalf of someone who is currently in secot. That is a habeas claim. I believe it's in D.C. so I think it's worth noting that this is pretty cold comfort. But if these individuals were removed to SECOT at this point it seems like there's some kind of process to file a habeas claim from, from there. Obviously I would argue that they should be provided the adequate notice to, to receive legal process before being removed there. But I do just want to note that because that has been an update that's occurred since the last time we talked about this.
- [31:58]
Roger Parloff
If, if I could just belabor the obvious there too. If, if the allegations in that case are accurate, that they are still trying to bundle them out of the country with inadequate notice, that this is something that they now know that apparently nine justices of the Supreme Court all agree is illegal. Certainly all nine, the procureum said you can't do this and there were no noted dissents. So it's really amazing.
- [32:33]
Benjamin Wittes
Right. And just to foot stomp that point, the, you know, the, the per curiam doesn't say that. It says that you have a chance to notice and a chance to challenge it in habeas. It doesn't say anything about how long the courts can or should take to, to deal with that. And so I think, you know, in addition to, you know, it would be a very interesting confrontation at the appellate court levels if the government took the position as long as you got to file the thing, it was perfectly appropriate of us to remove you before that was adjudicated. That's a, you know, that's not, I mean, I've never defended a matter at a hostile appellate court, but I'm not sure I would want to be a government, government lawyer defending that.
- [33:37]
Anna Bauer
There's, can I make one, one additional point here? So also the, the gentleman who filed from Sitcot is. Yeah. His name is Ericson David Quintero Chacon. I do think it's notable, just as we're kind of chronicling the administration's creep toward outright defiance of court orders that as far as I know, they have not directly defy in all the instances in which a court has granted a TRO class wide or individual after jgg, I don't believe that they have removed anyone under the Alien Enemies act, that they've abided by all those court orders. It's just now when this judge, I don't know the judge apologies in the Northern District of Texas declined to issue a TRO that they're now seemingly trying to play games.
- [34:24]
Benjamin Wittes
And did the judge decline or did the judge just not act?
- [34:30]
Anna Bauer
I believe the judge rejected the motion for the tro, but I will confirm that.
- [34:36]
Benjamin Wittes
Okay. So Roger, let's talk. Meanwhile, before we go to Abrego Garcia, let's talk briefly about the birthright citizenship order that's now going to get oral argument before the Supreme Court. What's going on there?
- [34:55]
Roger Parloff
I was going to let James discuss that one.
- [35:00]
James Pierce
James, then not a whole lot to say beyond just the top line, which is that the court has set oral argument, it set it for May 15, which is interesting in and of itself. That is about three weeks after its final argument and well beyond when it usually hears argument. The setting of it at that date is in some ways in line with what the court has already done, which is in a world of a lot of emergency litigation, moving very quickly to move a lot more slowly on these birthright citizenship matters. So as folks may recall, the deadlines were set at a different trajectory, and after it was briefed, they kind of took a while and finally have set it, keeping a stay in place. So there are three particular cases that came out of the 9th, the 1st and the D.C. circuit. And then we'll hear argument which will focus mostly on, as I understand it, really, the propriety of using a nationwide or universal injunction. Some people draw distinctions between the two of those. I don't think we need to go into that now. But to me, I think the bottom line is that the court is not moving quickly on this and in some ways may just be buying themselves a little bit of time while there is churn and a lot of activity in things like what we've just been discussing, maybe Abrego Garcia coming back to them, the, the MSPB and NLRB cases that I don't think we plan to talk about that potentially kind of showing up on their docket. So I think it's a bit of a kind of a buy for more time for the Supreme Court, and it'll be interesting to see in mid May whether, you know, how much of that argument moves into the merits and how much of it is really about this question that some of the justices have been quite kind of eagerly batting back and forth, which is, again, how appropriate it is to be using universal injunctions in these cases.
- [36:56]
Benjamin Wittes
Yeah. I mean, formally, it looks like it's not a merits question at all, right?
- [37:01]
James Pierce
That's correct. Yes.
- [37:03]
Benjamin Wittes
So you could have the big birthright citizenship case go up for the first time, and it really just be about the scope of the injunction.
- [37:15]
James Pierce
Yeah. And that's. That's how it's teed up. That may be how the court would like to tackle this issue for now, as I said, in an environment with a lot going on and a lot of things coming at them at quite high velocity. But, yes, you could have have no meaningful engagement with the merits of the underlying question.
- [37:34]
Benjamin Wittes
All right. Quinta says she has an answer on the denied tro. What's.
- [37:40]
Anna Bauer
Yes, and many thanks to the wonderful Anna Hickey, who, behind the curtain, was helping me research this very quickly. So the case title, somewhat bewilderingly, is actually AARP versus Trump that AARP are the initials of one of the plaintiffs. It's not the American association for Retired Persons. So the judge somewhat bewilderingly denied the motion for a tro because the Supreme Court's ruling in JGG leaves no doubt, and this is a quote, leaves no doubt that detainees like the petitioners are entitled to some level of due process and judicial review. And so is essentially saying there is not a likelihood of irreparable harm because JGG shows that the government has to provide them legal process. Therefore the government surely won't remove them.
- [38:39]
Roger Parloff
I think in. Is this the Northern District of Texas?
- [38:43]
Anna Bauer
Yeah, that's right.
- [38:44]
Roger Parloff
I think the government was also saying, we won't remove this guy, we won't remove the named plaintiff. And I don't think they had gotten yet to the class issue. He's going awfully slowly on the class issue and he is a Trump appointee, if you were wondering. But it's also hard because a lot of those filings in the habeas cases are not public. It's really hard to follow. And that might be because a lot of filings in immigration cases are not public. I don't know, though, why so much has to be non public.
- [39:26]
Benjamin Wittes
All right, Roger, you wanted to talk about DVD v. Dhs and I gotta say, I, these acronyms with D, I just can't keep them straight. I don't even know which case this is.
- [39:39]
Roger Parloff
This is one that I, I think is actually pretty important. It's in the District of Massachusetts. And it has to do with a change of, a very quiet change in policy. All of this is quiet on the Trump's part that occurred on February 18th. And this is related to Abrego Garcia as well. And so, you know, these people that were in his position that have the status, withholding of removal, they are removable because they came in illegally, but they are not supposed to go back to their home country because they would get either persecuted or tortured or whatever. And what they've said is, and, and in the past, there was a policy in the, in the department that if you change that, if you decided, well, okay, let's try to send him to a third country, you would give him notice and give him a chance to say, no, I'll face torture there too, or, you know, at least give him a chance to speak up. And they changed that and said, no, you're removable, you can go now and we don't have to do anything else. And so all of these immigration lawyers thought, wait a minute, I mean, you there's no, you can't just say you have a removal order when there's no country designated. But that's what they've been doing. And so this is a class action, and I think it's nationwide on behalf of everyone that are potentially in that situation. And a preliminary injunction was entered and a class certification, I think, today. And it's. It's long and I haven't read it, but that seems like an important thing for me to read. And the people are in different states. One is. One is in. One has been removed to Mexico. He was.
- [41:44]
Benjamin Wittes
He.
- [41:44]
Roger Parloff
He had. He wasn't supposed to be. He would. He wasn't supposed to be removed to Guatemala. So they sent him to Mexico and Mexico sent him to Guatemala. He's in. He's hiding out, according to the complaint. I think a couple are here, and so on.
- [42:04]
Benjamin Wittes
All right, we are going to turn to Abrego Garcia, but before we do, I would be remiss if I didn't mention that we have our ongoing fundraiser going on, it being our ongoing fundraiser. And, you know, for all of you who are Anna Bauer fans, I have really resented that you guys have dominated the fundraiser. And as you can see, you can identify, if you go to givebutter.com journalism, you can identify, you know, who you want, your identity, your contribution to be associated with. And Anna Bauer is just kicking the rest of our asses. And I take this personally as like the head of lawfare. And so I want you to go there and, you know, support me. Don't support Anna, because that makes me feel like, you know, less important. So go to give butter.com/journalism, participate in our fundraiser, but don't give the money to Anna.
- [43:22]
James Pierce
I.
- [43:23]
Quinta Jurec
Wait, I. Ben is the runner up right now. And so my suggestion is going to be for the last I checked, that everyone give to Tyler, our managing editor. Because the last I checked, he had just added himself to the, like, team or whatever, the fundraising team.
- [43:49]
Benjamin Wittes
The zero sum game. Guys, any dollar you give to Tyler, I'm. I'm keeping score.
- [43:58]
Quinta Jurec
But I'm just saying I'm endorsing Tyler for the time being because he. I think Tyler needs some love on the fundraising, but.
- [44:10]
Anna Bauer
Yeah.
- [44:11]
Benjamin Wittes
All right, let's talk Abrego Garcia. While everybody is going to that thing, pressing the Ben button and directing money to me, Anna's going to talk to you about Abrego Garcia, which is really the wildest and wooliest part of the wild and woolly week, right?
- [44:32]
Quinta Jurec
Yeah, it's been a wild week with that case. Ben so, and I don't want to focus too much on what happened earlier this week because we did do an entire lawfare live that everyone can watch that. That Roger and I went live from the Greenbelt Public Library, which was, by the way, a complete furnace. It was so hot. So if you notice that Roger and I have, like, sweat running down our faces, then that is why, because for some reason, it was a lovely library, but that particular room was like 90 degrees. But so beyond that, though, people should. Should definitely watch that live stream where we go in detail on the hearing that was held earlier this week. But to get you up to speed, Ben, recall that last week when we spoke, we. There was just a Supreme Court order that came down in which the Supreme Court said, yeah, at a minimum, the government has to facilitate the return of Abrego Garcia, who was wrongly sent to the Gulag megaprison in El Salvador. And then Judge Sinis followed up by changing her order, which previously said that the government must effectuate his return to now saying that the government must take all available steps to facilitate his return. She then, a few days later, on Tuesday in Greenbelt, had a hearing after she, in an order in which she amended her preliminary injunction, also required these daily status updates requiring that the government tell her exactly what they've been doing to facilitate his return. Over the weekend, when the government was filing these, really, all that we got from them was information that he's alive. And they claimed that he was in the custody of a foreign sovereign. They never suggested that they've even asked for his return, but they started to develop this theory that he's in the custody of a foreign sovereign and that we can't really do much about that. They at one point claim in one of these declarations that the government doesn't have the power to forcibly extract Abrego Garcia from the custody of El Salvador. There's a meeting with the president of El Salvador, Bukele, in which everyone's playing hot potatoes saying, we don't have the power to do this. We don't have the power to bring him back. So it's kind of this limbo that Abrego Garcia seems to be stuck in, in which, on the one hand, El Salvador is saying they don't have the power to send him back. The United States government is saying they don't have the power to do it. So Judge Sinis holds this hearing on Tuesday. And in the interim period, the plaintiffs have also requested a motion for alternative relief, in which they ask for discovery to try to figure out what exactly has the government even done to facilitate his return? Because it seems, it seems like they've done nothing. They've also, in this order or in this motion requested an order to show cause why the government should not be held in contempt. But that seems to be a little bit more vague in terms of the content of exactly what it is they're asking for there. But Judge Sinis holds this hearing that Roger and I go to. There's not much that we learn more factually at this hearing from Drew Ensign, who is now arguing this before Judge Sinis. Drew Ensign also has represented the government in the JGG case. But again, we get a more developed argument from the government in that they are now arguing at this hearing that facilitate just means that they have to remove domestic barriers to Abrego Garcia's return. They think that they have done that and that that's all they need to do. So. And Judge Sinis says, no, you know, there's no evidence basically that you've done anything. So she issues an order later that day for ex expedited discovery as requested by the plaintiffs. She says, you know, she doesn't exactly say the government has to ask for his return, but she says that again, there's no evidence that the government has done anything. And facilitate, at a minimum, requires taking all available steps that the government could take to secure his return. She allows the plaintiffs over the next two weeks to take depositions, to request interrogatories, all of those things. The government then immediately appeals or seeks a stay of her orders and a writ of mandamus requiring her to not issue that discovery motion at the fourth Circuit. And I am about to hand it off to to James to talk a little bit more about that 4th Circuit order. But yesterday we got a response from the 4th Circuit before abrego Garcia even responded to the government's motion for a stay and for a writ of mandamus. And it's a really remarkable opinion from Judge Wilkinson, a conservative judge on the 4th Circuit who was appointed by Reagan. And again, I want James to speak a little bit more about that. But I will just say that if folks haven't read this yet, it denies the requested stay from the government, but also just has some really remarkable language in it and is certainly raising the alarm from the bench about this standoff that is ongoing between the executive and the judiciary over the apparent non compliance of the government in facilitating Abrego Garcia's return. Finally, I will mention outside of the courtroom, there's been some factual development in that Senator Chris Van Hollen from Maryland was able to actually visit with Kilmar Abrego Garcia. He has been in El Salvador seeking to visit with him. Posted photos of this. So we do have confirmation that Abrego Garcia is alive and was able to meet with Senator Van Hollen.
- [51:45]
Benjamin Wittes
The hostage takers showed a proof of life video.
- [51:48]
Anna Bauer
Right.
- [51:48]
Quinta Jurec
And it was honestly, at first, Bukele initially tweeted out some photos, and I was kind of like, is this AI, like, what's happening? But it was confirmed, confirmed when Van Hollen tweeted out photos as well. And then finally, I'll mention before we go over to James, that after this Fourth Circuit denial of the government's request for a stay was issued, the White House this morning tweeted something in which it marked up a New York Times headline and in like, red crayon or red marker about Abrego Garcia. And it wrote, off to the side, he's never coming back. And so, you know, indicating again that, like, there's not a good faith effort here to actually facilitate his return. And I certainly think that this is something that Judge Sinis is taking note of. But, you know, if John Roberts and Amy Coney Barrett, I assume, might also be taking note of these kind of very clearly defiant attitudes and posture that the White House is taking with respect to not just a district court order, but an appellate court order and clear directive from the Supreme Court.
- [53:17]
Benjamin Wittes
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- [57:17]
Benjamin Wittes
All right, James, walk us through the Fourth.
- [57:20]
James Pierce
Circuit opinion so, like Anna, I would really commend everyone to read it. It's not long, it's seven pages. I think it's very moving. It's Judge Wilkinson has a way with words, is a gifted drafter of opinions and can very effectively write for audiences that are not lawyers. I just want to make four points about it and perhaps others have things they would want to say as well. But folks will recall perhaps that Judge Wilkinson wrote a concurrence when this went up to the Supreme Court where he said I agree that the government needs to do more here. At the same time, it's too much to say effectuate. I would say facilitate, which was basically what the Supreme Court ended up kind of itself in its opinion endorsing this opinion doesn't use the word effectuate and it quite clearly says what the government needs to do is facilitate and there has been no evidence that they have done anything thing. And very strongly stated. And sort of the second point kind of I think closely aligned with the first is whereas in the previous iteration when this came before him and the motions panel, he said this is a challenging case. It requires balancing the executive branches, prerogatives and judicial how much authority the court has to intervene says in I think maybe the second paragraph, this is a simple case. This is straightforward. The government needs to take the steps that it can to return this man to the United States. That's what facilitate needs. How you go about it, sort of the logistical things to channel Judge Boseberg for a moment, sure, that's going to take some working out of details, but you can't just come here and kind of hide behind language and words and sort of pretend that you're taking any steps. And I think he makes that. So that's a very, very clear message. And that's sort of the third point, which is, you know, thinking about his audience here, I think his audience is the public as a whole. I think it's very much written to be consumed, as it should be by everybody who should be paying attention to this. I also think, and I think Anna touched on this, it's very much designed to speak to the court, to the Supreme Court. If this gets up there and to say, look, this is a matter where you Supreme Court are at some point going to have to operate and understand that this is not an administration that merits the presumption of regularity that an administration typically does. But this is an administration that is operating in bad faith. And the opinion. Judge Wilkinson's recognizes that there's a limit to what the court can do. But I think also makes the quite poignant point that in the long term, if the administration continues to run roughshod over courts and the rule of law that that is not a story with a good ending, with a happy ending for anybody. Final point I'll say on this is sort of the question of what happens next. As far as I know, the government has not sought emergency intervention of the Supreme Court. It's not obvious to me that they will. I don't think they want an opinion like what they just got from Judge Wilkinson from the court. They might want to go back and engage in some protracted or potentially obstructive litigation in the district court. But, you know, I was heartened and I hope many were to see the Judge Wilkinson almost elegiac opinion. But I think with so much of this, it's. It's hard to game out where we go from here.
- [60:56]
Benjamin Wittes
Yeah. So I have known Judge Wilkinson for 30 years, and I have always thought very highly of him. And he is, as James says, a very, very gifted writer. And Norm, what makes this opinion so striking is that normally that gift is in service of a vision of separation of powers. As he sees it. That is very deferential to the executive branch. And it is just really interesting to watch him, you know, basically say, without saying. All of that turns on the idea that the executive branch is acting in good faith. And I hope we're seeing that here. Right, guys? But there's a, there's a real tone to it that is, you know, very different from everything, anything I've ever seen from him before. And I will note that, you know, unlike there, you know, it will not go unnoticed at the Supreme Court. It did not go unnoticed that he had concerns about the word effectuate. And it will not go unnoticed that he has no reservations about saying this is completely unacceptable. And so it'll be. I think we're going to hear from the Supreme Court very quickly on this because the government is asking for an emergency stay. And I think it's going to be, you're going to see some measure of Jay Wilkinson's influence.
- [62:46]
Quinta Jurec
Wait, Ben, I just really quickly, I don't think the government has yet asked for an emergency stay from the Supreme Court.
- [62:51]
Benjamin Wittes
No, but they asked for it from the 4th Circuit, and it's imagine that they won't, especially because if they don't, then they have to go through this discovery process, which they really don't want to go through. So let us turn now finally to before we leave, the immigration subject to Madawi v. Trump. I'm not sure which of you is planning to take this, but this is a case of a Palestinian who was detained by the Department of Homeland Security following his citizenship interview. Who's followed that? Nobody. Okay, well, I will just say we have a TRO in that case, and we will move on from there.
- [63:46]
Roger Parloff
Can I just highlight a couple belated things about the Fourth Circuit ruling? A small thing. He said he refers to the Judge Sinis as a fine district judge. I thought it was important in this context when people are.
- [64:06]
Benjamin Wittes
And very gracious of him.
- [64:08]
Roger Parloff
Yeah. And especially since he was the one who had sort of the first time around, corrected her and the administration had declared victory. And one other thing was the reference to President Eisenhower, a great man who, after the second Brown vs Board decision, knew that he was going to have to enforce desegregation and it wasn't going to be easy in the schools. And, and, but he, he understood the. The court was supreme. And then just the line. Everyone is, I think the line that just was so bleak and heartbreaking. The executive may succeed for a time in weakening the courts, but over time, history will script the tragic gap between what was and all that might have been, and Law in Time will sign its epitaph. I mean, that sounds like. It sounds like Paradise Lost. You know, it's practically iambic pentameter, and it's. It's grim and it's unanimous, you know.
- [65:24]
Benjamin Wittes
Yeah. And again, this is Judge Wilkinson writing for a panel of three, the other of two of whom I believe are Democratic appointees, and they are reviewing the trial court judge whom they're reviewing. You know, I. Is a Obama appointee with a somewhat exotic last name, which is actually Greek, but it starts with an X. Right. And so it's exactly the type of situation where you have a powerful instinct upon the part of the Trump administration to demagogue the situation and talk about an unaltered elected Obama judge did act. And so it's important in that context that he come out and say, this is a very fine district judge. And by the way, she's right. And so, yeah, all around, I thought, very substantively correct and powerfully written and classily written as well. Okay, let us turn to grant terminations. Another subject is there's no other show you guys can watch where or listen to where we're going to jump from, you know, Salvadoran dungeons to grant terminations. But James is going to do it for us. So let's do it.
- [66:58]
James Pierce
Let's do it. Yeah. So these are colloquially known as the funding freeze cases. We've talked about them on and off over the past few weeks. But just so everybody understands, big picture.
- [67:09]
Benjamin Wittes
Context, the big picture question here is really going to be whether James can handle the word Woon Swakatucket.
- [67:17]
James Pierce
I thought it was Woon Asquatucket, but we'll see. I'm sure somebody out here, you know.
- [67:22]
Benjamin Wittes
There'S a lake near there that's called Lake Chargog, Manchaggog, Chabuna, Gunga, Mog. So like, you know, place names in New England, it gets squirrely.
- [67:34]
James Pierce
I submit after that that I can't, can't keep up with. But yeah. The funding freeze cases are a series of challenges that arose after, in the early days of the administration, both through an OMB directive as well as several executive orders basically directed federal agencies to suspend or pause funding that was then implemented by a whole series of different agencies, which then in turn led to challenges from different entities, states, in some cases, nonprofit organizations and others. And so we've got updates this week in two of those cases, one in the District of Columbia and one in the District of Rhode Island. The one in the District of Columbia is Climate United Fund versus Citibank. That case may ring a bell in some of your minds because not only is it a funding freeze case, but it was also the case that made some news when it led to the resignation of a senior prosecutor from the District of Columbia by the name of Denise Chung. There was reporting that the acting U.S. attorney, Ed Martin, wanted essentially to place a hold on payments that were issuing from the EPA through Citibank to various nonprofit and green banks. These are banks that help facilitate the work by nonprofits that had won EPA grants. And the prosecutor, Ms. Chung, basically concluded that there wasn't, in fact, adequate legal or factual basis to do that and ultimately tendered her resignation, although the FBI ended up issuing a letter and Citibank complied with that and froze the funds billions and billions of dollars to several nonprofits carrying out EPA grants. So this week, in a case before Judge Chutkan, she ruled out a preliminary injunction motion. She granted that motion, basically concluding again, walking through the steps that many are probably familiar with, given all of this emergency litigation, the likelihood of success on the merits, irreparable harm, and then the balance of public equities and public interest that the challengers had shown that the actions were arbitrary and capricious under the Administration Administrative Protection Procedures act, and that it exceeded the lawful authority for the EPA to, with, with no individualized reasoning to just go ahead and suspend the grants and that doing so would cause irreparable harm to the various nonprofit actors, not to mention the communities and areas where they were working. So she entered that stay. There was quickly a notice of appeal filed by the government and the emergency motions panel in D.C. which this month, as some folks may know is Judges Pillared, Katzis and Rao placed a quick administrative stay and asked for briefing from the parties. So the preliminary injunction, which basically had directed Citibank to unfreeze payments that were going out to the various nonprofits that were implementing the EPA grants, that's now all paused pending what the D.C. circuit does with the case. They have on occasion, they being the D.C. circuit has heard argument, as folks know and we've talked about here. So it'll be interesting to see whether they hold argument on that perhaps next week. But as of now, the briefing at the D.C. circuit is not complete. So that's the United Climate Fund funding freeze case. There is also one in the District of Rhode island, which the case, as I'm going to pronounce it, is woonasquatucket River Water Council versus usda. This is a slightly broader case in the sense that it is not just a challenge to EPA funding. EPA is one of seven agencies at issue there. The reasoning of the district court, well, to give the bottom line first, like Judge Kurchatkin, the district court judge there, by the way, a Trump appointee, also granted a preliminary injunction in favor of the nonprofit. Challengers also directed that these various I think it's seven agencies unfreeze or unpause the funding. Finding likelihood of success on the merits for similar reasons that Judge Chutkan did under the administration Administrative Procedures act. Finding similar similarly on irreparable harm. Interestingly at the end also had a short section on why similarly situated plaintiffs should be entitled to the same relief and impose a nationwide injunction. I think one of the questions earlier in the chat or perhaps in the Q and A is kind of, you know, how do all of these nationwide injunctions kind of play into what the court might say in the birthright citizenship case? I think that this will be sort of more fuel or more fodder to that. You know, I tend to think that there are serious efforts just to pause on this point for a moment. There are serious efforts to try to think about when such injunctions are appropriate and ways to channel it so that there's not forum shopping. And then they're just clearly partisan attacks on I like it when they favor my party and I don't like it when they don't. And so I'd like to think that the Supreme Court ultimately is going to undertake something where they think about there are cases where a Nationwide or universal injunction makes sense and there are other cases where it doesn't. But it clearly can't just all depend on policy. So rant on that aside, bottom line there in the District of Rhode island case is a favorable result for the challengers. Preliminary injunction granted. Interestingly and for reasons I don't entirely understand, though I can speculate, the government has not noticed an appeal. Both of those rulings were from district courts happened the same day. The government noticed the appeal immediately in D.C. maybe they they know there's a favorable emergency panel. And as I said, I've gotten an administrative stay. But last I checked the docket before we started recording here, government had not noticed an appeal. Appeal there. I will say there is another funding freeze case out of the District of Rhode island that is up on an appeal to the First Circuit and the government. The First Circuit, they're denied the separate cases is The New York vs Trump 22 state case, 22 states challenging it. The First Circuit did not give the government relief. Maybe the government thought it's not worth it. But that that's never has not seemed to stop this administration. So that's that's where where we stand at this point. Slightly different procedural posture in each. But preliminary injunctions granted in both cases.
- [74:45]
Benjamin Wittes
Excellent. Thank you. All right, let us turn to vindictive attacks on law firms, universities and institutions of international justice. Roger, do you want to do us the walkthrough?
- [75:02]
Roger Parloff
So the four that are fighting we have next week will be eventful. We will have two disposal hearings on dispositive motions. That means mainly summary judgment motions in the Wilmer hale case on April 23rd before Judge Leon, Richard Leon and in the Perkins Coey case, same day before Judge Beryl Powell. And we should be hearing any moment about the hearing for Jenny Jenner and Block Sussman Godfrey is was just filed. They just filed their, they, they won. They, they're more recent. They got their TRO this week on the 15th and their hearing will be May 8th. I guess we're up to nine firms that have folded and they've a bank. They've got they're supposed to provide about $940 million worth of pro bono services. And they're beginning to get a little nervous about exactly what Trump had in mind.
- [76:29]
Benjamin Wittes
I just want to say here, just note this. We have four firms that didn't fold. All of them have TROs. And they're all going to get their disposal. A bunch of them are going to get their dispositive motions next week and nonetheless, we have nine firms that did fold that basically pledged $1 billion in pro bono work in order not to have to win an easy litigation. Go figure.
- [76:59]
Roger Parloff
And I think. I think that's all I have. Do others have things they want to add to that?
- [77:07]
Anna Bauer
Yeah.
- [77:07]
Quinta Jurec
So there was an additional suit that was filed. Related.
- [77:11]
Roger Parloff
Oh, yes.
- [77:12]
Quinta Jurec
Yeah. It was brought by people who have either applied to, like, people who either work at or have applied to law firms that received the EEOC letter, which the EOC sent out to various law firm, I think is 20 law firms in which it requested, like, really detailed information on the associates at these firms that had been hired, including things like their names, their gender, their law school GPA, whether they were hired through a 1L diversity fellowship. The goal being that the EOC was indicating that it was going to open some sort of investigation related to the law firm's Title VII practices or employment. Hiring practices. And so this suit was brought over these EEOC letters in which, you know, one of the claims is that this is ultravirus. This is outside of permitted action by the executive, by the eeoc, because they cite a number of regulations in which that suggest that the EOC cannot open an investigation until charges have been filed under, you know, the standard EEOC procedures. It seems to be the case that there have been no charges that have been filed. These letters were just kind of sent out because they're wanting to get information first. There also is a claim under the Paperwork Reduction act, but essentially that case was filed this past week. It was assigned to Judge Walton, which. Roger James, if you've got thoughts on Judge Walton, then please do chime in. I'm not super familiar with Judge Walton, but that is something that we're watching and following. I will say that these EEOC letters have certainly been a point of. Of concern amongst associates that I've talked to at various law firms, because, you know, it is asking for very personal information about them. And, you know, it seems like the firms that have made deals with the White House, there are lingering questions about whether or not they're going to provide that really personal information about some of their employees to the eeoc. So it's something that, you know, was filed this week, and we'll be watching it.
- [80:04]
Benjamin Wittes
All right. We have one more subject to get through before we go to audience questions, and that is that we have some IPA challenges to tariffs. I am not sure who wants to handle that. Nobody will deal with that one next week. See, you know, things show up on the. On the menu and people put them on so that other people can talk about it and then nobody marks it. And so I don't know who to ask. Let's go to audience questions. Audience. The estimable anonymous attendee has three questions. Which raises the question, is this three anonymous attendees or is it one anonymous attendee asking three questions? First question, see if you can identify his or her style and figure out whether it's all one person. Is there a conceivable point at which the Supreme Court dramatically curbs the number of DOJ appeals so that they hear and allow the circuit rulings to stand? Or is this Supreme Court so eager to elucidate a particular, particular understanding of the extent of executive power that they're going to take every opportunity to hold forth on the matter if they decide not to hear an appeal? What kind of message does that send to the White House? That's a really interesting question and I want to throw it to James first and say, why are they here? Yeah, why not just let a bunch of these lower court shadow docket stuff stand?
- [81:49]
James Pierce
Yeah, so it is an interesting question, but I think there's a procedural point that we have to be attentive to in thinking about how to address it. So on the shadow docket, when a party comes with, with stay litigation that is then before the Supreme Court, whether the Supreme Court wants it or not, the court can find ways, and we've seen that, to sort of to punt or perhaps to return it back. But it is unlike on the merits docket where, which is overwhelmingly discretionary and where I don't know the precise statistics, but the court grants cert, you know, agrees to hear an infinitesimally small number of those cases. So absent some procedural changes to how the emergency docket works, that stay litigation is going to keep coming if the Solicitor General's office is continuing to push forward and try to get the courts to intervene. I do think though that there's the non trivial possibility that the long term, there will be long term reputational damage to the government that will carry over potentially to the certiori docket. Right. Unlike most litigants before the Supreme Court, the US Government typically has a pretty good batting average in getting their cases granted. And that's because the government in the past has been relatively parsimonious and selective in the cases that it chooses to ask the court to intervene. The less and less the court has that sense, and also just as a numbers game, the more in more the government, at least through the cert process, is trying to get the court to take cases, I think the more the government is likely to find an unreceptive audience. All of that said, the last thing I want to say before I'm sure others have thoughts on this. The question did focus on questions of executive power and.
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Quinta Jurec
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- [84:49]
James Pierce
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- [85:17]
Benjamin Wittes
Taxes and fees extra. See full terms@mintmobile.com.
- [85:23]
James Pierce
Frankly the Supreme Court is and in my view should be the end all and be all on deciding these questions of the scope and extent of executive power. So as an example, one of the cases that we have talked about though did not today though I think I mentioned it are the Humphreys executor cases right? Removal from from multi member agencies. I think the Supreme Court needs to decide that whether it needs to do it through emergency or next term on its merits docket. I don't actually have a strong view, but at the end of the day I think the Supreme Court does need to resolve that and I think that's probably true for the non trivial other number of the executive power challenges that we're seeing. But I do think that's going to pose an interesting question of how much the court is seen to facilitate an extremely aggressive Solicitor General's office, while at the same time, I think fulfilling its appropriate role in deciding cases of presidential power, which is what we want the Supreme Court to do, among the other things that it does, but an important thing that it. That it does.
- [86:24]
Benjamin Wittes
Yeah. I just want to say I completely agree with that point. I do think it is voluntary whether to use stay applications as a way of commenting on the merits of things and basically creating precedential quasi presidential opinions out of denials of stays or granting of stays. And I think it's not unreasonable to say, yeah, they should be throwing as much of, you know, they have to answer these questions, but they should do it as much as possible in the regular docket. And if that means inconvenience to the government in terms of some district court getting, you know, temporarily a little bit too much leeway in regulating relations with El Salvador, that wouldn't be the worst thing in the world from my point of view. All right, the second question from the anonymous attendee, and there's a clue here, that attendee is lowercase, whereas anonymous is uppercase in all three questions. So that's a clue that it may be all one person. Can you discuss the potential of Rule 42A2, which provides for the naming of a special prosecutor if the DOJ refuses to prosecute criminal contempt being held unconstitutional? So this question came up the other day. I don't think it is unconstitutional and I don't think it is likely to be held unconstitutional. The, the relevant standard is the Appointments Clause, which says that judges can't appoint or which says that superior officers have to be appointed by the President with Senate confirmation. And but such inferior officers can be appointed by other means. And so I think as long as you know, the special prosecutor is confined to a single case that the Justice Department is conflicted out of. This is a very old statute. It's been around for the statute may not be old, but the common law rule is, is, is old. I just don't think it's going to be a problem. James? Roger, what am I missing here?
- [88:58]
James Pierce
So there are some non trivial arguments on the other side. Steve Ladak actually developed one earlier this week in a post. If folks are interested in digging in more there. There's also a dissenting opinion in a case out of the second Circuit from a few years ago. The case is United States vs. Donziger where there was the appointment of a special prosecutor. Judge Minashi wrote a dissent. I think there's sort of two Ways that you could see a court potentially declaring or determining that Rule 42 is unconstitutional. I'll put my cards on the table. I tend to think it unlikely, but one is through the Appointments Clause that Ben just discussed, you could see a court saying something like, well, even assuming that the special prosecutor is an inferior officer, Congress still needs to, by law, have provided the statutory basis for that prosecutor's existence. And Rule 42A2 is not a statute. It is a federal rule. Now it's backed up by the Rules Enabling act, which allows essentially delegates to the federal courts the ability to create that rule. So there's an argument on the other side, but I, you know, I could see somebody sort of trying to spin that argument out. The second way that it could be determined unconstitutional is essentially the argument that, look, it's hard to read some of the Supreme Court's modern jurisprudence, including in the Trump immunity decision, that talks in quite robust terms about prosecution being the role of the executive branch and saying that really courts just should have no role in that whatsoever. And I tend to agree with Steve Laudock's post that it is hard in some ways to square rule 42 with the robust nature of that language. At the same time, as Ben says, there is a long common law tradition of courts being able to vindicate their own authority and contempt matters. And I just don't think courts, including the Supreme Court, wants to relinquish that. I think, you know, to sort of link this up with things that are happening out in the public these days. Right. In an era where judges themselves are under attack, I think the last thing that the court would want to do is sort of undermine the sense that the court can continue to vindicate its own authority, including, when necessary, through the appointment of a special prosecutor.
- [91:23]
Benjamin Wittes
Yeah. And I would just add that since nobody doubts that, if you look the judge in the face and say, your Honor, I have absolute contempt for you, you're a rotten scoundrel. The judge can point at you and say, you're in contempt. And that's. I forget what it's called. Inherent contempt or, or on the spot contempt. Right. But since that power is undoubted, it seems a little bit crazy to. To say that the power to give you some process before helding, holding you in contempt would be constitutionally controversial. All right, Steve asks, with the increase, increase in nationwide rulings from more local jurisdictions, is anyone in the crew seeing a factionalism developing in the judiciary? What might Trump 2.0 mean, mean for that potential dynamic? So, look, I mean, everybody hates nationwide injunctions unless the one except the ones they like. And you know, when the, when the Biden administration is in power, lots of Democrats think it's absolutely outrageous that people can go to a single district of Texas and where there's one judge and have Matthew Kaczmarek review all kinds of things that have national implications. And when the parties switch, you know, people on the Republican side find it outrageous that you might bring cases in Washington, D.C. which happens to be the seat of government. Yeah, there's factionalism about it. There aren't a whole lot of voices that are super consistent about it. And as James says, the merits of it are really complicated because just to take the citizens the birthright citizenship case as an example, you know, if you don't have a nationwide injunction there, what are you going to do? Are you going to have to litigate it in every jurisdiction in every circuit in the country only to get the same answer? Answer, are you going to have to refile it as a class action which would then represent all members of, you know, all people who don't have birth wouldn't have birthright citizenship under the thing. So there's, there's an efficiency value to resolving some things on a universal injunction basis. But there is also a, you know, it does go against the idea that a case is a dispute between two parts parties. And so I don't like there, there's a lot of room for some thoughtful appellate jurisprudence about when a universal injunction is and isn't appropriate. And I, it does drive me bananas when, you know, a single district judge in a location that's very far from the where the policy seems most relevant, you know, just issues an order that applies everywhere. But there are also nationwide injunctions you really want and wouldn't want to give up. So I don't think it's a, I think it's an issue that people should be restrained and thoughtful about. And I think a lot of people are, you know, really being partizan bomb throwers about this one. I open it up to anybody else who has thoughts on the subject.
- [94:54]
Anna Bauer
This isn't on the substantive issue of nationwide injunctions, but I do think it's worth noting that any factionalism, certainly there's been sort of factionalism along political lines that you might have seen in previous administrations. I think the factionalism that we're actually seeing this time around is not appointed by a Republican or a Democrat. It's were you appointed by Trump or were you appointed by somebody else? That's not exclusive. There are judges who are appointed by Trump who have kind of gone with the majority of judges. But there is a really striking divergence between judges who were appointed by past Republican presidents. Wilkinson is a great example versus judges who were appointed more recently and are coming out of a very pugilistic, let's say, conservative legal culture.
- [95:44]
Quinta Jurec
I would also just like to add that it is very interesting to look at Stephen Miller's past statements about nationwide injunctions that were obtained by America First Legal during the Trump, excuse me, during the Biden administration in which he is celebrating those nationwide injunctions, and then to now look at his current statements about what he thinks about nationwide injunctions.
- [96:11]
Benjamin Wittes
This is a phrase I never thought I would say. But to be fair to Stephen Miller on that, his counterparts on the Democratic side have equally ridiculous dichotomies. I mean, people swing wildly between positions about this, much as they do about whether the filibuster is friend or fiend, depending on what policies they're trying to stop and what, you know, who's in control of the Senate. All right, we got two more questions. We're going to get through both of them. We may run a minute or two late. The anonymous attendee. Third and final question. Can you speculate on why the Trump administration has not filed a SCOTUS petition seeking a stay in the Abrego Garcia case? Have they just decided to thumb their collective noses at just Justice Judges Sinis and Wilkerson? So I don't know that I share the premise here. I assume that that petition is coming, but it wouldn't be just thumbing their nose at them. If they don't get a stay, it would mean that she goes forward with the discovery that she's ordered. So I assume that request for a stay is coming. Does anybody think otherwise?
- [97:29]
James Pierce
I'm a little more skeptical. I think that there are some folks who watch, read Judge Wilkinson, see that he's a pretty good weather vane for the Supreme Court and may not want to get an opinion like Judge Wilkinson's from the Supreme Court. And so the better approach here is, you know, take your relatively anonymous, you know, intermediate appellate court loss, go back, skirmish a little bit more at the district court, hope that the district court does something that you can then try to take up in some other way but not take the chances of getting a, again, a Judge Wilkinson type opinion from the Supreme Court court where, I mean, if we take President Trump at his word, you know, when he says something, well, if the Supreme Court orders it, you know, we'll comply with that. And so it wouldn't surprise me here if, if for that reason the government doesn't seek Supreme Court intervention.
- [98:26]
Benjamin Wittes
Interesting. I agree.
- [98:28]
Quinta Jurec
Oh, go ahead, Roger.
- [98:30]
Roger Parloff
I agree with that. I think that when Judge Wilkinson rips you a new one, as it were, you might leave it at that and not go to the Supreme Court. I also think they feel very confident that they can stall these interrogatories forever with a blizzard of privilege, invocations and non responsive answers.
- [98:54]
Quinta Jurec
I think that probably that's right. I will just say if I'm playing devil's advocate, that that is what you would think if you were working with rational actors who are looking at legal in the way that, you know, we do. Assuming that everyone's kind of calculating all these things in terms of really actually like, oh, what are the outcomes here? What, you know, what are the risks? All of that as you would do in a normal world. But I think that it seems like, and I don't know this, but it certainly seems to there's a correlation between what Stephen Miller is out there saying in the press and then a few hours later, what ultimately ends up happening in the courts. And if you've got Stephen Miller, who isn't a lawyer who seems to be running your legal strategy, you might go ahead and go to the Supreme Court. So like I, it's just, you know, just to say that what, what a rational actor would do in this situation is not necessarily what will happen. So we'll see.
- [100:03]
Benjamin Wittes
All right, last question. Rich asks, do we know anything about challenges to the IRS Treasury DHS information sharing agreement? I will take the universal silence to be a no.
- [100:17]
Quinta Jurec
We will find out.
- [100:19]
Benjamin Wittes
We will find out. We are going to leave it there, folks. We ran two minutes over. We try to start on time and end on time, but sometimes we fail. Thanks to Roger Parloff, Quinta Jurassic, James Pierce, Anna Bauer, and of course the long suffering Anna Hickey who makes this show possible at so many different levels. We will be back next week.
- [100:46]
Anna Bauer
The Lawfare podcast is produced in cooperation.
- [100:49]
Benjamin Wittes
With the Brookings Institution.
- [100:50]
Anna Bauer
You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter at our website, lawfaremedia.org support. You'll also get access to special events and other content available only to our supporters. 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.
- [101:18]
Benjamin Wittes
The war in Ukraine.
- [101:19]
Anna Bauer
Check out our written work@lawfairmedia.org the podcast is edited by Jen Patia 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.
- [101:41]
Benjamin Wittes
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Quinta Jurec
So the next time you need glasses.
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Benjamin Wittes
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Quinta Jurec
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Benjamin Wittes
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Quinta Jurec
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Benjamin Wittes
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