← The Lawfare Podcast
Loading summary
Transcript83 lines
- [00:01]
Scott R. Anderson
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.
- [00:32]
James Pierce
Hey prime members, are you tired of ads interfering with your favorite podcasts? Good news. With Amazon Music, you have access to the largest catalog of ad free top podcasts included with your prime membership. To start listening, download the Amazon Music app for free or go to Amazon.com ADFreePodcasts that's Amazon.com ADFreeP Podcasts to catch up on the latest episodes without the.
- [00:58]
Anna Bauer
Ads It's a cold day here in.
- [01:02]
Roger Parloff
Alaska, but there's one animal seemingly unaffected.
- [01:06]
Anna Bauer
Bright eyed and determined enters the husky.
- [01:09]
Roger Parloff
Observe as they go up the mountain, guided by pure instinct. They are truly amazing masters of this wilderness. But even these amazing pets can't sign up for Lemonade Pet Insurance. You can sign up now@lemonade.com Amazing.
- [01:36]
James Pierce
Real suggestion that the reason why the court has not yet taken up any of the invitations to overrule Humphrey's executor is because no one has yet come up with a persuasive way in which the court could preserve the Fed, or at least preserve the independence of the Fed, while otherwise undermining the independence of the NLRB or the ofTC or the SEC.
- [01:56]
Steve Vladek
It's the Lawfare Podcast. I'm Scott R. Andersen, Lawfare senior editor, with Lawfare Senior Editors Anna Bauer and Roger Parloff, Lawfare Legal Fellow James Pierce, and Georgetown Law Professor Steve Vladek.
- [02:07]
James Pierce
During the hearing, even though Judge Boasberg ordered the government to turn around any planes that were in the air, the government did not turn around two or maybe even three planes that were in the air.
- [02:18]
Steve Vladek
In a live recording on April 4, we discussed the status of the civil litigation against President Trump's executive executive actions, including deportations, funding freezes, the targeting of law firms, and more. Hello everyone. Welcome to Trials of the Trump Administration, Lawfare's weekly update on the many, many, many litigation matters hovering around the Trump administration and the wide variety of novel legal actions, say the least, it is pursuing. I am your co host for the week, or host for the week, I should say, Scott R. Anderson, filling in for Benjamin Wittis as he is out of the office today. Thrilled to have so many of my Lawfare colleagues on today to talk over the week's big developments. And we are thrilled to be joined by longtime lawfare friend and contributor, Georgetown University Law Center Professor Steve Vladek. Steve, thanks so much for coming on the podcast.
- [03:05]
James Pierce
Thanks for having me back, Scott.
- [03:07]
Steve Vladek
Thrilled to have you. Anybody who is who follows legal stuff, no doubt is probably reading Steve's regular newsletter, 1First, which is an invaluable resource on Supreme Court and all things adjacent to it. And we're really lucky to have him on in what could prove to be a at least the amuse bouche of a very busy week at the Supreme Court, although we haven't gotten much action this week yet. But before we turn to the Supreme Court and some of the other dramatic actions happening in courts around the land, let us turn to Federal District Court in the Southern District of New York because we saw a pretty dramatic development this week in the Eric Adams case, bringing it potentially to a close. Likely to a close. James, talk to us a little bit about what we saw this week in the Garcia case.
- [03:51]
Anna Bauer
Sure. And thanks, Scott. And I think it's it's come pretty definitively to a close, though. We will see. Yeah. So I'm sure everyone has followed the Judge Dale Ho in the Southern District of New York was presented the question of whether to dismiss the prosecution of New York City Mayor Eric Adams. From one perspective, you could say this is a pretty standard motion and a pretty standard process. It's Rule 48 of the Federal Rules of Criminal Procedure provides quite simply that the government may, with leave of the court, dismiss an indictment before it's gotten to trial. And you could say that the government just moving to dismiss an indictment against the criminal defendant is not unusual and it's widely granted. But I think anybody who has followed the news knows that this is about as far from the usual case as as you could get. I'll provide just a little bit of background, though I'm sure folks are largely up to speed on this one. Eric Adams was under investigation as of the summer of 2021, before he became the mayor. This was an investigation and prosecution handled by the Southern District of New York out of Manhattan. It culminated in an indictment in September of 2024. That indictment basically involved allegations that Adams had received travel benefits and campaign contributions in exchange for assisting Turkish nationals in New York City. The case then moved forward the way many criminal prosecutions do after an indictment. There was some motions, practice. Adams moved to dismiss, saying that the legal theories were unsupportable, made some other claims. Judge Dale Ho, overseeing that, denied those and the and set the case for trial in April of this year. April right now, in fact. So Everything looked like it was on track until we got to February. And this is, of course, just sort of the early part of this new administration. And a lot of what we learned in February is not the kind of thing that typically would be publicly available, but. But quickly became. So the then acting Deputy Attorney General, Emil Bovey, sent a letter. Judge Dale Hope calls this the decisional memo in his. In his very long and scholarly opinion to the Southern District of New York's office and to the acting U.S. attorney there, Danielle Sassoon, directing that office, the Southern District of New York, to move to dismiss the case as soon as practicable. And that, that, that memo basically laid out two reasons. One, it said there was the appeal, appearance of impropriety with this prosecution moving forward for sort of two reasons in and of itself. One, sort of allegations or suggestions that the former U.S. attorney, Damian Williams, the U.S. attorney that was nominated and confirmed under the Biden administration, had been saying things publicly in a way that tainted the jury pool. And separately, that the prosecution was being brought too close to the mayoral election in June of 2020, 25. And so that was sort of the first reason. And then the second, and one that's, that's certainly been more widely reported on, was that the prosecution was essentially getting in the way of Adams's ability to carry out the administrations, that is the Trump administration's immigration policies and initiatives. Now, Danielle Sassoon wrote a letter back again, this is the kind of internal exchange that you wouldn't typically see out in the public, but all of this becomes. Became public and said that she did not believe it was consistent with her oath as any government prosecutor to move forward on the case. She addressed those rationales and said, look, this investigation, both pre and post dated Damian Williams, it was brought well in advance of the election, fully consistent with Justice Department policy. And by the way, this whole immigration thing looks an awful lot like a quid pro quo, which is not what the government should be doing to saying that, you know, we'll dismiss this prosecution against you, this criminal prosecution, as long as you carry out, you know, our objectives. She said if she were nonetheless ordered to move forward, she would tender her resignation. The very next day, the acting dad came back and said, yep, we'll take that resignation. We'll also put on leave, administrative leave, the other prosecutors and we, you know, in addition to those rationales we gave you, we, we also have concerns about the theory on which the case rested. That then triggered a series of things that's been widely covered. Additional resignations, another Prosecutor in the Southern District, as well as a series of prosecutors in the, in Main justice who at the Public Integrity Section and sort of in that chain who were presented with the decision, you know, the choice, you move to dismiss or resign. And they all selected resignation until it got to a senior legal counsel in the Public Integrity Section who agreed to put his name on, on paper and move to dismiss there. Then from there, there followed a series of developments that I don't want to go into too much detail on, but suffice to say, there was sort of a Scylla and Charybdis for, for Judge Ho to navigate. On the one hand, there was a motion to dismiss with prejudice that was brought by Adams himself, basically means have the case entirely go away. There was the still standing government motion to dismiss without prejudice. And then there were a number of amici, amicus, friend of the court briefs that came in and said, listen, Judge, there's this leave of the court requirement. It is in the public interest for you not to dismiss this prosecution at all and let the prosecution go forward. In other words, deny any kind of dismissal entirely. So that put Judge Ho in an interesting position to try to navigate all of this with. Again, just to say it again, Rule 48's language is quite simply, the government may, with leave of the court, court dismiss an indictment. And so a lot of the question was, what what does the leave of the court mean? And that was what, what Judge Ho navigated through. And ultimately, as I think hopefully this setup makes clear, there were two questions that he had to answer. One is, does leave of the court empower a district court in this circumstance to deny a government motion to dismiss a prosecution? I mean, whether to bring a prosecution and dismiss a prosecution. Prosecution is something that certainly it's become clear under recent SCOTUS precedent is firmly committed to Article 2 and the prosecution. And so what role does the court have to play? And the second is if the court then decides the second question, if the court decides, yes, I essentially do need to dismiss. It is the appropriate step to take here, with or without prejudice. Again, the difference being without prejudice would allow the government to revive the prosecution subject to certain types of guardrails, like the statute of limitations. Whereas with prejudice, which is, you know, spoiler alert, what the court ultimately did means the case then goes away and cannot be revived. And what Judge Ho did, and I think quite carefully, so I, I mean, if in my reading of it, I'll be curious if others have other reactions, I think he navigated this in an opinion that Ultimately was, I think, a fairly compelling legal analysis, albeit one where justice itself loses in the end. So what he said on the first question, the question of can I dismiss this at all? What is the role for a court in adjudicating these? He basically lands on that. But for the most egregious of circumstances, the court is simply just not empowered to tell the Justice Department, you know, no, you've got to continue prosecuting this case, or to think about it in very practical terms. Imagine that. He did say that, right? Imagine a judge says, you know, government, I see that you want to dismiss this case. You can't. You've got to keep prosecuting. Well, what, what, what then would follow, would the judge then say, and I'm going to direct, you know, to take this particular step or that particular step. The reality is the government could quite simply sit on the case, let the statute of limitations, or really the Speedy Trial act run, and the case goes away anyway, I should say Judge Ho did recognize that that may not always be the case, right? There may be some instances where it's a particular prosecutor's sort of misbehavior that's been the problem. And so the case can be dismissed, but then potentially reassigned to another prosecutor. So once he comes to the conclusion that he's not able to dismiss it, then the question is, is dismissal with or without prejudice the right step? And here he does, I think, a quite interesting analysis where he really tackles the two purported rationales that the government had given, again, the appearance of improper propriety, based both on sort of the actions of Damian Williams, the former U.S. attorney, and the election, election rationale as well as the immigration rationale. And he essentially says neither of those holds water. Neither of those is, you know, the, the, the election and the Damian Williams just seems pretextual. It doesn't, it doesn't actually make any sense. And for, for all appearances, what the government has done in bringing this case or what it did in bringing the prosecution nine months before the election was consistent with government policy. And by the way, if you, if you narrow this to a point where, you know, you can only bring it in these very certain windows, you are essentially immunizing public officials for, if not entirely, certainly large chunks of time. And then on the immigration piece, I think he recognized, recognizes precisely what Danielle Sassoon had put in her letter, which is that this, this reeks of a kind of a quid pro quo where the federal government is using criminal prosecution as a stick to then drive public officials to carry out its its initiatives, however, and whenever it sees fit. And at this point, Judge Ho says something that maybe I should have mentioned at the, at the outset, which is a key part of what Rule 48 is designed to do, or at least what rule, what, what Judge Ho identifies. And I should say he, I think quite accurately says not entirely clear. And there's this sort of contesting or differing views in the writing of the rule, and there's not really any meaningful case law from the Supreme Court. There's some discussion in a footnote of a case, but it's not really been explicated. But what it's designed to do is safeguard the rights of a defendant. And to the extent the government, the federal government could come and use the immigration, its immigration cudgel, some of you will probably remember quite colorfully, in the midst of all of this, Tom Homan, the Borders are came on and did a TV appearance with Eric Adams and said something like, I'm going to be up your butt. You know, up his butt making sure he's carrying out his, the promises on immigration that the only way to safeguard a defendant's rights here was to dismiss with prejudice and remove that cudgel from the federal government. Interestingly, I didn't mention this before, but Judge Ho sought amicus participation to kind of get the best views. And he asked Paul Clement and his firm to submit a brief. Clement argued that dismissal with prejudice was the only way to kind of navigate this, this, this minefield. And that is, in fact, what, what Judge Ho did. So, as I said, you know, in my view, I, I think this is a, a loss for justice and an extremely poor picture of what the Justice Department looks like these days. That said, I think that Judge Ho's analysis and the way he approached it to me was, was compelling, even though I don't particularly like the result. So, you know, I don't know if others have thoughts or views on it, but that's, that was certainly my.
- [16:25]
Steve Vladek
Yeah, thanks, James. I mean, a not entirely unexpected outcome. Obviously, this was recommended by Paul Clement in his advisory opinion that Dale Host solicited, but a little bit of a bitter pill, I think, for a lot of people to swallow, except perhaps for Eric Adams, who, of course, shortly after I think the result came down, announced he was running for reelection on a third party and, and close by endorsing Kash Patel's book, as I recall. Let us go to our next item on the agenda. And that is one of the biggest cases we've been following. Jggv Trump, the invocation of the Alien Enemies act, now sitting with the United States Supreme Court awaiting action. Steve, talk to us about this case. What we think might come down kind of any minute now, really, depending on when the court decides to move its butt and what we should be looking for for the next couple days.
- [17:11]
James Pierce
Yeah, I mean, this case has a little bit of everything too, maybe, except for prosecutorial discretion. So, you know, the bit. This was a remarkable exercise in sort of racing to the courthouse where the question was just what would happen first? Would the ACLU be able to file a lawsuit or would the government be able to remove a whole bunch of Venezuelan nationals? So, you know, a couple weeks ago on a Friday night, I think it was the 14th, the ACLU filed a lawsuit in the D.C. federal District Court claiming that President Trump was about to invoke the Alien enemy Act of 1798 as a basis for engaging in the mass summary removals of Venezuela nationals who the administration claimed were members of the Venezuelan Gan Trende, Aragua or tda. The ACLU was able to sort of get into court before that all sort of went down, so that by Saturday morning, the chief judge, Jeb Boasberg in the D.C. district Court had issued a temporary restraining order blocking the removal of the five named plaintiffs, and then by that afternoon was actually holding a hearing on whether to temporarily certify a class of all Venezuelan nationals subject to the act in order to prevent their removal as well. Two things happened from there, and those two things have produced two different tracks of litigation. So thing number one is that during the hearing, even though Judge Boasberg ordered the government to turn around any planes that were in the air, the government did not turn around two or maybe even three planes that were in the air. And that has given rise to a whole bunch of litigation over whether the government in fact defied Judge Boasberg and should be held in contempt. Basically, that track of litigation has proceeded in the D.C. district court, culminating most recently in a hearing yesterday afternoon before Chief Judge Boasberg. The government has tried to invoke the state secrets privilege to refuse to turn over at least some information to Chief Judge Boasberg in his effort to actually ascertain whether his order was defied. That has not gone well so far. So at least with regard to the order to show cause that litigation is proceeding in the district Court. And I suspect that we are getting pretty close to a ruling, perhaps by next week from Chief Judge Boasberg, that perhaps the government did in fact defy the court order. Of course, the question at that point, Scott, is what would the consequences be? There's a sort of a messy question about how much power the federal government has to bring back folks who are in detention overseas when we are not the detaining power. And that's also an issue that's implicated in the Abrego Garcia case, which I know Roger's going to talk about in a minute. While all that's been happening, the government has been challenging both of the emergency orders from Chief Judge Boasberg, the five plaintiff TRO and then the class wide TRO on the ground that basically this should not be in the D.C. district Court at all, that if there's judicial review at all, it should be through habeas petitions filed where at least these folks were detained, which is the Southern District of Texas. Judge Boasberg rejected that argument. The D.C. circuit in a 2 to 1 vote, refused to stay either of the TROs. And the government is now asking the Supreme Court to stay those TROs. And we might actually hear any minute now from the Supreme Court about whether they're going to do that or not. So we've got the sort of show cause litigation still before the district court. We've got the question of whether these temporary restraining orders are going to remain in effect or not, on which we might be hearing from the Supreme Court any minute now.
- [21:01]
Steve Vladek
And the issue before the Supreme Court, am I correct? That's primarily jurisdictional. It's unlikely they're going to have a reason to even touch on the merits of the underlying invocation that alien enemies.
- [21:10]
James Pierce
Right. And so there are two layers of merit. Scott Right. So there's what we might call the facial question, which is whether the Alien Enemy act even can be applied to Trend. And then there's the as applied question of, you know, what the government has to show to establish that any particular person is a member of Trend Aragua, which is what the executive order itself requires before you can remove them. And yeah, I don't think we're going to hear much from the Supreme Court on either of those questions. But I also have to think that how much or how little the court is persuaded by the government's procedural arguments might have something to do with how strong the sort of the the justices feel about the merits.
- [21:52]
Steve Vladek
Interesting, Interesting. Roger, I think you had the opportunity to listen in a little bit to the show cause hearing and hearing at the district court proceedings. Anything to add there to what Steve laid on? What was your sense about where the judge may be leading and sense of those proceedings where we might be seeing them Ahead in the next couple days.
- [22:12]
Roger Parloff
Yeah, I was actually there. I was at the, in the media room, which has the screens. And it was pretty clear that he basically said that. He said, there's a fair likelihood that you acted in bad faith, you not being the DOJ attorney there, but the government. And he was asking very, uh, pointed questions in a controlled fury, I would say, and eventually asking, who did you tell about my order? And the DOJ attorney mainly mentioned DOJ people. He did mention a couple lawyers at DHS and cbp. But he was, the more that the judge pushed, he began to say, I, I think there might be attorney client privilege issues. He would also say, I'm not, I don't have the operational details. And then eventually he just said, who made the decision not to follow his order? And he said, you said it was a perfectly appropriate decision. Who, who made that perfectly appropriate decision? And there we didn't get an answer to that. So it looks like a lot of it we will be getting. There began to be questions about what's the next step. He will, it sounds like he'll make a probable cause ruling and then there will be either another round of declarations, which I think everyone recognizes won't get anywhere, possibly deposition, but maybe more likely a hearing, an evidentiary hearing to try to determine who made the decision. I'm not sure where this goes if the Supreme Court overturns those orders, meantime. And. But it was, it was. I think the only other thing I would say is that he also, you know, he went through, as Steve mentioned, this was an extraordinarily, this was really a race to get these guys out of here before the judge could rule. And it was a very unseemly race. And he, he went over that timeline and how it was painfully, you know, the proclamation doesn't become public till 3.53pm on the 15th. So this, the suit is filed at 1.12am that morning before the proclamation has become public. It had leaked out to the plaintiffs. They were trying, you know, so it's about 90 minutes before these planes leave that it becomes public. So it's obvious to, to the point he's making. Boasberg, is it. If you thought this was legal, why were you trying to prevent them from having an opportunity to even get into court?
- [25:27]
Steve Vladek
Well, that, of course, is not the only immigration related matter before the Supreme Court. Far from it. We have three other closely interrelated matters more or less being handled as one before the cart right now relating to birthright citizenship, although again, kind of at a collateral Issue that is this question of the use of nationwide injunctions. Steve, talk to us a little bit about that, where we're waiting for action in that case, what we might expect to see.
- [25:53]
James Pierce
So in the birthright citizenship cases, what's different, Scott, is that the government's not asking the court to put the policy into effect in full. It's really trying to sort of limit the scope of the injunctions and limiting the scope of the injunctions just to the plaintiffs. And so basically this is about trying to limit nationwide injunctions, an issue the Supreme Court's had a couple of opportunities to sort of deal with already and has passed on. And so it's weird, right, because like it's, it's a big policy fight about birthright citizenship, but the actual question of the Supreme Court is, you know, should we let the policy go into effect as applied to non plaintiffs? Right. So that's, that's why it's a bit complicated. Now the, the applications were filed a couple of weeks ago and the court gave, gave the challengers 22 days to respond. The responses were just due today, which is usually a sign that there's not much of a hurry on the court's part.
- [26:53]
Steve Vladek
Interesting. So we're anticipating a likely reply. So this is the one matter that's not fully brief before the court.
- [26:58]
James Pierce
And I should say, I mean, as we're sitting here, the, the court has actually just handed down a ruling not in the JGG case, but actually in the Department of Education grants case. And it sounds like I'm still sort of parsing it, but it sounds like the court has given sort of a small win to the Trump administration on the education grant. So lots of things going on.
- [27:18]
Steve Vladek
Interesting. Well, let's, we, we may read into that a little bit while we discuss some of these other cases and try and catch up. Then we can circle back because we have that a little further down on our list. Roger, let me turn you to our next turn to you for our next case that is National TPS alliance vnom. Talk to us about this case relating to the TPS program for Venezuelans.
- [27:38]
Roger Parloff
Yeah, this is a pretty high stakes case and I don't think there's a ton of law on this subject. There's a program called the Temporary Protective Status Program. It was created in 1990 and the DHS, the Homeland Security can designate a country as sort of when it's in, in dire straits. It's, it's nationals are eligible for tps. This protective status, it means you can come as an immigrant if you aren't a, if you don't have a criminal record and you aren't a terrorist, you get a status here and you can't be removed. And it's for countries in bad shape. And periodically the TPS status of the country will be reviewed. So in 2021, Secretary Mayorkas designated Venezuela one of those countries because the economic collapse and the loss of rule of law, kidnappings, terrorism. And he and a lot of people came in under that status, maybe 600,000 Venezuelans. And they come in in different tranches for frankly reasons I don't they're complicated and I don't fully understand. But Mayorkas extended this status on January 17th for basically about half of them, 350,000. So and the Kristi Nome, as one of the first things she did when she got to office was to try to reverse or vacate his ruling. And so that these people would be you. They would actually have had to, they would have lost their status two days ago without that, without Mayorkas's extension and the, the judge. So this was brought before Edward Chen in the Northern District of California and he entered a tro. I'm hesitating. I'm not sure if it was a TRO or a preliminary injunction. Yes, he and well and actually it's called an order granting a motion to postpone and it extends their protection. And there isn't much law on it because nobody's ever done this before. No one's ever vacated somebody else's determination of TPS status. And I think the theory is brought under the apa, again, arbitrary and capricious agency action. And also there's a claim of and both of these were accepted of unconstitutional animus, just discrimination on the basis of race, ethnicity and national origin because some of the things that people in the Trump administration have said about Venezuelans from time to time. So an appeal to the 9th Circuit has been taken. There's also an issue this in the same case we will probably get a motion trying to that relates to Haitians that are in this country under TPS statute status as well, trying to extend or prevent their designations from being eliminated.
- [31:39]
Steve Vladek
Well, among other high stakes cases on the immigration daca, we also of course have the Khalil case regarding the Columbia student who is facing removal proceedings. James, bring us up to case up to date on this case, what we've seen happen last few days here.
- [32:01]
Anna Bauer
Sure, I'm happy to, to jump in on that one. So Khalil was the Columbia student arrest in Manhattan, then taken to New Jersey and then ultimately to Louisiana. Folks may recall that. Well, a bit more background first, which is in the midst of all of that, Khalil's attorney filed a habeas petition in Manhattan, believing that's where he was last week or at some point in the past few weeks. All of this time, I think, is sort of unrecognizable. How quickly things are moving. But the judge in New York ruled that under a certain statute, 28 U.S.C. 1631, I believe, although that that judge did not have jurisdiction, it was properly transferred to New Jersey, the District of New Jersey. And then the respondents there brought a challenge, saying, well, the District of New Jersey doesn't have jurisdiction over this habeas petition because Khalil was no longer in New Jersey at that point. He was then in Louisiana. And in an opinion that the the judge, I can't remember the name, overseeing the case in New Jersey, he rejects the argument that he lacks jurisdiction, relying on a couple of different doctrines. One, the statutory section I mentioned, 16, 19, 31, which basically says so long as the action is is filed in a in a timely manner in the jurisdiction where it's filed, if it's in the interest of justice that it be transferred to the transferring jurisdiction, and it would have been timely if filed there, then it can be sort of considered an operative. And the point was, at the time that Khalil's lawyer filed habeas petition in Manhattan, Khalil was in New Jersey. Once it had been transferred to New Jersey, you had a habeas petition and the habeas petitioner coinciding in New Jersey at that time. The judge also explains a couple of other things, why his subsequent transfer to Louisiana didn't deprive that court of jurisdiction, and similarly, why the Halil's failure to name the appropriate warden under something known as the unknown custodian rule, that apparently was the brainchild of Judge Bork and then has, at least in the telling of the New Jersey judge, essentially been adopted as the law of the land, at least according to a footnote in a Chief Judge Rehnquist opinion in the Supreme Court. So the upshot of all of that kind of down in the weeds, that doctrinal stuff, is that the New Jersey petition, Khalil can challenge his habeas petition in New Jersey. One last sort of coda on all of that, the judge there said, look, if the government's prepared to waive its jurisdictional challenges, it should let the court know and then we can move forward. Otherwise, there's some potential for appeal Action. And I think we're still waiting to see.
- [35:19]
Steve Vladek
All right, well, thank you for that, James. And one more case we need to touch on. That is the Garcia case that Steve flagged for us earlier. Roger, why don't you hop in first on this one and then Steve, I know you may have thoughts too, so we'll turn to you in a minute. But give us up to speed a little bit about where we are in the Garcia case. This, of course relates to the pretty tragic case of an individual that removed to El Salvador by virtue of an administrative error, as the Trump administration has now admitted.
- [35:47]
Roger Parloff
Yeah. Armando Abrego Garcia, El Salvadoran citizen. His wife is a US citizen. His five year old is a US citizen. Complex facts in, in March 2019, he was in this country. He was served with papers saying that he was removable. ICE had a confidential informant who was saying that Brgo Garcia was a member of Ms. 13, which is a very violent gang. He apparently, as I understand it, has no criminal convictions or arrests in this country. He denies being a member of MS.13. He had that hearing and the judge did find that he was removable, but also found that he faced persecution in El Salvador. I don't think it, I haven't read the immigration judge ruling. I don't think it was because of persecution from the government. I think it was persecution from others in El Salvador, conceivably rival gangs, I don't know. But he was, however, released and was periodically going into check in meetings. And then on March 12th of this year, he was arrested, suddenly detained and whisked away on the third of those flights on March 15 to El Salvador, even though he had a status which was called, he had been granted withholding. He wasn't supposed to be sent to El Salvador. His wife saw him in one of those news photos and he, it brought suit in Greenbelt, Maryland alleging violations of the immigration law, due process, the apa, the Administrative Procedure Act. One recurring issue. Well, and then I'll just, and then the big, there was a hearing today and I wasn't there. But the, the, what the plaintiffs want is for him to be returned, if that's possible. They would like an order that the government try to get El Salvador to release him and let him come back. And, and even one theory is to stop paying him, paying El Salvador an injunction to stop paying El Salvador to house him, since we apparently are paying for these people. The defendants have responded in a couple ways. One is they have no power over a foreign sovereign. And another is a recurring issue. It's sort of the extreme case of a recurring issue in all these cases, jgg, which is the Alien Enemies act case, the Khalil case. The thing is, if you're bringing a habeas corpus action, which is one form of action that confined people bring, you're supposed to normally bring it in the jurisdiction where you're confined. That's why Khalil is saying, I mean, the government saying Khalil needs to go to Louisiana where he's currently confined. JGG was already in Texas when the ACLU and Democracy Forward Lawyers filed the Alien Enemies act case in D.C. and, and so the government has been saying, well, if he has any review, if he's entitled to any review, it has to be in Southern District of Texas. Here they're saying, yeah, he, it's a ha. Your proper remedy is a habeas corpus. And since you're confined out the outside the country, you're out of luck. And, and so apparently the judge did not accept that argument and has ordered that he. That an attempt that he be returned. I haven't seen the order. So either that an attempt be made to return him or the that he be returned by 11:59pm on Monday night. That'll be extraordinary.
- [40:31]
Steve Vladek
We will have to see what goes on from there.
- [40:33]
Roger Parloff
I will say as a former, one last thing. Maybe there is some talk about this in the JGG case, the Alien Enemies act case. And there were on that third plane, despite the vetting that the ICE says it went through, there were eight women, at least seven or eight women. And there were, there was one guy from Nicaragua and El Salvador rejected them. They said, we can't, we don't have our contracts, don't permit it, and blah, blah. And. And so they were returned. So that's one reason the ACLU is saying, look, it, it is possible and you know, the defendants are still US Citizens. You can order the US Citizens to try to bring these people back. So it's sort of an open question, but here, apparently it is. Has happened. Judge Boasberg hasn't tried that yet and I'd like to. Maybe Steve can comment on that. I don't. Or anyone else.
- [41:42]
James Pierce
I mean, I think Roger covered it pretty thoroughly. Sorry, Scott.
- [41:45]
Steve Vladek
No, no, that's right. My fault. Well, we've got a lot to get through. Let us keep moving on. Let's go next to a couple of cases related to two different types of federal firings, first regarding independent agencies and then probationary employees. Let's flip this actually a little bit from the way of in Our planning doc. Let's talk about probationary employees first first because we do have of course another Supreme Court case that's teed up there, although not the one we just got a potential decision in. This is Office of Personnel Management v. 8 vs. American Federation for Government Employees. I believe. I think I have what the A is correct. I think it's American. This is a case where it's now fully brief. We got the reply brief today from the government. This is of course a challenge to district court decision to would have reinstate probationary employees that challenging it on standing grounds, on procedural grounds basically arguing that these claims should have gone through MSPB and a couple of and also additional grounds somewhat a nationwide injunction ground and other remedies grounds. Steve, do you have a sense of what we should be looking at here? Is there anything remarkable of this case or any tea leaves? We should be reading about what might be happening here.
- [42:56]
Scott R. Anderson
Delete Me makes it easy, quick and safe to remove your personal data online. At a time when surveillance and data breaches are common enough to make everyone vulnerable, your data is a commodity. Anyone on the web can buy your private details and the data brokers make a profit off of your data. But this can lead to identity theft, phishing attempts and harassment for you. But now you can protect your privacy with Delete Me. I'm active online. I also have enemies for some reason. There are these people out there who don't like me very much. So I have to be out there on the one hand, but my privacy is really important to me on the other. I've had online harassment, identity theft, and there's a reason for all of that. There's this data about me that's all for sale. My name, contact information, Social Security number, home address, even information about my family members. And it can all be compiled by data brokers and sold online. Or at least it used to be. Now DeleteMe keeps an eye out and gets the data brokers to delete sensitive data about me before people can use it against me. So take control of your data and keep your private life private by signing up for Deleteme now at a special discount for our listeners. Get 20% off your delete me plan when you go to JoinDeleteMe.com Lawfare20 and and use the promo code Lawfare20 at checkout. The only way to get 20% off is to go to JoinDeleteMe.com lawfare20 and enter the code Lawfare20 at checkout. That's JoinDeleteMe.com LawFair20 code Lawfare20.
- [44:53]
James Pierce
What does.
- [44:53]
Scott R. Anderson
The future hold for business? Ask nine experts and you'll get ten answers. Bull market. Bear market. Rates will rise. Rates will fall. Inflation's up or down. Tariffs are in, they're out. Can someone please invent a crystal ball? Well, until someone does, more than 41,000 businesses are future proofing their business with NetSuite by Oracle. The number one Cloud ERP bringing accounting, financial management, inventory, HR into one fluid platform with one unified business management suite. There's one source of truth giving you the visibility and control you need to make quick decisions, real time insights and forecasting. With that, you're peering into the future with actionable data. When you're closing the books in days, not weeks, you're spending less time looking backwards and and more time on what's next. Okay, I'm going to be really honest with you. Lawfare not doing this level of business yet. We're a small nonprofit, but we're spunky and we're going for it. And if we were doing this volume, we would be right there with netsuite by Oracle. So whether your company is earning millions or even hundreds of millions of dollars, and if it is doing the latter, why aren't you donating some of that to Lawfare? NetSuite helps respond to immediate challenges and seize your biggest opportunities. And speaking of opportunities, download the CFO's Guide to AI and Machine Learning at netsuite.com lawfare the guide is free to you at netsuite.com lawFare that's netsuite.com lawfare.
- [46:51]
Anna Bauer
Ryan Reynolds here from Mint Mobile. I don't know if you knew this, but anyone can get the same premium.
- [46:56]
James Pierce
Wireless for 15amonth plan that I've been enjoying. It's not just for celebrities. So do like I did and have.
- [47:03]
Anna Bauer
One of your assistant's assistants switch you.
- [47:05]
James Pierce
To Mint Mobile today.
- [47:06]
Steve Vladek
I'm told it's super easy to do.
- [47:08]
Anna Bauer
@Mintmobile.Com Switch upfront payment of 45 for.
- [47:12]
Steve Vladek
3 month plan equivalent to $15 per month Required intro rate first 3 months only, then full price plan options available, taxes and fees extra. See full terms@mintmobile.com Some TAC presents the ins and outs of caring for your home Out Uncertainty self doubt stressing about not knowing where to start in plans and guides that make it easy to get home projects done out Word art Sorry Live laugh lovers in knowing what to do, when to do it and who to hire. Start caring for your home with confidence. Download thumbtack today.
- [47:47]
James Pierce
Hey prime members Are you tired of ads interfering with your favorite podcasts? Good news, with Amazon Music, you have access to the largest catalog of ad free top podcasts included with your prime membership. To start listening, download the Amazon Music app for free or go to Amazon.com ad freepodcasts. That's Amazon.com/ad free podcasts to catch up on the latest episodes without the ads. I mean, the, the problem with the OPM case, right, Scott, is that, is that the argument is not that the government has no power to fire probationary employees. Right. It's that the government, it's that the Office of Personnel Management specifically had no power to fire the employees. And so in one respect, it really is a one off in that sense where it's not about like sort of, you know, where the government could sort of solve the problem, but it's having each agency fire its probationary employees. So, you know, I don't, I mean, we'll have to see what happens. But that's part of why this case strikes me as sort of not quite as high stakes as maybe some of the others.
- [48:55]
Steve Vladek
Yeah, well, fair enough. And it's also got a little redundancy with another case. This, of course, the District of Maryland, or pardon me, Maryland v. U.S. department of Agriculture, which is before the District of Maryland or at least was now before the 4th Circuit as well. Roger, you've been keeping an eye on that. What do we see happening in that case where we should note there was a redundant TRO also protecting probationary employees. In fact, a broader universe of them narrowed to a pro, pardon me. Court issued a preliminary injunction last week that was narrower than the TRO just applying in the 19 plaintiff states in the District of Columbia. So no longer truly nationwide, but still a very broad TRO related and now preliminary injunction relating to probationary employees. Roger, tell us a little about what we saw this week in that case.
- [49:40]
Roger Parloff
Yeah, this was, there was, it's again about probationary employees. It's a different tack. It says that they were, instead of saying that OPM had no power to do it, it says that they weren't, they didn't comply with the reduction in force laws. They weren't given the proper notices. And the notices not only go to the plaintiffs, they go to the states because the states get to prepare for the big group of unemployed people. And so 19 states are suing and on behalf of them. And this judge, James Bradar, did give an order to reinstate probationers at 18 agencies. And the 4th Circuit actually denied a stay. That is they ruled for the plaintiffs. But one of the judges did say at that point it was nationwide and that judge did say it really ought to be just the suing states. And so that was corrected on April 1st. But that's, that's, that's really all I know about that one.
- [51:00]
Steve Vladek
All right, now let's go to the independent agency cases. James, let's turn to you on this as of course relates to the firing of officials at the MSPB Merit Service Protection Board, the National Labor Review Board and the Federal Trade Commission. Talk to us what we're seeing in these cases over this past week, particularly in the D.C. circuit.
- [51:24]
Anna Bauer
Yeah. So as I think we discussed here last week, there had been argument in these cases and just to provide a bit of background, this is where in the District court in two different district courts, the board members secured permanent injunctions on the view that their removals by the President was unlawful under existing Supreme Court precedent. The Humphreys executor case from 1935 which carved out an exception to the rule that the President can remove a single officer head. That exception applies to multi member boards, maybe with bipartisan balance. And so a lot of the discussion has been what, what is the ongoing viability of Humphreys executor and what does it mean? We got an opinion from the same emergency motion panel that was overseeing that was presiding over the JGG the case. We've already discussed Judges Henderson, Millette and Walker a week from today. I think we just briefly touched on it in our discussion there. The bottom line of those three rulings, three different opinions, two of the judges, Judges Walker and Judge Henderson would have found that the government is likely to succeed on the merits and thus essentially ruled, ruled against the challengers. Judge Millette wrote a pretty stinging dissent to say that her colleagues opinions were out of line with supreme court precedent, with D.C. circuit precedent as well as kind of creating conflicts with other circuits following quickly on the heels of those of those rulings. And that was another 114 pages. It was a very busy emergency motions panel. For the month of March, both the nlrb, National Labor Relations Board and MSPB members filed seeking en banc intervention, seeking the whole D.C. circuit to get involved. They did that on Monday. The government response came in on Wednesday. Some interesting sort of procedural pieces that are happening in these en banc and en banc oppositions. The en banc ask from Harris and Wilcox, that's the NLRB and MSPB members, asks for the DC Circuit to combine the stay and the merits altogether. And I should have said I think we said this last week already, the briefing on the preliminary injunction is expedited. In fact, the government has already filed as at the end of last week, its opening merits brief. I suspect why the plaintiffs here are seeking en banc review is that they believe perhaps accurately that they're likely to get a more favorable audience with the full D.C. circuit than with this, the panel that they are before the government comes back in its opposition to en banc and says, listen, there's no reason to move this quickly. We're at an interlocutory stage. But by the way, if the court is inclined to do that, you, court should give the government seven days to go to the Supreme Court to seek a stay of any potential sort of further litigation of this at the D.C. circuit. I think the government there is playing to an audience that it thinks will be more favorable to ultimately essentially tackling Humphrey's executive. And the Office of the Solicitor General has said quite clearly it's not going to defend it thinks that Humphrey's executor and the restrictions or limitations on the President's removal of members from, from multi member agencies is not constitutional and it's prepared to make those arguments to the, to the full court. So that's where we are. The plaintiffs have asked that there be a ruling by April 7, which is Monday. We'll see what the D.C. circuit does with that and it will be interesting, I am sure, whatever the D.C. circuit does.
- [55:23]
Steve Vladek
Before we move on to this, Steve, I want to, I want to ask you a question about this. Look, we all know that this whole universe of cases is being teed up to the Supreme Court quite deliberately. This is an effort to force a reconsideration of Humphrey's v. Executor and a whole line of cases about the Appointments Clause that have kind of been a stalking horse for folks on kind of the legal right in the Federal Society Group for a long time and has some buy in from people not in that camp as well. I think a lot of people expected some reconsideration. We see in gradual erosion of those holdings on this court really over the last last 20 years, if not longer. But we've never seen them teed up quite in this aggressive a context before nor was such broad implications. And we've seen that, including in the public relations bent, probably the briefing, I actually haven't looked at it yet that we've seen Slaughter and the other FTC terminated members pointing out in their public relations angle at least that what happens to them could also happen to their Federal Reserve much bigger point of policy concern for a lot of people. How do you think, do we even have a sense of really how the Court's going to approach this range of cases and perhaps try and split the baby in reevaluating Humphreys and the other precedents that are implicated by them?
- [56:35]
James Pierce
Yeah, I mean, it's a good question, Scott. You know, we don't know for sure, but the Court really has been walking very gingerly around the Federal Reserve. And a really good example of that was last term in the CFPB funding case. So that was not about Humphrey's executor, but it was about sort of a novel constitutional challenge to the way Congress had basically funded the Consumer Financial Protection Bureau. And the principal argument in favor of that novel arrangement is that it's mostly the same way that it funds the Federal Reserve and that it would have been difficult to strike down the CFPB funding without also undermining the Fed. Humphrey's executor is a longer standing idea, but it has the same baggage, which is that, you know, the independence of the Fed, which I think just about all of the economic experts view as a pretty strong source of economic stability in the United States, is really about Humphrey's executor. It's because the members of the Board can't be fired by the President except for cause. And you know, I think there's been some real suggestion that the reason why the Court has not yet taken up any of the invitations to overrule Humphreys executor is because no one has yet come up with a persuasive way in which the Court could preserve the Fed or at least preserve the independence of the Fed while otherwise. Right. Undermining the independence of the NLRB or the FLTC or the SEC. And so, you know, that sounds, that doesn't sound like a very sort of sophisticated constitutional law argument, but I do think it's why we haven't seen this yet. And I don't know that anyone's sort of squared that circle. The Court may soon be forced to take up the question. I just thank God it's not immediately obvious to me that there are five votes to overrule Humphreys executor. One, right. Because of this concern about the Fed and two, because if you wanted to see the costs of having no independence in the executive branch, we're having some examples of that right now.
- [58:38]
Steve Vladek
Yes, certainly they're not hiding the ball on potential consequences on this sort of thing these days. Go ahead, please.
- [58:48]
Anna Bauer
And Scott I'll just jump in and add quickly in the en banc papers. It's interesting, the MSPB's Harris puts the Fed pretty central in sort of saying, look, here's here is consequence number one. The government comes back towards the end and just sort of says, I think along the lines Steve just described, well, the Fed is a unique institution with a unique history and that's kind of it. We're not telling you why we carve.
- [59:12]
Steve Vladek
It out, but yeah, absolutely. Well, I mean, this is, I think obviously some of the most fascinating issues to see percolating up. And so we're going to have to keep a close eye on those moving forward. But let us go to our last Supreme Court case, which we can finally pull the veil back on exactly what's been happening, as this is the one we have decision come down in California v. US Department of Education, a effort to, well, vacate, although it's interpreted a little differently than that, a TRO compelling the Education Department to begin repaying certain grants. We have a 54 decision from the Supreme Court in that, basically interpreting that as a motion for a stay pending appeal. So staying that TRO for the lower court. And it's a little interesting case in my mind because we saw a pretty similar case come up a few weeks ago in the AIDS Vaccine Advocacy Coalition regarding a similar TRO compelling payment of foreign assistance funds. Slightly different posture for the plaintiffs in that, but it went the other way. We saw Justice Barrett at least change her perspective on this and notably did not write we have a per curiam opinion now. We have dissents from Justice Kagan and Justice Jackson, joined by Justice Sotomayor. Steve, talk to us a little bit. You've done the heroic task of speed reading these, including the surprisingly lengthy dissent from Justice Jackson, which I have not even tried to speed my way through. Talk to us about what we see happening here and what might explain the outcome in this case.
- [60:30]
James Pierce
Yeah, sorry, I've been a little distracted trying to do three things at once. So there's a very short basically two and a half page procurium unsigned opinion for the 54 majority. And the majority is Justices Thomas Alito, Gorsuch, Kavanaugh and Barrett that basically sort of does two things or at least says two things in support of staying this district court decision. So the first is that the majority concludes that it is in fact appealable, that even though it's a temporary restraining order, it's one of those rare examples of a temporary restraining order that appellate courts have the power to review Scott, this isn't really like a huge this isn't like there's case law in almost every circuit that there are circumstances in which TROs are appealable. I think the issue is that now that the government has the Supreme Court's imprimatur, it's going to argue that all of these TROs are appealable, which is going to cause some headaches in some of these cases. And then second, the court grants the stay basically by sort of waving its hands at the notion that it's not clear that the plaintiffs in this case can use the Administrative Procedure act as opposed to the, you know, the sort of the process through the court, the Court of Federal Claims in the Tucker act and the sort of the more specific waivers of sovereign immunity that Congress has provided for monetary claims against the federal government. I should say my reading of the short unsigned majority opinion is that it does not take a conclusive view on whether these cases have to be in the Court of Federal Claims. It just says, you know, it's not clear enough that the plaintiffs are going to win on that. What's striking about so what's striking about the dissents is Chief Justice Roberts dissented but did not write. There's a short dissent from Justice Kagan and there's a longer dissent by Justice Jackson joined by Justice Sotomayor. The Kagan dissent basically says we shouldn't make these things appealable because it's going to open the floodgates. And the Jackson Sotomayor dissent is more sort of substantive, saying like this is a real problem, like there's real harm. We shouldn't just be, you know, screwing up this stuff now, especially because this tro, Scott, was set to expire on Monday. You know, I am struck at first reading that this really is a very strange intervention by the court because it's intervening in a way that is not conclusive. It's intervening in a way that does not seem to sort of try to foreordain the result in this case or any other cases. And I wonder a little bit if this is the court trying to give Trump a win because all of the other cases we've been talking about today are heading for losses. You know, that may be an especially optimistic way of looking at this, but it's just, it's odd that they hustled this one out first. It's odd that they hustled it out with the TRO expiring on Monday. And it's odd that basically you have a three page majority opinion, which, by the way, they don't write majority opinions respecting emergency applications very often that really doesn't say very much. And so that's why I'm sort of struck by the confusion is not the right word, but like the sort of the, the lack of real sort of movement reflected in what the court has done.
- [63:40]
Steve Vladek
It's really interesting to me because the person that appears to have moved on this is Justice Barrett. If we take the AVAC case as the prior data point. Right. Very similar posture, very similar issues. Again is this question of does it need to go to the Court of Federal Court Claims, which hinges on how you read Bowen v. Massachusetts. So it's basically the same arguments. This procurement opinion looks a lot like a less kind of obnoxious version of Justice Alito's dissent from the ABAC decision, at least on the substance of it. He had a couple other arguments he went into.
- [64:09]
James Pierce
I mean, the problem is, is that, and I think this is, you know, one way or the other, how big a deal this is is something we're not going to know probably until at least the middle of next week. Right. Because is this the first of a whole bunch of decisions where the court's going to basically sort of clear the way for Trump to do whatever he wants or is this a one off? And I think, you know, it's just, we just don't know that. Right. Until we have more data.
- [64:33]
Steve Vladek
Well, we will have to turn back to this case then next week. We have a few more data points. We have a lot more to get through. We have about half an hour left. I should have been saying this from the beginning, but in case I forgot, put your questions, if you have questions in the Q and A box. We will try to get to them if we have time towards the end. But next, let me turn whether we have two more quick grand termination case. Let's handle these really, really quickly. James, these are the, I think Roger or James, you're up with the New York v. Trump. I think on this one.
- [65:05]
Anna Bauer
Sure. We talked about this also last week. This is one of the funding freeze cases brought in the wake of the OMB directive to freeze all funding. We talked last week that the district court had granted a preliminary injunction and the 1st Circuit denied the government's motion for a stay pending appeal. That case has now moved to a briefing schedule was just issued, I think either yesterday or the day before. So we'll have that teed up for merits determination on the preliminary injunction. And then just today, there was additional litigation in the district court. The plaintiffs had filed a motion to Enforce, enforce the preliminary injunction. I'll say it's not the first similar motion. They filed a motion to enforce the tro. In fact they ultimately filed two of those. One was granted, the other was mooted out after the district court had granted a preliminary injunction. All of which certainly sends the signal, and these are states challenging these federal funding freezes or pauses that the states aren't getting the money that they should won. The preliminary injunction is in place. This particular motion, excuse me, it was a, it was a motion, it was a ruling where the, the district court concluded that in fact FEMA was not paying out grants. It was doing some kind of an annual review that the court essentially concluded was a way to not comply with the, the court's order preliminary in the preliminary injunction for it for the money to continue to be dispersed. So you know, in one respect put this in the camp of you know, non compliance watch. It was interesting in even just in the legal, applicable legal standard, the court said I'm applying the contempt rules for this. It's not a contempt case yet maybe, but that's how I'm tracking whether or not the government is complying with my preliminary injunction to pay money out. So just, just a quick update on that and we'll obviously keep track of that.
- [67:03]
Steve Vladek
One other really quick case note here, Colorado vhs. Roger, I think you have this one. Is that right? Then the District of Rhode Island, 11 billion dollar grants from HHS, a TRO enjoining cancellation. Anything more than that? I think that is the big news. I just boiled the punchline there. But is there more on that case worth flagging?
- [67:21]
Roger Parloff
Not a whole lot, you know, because it was filed this week and it was the TRO granted yesterday and it's not written yet. So it's 23 states. These were a range of, you know, health related. The theory was that that they were suspended due to the end of COVID and said they were no longer necessary and allegedly said they were for cause but gave no cause, no statutory notice and grants for to fight infectious disease, mental health, you know, to treat mental illness, access to immunizations, treat addiction, so on. So we really won't know much until we see more. We really haven't seen defense papers yet, so we'll just have to wait.
- [68:16]
Steve Vladek
Well, we have another matter that's worth touching on here. This is a general topic of dismantling agencies. Obviously we have big news regarding USAID last week, but there's a whole universe of litigation around that and related development agencies that's percolating. But I think we're going to skip that for time purposes. With one exception, which I'll circle back to. Let's go to the other big agency being dismantled. That's the Consumer Financial Protection Bureau. James, bring us up to date on that. We saw some decisions coming from the courts in that case as well.
- [68:47]
James Pierce
Hey prime members, are you tired of ads interfering with your favorite podcasts? Good news. With Amazon Music, you have access to the largest catalog of ad free top podcasts included with your prime membership. To start listening, download the Amazon Music app for free or go to Amazon.com adfreepodcasts. That's Amazon.com ad freepodcasts to catch up on the latest episodes without the ads.
- [69:14]
Steve Vladek
At 1-800-flowers.com we know that connections are at the heart of being human. Whether celebrating life's joys or comforting during tough times, 1-800-Flowers helps you express what words can't for nearly 50 years, millions have trusted 1-800-Flowers to deliver thoughtful gifts that help create lasting bonds. Because it's more than just a gift. It's your way of showing you care. Visit 1-800-flowers.com acast and connect today. That's 1-800-flowers. Com acast.
- [69:44]
Anna Bauer
A real lemonade Pet Insurance Review by.
- [69:46]
Steve Vladek
Madison H. You know, I thought it was a little ridiculous to get pet insurance, but I really didn't want to not take my little kitten to the vet because of money. In the last eight months, I've taken him in six times because of ear infections and saved literally hundreds of dollars. He may even need to get surgery and I couldn't consider it without Lemonade's help. I recommend Lemonade to all my friends constantly and now I'm recommending it to you.
- [70:10]
James Pierce
Check it out@lemonade.com.
- [70:22]
Anna Bauer
Yeah, thanks Scott. So at the end of last week, just a week ago, we got a quite a lengthy opinion from Judge Amy Berman Jackson in a case that was brought to the challenging the dismantling of the Consumer Financial Protection Bureau cfpb. The sort of putting aside working through standing and some procedural questions. I think really the thrust of the claim can be or the ruling that Judge Jackson issued was Congress has the authority to create agencies and the executive branch does not have the ability to unilaterally dismantle or dissolve them. The legal analysis is actually pretty short in the 112 page opinion, but one of the things that's quite interesting is a quite extensive factual recitation which I would urge folks who are who's interested in this to take a look at. It's a Great place to go to kind of get, I guess you'd sort of say the tick tock of decisions by the Trump administration administrators when they came in, kind of sending out notifications to the workforce, basically saying stop all work. Then there is an immediate challenge. Judge Berman Jackson enters a council consent order that seems to suggest at least some of the actions taken to dismantle will go on hold. Not clear that that really is implemented by CFPB personnel. There's further litigation, a TRO. There's another sort of order in March 12th saying CFPB can't terminate contracts. And a lot of the opinion has quite strong and critical language of sort of what Judge Berman Jackson deems misleading if not outright false communications or effort, communications towards the workforce or essentially efforts to sort of pull the wool over the court's eyes in saying we were complying all the time with what the court was saying and our agreements not to to take further dismantling steps. And then frankly testimony that the court heard that suggested otherwise and suggested mass confusion. One particular piece is at a certain point with a court hearing coming up, there was an email from Mark Pauletta, the chief counsel, that said, oh, by the way, of course it was understood that employees would be carrying out their statutory duties all this time. Whereas really what had been going on, the factual development showed is CFPB employees had understood they were being told to go on ice essentially to stop working. And so I think the real interesting part of that opinion is not so much the legal principle which can be easily stated, but a quite extensive factual recitation. It culminated in Judge Berman Jackson entering a preliminary judgment, preliminary injunction, finding likelihood of success on the merits, irreparable harm and a balanced of equities. The government fairly quickly filed its notice of appeal. So now it's up at the D.C. circuit. In addition to noticing an appeal, the government sought to sought a stay pending appeal. That triggered some procedural jousting. There was a motion to strike that filing saying the government failed to seek a stay in the district Court. By the way, that's the same approach the government took in the JGG filings, folks will remember and played some role in in Judge Millet's decision making. At this point we are set, I should say that the D.C. circuit Emergency Panel, which for the month of April is Judge Pillard, Judge Katzis and Judge Rao, they have placed an administrative stay on the court's preliminary injunction. That order says that it does not signal any view on the merits and it also says that it does not unsettle either the consent decree for mid February or the March 12th order. And the D.C. circuit is set to hear oral argument on the, on the case Wednesday of, of next week. So that'll be an interesting bellwether to see where this panel is.
- [74:37]
Steve Vladek
Thank you, James. And we had another agency get a ruling or maybe not an agent other in institution, I should say that's U.S. institute of Peace, which has not been having much luck in the courts and efforts to push back against the takeover by the Trump administration. Anna, bring us up to speed on what we saw this week in that litigation.
- [74:56]
F
Yeah, I think that this, the US Institute of Peace saga is one of the more dramatic of the DOGE dismantlings in that it involves alleged, you know, trespass. There's, there was a standoff between staff at the US Institute of Peace in which the police were called and ultimately DOGE ended up gaining access to the US Institute of Peace building and its property and systems. There were was an effort to then move all of the, you know, 10 plus members of the board and then the ex officio members who are the kind of, you know, basically political appointees, Rubio, Hegseth, and then one other member who's a national Defense Institute had, are now kind of serving as the board members who are making all these different decisions. They removed everyone and then installed a man named Kenneth Jackson as the head of usip. Kenneth Jackson had also been involved in some of the dismantling of usaid. And we had a hearing a few weeks ago before Judge Howell, who's the judge that this case is assigned to, in which she somewhat surprisingly denied the plaintiff's request for a tro. And in that order, when she denied the Trojan, you know, she made it clear that she was not entirely sure if the plaintiffs are right, that the United States Institute of Peace really is an independent nonprofit. You know, it's a, it's an organization that was created by statute through Congress. But then it also has some other aspects to it that Judge Howell thinks makes it difficult to say really whether it's truly independent or, or whether USIP may be a part of the executive branch and that it's an executive department. She notes, for example, that on the one hand, while the statute is described as an independent nonprofit corporation and as a charitable organization, she also says that the institute's leadership is appointed by the President, confirmed by the Senate. The Institute itself is subject to foia, for example. So there are different things that, that apply to executive branch entities like FOIA request. That seems to suggest that maybe the USIP really is more like an executive agency. So she noted all of these things in denying the tro. And then we were brought back into court this week for a hearing because it turns out that over the weekend these ex officio board members who are acting as members of the, of the USIP board now, including Rubio and Hegseth, issued a, what was what they titled a resolution in which they removed Kenneth Jackson, who previously they had installed as the head of usip, and instead replaced him, or purported to replace him with a man named Nate Cavanaugh, who is a 20something DOGE affiliate who has been involved in a number of Doge activities. And included in this resolution was a direction that Nate Kavanaugh transfer the USIP building, which is a really beautiful building here in D.C. that's estimated, I believe the plaintiffs estimated it's worth about $500 million or something around that. But this resolution from Rubio and Hagseth directed the newly installed president of usip, Nate Kavanaugh, to transfer the property of USIP to gsa. The General Services Administration essentially for it later came out at a hearing that was held on this matter for no, for no compensation whatsoever. And so the plaintiffs acted very promptly, filed a motion trying to put a stop to this transfer to gsa. Judge Howell called a hearing. There was a hearing on the matter. The argument from the plaintiffs was under what's called the All Writs Act. Basically it allows the plaintiffs to ask for some type of relief in the event that there's something happening that could impact the court's jurisdiction or that could affect the court's ability to order a remedy of relief once the case gets later on in the litigation to the merit stage. Judge Howell holds this hearing. Unfortunately, I was only able to listen to about half of it because the public line cut off. But during the hearing again, Judge Howell expressed a lot of concern, as she did during the TRO hearing, about the conduct here and the way that things are proceeding. She very obviously seems to find the conduct of Doge quite reprehensible as, as in respect to its conduct towards usip. But ultimately she decided that the plaintiffs again had not made a showing necessary to obtain relief here to put a stop to the property. One reason why is that it came out of this hearing that part of the request was moot because the property had already been transferred on March 29 to JSA. But then there's another part of this hearing that related to funds from private donors in USIP's endowment. And as to those funds which had not yet been transferred, which Nate Kavanaugh had been authorized to transfer. In this resolution, Judge Howell proceeds to say that, you know, I don't think that the plaintiffs have made a showing of likelihood of success on the merits for essentially the same reasons that she made during the TRO hearing, in which she said, you know, it's not really clear if this is an executive agency or if this is truly an independent, nonprofit, profit corporation. So Judge Howell very much seems to be struggling with that question. You know, she has not indicated yet fully exactly what she thinks she said, continues to say that it's something that will be fully briefed and further considered once they get to the merit stage, but she's just not convinced at this point that she can make a decision. And so for that reason, she denied the order. And as as far as as far as the transfer of the endowment funds, that is something that Kavanaugh could proceed with. So that's what happened this week with the USIP stuff.
- [82:25]
Steve Vladek
SCOTT well, absolutely. Well, we are running low on time. Let us get to one last bundle of developments, which I think are pretty notable. That is, of course, the institutional attacks we're seeing on the law firm, law firms and on universities. Before we get into the merits on this, Steve, I just want to turn to you, actually, really quickly to get your thoughts on this, because you are in the unique position of being a faculty member, an educator, talking to law students, going into this profession, being a scholar at a university that has been the subject of some element of this targeting harassment to some degree, a little different so far than certain other universities, certainly to some degree. Just talk to us a little bit about how this is being received by students, by academics, what the impact this is and where we think the trajectory, the impact of this might be.
- [83:10]
James Pierce
It's a good question, Scott. I mean, I can't purport to answer for anyone other than myself, but I'll just say that I think for a lot of for me, this is a really profound and almost existential threat to why we have universities and why we have law schools and what we're supposed to be doing as law schools. You know, I think it's interesting to me so far that the attacks have not been especially directed at law schools, other than a really clumsy letter from the interim U.S. attorney in D.C. eagle, Ed Martin. And, you know, I think our dean Bill Trainer's response to that was was pitch perfect. But, you know, I look at the university piece much the same way that I look at the law firm piece, which is these are institutions Institutions that actually play a pretty significant role in standing up for the rule of law. And you know, I'm not sure if you're, you know, willing to sort of make a deal with the administration now. I'm not sure what leverage you have next time. And I'm not sure what stops the administration from exacting and extracting, you know, further pounds of flesh from the Columbias of the world and from the Paul Weiss's of the world. But more than my personal opinion, Scott, I mean, the Supreme Court itself has said that the rule of law depends upon a robust and independent bar. And I think that we should all be invested in protecting the independence of the bar, even in context in which that means defending people or firms that we usually disagree with. And so I've been heartened by those who have pushed back. I've been heartened by, you know, the lawsuits brought by Perkins, Coie and Covington and Jenner and you know, Wilmer and how some of those have already resulted in temporary restraining orders. You know, I think I've been worried that it hasn't been more of that. And so I think, you know, there's a lot to sort of still to play for to see just how much of this continues to sort us into those who are complying and those who are not. And what if anything happens in the courts with regard to the folks who are not complying and who are suing?
- [85:19]
Steve Vladek
Very well said on that front. Let us spend our last few minutes here zooming into these. Then we have one question we'll try to turn to. Roger, let me turn to you first. Talk to us a little bit about the law firm cases. What action do we see this week there? And then we'll go to the universities.
- [85:36]
Roger Parloff
Just to update after our lawfare live. Last time Wilmer Hale did get a tro, so did Jenner and Block, like, like Perkins. All of these cases seem to be moving toward a hearing on the merits the week of April 21. The the government is not trying to appeal these at the TRO stage. I think they know they're indefensible. The only people defending these on the, on the papers are two political appointees, Chad Meisel, who's Bondi's chief of staff, and Richard Lawson, a deputy associate attorney general who I believe worked with Bondi at the Florida AG's office. We also had two more firms settle firms that hadn't before they were hit with executive orders. That was Wilkie Farr and Milbank because they settled early. We don't really know who was being punished through them. Wilkie Farr. You know, it's reported that Doug Emhoff was there. I sort of think a more likely suspect was January 6th committee lead investigator Tim Heafy at Millbank. People are speculating. It's Neil Katyal, who the former Solicitor General. Who I don't know. You know, he appears on MSNBC from time to time. I'm not sure why he's being punished. He's also representing Kathy Harris, I think, in the Humphreys executory. So. And then there were some amicus briefs in the Perkins Coie case, which is the one furthest along. Frankly, to me, they're a little disappointing. There was this brief by law firms. It does have 500 law firms. It has very, very few of the biggest law firms. And then there's 363 law professors. It was surprisingly partisan for me. Maybe I'm wrong about that. But just going through, I did not see many conservative names and it seems like such a, you know, this is root and branch unconstitutional. It's indefensible. So it's, it's, it's a, it's a sad situation.
- [88:20]
Steve Vladek
Then finally, we do have a small update. Roger, I think I come to you as well on this, but just aaup, the Justice Department about Columbia and university academic freedom. What's a quick update on that before we go to our question with a few minutes to spare?
- [88:33]
Roger Parloff
Yeah, they just moved aaup and which is the American association of University Professors and the American Federation of Teachers suing over the Columbia, the sort of, the attack on Columbia. They were had $400 million cut off. The theory, you know, Colombia itself has tried to agree to the nine demands that the Trump administration made in some to some measure, but apparently the 400 million has still been cut off. Colombia itself has not sued. So these are the, these two groups are trying to do it on behalf of their membership, you know, the funds that they have lost for research funds. So there are significant, there are some standing issues, there are some irreparable harm issues. The theory is that the cutoffs were arbitrary and capricious. Also, you know, if you really think that they are doing something anti semitic or that there are provisions that Title 6 of the Civil Rights act says you're supposed to go through. You can't just cut off 400 million in funding without a notice or an opportunity for hearing. So that's where that stands.
- [90:06]
Steve Vladek
All right, well, thank you, Roger. Those are all the cases we have time to get through this week. Obviously, more data happen in the World. We'll try to cover some of the things we miss next week. Next Friday, 4pm Eastern. In time we dig into this. We have one question from Matt who asks what is the status of the Venezuelan migrants who are being held in El Salvador? They've been deported, but not to their home country. Apparently the US is paying El Salvador to detain them, but they haven't been charged with any crimes. Are they in U.S. custody? Under what authority? For how long? How do they challenge their detention? A lot of questions here. I'll take initial crack and I'll invite people to supplement on this. My strong suspicion is they're being detained under El Salvadorian law. I think will be the argument about how they're continuing to be detained by by El Salvador. I don't think they're considered to be in US custody, although that doesn't mean that the US couldn't still perhaps be compelled to seek their return under any sort of contractual treaty arrangement they had. And these sorts of removals to a third party isn't entirely unprecedented. There's something the first Trump administration did. Sometimes it's to comply with non reform obligations. You can't return somebody to their home country, but you transfer them to another party. And I think it's being done under the idea that you can remove these people to other countries with a fair amount of discretion as a sovereign authority. But how they challenge it under El Salvadorian law. But then presumably here there's a good chance they might be able to get some sort of remedy because of the US involvement here. But certainly presents some questions. Steve, anybody else to supplement that?
- [91:28]
James Pierce
Yeah, I mean, so there's actually a whole body of case law in U.S. law called the law of constructive custody. And there's a case from 2004 where Judge John Bates actually ordered jurisdictional discovery into the Saudi government's detention of a US citizen because the citizen's parents alleged that the Saudis were only holding him at our behest. And Bates said, obviously I can't order the Saudis to do anything, but I can order the federal government around. And so insofar as the federal government has the ability to affect this case, I can find out what that ability is. So, you know, that would be the question, right? The question would be could a district judge, whether it's Boasberg or somebody else. Right. Order the federal government to do something that would effectuate the return of these individuals or at the very least, that would cease their detention in El Salvador? And you know, I'll just say there's the answer here is actually a bit complicated because the federal government's own position during prior administrations has been that it cannot guarantee that it can get someone back from a foreign custody after they've been removed. Right. But you know, we have, so we have the sort of the, the conflation, Scott, of constructive custody. But even if the US Stops paying El Salvador, what happens then? Right. And I think that's part of why Judge Boasberg has been so adamant in these cases about the need for judicial review before these folks folks are removed so that that can't keep recurring.
- [93:00]
Steve Vladek
Well said. Well said. Well folks, that brings us to the end of this week's Trump, not Trump trials and tribulations. To me, trials of the Trump administration. Too many teas to keep track of. I am your temporary host, Scott R. Anderson. I believe Benjamin Woodis will be back next week as well. Many of our guests, thank you to Steve Vladic, thank you to Roger, James and Anna for joining us this week, and thank you all for watching and listening in. We will see you hopefully at 4pm next week. Until then, goodbye. The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter at our website, lawfairmedia.org support. You'll also get access to special events and other other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for our other podcasts including Rational Security, Allies, the Aftermath and Escalation. Our latest Lawfare Presents podcast series about the war in Ukraine. Check out our written work@lawfaremedia.org the podcast is edited by Jen Patya and our audio engineer. This episode was Ian Enright of Go Rodeo. Our theme music is from Alibi Music. As always, thank you for listening. Are you still quoting 30 year old movies? Have you said cool beans in the past 90 days? Do you still think Discover isn't widely accepted? If this sounds like you, you're stuck in the past.
- [94:41]
James Pierce
Discover is accepted at 99% of places.
- [94:44]
Steve Vladek
That take credit cards nationwide. And every time you make a purchase.
- [94:47]
James Pierce
With your card, you automatically earn cash back.
- [94:50]
Steve Vladek
Welcome to the now it pays to Discover.
- [94:53]
James Pierce
Learn more@discover.com creditcard based on the February 2024 Nielsen report.