Lawfare Daily: The Trials of the Trump Administration, Aug. 15

Summary

Lawfare Daily: The Trials of the Trump Administration (Aug. 15, 2025)

Overview

In this episode of The Lawfare Podcast, host Benjamin Wittes is joined by Lawfare senior editors Scott R. Anderson, Anna Bauer, and Roger Parloff, and contributor Chris Mirasola to break down a whirlwind week at the intersection of national security, law, and Trump-era policy. Against a backdrop of heightened federal intervention in D.C., looming nationwide legal challenges, and fierce institutional shake-ups, the panel offers granular analysis of how increasingly strained legal frameworks are being tested by the Trump administration’s unprecedented maneuvers in law enforcement, appropriation, and governance.

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Key Discussion Points & Insights

1. Federal Law Enforcement Takeover in D.C.

Deployment of Troops and Federal Agents

• Ben's Chalk Protest & the Secret Service Response

  • Wittes describes a protest at the Russian embassy involving chalk, which escalated much more than a similar action a year prior, signaling increased federal attentiveness and seriousness now permeating law enforcement ("...Secret Service is here enforcing a DC Municipal ordinance against defacing public property, even temporarily." [08:21])

• Frameworks Behind Federalization

  • Chris Mirasola outlines the legal background enabling broad presidential discretion over the D.C. National Guard and police through emergency powers in the Home Rule Act.
    • "[T]he general framework...provides incredible discretion to the President, particularly...the D.C. National Guard." ([02:27], [15:05])

• Litigation: D.C. v. Trump

  • The District’s legal challenge is targeted narrowly at controversial new maneuvers (not the overall federalization but the direct appointment of a federal emergency police chief).
    • "DC decided to challenge...more radical attempt to take direct...control of the MPD...over the past 24 hours." – Chris ([16:42])

Courtroom Developments

• Judge Reyes’s skepticism centers especially on the legality of the Emergency Chief of Police appointment, citing legislative history that Congress intended a much narrower presidential override ([22:28]).
• The federal government is encouraged to reframe its directives as "requests for services" rather than explicit takeovers, signaling possible temporary compromise ([25:56] Scott).

2. National Guard Deployments and Statutory Nuance

• Statutory Ambiguity
  • Questions remain about which legal provisions are being invoked for the D.C. Guard—whether via a request from a presidential subordinate or through the National Guard’s broad “other duties” clause.
  • "There is no requirement...for any kind of public communication...about the request...or how long they’re going to be there." – Chris ([29:06])

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3. Federal Funding Fights & Impoundment Litigation

NED Funding—A Rare Win

• Judge Dabney Friedrich ruled the Trump administration must release congressionally-appropriated NED funds—an example of a clear statutory mandate leaving no room for executive discretion ([33:06] Scott).
  • "You're either doing that or you're defying the statute." – Ben ([35:41])

Broader Losses in Other Foreign Aid Cases

• D.C. Circuit Decisions (Global Health/AIDS Vaccine Advocacy Coalitions)
  • A panel opinion (Judge Henderson) finds most foreign funding disputes are statutory, not constitutional, and exclusive APA/Impoundment Act remedies bar private plaintiffs.
    • This is “pretty extraordinary...to say...the only way to remedy appropriations violations...is by the Comptroller General." – Scott ([38:27])
  • Emergency en banc appeals were filed as the administration’s timeline to obligate foreign aid funds dwindles.

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4. The Tucker Act Tangle and Judicial/Agency Overlap

• NIH v. AFA and Bowen v. Massachusetts

  • The Supreme Court sits on a case raising whether big grant disputes should be in district court or the Court of Federal Claims; the outcome may shift jurisdiction for dozens of funding challenges ([46:20] Roger).
  • "There are over two dozen cases that present this issue..." – Roger

• Judge Henderson’s Dual Opinions

  • Henderson upholds Congressional appropriations power in one case, even as her opinions in related cases narrow private enforcement, highlighting judicial ambivalence (CREW v. OMB [57:14]).

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5. Domestic Military Deployments: Bench Trial in California

Posse Comitatus and "Protective Power"

• California v. Trump (Bench Trial Recap)

  • Anna Bauer details a trial over whether military detentions during protest response violated the Posse Comitatus Act.
  • The government cites an exception for "protective power"; evidence shows troops engaged in law enforcement functions, raising constitutional and statutory questions ([71:04] Anna).
  • "If you can't bring [a PCA claim] as a civil remedy...and [presidential] immunity applies...the statute...has no way of being effectuated..." – Anna ([78:57])

• Analytical Frustrations

  • Chris laments that the litigation focuses on the PCA’s procedural hurdles, rather than challenging the constitutional basis for the President’s "protective power" ([79:55]).

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6. Breaking News: Real-time Developments in D.C. Litigation

• Fresh out of court, Anna recaps Judge Reyes’s hearing results:
  • Active negotiations ongoing regarding MPD policy sections of the federal directive.
  • The judge signals strong inclination to enjoin the President’s "installation" of the DEA Administrator as police chief absent a rapid rewrite ([85:54] Anna).
  • "If I don't hear anything, I'm going to issue a TRO by 6:30 tonight." — Judge Reyes (quoted by Anna, [87:20])

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7. Agency Dismantling and Workforce Reductions

CFPB and USAGM Benchmarks

• The D.C. Circuit vacates injunctions preserving agency staffing, making mass reductions imminent, but not precluding future legal challenges if statutory obligations cannot be met ([91:50] Scott).
  • Ongoing “minimal staffing” litigation before Judge Lamberth at USAGM could set precedent for court supervision of agency dismantling ([94:40] Ben).

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8. DOJ Politicization & Immigration Litigation

• DOJ Maneuvering

  • Roger details a slew of troubling 48A motions (moving to dismiss criminal cases)—including multi-million-dollar fraud and police brutality cases in L.A.—plus a New Jersey challenge to the legality of the acting U.S. attorney ([95:54] Roger).

• Key Immigration Decisions

  • Notable TROs were issued ensuring due process during immigration raids (Vasquez Perdomo) and enforcing humane conditions for detainees in federal facilities (Barco Mercado), both with Supreme Court eyes on them ([100:49] Roger, [103:16]).

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9. Wildcards: Doge, Musk, and the Appointments Clause

• Who Runs DOGE?
  • In a USAID dismantling case, Judge Chuang finds the complaint plausibly alleges Elon Musk was "de facto administrator" of DOGE, setting the stage for discovery on whether Trump administration privatized essential functions ([109:19] Anna).
  • "If you haven't ordered your WATO lawfare hat yet, order it now, because watode is back, people..." – Anna ([109:22])

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Notable Quotes & Memorable Moments

• On Executive Discretion in D.C.:

  • "The general framework that we have here just provides incredible discretion to the President, particularly when we're thinking about the D.C. national Guard." — Chris Mirasola ([02:27])

• On Court’s Approach to D.C. Litigation:

  • "She was most skeptical of...makes this DEA Administrator Tom Terry Cole, the effective Emergency Commissioner of the MPD. It seemed clear that she felt that was beyond her power or even the President's power." — Roger Parloff ([22:28])

• Federal Funding Power:

  • "You're either doing that or you're defying the statute." — Benjamin Wittes on NED appropriations ([35:41])

• Private Rights to Enforce Appropriations:

  • "That's a pretty extraordinary conclusion to say you have a neutral legislative history you have...and you are reaching this conclusion [that] the only way to remedy appropriations violations...is by the Comptroller General." — Scott R. Anderson ([38:27])

• Military Law’s Accountability Gaps:

  • "If you can't bring it as a civil remedy...but also...the president is immune from a criminal prosecution...this statute that Congress enacted basically has no way of being effectuated..." — Anna Bauer, on Posse Comitatus ([78:57])

• Who Runs DOGE?

  • "The de facto administrator of Doge, according to Judge Chuang, is Elon Musk." — Anna Bauer ([109:08])

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Important Timestamps

• Federal law enforcement in D.C., Ben’s protest story: [04:16] – [09:30]
• Statutory framework for law enforcement deployment: [09:30] – [19:48]
• D.C. v. Trump, legal controversy discussion: [19:48] – [22:28]
• D.C. hearing summary (Judge Reyes): [83:50] – [87:54]
• Federal funding/impoundment litigation: [31:25] – [38:27]
• AIDS Vaccine/Foreign Assistance enforcement debate: [38:27] – [45:46]
• NIH funding and Tucker Act overview: [45:46] – [53:30]
• California bench trial on Posse Comitatus: [68:30] – [83:50]
• Dismantling federal agencies (CFPB, USAGM): [91:50] – [94:44]
• Politicization of DOJ and Immigration cases: [95:54] – [106:16]
• Appointments Clause, DOGE case, Elon Musk: [109:08] – [113:05]

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Takeaways

This episode foregrounds growing legal challenges as the Trump administration stretches (or overpowers) statutory and constitutional guardrails across policing, federal funding, and government structure. Robust debate and real-time judicial action illustrate how old doctrines (like the Posse Comitatus Act) and new executive maneuvers collide in the courts. The pace and scope of these legal battles not only test institutional resilience but also raise fundamental questions about the rule of law, accountability, and the boundaries of executive power.

In the memorable words of Benjamin Wittes ([113:52]):

"Keep following those dockets because if you don't follow them, they will follow you."

Transcript

[Benjamin Wittes]

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[Scott R. Anderson]

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[Chris Mirasola]

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[Roger Parloff]

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[Chris Mirasola]

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[Chris Mirasola]

We have the deployment of more federal law enforcement personnel throughout dc.

[Benjamin Wittes]

It's the Lawfare Podcast. I'm Benjamin Wittes, editor in chief of lawfare, with lawfare senior editors Scott R. Anderson, Anna Bauer, and Roger Parloff, and Lawfare contributor Chris mirasola. In the August 15 episode of the Trials of the Trump administration, we discussed DC's lawsuit challenging the Trump administration's attempts to to assume control of the D.C. police Department, litigation over the freezing of federal funds of various sorts, the bench trial in Newsom v. Trump in California, and so very much more.

[Chris Mirasola]

The general framework that we have here just provides incredible discretion to the President, particularly when we're thinking about the D.C. national Guard.

[Benjamin Wittes]

It is Friday, August 15, 2025. It is 4pm and this is Lawfare Live. The tribulations, the trials of the Trump administration. I am here, I guess I should say who I am. I'm Benjamin Wittis, editor in chief of lawfare, and I'm here with from the Jura, where he is training to be a macchiyard. Roger Parloff in the Jura studio. Hello, Roger.

[Roger Parloff]

Hey, Ben.

[Benjamin Wittes]

Are you. Are you ready to take on some Nazis?

[Roger Parloff]

I'm ready. Thanks.

[Benjamin Wittes]

All right. Joining us from the Brookings Institution. It is Lawfare senior editor Scott R. Andersen. Hello, Scott.

[Scott R. Anderson]

Hello.

[Benjamin Wittes]

And because we are talking about misdeployed troops, corralling of federal law enforcement into running the District of Columbia, we're joined by our all things domestic deployment of the wrong people for the wrong jobs. Chris Mirasola.

[Chris Mirasola]

Chris, it's great to be here as your occasional angel of death.

[Benjamin Wittes]

Yeah. So, Chris, you know, we all have our specialties, and Chris. Chris is like the Kevorkian of Lawfare.

[Chris Mirasola]

Not a great. Coming at you live from the Milwaukee airport today.

[Benjamin Wittes]

Wow. All right, so I am going to start today with a bit of breaking news that I was personally not so privileged to be involved in a few hours ago. As some of you know, I planned to go to the Russian embassy today and as I have done in the past, dump a whole lot of blue and yellow chalk on the front stoop of the embassy to protest the Alaska summit. And I found myself, as a result of that, smack in the middle of a picturesque example of a whole bunch of the things that Chris is. Is going to be talking about today, which is to say that not a few minutes after I started and I was livestreaming the whole thing so I have video of it, a rather large number of Secret Service vehicles with sirens going and lights flashing pulled up and seemed to be taking the whole thing very seriously. And this rather surprised me because only a year ago, I had done exactly this operation, and I had walked through a Secret Service officer with exactly what I intended to do. And I happen to have that on video as well. So, Anna, if you could show us the little walkthrough that I did with a Secret Service officer of Operation Chalk Dust in front of the Russian embassy, I would appreciate it. Wait, I'm not getting audio on it. Can anyone else hear this?

[Roger Parloff]

No.

[Benjamin Wittes]

Yeah, so there's Anna. You gotta click the audio when. When you share. All right, well, trust me on this. This was a walkthrough in which I told the Secret Service exactly what I intended to do, and they had no problem with it a year ago. And I went ahead and did this. And when I planned it today, I thought, okay, I know exactly what is okay with the Secret Service because we did it last year, and I showed them exactly what I was going to do, and they were okay with it. Well, let's take a look at what happened today when I tried the same operation again. So, again, I'm not sure if there's any audio for anybody else. There isn't for me. But what you'll see is a rather large number of Secret Service came. There were at least five cars. And they seemed to take this very seriously as a threat to the embassy. And it took. They were there for maybe half an hour. And then they told me that. And for present purposes, I want to emphasize this, that they told me that There was a D.C. municipal ordinance against even temporarily defacing the public streets or public property, and that if I persisted, they would arrest me. They weren't going to arrest me because I was cooperative and they were exercising discretion. So for present purposes, it seems to me there are two reasons, really, key points here. The first is, number one, that the, that the Secret Service is here enforcing a DC Municipal ordinance against defacing public property, even temporarily. And number two, that the exact same operation that last year I walked through in advance with Secret Service officers and, and showed them what I was going to do, and they had no problem with it. Today, they barred. So it seems to me the substantive standard is different and what federal law enforcement in D.C. is doing is different than it was a year ago. All right, that's enough about me. Chris, I want to ask you to get us started. How does this gel with the news that you've been reading about what's going on with federal law enforcement in D.C.

[Chris Mirasola]

Yeah, so this is a really interesting video to watch and story to hear you tell because I think it gets at a couple of the different developments that we've seen in D.C. right. Since roughly the 10th. Right. So I think of this in like three different buckets. Right. So we have the deployment of more federal law enforcement personnel throughout D.C. and that's the first thing the President did. Most straightforward for him to accomplish. Right. Interestingly, I've been wondering whether or I've been wondering the extent to which there had been, like, below the political radar coordination between the MPD and federal law enforcement to defend deputize federal law enforcement agents as special officers of the MPD, which the MPD often does for the D.C. national Guard when the mayor requests the D.C. national Guard's assistance in D.C. and sometimes there's not always good connection between the D.C. mayor and the MPD about when the MPD is providing that kind of deputation. So, for example, in the early days of the Black Lives Matter protest, there was actually a period of time when the MPD was, was deputizing National Guard who were being used in D.C. before that ended up being turned off by the mayor because she did not want the D.C. national Guard to be operating in any event. I've been wondering about that. And so your anecdote is actually really interesting to start to piece together what that coordination did look like and continues to look like. The second bucket, right. Is the litigation that I think we're gonna talk about a little bit in more depth in a little bit, or it's gum litigation now about the President's takeover of the MPD pursuant to an emergency authority in the D.C. home Rule Act. Right. And this is a much more recent development, Right. Since roughly the 10th, and again, I think of this in, like, two different phases from the 10th until, like, roughly last night, there was a pretty straight, straightforward invocation, even though still very controversial and for the first time, by anyone's memory, that the President asserted this authority provided in the DC Code. And it's important to remember that this is all by statute to request services of the mayor of D.C. to be performed by the MPD for some kind of federal purpose. And we again seen that start on the 10th last night. And heading into today, we saw a real escalation in the administration purporting to replace or to appoint an emergency Chief of Police of the mpd. So, again, far beyond the requesting of MPD services through the Mayor, which is authorized by the text of the statute and also the negation of a number of orders previously issued by the MPD's chief of police. Okay, so that's like a general overview of, like, what the administration is doing with the mpd. The third bucket of what they did or what they've been doing is the deployment of the D.C. national Guard. And this returns to more familiar territory because the statutory framework which governs the D.C. national Guard not only makes the President the Commander in chief of the D.C. national Guard, but provides a really broad mechanism for the President or his delegates, the Secretary of Defense, to decide to deploy the D.C. national Guard for law enforcement purposes when there's a request either from the D.C. mayor, the director of the National Capital Services, something, something, a position I've not convinced has ever been filled by Anyone or the U.S. marshal for D.C. two of those three people are employees of the. Of the executive branch and appointed by the President. So it's never been particularly hard to get a request from one of those two when the President wants. And so in any event, right. Kind of pursuant to this really broad, you know, very old statutory authority, the President's also deployed 800 D.C. national Guard to operate in the District.

[Benjamin Wittes]

All right, so here's my question. Should I interpret this fundamentally as a reflection of the deployment of federal law enforcement on enforcing D.C. law which, you know, and crime in D.C. including sort of absurd crimes like, you know, drawing with chalk on the sidewalk or should I interpret this as a change, a sort of crackdown on protests or both?

[Chris Mirasola]

I think both. Right. So the general framework that we have here is just provides incredible discretion to the President, particularly when we're thinking about the D.C. national Guard. Right. But this is also true with respect to like again, the, the Marshal Service, for example, has its own special deputation authority. And U.S. marshals have the power of a sheriff to generally enforce the laws. Right. And includes federal and state, state laws. And it, it's an incredibly broad delegation to the Attorney General that's been delegated down to do that kind of a deputation. Right. And so I see this as like the confluence of those two things that you're just talking about. Right. Really broad statutory authorizations with a particular goal in mind. Right. To crack down on these protests.

[Benjamin Wittes]

All right. All of which is a 14 minute way of introducing the subject that is going to dominate today's show. Anna Bauer is still in the hearing related to it. We're going, she's going to join us as soon as that hearing is over. But we have a lot of material to cover. So let's get into it. D.C. v. Trump was filed promptly and is in litigation today and covers, I think, what aspects of this issue are under challenge in that case.

[Chris Mirasola]

Right. Yeah. So. So the case is directly contesting the executive order, the memorandum issued by the Attorney General, I believe last night, that accomplished or purported to accomplish a few things. Right. So first, the appointment of this Emergency Chief of Police, the da, the DEA Administrator. Right. And empowering him to personally direct the mpd. Right. So it's the installation of him as whatever this means, Emergency Chief of Police. And my read so far is that there's a lot of uncertainty about what DOJ was trying to achieve by designating him the Emergency Chief of Police. And then second in that memo canceling a number of MPD standing orders. Right. Which pre existed the federalization of the mpd. And so as you said. Right. The argument is ongoing, but those are the two big chunks that are being litigated here. It's not the overall federalization of the mpd. That is not what DC decided to challenge when that was first done a couple of days ago. Is this more what I see as more radical attempt to take direct kind of operational control of the NPD that's happened over the past 24 hours.

[Benjamin Wittes]

And you know, there have been a number of reports of federal Law enforcement. I don't know if that includes the Secret Service or not, or if that's just a protest thing at embassies, but, you know, patrolling D.C. in various capacities, what do we know about that side of it? How much of this is about, you know, DEA agents strolling, you know, working as beat cops? And how much of this is about the federal government's takeover of the Metropolitan Police Department?

[Chris Mirasola]

Yeah. Right. So the number of federal law enforcement agents that are being deployed still pales in comparison to the number of MPD officers that you have. Right. On any given day. That's not to say that it's a small federal law enforcement presence, you know, particularly in high visibility areas of the city. And so I don't have, like, exact numbers. Right. To substantiate this, but my sense, based off the reporting that we've seen, is that it's still predominantly MPD that are on the streets. Right. Enforcing DC Law with a significant, but still much smaller federal law enforcement presence. It appears to me, at least, to be using much more instrumentally across the city.

[Benjamin Wittes]

All right, so what is the nature of the District's challenge to this? As I understand it, the President kind of has the right to call out the national guard, and the D.C. government kind of is a creature of Congress anyway, which has plenary power over the District and, and wrote in these, oh, by the way, the President can take over the MPD if he wants to for 30 days. So what, what is the extent to which this is actually legally controversial rather than merely politically controversial?

[Chris Mirasola]

So I think that the D.C. government was actually quite smart to bring this litigation today with respect to the most recent move by the Trump administration. Right. So they're not contesting the. The calling forth of the D.C. national Guard, because you're correct, it's an incredibly broad statute, and that was never going to get very far in litigation. They're also not contesting the President's general authority to demand of the mayor MPD services for some kind of federal purpose. Right. What they're contesting more particularly is, is the imposition of the DEA Administrator as some kind of an emergency chief of police, which would seem to be quite plainly in conflict with other portions of the D.C. code, the D.C. home Rule act, which authorize the Mayor to appoint. Right. The Chief of police. Right. In a way, in a manner that is like just totally separate. Right. From any power that the President has. Right. So that's the first bit. And then second is like the scope of what this emergency authorization provision actually provides. Right. So the Text of the provision says that the President can demand of the Mayor MPD services. Right. Services for a federal purpose. And so key to this kind of second part of the litigation is whether that means the President can also impose general policies on the mpd. Right. Which they purport to do in the second half of the Attorney General's memo.

[Benjamin Wittes]

All right, so the thing goes into a hearing today. Roger, you've listened to much of the hearing. We're going to get an update on it from Anna as soon as Judge Reyes has done. But what do we know so far about the argument that has been taking place?

[Roger Parloff]

She seemed to be approaching the Pam Bondi directive section by section. The first section she was the most skeptical of. That one, in effect, makes. That one makes this DEA Administrator Tom Terry Cole, the effective Emergency Commissioner of the mpd. It seemed clear that she felt that was beyond her power or even the President's power. She mentioned, and I'm sure this is in the briefing, that in the legislative history of the Home Rule act, the. The act that gives Washington home rule From, I guess, 1973, about 52 years ago, there had been, in the legislative history, there had been versions that would have given the President the power to basically take over the police, and that those were rejected and that a narrower passage was put in the next. So it looks like that's the. She was most skeptical of that. The next three sections 2, 3 and 4 relate to these directives that Chris was talking about that they want to reverse or vacate or rescind. And she definitely felt that at least one of those was legitimate, at least that's how I was hearing it, that she felt. For instance, if the President wants to say through the mayor, the services I want are, I want the MPD to help ICE arrest illegal aliens, then that's within his power. And so that would essentially. And she thought the directive. And one of those directives was a directive that was sort of in a sanctuary cities mode. It was a directive that would block the police from helping ICE in certain ways. So the other two, she hadn't really. She wanted. She was sort of hoping the parties. She was definitely hoping the parties could work out language they would agree on with respect to sections 2, 3 and 4. Section 5 relates, I believe, to, like, homeless people. It's a general instruction that the MPD is supposed to enforce to the maximum extent possible the laws against occupying public spaces. And so that's the section that Ana Reyes had. She held a break which began about 9:50. I'm sorry, my time, 9:15, I guess about 3:15 maybe. And, and which was still going on just before we were starting. But she was going to come back to that. So I don't know where she is on that one. And that's about what I, what I heard.

[Scott R. Anderson]

Just add one thing to that, too. Part of the problem that Reyes seems to be zooming in on, sympathetic to the D.C. city, is that 3 and 4 are framed in terms of rescinding existing D.C. police Department policies. But what she essentially says is that, well, what you really want executive branch, what you really want out of the Metropolitan Police Department is a service for most of these. You want assistance enforcing immigration law. You want assistance doing X, Y and Z. These policies may or may not be a barrier. There, there may be ways you be able to get substantial services without rescinding these policies. So she's giving them an opportunity to go back and reframe their request as at least as I understand this seems like the most the direction she's hinting at strongly not, not very subtly reframe your request as a request for services, not as an effort to assert control over this. And then that can be an interim status instead of having to issue a TRO which would enjoin them from executing upon these order. And then we can resolve the merits of can you actually assert control over this do down the line, essentially saying I my expectation out of this is a voluntary holding back by the executive branch on the assertion of control over this body. In the interim, we'll reach some sort of agreement on this on how to proceed of a new request instead of a tro, and then we'll resolve those issues further down the line. So it's not that we're going to avoid that takeover entirely or addressing it if the executive branch really wants to pursue it, but that in the interim we're going to reframe these as requests for services. We don't have to reach those other issues.

[Benjamin Wittes]

All right, Chris, do you have other thoughts on this broad subject before we turn to other subjects and await Anna Bowers arrival to return to the subject of the hearing?

[Chris Mirasola]

No, I think we're, I think we're good to press on.

[Scott R. Anderson]

Guys, a question of Chris, actually on this.

[Benjamin Wittes]

Yeah, by all means.

[Scott R. Anderson]

So in a phenomenal piece you wrote for us, I think Monday or Tuesday on this for Lawfare, you laid out, which is still my current operational understanding in a very useful way, that there's two potential statutory provisions on the DC Code under which the National Guard be mobilized, one of which is contingent upon A request by one of three officials, two of whom appointed by the president, although one. One is vacant, one is current. That's the U.S. marshal, D.C. marshall. U.S. marshal for D.C. i should say. The other being the mayor, who does not appear to have issued a request, I think we can say with some high level of confidence. The other one being another provision that specifically provides for the commanding general of the National Guard, who's appointed by the president, to say, you know, you can call for soldiers, for drills, for exercises and for other duties, and that other duties have been interpreted very broadly in the past to incorporate a variety of things that our law enforcement, our law enforcement adjacent functions.

[Chris Mirasola]

Right.

[Scott R. Anderson]

Do we have more clarity on which of these provisions have been enjoined? I haven't found anything. I thought maybe you have, but I.

[Chris Mirasola]

Don'T think we know.

[Scott R. Anderson]

The fact that we haven't seen any acknowledgement of a request being made makes me think it's actually the latter, but I haven't gotten any confirmation that I would think if they'd gotten a request, they would advertise it somewhere, but I don't really know.

[Chris Mirasola]

Yeah. So maybe a couple of thoughts here. So I also haven't seen anything about any requests. And I think partially that maybe because there is the incredible weirdness of the request coming from a subordinate of the president, who the president, which is a very odd way to think about requesting anything. And so there is that weirdness to. It is not the usual practice when these requests come in, even when they come in from the mayor, that there is much in the way of public communication about that back and forth in that dialectic. In some ways, this body of law is more problematic than provisions of the Insurrection act because there is no requirement whatsoever for any kind of public communication. Right. Like you don't need to tell the public what the D.C. you only. You don't need to tell the public when a request comes in. You don't need to tell the public what the request is about. You don't need to tell the public what they're going to do. You don't need to tell the public about, you know, how long they're going to be there. Like, the list goes on and on and on. So part of me thinks that I all. It might just be like an. A kind of like a bureaucratic holdover of a practice of just not talking about this kind of thing. And then the third possibility, right, is that they're using this incredibly broad other provision, which I also can't discount because it's also easiest. Right. You can just say me commanding general, have decided that we're going to have an encampment for the next 30 days or however long it's going to be. We're going to go and we're going to do X, Y and z tasks in D.C. and it's based off of OLC opinions that have existed for roughly 60 years now, even if I think that it's a like a gross misreading of the statute. But that's a lot of years of practice right across a lot of administrations, and so there's little reason to believe it wouldn't hold up. So that's a very long way of saying, I mean, I don't know, I'm very skeptical about these things. It's like a long way of saying that, yeah, we don't have much information about it. They're all kind of in play, I think, roughly equally. And and I'm not optimistic about us getting much information about it going forward.

[Benjamin Wittes]

From the subject of impressing federal law enforcement and National Guard service and DC Cops into enforcing the president's agenda to the subject of impounding federal funds. Scott, we've it's been a pretty big couple weeks in the impoundment litigation area, which doesn't get a lot of love because it always requires a lot of explanation. But we're going to give impoundment some love here on Trump trials and tribulations. And I want to start with some good news that happened, which is the estimable Judge Dabney Friedrich. And I don't want to pretend not to have a conflict of interest in this subject, because as you all know, I am married to the president of one of the National Endowment of Democracy's Children organizations, the national and National Democratic Institute. But Judge Dabney Friedrich basically called bullshit this past week on the idea that the Trump administration was allowed to just not give the NED its congressionally appropriated money and it seems to be complying with a court order. So bring us up to speed on this rare, rare, simple win for, you know, the rule of law as we understood it.

[Scott R. Anderson]

Yeah, it's not terribly surprising. Certainly, the district court came out this way. And I will say, as we'll get into in a little bit, while it's been a bad week on other foreign assistance and empowerment funding context, I think this is a case and a set of plaintiffs that has a strong case even under the way. The D.C. circuit is looking at a lot of these things for the simple reason that the NED is in a unique position that has a very specific statutory regime about how it gets funded that essentially says Congress is going to appropriate funds for the NED every year. That funding has to be given to the president to NED within the year. That is the essential job. And by the way, you can't set any conditions on it beyond what's defined in the actual act of the National Endowment for Democracy. It says specifically oversight's going to be done by Congress. That's who's going to do it. It's really, really specific, frankly. It's the model for the types of legislation probably that Congress start enacting if it's serious about these institutions getting the funding that appropriates for them, for them to continuing to be extant as so many of them are being extinguished in various parts of the government right now. The judge essentially read the statute and say, there's not a lot of wiggle room in here for you executive branch. There's not a lot of discretion. The executive branch had argued essentially, well, look, this continuing resolution rolled over funds for an additional year. It basically says, okay, funds that were appropriated for last year will be appropriated again for next year under all the states, same conditions. And they interpreted that to mean, oh, it's extending the whole window then. So all these funds now can be spent at any point through the end of 2026, and we're going to hold a portion of the funds that were originally appropriated for 2025 and try and roll them over into 2026 to make sure they're being spent consistent with administration priorities is the purpose they let out. And the judge shot them down quite reasonably, saying, well, look, the statute says expressly you can't put additional conditions on it. That includes consistency with administration priorities. That's not going to play out. And it still says they have to be allocated within a year. That that wasn't actually changed by the continuing resolution. So it seems like pretty strong grounds for NED in this case. You have to remember previously the State Department, or at the time, at the time, I think it was the State Department with an F, essentially tried something like this once before, before the most recent continuing resolution to withhold these funds and quickly after getting a complaint filed, said, actually, never mind, we're going to go ahead and pay it out anyway. This was a flip flop on that prior concession that they had made after the conjunction resolution because they had this new hook. And I, I kind of suspect we're going to see a similar willingness to go along with it moving forward. We'll have to wait. I haven't seen notice of an appeal being filed But I did not get a chance to pull up the docket immediately before this because we were having some court listener problems and I could not get my Westlaw.

[Benjamin Wittes]

No. In fact, not only is there not a notice of appeal, there was a joint status report yesterday or the day before in which the government said that they were planning to obligate the funds expeditiously and did not indicate any plans for an appeal. So I, it did not read to me like they were. And maybe the, the theory is that if you get this, you know, you get nowhere in front of Dabney Friedrich, who is an excellent judge. She's also a Trump appointee. Right. And if you have.00 points that you prevail on in a learned opinion by Judge Friedrich, you're not getting very far at the D.C. circuit either. And so I think that may be part of it. But I think this is a genuine piece of good news, admittedly, as Scott points out, in the area that is easiest, easiest to win in an apportionment case because it is, it's not an area where the government, where Congress says, you know, spend this much on AIDS prevention and then you HHS or USAID figure out how to which grants to take. This is one where Congress said give, you know, $400 million to the net. And, you know, you're either doing that or you're defying the statute. So I think this was, you know, frankly, shocking that the administration tried to, tried to not comply with this law. And not all that surprising that they're, you know, they're, well, not surprising at all that they lost, but not all that surprising that they seem to be giving up the ghost on that. Although never say never until it's done. All right, let's turn to some less encouraging news, which is the vacating of Judge Ali's opinion in a vac, the gsc. Scott, a lot of people are not going to remember this case, which was one of those cases that we spent a lot of time on at the beginning of Trump trials and tribulations and then vanished. So remind us what this case is about and what Judge Ali did And why the D.C. circuit is saying see you later.

[Scott R. Anderson]

Well, just to clarify, it's actually two independent matter. AIDS Vaccine Advocacy Coalition versus Department of State and then Global Health Coalition, Department of State. They have been more or less proceeding in tandem. Slightly different docket, slightly different, different briefing before the district court, but the same basic resolution. And then when it under, they've been operating under the AIDS Vaccine Advocacy Coalition or AVAC Coalition caption and then annoyingly, the D.C. circuit, when it issued opinion earlier this week, decided to go with Global Health Coalition just to make it a little more confusing for everyone. But so be it. That is the nature of these things. We saw a panel opinion come down in this case it very late in the game on August 13th. I'll get to why that's so late in the game in just a second. That really, really bought into a number of arguments that I was surprised. See how willingly two of the three judge on the panel opinion by Judge Henderson joined by Judge Katz as both Republican appointees. Henderson with George H.W. bush appointee Katz is a Trump appointee over a dissent by Judge Pan, who is a Obama appointee. The tenor of which they came down on. This is really interesting, actually, correct me, I think Pan may be a Biden appointee. I can't remember Biden appointee. The tenor they came down to is really interesting. First, there had been a debate as to whether the government have waived an ability to rely on Dalton v. Spectra, a 1994 Supreme Court opinion that deals with the difference between when a violation of a statute is just a statutory violation and when it rises to the level of a constitutional violation. The judges basically said, well, look, we don't really think they've waived the ability to rely on this court case because even though they didn't cite it in their briefing, which the court said is kind of an embarrassing oversight for everyone, they actually made arguments that basically argued the same thing. The law was the same, which is I find reasonably persuasive. I mean, you know, courts play a little loose with this sort of thing on occasion. As to how aggressively to invoke waiver of prior arguments, I wasn't surprised to see them necessarily be a little loose on that. Then they did something really, I think a little more interesting. Judge Henderson basically wrote that all of these foreign assistance disputes are essentially statutory disputes. None of them are clearly ripe enough to rise to the level of a true constitutional dispute because they're not acting clearly violent, contrary to statutory mandates, clearly contrary and acting so far in exercise of the government's authority. That's pretty extraordinary if you take this all the way to the outcome and it's worth noting, this is the part of preliminary injunction it was dealing with is if the government doesn't ultimately spend this money within the fiscal year, that contingency. That's actually a pretty extraordinary conclusion I think to reach is to say, well, Congress has appropriated money for these purposes and said this money is available and to say that these are mostly statutory violations, not constitutional violations. In all those cases, including a range of authorities, some of which have much more mandatory language than others, but there are a handful that do does have fairly demanding language in it I think is a little bit extraordinary. But it was really overshadowed by the truly extraordinary part of the argument that is borders on the gratuitous and a little bit ridiculous in my mind, which is the conclusion they reach in the third part, which is that because you can't frame this as a constitutional obligation, you've got to pursue this as a statutory violation under the APA. And there's no basis for challenging under the APA because the Impoundment Control act of 1974 establishes exclusive means by which appropriations violations can be challenged. That is strictly in a lawsuit by the Comptroller General. For reasons Molly Reynolds and I talked over at length in a podcast about this a few weeks ago, I think this is a pretty extraordinary conclusion to reach. The Empowerment Control act has language in it that expressly, expressly says nothing in the statute is supposed to be bear on the claims or rights of any parties engaged in litigation. Judge Henderson said, well, I think if you look at this, even though there's a strong presumption to not get rid of existing causes of action in legislation, if you read this, I really read this as applying to legislation existing at the time because some people talked about that in the context of legislative history. So it's just clarifying that's not retroactive. I think that's really, really hard to read with with the context of the statutory language, which is really quite broad. And then she went to legislative history and pointed out that, well, you know, the House actually had language at one point that would have made the ombudsman the exclusive remedy. But that language was dropped out and the Senate had other language that would have expressly made clear that other cause of action stood and that more or less dropped out. We ended up with the language kind of in between the two and that that means that the let's slave history ambiguous so we don't really have to deal with it. Again in a context where she is embracing the idea that there's a presumption that you shouldn't be getting rid of the availability of a private cause of action that otherwise might exist. I think that's pretty extraordinary conclusion to say you have a neutral legislative history you have which I don't think is actually all that neutral. You have statutory language which is hard to read the way you're reading it, and that you are reaching this conclusion that says we are making the only way to remedy appropriations violations Congress has enacted statute is by the Comptroller General. And worth noting, the Comptroller General is appointed by the President. It's appointed by the president on a 15 year term, but is appointed by the President. So it's a pretty extraordinary structure to say this is how Congress is deciding it's going to vest its ability to remedy its own, you know, paramount authority. Something Henderson herself has weighed in on. A different case we're going to discuss in a minute. In this sort of circumstance, nonetheless, that's where the panel could came down. We saw just earlier today the original plaintiffs in this lawsuit, all the foreign assistance recipients that amounted to this lawsuit petition for make an emergency petition for a rehearing en banc and for a stay of the district of the appellate court's opinion. I think there's actually a substantial chance they may get something like this both because I find Judge Henderson's opinion really, really hard to wrestle with, at least personally and foundationally. It comes a really, really difficult time because August 15th today is the date by which the government said if we don't start appropriating this money and obligating this money now, we're not going to be able to do it by September 30th. So the plaintiffs have a pretty strong case saying look, if they had said by their own account they need to start obligating this money and if they don't do that, then we're not able to get the money by September 30th. Even if you the en bancdc circuit decide contrary and decide that the panel was wrong and in fact we are obligated to receive this money that we can enforce appropriation clause violations. So for that reason alone, I suspect the D.C. circuit is going to say unless the government comes in and says no, that was wrong, August 15th isn't really the drop dead date. We can extend this to August 30th, say, okay, government, you need to start making steps towards obligating this money. And by the way, the government has refused to disclose how it intends to obligate this money if it does actually have to do so. Thus far, that's something that the district court has been litigating is trying to is efforts to get disclosure of that plan. Now we may see it because they're going to have to start taking these steps, but we're going to have to wait how the D.C. circuit responds to that. I haven't seen anything come through in the Last, about an hour ago, last time I checked. I'll check in a moment to see if there's any updates there. But in theory, by the government's schedule, the D.C. circuit En Banc is going to have to move on this really quickly, if not today, by, you know, Monday probably to get things moving by this self imposed timeline by the government. I think that is all that we have to say on that opinion for them.

[Benjamin Wittes]

All right. Speaking of the D.C. circuit, Roger, the Supreme Court, which is not the D.C. circuit, but I, you know, sometimes not all transitions work well in NIH v. AFA has been sitting on it. This is a Tucker act case, Roger, what is this case, why are we talking about it and what is it doing sitting there fully briefed at the Supreme Court?

[Roger Parloff]

So this is up until the case, actually cases that Scott just described. I thought the Tucker act was the big hurdle for most of the cases challenging huge funding cutoffs. And this is one of those. This is nih cut off $783 million in grants largely in six, allegedly in six areas. It began with DEI and then and gender, gender ideology programs. I mean, this is how they characterize these funding programs. The NIH doesn't do a lot of, you know, funding of DEI program. There are a great many health issues that affect particular ethnic groups more than others. And these have apparently been described as DEI programs and it's 1700 grants. So this challenge went before the District of Massachusetts, William Young, and he issued a preliminary injunction. He called NIH's conduct breathtakingly arbitrary and capricious. There were no scientists who looked at these programs. And then that was the government sought a stay to the first circuit. They unanimously denied the stay in a 34 page ruling. And but the government has now gone to the Supreme Court and the thing they are mainly pushing is that this should have gone to the Court of Federal Claims instead of to a district court. And correct me if I'm wrong, but my understanding is that the reason that these cases are brought in district court instead of the Court of Federal Claims, Court of Federal Claims is, I believe in Article 1 court, it has very limited injunctive power. And the courts can make constitutional rulings, but they don't free frequently. And so most of the plaintiffs here think that there are constitutional issues as well as APA issues. And, and none of these cases, this Court of Federal claims is really for contract disputes. And none of these claims are. They consider contract disputes. These are, you know, these are decisions that are like nobody is looking at any of these 783 million dollar grants at a contract level and saying there's something in the language that was violated. So nevertheless there is a strong. Well you remember there was this case recently on the shadow docket, Department of Education versus California, which did say that, you know, with very little stated reasoning that the case, that case which involved a small number of grants, 64 million or something like that needed to be, should have been brought in the Court of Federal Claims or it was likely to be found that it should have been found, should have been brought in the Court of Claims. And this, and so the, the government is, is claiming not only that is that this is covered by California, that by the Department of Education versus California, but that in effect the lower court is defying the Supreme Court's Supreme Court ruling in Department of Education versus California. Now in effect the government is saying that on the shadow docket the Supreme Court has effectively overruled or signaled that they will overrule Bowen vs Massachusetts, a 1988 case that all of these cases are being brought under. It's a case in which you were a litigant, was allowed to bring an APA case that would have incidentally, in the course of, once you decided that the government had done something wrong, it would incidentally force the government to pay some money. And that's the rub with the court of Federal Claims. The reason you bring course court cases in the Court of Federal Claims is because Congress has waived sovereign immunity to be sued in contract in that court. And so since, since most of these cases would force the government to pay out money, as a practical matter the government is arguing they must be brought in the Court of Federal Claims, there are at least there are over two dozen cases that present this issue. So if, if the government does overturn the NIH case or you know, grant a stay in on, on its shadow docket, it will be another signal that that will impact more than two dozen of these cases.

[Benjamin Wittes]

And, and do you have any doubt that they're going to do that? Because I sure don't.

[Roger Parloff]

I, I have great trepidation that that's exactly what they're going to do. And, and the language of the brief is also it brings up the Boyle case a lot, which was another shadow docket case recently where there had been, you know, a shadow docket case, the Wilcox case, that was foreshadowing that Humphreys vs. Humphreys executor is probably going to be overruled and the D.C. circuit did not follow it in the next similar case saying, well we're bound to follow Humphrey's executor. And the and the Supreme Court said, no, you know, you can follow, apparently follow our shadow docket cases too. So, no, I have great trepidation that this will be a really big and far reaching shadow docket ruling.

[Benjamin Wittes]

Scott, you're making a face.

[Chris Mirasola]

Yeah.

[Scott R. Anderson]

So I want to push back on that a little bit for the simple reason that we've seen this. This is the third time this matter has come to the Supreme Court on the shadow docket. We've seen it twice before, first in AIDS Vaccine Advocacy Coalition v. Department of State, the case we're just discussing that went all the way to the Supreme Court's very first of these Trump administration policy challenging shadow docket cases to go up where essentially the court appeared not be persuaded that the Tucker act precluded because it basically said, hey, the injunctive relief the district court provided is allowed. It was not deprived of jurisdiction by virtue of the Tucker Act. Then we saw Department of Education v. California, California v. Department of Education, which was a similar grants case where it seemed to reach the opposite conclusion with Judge Amy Coney Barrett jumping over to create a five judge justice majority that strongly suggested that in this case at least, she viewed the that this actually was much more of just a question as to whether a that was something subject to the Tucker Act. We've seen the DC Circuit really wrestle with it in the Whitaker Swara litigation I've talked about many times on this podcast for the last couple weeks in which we'll talk about in a little.

[Benjamin Wittes]

Bit when we get the VOA litigation.

[Scott R. Anderson]

The Voice of America litigation. Exactly. And we saw Judge Nita Pollard offer a distinction between these two that has now gone to the en boss court and that the en banc effectively, at least by my reading of it, endorsed where essentially she says, look, it really comes down to what the source of the right to the actual money is. If the source of the right is contractual, and that's saying you are violating an agreement that we had that you don't have a right to violate that sort of agreement that goes to the Tucker act if it is foundationally a constitutional or statutory obligation, that is something that is not within the scope of a Tucker act because that's not what the Tucker act is supposed to address, that there's an affirmative obligation to disclose these funds. So if it's a constitutional challenge or an otherwise legally obligatory challenge as a virtue by statute, as I recall, I do not recall and I actually just trying to brush up on myself exactly where the NIH case falls on this. But I'm not sure, I'm not 100% sure that the Tucker act as a whole rises or falls on this. It very well might. You need to go look at the case and how we distinguish and how other judges may distinguish it. The D.C. circuit at least has not embraced the Tucker act as with removing jurisdiction. They've embraced a similar argument around employment claims relating to the MSPB and similar bodies. They've basically accepted, hey, employment related disputes have to go through those special bodies. We don't have jurisdiction or district courts don't have jurisdiction. They've refused to reach that conclusion for funding cases so far. That's actually what they're currently deliberating in Weta Kasoara at the direction of the en bonus D.C. circuit. They're going to have additional hearing on that in September. So I don't know if the DC Circuit is a good bellwether of the Supreme Court. I, I doubt it is necessarily. But I'm also not convinced that a 5, 4 Supreme Court is so clearly one way or the other that it is going to view this issue or that if it does, it's going to view this issue so categorically that it's going to resolve all sorts of federal funding cases as opposed to certain categories and certain equities. But we do have to wait to see and it really is here to come down to Justice Barrett. We've seen the same for justice align on either side of this issue. The last two times it's gone up. It's really how she's viewing it. But my sense is that she is viewing it through a more complex lens than a categorical yes or no.

[Benjamin Wittes]

All right, we're gonna find out soon. All of which brings us to CREW v. Omb. Scott, remind us what CREW VOMB is and why anyone should care that there was a denial of a stay in that case.

[Scott R. Anderson]

Well, it's an appointment case and it gives a really interesting little lens into the later opinion issued in the AIDS Vaccine Advocacy Coalition case. I think this is a case where the crew, a public transparency, public advocacy and litigation organization here in D.C. that occasionally has written once or twice for us and we have various people, we've, we've interact and collaborate throughout. From time to time they sued because OMB pulled down a public database that laid out its apportionment schedule. That's how it is saying it's going to spend appropriated funds and that database is required by statute. Pretty clearly it's not super ambiguous. Not a lot of discretion over how much of this database actually has to be published. District Court said, hey, you got to publish this. The statute says you have to publish it. The government appealed to the D.C. circuit and basically said, well, we have a variety of constitutional arguments. While we don't think that actually Congress can require us, apportionment is inherently a little more of an executive branch function. And by the way, we suffer real irreparable harm because we wouldn't have to disclose this information otherwise. And once we have to leave it out there, it's out there for good and we can't do anything about it. And it was rejected by the court and they didn't issue a formal opinion. But Judge Henderson, who was on this panel with, along with Judge Wilkins and Judge Garcia, did issue a very interesting, very lengthy, although that's not unusual itself, for Judge Henderson statement to go along with the judgment the court issued, basically vindicating in very strong language that the appropriations power is Congress's. Absolutely Congress's, and the President really shouldn't intrude upon it, and that there's an obligation to enforce statutes. It was a compelling, strong statement and a really interesting thing to randomly throw out there, joined by Judge Wilkins. Judge Garcia didn't join for whatever reason. I'm not really 100% sure why it didn't make a lot of sense until you read the AIDS Vaccine Advocacy Coalition opinion, in my view, because that's a case where, of course, it looks like she is actually pretty much gutting Congress's ability to enforce its appropriations power. You read the two together, you get a sense of where at least Judge Henderson is on this, where she seems to think, I would posit, look, if you had a clear statutory obligations, that's where we actually should pursue this and that's where Congress can enforce it and we will enforce that. But where it doesn't, we're not going to leave it up to private parties to enforce it. And I think perhaps a little bit of heartache or stomach ache over the conclusion she was in the process of reaching in the AIDS Vaccine Advocacy Coalition may have motivated her to make this entirely discretionary, lengthy statement in this case. But it's worth reading the two in between, because at least the way that one judge, who is an odd judge but not a terrible bellwether for how some judges and maybe some justices will look at some of this stuff, particularly I'm thinking of like Roberts, Kavanaugh, Coney, Barrett, like I think how she's seeing the line on this. So I think it's worth reading into if you really want to get deep on the empowerment stuff.

[Benjamin Wittes]

All right, from impoundments back to domestic deployments back to impressments. Let's talk, guys, about this bench trial that happened out in California. I had kind of meant to talk to Anna Bauer about it, but she is still detained in court. Live tweeting for us. So, Chris, talk to us about this. This is the case that. About the last impressment of. Of National Guard, you know, back in LA a hundred years ago, and it ended up in front of Judge Breyer, the brother of Stephen Breyer, who sounds just as ponderous and pedantic as his brother. And he, you know, got slapped down pretty quickly in his TRO preliminary injunction. So then he went ahead and had a bench trial. So nobody remembers that the National Guard is still deployed in la. So remind us what the state of play is there and what happened in this bench trial.

[Chris Mirasola]

So I'm happy to set up some of the kind of remind everyone of the facts. It also looks like Anna might be joining in a couple of minutes, which will be helpful for her to. Great, good. Get some more of that kind of color from the facts. I also was following what Anna was telling us about the men's trial. She's amazing. I have no idea how she does this. So to refresh folks memory, right, we had around 700 Marines, a couple thousand California National Guard deployed in LA, right? This is very different from the statutory framework that we are dealing with in D.C. folks should have like a very gigantic wall between these two different situations.

[Benjamin Wittes]

And just to be clear, different because D.C. is a federal enclave. There is, there's a Home Rule act. There's no, you know, federalism vis a vis. I mean, there's federalism to the extent that Congress chose in the Home Rule act to mimic some of that. But basically we live, those of us who live in D.C. live in a congressional playground where they can do whatever they want. And one of the things they want to do is give the President a lot of power over stuff is that. And there's no, there's no analog to the Governor of California, correct?

[Chris Mirasola]

Yeah, exactly. Right, Right.

[Scott R. Anderson]

So.

[Chris Mirasola]

So the key difference for the National Guard here is the statute that creates the D.C. national Guard, right. And the statute that creates the D.C. national guard explicitly puts the President as the Commander in Chief, even when it's in it. When it's in a militia, stat. And so fundamentally, the entire construct about how easy it is to access the National Guard, how broadly the President can use it, whether the Posse Comitanus act applies when it's being used by the President. All of that is fundamentally different because of the statutory framework that exists in D.C. that doesn't exist in any other state or any other territory, to be honest. Right. I mean, like Guam, the Virgin Islands, Puerto Rico, they all have their own National Guards. Their governors are in charge of their National Guards as commander in Chief. Right. So it's just a fundamentally different statutory framework. Okay, so we still have. We still have a couple hundred California National Guard in la, Right. Acting pursuant not to a statutory authority, but to an implied theory of presidential constitutional power, like colloquially known as protective power, which is this assertion that the President could use the military to protect federal functions, persons and property. I tend to think that, like, the fact that there's like an inherent constitutional theory that is like, underlying all of this has gotten kind of lost in most of the litigation in a really unhelpful way. But Anna can tell me if I'm wrong. And, and so anyway, that's like, kind of like to return folks to the facts that existed at the time.

[Benjamin Wittes]

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[Benjamin Wittes]

Okay, so Anna has joined us in the blurry room of her palatial mansion, fresh out of court. So Anna, we are going to get an update from you on the DC litigation which the conclusion of which the hearing just concluded but we were in the middle of discussing when you popped up on the screen the bench trial that took place before Judge Breyer, which you watched or listened to. So we're going to get to D.C. in a minute. We're going to tack back to it. But first give us a sense of how that bench trial went.

[Anna Bauer]

Yeah, so and I will say I'm coming into this having quite literally just come out of listening to a hearing. So I have no idea what you guys have discussed. So apologies if I repeat things that people have already said. But yeah, we had a three day bench trial on this question of whether the deployment of Marines and National Guardsmen in Southern California violated the Posse Comitatus Act. The posture is that California is seeking a preliminary injunction to in effect, bar future violations of the pca. And throughout these three days, you know, first day, we had three witnesses. Two of them, William Harrington and Major General Scott Sherman, are people who were to different degrees in the command structure overseeing Task Force 51, which is kind of the command post overseeing the National Guardsmen and the Marines who were deployed. And then also we heard from an acting field director in LA with ice, Ernesto Santa Cruz. And then on the second day we heard from Sherman. Again, you know, again, I don't know what you guys have already discussed about this trial, so I don't want to go in too much detail about it, but I'll just say that, you know.

[Benjamin Wittes]

We discussed nothing at all except that Chris gave us some background about, about what led to it. But we, we self consciously saved the description of it for you.

[Anna Bauer]

Okay, excellent. Well, that's helpful to know. So, so just to summarize, I think that on the one hand the evidence that came out through these witnesses, a lot of it had to do with the state, you know, highlighting different ways in which the, the troops were used for domestic law enforcement purposes. There were a number of different categories, so different operations that happen in places like Carpenteria, is it Carpinteria, California? I hope that I'm getting that right. Camera Camarillo in MacArthur park, where there's this kind of like military display of like, you know, taking vehicle, military vehicles through the park. And then I think most notably as two civilian detentions that were carried out by members of the military. One of them, I think is maybe a little bit more well known than the other. This is the example of a veteran who was on his way to the va, who had headphones on and was walking towards the Wiltshire Building and didn't hear commands to stop and then was eventually detained by, I believe it was members who were Marines who had been deployed. And then there was about a 25 minute delay in which that person had been detained by military members before actual law enforcement authorities showed up. And so there was a lot of testimony about, you know, what were the circumstances around that. And the response was, oh, well, it was lunch hour. So even though there were law enforcement, civilian law enforcement was nearby, you know, it took them a while to get there. They all this kind of stuff. So that was part of it was like kind of getting these facts in, into the record about, you know, what exactly did the military do. We saw Photos, we saw videos of things like. Like it was hard to identify who was military and who was civilian law enforcement. When you look at some of these photos, you couldn't really tell. And so it seemed like it was kind of like everyone was a part of, you know, doing the same kind of thing. I think that that was part of the reason why the state wanted to get into the record. The fact that, you know, if you're a person in California who is out exercising your rights of protest or whatever, you know, you don't really. You couldn't really tell who. Who was the military and who was civilian law enforcement. On other things as well that we heard about was the fact that pretty much everyone in the military agreed that the Posse Comitatus act applied. The testimony from Harrington and Sherman was that they had training on it. Notably, at one point was slide, in which there's a number of different categories that say things like, you know, like riot control, traffic control, all a list of four different things, all of them being things that ultimately the military ended up doing in California. And, you know, on the one hand, it seemed to be that apparently the evidence, I couldn't. Couldn't see it because I was listening, right. And we didn't have a visual, but that exhibit, it. It was listed as. They were listed as examples of things the military wasn't supposed to do. They were supposed to be prohibited from doing. And so the state had to kind of, excuse me, the defense or the government had to kind of find a way to explain that. So when they had, you know, their day of introducing evidence, the explanation was, oh, well, like, you know, these categories of things were things that you're not supposed to do. But we were taught that there was an exception to it under, you know, this idea that we were there to protect federal personnel and property. And so that's kind of one of the themes that we heard from the defense over and over again. And I think that Chris was talking about the protective principle whenever I came on. But over and over again, we heard about the legal advice that General Sherman that Harrington received was that the mission was just to protect federal personnel and property, and that they believe that all of the actions that the military took was consistent with that. And then finally, on the third day, and keep in mind, there's a lot of other stuff that happened, but I just want to make sure that I do get to some of the. What else happened on the third day, which is the legal arguments. There's a number of arguments that the government has raised about standing for Example, one of the arguments that I'm curious about here, Chris or Scott, if you have thoughts on this, is the fact that the Posse Comitatus act is a criminal statute. You know, there's like one 8th Circuit case in which the 8th Circuit said, yeah, it could be the basis for a Bivens claim, is my understanding of it. This is the Wounded Knee case. But other than that, there's not really precedent for, like here where you have the Posse Comitatus act serving as the basis of a civil action. And one of the really interesting things that was raised during some of these legal arguments, the judge, Judge Breyer, raised this issue of, like, well, if you can't bring it as a civil remedy, as the government is arguing that you can't do, but also at the same time, you have the immunity decision that means that the president is immune from a criminal prosecution. You know, like, that means that this statute that Congress enacted basically has no way of being effectuated, or there's no remedy that you can get if someone violates it. And then even if there's not immunity, there's also the question of the fact that, well, the per the people who would prosecute a violation of the statute would be the Department of Justice, and they're standing here before the court saying, there's been no Posse Comitatus act violation. So I thought that that was a really interesting element of the legal argument. There's some other things as well. For example, separate from the protective principle exception, the government has argued that 12, 4, 06, which is the statute Trump Trump sites in the executive order federalizing the National Guard to California, that that is an exception. There's questions there about statutory interpretation because, you know, there's nothing expressly in that section that says, like, this is an exception to the Posse Comitatus Act. So we had a number of arguments there on those types of issues. There's also trying to think various other things about whether or not California sufficiently showed traceability, things like that. But overall, it's clear that Judge Breyer seems to think that there's been some type of way in which the authority.

[Benjamin Wittes]

Of.

[Anna Bauer]

The military was exceeded here. He's very concerned about the lack of limits on, you know, what the government has been doing, and he's concerned with that. But I do think that my understanding is that I think if he, I think he does wonder about the like issues with this being a criminal statute and kind of how you, you bring an action for a civil remedy. But I, Chris, I don't know if you followed the, the trial much. I'm curious if you have thoughts.

[Chris Mirasola]

I followed your reporting, which is very helpful. My, my, my, my concerns go in a number of different directions. Maybe I'll start off with the, the issue about, like, what to do with the PCA now. Right. So, so this issue that it is a criminal statute. Right. And therefore would ordinarily, you know, be enforced by the Department of Justice, has been an issue with the PCA practically since enactment. Right. You can find vanishingly few prosecutions under the PCA because there are very few incentives as a general matter to bring a prosecution against a military member for violating the pca. So that's, that's like a long standing issue with the pca. I happen to think that the Trump immunity decision makes this area of law worse in meaningful ways. Right. So I'm flying back from a conference about civil military relations where I was presenting a draft paper that talks about the Posse Comitatus act after Trump v. United States. And there's a real issue if you take the Trump majority's logic and dicta seriously about how you could enforce it against the President. Right. And so I think Judge Breyer has, has honed in on, like, what is a, like a, a extremely unfortunate and very predictable side effect of that immunity decision. That leads to my frustration with some of how California has litigated the case, which is to focus on the PCA violation bit and not focus on attacking the protective power itself. Because you can argue that the underlying authority to deploy these military personnel is itself ultra virus. Right. Either because the protective power is a theory of constitutional authority that is just fundamentally incompatible with modern separation of powers jurisprudence, which is my view. Right. Or that the modern articulation of the protective power is broader than historically was. Right. Because historically this is a doctrine that talked about protecting federal buildings and protecting the US Males. And there are countless examples, as you were just going over. Right. Of these military personnel accompanying ICE agents well beyond any plausible federal property. Right. And so you could be attacking on that ground, too. And that would just give California and Judge Breyer frankly as well, something that's much easier to grapple with than like the intricacies of what do you do with a criminal statute in a post Trump immunity world where it is, you know, where we're talking about like, you know, you know, the exclusionary rule. Right. Like excluding evidence, which is often how a PCA violation is brought up in a civil context. Right. Like, often like case law that we do have outside the criminal context, is a defendant often in like an Immigration deportation proceeding saying, hey, this action by the military violated the pca, and therefore this bit of evidence that that is crucial to the deportation proceeding should be omitted from the litigation. Right. It's just a very different posture than what we're in right now. So hopefully that's responsive. But it just leads to a couple of my frustrations with how the legal questions here have been posed by California.

[Benjamin Wittes]

I need to hijack this because we got other stuff to come cover. The first of which, Anna Bauer, is the hearing that you just got out of. So we. We did a little bit of discussion of it based on Rogers having listened to part of it, based on the teeing up the issues. But give us your thoughts on Judge Reyes's hearing that you just walked out of.

[Anna Bauer]

Yeah, well, let me catch you up on what happened. So when the hearing went on recess, which I think is where Roger probably left off, they were. The parties were trying to work on sections 2, 3 and 4 of Bondi's order that are basically these provisions that say, like, I'm ordering you not to just to kind of like ignore these policies or orders that would otherwise apply to the D.C. police under Local law. And so the parties went away for what was supposed to be a 15 minute recess that then turned into like an hour and 15, 15 minutes. And so we had some suspicion that, you know, maybe they were trying to work something out between them. They came back and Judge Reyes said, all right, counsel, what am I doing tonight? And they said, you know, we've made some progress on these sections 2, 3 and 4. We're not, you know, ready to finalize it yet, though, and we think we could have further productive discussion. So. So we'll ask you to just hold this in abeyance until we're able to, you know, work something out further. And so she agreed to do that. And then there's this question of section one, which is the section of the order that has to do with installing Terrence Cole, who is. Oh, gosh, what is his title? Dea. He's a DEA official who. Thank you.

[Chris Mirasola]

Who.

[Anna Bauer]

Has been in the language. It's kind of like, you know, basically installing him as the acting Chief of police, which Judge Reyes indicated that she felt was not within the bounds of the Home Rule act, and. And so on that. That, you know, the DC still wants an injunction or TRO with respect to that section. However, DOJ made the representation that, you know, we think that we're going to rewrite this. We think we can do something with it to, you know, make it compliant. So we'd ask you, you know, not to issue a TRO on that. She said okay, well you can go and do that and if I don't hear by like 6:30 I'm going to issue an A TRO but I'm going to give you My new clerk spoke. She apparently has a new class of clerks that start that are just started today. And so she said I'm going to give you my new clerks phone numbers who are just about to get sworn in. And you know, you can let me know what's happening with that. If a new order issues and it's not an issue anymore, then I won't issue a tro. But if I don't hear anything, I'm going to issue a TRO by like 6:30 tonight. So we're still waiting. Oh, and then there's also section five that she, she essentially again does not think that she could issue something with regard to section five. That is the section of Bondi's order that basically is like, like I'm ordering you to enforce already existing DC local law. So that's where we left off. We don't have an order yet, but it's kind of all in limbo.

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[Anna Bauer]

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[Benjamin Wittes]

All right, let us speedrun in the next eight minutes through the next, through the last stuff on our outline. Chris, tell us about the Pentagon's plans for a rapid reaction force for civil unrest. Are they, like the Secret Service, going to keep the world safe from hopscotch?

[Chris Mirasola]

Fantastic. And this is great because I can be quite quick with this. So my baseline takeaway here, right, is that whatever level of concern folks had about domestic military deployments before this news should be your level of concern about domestic military deployments after this news. So this is not a new thing that the Defense Department is doing. There have been numerous prior instances, most of which I think maybe almost all of which are just like not publicly talked about, of the Defense Department putting National Guard units into training status in geographically convenient locations at times that are also convenient so that they might more easily be mobilized into some kind of operational duty status should the need arise. And so these folks are not mobilized right now to do anything operational. They are postured so they can do it more quickly. So really the only change that we have is that a mobilization that might take a day would now take a few hours. And of course, like, that is consequential in a way, but it is also like not fundamentally destabilizing of, of what the military might be doing. So my way of saying it makes things a little bit easier, but it's not a radical change.

[Benjamin Wittes]

All right, we got to get through our regular features. Who is playing? Scott, I think you are playing who wants to dismantle a federal agency today. And we are playing CFPB version and VOA version. Give us an update.

[Scott R. Anderson]

Yeah, it's a sad day for CFPB employees of whom I have family members who are in there. As by way of disclosure, Consumer Financial Protection Bureau had the preliminary injunction that has prevented wide scale rifts that the administration has repeatedly tried to employ. They've now vacated the preliminary injunction and more or less cleared the way for those. The, the, the opinion is for the moment, although I, I want to get in briefly discuss just what the opinion says and what actually does. Opinion by Judge Katis over dissent by Judge Pillar joined by Judge Rao. They essentially say, look, the employment decisions all we don't have jurisdiction over. They all have to go through MSPB proceedings. That's not terribly surprising. The en banc DC Circuit has already kind of signed off on that in the widow Kusara opinion. And then they said and all these other challenges to the allegations that CFPB is not standing by its statutory obligations, none of these are ripe yet because there is no final agency action yet and that you actually have to specifically allege specific things they aren't doing and have fine plaintiffs withstanding able to challenge those about like, you know, specific lapse in services. The at this point the, the complaint was slightly higher level than that, although there were elements of that in the complaint. But presumably they have to file an amended complaint. So it still leaves the door open for legal challenges. And notably the D.C. circuit has said, said if you're challenging a failure to abide by a statutory obligation that can include challenges to reductions of personnel, that makes it impossible to abide by that statutory obligations in Witigoswara. But nonetheless it means that large scale risks probably are coming to CFPB and that if they're going to challenge them, they're going to have to challenge specific people who are being terminated in a way that puts CFPB statutory obligations at risk. This all tees up a very difficult question about how much can the court supervise. What is actually the minimum staffing levels, minimum resource levels, levels, minimum commitment to meet statutory obligations? If you want to know how hard that is, then you have to go to Whitaker Swar in the district court where we just saw today the federal government actually file a response to the order to show cause. Where we've seen the plaintiffs there pushing the idea that the U.S. agency for Global Media is violating the preliminary injunction by not meeting up statutory obligations. And we've seen Carrie Lake and her staff ratchet up a little bit in the statement saying, well, we are keeping a little bit more staff. And they've essentially said that our senior civil servants actually developed our plan for minimal staffing to meet minimal statutory obligations that they've now disclosed. And let's see what the judge does with that. This is the real test case that we talked about before about how courts are going to be able to supervise agency dismantling. The extent to which they're going to second guess the executive branch on just how far they can push the minimum and still abide by statutory obligations. And we're getting to the critical moment there because this is the last filing I think think the district court's likely going to get before they rule on it. So keep an eye on that case. I think we're going to see big develops in the next few weeks and.

[Benjamin Wittes]

Remind us who the district judge is in Whitaker Swara.

[Scott R. Anderson]

I was just trying to remember. I believe it's Judge Lamberth. I want to double check that, but I believe it's Judge Lamberth.

[Benjamin Wittes]

I believe that's correct. And I will say Judge, there is nobody I trust more to think about an issue like this than than Royce Lamberth. There are a lot of great judges on that court, but there is nobody who calls louder than than Judge Lamberth. All right, let's talk about politicization of the doj. Always a target rich environment. Roger I will direct you all to an exchange I had on this subject with Ruth Marcus and Jack Goldsmith last night at a conference, both of whom told me I was understating the problem and Jack who told Ruth that she was understating the problem. I will post a clip of that exchange as soon as I can find it. It is an extraordinary, extraordinary conversation. Roger, give us an update on the majority of horrors of the week.

[Roger Parloff]

Well we had, we had a couple 48Amotions to dismiss out in of criminal dismiss criminal cases by the controversial U.S. attorney Bilali in LA. One was actually the more the more disturbing one actually was the donor this was to Weedenheimer Weeden Weeden horn who his $46 million fraud case was dismissed and that there did not not make waves that went through rather perfunctorily. But there was a second one this week involving deputy a famous case there, the sheriff's deputy Trevor Kirk and a more complex situation outside a supermarket. He did slam a woman to the ground and pepper sprayed her twice in the face and put his knee on her neck. And he had been charged with 242 the deprivation of rights, excessive force. And he was convicted by a jury trial. The judge wanted at that point Esale wanted to drop the felony charge, make it a misdemeanor, have the guy plead guilty to the misdemeanor and get probation. He was allowed. He did. The judge did drop the felony but gave him four months. And then after the judge gave him four months as Salee tried to dismiss the whole case and the judge denied it. So that is an interesting situation. But of course it's after sentence which makes a it an unusual situation as well. So that's been appealed. That'll be sort of interesting to watch. We had the the case involving the entire the the the challenge by the government to the standing order of the entire district bench in Maryland and that was argued there was a hearing but we still don't have a decision on that. The Judge was Judge Cullen from the Western District of Virginia was reportedly skeptical. He is a Trump appointee, but I think he was skeptical of the government's challenge. We also happen to have two amicus briefs in that that have our friend Judge Ludig on them. I didn't know you could be on. On be an amicus on two amicus briefs, but he is. And then I think we had the hearing on whether Alina Haba, Acting US Attorney Alina Haba of the District of New Jersey can really be Acting Attorney General. U.S. attorney. Excuse me, we're rushing. And that a. A criminal couple. Criminal defendants are challenging that giro. And that was argued today. And they. The judge allowed an amicus to argue. The amicus was actually James Pierce who is uh, a our former colleague and perhaps sort of ongoing colleague. And he reports that that hearing went over four hours and he described it as spirited and long. And I guess I'm. And the judge seems to rule against government, but the judge intends to rule by Wednesday or Thursday of next week.

[Benjamin Wittes]

Week.

[Roger Parloff]

I think that's all right.

[Benjamin Wittes]

Normally this show has been dominated by immigration cases. It is a reflection of how diverse the issue set is and how fast changing the issue set is that we're going to speed through the immigration cases right here at the end today. Roger, bring us up to speed.

[Roger Parloff]

Yeah, I'm having trouble finding it in my notes, but I've been trying to mention this Vasquez per Domo case for a couple weeks now. It's fully briefed. It's in front of the Supreme Court and the government. It stems from the same situation in Southern California that Anna was describing. But it. Some immigration rights groups won a tro. I, the, the. I, I don't have the name of the judge before me and she's the daughter of Ghana immigrants from Ghana. And I, I can't uh, call up her name, uh, without uh, get seeing my notes. But she did issue a tro. It's against. The idea is that there were these roving raids that were based on less than reasonable suspicion and they would had four. And the TRO said that you need more than just even for the four items that were being cited like speaking Spanish or like being at a location like a bus stop where they have stopped illegal aliens before or a Home Depot parking lot or having certain. Working in certain positions where that are often held by illegal aliens. Like and they use the word illegal aliens throughout. Throughout the brief. So I'm going to use that car wash or you know, agricultural worker and, and of course It's a quite an interesting case because about a tenth I think 1 in 10 I think maybe 55% of people in LA county speak a foreign language at home, probably close to 40% speak Spanish.

[Benjamin Wittes]

The second, it's the second most linguistically diverse place I believe in the world after New York City. It's a crazy, crazy linguistic center.

[Roger Parloff]

Yeah. So the government has appealed. The ninth Circuit declined to stay and now it's at the Supreme Court. The government is saying mainly that this is a, a vague follow the law tro. And, but, and, and they are also have said that that those four factors taken together can often suffice to, to, to account count to provide reasonable suspicion. So I, it's a, I think that's a very important case and obviously I hope it hasn't just been decided right now. But and the always a risk on.

[Benjamin Wittes]

On dog, on on on Trump trials and tribulations.

[Roger Parloff]

And then also this week, Barco Mercado, this was a, a case that where Judge Lewis Kaplan in Manhattan issued a TRO essentially requiring minimal humane conditions at 26 Federal Plaza. And actually the Perdomo case, although it hasn't been appealed, it had a comparable or in some respects similar TRO relating to the place where all of those detainees were being taken. And the problem is, is in both cases they're being taken to immigration facilities that aren't meant to house anyone for more than a few hours. You know, there are no beds, there are no, and they're overcrowded and there's no doctors. There's no way to make a private phone call to your attorney. And Judge Kaplan entered a very specific TRO that says, you know, you may not hold these people unless you have X number of square feet per person, excluding the eight feet surrounding the toilet. And you also need to provide, you know, basic, you need to provide soap. And you know, so that too is, I don't think it, I don't think that one has been appealed. I think they recognize that that one I don't want to speak too soon, but that that one is basically a lot of it is uncontested.

[Benjamin Wittes]

All right, Roger, are one question in the queue today relates to the second to last item on the agenda. So I am going to merge them. David asks very much want to hear an assessment of the appellate decision in AFT v. Besant. Since when does someone have to succeed on all allegations to merit a preliminary injunction? Give us a rundown on what happened at the Fourth Circuit in AFT v. Besant.

[Roger Parloff]

And here I this received insufficient attention on my part. And so I. My under. I can't answer the question. My understanding, however, was that this was a fairly unsurprising 4th Circuit case. It vacated a preliminary injunction against DOGE accessing Department of Education and Treasury computers, and it was following the Supreme Court's shadow docket ruling in the Social Security case, Social Security Administration versus afscme. And the recurring problem in all of these DOGE Privacy act cases has been one is standing, which is. Or, you know, likelihood of proving standing, since we're talking about a preliminary injunction, but because although it's scary that somebody is rooting around your private information, there's no evidence yet that they have put it on the black Web or they have stolen it, or they're using your personal identity. And so there's a. Is just having somebody look at your information enough to convert can convey standing? And then on top of it, there is this also this recurring question of, is it a Privacy act violation? Because these people are claimed to be, you know, federal employees of the agencies involved, usually, and they might have a right to it under the Privacy Act Act. So. And it was decided two to one on, you know, political. Political teams. Trump and a Trump appointee, a G. George W. Bush appointee in the majority, a Clinton appointee in dissent. And I'm afraid I. I didn't read it carefully enough to be able to answer, uh, David's question.

[Benjamin Wittes]

All right, so speaking of the Fourth Circuit, we are going to close Anna with a special widowed 4th Circuit edition. Anna, who is the administrator of Doge, according to Judge Chuang.

[Anna Bauer]

Well, the de facto administrator of Doge, according to Judge Chuang, is Elon Musk. This is the second time that judge.

[Benjamin Wittes]

Does that make your heart go pitter, Patterson?

[Anna Bauer]

Yeah, because, look, if you haven't. If you haven't ordered your WATO lawfare hat yet, order it now, because watode is back, people, with this. Order this. So this, if people remember, is the USAID case, in which a number of former USAID employees and contractors are raising an Appointments Clause claim, essentially arguing that. That certain actions related to the dismantling of U.S. aid, including, you know, taking down the website, shutting down the building, things that happen in late January, early February were done by Elon Musk and Doge in violation of the Appointments Clause. Initially, there was a preliminary injunction that Judge Chuang entered that was then stayed by the Fourth Circuit Court of Appeals in a decision we talked about. But I found a bit odd because it seemed to be quibbling with some of the factual findings or way that Some of the facts were construed by the judge in his preliminary injunction, but ultimately there. The plaintiffs then amended their complaint. There was a motion to dismiss by the government for a variety of reasons. And this opinion that we got from Judge Chuang is in the context of ruling on that motion to dismiss to the second amended complaint. He denied the motion in part. So in a number of ways, for example, that the Tucker act doesn't preclude the court from exercising jurisdiction over the claim, denied the motion to dismiss as to the argument that there's a non justiciable political question regarding the separation of powers, and then also finally denied it as to the Appointments Clause claim. And importantly, in that section of the order, Judge Chuang wrote that the defendants argue that the actions to shut down USAID occurred at the behest of USAID officials. But this, as Judge Chuang says, fails to account for plaintiff's allegations, which strongly support the inference that Musk directed the actions to shut down USAID without authorization from any USAID official. And then he continues to go on and says these allegations suggest that as the de facto administrator of DOGE at the time, Musk directed those actions. So, Ben, look, this isn't the end of it. Oh, and I also should add that he did grant the motion to dismiss as to claims that were brought against President Trump and his official capacity on the argument that generally you can't have injunctive relief against the President in his official capacity. But, Ben, this is important because do you know what happens after the motion to dismiss phase in civil litigation?

[Benjamin Wittes]

Discovery.

[Anna Bauer]

Discovery. So we might very well finally get some Amy, maybe an Amy Gleason deposition, maybe some documents. So we'll see. But I think that this is an important step to figuring out who, who was the administrator of doge.

[Benjamin Wittes]

Folks, we're going to leave it on that happy note where we might get discovery, although there will be a motion to dismiss is a dispositive motion that's ripe for appeal. So we're going to go all the way up to the Supreme Court before we get that discovery. But, you know, it's going to, you know, ultimately in the world, folks, there is justice and we're going to leave it there. This week we only ran 16 minutes over. We're going to be back next week. There'll be even more on the agenda that until then, you know, keep following those dockets because if you don't follow them, they will follow you.

[Anna Bauer]

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

[Chris Mirasola]

I think what gets me most about.

[Anna Bauer]

This whole journey that I've been through is is just how many jigsaw pieces.

[Scott R. Anderson]

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[Anna Bauer]

I've met people who have just packaged the drugs, just this white box saying.

[Chris Mirasola]

World Courier on it.

[Anna Bauer]

But I want to better say thank.

[Roger Parloff]

You to every single person that works.

[Anna Bauer]

On these things because they've saved my life. Every single one of them.

[Scott R. Anderson]

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