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- [00:01]
Benjamin Wittes
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- [01:36]
Benjamin Wittes
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 Peter Harrell. In the Aug. 8 episode of the trials of the Trump administration, We discussed the D.C. circuit rulings vacating Judge Boasberg's orders in the DSD case where the Trump administration sent a bunch of Venezuelans to El Salvador. We talked about where the legal challenges to President Trump's IA tariffs stand. And we talked about the legal battle unfolding in Texas over the Democratic lawmakers leaving the state to prevent Republicans from redistricting it. Welcome to this week's Lawfare Live, the trials and tribulations of the Trump administration. It is Friday, August 8th. It is 4:00pM in the afternoon in the Washington area, and the D.C. circuit has once again graced Lawfare Live with a major set of opinions. Just as we were getting ready to do today, it was going to be we were going to we invited Peter Harrell to join us to talk about because don't let it ever be said, people, that we are not responsive to audience requests. Last week, the audience wanted a serious briefing on the Federal Circuit's argument in the tariffs, and we were just not in a position to do it because Scott was on vacation and, you know, the rest of us are not terrorists. So we went straight to the source. We got you Peter Harrell, who's going to give us a briefing on this case, and then the D.C. circuit, and of course, Anna Bauer is going to talk about the state of Texas. And then, of course, the D.C. circuit threw us a curveball and issued not one, but two opinions, reversing Judge Boasberg with multiple different reasons from multiple different judges. It's a what our friend in Enright would call a goat rodeo. We're going to get to all of that, but we're going to start with the D.C. circuit. Joining me on today's show, from the blurry room of her palatial mansion, it is Anna Bauer. Hello, Anna.
- [04:25]
Anna Bauer
Hello.
- [04:26]
Benjamin Wittes
And how many of the 110 pages of D.C. circuit's one opinion did you read today?
- [04:32]
Anna Bauer
I'm not exactly sure how many opinions, but I read about two and a. And a bit of the opinions. Still working through it. It's. It's a lot to get.
- [04:45]
Benjamin Wittes
Yeah, it's a lot of text. It's a lot of text. For interim order, Roger Parloff joining us from somewhere in the Jura in eastern France. How are you, Roger? It's, you know, it's already night there. The sun isn't shining anymore, but Roger is sipping untarraft French wine and, you know, living his best life. And Mr. Peter Harrell, sometime lawfare contributor, where are you these days? You're at. You at Carnegie?
- [05:27]
Peter Harrell
Yeah, so I'm, I'm at the Carnegie Endowment, and I also maintain practice, private practice, relevance to this. I've been serving as amicus counsel to a bunch of House and Senate members, uh, who filed, uh, in the, uh, the ongoing tariff litigation.
- [05:40]
Benjamin Wittes
Right. And so we've got a lot to get through, folks. I'm just saying, now we've got a packed agenda. It's possible we're not going to get to audience questions, and we may skip some of our normal roundup stuff, depending on how dense we go on some of this stuff. So, Roger, get us started and give us an overview, not of the opinions, but, like, the history of this case and how multiple components of JGG ended up in front of the DC Circuit and stalled there. Just remind us what we're talking about.
- [06:22]
Roger Parloff
Everything started on March 14th when Trump secretly signed the Alien Enemies act proclamation early the 15th. By the early the 15th, the ACLU got wind of it, and their clients Got wind of it. Anyway, Boasburg entered an order protecting the. Well, I think you all know he entered an order to try to stop airplanes from being full of Venezuelans from being sent to El Salvador. We didn't know exactly then where. Where they were going. He did not get the order signed. He did not get the oral order out until two of the planes had already left and had left US Airspace, if that matters. And he didn't get the. The written order out until a little later still that evening. Anyway, the. He, he. It seemed like he was saying rather unambiguously, don't send them out of the country and don't let them debark in another country. And if you need to turn around the planes. But anyway, the planes went. And so he entered a. So. So the issue was criminal contempt. That was one issue. Meanwhile.
- [08:09]
Benjamin Wittes
While. While we're.
- [08:12]
Roger Parloff
There's an appeal of the TRO and the court gives this, it goes up Supreme Court, and they say you didn't have jurisdiction. Actually, this should have been a habeas corpus. You should. This needed to be. And accordingly, since the defendants were all in the Southern District. I'm sorry, the petitioners were all in the Southern District of Texas. You should have filed there. However, the Supreme Court also said it was also wrong to send these people out of the country with no due process at all. And all nine justices agreed on that. And so the case came back and Judge Boasberg went forward with a contempt, what was styled as a probable cause order that he found criminal contempt. And meanwhile, the question was, what do we do? Is the case over otherwise? And the ACLU said, no, we want to have you certify a class of all the people that are in Sakat now, and we would like you to get them the due process that the Supreme Court said they were entitled to and didn't get about whether, for instance, any of them are Trend members, which was the whole basis for using the Alien Enemies act against them. And so he did issue an order there also on June 4th. I think the contempt order was sometime. Anna may have that in April. This order, the second preliminary injunction order came in June 4, and that was to. That the government should somehow try to facilitate getting these people back from Sakat. And. No, I'm sorry, it wasn't that. It was that they should facilitate getting them habeas proceedings, the ones they didn't get. If they could somehow get them in Sakat, fine. But just to work on that. Both were immediately appealed, even though they.
- [10:47]
Benjamin Wittes
Were.
- [10:49]
Roger Parloff
TROs or less. And that's where we are today. Administrative stays were entered by the D.C. circuit in both cases, one with a dissent. Both went to motions panels that were had that were conservative and, and, and, and so that's where we, that gets us to today. I think you're on mute.
- [11:21]
Benjamin Wittes
Yeah. So let's deal first with, yeah, the case is moved. I'm on mute. So let's, let's deal first with the simpler one, which is the question of whether now that everybody in has been traded away to Venezuela and they are no longer in Salvadoran custody, which was effectively maybe sort of US constructive custody, there really is nothing left to litigate as a matter of habeas, because whatever status they, whatever possibility of habeas they may have had while they were in seekot being free in Venezuela is hard to remedy through the habeas process. So what did the D.C. circuit do with that case, Roger?
- [12:23]
Roger Parloff
They did. They vacated and sent it back for Judge Vosberg to decide. Is it now moot, as the government contends and the plaintiffs, we already know, do not consider it moot. And their position was a lot of these people were Venezuelans who were here fleeing the Maduro regime. They were here. Some of them were applying for asylum. Some of them had TPS temporary protective status. And so the ACLU lawyers have been trying to contact these people, which isn't easy. But actually yesterday they filed a joint, joint status report. And in it they said that they had reached a number of class members who do want to come back, which is sort of incredible because it almost certainly means going back into ICE custody. And who knows, you could end up in South Sudan. But as I mentioned, they were here fleeing the Maduro regime, and apparently it's worth it to a number of them to try to stay. So this will not be so. Judge Boasberg will have some decisions to make. And of course, if they do come back and they're in nice custody, they'll be in other states, almost certainly Texas and Louisiana. And so there will be a big habeas issue about whether Boasburg can hear those cases anyway.
- [14:09]
Benjamin Wittes
And just so that this decision, which actually I have not read, was this unanimous or was there a dissent in this?
- [14:20]
Roger Parloff
This was unanimous. This was Katzis, Rao and Walker. This was all, this was all Trump and all Trump DC Panel, which is unusual and everyone agreed.
- [14:34]
Benjamin Wittes
And, and just to be clear, so the parameters of the debate when it goes back down to Boseberg will be, on the one hand, the government will say you had to go through habeas. There's no habeas question left because you're free. And the other side, the plaintiffs or the petitioners will say, actually there is a question left. We're free in the wrong country. And, and we were illegally deported or removed. And we want the chance to effectively go back into custody and contest the lawfulness of the. That process. Is that a fair summary of where the thing will lie?
- [15:28]
Roger Parloff
Well, they were not. They were trying to get the due process to, To, To. To establish that they were not trend Aragua. And, and then that would allow them to continue on their various paths trying to stay in this country and get asylum. So.
- [16:01]
Benjamin Wittes
Yes, so they will argue, in other words, that we need that through the habeas process, the court still has authority to sort of turn the clock back and force a redo in the fourth form that it should have happened in the first place.
- [16:20]
Roger Parloff
I think that's right, yeah.
- [16:22]
Benjamin Wittes
All right. Well, I will just say, lots of luck getting the court to interpret habeas as persisting after you're free. I don't, I don't think there is.
- [16:37]
Roger Parloff
Well, remember, I'm not saying it.
- [16:39]
Benjamin Wittes
I'm not saying they don't have a righteous claim. They do. I just don't think. Well, I am 100% sure the Supreme Court will not. Will not find that habeas lies in that. And I doubt that Boasberg will either.
- [16:54]
Roger Parloff
Boasberg was acting not under habeas when he issued this order because he acknowledged, you know, remember, he said, I don't think I have constructive. That the US has constructive custody of these people in Sakat. And so he said, but the Supreme Court has said that they all got. Were denied due process. They were all sent to there without a habeas, the opportunity to have a habeas. And so getting them, the habeas is what the case is now about. And so you don't need a habeas to get somebody a habeas. That was his theory. And so now it comes back and I, I guess I, I can't. I gotta let him. Him.
- [17:45]
Benjamin Wittes
You gotta. We gotta see what the aclu.
- [17:48]
Roger Parloff
I can't do that on the fly. Yeah, right.
- [17:50]
Benjamin Wittes
Gotta see what the ACLU argues is the remainder of the case. But boy, does it seem like, you know, before we were arguing, they were arguing, okay, there may not be informal U.S. custody, but they're still in constructive U.S. custody. And so some sliver remains. Now they're not even in the same country and they're not in custody at all. It's really hard to. I Mean, it's as an equitable matter. These, these guys have a, have a really righteous set of claims, but it's just hard to, for me to imagine.
- [18:29]
Roger Parloff
But, and I don't want to take too much more on time because you have so much. But in some ways the case is actually stronger because one of the issues was, well, is Judge Boasberg forcing the government to start diplomatic negotiations with Bukele? And that's an intrusion. And we do know what the government volunteered was that this swamp between Bukele and Venezuela, in the course of it, Venezuela agreed that anyone who wants to go back to the US can. At least that's the way they described it in a different case, the JOP case with the Christian case. And, and, and so it sounds like there's no longer an issue about diplomatic intruding in diplomatic processes because Venezuela has already agreed to do, allowed it.
- [19:36]
Benjamin Wittes
Right. So we will watch the, the new briefing that will come before Judge Boasberg as it develops. I expect he will be glad to have the matter back and actually have something to do again with this case. All right, Anna, let's talk about the other one, which is the one that's getting all the attention. Judge Boasberg held as a, as a preliminary matter that there was probable cause that the government had contemptuously or contumaciously defied his order. He had found probable cause to hold the government in criminal contempt. And the D.C. circuit has written 110 pages in which all three judges, and this time it's the same motions panel, except instead of Judge Walker, we have Judge Pillard and in, and we have 110 pages in which three of them or four of them, all the judges agree, which is this. And then each writes a lengthy opinion on their own. No two judges agree on the rationale for describing this for resolving this case. But two of them, Judges Rao and Katz, do agree that Judge Boasberg screwed up so outrageously that he should be reversed on mandamus, which is an extremely high standard. So let's start with Judge Katzis. Anna, what. Why does Judge Katz want to reverse Judge Boasberg?
- [21:32]
Anna Bauer
Yeah, so Judge Katz has this argument that is basically about whether or not Judge Boasberg's order was ambiguous. The order, the minute order that was issued when, when the hearing was, or when the planes were still about it, when, when the relevant plane was about to take off, said, I'm looking for the text of it that I had here, which I cannot find, so I will just describe it. It basically said, you know, that the class members should not be removed. And for Katzis, about whether or not this contempt proceeding could move forward. Is. Is removed ambiguous? Does it mean removed from the territory of the United States, or does it mean removed from the custody of the United States? And that matters because at the time that the order was issued, the planes were already outside of U.S. territory. And so if it has there, if that ambiguity is there, then it means that there maybe wasn't a violation. If it's a territorial.
- [22:50]
Benjamin Wittes
Can't defy an order to not remove somebody if you've already removed them.
- [22:55]
Anna Bauer
Right, exactly. So he goes through this whole analysis in which he basically says, you know, I think that the meaning of. Of this was at least ambiguous. And he looks at, you know, a previous order that Judge Boasberg had issued in which he says that the plaintiffs aren't to be removed from the United States. That's part of the reason why he thinks, oh, yeah, it's a territorial kind of thing as opposed to a custody issue. And then, you know, he addresses.
- [23:30]
Benjamin Wittes
Let me pause over the custody thing, because the other way to read the order is they're in U.S. custody, they're on a U.S. plane, and you're proposing to turn them over to the Salvadorans. So in that sense, removed means not removed from U.S. territory, but removed from U.S. custody.
- [23:51]
Anna Bauer
Yeah, transferred to the custody of a foreign sovereign. Right. Or, you know, so that's the second interpretation that Katzas isn't buying. He thinks that it's more like the territorial interpretation, or at least ambiguous. And, and, and one of the issues, though, is that Judge Boasberg, during this hearing, if people remember, was very clear before his minute order issued in. In telling the government, you know, I want those planes turned around. If there are planes that are already in the air. And you would think that that kind of instruction would. In looking at what the injunction meant or what the TRO meant, what removal means, you would think that would have a lot of weight. But Katz basically says you can look at the context, but he essentially is kind of like. But, you know, at the time, like, there wasn't even a transcript yet of the hearing. He kind of goes through these, like, very, to me, kind of wishy washy reasons why you shouldn't give a lot of weight to the idea that the judge was very specific about what this means. He just wants to look at the text. And then the other big issue as well here, Ben, is this question about, you know, whether or not. Even if that's like, even if Katz thinks this, why does this justify a writ of mandamus, which is this really extraordinary relief, typically a contempt order. You know, the court, everyone agrees, like, there's no regular interlocutory appellate jurisdiction for us here. We. We agree on that. But the government brings a writ amandamus, which is basically something that you ask for when there's something that legally a judge was required to do that they didn't do. And so you go to an appellate court to try to get them to issue a writ of mandamus.
- [26:14]
Benjamin Wittes
You issue a writ of mandamus when somebody is obviously and flamboyantly wrong.
- [26:20]
Anna Bauer
Yeah, yeah, obviously wrong. And it's a really extraordinary type of remedy. Right.
- [26:26]
Benjamin Wittes
Particularly in the D.C. circuit. Most D.C. circuit mandamus opinions start with the phrase, or at least they used to until a few weeks ago. They would always start with mandamus is a disfavored remedy in the dist. In the D.C. circuit.
- [26:44]
Peter Harrell
Right.
- [26:44]
Benjamin Wittes
It was like this kind of rote thing. And you know, by the way, the greatest moment I've ever seen in the D.C. circuit Oral argument involved this exact point. But. All right, so, yeah, so how do you take ambiguity of an order and turn it into. It's so obvious that Judge Boasberg is wrong that. That I'm going to issue a writ of mandamus.
- [27:17]
Anna Bauer
Right. So the idea is basically that because the order is at a minimum, ambiguous, you know, it can never support a prosecution for criminal contempt here. And. And because there would have been no violation of the order if you agree with Judge Katziss's territorial interpretation.
- [27:40]
Benjamin Wittes
In other words, this is. It's criminal. If there's doubt as to the meaning of this, the. The order, you have to construe it as precluding. Precluding contempt. Therefore, there's. There's doubt here. So there's no way you can.
- [28:00]
Anna Bauer
Yeah. He. And he cites the rule of lenity. He cites this idea that you, you know, if there's. You should resolve things in favor of the alleged contemnor. He cites these various principles that kind of point him towards saying, okay, I gotta resolve this in the favor of the government. And then he discusses the various writ of mandamus factors in which he's. Things like, is there another adequate remedy? Is there a clear and indisputable right to relief? Again, at least to me, a lot of this from both Katsas and Rao, which we'll get to in a minute, is basically just, we think that this is so extraordinary holding, trying to hold the government or the executive branch officials in contempt. And, you know, There would be this horrible consequence that could happen even if they could later raise during a prosecution various different claims. This is just too much for us. And so we think that the extraordinary circumstances require us to issue the writ. Is that kind of what you think, Ben?
- [29:24]
Benjamin Wittes
No, that's exactly what I think. Judge Katzis said it is not my understanding of how mandamus has historically worked no circuit. But I will say this. First of all, I have a lot of regard for Judge Katz. Who is he? He is, does not occupy the same ideological universe that I do, but he is an extraordinarily smart man and he is very worth watching because I think he represents the closest thing that exists in the D.C. circuit to the ideological center of gravity of the U.S. supreme Court, which is to say, if you want to know where Judge Justice Kavanaugh and Roberts, Chief Justice Roberts are going to be tomorrow, looking at where Greg Katsas is today is, it's not going to be perfect, but it's, it's, it's not a bad way to do it. And he has a similar, similar highly able lawyer's mind to the two of them. And so I do think, you know, a Katz's opinion on this is not, you know, that's not worth no votes at the Supreme Court. Right. And so I, I, I, like, I was a little taken aback by this argument, but I do think I, I take it very seriously, not because I necessarily think it's persuasive, but because I think it's, it's, it's kind of, you know, it's a very good brief to Judge Chief Justice Roberts and Justice Kavanaugh. So I take it pretty seriously at that level.
- [31:17]
Anna Bauer
Well, and one other thing I'll mention about that's important about Judge Katzis's order or opinion is that he, so he comes out at the end by saying, I would not only vacate the specific order, which is the one where Judge Boasberg says, you know, I find probable cause that someone the government should be held in contempt or the contempt proceedings basically should be initiated. It was kind of the beginning of the process. Right.
- [31:50]
Benjamin Wittes
He says no, shut them down entirely.
- [31:53]
Anna Bauer
Right. What Katz wants to do is say, I want to terminate these criminal contempt proceedings altogether. And that is, is different from the outcome in the RAO opinion and then of course, the pillard dissent.
- [32:08]
Benjamin Wittes
Right. So let's talk about rao, who is normally. Roger, sorry, go ahead. Yeah.
- [32:16]
Roger Parloff
Just before we leave, Kat says just, just there's one additional level and that, and I'm not sure what adjective to use a Very slop. I don't want to say surreal, but it's a very sloppy use of. But even Katzis, at some point, I think, in a. In a footnote, sort of references the Rouvainy whistleblower materials. And he. He sort of acknowledges. And he doesn't say those are inadmissible or anything like that. He says, you know, and. And those materials show that the people, you know, the government attorneys, the DOJ attorneys, Ruvaney, knew what Boasberg meant, and they understood him to mean what Boasberg says he meant, and they wrote it. You know, Rouvainy wrote it to, I think, 24 people in government, and none of them disputes what he's saying. And he says, here's what you need to do. And what Judge Katz says is, yeah, but it's an objective standard, not a subjective standard.
- [33:29]
Benjamin Wittes
It.
- [33:30]
Roger Parloff
So the fact that everyone.
- [33:31]
Benjamin Wittes
Here's what it says on paper. Here's what he said. It doesn't matter how Aris Rouviny might have understood it or how the government.
- [33:39]
Roger Parloff
How everyone understood it.
- [33:41]
Benjamin Wittes
Yeah, so that's a. It's a very important point. All right, so before. Roger, we go on, I have one. Yes, one. You can answer it with one word. How many judges on the panel agreed with Judge Katz's.
- [34:03]
Anna Bauer
No. No, no, one.
- [34:05]
Benjamin Wittes
Right. Okay. Not a trick question. This is an opinion that represents one of them.
- [34:11]
Anna Bauer
Although I think that Judge Rao does say something like, because of the concerns raised by Judge Katz. And so it's, you know.
- [34:19]
Benjamin Wittes
Right. But it's not her argument, which, by the way, I think is much better than his. Judge Rao's position. First of all, Judge Rao is normally the right outlier on the court. The. She's the Clarence Thomas of the court, but in this case, she's taking a much more moderate position than Judge Katzis. So, Anna, walk us through what. What Naomi Rao would do here.
- [34:48]
Anna Bauer
Yeah, so Judge Rao takes a different approach. She basically said, because keep in mind, the background to this is that that. That order that Judge Boasberg issued that is at issue here said that, you know, I think that someone did some contempt. But I'm going to give you an option, and the option is either you can purge that contempt by asserting, you know, custody over the class members or the people, you know, who had been removed and all that, or, you know, I'm going to keep going with these contempt proceedings. And so Judge Rao's idea, in her opinion, is that this was improper for Judge Boasberg to do that because it basically was him trying to coerce compliance by the government to comply with his injunction. And keep in mind, that injunction was vacated by the Supreme Court. And so she thinks that this was entirely inappropriate. She doesn't like it. And so therefore, what she wants to do is to vacate the order. And then she kind of says, but I'm not going to fully terminate the criminal contempt proceedings. However, she goes on to then make a number of statements that are kind of like, I'm not terminating the criminal contempt proceedings, but you better not continue with these criminal contempt proceedings, because she. She basically thinks, you know, she says something to the effect of like, I, you know, the gut. The district court will have a difficult decision, but I would expect that it won't continue with these contempt proceedings. So, yeah, that's. That's Judge Rao's opinion.
- [36:52]
Benjamin Wittes
Yeah. So I am much more sympathetic to Judge Rao's opinion than I am to Judge Katz's. And I actually think she makes a key point that I think actually has some merit, which is that it is not okay once the Supreme Court has said he has no jurisdiction for him to issue a civil contempt finding, that is something. A coercive finding, to push the government to comply because he has no authority to issue the order anymore. And so what he did here was he crafted it as criminal contempt, but he did it in a fashion that is not really punitive. It's actually designed to force the government to comply, or as he put it, to purge the contempt. And I do think she has a. A non trivial point here that he. That what Judge Boseberg did was effectively Jerry rigged a civil contempt finding out of a criminal contempt finding. I don't usually find myself nodding my head in agreement with Naomi Ra, But I. I gotta say, she caught me a little bit flat footed in that one. And I'm curious whether either of you share my sense that there's some merit to her argument here.
- [38:16]
Roger Parloff
I also. I'm sorry if I. Anna, do you want to go first?
- [38:21]
Benjamin Wittes
Go ahead.
- [38:23]
Roger Parloff
I also, when she was writing that, I thought to myself, you know what? You know, I hadn't thought of that. And. But I. I also thought. And then Judge Pillard said that being the case, why don't you just put a line through that half of the option? You know, you don't get.
- [38:50]
Benjamin Wittes
You don't get the takeaway option too. Right?
- [38:52]
Roger Parloff
I mean, you violated the order. Okay, let's march you straight to punishment.
- [38:59]
Benjamin Wittes
All right. So. So, Anna, do you have thoughts on that component?
- [39:05]
Anna Bauer
Not really. I will say that one thing that I'll Note to Roger's point is that she has a footnote about, you know, this argument, that it wasn't raised in the briefing because this was an issue that was not briefed that or that wasn't, you know, a part of the government's arguments. And so I would be interested to see what the other kind, the other side of the argument would be had it been briefed.
- [39:34]
Benjamin Wittes
All right. So I want to touch briefly on Judge Pillard's dissent. Not because it is not worth a full treatment. It's, it's 45 pages or whatever, but it is largely a defense of Judge Boasberg's underlying work. And we've talked at great length about Judge Boasberg's underlying work. And so I think it requires less analysis from us. She starts with a, what I think is a very arresting and important point that will weigh heavily on the en banc court to which this is certainly going to go. And that is that, hey, you know, this is a disfavored remedy in this court mandamus. And if the two members of the majority can't even agree on the reason why, it is obvious that the lower court needs to be reversed, maybe that means you haven't reached the threshold that it in fact is obvious. And so I'm going to throw it open beyond saying that, by the way, I think that is a completely compelling and correct point as to the en banc court, like for the D.C. circuit to say, and I'll come back to this in a minute, I think that's like, you don't need the rest of the opinion. If the two of you can't agree on why it is obvious, then it is not obvious. I'm curious whether either of you have other thoughts on Judge Pollard's dissent.
- [41:17]
Roger Parloff
I think I speak for both of us when I say we didn't finish it. So, so I mean something I will.
- [41:24]
Anna Bauer
Just not, not to Judge Pillard's dissent, but just more, more broadly. I, something I will say is just how extraordinary this is in the context of a criminal like when I was reading Judge Katz basically writing what would be, you would think, like later on down the road, the subject of a motion to dismiss or some other type of pretrial merits issue. I was, it's just stunning to see on a mandamus that is about the beginning of a criminal contempt proceeding, a judge making those types of findings to basically put an end to everything. So I, I just, I mean, I found it really, really extraordinary in that regard.
- [42:19]
Benjamin Wittes
I will say that no judge on that Court, in my estimation, has come into her own in the last year as much as Nina Pollard. And I, I think, you know, she has gone from being a judge who was kind of part of the background of that court, you know, over the last several years, you know, not, not in any sense a weak judge, but, but, but one that didn't write opinions. Who really stood out to you? I would have, you know, among the Obama appointees, I would have pointed to, you know, Patti Milad as a sort of like, much more compelling figure. Over the last six months, eight months, 10 months, year, Nina Pollard has written a bunch of really compelling opinions. And I think this is one of them. Like the others, I have really more scanned it than read it at this point, but the woman can write. Wow.
- [43:19]
Roger Parloff
And, yeah, I totally agree with that. I've been blown away. And I wondered, is it incredible clerks or something? I mean, just the volume, too.
- [43:31]
Benjamin Wittes
No, she's, she's just been, she's worked. It's really impressive.
- [43:35]
Roger Parloff
Yeah.
- [43:37]
Benjamin Wittes
So, okay, this now does not go back to Judge Boasberg. Unlike the other one, it goes to the en banc court. There's no way a court this, a panel this splintered that can't agree on a reason for issuing a mandamus. The full court is going to issue, going to hear this. And I don't believe, I'm curious if either of you disagrees with me about this. I don't believe there is a majority on the Amban court either for Naomi Rao's opinion or for Judge Katz. There is a majority for the dissent. And that means that the real question here is how is the Supreme Court going to look at this? Discuss.
- [44:25]
Anna Bauer
Well, Ben, why don't you start? Discuss, please.
- [44:28]
Benjamin Wittes
No, no, no. I just discussed. I said I'm ready to move on that, the tariffs case, but I'm throwing that out as a provocation.
- [44:36]
Anna Bauer
Look, I, Look, I mean, you're right that Judge Katz is a good measure. I honestly, I do not. I could, I, I could see the Supreme Court doing something to the effect of what Judge Katz did. I don't know about Judge Rao, but.
- [44:58]
Benjamin Wittes
You agree with me, the Amban court is going to be where Judge Pillard is.
- [45:03]
Anna Bauer
Yeah, no, yeah, yeah, I agree with you that the en banc, the, about the en banc court thing, Supreme Court, I mean, look, anybody's guess.
- [45:11]
Benjamin Wittes
What do you think, Roger?
- [45:14]
Roger Parloff
I agree about it. En banc. I, you know, Katz was throwing out. You know, he relies on ambiguity, but then he says, and there's all these other issues, like can you do criminal contempt when the underlying order has been was issued without jurisdiction and then a slew of other sort of foreign affairs issues can a judge interfere with. And so I think you could certainly get a lot of the Supreme Court justices that would want to strike it down on different grounds. But would they agree on a common ground? You could certainly easily stay it with no reasoning whatsoever, which they're very good at because they all agree something's wrong with it. But coming together on an opinion, I don't know. And it might be a good. Normally it would be a cert denial, you know, is, it's too peculiar.
- [46:31]
Benjamin Wittes
Right. Although a certain assert denial here leaves in the hands of the en banc DC Circuit the question of whether the Trump administration is going to be held in contempt. And we do have not seen any evidence so far that the Supreme Court is willing to leave that question in the hands of any lower court. Unlike the panel at the D.C. circuit, the panel of just presiding Judge Parloff and Judges Bauer and Whittis are able to come to an agreement, which is to say the en banc court is not going to sit still for this. Which brings us to the overwhelming audience question last week that I was embarrassed that we were not able to address, which was talk to us about the other federal appeals court in Washington, the one that nobody ever talks about, the Federal Circuit, which is not the same as the D.C. circuit has its own little courthouse that and it hears appeals from these courts that nobody, no really understands what they do. You know, things like the court of Claims. And so I want to start Peter Harrell with the question of why is the challenge to the tariffs in the Federal Circuit at all? You know, like.
- [48:08]
Peter Harrell
Well, well, yeah, let me first say, because I went to the hearing in person, which I gather was good because I hear the audio feed was terrible. It was hard enough to hear in the room. For those of you who haven't been, it's a beautiful little courthouse right by the White House. You know, it's gorgeous and central. But you're right, no one ever thinks of the the Federal Circuit. So if you think about the tariff litigation, there are seven or eight active lawsuits challenging the tariffs that Trump has imposed under the 1977 International Emergency Economic Powers act, or IPA. There aren't really that many lawsuits currently challenging his other tariffs, his sectoral tariffs on steel and aluminum. There are a couple, but the ones we're really talking about here are the challenges on the IIPA tariffs, the universal and reciprocal tariffs. He's also done the Brazil Tariffs under IPA and the new India oil tariffs under ipa. And so what happened here is if seven or eight total cases, some of which were brought initially in the Court of International Trade in New York, which is a specialty court focused on customs law, given jurisdiction, most recently 1980s on customs matters. So you had a couple of cases brought at the cit, which, in two of those cases, one brought by a wine importer and some other plaintiffs, and one brought by the state of Oregon and 11 other cases, 11 other state governments. Back in May, a unanimous three judge panel of the Court of International Trade ruled that Trump's IPA tariffs were unlawful. And the Court of International Trade along, as you say, Ben, with the court, the patent issues appeal up to the Federal Circuit. There are a few specialty issues that basically. But the CIT goes up to the Federal Circuit.
- [50:04]
Benjamin Wittes
Yeah. Every now and then. This is how this works. Every now and then Congress decides that a certain set of issues is too boring for regular federal judges to have to deal with, like patents and trade issues. And, and so what they do is they set up a new court to deal with it, Court of Claims or the, you know, the, there's, there's a tax court and there's a, and there's a, you know, the Court of Trade and they set up a federal appeals court to hear these things. And when I say boring, I'm joking. What it really is, is too technical. And these are, you know, like, it's just not fair to expect federal district judges to understand trade or patent law or whatever. So we're going to create special courts for this and we're going to have a special court of appeals to handle them. And then every now and then like a Trump administration happens and the most important political issues of the day end up in front of these special courts. Yeah.
- [51:07]
Peter Harrell
And what's been interesting on this, on the posture, because some, not all the cases challenging the tariffs have been brought in front of the Court of International Trade. The Trump administration has tried to get them removed to the Court of International Trade, but, but has not succeeded on all of them so far. Uh, but because the plaintiffs who brought the case in the Court of International Trade didn't have to fight over the jurisdictional question. They're kind of the train that's moving fastest right now. And so I do think at the appellate level, although, that there are also trade cases right now in front of the D.C. circuit and in front of the Ninth Circuit, I think we're going to see the first appellate level opinion coming out of the Federal Circuit and.
- [51:55]
Benjamin Wittes
If Federal Circuit judge, you're going to make sure it does because how often do you get to get out in front of the D.C. circuit? Right? No, I mean, if I were one.
- [52:05]
Peter Harrell
Of the unbanked judges, I'd want to make sure that I get the opinion out, you know, for example, before the Ninth Circuit has a hearing on September 17th. Just.
- [52:16]
Benjamin Wittes
You want cert to the Federal Circuit. Damn it.
- [52:20]
Peter Harrell
So sorry. That's, that is why this is because of. These cases are being appealed up from the Court of International Trade and the Federal Circuit has statutory appellate jurisdiction over the cit. That's why the Federal Circuit is hearing this case on an expedited basis. So, you know, CIT gave its opinion in late May. The court, the, the, the Federal Circuit agreed to hear it on an expedited basis, went straight to on bank. So the Federal Circuit decided to hear it straight to an on bank panel. And that was the, the, the hearing on the 31st. And you know, I, I mean, these guys, it's August, but I do think we'll get an opinion, you know, if not by Labor Day, certainly before that Ninth Circuit hearing on the 17th.
- [53:10]
Benjamin Wittes
Wait, what? All right, so let's talk about. All right, I'm going to now recite the media news story that happened after that hearing. A federal appeals court seemed skeptical of the legality of the Trump administration's tariffs. Yesterday or today. Judges aggressively question the government about whether I, whether national security authorities could be leveraged as dramatically for purely economic reason. Blah, blah, blah, blah, blah. That's the media news story. So my question is, is it right? Is that, was that the, was that, did you walk away from that argument thinking, all right, I don't know about the Supreme Court, but at the Federal Circuit level, this, this IEPA and the other relevant statutes are simply not going to be interpreted to support the breadth of the tariff policy. Yeah.
- [54:22]
Peter Harrell
So I think that, actually, I think the way you phrased it is right. I, it was a very hot bench. I mean, both sides got lots of questions from, from the bench. And I actually think that both sides did quite well. I think the legal arguments are hard for the government and we can unpack why. I do think actually Assistant Attorney General Shumate did a pretty good job playing a bad legal hand on the, the, you know, from the, well of the, the courtroom, but very hot bench. And I think a clear large majority of the on bank panel, maybe not unanimous, hard to know, but least a very large majority is deeply skeptical that IIPA authorizes these tariffs. I think one thing you did hear from the bench was potentially some differences of view among the judges, at least in their initial thinking, on whether IEEPA simply never authorizes any tariffs of any kind. Full stop statute should not be read to include a power to tariff or whether IPA might authorize, you know, some tariffs in some circumstances, but not the actual tariffs that we've seen President Trump impose. So I, I think we definitely saw skepticism of these tariffs. We might get a ruling. You know, if I had to bet, I would bet we'd get a ruling. It doesn't authorize any tariffs, but it might. They might. Much as the CIT opinion held open the possibility that IPA could authorize some tariffs, I think that you might find that opinion out of the Federal Circuit.
- [56:07]
Benjamin Wittes
All right, so I have about a million questions, and Anna and Roger, if you guys have questions, you should jump in and ask them too. But I want to start with the question like I always think of IPA as a sanction. It's a national security sanction statute. That is, if Roger Parloff is a dangerous threat to US national security, and if he's not American, but actually a citizen of the Jura, you can impose sanctions on him. Right. And you can impose sanctions on countries and you can impose. The President can impose sanctions on people, on groups, on entities, on businesses and embargoes. Right. But tariffs are traditionally thought of as, first of all, as a congressional authority that is delegated to the President by a group, a different group of statutes. And secondly, that it's primarily not a national security policy. It's a, it's an economic policy. And so I guess the question is, what is the, what seemed, what is the parameters of the argument between Shumite and, and the plaintiffs here? What, what, what, what are the two different views of IIPA that, that the court is mediating between?
- [57:42]
Peter Harrell
Yeah, so, so the government does not contest that the Constitution charges Congress with authority over tariffs. So the government is not trying to, has not chosen to argue that the executive branch President has some inherent ability to impose tariffs. So the question for the courts to grapple with in, in, in this litigation is when Congress enacted IPA in 1977, did it delegate to the President the authority to impose tariffs, you know, again, as part of the statute? And then we can debate a little bit. There's a second question which didn't come up that much at the Federal Circuit, but as this goes forward, in particular, the Supreme Court, I think, will pay, may play a larger role, which is if Congress delegated authority to impose tariffs under ipa, is there a sufficient intelligible principle that that IPA survives a non delegation challenge argument against it. Just as a matter of the statutory text, IPA does not include any reference to the word tariff or duty or customs or excise or anything of that nature. The government's argument is that the IPA's power to quote unquote regulate the importation or exportation dot dot dot of any property in which a foreign country or national thereof has an interest includes the power to tariff. So they view it as derivative of this power to regulate. And so what you saw at the court was some argumentation around, you know, what does regulate mean in other contexts?
- [59:28]
Benjamin Wittes
Do we think that's your question? You know, and then, and then, and then.
- [59:32]
Peter Harrell
Well so first we had a textual set of arguments around it. Then there's this 1975 case called Yoshida International which in which the Federal Circuit's Predecessor Court upheld IIPA's predecessor statute using the same language as allowing Nixon to impose some much smaller tariffs in 1971. Yoshida's 1975 opinion, 1971 is when the tariffs were there's some argument about that and sort of Yoshida back and forth. And then there was this argument in light of the major questions doctrine of well, even if AIPA's predecessor had been upheld for limited tariffs, should this major questions doctrine apply? So that Congress should have spoken clearly in its in passing IPA to enact to have a tariff authority.
- [60:26]
Benjamin Wittes
All right, so I want to talk about somebody who wasn't in the room, which is Justice Brett Kavanaugh, who in an unrelated case the other day that was little noticed, but it's an FCC case that raised a non delegation question actually specifically said hey I'm agreeing that this kind of delegation that was raised in that is fine, but I'm not sure that that would apply in a non in a national security context and kind of brackets the national security context. And I don't know, it seemed to me that he had his eye on exactly this case that you know, he's going to give the government a lot more leeway when it comes to, you know, I want to have a 50% duty on Indian goods because national security than he would in the much narrower FCC context that was before the court. So first of all, I'm wondering what you made of the Kavanaugh concurrence in FCC versus I forget what organization. And, and secondly, do you think that will be received by the otherwise very enthusiastic Federal Circuit judges as kind of shot across their bow, hey, don't go overboard in the national security Context and if national security, if the President says it is, we're going to be very deferential.
- [62:11]
Peter Harrell
So my guess is the Federal Circuit does not base its ruling on a non delegation doctrine issue. I'll come back to that in just a second, Ben, before we even get to the non delegation doctrine issue. And where there was more argumentation at the Federal Circuit was about the major questions doctrine, obviously related to the non delegation doctrine. The government's argument as to why major questions doctrine doesn't apply to these tariffs is the government is arguing the major questions doctrine only applies to agency action and these tariffs are a presidential action. And there was actually a certain amount of argumentation at the Federal Circuit on this matter, both in the briefings and in oral argument. And I do think once this gets up to the Supreme Court, if the Supreme Court wants to use this case to build out its thinking on major questions doctrine, that's going to be one of the things the Supreme Court will be grappling with. And you can see the Federal Circuit grappling with that more than non delegation. The, the other thing that came up that's related to non delegation, the Federal Circuit, but not directly is, so I, I mentioned this 1975 Yoshida case, what Yoshida held, and this is, you know, what a 50 year old case at this point was that AIPA's predecessor did authorize some tariffs. But there was also a lot of language in Yoshida saying that, that the Yoshida court didn't have to think deal that much with non delegation because the tariffs were back then capped at 10%. They were only in place for a couple of months or kind of complex ways in which they were not unlimited. And so Yoshida said, and so we, we as the Yoshida court 50 years ago don't have to deal with non delegation is, you know, this is actually in fact pretty limited. And so the Federal Circuit was arguing with the government a lot. A couple of the judges quite directly were asking the Department of Justice, like if you're arguing Yoshida supports these tariffs, shouldn't you have to quote, unquote, buy all of Yoshida, you know, not just that Yoshida stands for tariffs, you gotta buy the rest of Yoshida here for these, these limits on the tariffs. And the government kind of frankly dodged and weaved I think would be the technical term for what it did in answering those questions. I think that may come up as well. Now, if we're thinking about the non delegation doctrine itself, as you, as you allude to last year, there was an opinion that ultimately upheld FCC verse. I think it was Consumers Research or something, you know, one of these astroturf groups that doesn't like paying taxes. The, the, the, this opinion involved a challenge to the way the FCC charges funds to provide subsidized telecom service in rural areas. And there's a question about whether the way the FCC was doing this violated the non delegation doctrine. And there was a, an opinion, majority of the court found it did not violate the non delegation doctrine. But there was a quite interesting, as you say, Ben Gorsuch concurrence in this, that that went through the history of non delegation and among other things, as you say, argued that it might not apply in issues of foreign affairs. Uh, and so I do think that if as this goes forward, you know, it'll be interesting to see when it gets up to the court how it deals with it. I didn't feel from the Federal Circuit we're going to get a lot on non delegation here. I think they'll decide it under major questions or simply, you know, matter of statutory interpretation or they'll apply, they'll apply Yoshida or something of that nature.
- [66:12]
Benjamin Wittes
And how do you game this out at the Supreme Court? So you know, we were talking earlier about the, about the, you know, sort of gaming out the Boasberg contempt matter at the Supreme Court and at the en banc court here we have a pretty strong sense, it sounds like from your account of where ish and when ish the Fed Circuit is going to rule, then it goes up to. But the Federal Circuit is a way station on the way to the Supreme Court here. How do you count votes at the Supreme Court for the idea that IPA means I can slap tariffs randomly at will on different countries at any time and for whatever unconsidered reason I want and change my mind the next day and just say the words national security and everybody defers to me. What's the vote? I mean that's a, that's an extraordinary proposition for which there is a fair bit of support in Supreme Court deference doctrine. Actually. How do you like, quite apart from what the, what the Federal Circuit has to say about it, how do you count Supreme Court votes for that idea?
- [67:41]
Peter Harrell
Yeah, well, first, Ben, as you say, you very clearly, I think all sides here and all the amicus filers, everyone sort of sees the Federal Circuit, as you say, as the way station. You know, get an opinion in the next month or two. It will then be appealed up for the October term this year and you know, we'll get an opinion out of The Supreme Court in the, the, the next term. And I'm, I'm, you know, it's going to be one of those landmark opinions given how extensively Trump has used IPA to impose, impose tariffs. You know, I, I think it's gonna be quite complicated for the Supreme Court as it is sort of buffeted between national security deference, but also having laid out a major questions doctrine over the last five years that just on any sort of plausible reading of what a major question is, clearly what Trump has done with IIPA's tariffs should be a, a major question. So you're going to see this, you know, a couple of the justices, I think, particularly the Chief justice, particularly Kavanaugh and Comey Barrett, you know, to kind of just after wrestle with their, their sort of, on the one hand, wanting to give deference to the executive branch here, and on the other hand, it's very hard to square, you know, things like the major questions doctrine meaning something and giving an unbounded authority here. I'd also note there's an interesting way in which I think Trump's more recent actions, and in particular his tariffs, his IPA tariffs on Brazil and on India actually are going to make it harder for the Court to come up with a split the baby kind of approach. Because if you look back at the CIT opinion, it's kind of an interesting CIT opinion. We'll see what the Federal Circuit, the Supreme Court does. But the CIT had this actually quite complicated opinion where they said Trump's quote, unquote, universal and reciprocal tariffs are not lawful. Because if Trump wants to use tariffs to address the trade deficit, he has to use a statute called Section 122 of the Trade act of 1974, and that that's the exclusive way Trump can use tariffs to address a trade deficit. And then it said for the other tariffs that Trump had then imposed under ipa, which were nominally, at least in their terms, related to fentanyl trafficking by Canada, Mexico and China, that, that, that those tariffs are unlawful because the tariffs don't adequately quote, unquote, deal with the declared threat of fentanyl trafficking. Trafficking.
- [70:27]
Benjamin Wittes
And so whereas these are just because they're being unfair to us.
- [70:31]
Peter Harrell
Yeah, no, exactly. So, so, which isn't. And so, so like there. So conceptually you could sort of try to draw this distinction. Well, maybe IPA doesn't allow, you know, economic policy tariffs, but it would allow national security tariffs. To your point, Ben, that like AIPA has traditionally been a national security statute, and the, the court, the CIT basically was arguing, well, IPA would allow maybe some national security tariffs, just not these.
- [70:59]
Benjamin Wittes
Right.
- [71:00]
Peter Harrell
Because these are, you know, unbounded and whatnot. I think what Trump is showing with his Brazil and India tariffs is if you're going to open the idea to any tariffs under ipa, practically speaking, Trump is going to figure out how to tariff the world under ipa, and there's not actually going to be a nice way to come up with some line that cabins Trump's tariff power under IPA once you've opened that door. And that's really going to put the, the, the pressure back on the swing judges, justices here of what are they going to do?
- [71:38]
Benjamin Wittes
But, and it's especially true, I think, because the power to issue a trade embargo, which is essentially an infinite tariff, is clearly exists under I. Right. And so you're allowed to say about Cuba or North Korea, the tariff rate is infinity, but you're not allowed to say that the tariff rate is, you know, 60%. There's kind of weirdness in that direction, too. Right? Yeah.
- [72:12]
Peter Harrell
You know, this came up a bit at the Federal Circuit hearing. There is a weirdness now. Now, I would argue as a matter of statute interpretation, it. IPA does not authorize an infinite tariff. A prohibition is different from an infinite tariff. But I recognize we're sort of splitting hairs there then, and IPA does clearly authorize embargoes. I guess what I would say is going back to the a, to the, you know, American, early American history, we have long differentiated between tariffs and embargo. I mean, Congress enacted the first embargo act in 1806. Maybe it was 1807, which was different from its initial tariff rates. Right. So we've, we've always had this distinction between kind of embargoes serving a national security purpose and tariffs serving an economic purpose going back more than 200 years. So I think you can draw this kind of conceptual difference there, that the tariffs will have an economic impact separate from embargoes. And I think that's one way of drawing the difference. The other thing that came up, and I can't remember right now, which judge it was, one of the judges asked this opinion of Assistant Attorney General Shoemade of sort of, you know, maybe Congress is, is forcing the President to make a hard choice. Like, if it is a tariff, giving him a tariff authority makes it too easy for him to play with this statute because it doesn't give him the binary choice of, I'm going to turn off all trade verse, I'm going to leave trade on. And there's sort of a Political accountability that giving him the hard choice provides that giving him kind of this middle ground of a tariff gives him in a way too easy a way out in a statute that he's then going to use, you know, more often than he should.
- [74:02]
Benjamin Wittes
All right, I think we are going to leave it there, Peter, thank you. We are going to turn for our final segment to the state of Texas. And I'm proud to say, people, this morning I coined a term and you know, there has long been a term food porn. There's a term for, you know, people who love taking pictures of porn and looking at it. And there's a term, I've even heard a term. When Shane Harris saw the movie the Post, which had beautiful images of the old Washington Post printing presses, he said, you know, I was overcome by the Linotype porn. And this morning I was thinking about Anna Bowers article about the. The state of Texas. And it's. And the word that came out of my mouth was that this is lawfare porn, which is now forever and forever defined as articles that everybody else would ignore. But true lawfare people would read with a kind of glee and enthusiasm that you know, and just not be able to take their eyes off of. And so this is Anna's article on the escaped Democratic legislators. And I want to start, Anna with a question you pose in the subhead. What the heck is a quo quaranti?
- [75:51]
Anna Bauer
I can't even remember what a quo warrant. A written.
- [75:56]
Benjamin Wittes
Yeah. What's a quo warranto writ?
- [75:59]
Anna Bauer
Yeah, I mean, Ben, I can't tell.
- [76:02]
Benjamin Wittes
You how many times I italicized quo warrento yesterday.
- [76:06]
Anna Bauer
But actually, what is even harder to say is not co warranto, it's quorum warrant, which is a type of warrant that has been issued against the Democratic legislation.
- [76:19]
Benjamin Wittes
Okay, so let. Let's start. Let's start here, Anna, with. Can you say quorum warrant five times quickly?
- [76:25]
Anna Bauer
Quorum warrant. Quorum warrant. Quorum warrant. Quorum warrant. Quorum. You can't do it. If you can do it, though, I think what happens, it's kind of like Beetlejuice. Greg Abbott and Ken Paxton and Kash Patel show up to arrest you and take you back to Texas to reach quorum.
- [76:45]
Benjamin Wittes
So I will just say the hardest tongue twister in the English language is just the words toy boat five times quickly. And that is similar to quorum warrant.
- [76:58]
Anna Bauer
No, I think the rural juror is obviously, obviously the hardest, but yes. So, Ben, we. There's been a showdown brewing in Texas for a whole week now that involves the more than 51 state legislators who fled the state, although I believe that some of them are still in state, but they haven't been able to locate them. But, but many of them fled the state to. In an effort to put a stop to a mid decade redistricting effort. And there's a provision in the Texas constitution that says two thirds of the body has to be there to. To. And so the strategy which has been used a number of times in, especially in recent decades, is to leave the state so that you can not have a vote on the redistricting effort. And now we have some litigation over it as well.
- [78:08]
Benjamin Wittes
So there are basically three questions that you address in this article. One of them I'm going to skip because.
- [78:17]
Anna Bauer
Well, wait, I actually, I just realized I never got around to your initial question, which was what is a quo warrant o action? The litigation that has been filed was brought by Governor Abbott of the state of Texas. He has previously threatened to seek the removal of any of the legislators who left this state on grounds that they abandoned their office and thus should be, you know, declared to have vacated that office. And so he filed an action to effectuate this. And the way he did so was by filing what's known as a petition for a writ of quo warranto. And quo warranto is basically the form of action that has been used, you know, at common law. But then, you know, especially in Texas recently, there's been a number of cases in which the court has discussed the history of these actions. But one way that it is used is basically to question or challenge the legal right of someone to hold an office. So that is the kind of way that you have to. To bring this legal suit to try to get someone removed from office or a declaration that they vacated their office. And there's a Texas case that in the 1800s said that, you know, basically there is a way that you could potentially abandon office if you're not using your office and you have an intention to relinquish it. So Governor Abbott, that's his main argument in this suit, although he has a few others that maybe we'll get to.
- [80:11]
Benjamin Wittes
All right, so in your article, you. You lay out three big questions, and I'm going to basically skip the first one because it's a. It's kind of more of a political landscaping question, which is, why are the Democrats doing that? And I think we all pretty much know the answer. The Democrats are, are denying quorum because they're trying to stop this redistricting. And whether that will be an effective strategy or an ineffective strategy. Is really a matter for political analysts, which is kind of not what we do. And whether it's a good idea or a bad idea. Again, there are good arguments on both sides of that. But. And Anna lays out a lot of the argument, those arguments in the piece. But I don't think, think we need to spend time on that. That here. So I will just say, is there anything you want to focus on on the why question briefly before we move on to the other two?
- [81:09]
Anna Bauer
No.
- [81:10]
Benjamin Wittes
Okay. So the second question is, can Greg Abbott haul them back using a quo warranto writ, and what are the parameters of the authority to do that? And let's add to that question the question raised by the New York Times article today about John Cornyn, which is, can the FBI drag them back if they're out of state? Or what? What role can the FBI play in the recovery of missing but essential Democratic lawmakers who don't want to be found?
- [81:54]
Anna Bauer
Yeah. So let me start with the question of arrest, because I think that helps people understand, you know, why they went out of state. One reason is that quorum breaking is not a crime. You know, you, you intentionally or unintentionally are the reason that the legislature doesn't reach quorum. There's nothing, you know, that you can be arrested for criminally in that regard. And in fact, the Texas Supreme Court has previously, you know, acknowledged that the constant, the Texas Constitution itself enables quorum breaking by a minority faction. So there being no criminal conduct for leaving the state in and with the intent to break quorum, you then do have ways that the Texas legislature can, you know, penalize or bring some type of sanctions to try to compel people to return. So we've seen two ways in which that has played out here. One is that these legislatures, under the Texas house rules are incurring a $500 fine every day that they're gone. And then the other way is these civil arrest warrants that have been issued by the House. Those are, as we now know, are what is known as a quorum warrant. But those civil arrest warrants are only enforceable by Texas state law enforcement, who are getting the person to compel their attendance to go to the state capitol to make quorum. Right. It is, it is not something that, again, is a criminal warrant that is enforceable a beyond state lines, but then also is not subject to a lot of the, you know, criminal process statutes that we have, like the uniform, what's it called, the uniform. There's a uniform act that basically allows you to extradite people if they're charged.
- [84:14]
Benjamin Wittes
I don't remember what it's called, but it's a uniform national extradition law that regulates criminal extraditions between states.
- [84:22]
Anna Bauer
Yeah. And so basically by leaving the state, they're beyond the reach of any enforcement of the civil arrest warrants and of law enforcement enforcement trying to get them back in that way. The question of the FBI. I didn't read the New York Times article today, but I am not aware of any authority that the FBI might have to physically, you know, go and find someone who is not suspected of or the subject of a criminal investigation or, or charges to then, you know, find them and take them physi, you know, compel them to their return to Texas. My understanding from reading between the lines is that maybe the FBI is providing some type of assistance just in locating the people. Is that your understanding, Ben? It's a little bit unclear and it's really unclear what authority that FBI is operating under here.
- [85:31]
Benjamin Wittes
I mean, generally speaking, the FBI is not supposed to be a research outfit for state law enforcement. You know, like they can hire their own research assistants. But yeah, at least if you read the New York Times article, the implication is that they're not going to be doing any arrests because of course, you know, they don't really have the authority to do arrests on state warrants as a general matter. And by the way, certainly not for things that aren't criminal in the state at all. Right. These are not, as Anna says, criminal offenses. But you know, if a state law enforcement agency needs help locating somebody, I don't honestly definitely know what authority the FBI has to do that. They certainly don't have the authority to use their criminal investigative authorities in order. They're generally not allowed to do much without a predicated investigation. And so I don't actually, I don't. I'd have to look at the dialog and, and the Attorney General's guidelines to try to figure out, you know, if you, if, if you're the FBI and you get a request for help from state law enforcement locating somebody who hasn't done anything illegal, what authority do you have to do that? I have no idea what the answer to that is, and I suspect the answer is none.
- [87:04]
Anna Bauer
Yeah. And of course, you know, there a lot of this. There's another thing lurking in the background, which is that there's been these unsubstantiated assertions and allegations from the governor's office about a bribery potential, you know, bribery allegations. The governor directed the Texas State Rangers to investigate this issue. One of the things that I discuss in the piece is that, you know, when the governor did file this petition, that also makes these completely unsubstantiated bribery allegations. There's nothing there that even remotely amounts to, you know, in any way, substantiated allegation of bribery. There's not a shred of corrupt intent of an exchange. It seems to be potentially something that is being used because it's convenient for the legal case, but also maybe to compel the return, whether voluntarily or because there may be some kind of pretextual law enforcement investigation of these Democratic members from other states. But again, beyond if there's criminal charges or an arrest warrant under some criminal authority, I don't see how there's any authority to basically compel the return of these people in that way. So that is why Governor Abbott has filed this suit to remove Jean Wu from office. Should we talk about that, Ben?
- [89:06]
Benjamin Wittes
Yeah. So let's quickly. We're going to try to wrap up on time today, but let's quickly talk about this third component, which is, all right, you can't, you know, haul them back with a rope and you can't ask Cash Patel to go pick them up, but can you sue in the Texas Supreme Court and say, I declare Texas Supreme Court, please declare that they're no longer in office because they've abandoned their office and therefore the denominator has changed in what quorum is and we don't need that many anymore. Can you do it?
- [89:45]
Anna Bauer
I mean, you can try, but as I explained in the piece, this brief is honestly, I, and I say it in the piece, it's not just weak, it is laughable. There are so many things that I could talk about here, Ben, about why it should fail that I don't even know if we. We have two minutes. So I'm just.
- [90:08]
Benjamin Wittes
No, no, we're not. Let's not go into it. Read the piece. But just say. Can we. Can we just say that there is not that this is a laughable proposition.
- [90:19]
Anna Bauer
It's a laughable proposition. There's so many jurisdictional hurdles. You know, it's not even clear if Greg Abbott's the guy who can even bring this suit or if it should be the attorney general. You know, it's probably not the case that you can even bring a quo warranto action of this type against alleged a legislator. It's, you know, then there's the merits issues that are all terrible. It's really laughable. And we did just get a response from Jean Wu that I was trying to read While we were talking about the other subject, I wasn't able to get through all of it. He does make some of the same arguments that I discuss in the piece. But one other thing that I will mention about what he's asking for in his response is he's basically saying this is the completely wrong forum. He evokes his right to a jury trial and says that there's all these factual issues that need to be decided not in front of the Texas Supreme Court. Also mentions the fact that the Constitution already sets out ways to, as I mentioned, to compel the return of forum breakers by setting out sanctions in the rules. There's impeachment proceedings that can occur. And I think actually the response, it's actually kind of smart to basically not address necessarily the substance of this abandonment issue, but to go through all the different procedural reasons why the court should throw this out. Because this is the Texas Supreme Court and it's highly partisan. It's very conservative. And I think that if this case, if this petition is thrown out, as it should be, I think that it's going to be on the, some of those jurisdictional issues that I, that I discuss.
- [92:29]
Benjamin Wittes
So is it fair to say at this stage that, you know, the, the bottom line of your piece is that there may be good political reasons why this fails. This effort fails. Similar efforts have tended to fail in the past. And there are also financial reasons, like it's expensive to pay the fines associated with breaking quorum, but there is no legal way that does not induce laughter to prevent it as a matter of law as opposed to as a matter of political pressure.
- [93:12]
Anna Bauer
I think that's right. Although something I will add that I was thinking of as I was reading the representatives wu's response is that if they, if there's action in the Supreme Court to say, oh, you've got to file this in district court, and then if there's a bunch of different filings in district court where everyone is seeking the right to some type of fact finding by the court, you would think that the people would actually then have to show up for the, the factual findings. Right. For the hearings. So that may be a way to force people to return just by filing suit, because then they'd have to return as, you know, a party who, maybe there's, whether it's a jury trial or evidentiary hearing, whatever way they're going to do it, you'd have to go back to the state for those proceedings.
- [94:05]
Benjamin Wittes
All right, we are going to leave it there, folks. We're not even going to try to cover our normal roundups. We're not going to do audience questions, but it would not be proper of me to end the show without attempting Anna's challenge of send saying quorum warrant five times quickly. So here I go. Quorum warrant. Quorum warrant. Quorum warrant. Quorum warrant. Quorum Quorum warrant.
- [94:31]
Anna Bauer
That's incredible.
- [94:32]
Benjamin Wittes
There you go.
- [94:33]
Anna Bauer
Watch out.
- [94:34]
Benjamin Wittes
I even had a drink before I did it. Peter Harrell, you're a great American. It's great to see your face. Come back and join us anytime, especially after the Federal Circuit rules. Roger Parloff, it's good to see you and get some rest because it's late at night there. Anna Bauer Everybody read Anna's article because it's the only article about Texas Democrats fleeing the state that does have some laugh out loud lines. And and it is, as I say, the kind of article that true readers of Lawfare pick up with glee. And everybody else says, I can't believe you wrote 7,000 words naming all, not most, but all of the precedents of the Texas Supreme Court on Warren Quorum breaking law. So we're gonna be back next week. There's gonna be a lot of action and we're gonna have a lot of fun with it and we will see you then.
- [95:50]
Lawfare Podcast Announcer
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- [96:48]
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