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- [00:00]
Host/Announcer
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Benjamin Wittes
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Host/Announcer
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Benjamin Wittes
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Anna Bauer
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- [00:23]
Eric Columbus
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Molly Roberts
Not a single one.
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Lauren Voss
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Eric Columbus
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Molly Roberts
I've got subscriptions for everything in my life.
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Eric Columbus
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Molly Roberts
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Eric Columbus
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Molly Roberts
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Eric Columbus
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- [01:03]
Anna Bauer
Visit blueapron.com terms for more.
- [01:14]
Benjamin Wittes
It's the Lawfare Podcast. I'm Benjamin Whittis, Editor in chief of lawfare, with lawfare senior editors Anna Bauer, Molly Roberts and Eric Columbus, and public service fellow Lauren voss. In the December 19 episode of the trials of the Trump administration, we talked about the government's failure to re indict New York Attorney General Letitia James. We talked about a jury finding that Judge Hannah Dugan is guilty of obstructing immigration agents. We talked about legal challenges to the White House ballroom construction and so very much more. It is Friday, the 19th day of December 2025. It is 4:00pM in Washington. You watching Lawfare Live? I'm Benjamin Wittes, Editor in chief of Lawfare and I am here with four three Lawfare senior editors and one Lawfare Public service fellow, Anna Bauer, Eric Columbus, Molly Roberts and Lauren Voss. And we are talking this is our our last Lawfare Live regularly scheduled. Anyway, Lawfare Live of the year. We will not be having a show to next week. We will probably be having a show on January 2, but we don't know that for sure. So we may actually go three whole weeks without a Lawfare Live. We are going to start with Dan Richmond, who has had a better week than Lindsey Halligan has Anna Bauer. We're going to talk about both of their weeks, but we're going to start with Dan Richmond. Anna, bring us up to Speed. He kind of pulled off a bit of a stunt.
- [03:17]
Eric Columbus
Yeah, I mean, it, it's honestly fascinating and I'm looking forward to. I know Oren Kerr is, I think, planning to write on this at some point about the Fourth Amendment stuff. It's a really fascinating area of law. But I, you know, beyond that, it has major potential implications for the Comey case. As we discussed last week, Richmond sought the return of his property under Rule 41G of the Federal Rules of Criminal Procedure. And that property is data that was seized many years ago that now much, some of it forms much of the government's evidence in the now dismissed Comey case. And where we left off last week is we were waiting for Judge Caller Catelli to rule on whether Dan Richmond would succeed in this argument that under Rule 41G, he should not only get those. That data back, but also that the government should have to delete copies of it. And presumably that would mean that it would, it would really hinder their case against Comey if they're still trying to bring that case because they'd have to go and get a new warrant to, to seize those materials and search them. So sure enough, Judge Collar Catelli rules and she finds that the government did violate Dan Richmond's constitutional rights, that they had callous disregard for his Fourth Amendment rights in the way that over a variety of, in a variety of ways they treated his materials by keeping it and then going back in searching through it without obtaining a warrant. And she ordered the return of that property and the deletion of the materials. And she said that she. That the government would be allowed to make a copy of the materials and deposit it with the court in the Eastern District of Virginia. So she issues this ruling the Net, and she gives a deadline of, I think it was December 15th for the government to comply. You know, make the copy, deposit it, give the materials back to Richmond. The government, however, files a motion to clarify the court's order in which. Ben, they make a number of arguments that are, to me sounded really wild. So one of them, for example, is this idea that by ordering the government to place these materials with the, the court in the Eastern District of Virginia, which the government could then re. Access if they were to secure an actual lawful warrant for them. That, that by doing so, Judge Koller Catelli was intruding on the functions of the executive branch related to chain of custody and evidence preservation. And so they make this like really bonkers argument about, you know, why they think they, they think that Judge Color Catelli got it Wrong. In terms of filing this copy. They, they say they want to provide best practices for the court for chain of custody matters and evidence preservation, which I just find to be so bizarre that you're telling a court that deals with sensitive materials all the time like, oh, we need to tell you how to preserve this evidence. And then they, you know, also make the argument that the order would require them to violate federal records laws, which again is a very interesting argument coming from an administration that is known to use disappearing messages and has a very well documented habit of doing that. But they say that, you know, by deleting these copies, those are some things that we might be required to preserve under federal records keeping laws. So they make this argument. Judge Color Catelli, what she does is give them a little bit of extra time to comply with her order. And she says, you know, I'll allow you to give me some additional briefing on like what you've got. And also, you know, if you want to file these, this best practices for chain of custody, you can. So over the course of a few days there's been new briefing on this where the government has filed an increasingly, to me bizarre number of responses to the court's order in which they do things that frankly just make no sense to me. You know, for example, they and Judge Caller Catelli just earlier today kind of called this out. They said that they would not, they would continue to comply with the court's order not to access the materials or to distribute them to anyone else without, for, without permission of the court. But it turns out that they already had made a copy of it and provided it to the courts. Classified Information Security Officer, which Judge Collar Gatelli noted, you know, you're not, you weren't supposed to give these materials to anyone else. So where we have have left it for now, Ben, is that the government has filed its, you know, best practices response to Judge Collar Catelli about chain of custody. And in that motion, they claim that they think it's better to deposit the materials not with the court, but with DOJ's litigation security group. And, and Judge Color Catelli is like, wait a second, this is new. I, you, you were supposed to make this all about what, how the court would keep these materials.
- [09:47]
Benjamin Wittes
That's not the order.
- [09:48]
Eric Columbus
That's not the order. And so now she's ordered further briefing on this change that suddenly DOJ has made in terms of saying it's better to keep it with the litigation Security group. So that's where we stand right now. And, and the government remains under its obligation not to access the Richmond materials in the interim.
- [10:10]
Benjamin Wittes
So I have a question. We are about to turn to Molly Roberts about the president problems that Lindsay Halligan has had in bringing a new case against Letitia James. She has not tried to bring a new case against Jim Comey, which is, I think, why no grand jury has no true build it yet, let alone serially. And should we understand the Richmond litigation as what is preventing even that from happening? I mean, you can't go to a grand jury and get the thing, no true build if you're not allowed to use the material at all. Or is that a function of the fact that the statute of limitations has run in the Comey case, but not in the Letitia James case? Or is it simply that they are thinking better of the Comey case? Do you have a sense of what. What the relationship is between the Richmond litigation and the fact that there has not been any further action on re indicting Jim Comey?
- [11:28]
Eric Columbus
I think that we don't know, Ben. You know, the Richmond. There was one window when there was not a TRO in the Richmond case. There was not anything preventing them from going ahead and going to the grand jury that typically sits on Thursday, as I understand it, in the Eastern District of Virginia, which is the one that they seemed to use last time with the Comey case. There was, I believe, one of those Thursdays where there was a window and they tried that same day with Tish James and failed. But so. So they missed that window with Comey and apparently didn't try. And then there was the Richmond tro. And then now there's this complication where they can't access the materials. You know, I. That said, I. Actually, there's kind of an interesting thing where, like, the rules of evidence don't apply in grand jury with grand jury practice. So even if they can't get these materials, the. The actual original copies they would need for. For trial, you know, could they use the things that are already in the public record to go before a grand jury? I don't know the answer to that. Go ahead. Sorry.
- [13:02]
Benjamin Wittes
Yeah, you can't do that because you can't authenticate them.
- [13:06]
Eric Columbus
Well, I mean, you.
- [13:07]
Benjamin Wittes
You can pull them off of lawfare, and. But the most that you can do with that is establish that you introduced this in a previous thing. You. You can't get somebody.
- [13:22]
Anna Bauer
You.
- [13:22]
Benjamin Wittes
You can't prove that you took it off of Dan Richmond's computer because you're not allowed to show that.
- [13:28]
Molly Roberts
Right.
- [13:28]
Eric Columbus
But you'd have to do that at Trial like you, you in grand jury practice. Am I, Am maybe, am I incorrect that the rules of evidence and authentication and all that, like, you could still try, maybe, I suppose, but you wouldn't.
- [13:45]
Benjamin Wittes
Be able to represent to the grand jury that you would be able to use this.
- [13:51]
Eric Columbus
Right. And the law enforcement witness who you would presumably use to introduce this wouldn't be able to say, like, this is the thing we got off of Dan Richmond's computer.
- [14:01]
Benjamin Wittes
And also you wouldn't be able that. That law enforcement witness wouldn't be able to say, if a grand jury asked, grand juror asked, would you be able to introduce this at trial? Now, a grand juror might not know to ask that. But. But, you know, I mean, it is true that you're not. You're not obliged to follow the rules of evidence, but you do have to believe you have evidence to the adequate evidence to convict at trial. And. And in the absence of a. Of some ruling that you're going to be able to use or access this stuff, I just don't see how you could believe that.
- [14:41]
Lauren Voss
Right.
- [14:42]
Eric Columbus
So. So the other thing that I will say in response to your original question, Ben, is I don't think that it's a statute of limitations thing. I think if the government really wanted to pursue this case, they would move forward with it and then worry about the statute of limitations argument after they have it indicted. But one option that I. You did not raise that I have wondered about. So this is just speculation, but I wonder if, unlike the Tish James case, if there's not someone who is not Lindsey Halligan who's willing to take the Comey case before a grand jury because of perhaps their concerns about the ethics of it all.
- [15:31]
Benjamin Wittes
Although we did see Tyler Lemons and Gabrielle. I forget his last name, you know, they were willing to litigate it at trial, so I.
- [15:49]
Eric Columbus
They were willing to litigate it after it was already indicted. And I. We did see Tyler Lemons. There were times when Tyler Lemons stood up and said, james Comey isn't indicted because he's James Comey. He's indicted because he lied to Congress. Like, you know, he was willing to get up and say that. But there were other times where, for example, you know, Tyler Lemon seemed a bit uneasy about some things that he was being asked to represent to the judge. And he's on the record now in court admitting that he knows about the declination memo or the declination decision. You know, he. He might very well be someone who, after he got involved in the case, would have reservations about going and presenting it to a grand jury and being the guy who. Who, you know, secures or tried to secure an indictment against Comey. But I don't know. I'm just raising some.
- [16:48]
Benjamin Wittes
No, it's a very. It's a very fair point. I mean, it's a bit of a mystery at this stage, but why. We've had two subsequent efforts to indict Letitia James and none on Jim Comey. And there are a few possible explanations for that. One is that there. One is that the Richmond thing is really holding them up. The second is that the statute of limitations thing is really holding them up. The third is that the. The ethics of presenting this case against Jim Comey is even worse than the ethics of. Of on the Letitia James matter. Though, honestly, I don't know why it would be worse. They're both. They are rough cases of roughly comparable negative merit for quite different reasons. But. But it is possible, you're right, that that is a personnel matter. And then there's a fourth possibility, which is that they are planning to appeal the decision in the Comey case, although we have not yet seen a notice of appeal. Is that right?
- [18:04]
Eric Columbus
Yes, that is correct. And. And they have. I forget when the clock runs out for them to appeal, but they have time.
- [18:11]
Benjamin Wittes
So that's, I believe, a 60 day clock, if memory serves. All right, well, let's talk. Let's switch gears. Same prosecutorial team, same similar ethical issues, and yet a different source of unremitting failure, which is to say multiple grand juries. Saying in grand juries. Are you freaking kidding me? And now one of them has taken an extra step. Molly Roberts, give us the latest, and I will draw everybody's attention to. For people who want to go into the detail of this, Molly has a detailed piece of doing the side by sides of the various Letitia James indictments. So what has the latest grand jury had to say about Lindsey Halligan's Ahabian efforts to nail down Letitia James?
- [19:24]
Molly Roberts
Yeah, so the latest grand jury, as far as we know, was last week's grand jury in Alexandria. There was a grand jury the week before that in Norfolk. This grand jury made a pretty unusual decision, which was to present the indictment that it rejected in open court. And the government. Seems like the government realized this the following day and the following day requested to have the records sealed. But already this indictment had appeared on the public docket. And ultimately the magistrate, judge William Porter, issued an order denying the request to keep the record sealed. So that means that we and everyone else are able to look at the failed indictment and see how it's the same, how it's different from the indictment that Lindsey Halligan managed to secure back in October.
- [20:15]
Benjamin Wittes
And, and so, so help me out with this. I look at this and I say, all right, this diet indictment's a little bit different, but it's not very different. And if I were a prosecutor and I thought the prior one sucked, I wouldn't look at any of those differences and say, well, this really gets me over the hump. You know, like, I thought she was, she was going to skate on that last one, but now we've got it nailed down. Sorry, go ahead.
- [20:50]
Molly Roberts
No, I agree with that. And I've been chatting with a few people who've asked me, well, is this a stronger indictment or a weaker indictment? And the answer's kind of yes. It's stronger in that I think it plays a little less fast and less loose with the facts, so it feels a little more legitimate what they're presenting to the grand jury.
- [21:12]
Benjamin Wittes
But it doesn't have that she got thousands of dollars in rents, only the Thousands are really $1,300. And it's the. And by the way, she spent that exact sum of money in utilities.
- [21:28]
Molly Roberts
It doesn't have that at all. And it doesn't exactly because. Because as the New York Times reported soon after the first indictment, it turned out that it was her grand niece and her children who were living there. And they were living there rent free. And it really appeared that only that one year they had paid this money in utilities that she reported. But because this indictment doesn't say, hey, she rented this out, it was an investment property, not a second home, and investment properties would attract higher interest rates, the case actually reads kind of weaker. And I, I at least think it would to a reasonable grand juror. Because what they have to prove is the same thing that they had to prove the first time around. They've alleged violations of the bank fraud law and a law prohibiting false statements to a financial institution. So that means the government has to show that James knowingly made a false statement that was intended to deceive a bank, and also that it would have been likely or that it possibly would have influenced the bank. And so they have to show not just this wasn't a second home, which they don't do any more successfully than they did in the first indictment. They also have to say, well, what was it? And they don't really spend much time arguing that she viewed this as an investment property because they don't spend a lot of time talking about the rental money like the first indictment did. They've shifted their focus instead only to this question of occupancy, of saying she did not occupy the home. The facts don't necessarily support that. And again, I'm drawing a lot on the New York Times's reporting here. But just saying she didn't occupy it doesn't necessarily get you all of the way there. You have to show that the property was more reasonably an investment property, and that's why she would have made money off the alleged misrepresentation.
- [23:08]
Benjamin Wittes
All right, so I'm going to ask you now the same question I asked Anna Bauer about Jim Comey, which is there's a bit of a over determined variable in, in Comey's case about why they haven't tried to re indict him. Here there's a bit of an over determined variable in why the grand juries keep saying no, though. They said yes to Lindsey. Lindsey Graham. Lindsey Halligan. The first time, sorry, Freudian slip. Um, and you know, Lindsey Halgen pushes through, gets it done the first time since then, two grand jurors have said two grand juries have said no. And I can think of. And you list in your piece 4 possible reasons why grand juries may be balking now. And so first of all, talk me through those four possible reasons. Obviously, the grand jury doesn't get to say that prior grand jury is full of shit. We're saying no. They just get to answer the question, do you want to issue a true bill here? And they say no. But how should we understand the fact that the first time Lindsey Halligan herself presented this case, a grand jury indicted and subsequent two times Mr. Keller presents substantially similar case and the grand jury says no. How do you understand what are the range of possibilities for the reason for that?
- [24:57]
Molly Roberts
Yeah, sure. So you mentioned Mr. Keller. That's Assistant U.S. attorney Roger Keller, who came in from Missouri to take charge of the case. And he was always going to be the one who argued it in court. But now he's also taken charge of the presentation of the indictment to the grand jury after the improper appointment debacle. So I think that point one goes along with what I was discussing earlier about the contents of the indictment, which is essentially the government has put together a case that in a lot of ways looks weaker because it's been less willing to distort the factual record. I think connected to that point too is how did Keller present this to the grand jury? We know that Lindsey Halligan we know this from the record in the James Comey case. We know that she didn't exactly follow the rule book there, that she made some misstatements of law. And the defense in the Letitia James case, back when it was active, submitted a motion that asked for the disclosure of grand jury materials, thinking that possibly she could have infected the grand jury proceedings there with similar instructional error. We knew of some other irregularities, too. We knew that the grand jury in Norfolk had heard testimony from Letitia James grand niece, and the grand jury that returned the indictment was seated in Alexandria. She took a trip to present to the grand jury, and that niece hadn't been asked to testify. Again, another weirdness. We know that the inspector general for the key housing agency involved here was ousted after he reportedly tried to provide constitutionally required information to the Eastern District. So that suggests there may have been exculpatory evidence, Brady evidence that prosecutors should have had that maybe the grand jury didn't see. So if Roger Keller followed the rules, then maybe the case doesn't look as strong because the case really isn't strong, never was strong. So that's sort of one set of reasons. The most innocent reason would just be different. Grand juries are different. The people here might not have been persuaded because they were less persuadable or for some other reason. It feels a little weird to say that because grand juries are supposed to be fairly easy to persuade, just generally of probable cause. It's a low standard, but it's possible. And then the final explanation would be that these grand jurors have been reading the news. This is a highly public case. And in the news, it's plain that President Trump has directed the Justice Department, we know this from the Pam tweet, to punish a political opponent. And reported in the news are is the dismissal of the case. Are the failed is the failed first indictment. The judge said he was not going to speculate as to why the grand jury did what it did, but he said that he was denying the order to seal this failed indictment because making it public serves the interests of transparency when Letitia James had already suffered the stigma of public criminal charges from the charges that were filed against her in the indictment that's now been dismissed. And so the grand jury maybe thought kind of the same way. They knew what was going on and they wanted to reduce the stigma. So if you decide that that's what the grand jury was thinking, then that obviously allows you to understand a little better what may have influenced the decision, too. And then I think you Know, could, of course, be some combination of those three or four reasons.
- [28:24]
Benjamin Wittes
What's your instinct? I mean, I know what my instinct is, and I'm. I'm. I'm like. I look at it, and I say, grand jurors are not sequestered.
- [28:36]
Molly Roberts
That's mine, too. I think they've read the news. These are in Alexandria. And also, you can correct me if I'm wrong, but my understanding is it's odd for the grand jury to present the indictment in open court, and that suggests, again, that they wanted this to be public. And so it kind of suggests a level of savviness to me as well.
- [28:55]
Benjamin Wittes
And that makes me think that's exactly my read on it. So the first time you do it, you get it through. The second time you do it, you don't get it through. The third time you do it, you don't get it through, and they out you, you know, the fourth time you do, and you get out.
- [29:11]
Molly Roberts
They tried again this week, so maybe they've given up. I don't want to speak too soon. Any. Thursday is grand jury day.
- [29:16]
Lauren Voss
Right.
- [29:17]
Benjamin Wittes
It just seems to me that every time they try it, it gets worse for her, definitely, and for Keller, and that that trajectory is unlikely to be a coincidence. It's what happens when there is a relatively fluid information environment, which, of course, there isn't in pet with Pettit, jurors be instructed not to look at the news and who can be sequestered. But you can't do that with grand jurors because you don't know which ones who are going to end up hearing the case. And so there's a fairly fluid information environment, and some number of them are aware that this is an office that is not playing with a normal set of dice. And. And so every time they do it, there's a little bit of a whispering thing going on with a certain segment of. Of. Of grand jurors, and the outcome gets worse for them. And that is, of course, one of very many reasons why responsible prosecutors don't behave this way.
- [30:27]
Molly Roberts
Yeah, I'm with you. I have no notes.
- [30:31]
Benjamin Wittes
Let us shift gears and talk about domestic deployment of the military. Lauren Voss, when we last met, the D.C. circuit was, as per their usual want, annoyingly sitting on a motion for an emergency stay on a Friday afternoon. And I believe they issued the administrative stay while we were chatting. Is that right?
- [31:06]
Lauren Voss
I don't know if it was while we were chatting, but it was sometime during then.
- [31:10]
Benjamin Wittes
Like, yeah, it was right in there. And it was, you know, again, showing the D.C. circuit's contempt for lawfare's scheduling and that sort of thing. If we could hold them in contempt, we would. But now we have actually had a chance to read, figure out what exactly they've done. This is with respect to Judge Jelani Cobb's ruling that the deployment of the national guard in D.C. is unlawful. I believe you, or Scott, or maybe both, were fairly confident that there would be a stay. There is a stay now. So what's going on and what is the state of play with regard to all those D.C. national Guard who are, you know, cleaning up flower beds and learning to play chess? I watched a whole bunch of them over standing over a chess table in Dupont Circle with one of the local chess hustlers. They were clearly getting a lesson. It was kind of beautiful to watch. What, are they going away anytime soon?
- [32:25]
Lauren Voss
So if you go out this weekend, you will still see them playing chess is the takeaway here. So the Court of Appeals, it was a panel. Millet Rao Katzis. So the administrative stay is now a stay pending appeal. This decision came out on the 17th.
- [32:44]
Benjamin Wittes
And just to be clear, I misspoke. This is Judge Jia Cobb, not Jelani Cobb. My apologies.
- [32:52]
Lauren Voss
Oh, yeah. Thank you. So stay pending appeal. This is of COBBS Ruling on November 20th. Right. And remember, she did a preliminary injunction that stopped the DoD defendants from deploying or requesting the deployment of any members of the National Guard in D.C. pursuant to. And she listed all of the letters, orders, memos, like everything. Right. So she was saying, you can't deploy any national guard in D.C. under any of those authorities. Granted. Though she, remember, she only ruled on the APA contrary to law claims that applied to the Home Rule act EMAC in Title 32. Right. And she made no ruling on the rest. So I want to flag that because as the panel points out, we're not talking about whether or not the National Guard is doing law enforcement activities that would implicate the Posse Comitatus Act. And we're not talking about the other issue, which is is the federal government exercising command and control over State guards in Title 32 because they're in charge of the D.C. national Guard. So none of that is talked about here, which is very strange. Should not be talking about how the Guard is being used, but instead we're really just focused on that initial, you know, mobilization of them. So we have a stay pending appeal. I, you know, when we talked about the 20 November decision, we did talk about how we thought this was going to happen. Right. So I want to remind people of 502F, we talk about it all the time, right? We're always talking about 502F. But specifically it says a member of the National Guard may be ordered to perform training or other duty, and that training or other duty may include the following support of operations or missions undertaken by the members unit at the request of the President or Secretary of Defense. So the panel basically says on its face, 502F appears likely to authorize the deployment of the DC Guard and the State Guards in this instance. There's no dispute that they're supporting a mission that was undertaken at the request of the President and the SecDef. And the text leaves room open for operational missions, such as a public safety support mission. Granted. Whether or not they're doing public safety here is an open question. But you know, that type of mission and the limitation is that the governors of the State Guards have to authorize the deployment. But there's no claim that that didn't happen either. It seems like all of these governors are okay with it. Remember, defendants say 502F is just about training drills or other things that are equivalent to that. The panel says no. You know, the text says operations or missions. As I read you that quote. Right. It does not have training as a qualifier. President. SecDef type missions. That's likely not training. They wouldn't be talking about training of National Guard. This is operational missions. And that the phrase training or other duty, other duty means more than training. So we talked about this when we discussed Cobb's decision. Right. Defendant's interpretation here is weak. There's explicit references in Title 32, including Section 904, that states operational missions will occur under 502 F. There are operational missions that can occur in this status. But I don't want to say that that means that the court of appeals decision here or the government's interpretation is correct either. It's actually kind of novel. 502F has traditionally been read just as a mobilization authority, not a mission authority. So these operations and missions undertaken at the request of the President or the SecDef, you have to find that mission authority elsewhere. So we talk about, in title 32, section 112, the drug interdiction, counter drug. We talk about homeland defense missions, Section 904, which literally says, if it's a 904 mission or it's in Title 9 or Section 9, it will be under 502F. Right. So why do these provisions exist? Are they in law? And why does DOD use them? If 502 F can covers any and all missions. Right. So it doesn't quite. Doesn't quite square that. So Judge Cobb said that really what you want to look at for 502F is she agreed it wasn't a mission authority, but she thought that it should encompass all missions that are authorized under state law. And I previously said this part of her opinion was confusing because she's right that the governors have to approve deployment of troops right, under title 32, and they can't authorize something that isn't allowed under state law. So, yes, that is a requirement. But what's missing here is that in a hybrid status like Title 32, it's a federal mission, so you need a federal authority for that mission as well. And the panel appears to be reading federal mission authority into 502F and kind of ignoring all of those other sections that work for specific missions. And so, you know, under this 502 F could be anything, anything you want it to be. The Court of Appeals, though, does also say, under Cobb's reasoning, so that you need state law authority, defendants are likely to succeed on the appeal because you have D.C. law that allows it. And then they go into the D.C. analysis. Right. And that's when we turn to the D.C. national Guard. And to me, this was the stronger argument in her decision. And I would say that what we have from the panel here is some selective reading of the DC Code, to put it nicely. So we've discussed these provisions before, Right. We've looked at 49102 and 49, 103. 102 is the one that allows the commanding general to call out the National Guard for drills, inspections, parades, escorts, or other duties. Right. And then we have 103, which is the one that allows three individuals, the mayor, the United States Marshal for the District of Columbia, or the National Capital Service director, to call on the Commander in Chief to aid them if there's violence in enforcing the laws, in cases of riots and other types of violence. Right. The panel here makes an argument that the D.C. code provides that the president, as commander in Chief of the DC Guard, can order out the DC Guard whenever it shall be necessary. And it cites not to those provisions that we just talked about in chapter one, which is the operational chapter, but in chapter four of the Code, which is composition, organization and control, which is like the administrative chapter. And so it cites to provision 405, which basically says if you're called to, if you're mobilized and you don't come, you can be arrested. Right. And so it's about those kind of like administrative things. And then it cites to 409, which is the Commander in Chief clause. So you know that the President is Commander in chief of the D.C. national Guard, even in malicious status. So it also though points out that the DC Guard can be ordered to aid the civil authorities in the execution of the laws under 49 103, which is what we talked about, if it's one of those three individuals to make the decision. The panel argues though, that this specific provision is permissive, not limiting, and it doesn't limit the President's statutory authority over the DC Guard and its commanding general. It's not clear why it thinks that when Chapter one dictates, like here are the reasons you can deploy forces. And it's similar to the way that other states do the same thing when you're deploying a National Guard in a state status. So under the reasoning they've given you here, there's no mission limitation for deploying the D.C. national Guard. The President is the Commander in Chief. If those examples that are in there are just permissive and not limiting of the President's authority, he could do this however he wants. The other point that they make is that the President could have just ordered his subordinates to make such a request. So two of the three people in that provision 103 are directly underneath the President and he appoints them. So they say, well, he could have just told them to make such a request. And the language of what counts is quite broad. Right. So we're used to like Insurrection act type things or 124 06. But this specific provision in 103 is enormously huge. So if there is a tumult riot mob or a body of men acting together by force with attempt to commit a felony or to offer violence to persons or property, or when such a tumult, riot or mob is threatened. Right? So like if there are more than one person that might commit a felony or offer violence to people, you could use this provision. So I mean, that's quite, quite expansive, but it overlooks the facts here. The President didn't order his subordinates to do so, the Mayor didn't ask, the factual predicates aren't met. So and the deployment order from the Commanding General didn't include this provision and included other provisions, including that more general drills and other duties. 1. So this is arguably easily fixable. Right. But you can't overlook that procedural requirement just because there's an obvious way to fix it. The panel doesn't really worry about this because they've determined that those vague other provisions in the administrative chapter authorized the president as Commander in Chief, to use them to. To use the DC Guard however they see fit. They also do address the District court's reasoning that Title 32 requests have to be under the EMAC. We previously discussed this after that, after that decision, and I think the panel is right. It's one avenue for requesting support, but it's not the only one. So the EMAC gets thrown out, and then they say that. But even if a governor had violated state law, the remedy in those cases is a suit against the governor, not an APA claim against the federal government. That's kind of where we are. I will flag. There's also a concurring statement by Rao, joined by Cassitz, which says the federal government's likely to succeed on the merits for another reason, which is that DC may lack Article 3 standing to challenge the deployment of the National Guard. And they basically say there can't be sovereign injury here. The District is not a sovereign. They've long recognized D.C. as no sovereign status that's separate from the federal government, and Congress is indeed the District's government. I think that doesn't deal or address the issue that by law, the District of Columbia has a law enforcement power. So that isn't fully talked about in that concurrence. But I do expect this issue to continue to come up potentially as we see Judge Cobb deal with the PCA or Title 32 later. So we will see.
- [43:52]
Benjamin Wittes
All right. Well, speaking of issues that continue to come up, There is the 9th Circuit where I can, like, once a week I have this conversation with you that's like, so explain what's going on in the ninth Circuit. And every week you do it, and then enough changes that I am completely lost again. And that is where it is today. So help me out. What's going on in the ninth Circuit?
- [44:20]
Lauren Voss
Well, I mean, even the parties are confused, right? Where they, like, file something at the circuit court and the circuit court says, no, no, that's not. That's not us. Go back to the district court. So, remember, we had Judge Breyer's decision out on the 10th, right? And so he grants a preliminary injunction. He enjoined the government from deploying members of the California National Guard in la, and he directed them to return control of the California National Guard to the governor. And this was about, remember the additional federalization orders. So we have all the stuff still going on on that initial federalization order and on the PCA. But this is about Federalization Order 2 extending it to November and the third one going all the way to February and whether the conditions still met those additional federal federalization orders. So what we have happening on December 12th, late Friday night is our favorite 9th Circuit panel, right? So Bennett, Miller and Sung back again. They received the government's emergency motion for stay pending appeal, and they granted the administrative stay in part and denied it in part. So basically what they did is they, they stayed the portion that said you have to give control back to the state and the governor, but they did not stay the part that enjoined them from deploying members of the California National Guard in la. So as of, as of now, as of late Friday night and confirmed by a couple press reporting, there are the less than 100 California National Guard troops that were in Los Angeles are off the streets. They've been pulled out of the city and they're conducting training instead. So we have this administrative stay from the 9th Circuit that did not return the control back to the governor but did stop the troops from being deployed any longer.
- [46:19]
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To be clear, that's half the price.
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- [50:50]
Benjamin Wittes
So we're going to switch states now and we're going to go, we've been, we've been very focused on on coastal elites here and now we are going to go to the state of Wisconsin where Anna Bauer I believe we have the first conviction of a judge for interfer with ice, remind everybody who Judge Dugan is, or Dugan, I'm not sure how she pronounces it. And what happened yesterday night.
- [51:25]
Eric Columbus
Yeah, so Judge Dugan is the judge, state court judge in Wisconsin, who was arrested and charged with impeding two counts, one being impeding an official proceeding, which is a felony count, and then another that is a misdemeanor in which she was accused of concealing a person who was the subject of arrest. That person being a misdemeanor criminal defendant who appeared before her at a time when federal immigration authorities were in the courthouse seeking to arrest this person on an administrative warrant. These were ICE officials seeking this man for immigration detention. The accusation is that by directing this man and his attorney to a non public door in the courtroom, she essentially assisted him in evading arrest. He was of course, arrested that, that day by immigration authorities outside the courthouse, on the street, I believe. But nonetheless, Judge Dugan is charged. There was a trial this week. I, I did not go. And, and none of us at Lawfare were there to cover in person. So I got to say, shout out to Adam Clasfeld at All Rise News, who did an excellent job this week of covering this trial in great detail. So I encourage people to check out his reporting because he did really, it was super helpful. But based on what I know from that reporting, over the course of several days, this trial occurs. And it seems to me that, you know, there. Some of the, one of the kind of really big moments for the government came through the testimony of a fellow judge who was at the courthouse that day and who had some interactions with Judge Dugan surrounding this issue with the warrant and what was going on in the courtroom. And at one point, the government even elicited a statement from that judge in which the judge said, said something to the effect of judges shouldn't be helping people evade arrest. But as I understand it, there was no objection to that testimony. And it, as a result, came into the trial and seemed to be one of the more damning moments for the defense. However, on the other hand, the defense seems to have listed testimony that Judge Dugan, you know, didn't know that the arrest warrant from ICE officials was actually for this particular person. You know, the warrant was never showed to her. You know, they're, they, they really seem to focus on that, that like, you know, there was not knowledge that the person that ICE officials were seeking was this, this particular guy that she directed to a certain door. There was also testimony by the court reporter, by the defense attorney who represented the man who is known in the indictment as efr. So after all this testimony there, the jury goes to deliberate, and within the course of several hours, a verdict comes back. It comes back after two questions that I think ended up being quite consequential. The jury, because there's these two counts, they asked specifically, what does Judge Dugan need to know about whether this warrant was for efr? And on the first count, which was the misdemeanor, the judge gave an instruction in which he said that she did need to know the identity of the person who the warrant was for. But then on the felony count, it was more about what did she need to know about the official proceeding. And the instruction was just that she needed to kind of have sufficient knowledge of the nature of the proceeding, not that, as the defense argued, she needed to know who the proceeding was for. So as a result, jury comes back, and it is an acquittal on the misdemeanor count and a conviction on the felony. It may well be that that instruction made all the difference, and that may be a grounds for appeal in the future. And I think that there may. It seems to me that there are likely other grounds as well for appeal. But for now, what we know is that Judge Dugan has been convicted on one felony count and is now awaiting sentencing.
- [56:48]
Benjamin Wittes
All right, so I have an uncomfortable question about this case, which is, on the one hand, I think a lot of people feel like there was something sympathetic about what she did, which is to say that ICE is suddenly showing up in state courts, which is a bit of a intrusion on the autonomy of state courts. And they are. You know, you're a local trial judge, you're trying. You want to get people to show up for proceedings, and all of a sudden, there are ICE people wandering around, sort of snatching people, and. And using the fact that you've compelled them to purposes of their proceedings to detain them. And on the other hand, you know, you're not supposed to be helping people evade law enforcement, right? And there. There is something about, like getting out of your lane as a state judge here. And so my question is, is this a situation where you think she is factually guilty of the charges, but there's a sort of ameliorating quality to motive? Is this a situation where you have any doubt as to her actual guilt? Is this a situation in which we should just say, hey, judge screwed up here and violated federal law? And that's, you know, being a state court judge is not a license to impede law enforcement. How should we think about A case like this.
- [58:44]
Molly Roberts
Yeah.
- [58:44]
Eric Columbus
I mean, look, I. I will say I. I don't make. I don't feel comfortable making pronouncements about this type of thing without having read the transcripts or having watched the trial. I've followed the coverage pretty closely, but, you know, you know as well as I do, Ben, that, like, it really makes a difference to sit through a trial and. Or to read the transcripts and to know exactly what the evidence was. So. So I'll start with that. But I. But I will also say, you know, I don't know. Like. Like, again, putting that preference preface aside for now. I don't know. You know, did. Did Judge Dugan. Because part of this is that you have to do something corruptly, right? You have to corruptly obstruct the proceeding. And I don't know, based on the. The defense argument and some of the evidence that seems to be presented that I've read in the reporting, you know, it seems like there really was confusion around what the court's policy was with the authority of federal law enforcement to be operating in the courthouse, in the courtroom, and that the judge was under the impression, and rightly so, that there should be a ju. That they needed to have not just an administrative warrant, but a judicial warrant as well. There. There was a lot of testimony to that effect. And so if I were a juror on that, on that jury panel, I don't know that I would have believed that she is factually guilty based on the idea of, you know, the element of corrupt obstruction. I also, though, was not. Like I said, I don't know the full extent of the evidence, and I would want to read it. And it's clear that 12 jurors did believe that she was guilty. And I don't think that we should discount a jury to be so quick to put aside a jury verdict. Were the instructions correct, I would need to look into that issue of law as well, because I don't know.
- [61:11]
Benjamin Wittes
All right.
- [61:12]
Eric Columbus
What do you make of it?
- [61:14]
Benjamin Wittes
Well, I'm kind of in a similar position. I did not even know the trial was going on yet when I got a news alert from the New York times at around 11:30 last night that she had been convicted. And I was surprised to know that the trial had even begun, which. And so I am also in a position where I'm a little bit scratching my head about this. I kind of expected this to be a little bit more. Not in the sandwich guy department, where there's a real element of comedy to it, but more in the department, like the congresswoman in New Jersey who's been charged with, you know, I do not expect her to be convicted and I kind of did not expect a conviction to result from this. And so I was surprised by it and therefore intrigued by the question of what did the jury hear that I have not heard? All right, so the D.C. circuit, at least one panel of it, also seems to have questions about what it is proper for a judge to do. But in this case it is Judge Boasberg, and they seem to have questions about whether it is proper for him to investigate questions of contempt of court outside his presence or whether he should just refer the matter for possible prosecution if he suspects it. I, frankly, this one took me by surprise as well, Anna. I have never heard it. I've always thought of it as a quite normal thing that if a judge thinks there may have been a contempt, you issue a show cause order why I shouldn't hold you in contempt, and you do whatever investigations you have and then you do or don't issue the order. But Judges Rao and Childs and Katzas seem to have a more restrictive sense of at least the indirect contempt than my instinct. So tell me what we know about what's going on here.
- [63:41]
Eric Columbus
Yeah. Is it Rowan Katzis or is it Rowan Walker? It is.
- [63:47]
Benjamin Wittes
I thought it was Katzis, but maybe it's Walker.
- [63:51]
Eric Columbus
It's Walker.
- [63:52]
Benjamin Wittes
I'm sorry.
- [63:53]
Lauren Voss
Yes.
- [63:53]
Benjamin Wittes
I've been getting lots of judges names wrong today. I got Giacob's name wrong today and I'm confusing Katus and Walker. You know, it's just not my Friday.
- [64:05]
Eric Columbus
Yeah. So I, I also found this unusual because my understanding is that judge, a judge has.
- [64:15]
Lauren Voss
A.
- [64:16]
Eric Columbus
Has historically and traditionally had a lot of latitude to investigate contempt. But it seems that perhaps Judge Walker and Judge Rao do not think that to be so. And particularly with indirect contempt, that doesn't occur, you know, in front of a judge. It occurs in this case where planes that have been that are outside of the United States fail to return back and they are sent on to El Salvador to where many men are put in a gulag. But so there's additional briefing that's been ordered on this question. I think one thing that's going on here, and you can kind of. It's interesting because in this order for briefing, one of the part of the language is quite interesting in which they say they want to know on what legal basis may a district court investigate possible grounds for indirect contempt, and two, delay a referral for prosecution until it finds probable cause that indirect Contempt occurred. So there's kind of an accusation within that question itself in that Judge Boasberg initially found that he. That there was a probable cause to hold the government in contempt. He did not specify who exactly in contempt, but just the government. Then there's the whole thing where it goes up to the D.C. circuit, you know, part. He. Eventually his original order to hold the government contempt gets vacated. So it's kind of starting back at square one. But it seems like maybe what the unspoken thing that is. That is making Rao and Walker kind of angry here is that they think that Boasberg is basically, by starting at square one, to do this, this finding a fact he's doing something he already found that there's probable cause for. Right. Like he's. He's using this. These. This process of, oh, I need more information before I find probable cause to hold the government in contempt, to make some additional factual finding when in fact, he doesn't, in their view, I think, need to go through that. And so they see it as a kind of delaying.
- [66:56]
Benjamin Wittes
I also think there's an element. I mean, they. They both. They took the view, or. I think this was Katz. Katz. And RAO took the view that there was no basis for his show cause order.
- [67:12]
Eric Columbus
And Katz took that view in terms of he didn't think that. He didn't think this could ever amount to a prosecution for contempt because the language was ambiguous. RAO took the view that it was inappropriate for Boasberg to use that contempt order to try to force the government to purge its contempt by returning the men.
- [67:38]
Benjamin Wittes
And so they. They both took the view in different, very different ways that Boseberg had crossed a line by proceeding with this contempt proceeding. And then Boasberg turns around and continues to proceed with the contempt proceeding. And I think part of what this is, is the D.C. circuit saying to a district judge, we told you to cut it out.
- [68:06]
Eric Columbus
And they. That's. That seemed to be the implicate. We discussed it at the time. It seemed like the implication of the. Rao and Katz's opinion, the first time it went up was stop now, please. Like, we're not necessarily telling you to stop, but, like, you need to stop. That was the tone of it. And then.
- [68:28]
Benjamin Wittes
And he didn't. And now they're upset at him. That seems to be the subtext of it.
- [68:35]
Molly Roberts
Yeah.
- [68:35]
Benjamin Wittes
All right.
- [68:36]
Molly Roberts
And.
- [68:36]
Eric Columbus
And so we'll see. We're waiting for the briefing. I. I think that, keep in mind, this could very well be the kind of thing where we get one order from this three judge panel and Then there's an en banc rehearing, and we get something completely different.
- [68:53]
Benjamin Wittes
And it could be something that the Supreme Court cares about, too, actually.
- [68:58]
Eric Columbus
Yeah, but it seems just genuine. Like, I mean, to make it such that a court can't investigate, can, you know, indirect contempt by holding an evidentiary hearing, it really just completely. It really hinders a court's ability to enforce in any meaningful way, especially, especially.
- [69:25]
Benjamin Wittes
When the contempt is in part a contempt on the part of the Justice Department to which they would want the matter referred if for possible prosecution. All right, speaking of Judge Gia Cobb, she ruled in favor of some Congress people who were seeking to overturn ICE limits on their access to detention facilities. Eric Columbus. And number one, what'd she do and how big a deal of it is it? And number two, what is its half life?
- [70:06]
Guest Legal Expert
So what she did was there's a. So to back up, there's an appro. There's a. What's known as an appropriations rider that says that in the DHS money used in the DHS appropriations bill cannot be used to require a member of Congress to provide prior notice of the intent to enter a facility, immigration facility, for the purposes of conducting oversight, and that no money can be used to prevent members of Congress from entering for the purpose of conducting oversight of immigration facilities. So basically, it's a little bit weird, perhaps, that members of Congress can go into an immigration facility at any time they want to conduct oversight. This is not the general rule. I mean, sometimes members of Congress kind of show up at the steps of a federal office building and saying they're not letting us in. They, we, we want the right to go in and let us know what's going on. And, you know, broadly speaking, whatever right a member of Congress has to conduct oversight and maybe to physically examine the executive branch doesn't mean they can just literally walk in the door at any moment. But this appropriations rider, this language and appropriations bill says that literally they can do that. So the, the, in the, in the immigration detention facility context. So the main battle here is whether or not a member of Congress has standing to. Standing at a cause of action to enforce this language in court. And the government says no. And Judge Cobb says yes, Basically, the major issue here is whether or not the Supreme Court has said in a case called Rains v. Byrd, that generally speaking, legislators do not have standing to enforce the law. Like if. Rather to challenge or to challenge a law. In that case, the members of Congress sued to overturn the Line Item Veto act, which they said diluted by giving The President the ability to strike out specific parts of legislation diluted and hinder their ability to make law themselves. And the court said, no, no, you're just a member of Congress. Your interest is no different from anyone else, really. You have institutional interest. You don't have a personal one. And government made the same argument here, pointing out correctly that the interest that is harmed belongs to each member of Congress, to all 535 members. But the court said, well, that may be true. That is true, but it is still a personal interest that they have, that they have the individual right to go in and conduct oversight, and that Congress has given to each and every one of them that ability. And in that case, it's kind of analogous to cases, some of which I worked on, in which, when I was working for the House officer general counsel, in which congressional committees had standing to, at least at the D.C. circuit level, to try to get, to try to enforce subpoenas that they had issued. Now, the question of whether this will hold up higher up, it's, it's a good question. I think that it could go either way at the, at the level of the higher courts. I, I don't know. I'm not sure how to what extent the government cares enough about this to press it all the way up to the Supreme Court and the extent which they were today, as of today, they were complying with it. Dan Goldman walked into facilities in New York unimpeded, but I, I don't know to what extent which the government really cares enough about it to take it all the way up. Interestingly, the government could have pressed a harder constitutional argument saying that the, the rider itself is unconstitutional because it really kind of makes it harder for the government to do its job and impedes the executive's power to just get things done. But they seem to have pressed that. I've not read the briefs, but they seem to have pressed that only to a minor extent.
- [74:41]
Benjamin Wittes
All right. Meanwhile, again leaving the coast, let us not be accused of Coastal Elite bias on Lawfare Live. This week, the 6th Circuit has upheld federal law criminalizing firearms possession by immigrants who are not here lawfully. I would not have known this to be a controversial point. Honestly, Eric, it seems to me if you're, if you're not here lawfully, that seems to be an easy sell, at least to me as an intuitive constitutional matter, that you don't have Second Amendment rights to carry, bear firearms or own them. What am I missing here? Why is this even a real question?
- [75:37]
Guest Legal Expert
So it's a real question you're right. Everything you said I agree with. The question though is how you get to that conclusion. And there was a, the panel's conclusion was, was unanimous, but they got there in, in different ways. The majority, consisting of two judges appointed by Obama and Biden, basically looked at it. So. Sorry, let me back up. What the Supreme Court has said in in case called Bruin is that there's a kind of a, a two step method to determining Second Amendment claims. And the first step is determining whether the Second Amendment's plain text covers the, what the, the defendant did. And if so, then the Second Amendment presumptively protects that conduct and the government then must, quote, justify its regulation by demonstrating that it's consistent with the nation's historical tradition of firearm regulation. So what the majority did is uphold the statute. At the second step. The court said, well, if you read it, if you read the Second Amendment which says a well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. And they said, well, that seems to cover what he did, but let's look and see if there's a real tradition of, of historical tradition of regulating firearms by regulating people who are, are in some sense not here lawfully.
- [77:19]
Benjamin Wittes
And I mean like, you know, if you think about, we didn't recognize Pancho Villa's right to bear arms.
- [77:27]
Lauren Voss
We.
- [77:27]
Guest Legal Expert
Sorry, we recognized his own right.
- [77:29]
Benjamin Wittes
We didn't recognize.
- [77:30]
Guest Legal Expert
Yeah, exactly.
- [77:31]
Benjamin Wittes
We didn't say, well, you know, he's raiding over the border. Yeah, it's totally illegal, but you know, we got this Second Amendment. He's like, what's even the argument that.
- [77:44]
Lauren Voss
Exactly.
- [77:44]
Guest Legal Expert
Well, exactly. And again, what's interesting here is not the result, but the split among the judges and how to, and how to get there. So I just described what the majority did. What the concurring judge, Judge Thapar said was very different. Judge Thapar as interesting that he is one of the maybe the half dozen or so people who are considered strong contenders for the next Supreme Court vacancy. And Judge Rao is another one of them. And basically, I think presumptively anything that they do should be considered as an audition for the Supreme Court. And so it's interesting to see the approaches that they take with that in mind. And what he said was that, okay, he said, whoa, whoa, whoa, this is an even easier case than the majority makes it out to be. Because all I have to do is I read the Second Amendment which protects the right of the people to bear arms. And I need. And I conclude that illegal immigrants, people who are not lawfully present here, are not part of, quote, the people. And so that is arguable, and some circuits have come to that conclusion. But he seems to go even further and says, you know what? Non citizens are not part of the people for the purposes of the Second Amendment. And so it seems that he would basically say that the Second Amendment does not extend to anyone who is not a citizen, so it would not apply to lawful permanent residents. And then he goes one step even beyond that by analyzing the other constitutional amendments that reference the people, which is the first and Fourth Amendment, and suggesting that those rights do not apply to a legal person unlawfully present and quite possibly might not extend to even people who are lawfully present, but who are not citizens. And he goes, he basically butts up in the First Amendment context, basically suggests that the Supreme Court has been misreading First Amendment precedent and misreading the original meaning of the public meaning of the First Amendment going back a ways. And this is an issue that is going to come up and we'll hit the Supreme Court, I would guess, at some point in the next couple of years regarding the First Amendment rights of people who are not citizens.
- [80:08]
Benjamin Wittes
Yeah, I mean, I gotta say that ship sailed a long time ago. And. I mean, the First Amendment and the Second Amendment are pretty different from one another. One is framed as an affirmative right of the people. The other is framed as a restriction on Congress. Right. And I do think it's a little bit glib to say, well, illegal immigrants are not part of the people. And by the way, non citizens are not part of the people, therefore all of First Amendment law vis a vis non citizens is wrong.
- [80:54]
Molly Roberts
Yeah.
- [80:54]
Guest Legal Expert
I mean, he's suggesting that at least some of it is wrong and possibly a lot of it. I mean, as we've seen, a lot of ships that have already sailed have been kind of coming back to harbor over the past year or so.
- [81:05]
Molly Roberts
Right.
- [81:06]
Guest Legal Expert
So, but I think he's basically appealing to, you know, the great mentioners and whoever will have the ear of President Trump in trying to decide who the next justice nomination will be.
- [81:18]
Benjamin Wittes
All right, so we, I want to detour a little bit here for just a second because last week we had an audience member question about whether it was possible or to withdraw for an alien to obtain a withholding of removal without also getting asylum. And I believe we now have an answer to that question.
- [81:46]
Guest Legal Expert
Yes, well, to be precise, it was. It was you, Ben, who asked me that question. You asked me whether, you know, we were talking about, I think Pablo Pablo and I he had he had withholding of removal from Guatemala. And you said if he's got withholding of removal, if he can't send it back to his home country, then why why does he just have asylum?
- [82:07]
Benjamin Wittes
And I thought your answer at the time was that the withholding of removal is country specific, whereas asylum is a sort of more general status.
- [82:21]
Guest Legal Expert
It is, it is. But the I got a note from a former colleague of mine named Scott Shucart who I worked with at DHS and who after he was at the Civil Rights and Civil Liberties Office of DHS for a long time and then subsequently served as a political appointee in the Biden administration in ice. And you know, immigration law is is terrifyingly complex. He is an expert. He pointed out that there are that asylum has a lot of kind of statutory provisions that that a person needs to comply with and that typically one needs to is ineligible for if you wait more than one year to file for asylum. And he didn't know what was the precise issue in that case. But that that's one possibility. Another possibility is that they have a con they've been convicted previously that may disqualify them from obtaining asylum or whether they they may have been previously removed which also may have have disqualified them and was in there. Although third party third country removal is an option now. It was not is not something that was done in a that frequently back in the day. And this is an issue also with with in the Abigail Garcia case who he has he has withholding of of removal from El Salvador, but he does not have an asylum claim or does not have asylum obviously, which is why they're they are trying to you know, kick him out to to various places around the world. And I think and Scott pointed out that he that the issue with with Abigail Garcia was probably he waited too long to file for asylum and he is now trying to Abigail Garcia is now trying to get permission to file a subsequent asylum claim and do which is a loophole due to other very strange aspects of the Immigration Nationality act, which is I know a little bit about. I know enough about it in order just to kind of make mistakes when I talk about it. But hopefully what I said was mostly correct and I'm sure Scott will catch me if it wasn't.
- [84:36]
Benjamin Wittes
Excellent. Thank you. Anna Bauer, I have a question for you. Who is the administrator of Doge?
- [84:45]
Eric Columbus
Well Ben, we still don't know but we are getting so much closer to finding out thanks to to the D.C. circuit. I know it's been a while since we've done a WTOed segment. So just to refresh memories, there is a case that was filed in D.C. district court that in which CREW is arguing that DOGE is subject to the FOIA and trying to get documents related to that. And as a part of that litigation, this question arose as to whether DOGE is an agency under the meaning of that term pursuant to foia. So there was discovery that was ordered on this question that included a potential deposition of Amy Gleason and a number of different interrogatories in which DOGE was supposed to respond with various recommendations that it had made to federal agencies that went up to the Supreme Court. And Supreme Court said, we don't think that this is appropriate to require that these recommendations be disclosed, because whether something is an agency under FOIA doesn't depend on its power to persuade. They then sent it back down to the D.C. circuit Court of Appeals to decide how. What else might need to be cut out of the District Court's order for discovery. The D.C. court of Appeals then said, basically, like, you can have all the things you want except for a little bit, and these interrogatories about the recommendations needs to be be cut out. And Doge challenged that and sought an en banc rehearing. Now, the D.C. court of Appeals has said, sorry, we're not going to rehear it. And. And so it seems that we might very well get an Amy Gleason deposition and a number of. Of other things related to the discovery in this matter. But discovery is currently stayed for 90 days in case the government wants to appeal up to the Supreme Court. So we will see, but for now, I'll just leave it at it. Looks like we could actually get some insight into who is the administrator of.
- [87:20]
Benjamin Wittes
Doge at some point after Doge has ceased to exist.
- [87:24]
Eric Columbus
After Doge has maybe ceased to exist, although it's unclear if it has.
- [87:31]
Lauren Voss
And.
- [87:32]
Eric Columbus
And it's unclear if Amy Gleason is even still the purported administrator of Doge.
- [87:39]
Benjamin Wittes
Which may or may not exist.
- [87:41]
Eric Columbus
Which may or may not exist.
- [87:42]
Benjamin Wittes
Amy Gleason exists.
- [87:45]
Eric Columbus
Yeah, I think Amy Gleason does exist. And I will note that on her most recent LinkedIn update, when the news reports came out that Doge is dead, Amy Gleason updated and said, I'm alive.
- [88:01]
Benjamin Wittes
I loved that for her. All right. Meanwhile, Judge Richard Leon has denied a temporary restraining order preventing the construction of the White House ballroom. Molly Reynolds. Molly Reynolds. Molly Roberts. See, I'm getting everybody's names wrong tonight. It's not even just judges.
- [88:28]
Molly Roberts
The chat was talking earlier about how the Molly R's are confusing. So.
- [88:32]
Benjamin Wittes
Well, the Molly ours are confused. I mean, that is just a true fact. But and I've been saying Molly Reynolds's name on podcasts much longer than I've been saying your name. And so I think that one's more forgivable than the judge confusion. That said, Judge Richard Leon, whose name I'm getting correctly, did not issue a tro. So are we going to have a stage sprouting of a giant ballroom where the East Wing used to be?
- [89:06]
Molly Roberts
Well, I can't answer that question definitively. I can say that what the National Trust for Historic Preservation was suing over was the construction that's going on now and future construction. But the construction that's going on now is largely below ground construction. So essentially what the judge said here was there's no irreparable harm that's going to happen if the government continues doing the below ground construction for now. Which is partly because the judge interpreted the relevant laws fairly similar to how the White House seemed to interpret them when it said, we believe these laws only cover vertical build. We don't believe they cover raising of the structure. But underground construction obviously falls kind of somewhere in between there. And the government had also said that there were national security reasons, and it did a classified filing to the court about why it had to continue, at least for now, the underground construction, because there is, it has been publicly known for decades. I believe that there's a presidential emergency operations center located beneath the old East Wing. So what we know is that they can continue doing their below ground construction.
- [90:21]
Benjamin Wittes
Right now, which may be a good reason not to destroy the East.
- [90:25]
Molly Roberts
Not to destroy the East Wing.
- [90:26]
Benjamin Wittes
Yeah, maybe, maybe they weren't too worried.
- [90:27]
Molly Roberts
About that when they were getting rid of it.
- [90:29]
Benjamin Wittes
Now they're let's leave that aside.
- [90:31]
Molly Roberts
Yeah, well, yes, exactly. And so the judge said that he would hold the government to its promise that it wasn't going to begin any above ground construction until it submitted the plans to the relevant committees. But one of the committees Trump has fired all the members of and not replace them. And the other, he has replaced most of them with allies to him, including the White House staff secretary who's running it. That's the National Capital Planning Commission. So we'll see. The government has until the end of the month to submit the plans. Of course, the as the plaintiffs argued, the plans that the government initially submitted anywhere have changed. And court filings here also revealed that the ballroom is getting Bigger and bigger all the time. And when Trump thanked the judge for his order, he said the ballroom would cost 400 million, which I believe is about 100 million more than the last number that we'd heard.
- [91:26]
Benjamin Wittes
All right. Speaking of the East Wing, the debris from the East Wing I learned today over lunch with a learned source, has been dumped on a golf course.
- [91:45]
Molly Roberts
Your learned sources, right? Well, I'm saying that I'm right and I am the debris from the East Wing has been dumped on the East Potomac Golf Course on Haines Point. And this is an interesting subject for a number of reasons. One of the reasons is that Trump wants to take over DC's municipal golf courses. Particularly, he's interested in the East Potomac property and he's been explicit about this. He believes it can be a championship golf course, a tournament golf course, and he wants to renovate it accordingly, kind of in the style of the Trump golf courses, which would presumably make it a lot accessible to the public. But it's also interesting because of this debris. The White House, when it demolished the East Wing, alarmed a lot of asbestos safety advocates because the building was built around the time that asbestos was widely used in building materials. And it seemed that the White House might have dodged some of the necessary processes when asked about it. The White House said, we've done this full remediation and abatement and any hazardous materials were removed. But they didn't say whether there were hazardous materials and they didn't say where they were removed to. And it's possible that where they got removed to some of them at least, was this golf course.
- [93:02]
Eric Columbus
So there's a pile of dirt there.
- [93:03]
Benjamin Wittes
Now there's a giant pile of debris on top of the East Potomac Golf Course contains large quantities of asbestos.
- [93:13]
Molly Roberts
It's possible, we don't know. National Lynx Trust, which is the nonprofit that is in the process, according to a 50 year lease that it got from the Department of Interior in 2020 of revitalizing these golf courses for public use, said that it hasn't seen the test results yet. It said that to the Washington Post, but that the National Park Service had assured it that everything was fine, basically. And there have been no further answers as to whether it does or does not contain asbestos.
- [93:43]
Lauren Voss
All right.
- [93:43]
Benjamin Wittes
One last building question that does not involve asbestos, but is arguably even weirder than the asbestos question. Are we going to paint the Old Executive Office Building white? And why?
- [94:01]
Molly Roberts
There's a lawsuit about this one, too. So. And that one's from the D.C. preservation League and the law firm Cultural Heritage Partners. So, yeah, Trump wants to paint it white. He thinks it'll look great. Laura Ingraham even asked whether it would look like a big white blob. So not even people generally friendly to the Trump administration policies are skeptical of this one. The lawsuit is over. Similar stuff to all the lawsuits about the changes Trump is making to D.C. which is basically, did you go through the appropriate processes, particularly as they regard historic buildings? So that is still going on. The government said it wasn't going to do anything for a number of months. So the case is still pending and it'll take a while for us to hear the arguments and learn what's going to happen. But in the most recent hearing, there was a declaration from a woman named Mina Wright, who worked for the GSA for many years doing preservation related stuff. And she said that she had learned that the administration also is trying to demolish four of the buildings that it indicated it wanted to get rid of in order to conform with Trump's vision for classical D.C. there are four brutalist buildings downtown. She said that the White House is doing an end run around the typical GSA process for that, too. So it's just another example of kind of not following the law when you're trying to get rid of buildings. Don't know whether the answer of what would be better for DC from a policy perspective is whether the building should be removed or not, or what the outcome of the appropriate processes would be. There are some important, historically important, artistically important New Deal murals in some of them. So the question is going to be whether you can preserve those. But the White House doesn't want that question asked. It wants to, it seems, offload these buildings to developers. And developers won't be interested in doing that if they can't easily demolish the buildings. So that's what advocates believe is happening here.
- [96:03]
Benjamin Wittes
Well, I just want to say if you're gonna destroy any of these buildings and there's lots of asbestos, don't just paint it white because that will not seal the asbestos. You gotta do full asbestos remediation. And that generally does not mean dumping it on a golf course. All right, Eric, you are our contestant this week on everybody's favorite game show who wants to deconstruct a federal agency. And this week's agency is the cfpb. And our contestant, you are our commentary contestant and our live contestant in the Dismantling is the D.C. circuit. How are they doing with dismantling the CFPB?
- [96:56]
Guest Legal Expert
You may recall a while back Elon Musk tweeting Delete cfpb, making it quite clear where what he thought of the issue and what a district court had ruled in favor of. I believe it was a union plaintiff that was challenging what was going on with CFPB and the union basically is a dispute over substance and shadows and that the administration has kind of denied that they are eliminating cfpb, but they're basically hollowing it out in a way that makes quite clear what they are doing. And the union plaintiff said this violates the law. The district court agreed. The D.C. circuit, the administration lucked out with, as it so often has, with a conservative majority panel that basically accepted the more formal arguments of the administration that there was in fact, no policy, no formal plan to dismantle the agency, despite what the district court had said. This is kind of an issue that has come up in other contexts as well, such as in the context of battles over the deport, attempts to deport Palestinian activists who are lawfully present in the United States. That the administration has a policy of targeting and trying to remove such people. That's something that goes beyond individual cases. And it goes. And the question then becomes to what extent you can litigate over that policy. The District today or Maybe yesterday, the D.C. circuit decided to grant en Blanc review here, suggesting either that they think this is something where they can win, it will not be reversed by this Supreme Court, or that there is some value in, at the very least delaying the death of the CFPB for some time. I'm sure the DC Circuit is somewhat strategic in which cases it decides to take en banc where the Supreme Court is more aligned with the panel than with them.
- [99:20]
Benjamin Wittes
Right. It at least buys time. All right. Finally, while we have been talking, the Justice Department has released the Epstein files, or so it was required to do by law. Eric, you have done a crash course over the last hour when not speaking learnedly about a variety of subjects about the release. What do we know at this stage? Has the Justice Department fully complied with the law that the President signed, or are we now going to have the next stage of the Epstein files saga?
- [100:05]
Guest Legal Expert
They have not fully complied. And Todd Blanche, deputy attorney General, said earlier today that they would not fully comply by the end of the day, that it would, it would take a lot of time, or he said rather, at the very least for next time, two weeks, they would still be uploading files. This is, I, I should say, far from the first time Congress has mandated the Department of Justice to meet a deadline or to produce documents, and that deadline has not been met. And this this is, of course, a far more high profile instance of that spot check.
- [100:43]
Benjamin Wittes
And then to be fair to the administration, that is not a. A creature of this administration, that is a creature of sometimes administrations in general treat congressional deadlines as advisory.
- [100:59]
Lauren Voss
Yes.
- [101:00]
Benjamin Wittes
Or aspirational.
- [101:02]
Guest Legal Expert
Well said. Yes. And it looks that these files are largely, perhaps exclusively photographs. So far, some of the materials are materials that people have already seen, but some are not. There seem to be a decent number or notable number of photographs involving Bill Clinton, which just happens to be aligning with a Republican talking point that the embrace of Epstein was bipartisan. Of course, Bill Clinton, while once having been a president, is not currently the president. And his fraternization with Epstein followed his presidency. There is a search box that appears either appears not to work. If you type in like Trump or various names, nothing pops out. That may be, though, because there is not much in the way of text in documents they've released. The documents, though, are supposed to be searchable. They are not searchable yet. For the files that do have text, the department has said that they're going to work on it. I've not there. I'm not seeing anything incriminating in either the literal sense or in the politically figurative sense so far, but there are thousands and thousands of files and reports are going through them and we will find out in the coming days whether there is anything there. It's obviously very difficult to know what is being withheld without knowing the universe of documents and what, if anything, would be interesting in future tranches.
- [102:50]
Benjamin Wittes
All right, thank you, Eric. All right, we have two audience questions that we're going to go through. And I just want to say, if you are a member of the audience and you didn't have the opportunity to ask a question today, that is because you are not yet a material supporter of Lawfare, and if you were a material supporter of Lawfare, you would be in our Riverside studio right now, where you have the opportunity to do what Josh Knight did, which is leave the following question for the panel, which he asks us to read and he acknowledges is off topic, but he says back to the question of Trump or Obama or somebody else serving more than two terms as president. Would a contract between Donald J. Trump and Melania Trump specifying that she would become president, which she is constitutionally ineligible to do, by the way, but would take no official action if elected to Donald J. Trump's virtual third term and fourth terms, that this would that she would take no action not approved by Donald J. Trump. Would such a contract be binding? Josh writes I know that sentence is hard to read, but you get the idea. No, we did just fine with it. Of course, Melania would then be term limited. But Don Jr. And so the answer to this question is, I believe, and everybody who might disagree with me should correct me on this is it would absolutely not be binding finding. And the reason is that the Constitution specifies who is eligible to be president and who takes the oath of office. And that is the supreme law of the land, certainly supreme over any state law under which such contract might be considered executed, but also, certainly trumps, no pun intended, any mere contract that might purport to tie the hands of the president. Right. Congress can't tie the hands of the president in an. In the irreducible Article 2 core of his power, and certainly a mere contract with somebody else. In this case, I should be using female pronoun since we're talking about Melania Trump. Her irreducible core of her power is not delegable by mere contract to somebody else or. Or diminishable. So I'm curious, do any of the four of you disagree with that?
- [105:41]
Guest Legal Expert
It sounds right to me. Even as a matter of state law, states usually do not enforce contracts that are viewed as contrary to public policy.
- [105:50]
Benjamin Wittes
Right. Much less to constitutional law.
- [105:52]
Guest Legal Expert
But that would be coming to play here.
- [105:54]
Benjamin Wittes
All right. Now, if you were a material supporter of lawfare, you would also be able to do what the anonymous attendee did and notice that the anonymous attendee submitted this question anonymously. And we respect that, too. Does Judge Boasberg need to espress, establish whom exactly to refer for contempt? The government isn't specific enough, is it, Anna Bauer?
- [106:24]
Eric Columbus
Well, no, because the government can't be prosecuted for contempt. And that is what he's doing here is referring someone for criminal contempt. What he did do was to. Was to say in that initial order that he wanted the government to identify the people who were the relevant decision makers.
- [106:48]
Benjamin Wittes
And.
- [106:48]
Eric Columbus
And then when it subsequently came back to him, he ordered these declarations be filed. And in those declarations, the government didn't say basically anything at all, but they did say it was Kristi Noem who made the decision. So now it's kind of like Judge Boasberg feels like he doesn't have enough information to still to make a finding regarding the willful element of it, because he doesn't have anything other than the government saying, you know, the person who made this decision was gnome, and she did it pursuant to privilege. Legal advice that we're not going to reveal to you. So, but yeah, he he would need to actually identify a person to refer for criminal contempt.
- [107:42]
Benjamin Wittes
We are going to leave it there. Anna Bower, Molly Roberts, Lauren Voss and Eric Columbus, fresh off his crash course in the latest tranche of the Epstein files. Thank you for joining us today and thank you all for joining this show. All year it has, we have had like 52 episodes of it. I think we're going to we're 51. We're going to skip next week. We may or may not be back the following week. That's going to be a week. A call that we make that week whether there will be a show on January 2nd. We will certainly be back the following week. I know it is going to be painful. Some of you are going to have a hard time with no show for this long and I just want to say it's going to be okay. We're going to be back and we're going to play another round of who Wants to Dismantle a Federal Agency? We're going to find out who the administrator of DOGE is. We're going to find out what to do with a giant pile of asbestos. It's all going to happen, folks. It's going to be okay. Hang in there. This podcast is part of Lawfare's live stream series, Lawfare Live the Trials of the Trump Administration. Administration. Subscribe to Lawfare's YouTube channel to receive an alert the next time we go live. The Lawfare podcast is produced in cooperation with the Brookings Institution. You can get ad free versions. You can get ad free versions of this and other lawfare podcasts by becoming a Lawfare material supporter at our website, lawfare media.org support. You'll also get access to special events and other content available only to our supporters. The podcast is edited by Goat Rodeo and our audio engineer this episode was Anna Hickey of Lawfare. Our theme music is performed by Alibi Music. As always, thanks for listening.
- [110:03]
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