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- [00:01]
Benjamin Wittes
The following podcast contains advertising to access an ad free version of the Lawfare Podcast Become a material supporter of lawfare@patreon.com lawfare that's patreon.com lawfair also check out lawfare's other podcast offerings, rational security chatter, lawfare, no bull and the aftermath.
- [00:33]
Anna Bauer
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- [00:49]
Benjamin Wittes
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- [00:57]
Anna Bauer
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- [01:01]
Renee Diresta
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- [01:50]
Michael Feinberg
This entire argument that Patel has been floating about us tranche of documents in a secret room is utter lun.
- [01:59]
Benjamin Wittes
It's the Lawfare podcast. I'm Benjamin Wittes, editor in chief of lawfare, with lawfare Senior Editor Anna Bauer, Lawfare Legal Fellow James Pierce, and lawfare contributors Michael Feinberg and Renee Diresta.
- [02:14]
James Pierce
What we heard next was that the burn bag document was the secret annex to the Durham Report. Everything about this is patently insane.
- [02:22]
Benjamin Wittes
In the August 1 episode of the trials of the Trump administration, we discussed the Justice Department's complaint against Judge James Boasberg, the legal challenges to Alina Haba's appointment as U.S. attorney in New Jersey, a lawsuit by Democratic Congress members against ICE over restrictions on visiting detention facilities, and much, much more. It is Friday, August 1, 2025. It is 4pm Washington time, and you are watching Lawfare Live. The trials and tribulations of the Trump administration. It's been quite a week, but not in litigation so much. So we're going to have an unusual show today in that we're going to put all the litigation stuff in on the back burner today, and we're going to focus a lot on machinations inside the executive branch, executive actions, that sort of thing. I am joined Roger Parloff is on vacation this week, but I am joined by James Pierce from the Cathedral Studio. Hey, James.
- [03:49]
Roger Parloff
Hey, Ben. How are you?
- [03:52]
Benjamin Wittes
Anna Bauer joins from which room is that? In the palatial mansion.
- [03:58]
Anna Bauer
This is closest to the Starlink satellite wing of the palatial mansion.
- [04:05]
Benjamin Wittes
Yes, because Anna's palatial mansion is in rural Georgia, where the only way to connect to modernity is through Starlink. She is a mere puppet of Elon Musk. Joining us from what I don't think.
- [04:23]
Michael Feinberg
I have a studio name.
- [04:26]
Benjamin Wittes
Well, I think we're going to have to fix that. It's the Panda Studio. The Panda Head studio, former special agent, assistant special agent in charge Mike Feinberg. And we are going to be joined by Renee Diresta at some point. Folks, we got a lot to go over this week, so let's dive into it. James, I want to start with it. It was inevitable that this was going to happen. You know, first you defend against lawsuits, then you sue the courts, and then eventually you file misconduct complaints against the judges on the courts. The attorney general, through her chief of staff, has filed a misconduct complaint against James Boasberg, the chief Judge of the U.S. district Court for the District of Columbia, claiming that he made inappropriate prejudicial comments at a conference. What do you make of this complaint and how worried should Judge Boasberg be?
- [05:46]
Roger Parloff
Yeah, so I don't make a whole lot of the complaint, by which I mean I don't think there's much merit to it, which I think also answers the second question, which is if I were Judge Boasberg, I don't think I would be much worried. But I do think it is yet a further illustration of what we have seen from the administration in a kind of attack on the judicial branch more broadly. One thing, and I don't think we've talked about this on lawfare Live, but it's been mentioned in connection with the complaint we saw filed on Monday. Is there was a complaint filed against Judge Ana Reyes, also a district court judge in the District of Columbia. There was an effort also this is, of course, not a complaint, but an effort in one of the early cases that former Chief Judge Howell was handling to try to have her recused. Of course, we've talked about the lawsuit against the entire bench of the District of Maryland in connection with a standing order there. And so in that respect, I think it's not entirely surprising, maybe even not surprising at all, the complaint that was filed earlier this week that said it really doesn't look like a kind of the kind of thing that the Justice Department in recent history or deeper history would have done. There's some good reasons for that. I mean, the Justice Department is about as much of a repeat player as you've got in the, in the federal courts. And so it's usually not good business to go around antagonizing judges. The thrust of the complaint is basically that Chief Judge Boasberg, at a judicial conference. So this is an event with other judges on March 11th of this year. And that timing is relevant in a way. I'll mention in a moment, made a comment. It's not quite clear from the complaint whether this was a speech he was giving or a conversation, but essentially a comment that he was worried. Chief Judge Boasberg was worried about that the Trump administration would not comply with orders and in so doing, trigger a constitutional crisis. And the complaint argues that this was an effort by Boasberg to try to influence the Chief Justice, Chief Justice Roberts, who heard it, and others. I still don't quite understand in what respect it was seeking to influence them. In any event, it doesn't appear that it was in connection with any case. And, and was, if anything, a comment. I mean, you know, it'll be interesting if there's some development on this, how Chief Judge Boasberg would respond, but sort of the long and short of it from, from where I sit is it's, It's a bit of a. Of a, of a nothing burger, though the complaint sort of suggests that this is undermining the integrity and the impartiality of the judicial branch. And there's a. I think something quoted where John Yu, a scholar and someone who was in the government, says essentially this was Boasberg's efforts to undermine the judiciary or try to, in some ways, entrap the Chief Justice. I do want to emphasize, I mentioned the timing. So March 11 was for those who have followed litigation, and hopefully many of the folks tuning in here have. That was four days before for the emergency hearing in the JGG case. So that, of course, is the case involving the Alien Enemies Act.
- [09:25]
Benjamin Wittes
Just to be clear here, on March 11, he said he was worried about something that then, in fact happened three days later. Three, four days later. Right.
- [09:36]
Roger Parloff
Yeah.
- [09:36]
Benjamin Wittes
I mean, that's perspicacity, misconduct.
- [09:41]
Roger Parloff
Yeah. Right. If you've got, if you can see into the, into the future, you know, that's, that's clearly some sort of sorcerer's power that is, you know, against the judicial canons of canon of ethics. But yeah, it is, it is actually quite disturbing that he foresaw exactly what, in fact happened in terms of the, what appear to be, I mean, this is still obviously active litigation, but misrepresentations by Drew Ensign and about, you know, whether the government knew that there were flights in the air and then, you know, other, other aspects of that that are still in fact, a matter. And this is referenced in the complaint of potential contempt proceeding that Judge Boasberg initiated and that has been sitting in a stay posture in the DC Circuit for quite a long time at this point. So in terms of, just to get back to your question, how worried should he be? So at a process level, the complaint was directed as judicial complaints for district court judges typically are to the chief judge, relevant circuit, the D.C. circuit, that's Chief Judge Sri Srinivasan. When, when complaints are kind of facially frivolous, a chief judge will often just dismiss them. You'll see that more often with kind of pro se litigants or sort of not, you know, folks who are just frustrated by the outcome in their case. I actually think that the chief judge will probably not just dismiss it. I mean, it'll be interesting to see how he decides to handle it. He'll probably refer it out just in terms of, obviously, the Justice Department itself has given this a lot of publicity. But I very much expect that this is not going to go anywhere. It's not going to end with the types of sanctions that the government is seeking, which is get them off the JGG case, some sort of potentially putative sanctions or whatnot. I would be shocked if there were a finding of misconduct, let alone some kind of sanctions along the lines that the government has requested in its complaint.
- [11:43]
Benjamin Wittes
I just want to say I don't understand what the purported misconduct is. If you, let's imagine that first of all, these are not, I mean, I imagine he were trying to warn the chief justice, specifically, you know, Judge Justice, Chief Justice John Roberts, who, who I believe he was. No, he was roommates with Brett Kavanaugh right back in.
- [12:14]
Roger Parloff
I think that that's right.
- [12:15]
Benjamin Wittes
So, I mean, imagine. But he's, you know, he's. So there's a, in, it's not a comment on a pending case. There's no, there's no pending or impending case before him that he knows about. It's not a comment on any specific problem or litigation at all. It's a general anxiety that the administration might not follow court orders. What is, Anna, what's the, what's the purported misconduct?
- [12:49]
Anna Bauer
Are you not Well, I was gonna, no, I was gonna jump in and say, I just want to supplement this conversation by adding that he was. So for some context to all of this, the complaint is entirely misleading with respect to what I think is the full context of what he said. You have to go back to when this news first came out. It was published in a Federalist story in which a reporter for the Federalist obtained this Judicial Conference memoir and you know, did not publish the full memo. So I, and I have not seen the full memo. It is not attached in the government's complaint that is public. But there is, it seems to be that the Federalist memo that was reported on and then also the government's complaint are based on the same document because they quote, you know, the exact same language except in the Federalist document. It makes it very clear that Judge Boasberg, according to the memo, which again is someone's summary or recollection, it's not an exact transcript, as I understand, says that he was expressing his colleagues belief that the Trump administration might violate court, court orders, not his own belief. So then you look as in he.
- [14:31]
Benjamin Wittes
Was reporting concern among the district judges.
- [14:34]
Anna Bauer
Right, because he is a, he's the chief judge of the D.C. district court. That is his job at the Judicial Conference as a representative, right, Is to kind of, you know, be someone who conveys the anxieties or, or things that he's hearing amongst the District court judges, at least as I understand it. Maybe people who are, know more about the inner workings of the Judicial Conference can speak to that. But when you look at this complaint, instead of adding the line about his colleagues concerns, the Justice Department instead says that Boasberg attempted to improperly influence Chief Justice Roberts and roughly two dozen other federal judges by straying from the traditional topics to expand, express his belief that the Trump administration would quote. And then that's when they quote the disregard court rulings. So, you know, it's, it's very interesting to me that that is conveniently left out. The other part of all this that is really misleading in terms of the facts in this complaint is that the government is, is alleging that Boasberg impacted public confidence in judicial proceedings by making public comments about this.
- [15:56]
Benjamin Wittes
Right. This is not a public comment. The Judicial Conference is, you know, people hear the word conference and they think about like, you know, a hotel with a conference hall or something, or, you know, the Falk Auditorium at Brookings. The Judicial Conference is an administrative body composed by, of judges that runs the federal judiciary. It's a, it's the Leadership of the judiciary composed of, you know, the chief judges of a bunch of courts that supervises the administrative office of the US Courts, which is the administrative arm. So comments to the Judicial Conference, it's not like it's, you know, the D.C. circuit Judicial Conference, which is a semi public gathering of judges. Right, Anna?
- [16:53]
Anna Bauer
Right. And the only reason that these comments became public is because someone gave this memorandum to the Federalist, who then published in part, excerpts from the memorandum, which again is, as I understand it, a conference attendees recollection or summary of what happened. And according to the reporter who, you know, made some tweets about this other day, after people were asking, why didn't you publish the whole memo? The entire extent of Judge Boasberg's, you know, comments, it were just this one line. Judge Boasberg then raised his colleagues concerns that the Trump administration might disregard court rulings and create a constitutional crisis. And then, you know, Chief Justice Roberts allegedly, you know, responded by saying that his interactions with Trump had been positive and that that included him thanking him, the Chief justice at the State of the Union address or the joint. Joint.
- [18:00]
Roger Parloff
The swearing in, I think.
- [18:02]
Anna Bauer
Thank you.
- [18:03]
Roger Parloff
Right.
- [18:04]
Anna Bauer
Yeah, but, but so, I mean, look, it's. The point is though, this is not something that is typically public. If you go and look at the actual report of the proceedings of the Judicial conference, there's nothing about that in there because this is, this was not something. This was, you know, supposed to be something that was just the judges. And again, we don't have a lot of context for what exactly this working group breakfast was because the Federalists and then now the government have not published this full memo and we don't know who the author of the memo was. Wasn't an, you know, was it the secretary taking internal minutes? Was it just a conference attendee who wrote something up about what was going on and shared it with judges and clerks? We really don't know.
- [18:52]
Benjamin Wittes
All right, well, let's not spend a whole lot more time on it than that. In that case, if Judge Serena Vas. Chief Judge Serena Vasin takes it more seriously than we are collectively inclined to, we can deal with it at that point. Anna. Mr. Bovi. Now, Judge Bovey, I have called for, already called for his impeachment in my column today. Do you have thoughts on the confirmation of the talented Mr. Bovi?
- [19:26]
Anna Bauer
So it's one of those things. It's not surprising I would be, you know, we expected that he would be confirmed by this Senate. It always seemed like it was going to be a stretch. I Will say in the days leading up to his confirmation vote, there were a number of additional news reports and revelations about additional whistleblowers who came forward. We already knew, of course, about Erez Rouvainy, who, you know, made a complaint, the substance of that complaint, and then many of the supporting documents were then made public. But there were additionally, you know, at least two other whistleblowers who came forward. One of them, as. As I understand it, and based on, you know, the reporting in news reports, one of them, it related to Bovi's conduct, not related to, you know, the Alien Enemies act cases or the Kamara Borrego Garcia case, which is what much of Ruvaney's complaint was about, but it was about Bovi's conduct with respect to the Eric Adams matter. And, and a meeting that was convened surrounding, you know, who was going to sign the dismissal of the Eric Adams case. Apparently, according to AP News, there is a recording of that meeting that the whistleblower had and that suggested that Bovey had been untruthful during his confirmation hearing when he was asked about what occurred during that meeting. And then there's also an additional whistleblower as well. One of the interesting things, too, is kind of some of the background with one of those additional whistleblowers filing an inspector general report or complaint that was then, according to the inspector general's office, you know, basically lost for, like, two months. And then it wasn't until, like, the day before the confirmation vote that they magically, you know, found this report or this complaint. So, you know, it was. It all was just a little bit that seemed too little, too late. And even if there had been more, I. I doubt it would have made a difference anyway. But it might make a difference in terms of potential future consequences. Well, whenever we get to the JGG case later on, you know, it's very clear that Judge Boasberg is still intent on investigating potential contempt or referring people for bar proceedings if the D.C. circuit says that he cannot proceed with contempt proceedings. So, you know, being a Third Circuit judge, as far as I'm aware, there's nothing that would prevent further bar proceedings or some kind of investigation through, or additional proceedings through contempt proceedings. Am I wrong about that, Ben? And. And what do you make of the Bovie confirmation?
- [23:07]
Benjamin Wittes
Yeah, well, I'm disgusted by the Bovie confirmation. I don't know that your ability to serve on a federal court is contingent on a bar license.
- [23:20]
Anna Bauer
No, it's, it's. And to be clear, I don't think it is. But I. I still. I am a person who thinks that bar proceedings can serve an important communicative function.
- [23:34]
Benjamin Wittes
Yeah, I mean, look, I think it's a. Look, it puts Judge Boasberg in a very awkward position. Are you going to refer. And it's not, you know, it's not entirely clear to me whether the record in the case before Judge Bovey above, before Judge Boasberg will. At the end of the day, he's. He's been basically barred from proceeding in, no pun intended, and figuring out what happened. Exactly. But look, it's a very bad look for Emil Bovey. The only question is whether he cares. And the answer is that he appears not to. And so I don't. You know, I don't really know what to say about it, except what I said in my column this afternoon, which is that the day there is a majority in the House of Representatives that would contemplate investigating this matter in a serious way, they should do so and they should impeach him. And, you know, this is a nomination where the confirmation was procured by some combination of senatorial negligence and. And the nominee's own prevarications under oath. The Senate cannot revisit this because you only get one chance to vote on a confirmation, and then it's gone. The Senate, the president now has his consent to install this person on the Third Circuit, but the House has never considered this matter, doesn't get to. In the context of the confirmation, but does have the sole power of impeachment. And I do think the record that you could assemble of Bovey's conduct through these three or four separate incidents. JGG Kilmar, Abrego, Garcia, Eric Adams, and the terrorism directed at the FBI and people like James are cumulatively very damning. And so I. I do think at the moment at which you have a majority of the House of Representatives that's, you know, capable of something like independent thought, you know, the only remedy we have is impeachment, and they should use it. That's. I mean, that's sort of all I know how to say in this situation. All right, let's turn to Alina haba. James. The U.S. attorney for the District of New Jersey is dead. Long live the U.S. attorney for the District of New Jersey. What. What's going on in the Garden State?
- [26:42]
Roger Parloff
Yeah, we talked about this a little bit last week, and Lawfare has a. Has a great piece up in the last couple of days that walks through some of what is, frankly, a pretty confusing morass of sort of moves factually against a confusing or at least overlapping statutory regimes. You know, we talked about how a the attorney general can, can, can appoint essentially an acting US attorney who's, who's has an expiration date of 120 days, and then the courts can do it under one statutory provision. And that is what happened here until the department came in, called the judges in New Jersey rogue and fired the replacement who had been the first assistant under Alina Haba. And then the department purported to put her back on through the Vacancies Reform Act. And I don't want to kind of retread the conversation that we had last week. And for folks that want to kind of get down into the weeds, I again would commend to you the piece that went up on Lawfare. But I will make one comment about we've seen filings since we spoke last. So we've seen challenges, as I think we predicted would happen. By the way, I'll pause for just a moment here, which is these challenges are filed in the district court. They've, they've actually now been moved outside of the District of New Jersey because of potential conflicts. So it's being handled by a judge in the middle District of Pennsylvania. But assuming this goes up on appeal and it can't go up in an interlocutory posture, it could go up in front of Judge Bovey, a 3rd Circuit judge, because that is the, the district that New Jersey sits in. So some dovetail with our, with our last conversation. But the interesting thing that I want to just draw some attention to that we did not talk about last week and that we saw in some of the filings that we have seen since we last spoke, was a criminal defendant who basically has made the argument that the appointment of Alina Haba violates both section 546, which is the statute I sort of walked through, as well as the Vacancies Reform act, as well as the Appointments Clause, and cites in support of this claim the opinion that Judge Cannon of the Southern District of Florida issued in the matter involving Special Counsel Jack Smith litigation with which I was involved.
- [29:14]
Benjamin Wittes
Is that just a troll or is that a serious I mean, it's a great, it's a kind of great troll. But is it more than that?
- [29:25]
Roger Parloff
I would have to say I don't think it's more than a, than a bit of a troll. You know, it's, it's, it's dropped in at the very beginning of the motion. It's dropped in at the end of the motion. It's a supplemental motion to the to the motion to dismiss. Frankly, I actually don't think that the, the motion, despite how it's, how it's captioned, is really making much of an Appointments Clause challenge. The Appointments Clause is right. What provides that officers have to be nominated by the President and confirmed by the Senate. And then there's. And that is what it's become. That's the default and required for what. And the Constitution doesn't use this for principal officers. But then that, that also constitutionally, Congress can vest appointment of officers in the president alone in, in the courts or a head of department which enables all of the kind of statutory practice that we or provisions that we just talked about for a U.S. attorney which the government in its filings acknowledges consistent with what the government has long said is an inferior officer. So the language that the motion quotes from, from Judge Cannon sort of talks about the separation of powers concerns that are embedded in the Appointments Clause, but it doesn't really walk through at least as I read it. It's a pretty short filing. What, what it is trying to get at the government for its part has a very short footnote that basically says, look, the, the question in the, in the case in United States versus Trump was about a, a special counsel and the creation of an office that didn't otherwise exist. This is talking about a U.S. attorney's office which has long existed. There's no creation of an office. And there are various sort of alternative arguments that the government advances. I'm not sure they're all right. But it's not really an appointment clause challenge. It's kind of. No, it's. This is proper under the Federal Vacancies Reform Act. And then by the way, there's this back backstop under 5 United 28 United States code 515, which is by the way, the same provision that one of the provisions that, that the government that I among others argued supported the special counsel, but very, very different set of circumstances with the U.S. attorney position.
- [31:40]
Benjamin Wittes
All right, so again we will. I think Alina Haba's appointment is probably on the lawful side of the line that if lawful is defined by, you can get away with it. But we will keep an eye on this if it as it, as it develops. All right, Mike and Renee, we have, I think the technical term for it is crazy shit going on at the FBI. And I just want to wind you guys up and let you go on press. Go on this Cash Patel. That's Cash Patel is the director of the FBI in case people have forgotten that claims to have found thousands of documents related to Russiagate in burn bags in a secret room at the FBI. Now I want to identify how many problems I have with this sentence. First, is what is the FBI Director doing wandering around finding secret rooms at the FBI? Secondly, are there really secret rooms with burn bags full of 8 year old Russiagate documents? Does the FBI really take 8 years to burn the material in burn bags? And three, what are the chances that of all the secret rooms cash Patel would have discovered and he spends a lot of his time in Vegas. So like he's wandering around the FBI looking for secret rooms, he finds a secret room and it happens to be the one of all the secret rooms with the burn bags from eight years ago Russia investigation documents. Some part of me is smelling a rat here. I don't know going to kick it to Mike first, just as somebody who's hunted around for secret rooms in the Bureau before. And then Renee, should we take this remotely seriously or is this just the kind of bullshit that you say when you're the FBI director and you're expected to be delivering on conspiracy theories to to your constituency?
- [34:16]
Michael Feinberg
This entire argument that Patel has been floating about us tranche of documents in a secret room is utter lunacy. First, we have the threshold issue that John Durham during his investigation and the FBI agents who were assigned to him never worked in the Hoover Building. So the notion that there would be some sort of storage locker or hidden skiff that you could only get through with a password and a retinal scan or something, it's ludicrous. Any documentation that John Durham would have produced, including the classified annex, would have been produced to the Attorney General, to the Justice Department. That said, there would have been electronic copies which were accessible from FBI systems as they're hardlined to certain DOJ systems. But there's no merit to his claim whatsoever. Second, even if Durham did spend time at the FBI building, there are not secret rooms. This is not a building overflowing with space. In fact, close to 50% of headquarters functions are actually done at off site facilities, including all of our records management, which is not even in the D.C. metropolitan area. So I'm a little confused as to how he himself could have discovered some secret passage leading to a skiff nobody else was aware of. And in that skiff discover a document which had never been produced to Hipsy or Sissy or the Attorney General or anybody at Main Justice. The notion that this classified annex of Durham's was just lying around FBI headquarters and previously unseen by anybody in authority is patently insane.
- [36:17]
James Pierce
I Mean everything, everything about this is patently insane because I think that the, then we, what we heard next was that the burn bag document was this secret annex to the Durham report, which has classification. I have, I printed it so I could read it with a highlighter last night. Which, which is not, which is not random pieces of paper. They're electronic records. This is not, this is not a random document that you would not have access to put it in a burn bag.
- [36:46]
Benjamin Wittes
There'd still be electronic copy.
- [36:48]
James Pierce
It says classified by John H. Durham on it. This is official material. This is not something that was, this is not, this is not like raw notes or something that they decided that they were just going to get rid of. So the, the entire theory is extraordinarily stupid if you think more than two seconds about it. It makes absolutely no sense. But this is the kind of thing where, you know, this is for the social media audience where they, you know, it's like I always, I always say that, that they live in a cinematic universe, right? They have these characters, they're in a cinematic universe. The Deep State has done a thing. There are secret rooms in the FBI building. Anybody who's seen like a Jason Bourne movie is like, oh, I know that plot point, right? It's a trope. And they're just relying on the trope to, to gin up attention and to make people think that, that something scandalous and untoward has happened when what? Grassley. So, so Kash Patel then says, so I took these burn bags of documents and I took them to Chuck Grassley and he declassified them. And then we get the Durham Report, Sorry, the Durham Annex, authorized for public release by Chairman Grassley last night.
- [37:47]
Michael Feinberg
I'd also add that like the decision to declassify a document like this is not something that just happens because Cash Patel and Chuck Grassley get in a room and decide to make it happen. There's memoranda, there's arguments, there are interests that have to be weighed. There should, should be a paper trail within FBI systems that is not bigot listed, not heavily caveated. That explains why they're choosing to declassify this. And I personally would love to see some investigating in, you know, innovative journalist FOIA that.
- [38:25]
Benjamin Wittes
All right, so help me out. What is the significance? Assuming that that these are the secret room with the secret burn bags of eight year old documents is some kind of a fiction for dramatic effect, but the relevant document that all of it was designed to set up is the Durham Annex. What is the significance of the Durham Annex Annex? Renee, first and then, Mike.
- [39:01]
James Pierce
So the Durham annex appears to be the story of an investigation into what has been called for a long time, the Clinton campaign plan. So in the sort of lore here, it's the idea that the Clinton campaign set out to launch an investigation under false pretenses into Trump colluding with Russia. And so what you have in this document for about the first 11 or so pages is the allegation that Clinton is doing these things. So there is a source that they refer to as T1. And you can read the sort of chronology here in which T1 is turning over memos. And in these memos, they are Russian memos. They are describing documents that the Russians have, that they have hacked. And this is heavily redacted. Some of these sentences, but what you can kind of intuit, and Michael can maybe fill in some of the blanks here, is that they are these, these sort of hacked memos are describing conversations between the DNC donors, the Open Society foundation and others in which they are talking about Clinton's position in the campaign. These are sort of early in 2016, February, March 2016, they're talking about Trump kind of rising in the, this is before he's officially the candidate that becomes. That happens in May of 2016. So they're talking about the sort of situation on the ground in the United States. And what you see as they move on is as they're describing this, this process of these materials being released, these materials being turned over is that the FBI begins to sort of lose confidence in this source. They begin to decide that he's not very, that they are not very reliable. Midway through the annex, there are emails that are purportedly written by somebody at the Open Society Foundation, Leonard Bernardo. And these emails are supposedly the kind of smoking gun that right wing media is talking about today. That is why this annex matters. And these emails are Bernardo communicating with somebody who is saying that they are going to the FBI will sort of pour more oil on the fire, is the phrase to, to create sort of the pretext for an investigation into Trump Russia. That's what, that's what is happening. But when you get to page 12, so when you, pages 1 through 11 are sort of the setup here. When you get to page 12, you begin to see that multiple versions of that email are actually in the raw intelligence documents, that different sentences appear in different orders. In this purported email by this guy, there are references to the Olympics. The gru, Russian military intelligence actually hacked the Olympic Committee also at one point. So there are ways. So it begins to appear that this email was cobbled together from other emails that are also in the body of material that Russia has hacked. So they begin. So Durham himself itself in the document, begins to say that they don't have very high confidence in the authenticity of this email. And so there are several pages in which they're trying to figure out whether these emails are actually authentic. And so they're going around interviewing the people whose emails were hacked, interviewing the people whose names were mentioned, pulling material from the servers of the people who were hacked, engaging with other allies who have intelligence into the matter. And it seems to be that one of the reasons why this was either not released or not incorporated into the Durham report, the main report, is that this is highly likely a fabrication of Russian intelligence that was released to create a false picture of the so called Clinton plan.
- [42:51]
Benjamin Wittes
Right. So the, so let's reconstruct the story here. Cash Patel finds a secret room in the FBI with burn bags full of documents about Russiagate. And he goes, he rifles through the documents and he finds an annex, a classified annex by John Durham, the special counsel to investigate, you know, the Pete Strucks of the world. And he races over to Chuck Grassley who by the way, does not have any classification authority. And they jointly decide to declassify this document. And it shows that the Russians forged a document to slime Hillary Clinton with having a secret plan to steal the election.
- [43:59]
James Pierce
So it's a plan to try to launch, so a plan to launch an investigation into Donald Trump's connections to Russia.
- [44:07]
Benjamin Wittes
That'S what, and thereby steal the election.
- [44:11]
James Pierce
This, this is the part where again, much like the stupidity of the secret room and the burn bags, the like there are many, many, many things to get hung up on. It's, you know, the sort of south park underpants gnomes. Like what is the point of.
- [44:27]
Benjamin Wittes
Wait, Renee, the key thing here is that the gravelman of the material in the so supposed burn bag found by the FBI director personally in the secret room is that the Russians set up Hillary Clinton. According to John Durham, this seems to, yes.
- [44:49]
James Pierce
And that is why I cannot understand why this annex is being harped on as the smoking gun. Because when you get to page 12, it kind of negates everything that happens from page one to 11. But the, and I'm really trying to be as, you know, like Steel manning the argument here. Right. Even if, even if you assume that it's true, it's not clear why it matters and it's not clear that it shows a treasonous conspiracy by Obama. And not very much is Is like it just does not make sense. Also it's classified by John Durham who.
- [45:27]
Benjamin Wittes
Is not a classification authority last I.
- [45:30]
James Pierce
Checked, which that also was very confusing to me and I thought maybe, maybe one of you had an answer to that. But everything about this is, is extremely weird. But here's the thing, right? Just as somebody who, who studies propaganda and attention on the Internet, the framing of this has already happened. And that's one of the issues that we're having here, right? Right wing media took this and they ran with it. They, the people who had it have been sitting on Hannity talking about how like, you know, people must be terrified in D.C. tonight. Like the truth has been exposed. And I again I'm like, did you read to page 12? Like did you, how many pages in did you go? Because they're quoting the lines from the email as if they are authentic. Specifically the ones funny enough that I don't know how many, you know, kind of inauthentic Russian content operations you've seen. I've seen a fair bit at this point. A lot of the English in there just does not seem to be particularly solid. Like they will put more oil in the fire. Like the idiomatic wording of some of it that the author is saying. I never wrote that. It's just a lot of it just doesn't match up. It's very strange to see them leaning so heavily on this document that Durham himself didn't seem to be particularly confident in.
- [46:44]
Benjamin Wittes
It's an annex because Durham didn't include it in the report.
- [46:50]
James Pierce
Yes, exactly. And I wondered if perhaps he couldn't include it in this. Again, the steel man here, two sources and methods. Like he couldn't get it in the report. But I just don't believe that. I just don't buy that. So I don't understand if he didn't think that this was worth including in the report. If he stuck it in an annex because he didn't have confidence in it. Like he couldn't get it to that point. Why is this the smoking gun?
- [47:16]
Benjamin Wittes
Now Mike, what do you make of this?
- [47:20]
Michael Feinberg
So a couple of points I'd like to raise. The first is that, and I'm sure James could speak to this too, anytime a special counsel report is written, you want to write it in such a fashion, such that as much of it can be released as humanly possible. So it's not incredibly odd that there would be an annex consisting mostly of classified material. Probably classified because of the sources and methods of the Sorcerer Reporting. They refer to the Annex as T1, you don't want that in the main body because it's going to make it more difficult to get the entire document out, which is the half the reason of writing a report like this. I was sort of keeping track of my thoughts as I was reading the classified annex and long before I got to page 12 where as Renee referenced, you sort of see Durham himself undermine the authenticity of these emails. I think I sent a message to Rene and definitely noted to myself that this screams Russian passage material to me. And for those who don't know what passage material is, it's essentially information that is created by a hostile foreign intelligence service, made to look pretty true and then sent to their adversary in the hopes of undermining how they perceive reality. So I think what they were trying to do is maybe intuiting that their connectivity to Trump campaign officials and the attempts to influence the US Electorate might eventually get get investigated, is create a sort of trail of documents that would undermine the very predication of those investigations if they were already going on. In other words, this is sort of a prophylactic means for them to cover their tracks ahead of time. But again, it's just weird. As Renee said, it doesn't read like a document written by somebody who's native language is English. It's compiled of points from a whole bunch of other emails. So there's just enough what we would refer to as chicken feed to make it look like an authentic document. This is the sort of thing that we, the U.S. government would cook up if we were trying to undermine the faith of the Russians or the Chinese in one of their own internal investigations.
- [49:57]
Benjamin Wittes
Right. And it worked. Right. So the Durham Investigation starts in 2019 and it continues through the entire Biden administration, undermining confidence in the Mueller investigation. And, and it did it by investigating stuff like this, and it's still doing it because you cash back. Patel finds this document in a secret room in a burn bag and declassifies it and the whole right wing media goes bananas about it. All right, let's move on. Again, not give this more airtime than it needs. James, let's talk about personnel actions at the United States Copyright Office because somewhere between burn bags and personnel actions at the United States Copyright Office, that's where the truth lies. And I suspect it's closer to cop to actions, personnel actions at the US Copyright and Trademark Office. What happened? We have a preliminary injunction, so we.
- [51:18]
Roger Parloff
Don'T have one because we have a denial of a preliminary injunction. This is a case where, as you said, the Register of Copyrights and also the Director of Copyrights within the Library of Congress was fired by the administration in early May and quickly replaced, some may remember, by Todd Blanch, the deputy Attorney General. The administration has this curious practice of giving many portfolios. Marco Rubio, I think, is, is probably.
- [51:51]
Benjamin Wittes
The holder of the most national archivist, among other things.
- [51:54]
Roger Parloff
Yeah. So this one didn't go to Rubio. It went to Todd Blanche. And then he ended up sort of delegating that to someone else. But then there followed a challenge in District Court in D.C. by the Shira Perlmutmutter was the name of the of the Director of Copyrights. She sought a temporary restraining order. The judge this is Judge Tim Kelly, Trump appointee from, from the Trump's first term.
- [52:20]
Benjamin Wittes
Good job.
- [52:22]
Roger Parloff
You said good job. Yeah. So Judge over also was the judge who presided over the Proud Boys case, kind of a, a careful, I think thoughtful judge. I've appeared in front of him a handful of times, and I agree, I think he's a, a good judge. He denied the temporary restraining order on the, on the grounds that the plaintiff, Ms. Peralter, had not established that she would face irreparable harm from her her removal, though, of course, she herself would be out of a job. The Copyright Office would continue to move forward. It would be staffed unlike other places. There would be no loss of quorum. And when the preliminary injunction came around, Judge Kelly basically reached the same result. And interestingly, right at the beginning of the analysis, he says the analysis here begins and ends with a reparable horror harm. I say that's interesting because I think as folks who have been watching a lot of this litigation. Right. We'll know when we're in the context of preliminary injunctions and stays. You're doing an assessment that in theory really turns most heavily on a question of the likelihood of success on the merits. And this opinion has absolutely not a whisper of that. You might think, oh, well, what difference does that make? In a lot of these removal cases, the administration has been successful, at least as it reads its higher courts. And there's this general sense that the Supreme Court is on the cusp of overruling Humphrey's executor, which has been this, this protection for independent agencies. And I would say that's that's all right, except what we have here is the Library of Congress, which I think is an Article 1. And so it's not something that sits in Article 2, where you've got that broad vesting clause. Interestingly, though, the Librarian of Congress is appointed by the President and confirmed by the Senate. And then the Librarian of Congress in turn, selects this particular officer. So they're going to be some interesting merits questions. And maybe precisely for that reason, Judge Kelly just didn't, didn't get there at all and relied entirely on irreparable harm. But no relief in the near term for Ms. Perlmutter. Todd, Blanche's deputy, remains in, in charge of the Copyright Office, though it will be interesting to see when we do actually get a merits ruling on the challenge, whether it turns out that this removal question, Again, an Article 1, not an Article 2 question, is something where you actually see the challenger successful. And I could see that holding up even if you, as you make your way up the appellate chain.
- [54:54]
Benjamin Wittes
All right, well, James has got to go momentarily. And I believe, James, we have covered all the cases that are on your list.
- [55:08]
Roger Parloff
I have one more when we shift to immigration, which I can just address briefly.
- [55:13]
Benjamin Wittes
Well, let's do that now because we're about to shift to immigration. We're going to front load James in the immigration department so that he can, he can take off. James, which immigration case do you have? Ah, yes, Judge Jenkins. Jenkins, in the Illinois sanctuary cities case, what happened here?
- [55:40]
Roger Parloff
Yeah, this was a ruling that actually dropped, I think, as we were recording last week, and so obviously didn't get a chance to cover it. This was a lawsuit initiated by the federal government against several entities, the city of Chicago, Cook County, Cook County Board of Commissioners, and the State of Illinois, all of which targeted what I think are colloquially referred to as sanctuary laws, although the opinion says that's somewhat misleading. These were laws that basically said that the various entities, Chicago, Illinois, Cook county officials did not need to actively cooperate with federal immigration officials who were carrying out their immigration functions. And so the government, the federal government came in, sued these entities and said, look, you've got to, you know, the federal government handles immigration matters. And so when, you know, we need to carry out our immigration actions, we need cooperation from the states, made kind of preemption arguments, and you can't discriminate against the federal government arguments. And, and basically the long and short of it is that the district court judge here dismissed the case, so ruled on behalf of the, the state and, and local entities and essentially said, look, it's true that there is a statute that when the, the federal government is seeking to get citizenship or immigration status, that particular request of information you cannot in essence, just ignore, but there is no obligation for sort of basic federalism reasons to turn the state and local entities into kind of an arm of the federal government's immigration system or immigration enforcement. And so the ruling was last Friday, as I said, despite dismissed, the government's, the federal government's lawsuit, when I checked earlier today, no appeal. Now there's plenty of time to notice an appeal. So it'll be interesting to see whether the federal government seeks to appeal. I'm not sure it would do much better at the 7th Circuit. But again, this could be something where, as we've often seen and discussed here, it may think it has a decent shot in front of the Supreme Court. But we'll keep an eye on that.
- [57:59]
Benjamin Wittes
All right, before we go on with immigration stuff, I need to pause and let you all know that James has is moving on. He has, as of today, Monday, taken an exciting new job. I'm going to let him describe that if he is so inclined, but he will stay involved with Lawfare. He is going to become a contributing editor and will continue to do, I'm not sure if on a weekly basis, but on a regular basis, lawfare Live. So he will stay involved. James, what are you going to be doing?
- [58:50]
Roger Parloff
So I will wait until next week to share what I'm doing and hopefully, hopefully be able to announce that more publicly. And it's something I'm very excited about. But as importantly, Ben, as you said, I very much look forward to continuing to be involved with Lawfare to come on and do the law fair live here on Fridays to discuss litigation. I will say I look forward to getting involved in litigation as much as I am talking about litigation. And I will leave more details to come.
- [59:23]
Benjamin Wittes
Yeah. So just for those of you who are unaware of what James's status at Lawfare has been, let me take a moment to talk a little bit about the Public Service Fellowship. During the first Trump administration, a bunch of people spent time at Lawfare on their way out of government. And we kept doing it during the Biden administration. And a few months ago, we decided to formalize it and create a program that was, you know, helping people who were coming out of government, doing work in Lawfare spaces, related spaces maybe were out of work suddenly, like James or in a different way, Mike Feinberg. And we thought we would set up a program to give those people a landing pad at Lawfare where they could use it as a, as a platform from which to talk about issues they cared about, things that happened that they saw in government or just policy areas and along the way find their own, own land legs professionally before moving on. And so this is exactly the way the program has worked in James's case, and we wish him all the best. And as we say, when somebody leaves Lawfare, once we have our claws into you, you never really leave. And so he will stay involved. And taking his place as the Lawfare public Service fellow will be Mike Feinberg starting on September 1st. So you've got both of them here. If you are inclined to support the Public Service fellowship, you can do that on our Give Butter page. All right, James is going to vanish in a puff of smoke now, and we are going to turn to Anna for the remainder of our immigration roundup. Anna, we've got a new lawsuit from members of Congress who want access to ICE facilities. What's going on?
- [61:47]
Anna Bauer
Yeah, so this is a new suit that I just wanted to flag. There hasn't been a whole lot of action in in it yet because it was just filed this week, but it's something that we've raised before. People might remember that, you know, after there was this high profile confrontation outside of a detention, immigration detention facility in New Jersey that resulted, among other things, in the indictment of Representative McIver, there was a lot of discussion about this language in the appropriations law that funds DHS that basically says, you know, that congresspeople who are going to detention facilities for the purpose of oversight essentially don't have to provide advance notice in order to, you know, inspect or perform oversight activities at those facilities. And now finally there, because we've been wondering for a while, you know, at some point will there be a suit over this? Because there were reports that there were congresspeople who were being denied access to ICE detention facilities. Well, this week, 12 members of Congress have officially sued. They specifically point to a new DHS policy that after that incident in New Jersey was issued that basically says that there has to be kind of like a week's notice ahead of time before congressional visits. They cite numerous examples of members of Congress being turned away in recent weeks from detention facilities when they show up for the purpose of oversight activities. So that suit is one that we're going to be keeping an eye on. Just wanted to flag it. And then similarly, there's another development in a case that we have been following quite a lot on Lawfare, which is the Khalil case. In that case, a brief development that I will mention, as we've previously discussed, Judge Farbiars, I believe that's how you say his name, hopefully, who is the judge who writes like no other judge that I've seen worse than he previously granted or issued a release order with respect to Mr. Cleo, this Week the Court of Appeals denied a stay or a blocking of that release order. So, you know, that's the latest development there. And then, Ben, finally in the immigration category of cases, we have some development in or kind of a development in the JGG case before Judge Boasberg.
- [65:11]
Benjamin Wittes
Yeah, so tell us about that.
- [65:13]
Anna Bauer
Yeah, so as folks might recall, the big news in previous weeks with respect to the JGG case, which is the case that challenged a number of individuals removal under the Alien Enemies act proclamation to Sakat, the notorious prison in El Salvador. In that case, the individuals who were detained at Sakat were, many of them were sent to Venezuela in a deal that was negotiated with assistance by the United States government and the government of El Salvador and resulted as well in the exchange of several Americans who were detained in prisons in Venezuela. Venezuela, triple murderer, including a triple murderer who apparently, according to news reports, is free in, in Florida, although there's apparently some potential for that person to be maybe extradited to Spain, as I understand it. But, but among other things, of course, this has an impact on the JGG case because previously Judge Boasberg, on the merits of that case, and so there's two separate tracks in this case, keep in mind, one is the contempt issue where Judge Boasberg found that there was probable cause to initiate contempt proceedings that then went up to the appeals court, who has administratively stayed that order for three months. So everything with the contempt proceedings which relates to, you know, whether or not people, including potentially Emil Bovey, were involved in sending on planes that Judge Boasberg had ordered to be turned around, that kind of thing, that is on pause. Then there's the merits question, which relates to an order that Judge Boasberg previously issued in which he found that although the United States did not have constructive custody over the people who were detained at Sakat, nonetheless there had been a due process violation and he ordered the government to basically facilitate the ability for those individuals to file habeas petitions. That is also on pause because of an administrative stay. Nonetheless, obviously there's a huge factual development now that these individuals have been moved to Venezuela and are apparently free in Venezuela. And Judge Boasberg called everyone in for a status hearing. This was on the 24th, so it was a little over a week ago. But at this status hearing, a few things that I will note that I think were interesting because Judge Boasberg basically wanted to get the party's kind of views on, like where do I go from, from here? Even though we're stayed, I want to have some sense of kind of how this impacts the case. One thing that I think is important on the contempt track is that he says to the plaintiffs at one point during this hearing, I have no doubt that this very lengthy administrative stay by the D.C. circuit with respect to the contempt proceedings has been very frustrating. And then he said, especially now that the recent whistleblower allegations by Mr. Ruvini, to the extent that they prove accurate, have only strengthened the case for contempt. And then he assured the plaintiffs that when or if the stay is lifted by the D.C. circuit with respect to the contempt order, he will, quote, follow up on those revelations and how they affect the contempt proceedings. He was referring there, of course, to Mr. Rouvaney's revelations. And then he also said that whether or not he's ultimately permitted to go forward with the contempt proceedings, he will assess whether government's counsel's conduct and veracity to the court warrant a referral to state bars or our grievance committee, which determines lawyers fitness to practice in our court. So he's signaling there that even if he's not allowed to go forward with the criminal contempt proceedings, he certainly has in mind that he may, you know, refer matters to state bars. And then on the merits, where we ended up is basically the plaintiff said, you know, your honor, we're trying to communicate with our clients. It's been difficult to reach everyone. You know, they're in Venezuela now. This is. Has totally changed circumstances. We would like a period of time to be able to speak with our clients, to figure out is the path forward, that maybe some of them want to try to come back to the US and then go through immigration proceedings as they should have been had they not been removed under the aea. All of that legal aren't for who's the lawyer who represents these plaintiffs noted that many of them likely fear coming back to the United States because they fear being shipped off to sicot again. However, many of them also were people who were asylum seekers who were seeking asylum in the United States from Venezuela. And then now they're back in Venezuela. So it's a very complicated picture. And basically, Judge Boasberg ordered a status report that's due on August 7th. So we will learn more when the status report comes. Come in. And that's where we are in jgg.
- [71:20]
Benjamin Wittes
All right, we are. Let's do a quick review before we talk briefly about Epstein matters. Let's talk briefly about university attacks. And we have an agreement with Brown which follows on the Columbia agreement that we talked about last week. Week Harvard sending out noises that this whole fight posture may be, let's just say, bullshit. And the government seems to be moving against ucla. What's, what do we know?
- [72:01]
Anna Bauer
Yeah, so, I mean, we, we learned this week that like Penn and Columbia, Brown has also entered into an agreement with the federal government. The agreement in many ways is similar to Columbia's agreement. It asserts that the government can't dictate the university's curriculum or the content of academic speech. It requires the government to restore federal. This is the big part for these universities, is that it requires the government to restore the millions of dollars in federal funding and research funds that had been blocked. And then it also results in the closure of several pending reviews or investigations that the government had initiated with respect to the university as to Brown's obligations. In turn, unlike Columbia, Brown, in this agreement is able to avoid paying the federal government directly. Recall that Columbia, Columbia's agreement required it to pay, I think it was $200 million directly to the federal government, whereas Brown only commits to paying like 50 million, to quote state workforce development organizations. So again, not directly to the federal government. You know, again, like the Columbia agreement, there are things here that Brown commits to that align with the Trump administration's agenda in terms of gender and DEI priorities. The agreements, weirdly. And one of the things with these agreements that I think is very interesting that, and strange about them is that it will say things like Brown will commit to taking several steps to ensure compliance with Title 9, which, you know, is the federal civil rights law that bars sex discrimination in schools and programs that receive federal funding. But then it'll go on to list a series of things that, as far as I'm aware, are not required by Title IX and are just things that, you know, are in alignment with the Trump administration's anti trans or gender ideology agenda. So, for example, it in the Brown agreement, unlike the Columbia agreement, I think the Columbia agreement didn't include this. It requires Brown to stop providing gender affirming care to minors in its, you know, university hospitals and medical centers. So additionally, there are things like, you know, don't consider race even in personal statements in admissions. So again, the kind of things that we saw in the Columbia Agreement, Harvard. Meanwhile, we have news reports from the New York Times that although Harvard is one of the universities that has fought this and has won some early victories in terms of the Trump administration targeting the university, nonetheless, there's now reports that Harvard may be willing to strike a deal, potentially to the tune of, I think the reporting is that Harvard might be willing to pay up to 500 million.
- [75:49]
Benjamin Wittes
Again, they've ever given to lawfare.
- [75:52]
Anna Bauer
Right. It's unclear, you know, precisely when that agreement might be made, what some of the differences might be, but obviously that is a much higher number than, than what we're seeing with the Brown and Columbia agreements. It may very well be that Harvard has been kind of the white whale for this administration in terms of the institution that it wants to see bow to it or bend the knee the most. So that could have something to do with why that number is so high. But it also could just be that we're following the kind of big law capitulation, deal making. Kind of with each deal, the number goes up, although the Brown deal didn't really follow that because the number was lower. But regardless, stay tuned for the Harvard negotiations because it looks like something we might have a development there. And the administration seems intent on continuing targeting universities because now there is reporting that it plans to or has canceled something like $300 million worth of federal funds to UCLA. So, you know, I don't know. Ben, do you have thoughts on, like, what, what we're seeing here in terms of and what do you make of the Harvard News? Because I'm curious if you have thoughts on, you know, the why now and what's going on with that?
- [77:45]
Benjamin Wittes
Well, I have limited thoughts. I guess my chief thought is, first of all, nobody takes your lunch money only once, but it is a dreary business being the only people who are fighting. And the second and second, get left out there in the cold. And, you know, if Columbia is settling and Brown is settling and, you know, things get ugly for you, and if you can pay some large amount of money to make it go away, that starts to seem attractive. The other thing, of course, is that Tom Lehrer died this week at age 90, and it was he that wrote the song Fight Fiercely, Harvard, Fight, fight, fight, demonstrate to them our skill. And so it may be that just the fire went out of the belly when, when Tom Lehrer expired. That's really all I got on this.
- [78:55]
Anna Bauer
All right.
- [78:55]
Benjamin Wittes
We're going to close this week before we go to audience questions with a quick Jeff Jeffrey Epstein update. We put this last because everybody else in the world put it first and it is talking about it obsessively. But, you know, we're going to talk about it because it isn't a normal thing for the deputy attorney general to go meet with an inmate in federal prison and then move her to a Club Fed situation. So, Anna, give us a little bit of what do we really know here about the Ghislaine Maxwell interview and Todd Blanchett conducting it personally and her subsequent removal to a minimum security facility? And then let's just bat it around.
- [79:51]
Roger Parloff
A little bit, Ben.
- [79:53]
Anna Bauer
I don't think that we know a whole lot, actually. We know that Todd Blanche personally went to Florida and met over the course of two days with Ghislaine Maxwell. I believe that altogether it was something like nine hours of interview. There's reporting that she spoke under an immunity agreement of some sort and that.
- [80:22]
Benjamin Wittes
By itself is not abnormal. Right. That you'd have some limited derivative use fruits immunity when you're. If you're. She's got a pending appeal, she's not going to talk without some kind of immunity grant. Right.
- [80:40]
Anna Bauer
But I think what's unusual here, and I'm going to hand it over to Mike, who can probably speak with more expertise than I can about it, but I think what's unusual is that this is post sentencing and there's not, as far as we're aware, because they already announced that they had closed the investigation. There's not an active investigation into any additional co. Conspirators.
- [81:01]
Benjamin Wittes
Right. But what's weird about it is not the immunity grant, it's that they want to talk to her at all.
- [81:07]
Anna Bauer
Exactly. Exactly. That. That is. That is correct. Like what is weird is the posture of, you know, that they've already announced they're not continuing the investigation and then now all of a sudden they are, you know, she's post sentencing, post conviction, and then now, you know, they're giving her immunity to speak with them. But it's. It's not the immunity per se that is unusual. Mike, would you. Would you agree with that or you have further insight?
- [81:42]
Michael Feinberg
Yeah, I think there's three areas that really present sort of anomalous circumstances here. The first is that this is occurring at all. While, as you mentioned, it isn't abnormal to have ongoing conversations with a convicted subject, that's usually done pursuant to some sort of stipulation built into a plea agreement. The one that comes to mind most readily, for example, is Robert Hanssen, who had to give yearly debriefs so that he could help the intelligence and law enforcement communities with other things they might discover subsequently relating to the Russian intel services. But as you mentioned, there's no ongoing investigation here that Maxwell can really shed light on her least not one that has been announced or even alluded to by the Department of Justice. The second anomaly is I spent the better part of two decades doing both criminal and national security investigations. And I am unaware of any occasion in which a DOJ attorney has interviewed anybody without a law enforcement enforcement official or case agent there, if only to serve in a documentary function. It's very odd that somebody, that an attorney would go without an investigative body to memorialize the conversation and write it up in a document like a 302 or an ROI and then the last anomaly, and I don't really know what heuristic or optic we should be viewing this through, but it is of note that the deputy Attorney general was President Trump's personal criminal attorney. And I don't know whether Trump was ever interviewed as a witness or some other sort of ancillary character in the original investigation, but there's probably a decent chance that if he was blind, Blanchard Blanche's law firm may have been involved. Now, that's speculation on my part, but it's speculation informed by a knowledge of how DOJ and criminal investigations work. And the fact that the potential, at least for ethical minefields has not been addressed at all by DOJ is at the very least worrisome.
- [84:14]
Benjamin Wittes
Yeah, I agree with that. I, I'm curious. I want to throw this open to any of you who have thoughts on it, particularly Renee, who spends so much of her time in a way that cannot be healthy, thinking about the conspiracy theories that. And marinating in the conspiracy swamps. But, like, what are they trying to do here? You know? Okay, so maybe I understand it from her point of view. You say what you think they want you to say, and maybe you get some time knocked off or a commutation or whatever. But what can she do that, you know, Todd Blanche comes back now and, you know, like, calls up the food chain and says, okay, she can testify that blank, but what can Ghislaine Maxwell possibly say that would have credibility to make this problem on trust Trump's part go away? And I, I just don't really understand what the strategic goal here is, what they're trying to work out with her.
- [85:26]
James Pierce
I don't either, actually. So I, it's, it's a bit of a mystery to me, too. I think it's. Try like a. The best I have is just sort of an internal cya. I really don't know.
- [85:38]
Benjamin Wittes
You know, like, Don, I saw Trump in 2004 pulling Bill Clinton off the young girls. Like, what was what. What's the thing?
- [85:51]
Anna Bauer
I.
- [85:52]
James Pierce
Plus, it's, it's so. It's so late in the game, so I don't know where they're going to go with it.
- [85:58]
Anna Bauer
Well, I mean, he clearly is mad about the birthday book. So maybe it's just. Maybe all you got to do is say, I create. I compiled the birthday book and I.
- [86:09]
Benjamin Wittes
Created the birthday book. No one's going to believe that.
- [86:11]
Anna Bauer
That, like she just made it up.
- [86:14]
Benjamin Wittes
Maybe.
- [86:14]
James Pierce
I mean, I guess that's, that's one. It's an interesting theory. It's such a, such a weird thing to try to discredit, though, because I, it's going to make people remember it. I feel like that's something that is such a small piece of this. At this point, people expect there to be more discrediting the birthday book. They're going to be like, what about all the rest of it?
- [86:30]
Anna Bauer
That's.
- [86:30]
James Pierce
I don't think that's going to do enough.
- [86:32]
Benjamin Wittes
I could be.
- [86:33]
Anna Bauer
Go ahead.
- [86:34]
Michael Feinberg
I could be totally off base here, but it actually makes quite a bit of sense to me. My inclination when reading about this the first time was that they're going to do their usual flood the zone strategy and get Maxwell to speak out against a number of people that they would consider political enemies, I.e. democratic political figures, and essentially just move the conversation onto a topic other than the President. If they're able to suborn. Maybe I shouldn't use that word, but if they're able to get Maxwell to suggest that Trump had nothing to do with it while they're doing that, so much the better. But I kind of assume that would just be the cherry on top of the Sunday, and that what they're really trying to do is just create a lot of distraction so that when people think of Epstein, the next word in the word cloud is not Donald Trump, but some other public figure.
- [87:29]
Benjamin Wittes
Yeah, I just think if they, if they reduce her time, that's gonna be the story.
- [87:36]
James Pierce
Right.
- [87:37]
Anna Bauer
It's such a quid pro quo.
- [87:38]
James Pierce
I mean, that's, that's.
- [87:40]
Michael Feinberg
I think like Paul Manafort might beg to differ. Like, people are moving on from various pardons and excuses for people affiliated with the MAGA universe. At a pretty quick clip, it'll be a problem for a couple days, but something else outright outrageous will happen soon enough that I think the media is going to move on.
- [88:04]
Anna Bauer
Well, I will also say, I think for Maxwell, you know, she's already kind of had a major victory in terms of her quality of life by being moved from the prison that she was in to a lower security prison that is one of the prisons that is known as, what do they call it, Club Fed or, you know, it's. I mean, they quite literally have people whose job is to try to get you into like, one of these, like, low security, like, nice prisons. Because it's the place that, like, you know, this same place as the one where like, Elizabeth Holmes is or like the Real Housewives lady, Jin Shaw. And, you know, if you look at Maxwell's complaints in a lot of her lawyers, public media statements or whatever, it's always about like, you know, she had to wear paper clothes and shoes in solitary and, you know, things like that about her quality of life in prison that are already are greatly improved. Again, though, it's really like, I mean, Mike, again, like, what do you make of the fact that she's been moved to a nicer prison? Because that, again, is something that you might do for someone who's a cooperative narrator. Like, what's that about?
- [89:27]
Michael Feinberg
Yeah, so it's again, I will go to my default adjective, which is weird. I wish I had something more eloquent than that to say. But the only real reason I could think of that she would be moved at this time is for ongoing cooperation. But I don't think it's controversial to say that. I think that's what everybody's assuming. I will note that at least when I last looked at the issue, which was a couple of years ago, there were not a ton of vacancies at the Club Fed category of prisons. Part of the reason there is such expertise sought out in getting one sentence there is that there just aren't that many spots to put people. So the fact that you. That she's getting some sort of preferential treatment to presumably drum jump the line of people who are probably currently in the sentencing stage is once again something that just sort of makes the hairs on the back of one's neck stick up a little bit with this whole series of interactions between her and doj.
- [90:37]
Benjamin Wittes
Well, we will keep an eye on both sides of this. That is the leniency from. For Maxwell side and the whatever it is she's doing in return. We've got four audience questions. I want to get through them all. David asks any update from the tariff appeal yesterday. So I did not read that oral argument transcript or watch that argument, but there was a Fed circuit argument on from appeal from the Court of Claims, Sorry, the court of the trade Court on the authority to issue the tariffs. I believe Brett Schumada argued it for the administration and Neil Katyal argued it for the business groups. By the media accounts, it went pretty badly for the government, which is not terrible. Terribly surprising because it's a very aggressive claim of executive authority. I'm not sure I know much more about it than that. Do have any of you followed the case carefully?
- [91:47]
Anna Bauer
This was going to be a Scott Anderson topic and if he joins us next week, we will have him give an update. I have that is not one of the cases that I have been following particularly closely. All right.
- [92:01]
Benjamin Wittes
So we will wait on Scott for a report from that for next week. Similarly, Kevin writes, can the administration be confident that the Supreme Court will freeze any D.C. circuit ruling against them on IPA? If not, how long? How will they likely respond if I if their authority is blocked? So again, this is a Scott Anderson issue. I will say the Supreme Court has been pretty solicitous of letting the status quo be one of enforcement leniency. That is the they're not creating a lot of rules in which the administration, as a default matter, can't enforce their vision of the law. I don't think think they are likely to do otherwise in the IPA context. But again, let's hold that question for Scott. John Hawkinson asks Ben, do you agree impeachment of Bovey by the House is politically appropriate if it is clear at the time that the impeachment would be a dead letter in the Senate? So most impeachments these days are dead letters in the Senate. And I don't think anybody should vote for an impeachment with the expectation that the matter will get a hearing on the merits in the Senate. But you know, before, like a before a neutral body. But I don't think it is inappropriate for House members to vote their conscience on impeachment matters, irrespective of what they think the Senate is likely to do. Finally, the anonymous attendee. Again, whether there's one, whether there are several, whether it's a team of people, I don't know. I've heard a number of times throughout the last few months about the administration facing uncharacteristically conservative panels in the D.C. court of Appeals, by which I assume we mean the D.C. circuit. Are you aware of a statistical analysis of just how lucky the administration has been in these draws? Or is this something lawfare would consider conducting? All of the qualitative descriptions are hard to assess and a quantitative analysis would be extremely helpful. I am unaware of anybody having done that. I would not do it myself. I have no reason to doubt that the wheel is an honest wheel and that these things at the D.C. circuit are being done on the up and up. There are reasons why judges sometimes take themselves out of the wheel for motions panels and stuff. Like if there's stuff going on in their lives. So there are a lot of things that can explain it. It is, it has been. It's really. It's not the merits panels that are like this. It's the, it's the motions panels for the last few months have been weirder than hell. But I think you'd have to give me a few more months of weird before I start conspiracy theorizing about it. Anna, do you have, do you have thoughts on that?
- [95:26]
Anna Bauer
No, I will just. I agree with you that the wheel is a little bit of a black box because even if you look at the statistics in terms of like you figured out in the rules and then based on a composition of the D.C. circuit, what the kind of given a perfect universe of everyone's available, what the statistics are, usually that's not the world you're operating in because has been said there are many different reasons why maybe someone has to, for any given month, can't serve or whatever, take themselves out of the wheel. As we know from our research, when Judge Cannon was assigned to Trump's case, there's all kinds of other weird things or exceptions that can happen that mean that a judge might be actually more likely in a given month to, you know, be assigned to a case and that it's totally normal and not, you know, a big conspiracy to, you know, stack the cards against plaintiffs or the government or whatever. So yeah, that's all I'll say. I am not a statistics person, so unfortunately I'm not the gal to do this. But I hope that maybe there's someone out there listening who would crunch the numbers and look historically at trends over time or something like that. It'd be interesting.
- [96:50]
Benjamin Wittes
The chances are, I mean, it's a statistical anomaly, but the, you know, statistical anomalies are not very rare. Right? There is unlikely things happen every minute of every day. We are going to leave it there. We're going to be back next week though, so don't fret about it or anything. You know, if you miss us, know that we will miss you too. Thanks to Mike Feinberg, to Anna Bauer, to Renee Diresta, and to James Pierce, and of course to our producer, Anna Hickey. Have a great weekend.
- [97:33]
G
The lawfare podcast is produced and cooperated with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter at our lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts, look out for our other podcasts, including Rational Security, Allies, the Aftermath, and After 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 Goat Rodeo. Our theme music is from Alibi Music. As always, thank you for listening.
- [98:30]
James Pierce
If you're listening to this, you're ready.
- [98:32]
Anna Bauer
Ready to join the Industrial Intelligence generation.
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James Pierce
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Anna Bauer
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James Pierce
Accelerate efficiency, and drive innovation. Using the power of Aviva software to reshape industries, turning real time insights into real world growth. Discover our stories at industrialintelligence.
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Benjamin Wittes
Com.
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Anna Bauer
Join Generation I.