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Foreign.
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It is Friday, April 3, 2026. It is 4:00pM in Washington D.C. and you are watching Lawfare live the trials and tribulations of the Trump administration. I'm Benjamin Wittes, editor in chief of lawfare, here with lawfare senior editors Roger Parloff, Molly Roberts and Anna Bauer, and lawfare Associate editor Katherine Pompilio. And we're actually going to start with Katherine Pompilio today. We've got a lot of ground to cover. But for those of you who are unaware, we just released, I would say, a database of tribulations of the Trump administration in litigation, which is a database of 300 cases in which federal judges have found in habeas cases that the Trump administration has defied or failed to comply with court orders. This database is largely the work of one Katherine Pompilio. She and I have a piece about it that just went up along with the data. All of the data are available to the public public. It is searchable in a variety of forms and you all should take it and do things with it because it is a very interesting collection of cases. So Catherine, tell us about this project and what trials and tribulations it affects and to what extent it is, you know what, what we know about these 300 cases.
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D
Yeah.
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E
So this project was born out of a situation column that you and I wrote together a few weeks back kind of chronicling what federal judges were saying in habeas immigration cases. And I noticed in a lot of them, specifically from in Minnesota, there were complaints about non compliance threats of holding government lawyers in Contempt fines. And so I thought it would be helpful, just for personal reasons, to keep track of all of the cases in which there were issues of non compliance. So this started from Judge, Judge Sch's order in Minnesota, which I think after, I think three orders came out to be 210 separate violations in 143 separate cases. And then from there there was that other list from the Justice Department in New Jersey of 57 cases, I believe, admitting instances of non compliance. So it manually just kept growing and growing and growing. And then as with the technological revolution, we figured out that we could have Claude basically scrape every habeas case throughout the country and flag for us in which potential, in which cases there are potential instances of non compliance. So me, alongside my team, the editorial team, who did heroic work manually, went through all of the data which thousands of cases that Claude presented to us, searched the dockets and found an instance of non compliance. So this tracker is the culmination of that work. It's 300 cases across, I believe, 20 separate jurisdictions throughout the country. The issues of non compliance range from failure to file in any specific case to deportation despite an injunction against deportation or removal. And it was definitely a huge effort, but I think I'm proud of it and yeah, I'm excited to see what people do with it.
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A
Yeah. So how is this data set different from prior data sets that there's some, as you mentioned, that judges have identified, particularly Judge Schiltz in Minnesota. There's some that in New Jersey the government was ordered to sort of self report its violations and produced a number of a list of cases in which it had screwed up and not followed orders. And there are some data sets that are kind of lists of cases that other people have put together. Particularly, I guess Kyle Cheney has been doing it not as a data set, but as a long running Twitter and blue sky. I mean, he seems to know about a huge number of these. So how is this data set different?
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E
Yeah, first of all, I love Kyle's Friday night habeas threads that he does on X. They're amazing. But this data set is different because it is the first. It's non comprehensive. So it's not every, you know, non issue of non compliance throughout the country, but it is the first of its kind that's so spans the amount of jurisdictions that it does. So the case, the lists that you've previously mentioned were either, you know, the ones produced by judges in specific districts are limited to cases either within a specific jurisdiction or limited to cases more narrowly that are assigned to a specific judge, Kyle Cheney and other news reports as they come in are flagging, I think, the most egregious instances of non compliance. But what this data set reveals is that this is a much more widespread issue. And so it kind of creates, it kind of allows us to connect the dots between, okay, there's, you know, 199 instances of non compliance in Minnesota. And within Minnesota, you know, certain judges might not even know that, you know, in se. In one, one judge is dealing with like, I don't know, 100 issues of noncompliance and another judge is dealing with 20. So this really allows you to kind of visualize all of the instances of non compliance throughout the country that we know of so far and identify much broader and larger patterns of the government's behavior in federal court. I think we said somewhere in our piece that this is kind of indicative of less of a one off, you know, excuse of an instance or a mistake and more of a policy, I guess.
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A
Yeah, I think one of the, one of the differences is that we tried to categorize them in a systematic fashion. And every judge describes these violations slightly differently. In Minnesota, they tend to have harmonized around a certain vocabulary. But then you go to New Jersey and they're talking about the violations in completely different terms. And when the government reports on itself, it discusses it in these very exculpatory terms. So what a judge might describe as you violated an order to file this document, the government will report it as filed it 10 minutes late or something.
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E
Right, right.
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A
And so we tried to create a, a uniform way of describing what the failures were and to apply them across jurisdiction. And I think that allows a comparison of like, to like in a way that was not possible before. I will say, as Catherine mentions, the data set is not complete. I'm certain that there are cases that we've missed and we will continue to add cases to it as we, as we find more and as more occur. They happen almost every day, sometimes in substantial numbers, although they're slowing down now that metro surge is over in Minnesota. But I think figuring out like, you know, going through the data every few weeks and finding the additional cases allow will allow us to move this toward comprehensiveness over time. But it, right now it's at 300. There were, it was as, you know, we keep adding cases and we've removed some because they don't meet our standards. But you know, it'll be, if you guys know of other cases, do flag them for us because I'm sure we will have Missed some. All right, and let us turn to the person who had, I think, the worst week, which is Pam Bondi. Anna Bauer, did Pam Bondi text you this week?
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F
She did not. But, Pam, if you want to talk, I'm on Signal. Anna Bauer, 24.
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A
Yeah.
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G
So
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I actually saw a social media post that Lindsey Halligan had been named to replace Pam Bondi, and it took me a minute to figure out that it was a fake. So what do we know? Do we think that Todd Blanche is going to get the permanent nod and be sent up to the Senate, or are we just going to have an acting Attorney General who's one of these acting US Attorneys or interim US Attorneys who's there forever? What do we know about the post Bondi era?
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F
I mean, I think that there are a lot of unknowns here. It has been announced that Todd Blanche will take over in an interim capacity, at least for some period of time. Pam Bondi, it's been reported, will stay on as Attorney General, or will stay on, I assume, in a transitional capacity for at least the next month. So I, you know, it sounds like there will be a kind of period of passing the baton. Blanche and potentially then someone else. There's a number of names that have been in the mix in the public reporting, including Lee Zeldin, Harmony Dylan, Ken Paxton, Mark Paletta. I've seen just a lot of names thrown out there. So it's pretty unclear, other than the reported frontrunner being Lee Zeldin. I think that we don't quite know exactly where Trump is going to land in terms of Blanche staying on or getting someone else to come in. It's really unclear at this point, but, Roger, Molly, are your perceptions different?
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No, not really. I think he will try to get a new. I don't think he's gonna just keep on with the acting thing for as long as he possibly can. I think he will try to get a new ag. And the only reason I say that is because I think he was heartened by how easy it was to replace Kristi Noem. And I think that's part of why he thought, yeah, I'll go ahead and get rid of Pam Bondi because I could. I got Mark Wayne Mullen in so quickly.
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E
Right.
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A
But I think, you know, with Bondi, you have this problem, like Kristi Noem kind of had no allies. Not that Pam Bondi particularly has allies, but she's not, you know, you would have to get somebody confirmed who people would think would. Would be better than her, not worse than her. And I'm I'm like, I'm not sure what the, what, what the political economy of replacing Pam Bondi is, but I
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F
think, but there, I think you have an issue for, for, or at least Trump has an issue in that it's been reported one of the reasons for his firing of Pam Bondi or forcing her out, whatever it was, was that he was unhappy with her reluctance or not reluctance, but inability to successfully bring cases against some of his political enemies. And I think that in terms of, if we're talking about the political economy, it seems like the people who would confirm the next attorney general are maybe going to be a little bit more concerned about some of the politicized investigations than they were the first time around. And so.
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A
Right.
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F
While he wants someone who is more, you know, aggressive in terms of those investigations, he's got this issue of he may not be able to get someone in who, who is willing to do that. You know, so it's.
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G
Right.
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A
And that, that's sort of my point that it, that it's, you want somebody who's going to be more aggressive than Pam Bondi, which is actually hard to imagine. But if you're Trump, you want somebody who's going to be more aggressive and more pliant to your will than Pam Bondi. But you also have to get somebody confirmed through a Senate where you have less muscle than you did when you confirmed Pam Bondi and Cash Patel and who have seen what your, what your behavior with respect to the Justice Department looks like. And so you, there's, there's a difference, it seems to me, between your latitude to get something done in the Senate and the, and what you desire to have done. I wonder if you end up with somebody who's frankly more conventional than like, I don't know that that Todd Blanch could get confirmed right now.
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F
Yeah. And I, and I think that what he, I think that that's, this is why, though, maybe he's looking at people who have already been confirmed. And so it becomes a little bit harder to justify if you're a Republican senator, why you are now voting against the person you already voted to confirm previously.
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A
Right. Roger, do you have thoughts? You have to unmute yourself.
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G
Thank you. The puzzling thing to me is like, what is the job description? Because I never really understood because I never really saw Pam Bondi as the head of doj, partly because when the president is really so directly involved, there's a lot of different paths up to him that don't go through her. You know, I think Calligan had A direct line. I think Ed Martin had a direct line. You have Pulte has a direct line. And it seemed like Blanche was the person in charge and that Pam Bondi was sort of a public relations person, which is an important role in this administration. It's always the most important role. But so I don't really, that's another puzzle. What is the job description that you're filling? And I'm sorry, I'm done.
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F
Oh, yeah. And I think that's right, Roger. And that's one reason why I, I don't think that we will see Attorney General Todd Blanch is because I don't think that Todd Blanche particularly likes being the face of all the things. I think he likes being more so of, you know, he likes being the person who's in control, but not isn't, isn't the one who's kind of getting all of the heat really for it.
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G
That makes sense to me.
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F
Yeah. So I'm, I'm a little bit, not that I know this is just, you know, speculation, but I, I, I would just suspect that we maybe would not see Todd Blanche as AG for that reason because I don't know that he would want it.
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All right, well, we will see. Ham Bondi, we bid you a fond farewell. And one thing the President retains the power to do is fire the attorney General in the middle of a war with no obvious plan for who comes next. Another thing he retains the power to do is issue executive orders. Whether he can enforce them is a different matter. And while you were thinking about other things, this week the President went and issued an elections executive order, and Molly Roberts read it so you don't have to. What does it do?
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D
That is such a good question. I'm not 100% sure that anybody knows what it does, including perhaps the President. So what this executive order basically does is restrict mail in voting, mail in ballots, absentee ballots. And the way it does that is where it gets confusing, in large part because it's kind of sloppily drafted. And I don't know whether that's on purpose or whether that's oops, we did A bad job drafting our executive order. But essentially how this executive order works is the Department of Homeland Security is directed to create lists of eligible voters to share with each state. Now, this is where it gets weird. It doesn't say anywhere in the executive order what the states are supposed to do with those. So that's how it starts. DHS makes lists of eligible voters, gives it to the states. The next part has to do with the Postal Service. The idea is that the Postal Service will also create a list and this appears to be a separate list. And that list is the voters who are eligible to get mail in and absentee ballots and to whom the order says it should transmit them. The order says it shouldn't transmit them to anything else. And that leaves this sort of gap in the middle of the a third list created by the states and transmitted to the postal Service. That's a list of the people they want to send these mail ballots to. And so what's kind of uncertain as well, are these three lists actually supposed to be one list? Is the idea that the states are supposed to get the list from dhs, use it to verify their voter rolls, then send the kind of narrowed version of that list to the people who want to vote absentee or mail in to the postal Service, and the postal Service will maybe cross check it against the DHS list and only transmit to them. We don't know the way it's written is three separate lists. So super confusing. But the idea essentially is the Postal Service is going to. Well, not is going to. Is directed to transmit ballots only to people who are on its list of eligibility and it's going to undertake a rulemaking to figure out how it will do that. And presumably I think logical prediction is that it will be using DHS's lists in order to do that. So the idea is we're going to say who's eligible and then the Postal Service is only going to send absentee ballots to those people we've said are eligible.
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A
All right, so there are two ways to understand a Trump executive order on elections. Oh, well, let's actually, you wrote a piece with Anna a couple weeks ago that was about the expected Trump executive order on elections that was. I don't know how to say this politely, so I'm not going to try. Conceived by a bunch of deranged people. And they were rubbing their hands together, eagerly awaiting the White House, the President signing their 17 page draft QAnon executive order. How much does this executive order look like? The executive order that the 17 page
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D
draft reflected, you said QAnon executive order. The thing with Q anon, I think, is that often when the President doesn't really quite do the thing they said that he was going to do, they pick like a teeny, tiny bit of something he did, and they say, yes, he did it. It's proof. So I think there's, you know, an aspect of this here, too. The answer is that Executive Order was like a wish list fulfilled for any election denier, just like every little bit of everything you would want done to elections was done in that executive order, and it was also done by declaring a national emergency. So, first point I'd make is, no national emergency declared here. And then the second point is this
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is, that's good, because I'm looking outside right now and the sun is shining and it doesn't look like there's a national emergency going on. It feels all.
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D
No clear, clear skies. Not even a single drone, in my view. But so what this does is way narrower. This has only to do with restricting mail in voting, although. And it also doesn't make mail in voting basically impossible. Right. Which is something that the President has essentially indicated that he's interested in. It just makes it much harder to do and makes it so that the president, well, makes it so that DHS would devise this eligible voter list and then that list would restrict who votes via mail. Of course, the election denier's dream of an executive order would make those lists restrict who can vote everywhere, not just by mail, and indeed, might get rid of mail in voting entirely. So it's much less ambitious than what those people wanted. That said, Trump, as he was signing it, said, we'd like to have voter id. We'd like to have citizenship requirements. We're working on it. You would think it would be easy. Not so easy. I don't know that this is actually as easy as he believes either. And there are plenty of litigants who agree, but.
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A
Yeah. So let's talk about some of those litigants. It's like Shelley said, if winter comes, can spring be far behind? You know, if a Trump EO on elections comes, can litigation be far behind?
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Not yesterday or the day before. Litigation was hot on the heels of this executive order. So there are a few lawsuits and there are states suing. And so Oregon and Arizona, we already know are suing, but other states have indicated interest. And then there are also voting groups suing, and then there are Democratic officials suing. So it's already multiple lawsuits. I think the one that's maybe worth Looking at, mostly because there's tons of overlap, is the Democratic officials lawsuit. And so that's filed in the District Court for the District of Columbia, and it argues that the order exceeds the scope of the president's authority, violates separation of powers, and that has to do with usurping power from both Congress and from the states, violates the First Amendment, the Fifth Amendment, and then various statutes, Voting Rights Act, Administrative Procedures act, also the Postal Services statutory authority. So that's essentially what that lawsuit does. And I mean, it's a pretty strong argument for various reasons, the biggest one being that the Constitution gives the states and Congress power over elections, doesn't give the president power. And indeed, what Congress has done, it has legislated in this area. So if you were doing kind of the traditional Youngstown analysis, you would say the president's authority is at its lowest ebb when he's taking measure, measures incompatible with Congress's expressed will. And Congress has acted here. And the executive order cites the Help America Vote act and the National Voter Registration act as if a should bolster it. But in fact, those acts contain provisions that kind of conflict with what the president is doing here. So that makes his argument that he can do it less strong, not stronger. And one thing that this lawsuit focuses on is the idea that Trump is doing this because he's frustrated that Congress won't pass the SAVE Act. So you look at what does Congress want to do? We know that's what they don't want to do. He's that. That's why he's doing it. Otherwise he wouldn't be stepping in.
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A
So. All right, Anna Bauer, I am bitterly disappointed with your friend Judge Boulay in Fulton county, because I was expecting a ruling by now, and we don't have one on this. Fulton County. Give us our stuff back. Rule 41 motion. What's going on? Why isn't he complying with the needs of lawfare Live's schedule and getting things done before Friday?
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F
Well, we. We don't have a ruling, and we knew that we want to get a ruling until at least today, because on Monday following the hearing, remember, the hearing was on Friday, and then on Monday, the county followed up with to that hearing with an additional motion in which they sought to supplement the evidence in the case. And remember, as we discussed last week, Judge Boulay. Boulay, not Bouley. Judge Boulay denied the county's efforts to have Hugh Evans, the FBI special agent, testify at that hearing. He quashed a subpoena. They had issued. And that made things at that evidentiary hearing quite difficult for the county to elicit evidence related to the timing of the investigation and things that the judge really seemed interested in, which was this argument that the search warrant was really just pretextual and a way to kind of get materials that DOJ Civil Rights Division had been unable to get through its civil litigation. So having been kind of unable to elicit any of the evidence of the timeline at the hearing, they followed up on Monday with a request to, for DOJ to, at a minimum, you know, say when the investigation started, when the criminal referral came from Kurt Olsen, things of that effect. Because they wanted to be able to supplement the record with that information, the judge ordered them to meet and confer and report back. We heard yesterday, I believe it was, or potentially the day before, that the negotiations between the parties had failed. DOJ is refusing to produce any of that information. And then today we got a response filing from DOJ in which they oppose the county's request for information, saying that, among other things, it's privileged. Keep in mind that the main things that the county is wanting here is information about the timeline of key events leading up to the search warrant. I wrote in a piece this week that even though DOJ is claiming now that that information is privileged, Harmony Dhillon has previously made public statements related to the timeline of the investigation. So, you know, to be determined whether the county will ultimately come back and, and point to some of those public statements. But for now, we're waiting on Judge Boulay to resolve this issue between the parties on the county's additional motion. So that's why we don't have a ruling. Ben, you're muted.
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A
Well, I just want to say to Judge Boulay, get on it. You can't. You shouldn't be holding us up. We expect our district judges around the country to keep things moving so that we have stuff to talk about, consider our needs. Judge Boulay, that's my amicus brief. Roger, One group of people who did consider our needs for content this week was the justices of the Supreme Court, who held a birthright citizenship argument, and John Sauer, who, the Solicitor General who addressed the court in a voice of unusual raspiness. How did the argument go relative to your expectations of it?
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G
Well, I, I, I admired. I, I think both of the advocates were very good, and it was a, it was a interesting argument. I think, you know, that the judges want. I, I think in the end, they were able to make, you know, a more, make this sound a More plausible argument than many people thought. Nevertheless, I'm with the big consensus of people that think it's going to be 8 to 1, 7 to 2, possibly 6 to 3. But in favor of the petitioners. I mean, the. Against the Executive Order. It. It. You know, I don't know. We probably don't want to. I'm a little cowed by the fact that so much has been said by people that are, you know, true Supreme Court experts on this subject. But, you know, the key language, of course, 14th Amendment is all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States. So it's that and subject of the jurisdiction thereof that's in play. And the key precedent was Wong Kim Ark of 1898, which seemed a lot of people thought that settled it. And that was a Chinese man. I won't go through all of that, but they sort of made a go of it. The Wong King Arc case does use the word domicile a number of times. And his parents had been domiciled in San Francisco. And so Sauer was using that and saying, see, we're returning to the original interpretation. You have to be domiciled, and that can't include visitors, it can't include illegal aliens, as the Executive Order puts it. And also there has to be either sole allegiance to the United States or primary allegiance to the. He imports a lot into that term. And a lot of it comes from techniques that, you know, conservatives aren't, say we're not supposed to use anymore, like legisl. You know, one line from Senator Trumbull becomes a crucial in congressional debates, that sort of classic legislative history cherry picking that we're not supposed to do. So, you know, I don't think there's any way to pull it off, but it was an entertaining and skillful argument.
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A
Yeah, the argument was almost entirely about the application of Wong Kim Ark because unfortunately for the administration, the actual text of the Constitution doesn't say anything about domiciled. It says subject to the jurisdiction. And, you know, somebody who's born in the United States, who can be whisked away by ice, who can be arrested if he commits a crime, who is not protected by diplomatic immunity. It is very hard to argue within the. Within the common sense understanding of the word jurisdiction, that that person is not subject to the jurisdiction of the United States. I counted three votes for the idea that there's even a subject. A question to entertain here. I thought Gorsuch was a little bit intrigued by this domiciled Argument, but I don't know that. I don't know that it's easy to pin down where he's going to come down, and I don't know that it's easy to pin down where Clarence Thomas is going to come down either. The only one who really showed his hand as sympathetic to the administration's position that I could discern was. Was Justice Alito. Do you have the same impression?
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G
I actually, you know, I. I actually, I didn't know where Alito was going, but at one point, I thought he was trying to help the ACLU lawyer Cecilia Wang by saying the reason that it says domicile all over the place is because at that time, it was illegal for Wong Kim Ark's parents to apply for naturalization. There were racist laws that said Chinese are just ineligible. You can't be naturalized. And he thought that the judge was mentioning domicile a lot just to sort of.
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A
To emphasize that it was, in fact, possible to be. For a Chinese person to be domiciled here legally.
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G
Yeah, yeah. He wasn't making it a part of the decision. He was sort of easing the public acceptance of this surprising state of affairs, and especially in a racist era. And. And Wang didn't understand at first. And then Amy Coney Barrett sort of explained to her, no, Justice Alito is trying to help you here. So I don't even know where he's coming down. I thought Thomas was the one that the government had the best chance of getting.
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A
Molly, Anna, do either of you have thoughts on the argument? All right, let us use Wong Kim Ark and Birthright Citizenship to transition into our immigration roundup. We haven't heard the name Mahmoud Khalil in a while. Roger. What has he been up to? And what court does he find himself in front of these days?
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G
He's at the Third Circuit, and he lost a case there maybe a month or two ago. And so he is now seeking rehearing en banc. And that's. He lost.
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A
Including Judge Emil Bovey.
- [42:17]
G
Well, that's the issue, whether it should include Judge Emil Bovey. He was, you know, remember the Columbia protester who was one of the five key ones. Protesters, Pro Palestinian protesters who were targeted in various ways to be detained and deported. He's an legal permanent resident, and so. And it's an important case because the loss will be, of course, not just him. It was done on a jurisdiction. What do you call those? Jurisdiction. One of those provisions that pulls jurisdiction away from the courts in immigration cases. And so if that is upheld, it will be a problem for a lot of, of immigrants. So it's an important appeal. And he also filed a motion to have Judge Bovey recuse himself and the government. We know the government opposes that, but says they see no reason for it, but they will defer to Judge Bovey. The reasoning is that he was at the very top of DOJ at the time of the decision to target these five people, which was a joint decision between DHS and doj. And Bovey was at least partially involved in some of the activities targeting Colombia protesters. I don't think Khalil knows how closely he was involved in him, you know, targeting himself, but they, they did. This is. Some of it is from reporting, some of it is just obvious. Some of it is stuff he admitted in the Senate Judiciary Committee hearings. I think he reportedly, he was one of those who pushed prosecutors to obtain a membership list of something called the Columbia University Apartheid Divestment Group to give to immigration agents. And an issue in, in Khalil's case is the government is claiming he was a leader of that group. He denies that he was. But anyway, there's, there's more than the usual. There, there's some stuff there. And of course the, the, the, the standard is 28 USC 455, a partiality, if the judge's partiality might reasonably be questioned knowing, you know, in a. Once you know all the facts. There's also a little bit of another one 455 that says if a judge, quote, served in governmental employment and in such capacity participated as counsel, advisor or material witness concerning the proceeding or express an opinion concerning the merits of the particular case and controversy. Although Khalil's attorneys admit that only Bovey knows that. They, they, they can't say. So it's a non trivial motion.
- [45:55]
A
No, it's, it's a, it's, it's a real issue.
- [45:58]
G
Yeah.
- [46:00]
A
All right. Speaking of real issues, there have been a, we've discussed a number of times these searches, ICE searches of homes without judicial warrants. And we have observed that it is hard to see precisely how that ends up getting litigated. Now it is getting litigated. How did HU get into court and are they going to end up having standing to, or deemed to have standing to raise this issue?
- [46:40]
G
Yeah. So it's six plaintiffs. Three of them are U.S. citizens who had agents barge into their homes. The other three are the spouses of those three citizens, all in Minnesota and you know, battering rams, really, really scary stuff. Children, you know, hiding in closets, detained for periods. Then finally Released. One of them after release is rearrested in violation of the court order releasing them. But I do think standing will obviously be a key issue. And the issue here is there was no judicial warrant. So it's this. All of these searches were based on this secret May 12, 2025 memo. It was finally revealed by a whistleblower in January, eight months later, that authorized this, these sorts of searches on the basis of an administrative warrant. Apparently it's ultimately based on sort of a very split 8th Circuit ruling not in an immigration case, but involving an escaped prisoner. It was a 5, 53 ruling, so no majority ruling at all in that other case. And interesting thing about it is that one of the defendants, the key defendant is Mullen, of course, now instead of Nome, head of dhs, but also the Federal Law Enforcement Training center known as fletc. Our colleague Michael Feinberg tells me that's the pronunciation. And one of the people that taught there is apparently one of the is cooperating with the plaintiffs here. He says that he was forced to teach this and the two prior people before him had both been fired for refusing to teach it because it was so obviously to them illegal. But yeah, the hurdle will be this Lyons decision, I think, which we've heard about in Perdomo, Vasquez and other cases where how, you know, yes, they, they had their home barged in, but will it they have their home barged in again using a non judicial warrant. And if that is the standard, which seems crazy, but it might, it might be, it might be a hurdle. So I don't know how that'll play out.
- [50:08]
A
All right, Molly, let's talk about dismantling federal agencies or in this case, federally supported agencies, partially like NPR and pbs. Big Randy Moss decision this week. That seems like a pretty total win for at least for npr. Although what do we know and how big a deal is it?
- [50:41]
D
Yeah, I would say it's a total win for NPR and PBS in that Judge Moss found that the executive order that directed federal agencies not to fund them was viewpoint discriminatory. Textbook First Amendment viewpoint discrimination would have been, I think, difficult for him to find differently. It's one of those examples of you wouldn't think an administration would straight up say we're doing viewpoint discrimination. And yet this one almost does in multiple cases and contexts. So in this one, there was a fact sheet issued along with the executive order where the White House was going after NPR and PBS saying that they fueled left wing propaganda with taxpayer dollars. And then they gave examples and the examples were An NPR article about queer animals and a PBS documentary about a transgender teenager. It was just really, really clear. They were saying this is, these are left wing viewpoints. And that's exactly why we're doing this. Executive order. So he found that, no, you can't do that. He found that part of the case was moot, which was the part having to do with the Corporation for Public Broadcasting, which no longer exists after, at Trump's urging, Congress didn't appropriate any more funding for it. So it's been dismantled now. It had kind of a ghost crew at the time that the hearing for this was taking place, which kind of gets to your question of how big a deal is this? Well, it's a big deal in that the federal agencies have been directed not to do this. And so if Congress ever tried to restore funding to npr, PBS couldn't. On the other hand, because Congress clawed back all this funding for the corporations, Republic Broadcasting, NPR and PBS already didn't get all that money. They're not getting back the money they lost. And they've started to figure out how to fund themselves differently. So if Congress wants to give them more funding in the future, Trump can't say this ruling makes it very clear. He can't say they can't have it. But that doesn't really make up for what has already happened, which was quite a blow.
- [52:57]
C
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- [53:57]
D
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- [54:16]
A
Speaking of people who had a good week in court, Anthropic had a a particularly good week in court largely because the government didn't show up. And I'm perplexed by this. Last week on Wednesday or Thursday, there's an oral argument in Judge Lynn's court in which the government says if you're going to rule against us, can you impose a five day or a seven day stay so that we can have an emergency stay order to the ninth Circuit stay petition to the ninth Circuit. She obligingly does this without an objection from Anthropic and then the government doesn't bother to file the stay request, at least as I understand it. And so now the government the stay has gone, the order has gone into effect or Judge Lynn's injunction has gone into effect. Everybody can do business with Anthropic and they've just filed a regular old notice of appeal to the 9th Circuit. So first of all, do I have that right? And secondly, if so, what was the point of the whole we need to you to file an emergency, you know, a seven day stay so that we can. Was that just a shadow dance?
- [55:43]
G
It was very puzzling. So the her injunction was issued last Thursday and so it ran out yesterday or this morning at midnight and they filed a notice of appeal yesterday. But no emergency motion for administrative stay or emergency stay, at least not as of the start of this taping. And so it took effect this morning. And it's very important for Anthropic now it doesn't remember there are two statutes and there are two cases and so there's a statute this doesn't impact and where Anthropic is trying to stop the other statute. We can talk about that in a second. But what this does do is remember there were one of the statutes is 10 USC 3252. But even worse than the statute that's is they issued these directives on Twitter or Truth Social for Trump and Twitter for Hegseth and in those Hegseth purported to impose a secondary boycott on Anthropic and say, you know, they weren't going to do business with any private contractor who did any business with Anthropic and that would have been catastrophic. And they had for Anthropic. And you know, it's one thing not to have this Some of these very sensitive DoD contracts, which is what 10 USC 3252 is about. But it's another to wipe out all of their private contractors. And so that goes into effect. And, and also at that hearing, the, the government lawyer backed down publicly from that and said, well, there was no. Yeah, I know he wrote that, but there's no authority for doing that. Authority for doing it. So that's a pretty big victory. Now the other thing though is there is another supply chain risk statute 41 USC 4713, which is you need to challenge that in the D.C. circuit by statute. And the D.C. circuit panel has not acted. They had asked them to rule by March 26th actually. And so that panel, which is two Trump, I think it's Wilkins Rao and I think Katzis.
- [58:48]
A
Yes, it's Katzis.
- [58:50]
G
Okay. Has not done anything yet. And now we wouldn't ordinarily expect them to have argument because it's an emergency stay type request. But you. I'm beginning, I don't know what to expect because sometimes, you know, those people have also acted by inaction. Sometimes, you know, we have this JGG case that they have blocked for months and months and months by inaction. That's the blocking Boasberg from doing his criminal investigation. So it's too early to think that something like that could happen. But I do hope they act.
- [59:43]
A
Yeah, I mean it's a funny situation for anthropic because they've won quite decisively the one matter that has been decided and they haven't lost the other one. There's just no movement on it in a fashion that does make you scratch your head.
- [60:09]
G
One other sort of interesting thing is that they've briefed the two cases a little differently. And to begin with, remember there was a First Amendment claim, due process claim and then sort of a it just the statute just doesn't fit claim and they've flipped those in the D.C. circuit and it's part of it is that it is a different statute. And I think it's a little clearer that they didn't follow what they were supposed to do. There's like a 30 day notice provision that they didn't follow. And then when it got to the reply they just like said they just focused solely on the statute. And by then of course they knew it was the conservative panel. And I think they decided this is our best bet with them.
- [61:04]
A
Yeah, I mean, you know, you have a very clear cut set of statutory violations and you don't get into that whole. Do you Defer to the military on the Secretary of defense, on a judgment in national security. Right. It's, it's a technical set of violations of clear procedural requirements. I think it's a better. I, I actually thought it was a better argument in the Ninth Circuit, too. But since they won all of the arguments in the Ninth Circuit, you don't really have to prioritize. All right. It's been a big week in the politicization of the DOJ. Even before we, we bid farewell to Ms. Bondi, we have a new class action suit from fired FBI agents. Which ones are these and who, who is included in the class?
- [62:06]
G
So you may know these people better than me. They are Jamie Garman, who is actually a former ausa, and then after that, she was in the FBI for eight years. A lot of medals and awards. Blair Tolman, a 14 year veteran. Michelle Ball, 10 years. And they were all fired between October and November of last year. And the, the class would be people who are not subject to FBI agents who were fired who are not subject to merit System Protection Board, which is a real complicated determination of who is and who isn't. But I think that there's at least 50 of them at this point and that the number is increasing. It's very interesting. The defendants are Bondi and Patel, and not just in a, you know, formalistic way. I mean, it's very much bonding.
- [63:14]
A
Their personal conduct is at issue.
- [63:17]
G
Yeah, yeah. And, and if this, you know, gets to trial, it'll be interesting because it's really telling the story of this sort of outlandish politicization of something that is very clearly not supposed to be politicized. And the, you know, the facts are very open and, and shut, really. I mean, as recently, this includes, you know, Blanche's statement from last week, you know, when he was at, at pac. When it comes to the FBI, director, Patel has cleaned house there, too. There isn't a single man or woman with a gun, federal agent still in that organization that had anything to do with the prosecution of President Trump. So, you know, it doesn't get clearer than that. It's First Amendment, Fifth Amendment, ultra virus, meaning there's no statute permitting what they're doing and they seek reinstatement, declaratory judgment, that sort of thing. They're all Mar a Lago or Arctic frost, the January 6th investigation in case. So by that I mean of Trump.
- [64:37]
A
Yeah, I think it's a certifiable class. It's discreet. You can define it really precisely. It's, I don't know Sometimes class certification gets complicated, but this isn't like anyone who's ever smoked a cigarette.
- [64:56]
G
Yeah, and this is. Now, this will be before Jia Cobb because it's a related case to two other FBI cases. We had one last week we talked about, which involved two John Does. And then sometime back, you remember there's one with Brian Driscoll and two others that is also before her.
- [65:17]
A
All right, Judge Boasberg, Roger doesn't seem to have thought better of his decision quashing the grand jury subpoenas to the Federal Reserve in the Jerome Powell matter. I have only one question, which is why does he not repent his sins?
- [65:37]
G
Yeah, well, he said. And this was just today, he said, there's a high standard for reconsideration, but I need not hide behind that standard to dispose of this motion. And then the main thing the government wanted to say was that was a timeline thing, which he got right the first time anyway. But they wanted to stress that, remember, there's a meeting where Trump castigates the U.S. attorneys for not going after his enemies enough. And the grand jury subpoenas to. To the Fed went off the next day. And they wanted to emphasize. But. But the invest. But Janine Pirro's investigation, or the grand jury, was convened, I think, the day before Trump castigated the U.S. attorneys. And so he writes, the government fusses with a timeline. It wants to make sure the court knows that it first opened this grand jury investigation into a prominent target of the President's. Then the president berated a gathering of US Attorneys for not prosecuting his opponents more aggressively. And only then did it issue these subpoenas. The court is puzzled about why the government thinks it helps its case to quibble over the details of the president's demanding that prosecutors target people he dislikes.
- [67:16]
A
Judge Boasberg. Chief Judge Boasberg. Well done. It's a good, pithy. This is a great example of judges not overwriting. There's no rhetoric there. It's just. I'm a little confused why you think this helps. Excellent. All right, Anna Bauer. This is a big week for Frog Embryo Lady, AKA Ksenia Petrova, who joined August Company. The August Company of Jim Comey, Letitia James, and Kilmar Abrego Garcia. What is the club that all four of them are now members of?
- [68:13]
F
Well, wait, I. So I don't know that the court ever got so far in the James and Comey cases as allowing discovery. Discovery on vindictive.
- [68:23]
A
You're right. So. So. So she and Kilmar Abrego Garcia are like advanced members of the club, basically.
- [68:31]
F
I, I, although I, I'd have to think about what other cases. Yeah, but it's at least a club of two, a very elite club of people who have shouldered the burden of showing vindictive or selective prosecution to the extent of extent that a court has allowed discovery to go forward on that question. Now, this is so remember, this is the frog embryo case. Of this you can't help but, unfortunately, you can't help but laugh when you say the frog embryo case, even though it is not a laughing matter.
- [69:09]
A
The case is not actually funny. It's just that when you think about smuggling frog embryos through customs, it becomes funny.
- [69:17]
F
Exactly. It does become funny, although it is not funny the larger context of it. This is Ksenia Petrova, the Harvard researcher who is accused of smuggling frog embryos through Logan Airport. And this case started, if people remember, with the revocation of her visa. And Petrova is a Russian national who expressed fear of being returned to Russia because of her activities related to protesting the war in Ukraine. Also, as I mentioned, a researcher at Harvard who, after her immigration visa was canceled, wrote a very popular op ed in the New York Times, challenged her immigration detention and that decision through a habeas action. And there was a lot of publicity around her detention at a time when the Trump administration really seemed to be taking a stand to try to say that they would not be reluctant to cancel the visas of international students. This was kind of, you know, in the early days of the administration when there was a lot of cancellations of international student visas. And subsequently, past all of this publicity, Petrova ended up being criminally charged. And the government, as a part of her habeas proceedings, tried to argue that the criminal charges kind of mooted out the habeas proceedings. So there's this interrelationship between the initiation of the criminal case and the habeas proceedings and all of that timing and those circumstances around the publicity. All of that really plays a central part of this order that was issued by the magistrate judge on Petrova's effort to get discovery on the vindictive or selective prosecution, in which the magistrate judge recounts all of those things, including public statements by the U.S. attorney that were made about that New York Times article that I mentioned, the op ed that Petrovo wrote. And the magistrate ultimately finds that Petrova has showed some evidence of vindictive or selective prosecution sufficient to get discovery on the matter, which includes, you know, a number of requests for documents, but also the grand jury instructions that were given to the grand jury regarding the smuggling charge. So. And the Abrego case, I will mention is cited in this order regarding the public statements that were made in that case. The public statements were by Todd Blanche regarding, you know, the interrelationship between the habeas proceedings and the criminal case. But it again, been an elite club here, and we will see what happens because this is the magistrate judge. You would imagine that probably the government is going to seek to appeal to the district court judge, but we will see what happens. And we'll be watching for more frog embryo action.
- [72:51]
A
We call this the S and V Club, the selective and vindictive prosecution club. It has two full members, Kilmara Abrego Garcia and Ksenia Petrova, and two, I would say, junior members whose briefs are very powerful but have not actually prevailed yet. Jim Comey and Letitia James. And of course, those two may never get to join the club fully because they have won their cases on other grounds, like the people who filed those motions were illegally appointed in the first place.
- [73:35]
F
Well, in the case of Letitia James, two grand juries have subsequently declined.
- [73:41]
A
Right, exactly.
- [73:42]
F
Bring charges.
- [73:43]
A
So she may never get a chance to join the club, but we will. We're rooting for their memberships.
- [73:49]
G
And I think Jerome Powell should get an honorable mention as well. I mean, he's not quite formally.
- [73:56]
A
He hasn't even been indicted yet. I don't think you can join unless you've filed a selective or vindictive prosecution motion. All right, throw back to the good old days when we used to use this show to talk about the prosecutions of Donald Trump back when Lawfare Live was young and innocent. People may remember the civil litigation over January 6th in which Trump is a civil defendant. We have a ruling in that case, at least a ruling on some portion of that case. Roger, what did Judge Mehta do?
- [74:39]
G
Yeah, so now we need to place this in context. This is the civil. It's a bunch of civil cases, some brought by congressmen, some brought by police officers, one brought by the widow of Brian Sicknick. And the way back in February 2022, Judge Mehta. Amit Mehta. Amit Mehta denied a motion to dismiss and decided that there were a lot of not official acts that the. The. The president does enjoy immunity for civil liability for his official acts that we've known since 1982. But he already held that most of the acts that were being alleged here did not fall under that. And he also overcame the claim that. That his. That the claim of incitement was that his speech at the ellipsis was protected by First Amendment and couldn't be considered plausibly considered incitement. And that was upheld by the DC Circuit. And now we're going forward again after discovery. And so it's sort of a motion for partial summary judgment. And he's basically finding the same things. The ellipse speech. Most of the ellipse speech can be considered. I mean, the jury will still get a chance to decide these things. But he is saying there's a good case that these are not official acts, the outreach to state and local officials, not official acts. He does find that there were some. Actually, some things that I considered very incriminating that he did find official acts. I was a little surprised what the most important tweet, the 2:24pm tweet. So this is 11 minutes after rioters penetrate the Capitol. And he says, Mike Pence didn't have the courage and so on, which really inflamed the rioters who were listening, who were, you know, had their phones and. And when they heard this also, he. But he does exclude that 601 tweet. Go home with love and in peace. Remember this day forever. The Rose Garden video. We love you. You're very special. He excludes all of those things. Frankly, I'm not exactly sure why, but all of the campaign speeches leading up to it for months and months, the baseless lawsuits, the fake elector scheme, all of that comes in, obviously, the DOJ discussions, that's excluded on the basis, you know, basically the Supreme Court already decided that that was. Those were official acts in the context of the criminal case. The Oval Office meeting with Michigan state legislators. He does exclude. Anyway, they also re raised the First Amendment question based on an intervening Supreme Court case. He said that the counterman case, he rejected that argument. That counterman didn't really change anything. Also, since his first ruling, Cassidy Hutchinson testified, and he said that, you know, her testimony really strengthens the argument that this could be incitement. Her testimony about, you know, the magnetometers, him saying, get rid of the effing magnetometers. They're not here to hurt me. So that helps the incitement argument, but he also certified that for interlocutory appeal. So now a number of these cases will presumably be. Maybe not all of them, but a number of them will presumably be stalled again while that goes up on appeal. So there's also now a Westfall act claim, which means the DOJ has raised a claim that he has Immunity as a federal officer. This is independent from being president. And you would have to pursue him under the Federal Tort Claims Act. The judge rejected that as well. But I have the feeling that if this goes to trial, maybe Molly and Anna will get there for the trial. But I. I don't think I'm gonna make it. You know, I mean, I've been to the mountaintop, but I'm not gonna. I may not get to the point.
- [80:04]
A
I may not get there with you.
- [80:05]
G
Yeah.
- [80:06]
A
Very good, Roger. All right, Anna, speaking of statutes that may not get there with you, the Presidential Records act, the Office of Legal Counsel. One of the benefits of having your own Office of Legal Counsel if you're the President, is that if you don't like the Presidential Records act, you can call up an opinion to have it declared unconstitutional. Remind us why the President cares so much about the Presidential Records act and remind us, and what did OLC do to it this week?
- [80:54]
F
Yeah. So the President has a interesting relationship with the Presidential Records act because it is both the thing that kind of initiated his criminal charges, it's the reason why in a criminal investigation was initiated against him related to allegations that he unlawfully retained classified documents. But it also also is a statute that he raised in his defense in that case. And just for people to recall, the Presidential Records act, one of the post Watergate statutes that was enacted back in the 70s related to retention of presidential documents.
- [81:43]
D
It.
- [81:44]
F
It basically specifies that certain documents, when a president leaves office, goes to the custody of the National Archives, and then after a period of five years after the president leaves office, some of those documents become subject to foia. And in the classified documents case, it was because the National Archives noticed that a bunch of these materials they were supposed to have were missing. And they tried to work with Trump for many months to try to get these documents unsuccessfully in some cases. Obviously, it's because of that kind of back and forth with the National Archives that ultimately led to the investigation of Trump and then led to his indictment for unlawful retention of classified documents. Now, after that case was indicted, Trump then raised the Presidential Records act in a very convoluted and implausible argument. And reading of the statutory text, raised the Presidential Records act as a reason that he said, you know, vindicated him, that he had authority to take these classified documents from the White House because of the pra. Now, all of that context set aside, it is as of January 2026 of this year, it was according to the PRA. And that five years after you can leave office, it became time where people from who wanted to FOIA information that were with the National Archives from Trump's first term could start submitting those requests. So that happens in January. Fast forward to now. April. April 1st. It's not. It was on April Fool's Day that this was released, but it is not an April Fool's joke. OLC has now released an opinion in which it says the Presidential Records act is actually unconstitutional Congress. And a really like, extraordinary opinion because of some of the statements and interpretations that it's making. It says Congress does not have the authority to regulate the president's papers because the presidency is not a branch that was created by Congress. It's a coordinate branch. It is in an office that was created by the president. It was established by the Constitution that the regulation of papers doesn't fall within Congress's oversight power because the legislative purpose is too broad, basically, that the PRA requires everything, all of the president's documents, with no oversight, a specific oversight objective. It's not within the Necessary and Proper Clause because it restricts the president's power rather than expands it. You know, it's not within the spending clause. It kind of goes through all these reasons and then also astonishingly says basically that the Nixon case, which is a case related to a predecessor statute to the PRA that also was enacted as a post Watergate reform, that case was basically decided wrongly and says for most of the history of the United States, the president's papers were kind of considered his private papers that he could take with him after office and kind of do with it as he pleased. And, you know, again, it's just a really incredible statement from the olc. Like, I've been. Roger, Molly, I'd be curious for your thoughts if you read it. But in addition to it being a real, in my view, perversion of
- [86:09]
E
the
- [86:10]
F
case law and constitutional text, it also is just so ironic that the President, as a private criminal defense or a private criminal defendant, relied on this statute that now his olc, which is under a DOJ that is now being led by his former criminal defense attorney, is saying is unconstitutional. Like, it's just so. I haven't been able to stop thinking about it in the days since I read this opinion because it's just so, like, what is happening.
- [86:48]
A
All right, speaking of what is happening, let's talk about. This is outside of Lawfare's area. But the stuff is so much fun that we're just going to treat it like it's, you know, I guess if anybody else bulldozed the White House. It would be considered a national security matter. But we have Molly's significant developments on
- [87:13]
B
the
- [87:15]
A
unilateral reconstruction of the White House by the President. And Judge Leon has used a lot of punctuation to discuss it, as is his want. So, first of all, how many exclamation marks were there? And secondly, what did he do?
- [87:33]
D
I'm gonna need a fact check from Roger. How many were there? 22, 23.
- [87:38]
G
Am I totally wrong? 18. 18. But 18 out of 35 pages. So very good density over. Over 50% density.
- [87:48]
D
I think that's a better metric for sure.
- [87:50]
A
Yeah, it's definitely the right metric.
- [87:52]
G
Is.
- [87:52]
A
Is exclamation marks per page. And, you know, if you're. If you're averaging one per two pages, that's pretty good for Judge Leon, I think.
- [88:04]
D
Yeah, no, definitely.
- [88:05]
F
And they were.
- [88:06]
D
I was going to say used. Well, I don't know. They were used with spirit, as always. There was a please, exclamation point, which is a common one in his opinions. And it opened with saying that the President is the steward of the White House, but he is not the owner. Exclamation point. So, yeah, it may sound from those quotes, he did not side with the President on this one. So Judge Leon had denied an earlier request for a preliminary injunction that the National Trust, who's suing here had made, and that was on the grounds that the National Trust had invoked the Administrative Procedure act, and that wasn't the right thing to do because the White House is not a federal agency. So this time, he granted the request for a preliminary injunction. He ordered a halt to construction, finding that Trump lacks the power to do this under any statute available. Basically, there were a few statutes, a few ultra furious claims, and he went through all the statutes and said, none of these let the President do this. You know, one of them had to do with how the law lets the President spend. It gives him an annual budget to spend on the White House's care, maintenance and repair, and incites air conditioning and heating as lighting. And he was saying, oh, no, I can tear the whole thing down and as Judge Leon put it, build a modern skyscraper in its place. And he said that was a brazen interpretation, indeed. Exclamation point. So that's the kind of short version of what happened. Roger may have more details, but around the same time, just a few days later, the National Capital Planning Commission voted 8:1 to allow the construction of this ever larger building. I think right now it's at two stories and 90,000 square feet. And the National Capital Planning Commission is packed with Trump allies. It voted 8. 1. Phil Mendelsohn, in his capacity as D.C. city Council chair, was the only no vote. And he said, it's too large. It's just too large. But that doesn't really matter because what Judge Leon found was that he needs express authorization from Congress. So even if he did need approval from these bodies, he got it. But that doesn't deal with the Congress problem.
- [90:29]
A
So, Roger, in addition to litigation over raising the White House to the ground and rebuilding a Mar a Lago Ballroom in its place, we also have a case to stop the Trump Triumphal Arch, which makes me think of Arc de Triomphe music.
- [90:51]
G
Yeah. Both of these cases, the thing that is likely to save us, if it saves us, is 40 USC 8106. Oh, is that the triumphal music?
- [91:11]
A
Yeah, it's the triumphal arch music.
- [91:13]
G
Okay, okay. 40 USC 8106. A building or structure shall not be erected in any reservation park or public grounds of the federal government in the District of Columbia without express authority of Congress. So that seems to be the main thing protecting us. There's also one in a second one involving the Memorial Arts called the Commemorative works Act of 1986.
- [91:46]
E
The.
- [91:47]
G
I think the problem, the hurdle with both of these cases may be standing. Both the judge in the Memorial. The Memorial Arch, one is the other side of the Memorial Bridge across from Lincoln, the Lincoln Memorial. And that one is being. And apparently, even though that's in Virginia, it's considered D.C. in the way these statutes are written as far as these needing Congress's protection. So this is four individuals suing Trump. Three of them are vets, Vietnam vets who visit Arlington Cemetery recently regularly, and one is an architectural historian. And they all say, basically the. It upsets their.
- [92:38]
A
It hurts my feelings.
- [92:39]
G
Yeah. You know, their aesthetic. And both judges seem to. I mean, certainly the plaintiffs. I mean, Judge Leon accepted that the National Historical Preservation Trust, National Trust for Historic Preservation, had standing. And it sounds like from Judge Chutkan's little minute order, like she also finds that these people have standing based on their aesthetic concerns. It's a little surprising to me, but I hope that's right. And the government argument in the memorial case is really interesting. Their argument is that on the substance is that we have congressional approval because in 1913, when they were getting authority to build the Memorial Bridge, Congress said, you can build the bridge, and you can also build two pillars on the other side of the bridge with a statue on top. With statues on top. And A commission at the time, which doesn't exist anymore, decided, however, not to go through with that because there was an airport called Hoover Airport, and it's not exactly where national is, but it's actually where the Pentagon is. But they thought it would be dangerous to planes because it was gonna be 166ft, which is much smaller than what Trump has in mind. But it was already scary. And so they're trying to use that original authorization from 1913, but I sort of think the 1986 act that comes after that is going to take priority.
- [94:44]
A
All right, we have three questions in the queue. The first is from Andrew. Imagine you were on the Senate Judiciary Committee questioning the as yet unnamed successor for Attorney General Bondi. What question would you ask to ensure that the nominee would uphold the rule of law and be an improvement over Bondi, or is that simply too much to ask from this administration? From each of you, Anna first, then Molly, then Roger. What question would you ask a putative Attorney General designee?
- [95:26]
F
Wait, can I someone else go first? I need to think.
- [95:30]
A
Come on. You wouldn't ask who is the administrator of doge?
- [95:35]
D
Sure,
- [95:38]
A
Molly, what would you ask?
- [95:40]
D
You're not going to give me a question? I don't know. What always sticks out to me about Pam Bondi was when she started up and said, we are proud to work at the directive of President Trump. So I might ask, you know, how they feel about that statement, whether they would similarly make that statement.
- [95:57]
A
Roger?
- [96:02]
G
Maybe, yeah. You swear an oath to uphold the Constitution and can the pres. You know, and Attorney General Bondi took the position that, well, whatever the President wants, that's his interpretation of the Constitution and I need to follow it. Do you agree with Attorney General Bondi on that or do you think maybe the oath has teeth? Sometimes you would be obligated to disagree with the President.
- [96:46]
A
For my part, I would ask the following question. The President, the administration, has asserted the right to fire career officials without cause in violation of apparent violation of civil service rules on the basis of, as it has articulated it, Article 2. Does Article 2 of the Constitution give the President or the lower down officials the ability to fire civil service protected people without cause? On, on. And if so, how is civil service protection different from service at the pleasure of the President? Anna, do you have a non wittowed answer question for the Attorney General designee?
- [97:51]
F
I think that for me, it really depends on who the person is. I often complain publicly and loudly about the fact that senators are really bad at asking questions of people because they need to be trained in like trial advocacy skills and cross examination. Like, you need to be really specific. You need to do witness control. Like, it, it drives me kind of crazy, some of the questions that they ask. And there are some senators who are really good at it, but I think it's just so context dependent. I don't have a. One of the really generic question. Yeah, I don't have a generic question because I would want to be focused on the facts as I know them about that per person in particular.
- [98:41]
A
All right.
- [98:42]
F
Yeah.
- [98:43]
A
The anonymous attendee asks two questions. Has anyone heard about Drew Ensen lately? Did he become too well known to the federal judiciary so the Justice Department stopped sending him to make their more, shall we say, alternative fact oriented arguments? Anna, have you been texting with Drew Ensign of late?
- [99:05]
F
I haven't, but. But drew. I'm on signal. Annabelle24. Drew Ensign is still around. As far as I'm aware. He's still doing his thing. I'm trying to remember when I last heard him in an argument, but I can't recall. But as far as I'm aware, he's still. He's still happened. Roger's not with us anymore. Is that correct?
- [99:31]
A
No, Roger's here.
- [99:32]
F
Oh, he is. I can't see him for some reason. Oh, there he is. Okay. Yes, Roger.
- [99:41]
G
No, he's, he's very active. I think. I. I think he did one of the mandatory detention arguments. Maybe. Maybe both. No, in fact, he's surprisingly active. I keep sort of being amazed each time I see him, given some of the things he's been involved in and. But, you know, it's a Teflon situation.
- [100:14]
A
All right, the last question, also from the anonymous attendee. I saw Ellie Mistahl assert that the presence of the President at the Birthright Citizenship oral arguments appeared to make no difference in the Justice's conduct. Was that your impression, too? I will just say, for my own part, I didn't see the argument because there's only audio available of it. If you don't happen to be in the room, and there is no because you only, you don't get a chance to see what the Justices would have said had the President not been there and then stood up and walked out. So there's no real way to know. I will say that no justice behaved in a fashion that seemed to me remotely atypical of that justice. So in that sense, I don't think clearly didn't obviously affect anybody's behavior in a way that jumps off the page of the text of the oral argument that said it's very wrong of the President to go to an oral argument. It's a coordinate branch of government. He doesn't go to a State of the Union uninvited by, you know, he doesn't show up and just give an address at Congress. And the justices aren't invited just to show up at the White House anytime they want. The President should be, in my view, respecting the boundaries of the physical space of a coordinate branch of government. And it doesn't matter if it rattles the justices or not. He shouldn't be there. Folks, that's all we got time for. We're going to be back next week. This has been a production of Lawfare. You can become a material supporter of Lawfare if you're not one already and join us in the studio. Have your questions answered either by name like Andrew, or anonymously like the anonymous attendee. You can do that@the lawfaremedia.org support join the material Support program because remember folks, it is a federal crime to give material support to terrorism and a virtue to give material support to legal journalism. Check out our other podcast offerings. Our other Our audio engineer this episode is the great Anna Hickey. And thanks to Anna Bauer, thanks to Molly Roberts, thanks to Roger Parloff, and thanks to Katherine Pompilio. We will be back next week. This podcast is part of Lawfare's Livestream series Lawfare Live the Trials of the Trump administration. Subscribe to Lawfare's YouTube channel to receive an alert the next time we go live. The Lawfare podcast is produced by the Lawfare Institute. You can get ad free versions of this and our other Lawfare podcasts by becoming a Lawfare material supporter at our website lawfairmedia.org support. You'll also get access to specialized events and other content available only to our supporters. The podcast is edited by Goat Rodeo and our audio engineer this episode was Anna Hickey of Lawfare. Our theme music is from Alibi Music. As always, thanks for listening.
- [104:15]
D
Foreign.
- [104:22]
B
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