← The Lawfare Podcast
Loading summary
Transcript119 lines
- [00:01]
Benjamin Wittes
The following podcast contains advertising to access an ad free version of the Lawfare Podcast. Become a material supporter of lawfare@patreon.com lawfare that's patreon.com Lawfair also check out Lawfare's other podcast offerings, Rational Security Chatter, Lawfare, no Bull and the Aftermath.
- [00:32]
Podcast Advertiser/Host
As a parent, I obsess over the details. What my baby eats, how they sleep, what touches their skin. But what about the water they bathe in? The truth is, according to ChemTech International, 98% of U.S. household water is treated with chlorine. Data from the U.S. geological Survey shows that 85% of U.S. households have hard water. Many pediatricians warn of the risks of unfiltered water, especially chlorine, which can decrease hydration in the skin's outermost layer. If your little one is dealing with skin redness, irritation or discomfort, Canopy's Bathtub filter might be the answer. Its Trimedia filter reduces chlorine and irritants for gentler, safer baths. It's made from FDA approved BPA free silicone and fits virtually any spout, so installation is a breeze. But wait, that's not everything. It doubles as a spout cover and temperature indicator, helping protect little ones from accidental burns, bumps and bruises. Like all Canopy products, the Bathtub filter is hassle free and high impact. It installs in under five minutes. Filter changes are super simple and yes, you can even toss it in the dishwasher to clean. You heard that right. The dishwasher. Visit GetCanopy Co and save $10 with their hassle free filter subscription. Even better, my listeners can use my Code Canopy pod at checkout for an extra 10% off your order. Hurry. Better bath time for Baby is just a couple of clicks away.
- [01:56]
Benjamin Wittes
You buy a pair of socks, that's two socks. You buy a pair of Bombas socks, that's four socks because one purchased is one donated socks are the number one most requested clothing item in homeless shelters. So when you buy a pair of super comfortable Bombas socks, you're also donating a pair. Bombas customers have powered over 150 million donations. So Bombas would like to thank you.
- [02:14]
Producer/Announcer
150 million times, but we only have like 30 seconds.
- [02:18]
Benjamin Wittes
Go to bombas.com and use code audio for 20% off your first purchase. That's B O-M B-S.com and use code audio at checkout. It's the Lawfare Podcast. I'm Benjamin Wittes, Editor in Chief of Lawfare, with Lawfare Senior Editors Anna Bauer and Roger Parloff and Lawfare contributor James pierce. In the Aug. 22 episode of the trials of the Trump administration, we Talked about the FBI's search of John Bolton's house, a ruling on the legality of Elena Haba's service as U.S. attorney updates in the Kilmar Abrego Garcia case, and so very much more. Foreign welcome everybody to this week's Lawfare Live. It is Friday, August 22nd, the year of our Lord 2025. It is 4:01pm in Washington, D.C. and I am here with Roger Parloff joining us from the Jura studio where he is still a Maquillard in the French Resistance. Hey Ro.
- [03:42]
Roger Parloff
Hey Ben. Good to be here.
- [03:44]
Benjamin Wittes
And Anna Bauer from the blurry room in her palatial mansion. Anna, you've been spending a lot of time in the blurry room.
- [03:55]
Anna Bauer
Yeah. But today this is the Georgia blurry room. It is a change of pace, but it is nonetheless still the blurry room.
- [04:09]
Benjamin Wittes
And from his car in in advance of a soccer game, it is the estimable James Pierce back with us in his new career, having fully transitioned from government lawyer to anti government lawyer. James, how is the new gig?
- [04:33]
James Pierce
Thanks, Ben. Yeah, it's been been busy, but in, in all good ways, some of which I think I'll have the chance to talk about shortly.
- [04:42]
Benjamin Wittes
Well, it's very exciting. Again, James is the picture of the Lawfare Public Service Fellowship program in action, giving people a bridge from being fired by Donald Trump and Pam Bondi to gainful employment in suing Pam Bondi and Donald Trump. That's what we're going for with this program. Now, I'm joking. That's actually not what we're going for, although we have no objection when it happens to work that way. All right. We've got a lot of stuff on the agenda. James has to jump off at 4:30. So we're going to front load all things. James, which means talking first about Justice Department politicization. James, we have a decision in the Elena harbor matter. Is she legally wielding the powers of the U.S. attorney in New Jersey or is she a an imposter who is usurping the powers of the legitimate U.S. attorney?
- [06:02]
James Pierce
According to Chief Judge Braun of the Middle District of Pennsylvania, who is sitting by designation in a couple of cases out of the District of New Jersey, Alina Haba is not lawfully serving as either the acting United States Attorney or delegated power from Attorney General Pam Bondi. Before I go further, I should say I am in my new post Lawfare life and career involved in this Litigation I represent the association of Criminal Defense Lawyers of New Jersey, filed an amicus brief essentially in support of the defendants who were challenging the validity of Alina Haba's appointment and serving in this role, and also participated in an oral argument that happened just a week ago. So for full disclosure purposes.
- [06:54]
Benjamin Wittes
So tell us about your new role. So we, when we last talked to you, you were, you were leaving for opportunities unknown, but you were going to stay involved. So here you are, still involved. What are you doing?
- [07:12]
James Pierce
Yeah. So I am a senior counsel at the Washington Litigation Group, a law firm that opened up earlier this month, August 4th. It's a law firm that is focused on upholding the rule of law and particularly offering representation, pro bono representation to people or entities targeted by the administration. And it was the is the brainchild of a bunch of luminaries of the D.C. bar, former defense counsel judges, a former acting attorney general. So attorneys with a lot of experience and then also folks like myself and a couple others who been recently practicing either as former prosecutors or doing high level appellate and Supreme Court work. And so we've taken on a couple of different matters, one of which is, as I just mentioned, representing the association of Criminal Defense Lawyers in the challenges to Alina Haba's the validity of her appointment.
- [08:19]
Benjamin Wittes
And why does I mean, Alina Haba is a, I'm just going to say this bluntly, a clownish mar a Lago like figure. She's not as clownish as, say, Ed Martin, but we focus on her as opposed to the, say, the U.S. attorney in Albany who has a similar thing because she's Alina Haba and she kind of looks like she was plucked out of central casting for, you know, a Trump lawyer. But why does it matter who is running, you know, whether that office is whether Trump can install his person on an interim basis in that office or not. What's, what's the given that the Justice Department is ultimately controlled by Todd Blanche and Pam Bondi anyway, why, why do we really care who is US Attorney in New Jersey on this interim basis?
- [09:22]
James Pierce
So US Attorneys have existed even before the Department of Justice. They have existed since 1789, the Judiciary act, and they have been the federal prosecutors that oversee the prosecutions in the there are 94 federal districts. They're actually 93 federal attorneys for those keeping score at home. The U.S. attorney for Samoa and the Northern Mariana Islands is the same person. So that's why you've got a slight mismatch. And, and that person, that U.S. attorney is an officer of the United States who, who under the Constitution is appointed by the president and by statute is required to be confirmed by the Senate. Right. Has to have Senates, the Senate's advice and consent. And so that's a role that, as I said, is filled in the 94 districts and is essentially the top federal prosecutor making prosecutorial decisions and leading the offices. And the challenge to HABA in the District of New Jersey is one that doesn't take issue though I think, as you've said, Ben, it could be perfectly fair to take issue with her qualifications as a matter of first principles, but takes issue with essentially the manipulative way in which the executive branch has tried to put her in place inconsistent with the statutory. There are various statutory options that the Justice Department or excuse me, the executive branch could use, but ultimately the court found and happy to kind of wade through the details. The details are weedy that none of those options were available in Alina Hava's case.
- [11:09]
Benjamin Wittes
All right, so walk us through what Chief Judge Braun found. And I assume this is going to the Third Circuit where Emil Bovey will be the presiding judge on the panel that will reverse him, right?
- [11:25]
James Pierce
Yeah, it will be interesting to see. I mean, Chief Judge Braun was, was very attentive to and his and his ruling also makes clear the likelihood of further proceedings, of appellate proceedings, whether Judge last I checked, he hadn't had his commission. Maybe he's now on the Third Circuit. I would think he would recuse from something like this, but we'll see.
- [11:47]
Benjamin Wittes
I would think he would have to recuse, but I am, look, I am mindful of the rule that a judge who does not have to recuse has to not recuse. And so I think we all need to start with the assumpt that Judge Bovey is hearing every case in the Third Circuit. And that's we just need to remind ourselves that when you HEAR the words 3rd Circuit Court of Appeals, you should hear the words Emil Bovey.
- [12:17]
James Pierce
Yeah, well, we'll see when we get there if that in fact turns out to be true. But so yeah, the situation was and I think a little bit of context is helpful, though I'm sure many folks here followed it after. So in early January, at the end of the, the past administration, the U.S. attorney under, under the, under President Biden resigned. The position was filled with a, with a first assistant sort of the top deputy in the office. And then in early March, a, a different acting U.S. attorney was appointed or technically interim U.S. attorney was appointed, someone by the name of John Giordano. He served for three weeks. And this was under a statutory section 28 USC 546, which allows the Attorney General to appoint an acting or really, the better terminology is an interim U.S. attorney who has the full powers of a U.S. attorney for 120 days. Mr. Giordano served three weeks of that. And then Alina Haba was named. There's some controversy about exactly when she started. President Trump announced through social media that he was appointing her effective immediately on March 24. But according to the Justice Department, she was not actually appointed until March 28. Anyway, in late March, she comes on the scene and then as folks may well know, when that 100 day, 20 day period ran, at least as far as the district court in New Jersey considered it, they put in place or issued an order also consistent with Section 546, not Ms. Haba, but in fact, Desiree Grace, who was the first assistant, the Justice Department or the Attorney General. Ultimately, we learned the President fired Grace and then purported on July 24 to put Haba back in place through an order that made Haba a special assistant under a different statute, 28 U.S.C. principally 515, which by the way, is the same statute that really authorizes the appointment of the special counsel, like Special Counsel Jack Smith.
- [14:32]
Benjamin Wittes
It's basically a statute that says the Attorney General can name whatever persons he or she wants to do the things that he needs done. Right.
- [14:42]
James Pierce
Yeah, I think that works as a, as a sort of a, a basic description of it.
- [14:47]
Benjamin Wittes
I mean, it's a, it's a super broad housekeeping statute that says the supr. That the Attorney General runs the Justice Department and he or she can appoint people to do things.
- [15:01]
James Pierce
Yeah. When, when read in conjunction with other statutes like 509 and 510 that give the Attorney General the power to delegate and other statutes that put the Attorney General in, in basically supervisory role with respect to all litigation. Yes, that is essentially the function. It's a way to delegate authority to a particular attorney. So the order purported to do that with Haba, make her the first Assistant, and then under the Federal Vacancies Reform act, which we will need to talk about in just a moment, then turn her into the acting U.S. attorney. So there were challenges from two different criminal defendants. One was, was a, was a group that had been indicted under a previous U.S. attorney in the, in the Biden administration. They argued that that Haba was disqualified from further prosecuting in their case because none of those various authorities, either section 5, 4, 6 or the federal Vacancies Reform act or this kind of special delegation under Section 515 allowed Haba to serve as U.S. attorney. There was also a challenge that Chief Judge Braun consolidated with the challenge by the first sort of group of defendants. And this was somebody who was actually indicted on July 7th of this year. So kind of right in the period where Haba was serving or purporting to serve as the acting U.S. attorney. Ultimately, what the, what the judge found is that none of these provisions justified or provided a basis for Haba to serve in the interim role, the acting role, or using the delegated authority of the Attorney General with respect to 546, which again provided. Provides the Attorney General the power to appoint someone for 120 days. The district court said there's only one appointment that an Attorney General gets. That appointment started with John Giordano in early March and actually had run out by July 1st. And so under the Chief Judge Braun's ruling, Haba was actually no longer eligible under 546 as of July 1st. So that's even before the period later in July when the District Court of New Jersey put Ms. Grace in power under 546D. So then the next question is, or was for the judge is could Hava serve under the Federal Vacancies Reform Act? A little bit of background on this is helpful. This is a sort of an omnibus provision. It's existed since essentially the founding that has recognized that there are times when officers who otherwise need to be appointed by the President and confirmed by the Senate, those offices come vacant. And yet it is still important that somebody fulfills the duties and functions of that office. And so the Federal Vacancies Reform act is the most recent version of a statute that provides, it's not specific to the Justice Department across the executive branch, a way to kind of ensure office continuity. And it, it provides a couple of different ways that the sort of, the default provision is that the first assistant, basically sort of the top deputy who is in the office will, will come in and fill for a limited period of time, usually about 210 days. Under, under the statute, the, the role of that, that the, the office that has, that has become vacant. There are two ways that the president can, can go a different route. This came up, for example, with the appointment of Matthew Whitaker during the first Trump administration, which is, instead of going to the first Assistant, essentially the top deputy, the president and the president alone, the statute says, can either pick a. Someone else who's been Senate confirmed for a position presidentially appointed and Senate confirmed, or somebody who has kind of adequate seniority in the relevant agency, so has to be at a certain level of seniority and has to have served in that agency for a long enough period of time. So I don't want to go kind of too deep into the weeds. But the long and short of what the judge, Chief Judge Brand found here was that the appointment under 546, the sort of the specific version for filling a vacant U.S. attorney's office. Again, Haba's appointment ran out on July 1. She was not eligible to then come in under the Federal Vacancies Reform act because she was not the first assistant at the time the office became vacant. And there was a separate challenge that the defendants had made and we also made as amicus that involved her having been nominated to the office at the same time, the court didn't end up reaching that. And then with respect to that final basis. So again, 546 is one, one basis. The federal Vacancies Reform act is another basis. The third basis was this kind of theory of delegated authority. The court held that what the Justice Department, what the Attorney General had purported to do was to delegate to Haba all of the authorities of an attorney general, but that so in that doing that actually conflicted with the Federal Vacancies Reform act, which was designed to be essentially the exclusive way to do something like that. So it was an effort to kind of maneuver or around or sort of circumvent what, what Congress had put in place to, to try to prevent precisely this, this type of kind of end around maneuver. And so the upshot of all of that is that the judge ordered that Haba is disqualified from the order, says participating in the prosecutions of the two cases or supervising any assistant U.S. attorneys, because this is a case that involved just these two or involved just these two cases. There's some lack of clarity about how far it extends, but on its reasoning, it would seem to apply to any prosecution's currently occurring in the District of New Jersey.
- [21:11]
Benjamin Wittes
All right, so if I am, it seems to me there's two significances here. One is in the particular case of U.S. attorneys, you know, can you install a flunky like Ed Martin or Alina Haba past a certain period of time over the objections of the local court, blah, blah, blah. US Attorneys are unique beasts. And there's a they have their own appointments process. The second issue which strikes me as much more important or at least broader, is how does the Federal Vacancies Reform act if at all limit the ability to deal with vacancies that otherwise would require advice and consent of the Senate. But you just kind of don't feel like it because you're Donald Trump. And as he once said, I like acting. It gives me more flexibility. Right. And so my question is if the Third Circuit were to affirm this opinion and the Supreme Court were not to intervene. And by the way, I think that is a remote possibility because Justice Kavanaugh has made clear that he wants these kind of interim decisions to be made by the Supreme Court. But leave that aside for a second. It seems to me this actually really is a substantial interpretation of the Federal Vacancies Reform act that basically says, you know, it doesn't give you carte blanche to put whoever you want in there for however long you want. How do you read the application of this to say, positions like the Secretary of defense who was installed under the Federal Vacancies Reform act once upon a time. Right. Or the, you know, like Trump was using this profligately in the first term. Are we seeing the courts now push back and say, wait a minute, if there are rules, if you're not going to use the Senate advice and consent process?
- [23:39]
James Pierce
Yeah, it's a great question and it's certainly a feature of the government's argument. Less so a little bit in its brief, but more so in the hearing a week from, from today, a week ago, was that the practice of using the Federal Vacancies Reform act in kind of the way it was used here is, is widespread and sort of cross cuts administrations. And, and the chief judge's response to that was kind of along a couple of, of different lines. One was, well, you know, maybe that's true, but, you know, this idea that everything just operates by, he says something like operates by handshake and people don't challenge this. When you actually get down and do the nitty gritty work of interpreting the statutory text. Are some of these appointments in fact supported? And in doing the work in Haba's case came to the conclusion, I think quite well supported, that the answer was no. Now, as a kind of practical matter, judge also made the point that looks when it comes to this very specific question of can the Federal Vacancies Reform act apply to a post vacancy first assistant? In other words, there's this practice, the government often argued in this litigation, of putting someone in place in a first assistant position after there had been the resignation of the pass officer of the Senate confirmed, presidentially appointed and Senate confirmed officer, and then as of noon on January 21, that person would become the acting head of the of the relevant agency. And the judge made the point, well, listen, I mean, that could still happen. You just have to have the person resign in the new administration then, at which point you've already put somebody in the first assistant position. And that under the operation of the Federal Vacancies Reform act, would be under the relevant 3345A1 for those keeping score at home, would be lawful. And so I don't think that this ruling, all of this is to say I don't think this kind of signals a sea change and should scare the government into thinking that there aren't plenty of tools, as Judge Moss said in another sort of. In a Ken Cuccinelli case from, from a few years back, there are plenty of tools still available. I think the point here, here is you can't just kind of keep coming up with ways to get the person that you want to fill that office because you can't figure out a lawful way under either. Again, in this case, the US Attorney specific provision, the fra ways of delegating. And so I think it will have limited effect, though I suspect in this litigation, the government will come in and make precisely the opposite argument. A kind of sky is falling consequentialist argument to try to advance its position.
- [26:35]
Benjamin Wittes
All right, mindful of the time, because James has to drop off in six minutes, I want to turn to some of the substantive work of the office that is now not lawfully headed by Elena harbor, which is to say the prosecution of representative Monica Lamonica McIver, who has moved to dismiss. So, James, bring us up to speed on where that case is, which flows from the savage beating that she gave to ICE officers when she was trying to break into an ICE facility and they were reasonably trying to stop her. Right.
- [27:23]
James Pierce
So, so, so the government has, has alleged. Yes, we've talked about this a couple of times on lawfare live. But this arises from an incident where not only Representative McIver but also Mayor Ross Baraka, and then there were a couple of other, I think, two other Democratic Congress members who were performing, on their view, oversight at Delaney Hall, a kind of ICE immigration facility in New Jersey. And a.
- [27:52]
Benjamin Wittes
Sounds like it's like the name of a plantation where, you know, you know, Delaney hall, where, where, you know, somebody, you know, got married in the 1860s, but is actually a detention facility.
- [28:11]
James Pierce
Yeah, it does. It does have that ring or something from Harry Potter. But yeah, no, it is a, it is an immigration detention facility. And we've talked about. So, so, so Mayor Baraka was briefly charged with Federal trespass. The office moved to dismiss it. The magistrate judge had some pretty strong words for the conduct of the U.S. attorney's office in that matter. But they did move forward. The office moved forward, the government moved forward to prosecute. Representative McIver charged her under 18 USC 111, often referred to as the federal assault statute, though it includes not only assault, but resisting, opposing, impeding, essentially federal law enforcement officers. You get very different perspectives of what happened depending on whether you talk to Representative McIver or the government. But for present purposes, in terms of the update, a week ago was the deadline for filing dispositive motions for the defendant for representative McIver. And I just wanted to flag two of them here. One which I actually haven't had a chance to read, but we've. We've anticipated is a legislative immunity motion. In other words, that Representative McIver was, in doing oversight is. Is essentially protected by, I suspect it's. It argues the speech or debate clause of the. Of the United States Constitution. To my mind, not having read the motion, that does strike me as a. As a pretty compelling argument. The other motion which I have read.
- [29:37]
Benjamin Wittes
Because speech and debate definitely includes administering beatings. Right. Well, I mean, when I debate with somebody, I reserve the right of full body contact.
- [29:49]
James Pierce
I mean, I suppose how you speech a debate and, and I. Wasn't it. Wasn't it Charles Sumner who, who. Who got a beating in the context of the Charles Sumner that was caned. Yes, exactly. Right.
- [30:00]
Benjamin Wittes
And it was considered and that was defended in the southern press as, as I recall, something that a man of honor could not have avoided doing was caning Charles Sumner. And so, yeah, I think that's clearly was on the floor of the House of Representatives. So clearly it, you know, this is a legitimate form of speech and debate.
- [30:29]
James Pierce
Yeah, well, we'll see how that goes. As I said, that's one. One of the two. Two motions, I think, though I haven't read it, there's a pretty persuasive case to be made that Representative McIver should benefit from a. From the speech or debate immunity.
- [30:44]
Benjamin Wittes
The other motion, all jokes aside, I actually agree with that. I think that there's the authority, the autonomy to defend yourself when you're there on legislative business, I think has to be understood at least a little bit capaciously.
- [31:07]
James Pierce
And you know, another interesting point here, and I don't know because again, I haven't read this particular motion whether the motion makes it. It's the selective and vindictive prosecution motion to dismiss, which I'll mention, which I'LL discuss in just a second does make the point, which is that it does not appear based on some kind of reporting that the office, the U.S. attorney's office, consulted with the Public Integrity Section, which as we've talked about here before, has essentially been whittled into non existence. But that is sort of issue spotting potential legislative immunity, speech or debate immunity would be precisely the kind of role that the Public Integrity Section would have played and might have given advice to say, you know, this, this poses a substantial hurdle to this prosecution. So again, kind of an effective point, I think, made in the selective and vindictive motion to dismiss, perhaps also made in the legislative immunity kind of about questions of the government's regularity and the regularity of its, of its processes. The selective and vindictive motion makes an interesting argument that it notes that the statute under which representative McIver is being prosecuted, I mentioned it before 111 essentially the federal assault statute was charged and then dismissed against 160 or so January six rioters. And so argues that essentially to the extent those folks were charged with it and then the beneficiaries of a pardon for far more egregious conduct. The motion argues, I think, compellingly than what Representative McIver engaged in. She should therefore be entitled to dismissal as a selective prosecution, particularly in light of the fact that she was both exercising her congressional oversight function and engaging in sort of First Amendment protected conduct. So that's the sort of the thrust of that motion. It also includes a vindictive or prosecution challenge, basically saying she's being targeted and at the end just makes a, says at least we are entitled to discovery on this matter, which is these motions are actually pretty, pretty rarely granted. But on my view, this one is, is more compelling than many of those, at least that I used to see when I was on the other side of them in government.
- [33:27]
Benjamin Wittes
All right. Finally, before we let you go, we have an update on the attacks on law firms, which is that two major law firms, Kirkland and Ellis, the great Chicago firm, and Paul Weiss, the great New York firm, are now busy doing work for free for the Commerce Department on trade stuff. James, is this oh, how the mighty have fallen situation, or are these firms just waiting for the D.C. circuit to affirm the district court rulings in the other cases, at which point they will rise up and say our agreements are unenforceable too?
- [34:15]
James Pierce
Yeah, that is a great question. And one I've been wondering. I mean, the reporting just says, as you summarize, Ben, that these two firms, Kirkland and Ellis and Paul Weiss have been involved, as was anticipated when a lot of these deals were made, in sort of furthering the trade deals that the administration has been kind of advancing and trying to. To carry out. You know, hard to see how that falls under kind of the. The typical view of what pro bono does, what pro bono is intended to do.
- [34:49]
Benjamin Wittes
It's all about representing the powerful against the other powerful. So, you know, or the less the powerful, the US Government against the government of Lesotho.
- [35:02]
James Pierce
Right.
- [35:02]
Benjamin Wittes
You know, like, who can't hire Kirkland and Alice.
- [35:06]
James Pierce
Yeah. No. And so to the extent this is pro bono, and I think there was a question in the chat, that's a fair one. I, I'm not from the reporting, it's not 100% clear that it is pro bono. And if it's just worked on as a. As a client work, that's a different story. But if it is pro bono and carried out under these, under these settlements, then I do think it marks a pretty different approach to pro bono work. I think the real question is the one that you flagged, and we'll just have to wait and see. Right. The four firms, Wilmer, Hale, Jenner and Block, Sussman, Gottfried Perkins, Coie, that have challenged the executive orders and in which the government has appealed and which I think the government will lose, whether that will then have the result of the firms that have otherwise made deals turning around and saying, yeah, good luck enforcing your unconstitutional deals at this point, but we'll just have to see.
- [35:53]
Benjamin Wittes
Right. I just want to say I can make very few predictions about the D.C. circuit. I will say there is no panel of the D.C. circuit that I can imagine that will not affirm the lower court rulings on the constitutionality of this. And so if you're one of the firms that made a deal, you're now asking the question, when do we argue that this deal is unenforceable? And maybe the answer is never, because actually it's better not to pick a fight with the snake. But maybe the answer is once, you know, there are enough rulings at the lower court level, there are currently four. Or maybe it's when there's a controlling precedent at the circuit level and a snake assert denial from the Supreme Court. James, thank you for joining us today. We kept you a little bit long, but it's great to have you back and congrats on the new gig.
- [37:01]
James Pierce
Thank you so much. Hope to be back soon.
- [37:04]
Benjamin Wittes
Excellent. So we are going to turn now to a subject we have generally never spoken about before on lawfare Live, and that is the giant civil judgment in against Donald Trump and the Trump Organization, specifically in the New York case. And I want to explain, before I ask Roger to talk about the 323 page opinion, is that, am I getting the length right? No. And I have not read it. I read the syllabus and said, I'm not reading this, but I want to explain a little bit about why we have gone from not covering these cases and these will now include the, the Carroll case and some of the other civil litigations in New York. And I, I've actually given this a lot of thought why both in the before times when we did not cover these cases and in the current environment when I think we should. And I just want to explain my thinking about this to everybody for transparency purposes. So our general posture has been that we cover national security law. And whatever sexual harassment against a former president is, or sexual assault against former president is, it's not a national security litigation. Whatever fraud against the Trump Organization for real estate in New York is, it is not a national security issue. And so if you're lawfare and you're not a Trump litigation website, you're actually a national security legal policy website. There are things that involve Donald Trump that don't involve us. And I have always thought of the civil litigation in New York, whether it's about the Trump Organization's business practices or about Trump's sexual behavior as not implicating lawfare issues as a general matter. Now, sometimes there are specific issues that arise as opposed to, for example, the, the New York civil, the New York criminal case, which raised issues about the integrity of the 2016 election, that comes in a little bit closer to our orbit. Right. And so we have over the years, and I think both Roger and Anna will back me up on this, spent a fair bit of time asking the question, hey, is this in our orbit or not? And sometimes the answer is yes, and sometimes the answer is no. Well, with these civil cases over the last eight months, the answer has changed. And the reason is that, you know, a 450 million dollar lawsuit judgment against Donald Trump or against the Trump Organization by the state of New York in and of itself is not in Lawfare's orbit. But if a $450 million judgment against the President of the United States is within lawfare's orbit, and so the moment Trump goes from being a former president and maybe someday a future president, to being the actual president again, a bunch of this stuff becomes part of our vocabulary. Sort of the way the Paula Jones suit. You know, if you think about presidential power, big issue for the Clinton administration. Right. And, and so I think, you know, the, if, if you're thinking, oh, you guys didn't used to cover this, and now you are, you're right. We are shifting gears a little. And the reason is that the magnitude suits against the president matter in a way that suits against private individuals from a lawfare point of view, though they might matter from a lot of other point of view, from a national security legal point of view, they really don't matter very much, or at least they're not part of the field. So that is my thinking about this. And Roger, we had a judgment from the, what is it? The first division of the New York Appeals Court. I can't their nomenclature for the appellate body of the Supreme Court of New York, which has like 30 judges, no two of whom could agree on this. They wrote 323 pages. What do we know about the opinion? And what does it mean for the Trump Organization? Is this a win or loss for the President?
- [42:02]
Roger Parloff
It's a win for the President. It's, it's five judges on the panel of the Appellate Division, First Department, Appellate Division of the Supreme Court. And so we have three rulings. It's, it's 2 and 2 and 1. And so no. 3 command a majority. But as I'll explain, there is a weird footnote there, too. There are five justices. Four of them are Democratic appointees. The first two, Peter Moulton and Presiding Justice Diane Renwick, hold that there is ample evidence, there was ample evidence to find him liable for both fraud, persistent fraud, and what's called illegality under this statute, which actually here means five violations of the penal law. And we can discuss what those are. And as a result, they uphold rather extensive injunctive relief against Trump and the organization and some other defendants, including an independent monitor, a compliance officer to oversee the Trump Organization and banning Trump from being a corporate officer or director for three years. But they would vacate all of the disgorgement, which was what came to initially about $465 million.
- [44:03]
Benjamin Wittes
And why would they do that? You affirm the judgment, but vacate the disgorgement. Why?
- [44:10]
Roger Parloff
They primarily the 8th amendment excessive fines statute. But there were other issues. Excessive fines clause, the. But anyway, that's just two. So that's two out of five, which doesn't get you very far. Then you have two, and we can come back to it. But then you have two more. And those two are Democrats. The next two are also Democrats. John Haggit and Jeanette Rosado and I apologize for the pronunciation. And if they had their druthers, what would happen is this whole thing would be sent back for a new trial, but only on a subset of the charges because they found that some of them were barred by a statute of limitations. Weirdly, there was an earlier opinion in this case by the first Department, but by five different Justices that the people on this panel couldn't agree how to apply. And so two of them think that that statute of limitations intervened. And so incidentally, they don't reach the excessive fines issue because under their view of things, first of all, it should just go back and be retried. And second, if you eliminate the ones barred by the statute of limitations, the fine would have been only $78 million. I mean the disgorgement. And they don't give an opinion about whether that is excessive. That leaves us the fifth, who's David Friedman? He's the Republican on the panel, the only one. And he would dismiss it entirely on every conceivable ground that Trump argued. He would say Attorney General James had no standing to bring this under the relevant statute, which is called the executive law 63 per N12. He says it can't be used that way. But even if it could be used that way, there was no fraud as a matter of law. You have to dismiss it. So that would ordinarily get us nowhere. You would probably have to re argue the case. And so two of the justices, the higot group, do something unusual. They join the first group for the decretal and I apologize for that pronunciation decretal section only, which I guess means they join the Moulton group's judgment essentially. And the reason they do that, they explain in footnote two, notwithstanding our analysis that new trial is the appropriate resolution. Justice Rosado and I, after much consideration, with great reluctance and acknowledgment of the incongruity of the act act join the decretal, modifying the judgment to the extent of vacating the disgorgement and sanctions under truly in extraordinary circumstances here where none of the writings enjoys a sport of the majority, we are moved to take this action to permit the panel to arrive at a decision and to permit the parties in the court to avoid the necessity of re argument and to allow basically to allow this to have a final judgment that can be appealed to the Court of Appeals. It's a remarkable solution. Remarkable situation has necessitated a remarkable solution.
- [48:04]
Benjamin Wittes
So it's basically we're going to sign on to this even though we don't think it's right because we're just a way station anyway. And so this lets the Court of Appeals and the Court of Appeals in New York, for those who don't know the weird nomenclature of New York State courts is the Supreme Court of New York. But we're going to let the court of we're just going to sign on to this because that way the Court of Appeals can hear it and our opinion doesn't matter anyway.
- [48:36]
Darina (OpenPhone Co-founder)
Hi, I'm Darina, co founder of OpenPhone. My dad is a business owner and growing up I'll never forget his old ringtone. He made it as loud as it could go because he could not afford to miss a single single customer call. That stuck with me when we started OpenPhone. Our mission was to help businesses not just stay in touch, but make every customer feel valued, no matter when they might call. OpenPhone gives your team business phone numbers to call and text customers all through an app on your phone or computer. Your calls, messages and contacts live in one workspace so your team can stay fully aligned and reply faster. And with our AI agent answering 24. 7, you'll really never miss a customer. Over 60,000 businesses use OpenPhone. Try it now and get 20% off your first six months@openphone.com tech and we can port your existing numbers over for free. OpenPhone no missed calls, no missed customers.
- [49:35]
Sleep Number Advertiser
Why choose a Sleep Number Smart Bed.
- [49:37]
Anna Bauer
Can I make my site softer?
- [49:39]
James Pierce
Can I make my site firmer?
- [49:40]
Benjamin Wittes
Can we sleep cooler?
- [49:42]
Sleep Number Advertiser
Sleep number does that cools up to eight times faster and lets you choose your ideal comfort on either side. Your Sleep Number setting It's the Sleep Number biggest sale of the year all beds on sale up to 50% off the limited edition smart bed plus free premium delivery with any smart bed and adjustable base ends Labor Day. All Sleep number Smart beds offer temperature solutions for your best sleep. Check it out at a Sleep number store or sleepnumber.com today. Avoiding your unfinished home projects because you're not sure where to start. Thumbtack knows home so you don't have to don't know the difference between matte paint, finish and satin or what that clunking sound from your dryer is. With thumbtack, you don't have to be a home pro, you just have to hire one. You can hire top rated pros, see price estimates and read reviews all on the app download today.
- [50:29]
Roger Parloff
Yes, that is it. I think.
- [50:32]
Benjamin Wittes
By the way, I think a lot of appeals courts should do that a lot of the time because it's so clearly right. You know, like, who cares what the 8th Circuit thinks about this issue? There's already a conflict in the circuits. It's going to the Supreme Court. I don't care what you think about who bakes who a cake. Don't spend six months writing an opinion on it. Just write a, you know, facilitating Supreme Court review here. Affirmed or.
- [51:01]
Roger Parloff
Yeah, and the other thing kicking around that the justices were concerned about is that, you know, sending it back for a new trial when the guy is president of the United States is not really a great idea, not really feasible. Waiting until the end of his term is not really a great idea. Not really feasible. You know, we had an 11 week trial. We had about 50,000 pages of briefings and transcripts and you know, let's get an end to this.
- [51:33]
Benjamin Wittes
All right, so just so that we're all on the same page here, the next stop here is the New York Court of Appeals. I assume Letitia James will appeal the vacation vacating of the disgorgement. And do we have any way to game out how she is likely to do at the misnamed Supreme Court, not Supreme Court of New York?
- [52:02]
Roger Parloff
I'm afraid I don't. I've been slogging through the 323 pages and haven't really done the research on the scoping out the, the Court of Appeals.
- [52:16]
Benjamin Wittes
All right, I will just remind everybody that it was a judge of the court of appeals who famous New York Court of Appeals, who famously said that a grand jury would indict even a ham sandwich if a prosecutor asked. And I just want to point out that Saul Walkler, who said that was wrong as we are learning that, you know, there are cheese sandwiches and vegetable sandwiches and roast beef sandwiches, all kinds of sandwiches that are not getting indicted in D.C. and L. A because in fact, federal prosecutors are not observing their traditional standards. And so, you know, just remember, it was only the ham sandwiches that got indicted. Anna, the floor is yours.
- [53:05]
Anna Bauer
Yeah. Okay, so Ben, let's move to a subject that is a little bit more squarely in our national security issue area. This morning there was breaking news about a search by the FBI at the home of John Bolton. Was there you there, you were the one who broke the news. You were first on the scene, as I understand it, and I, I want to talk a little bit about it. So tell us, you know, before we get to kind of the circumstances surrounding it, the background here and, and trying to figure out what's going on. What did you observe this morning at John Bolton's House.
- [53:45]
Benjamin Wittes
Well, so first of all, I have to be careful about how I talk about it. But I was there at around 7am When a rather large number of first Montgomery county police cars came and then FBI vehicles, which are, you know, black SUVs and other similarly unmarked vehicles. The Montgomery county police officers made clear to me that they were there in a support capacity vis a vis the FBI, that this was in fact an FBI operation and the FBI officials were agents were clearly executing a search warrant and they were executing a search warrant against John Bolton house and presumably against him himself. And they were, they were. You know, it was hard for me to tell how many vehicles there were because I was kind of pushed back, but it was a substantial presence. The, obviously the exact question that was, that arose in the context of what precisely this was about. I, you know, we don't have the text of the search warrant application or the warrant itself, so we don't really know. It does appear to flow from the, from the issue of the bolton's book in 2020, although J.D. vance, who of course is the Vice President, is always supposed to be deeply read in on grand jury investigations. And so he said today that there were broader concerns about Bolton. So it's not entirely clear to me what, that we fully understand what this is about or how concerned we should be.
- [56:01]
Anna Bauer
Yeah, and let me stop you right there, because you mentioned concerns about Bolton's book. I mean, what, what are, what's the backstory there for people who might not remember? Because it seems like we've all lived a million news cycles since then. So what is the backstory? And then, you know, in addition to J.D. vance, there's other Trump close Trump allies, people who, you know, are often aware of kind of what's going on in the inner workings of the administration. Particularly I'm thinking of Mike Davis, who has also mentioned as well, something to the effect of, you know, it goes, it might go beyond just the circumstances of the book. Do we know anything? It sounds like maybe no, but what do we know beyond kind of what it could be about? So fill us in there.
- [56:56]
Benjamin Wittes
Yeah, so. Well, the issue with the book is simple, which is that in 2020, after serving 15 or 17 months as Trump's national security advisor, Bolton resigned, Slash was fired, depending on, you know, how you understand the decline of his relationship with Trump. And he proceeded to write a book that was deeply mocking or critical of Trump and was all the things that you would expect. John Bull, somebody of John Bolton's political persuasion, which is to say hard neocon. Right to think of somebody like Donald Trump, which is to say, you know, populist isolationist with an anti intervention, a strong anti interventionist streak. And of course that resulted in a first, a, a bit of a stalemate between Bolton and the pre pub review people about whether this material could be published. And then there was some indication in an initial review that there was no classified material there. And then a supplemental review was ordered and Bolton's book was held up further, at which point here he jettisoned the pre pub review process and went ahead and published it. And so the question that that raised is, is there classified material in the book? And Trump and his coterie has always claimed that there was. And the Biden administration never proceeded with this case. And so if, if you limit it to the book, it does really seem like they have reopened a existing, you know, a sort of dead matter in the, in the days waning days of, of, of the statute of limitations for purely vindictive reasons. You can hypothesize, and J.D. vance and Mike Davis did today. Interesting question how either of them would know this? J.D. vance? It's a little bit more, you know, it's, it's a little bit clearer. But this is presumably grand jury and national security information. I can't imagine a good reason for Mike Davis to have insight into what's going on in this case. But if you hypothesize that, you know, they are saying that there are some broader concerns about Bolton, I don't know what that would, those would be, you.
- [60:00]
Anna Bauer
Know.
- [60:03]
Benjamin Wittes
But look, I mean, if the Justice Department and the FBI have reason to suspect John Bolton of something more serious than disclosure of classified information in his book, I am unaware of any allegations that would give rise to that. But, but they did suggest that today. And I don't want to, you know, my regard for the truth and veracity and accuracy of JD Vance is, of course extreme. And so I don't, I certainly don't want to suggest that that may be just a defamation.
- [60:41]
Anna Bauer
Yeah. Okay. So one question that I have for you is there's a few things about this that stood out as unusual. One is that while the search was underway, the FBI director tweeted something that seemed to be an acknowledgment of the fact that the search was underway, which is typically, as I understand it, you almost never, while a search is ongoing.
- [61:11]
Benjamin Wittes
So not, as you understand it, that is an unthinkable thing.
- [61:15]
Anna Bauer
Yeah.
- [61:16]
Benjamin Wittes
In any previous FBI director's tenure, you cannot imagine Bob Mueller or Louis Free or Chris Wray you know, tweeting something like that in any search warrant ever. And, you know, I'll make Roger burst out laughing just by saying, you know, you also can't imagine the recently deceased Bill Webster, you know, tweeting at 101 years old, you know, you know, we got the motherfuckers or something like that. Right. Like, it's not, you know, that stuff doesn't happen in a. In a correctly functioning bureau.
- [62:00]
Anna Bauer
Yeah. And it's also that the guy who tweets this, the FBI Director, wrote a book in which the guy who's the target of the investigation or subject of the investigation is a guy who's on the FBI Director's enemies list. Right.
- [62:18]
Benjamin Wittes
So, I mean, it's disgraceful conduct by Cash Patel, and I don't care if it is elliptically worded, you know, and could be, it was clearly a reference to this. And by the way, at the same time as he tweeted that the New York Post published exclusive exclusively, whatever that means, that the FBI was conducting this raid. Now, as somebody who was also, you know, reporting on it, at the same time, I don't want to criticize the New York Post for. For reporting the information that they got. I. I do think that the, you know, the FBI brass and has, you know, they need to be really careful about disclosing operations like that while they're happening. I mean, that's a way to it in. I mean, it's very, very unfair to. To subjects of the investigation. It potentially, you do that in the wrong situation. It puts agents at risk, and, yeah, it makes for good photos. But the FBI, you know, that is not something the FBI should be doing. Criticize the New York Post for, you know, publishing information they get. That's their job. They're reporters. But that had all the hallmarks of, you know, the FBI leadership just decided to thump their chest by. At John Bolton's expense. And I don't. Look, I don't know what John Bolton may or may not have done, and I don't want to get in his corner, you know, necessarily, but I. That is not the way the FBI should be behaving.
- [64:18]
Anna Bauer
Right. And then beyond that, you've got, as you already mentioned, that the Vice President, who typically would not be read in on particular criminal investigative, investigative details, you know, is publicly talking about it in an interview, although maybe being a little bit more cautious than he was last week when he, you know, promised indictments related to the Russiagate investigation, that kind of thing. But is there anything else beyond those types of things that we know about this investigation that is procedurally irregular or norm breaking.
- [65:01]
Benjamin Wittes
Well, so I will say there are circumstances in which it's appropriate for the vice president to be briefed on a national security investigation. And I don't want to say that that's categorically inappropriate. It is very likely inappropriate. The circumstances in which it's not inappropriate are limited, and we can go into them if you want, but I, you know, generally speaking, when a former official like this, and John Bolton has not been an official in the US government since like 2019 or something. Right. So this is a long time ago. There's no particular reason why the vice President should be read in on this unless there's some reason to do it. Some. And for him to be commenting on it. Remember, this is not. There's no indictment. There are no charges against Bolton. There's no, you know, the search warrant isn't even public. So for him to be commenting on it is wildly inappropriate and may very well be prejudicial to any case that the government ends up bringing. And so, you know, are there other things that are procedurally weird about it? Look, I don't know, because we. We know so little about what it is right now. We don't know, you know, other than having a sense that it's related to the book. Although it may be broader, as J.D. vance says, than the book. I'm not sure we know. Like, what is John Bolton suspected of doing? My. I personally bring a presumption of irregularity to these investigations, and it seems to me that if, you know, I don't. I've met John Bolton. I don't know him well by any means. We're not friends. We're not. But, you know, if you ask me, who would you trust, John Bolton or Cash Patel? Neither of them rates especially high in my trust O meter. But John Bolton is higher than Cash Patel and significantly higher, by the way, in the intelligence department than Dan Bongino. So, you know, I don't. I don't know how to answer that question. I will wait and see. But I don't start with the assumption usually, you know, I start with the assumption that when the government finally puts its cards on the table, it's got a hell of a hand. And I don't start with that assumption here. And I would not be surprised at all to see the government have a very weak case.
- [68:00]
Anna Bauer
All right, well, we will leave it there for now. We will keep our eyes open for any more information about the search warrant. And unless you have Anything else to add? Ben, I'm going to hand it back over to you.
- [68:14]
Benjamin Wittes
All right, well, let's. I'm going to turn the tables and ask you, Anna, to talk about NIH v. Afa, which is a Supreme Court ruling related to the Tucker Act. I think of Roger as our Tucker act guy, but tell us what's going on here.
- [68:36]
Anna Bauer
Yeah, and Roger, feel free to chime in. This is a case. This is litigation I have not been following particularly closely, but I did read the Supreme Court's decision yesterday. This is a case over the termination of NIH grants related to a guidance that was issued in which essentially grants that are related to so called DEI or gender identity or COVID 19 were to be terminated. And then, you know, subsequently, these midstream grants were terminated. There was litigation brought over it seeking to have the terminate grant terminations vacated and also to have the guidance vacated as well. The district court subsequently did both vacated the guidance and vacated the grant terminations. The appeals court declined to stay that order. And then the government went to the Supreme Court asking for a stay. And then we got, as a response on the emergency docket, this very fractured decision from the Supreme Court in which they grant a stay as to the terminations of the grants or the vacator of the term grant terminations, and then deny the stay, I believe, as to the guidance. And. And so you have a number of different opinions. You know, it's. For. The justices would have given the government everything that they wanted for, excuse me, five with Amy Coney Barrett, you know, kind of split that were willing to split the baby, although the other four in that group, including John Roberts, would have denied the application for a stay. The end result here is very weird and quite consequential for a lot of this litigation around grant terminations. Effectively, what the court ends up saying is that you can go to the district court and challenge the guidance under the Administrative Procedures act, and that's fine. But if you want to challenge the termination of the grants, you've got to go to the court of Federal claims. So essentially, you have to do this weird kind of sequencing of the litigation where, you know, you challenge the guidance and have it declared unlawful before you can then try to go and get the fix. Your solution or get a remedy in terms of the. The grant termination being terminated as a result of the unlawful guidance. So it's a. It's a very weird and seemingly kind of unworkable situation. And. And there's a lot in here to that we could div. There's at one point, a concurring opinion from Kavanaugh and Gorsuch in which they claim that the district court was defying a previous Supreme Court order that was related to its decision on the emergency docket in the California case related to Department of Education grants. They are incredibly harsh in the language that they're using and talking about the district court. And it's really remarkable considering that we've had examples of the administration seemingly defying court orders. And the Supreme Court has never had as harsh of language as Kavanaugh and Gorsuch do in this concurring opinion in which they're accusing the district court of kind of defying an order of the Supreme Court court. So I, I think that that was really remarkable. And then finally you have a dissent from Justice Jackson in which she just flat out says, you know, the, the majority, what they've, what they're doing here is Calvin Ball and the first rule is that, you know, there are no rules. And then this, the second rule is that the administration gets whatever it wants. So it's a really fractured decision that is remarkable in a lot of ways. But one of the major consequences of it is that for other litigation that is still ongoing related to grant terminations that don't just have to do with the nih. It seems like what the court is saying here is basically you have to kind of do this weird sequential type of litigation where you can bring part of it under the APA and district court, and then you have to do the rest of it in the court of Federal claims. It seems really unworld.
- [74:07]
Benjamin Wittes
Roger has been warning about this since like the first law fair.
- [74:11]
Anna Bauer
Yeah, Roger, what do you make of it?
- [74:17]
Sleep Number Advertiser
Why choose a sleep number Smart bed?
- [74:18]
Podcast Advertiser/Host
Can I make my site softer?
- [74:20]
James Pierce
Can I make my site firmer?
- [74:22]
Benjamin Wittes
Can we sleep cooler?
- [74:23]
Sleep Number Advertiser
Sleep number does that cools up to eight times faster and let you choose your ideal comfort on either side Your sleep number setting it's the sleep number biggest sale of the year. All beds on sale up to 50% off the limited edition smart bed plus free premium delivery with any smart bed and adjustable base ends Labor Day. All sleep number Smart beds offer temperature solutions for your best sleep. Check it out at a sleep number store or sleepnumber.com today.
- [74:47]
Greenlight Advertiser
Did you know adults 60/plus lose more than $60 billion each year to financial exploitation? Greenlight's new family shield plan empowers you to monitor your accounts for suspicious activity. Prot protect yourself with up to $1 million identity theft coverage and reassure loved ones that you're Safe with location sharing and place alerts. Get peace of mind today@greenlight.com protect. That's greenlight.com protect.
- [75:11]
Anna Bauer
My biggest regret is not asking for help sooner because you're not alone.
- [75:16]
Jesu Jo (Mind if We Talk Host)
Being a parent isn't easy. Being a whole person while parenting, that can be even harder. On the latest episode of Mind if We Talk, host and licensed therapist Jesu Jo is joined by moms who get it. Listen. As Dina Margolin and Kristin Gallant, co founders of Big Little Feelings and host of Conversations with Cam Cameron Oakes Rogers, talk about staying connected to yourself, how to genuinely show up for new parents, and why asking for help is a true sign of strength because no one has it all together, and that's okay. Mind if We Talk is available wherever you get your podcasts. Listen and follow today.
- [75:55]
Benjamin Wittes
Wait, you're muted.
- [75:58]
Roger Parloff
Sorry. Yeah, it seems like a catastrophe just to. And, and there are like two dozen cases that are going to be impacted by this, at least. And just to highlight it, you know, the outcome now is one that only Justice Barrett favored, that neither party proposed. That is just, I think the two factions agree that these are inseparable issues. And it's also, as you mentioned, by law, you're not supposed to have jurisdiction in the Court of Federal Appeals if you have a case pending, if the case is already pending elsewhere. So how would this work? And, you know, we've got $800 million in worth of grants. I think about 1800 grants involved. The majority cartoonishly caricatures them have it as, you know, having something to do with DEI or. But they are medical research, some of which involves, you know, yes, a lot of medical research. There are medical problems that are unique to women, that are unique to certain racial groups. And it's just, it's just crazy. And it's. Yeah. And it probably means, it seems to mean that they are effectively overruling Massachusetts vs. Bowen, which is the case goes back to 1988 that allows you to bring an APA case against a decision that happens to cause, you know, a wrongful cutoff of funding. And they won't say that. And, and yes, the, and, and Kavanaugh and Gorsuch, they, they list, they, they really go off on the, you know, you know that you've heard the law professors, the right, the conservative law professors say, oh, it's not a problem where the DOJ is, is disregarding court orders. It's a problem with district judges disregarding the Supreme Court. And they go off on that line of argument. And so they say, see this is the latest example. There was the Boyle case. There was the DVD case. But of course, these interim decisions are pretty confusing. They're a paragraph long. Did you mean. You know, I'm guessing you probably mean this, but I don't know. And you haven't overruled the controlling case. Aren't I bound by the controlling case where you decided this with briefs. Remember briefs? Remember oral argument? I mean, these have briefs. But you had more than nine days of briefs or, you know, you had more than you had an oral argument. So, yeah, it's. It's a catastrophe.
- [79:29]
Benjamin Wittes
All right, so we are going to move to the immigration space, which has some non catastrophes to deliver us this week. And I want to start with that of Kilmar Abrego Garcia, who is today free despite the administration's or at least out on bail despite the administration's promise that he would never be free in the United States again. Stephen Miller, last I checked, was wallowing in grief at the White House. And Anna, get us started on this. How did Kilmar Abrego Garcia go from being, you know, in Sakat to under indictment and accused of murdering people for entry into gangs to walking the streets in Tennessee?
- [80:35]
Anna Bauer
Well, I don't know that he is walking the streets, but he is, according to his counsel, on his way back to Maryland.
- [80:42]
Benjamin Wittes
I thought they let him loose in Tennessee and he was.
- [80:45]
Anna Bauer
No, well, they did.
- [80:46]
Benjamin Wittes
Well, they did let him and, you know, running through the streets and, you know, shouting things.
- [80:53]
Anna Bauer
I just can't speak to whether he is running through any streets. But I A statement released by his counsel says that he is on his way back to Maryland. Much of this, as we've talked before, has to do with a combination of a release order that, you know, he previously had been ordered released that was from criminal detention. That was stayed through a voluntary agreement of the parties for a number of reasons, including that there, you know, was ongoing litigation in Maryland in the civil case that Abrego Garcia initially brought when he was taken to Sakat. And that is the case before Judge Sinis. And in that case, while all of this was ongoing in the criminal case, Judge Sinis also issued an order in which she said effectively that Abrego Garcia needed to be put back to where he was at the beginning of all this, which was on supervised release under immigration supervision as a free, essentially as a free man in Maryland. So that order issued the the judge, the district court judge also found that Abrego should be released from criminal custody. All of this was on pause until this week when Abrego's counsel asked to dissolve the stay on the release order and that the release order be issued by the magistrate judge that was to expire today. Strangely, and interestingly, the government did not actually oppose the issuance of the release order and the dissolution of the, of the stay. They, they, and they wrote this kind of interesting filing in which they, you know, say, even though we don't oppose it, you know, we, we're still going to write separately, kind of maintaining our position that, you know, we don't think that he should be released, that kind of thing. But then also, at the very end, there's, there's something in which they're discussion discussing the conditions of release that he'll be under when he's released. And at the end, they're talking about allowing him the ability to have access to counsel following his release. And they mentioned something at the very last line saying, you know, however, if he is removed to a third country, we can't guarantee that we can facilitate access to counsel.
- [84:02]
Benjamin Wittes
We're not, we're not setting up a, you know, a Scadden Arps or Arnold and Porter Law office in South Sudan.
- [84:11]
Anna Bauer
Yeah. And so that, again, kind of seems to allude to the idea that the government, as they've said before, is still considering removing him to a third country before he is tried on his criminal charges.
- [84:29]
Benjamin Wittes
And what prevents them from picking him up and putting him in immigration detention?
- [84:33]
Anna Bauer
And then that's supporting him now, that's exactly what I was about to get to. And that goes back to the Judge Sini's order, which the government has not yet appealed, by the way. But because of that order, essentially once he's free from criminal detention, he then has to be taken. He. Well, his counsel said that they hired a security firm to transport him back to, to Maryland, and then he has to be, you know, exactly where he was before, which is on, under supervision as someone who's not in immigration custody in Maryland. And they can reinitiate his immigration proceedings, but they still have to go through, you know, all of the kind of normal process things that they would. And Judge Sini's order also means that if he's going to be removed to a third country, then they have to give his Counsel at least 72 hours notice so that he can then bring any kind of, you know, issues to the court as, as they see necessary. So right now, it's kind of like he at least gets to go back to Maryland, but whether or not he stays on release is kind of in Question. Because it has to do with, you know, will they reopen his immigration proceedings and that kind of thing, and what will happen then? Is that right, Roger? I mean, is that how you understand it?
- [86:10]
Roger Parloff
Yeah. Yeah, it is. And I was surprised to see it actually happen. I had assumed all along they would appeal Judge Sini's order, and they haven't yet.
- [86:29]
Benjamin Wittes
And.
- [86:32]
Roger Parloff
Yeah. So I don't know exactly. I thought she said that ICE cannot take him into custody immediately, but I don't get, you know, if they do initiate and give him the 72 hours notice, I don't know how long she can keep him out of custody.
- [86:53]
Benjamin Wittes
Release.
- [86:53]
Anna Bauer
Right, exactly. And I think that's what. I think that's one of the issues. Right. Is that they could. It's. It's a question of he is on release now. How long will he remain free? We. We don't know.
- [87:10]
Benjamin Wittes
You know, you don't want to encourage anyone to jump bail, but, boy, if there were ever an incentive structure that created an incentive to not honor the terms of your pretrial release, this is it, folks.
- [87:29]
Anna Bauer
Yeah. And Ben, before we go to questions, too, I will just add as well, another happening in that case is that we had a selective and vindictive prosecution motion to dismiss from Abrego Garcia's counsel that happened before he was released today. I will note that it. You know, it seems like the one they're leading with the most seems to be the vindictive prosecution claim. The idea on a vindictive prosecution claim, of course, is that you have to essentially show that the prosecutor is acting in order to punish the defendant for exercising a legal right. It's a really difficult motion to dismiss to win. It almost never works. I do think, though, as James said about the McIver motion, I think here, if there is ever a vindictive prosecution claim that might work, it may very well be this one, in that there's so many.
- [88:42]
Benjamin Wittes
This one has some unusual features. And I haven't read the motion, but remember that this is a guy that the government conceded up front until they fired the. The lawyer who made the concession that he was arrested by mistake and deported by mistake. And then they opened an investigation only at the point at which they were had a court order to repatriate him or to endeavor to repatriate him. And so they were looking for a way to repatriate him that was not embarrassing. And I don't know what selective or vindictive prosecution could mean if it doesn't mean, like, we didn't even Open an investigation of you, except that it was you. And we wanted to. We were ordered to bring you back, and we wanted to do it in the least embarrassing fashion. I don't know if that's like, vindictive, but that's sure selective. And so I just think we're going to learn a little bit about whether the cases that, you know, that involve that in which a selective or vindictive prosecution claim can exist. Zit can. Can carry the day, are a null set. Beyond the I'm going to indict you because you're a Jew or because you're black. Right. Like. Like, okay, that's going to succeed. But beyond that, if there's any case that should succeed, it's this one.
- [90:27]
Anna Bauer
Yeah. And at the very least, you. Again, it's also very hard to get decisions discovery on selective or vindictive prosecution claim. But again, like the MacGyver motion we were talking about, they asked at the very least for, you know, some kind of discovery proceedings. And if that happens, I mean, I'm gonna guess. I don't know, but I'm gonna guess that there's probably more to be learned about. About this that may very well shore up even more than just the public statements they already have in the public evidence. That may very well add even more strength to the idea that this is a vindictive prosecution. Quickly, I will say selective prosecution is a little bit different in that it's more about were other people who were similarly. Similarly situated, would they be prosecuted, or can you show that they were prosecuted? I think they have a little bit of more of a challenge there. One of the things they're raising is the question of the delay in the time period. So they analyzed, like, all of the cases under this charge. And the thing they. That they're kind of, you know, arguing is that, well, usually people are charged within like a month. And here it was like, you know, over two years in which there was this delay.
- [92:08]
Benjamin Wittes
I mean, I. I just think there has to be something. Look, it. It would be a very weird thing for a federal court to say, given the fact pattern here. No, there's nothing amiss here. It's. It's perfectly reasonable for the government to arrest you by mistake, deport you to a dungeon by mistake, and then open a criminal investigation of you so that it can repatriate you pursuant to a court order without having to set you free. I mean, I don't know what.
- [92:45]
Anna Bauer
Right. I agree. I'm just clarifying that there's two discrete legal elements understood there's something like maybe.
- [92:54]
Benjamin Wittes
You need a new doctrine that you. We could call the Abrego Garcia doctrine. Sort of like we have Brady and, you know, you know, but there's got to be some rule that says, okay, you can't do that.
- [93:09]
Roger Parloff
I think they're likening it to, like, where you appeal a case and you win and it's sent back down, and then they charge you with a, with a more severe crime. And here you have something where, you know, he was arrested in November. He was stopped for this traffic stop in Tennessee in November 2022. And they didn't give him a ticket. You know, they notified the federal authorities they didn't give him a ticket. And then, you know, three years later, he's embarrassing them. You know, he's. People are pointing out that they sent him mistakenly to a place where he's getting tortured and he's. And he doesn't seem to have any convictions of any crimes. And then.
- [93:59]
Benjamin Wittes
Which is really inconvenient.
- [94:01]
Roger Parloff
Yeah. And then they bring the, they come down with the indictment. So I guess that's the, that's the line of argument. And, and I think the, and, and Anna's right. The, the other one is harder. They selected because there are people that did what he did that are in jail.
- [94:26]
Benjamin Wittes
So. All right, we have two audience questions this week. We're going to do them both. They're both quick questions, actually. Joyce asks, where is the appeals court decision on the tariffs case? How much longer will we have to wait? I think I can answer on behalf of all three of us. We don't know and we don't know. That's the nature of court decisions. You never know when they're coming. Andrew asks, would the Bolton prosecution normally be handled by a special counsel? Answers no, he says, because of the apparent ethical issues, he is a notorious public enemy of the president. Or is that norm totally out the window now? And Pam Bondi will run this. So the answer, Andrew, is that the premise of your question is wrong. Being an enemy of the president is generally not a grounds for, at least under the special counsel rules, for a special counsel being running against the president is a political opponent. But generally speaking, the fact that the president may hate you is an argument for having an attorney General with, you know, sort of dignity and credibility. But you generally, for example, you didn't need a special counsel to prosecute. Oh, say, Steve Bannon, who presumably President Biden loathed, certainly should. Or Peter Navarro. Right. Generally speaking, having. Being a political opponent is not an adequate basis. Usually the the adequate bases are close family members like, you know, Hunter Biden, right. Being the target subject yourself, like the Russia investigation, or being a political opponent, the opposing candidate, Allah Trump himself. In both the Mar? A Lago and January 6 investigations. It was a bit different under the old independence counsel statute, but that has been defunct for more than 20 years now, and that had a different set of rules. But merely being somebody who the president hates is actually not grounds traditionally for the appointment appointment of a special prosecutor, a special counsel. And so I don't have a problem with Pam Bondi handling this herself, except that I have no confidence in her integrity whatsoever. That's a problem with her handling any case, particularly one that involves a presidential interest. But that's a much more pervasive problem than this. Hey folks, we're ending more or less on time today. Thanks to Roger, thanks to Anna, thanks to James Pierce from his car, and thanks to all of you for joining us. Join us next week. We're going to be back folks. Become a material supporter of Lawfare. If you are watching this on YouTube, listening to it on the podcast, you can join the inner circle. Come into the light. Go to lawfaremedia.org support Become a Material supporter and we will answer your questions next week if you put them in the Q and A. If you don't want to do that, you just want to say I support this program. Go to our Give Butter page. Maybe you want to support the Public Service Fellowship, which is how we hired James Pierce. Maybe you want to support the Anna Bauer Roger Parloff Joint Program to support Courtroom journalism. Maybe you just want to throw some cash our way. We put it all to good use. You are all great Americans and we will see you next week.
- [98:57]
Producer/Announcer
The Lawfare podcast is produced and cooperated with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter at our website lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for our other podcasts including Rational Security, Allies, the Aftermath and Escalation. Our latest Lawfare Presents podcast series about the war in Ukraine. Check out our written work@lawfaremedia.org the podcast is edited by Jen Patya and our audio engineer. This episode was Ian Enright of Goat Rodeo. Our theme music is from Alibi Music. As always, thank you for listening.
- [99:51]
Anna Bauer
Foreign.
- [99:55]
Greenlight Advertiser
This Back to School Season One thing is clear. Kids need a way to stay connected between pickups, practices and after school activities. Having a phone is a must, but it shouldn't come at the cost of their mental health. The youth mental health crisis is growing and social media is a major driver. Teens are spending up to nine hours a day on screens and studies show a direct link to anxiety, depression and even suicidal thoughts. That's where Gab comes in. Gab offers kids safe phones and watches with no Internet or social media apps and just the right features for their age. From GPS enabled watches for younger kids to phones with parent approved apps for teens. Gab's tech in steps approach grows with your child. So this school year skip the adult phone. Get them Gab social connection without the risks. Visit gab.com getgab and use the code. Get GetGab for a special back to school offer that's G-A B B.com GetGab Gab Tech in steps Independence for them, peace of mind for parents.