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- [00:01]
Troy Edwards
The Electronic Communications Privacy act turns 40 this year and it's showing its age. On Friday, March 6, Lawfare and Georgetown Law are bringing together leading scholars, practitioners and former government officials for installing updates to ecpa, a half day event on what's broken with the statute and how to fix it. The event is free and open to the public in person and online. Visit lawfaremedia.org ecpaevent that's lawfairmedia.org ecpaevent for details and to register
- [00:36]
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- [01:35]
Peter Harrell
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- [02:14]
Benjamin Wittes
It is Friday, February 20, 2026. It is 4:00pm Washington time, and you are watching Lawfare Live. I'm Benjamin Wittes, Editor in Chief of Lawfare, and I am here with lawfare Senior Editors Roger Parloff and Eric Columbus, lawfare Public Service Fellow Troy Edwards, Visiting Scholar at Georgetown, and LawFair contributing editor Peter Harrell. And we are expecting Lawf Editors Molly Roberts and Anna Bauer presently. Look, folks, we got a lot on the agenda today, but it's a big Day at the Supreme Court, a 63 vote. They have struck down the President's tariff initiative under ipa. Peter, I can't think of anybody I would rather talk tariffs with on a day like this. Welcome back to lawfare Live.
- [03:23]
Peter Harrell
It's great to be back on. And, you know, certainly the decision those of us in the trade law world have been waiting for ever since it was argued in November.
- [03:32]
Benjamin Wittes
Right. And it's more or less, I think, the decision that you would have predicted if you had defied the rules, that you can't predict decisions based on oral arguments. Right. Like, like it's, it's basically if you came out of oral Argum and said, well, Kavanaugh looks like a no. And, and, but boy, Amy Coney Barrett and, and, and Neil Gorsuch look pretty skeptical. It's basically the opinion you would have predicted from the oral argument. Right?
- [04:14]
Peter Harrell
Yeah. So it is certainly the breakdown injustices is what you would have prepared predicted from oral argument. You know, you heard the Chief justice, you heard Justice Barrett and you heard Justice Gorsuch all express a fair amount of skepticism of these AIPA tariffs during oral argument. And then you also, you know, you're Thomas Alito Kavanaugh more in favor of the tariff. So, and then obviously you had had Justice Kagan and Justice Sotomayor and Justice Jackson all quite skeptical of AIPA tariff. So the breakdown in the, the court struck me as pretty much, you know, if you were forced to give a prediction coming out of oral argument back in November, what you would have said, the one thing, you know, it was a pretty conclusive ruling. I mean, the ruling, I mean, it's, you know, concurring opinions and we can unpack all of that. But the ruling is quite definitive of no IEPA tariffs, you know, no IPA tariffs for the trade deficit, no IPA tariffs over Fentanyl, no IPA tariffs because Trump's mad at Europe over Greenland. You know, just IPA as a matter of the construction of the statute does not authorize tariffs. Quite definitive. There was no, like, SOP to the President. I mean, refund. There'll be questions about how this affects refunds and all that. But one thing that I think some of us had wondered a little bit coming out of the argument was would Roberts try to give some sort of little SOP of maybe in extraordinary cases you could use IPA tariffs or whatnot. And there's just none of that as it was a, you know, very clean and just IPA is a matter of
- [05:50]
Benjamin Wittes
decisive, doesn't have tariffs. Yeah. So let's talk through the Chief Justice's logic and which parts of it has what's majority, what majority on it. His basic ruling, as I understand it, is that the words regulate and does not envelop the word to tax. And by the way, no president has ever used it this way before. What's, what's the meat of the ruling beyond that? Yeah.
- [06:27]
Peter Harrell
So just a, you know, step back, Ben, as you, as you say, like, you know, IPA this 1977 emergency power statute, never use the word tariff or duty or, you know, these kind of things that clearly give a, a tariff power which are used in other statutes, which we'll come to because it's relevant to the majority opinion. You know, instead, the government's theory is that iipa, which lets the President, in a time of a national emergency, regulate importation or exportation of any property. The government's argument was, well, a tariff is a form of a regulation on the importation of property. And all of the arguments against the, the, the IIPA tariffs fundamentally boiled down to, you know, a tariff is not a regulation of the importation of property.
- [07:20]
Roger Parloff
Right.
- [07:20]
Peter Harrell
That was a debate. And as you say, the, both, the majority, the, the Chief justice opinion and the concurring opinion found that this term regulate, dot, dot, dot, importation or exportation of property does not include a power to tariff. They get there in slightly different ways. The Chief justice and the concurring opinion, they all kind of agree that the natural reading of this phrase, of the phrase regulate and, you know, go through some dictionary definitions, does not seem to contain a power to, to, to impose a tariff or other, you know, kind of, kind of tax. Chief justice goes through some history and the importance of, you know, taxation being a congressional authority and kind of why we got there on that, where I saw the biggest difference between the majority's opinion and there's a piece of the, the Chief justice opinion that the liberal Justices did not join as really whether you should use. A Chief justice did, for a part of his ruling, rely on the major questions doctrine, talked about the major questions doctrine as a way to get to this outcome. And obviously liberal Justices both have been skeptical and don't really believe in the major questions doctrine and didn't think it was necessary to reach this, this outcome.
- [08:47]
Benjamin Wittes
And, and what is the. So the divide among the six is limited to the major questions question or is there a larger source of friction between them?
- [09:06]
Peter Harrell
I mean, other. Others should chime in as well. And I think we're all still digesting every detail. I thought it was quite interesting. You know, it's not just a divide between the six.
- [09:16]
Benjamin Wittes
Right.
- [09:16]
Peter Harrell
So you have a opinion by the Chief Justice. You have a concurrence by the three liberal justices. You have a concurrence. My justice course, Sotomayor. Oh, it was, it was drafted by Kagan, joined by Sotomayor and Jackson. You have a concurrence by Gorsuch, which is like a very long concurrence about his views on the major questions doctrine, arguing with both some of the justices in the majority and some of the dissenting justices about the major questions to doctrine. You have a concurrence by Barrett kind of arguing with Gorsuch on the major questions doctrine. And then you have a concurrence by Jackson separate from the primary concurring opinion by Kagan, where Jackson is trying to argue, you know, what this court has not in recent years paid is sort of pivoted away from legislative history. And you can see her trying to say, you know what, we should actually be paying attention to legislative history again. So there's actually like a bunch of interesting doctrinal debates going on through this opinion and interpretive debates to do with
- [10:35]
Benjamin Wittes
whether I came to the same.
- [10:37]
Peter Harrell
But they didn't really like they all arrived at the same place.
- [10:40]
Benjamin Wittes
Right. I mean, you have a lot of threads of argument there, but none of them involves a different position about whether AIPA does or does not authorize tariffs.
- [10:54]
Peter Harrell
Correct. Or. Exactly. And that was quite striking. And you can really see, I mean, I read it and, you know, others should chime in because I come at this from the trade law perspective and the IPA perspective, not from the kind of constitutional law perspective, but it read to me like there, you know, probably was fairly quick agreement among the justices back in November that, you know, these IPA tariffs are nonsense and it's not, you know, authorized. But then the justices, several justice had a lot of things they wanted to talk about on major questions doctrine, on, you know, statutory interpretation, on how to use legislative history and things like that.
- [11:35]
Benjamin Wittes
All right, so. So let's talk a little bit about the administration's response. How much of the tariff program can they simply replicate using other authorities?
- [11:51]
Peter Harrell
Yeah. So let's just, you know, start with. Okay, so what is at issue here? Obviously, it's the IPA tariffs. I think if you talk to the economists, they would say of the tariffs Trump has imposed since February of last year, about 70% of them by, like, dollars collected. 70% are IPA tariffs. The other 30% are what are called Section 232 tariffs. These are tariffs imposed under Section 232 of the Trade act of 1962 different statute. Those are the product tariffs. Right. So when Trump says we have done 50% tariffs on steel or we have done, I think it's 25% tariffs on timber. Those are 230, not an issue in this case. So he's lost 70% of his tariff power in this, in this case. And the question is, how much can he reconstruct? And I think, Ben, there are kind of two ways of looking at that. I think he can use these other statutes and we can unpack them. If his goal is to say, you know, I want to have 10 to 15% tariffs on our trading partners, like, you know, I want a 10 or 15% tariff on Europe, I want a 10 or 15% tariff On Japan. I think he can recreate well over half of that under some of these other statutes. He's already announced 122. We can unpack that. Already announced he's planning 301s. So I think he can recreate. You know, we're making up numbers here, 60% of those kinds of tariffs under other statutes. What's going to be hard for him is there's really no good way under these other statutes to decide on March 1 that if Denmark doesn't give us Greenland within a week, they're going to be 20% tariffs on Greenland. Like these other statutes just don't have either the kind of rapidity for him to make these sort of aggressive geopolitical tariff threats, nor will they necessarily sustain the kind of very high rates, 20%, 30%, 50%, that he likes to threaten when he kind of is going out there making these tariff threats.
- [14:12]
Benjamin Wittes
So there's not like the ability to use tariff by whim as, as policy in the same way there, there is
- [14:24]
Peter Harrell
clearly not legally the same ability to do tariff by whim. Now, obviously, this is Donald Trump. You know, I can't sit here and say that he will not, you know, do some tariff by whim under a statute where it is not allowed, and it will then take six or 12 months of litigation to get rid of that tariff. Like this is, you know, again, this is Donald Trump. But it is very clear that as a legal matter, where the courts will interpret it, he can't quite do it by whim the way he has with this.
- [14:54]
Benjamin Wittes
All right, so let's talk about the dissent. In addition to the proliferation of, of concurring opinions and subtextual debate about the major questions doctrine and about the use of legislative history, there are three justices who just don't buy the premise here. I. What did, what do we make of the dissents?
- [15:23]
Peter Harrell
Well, you know, the dissents I think are. And you have two, you have two dissents. Both of them are. I mean, Thomas kind of wanted to go on separately with some originalist views of, of separation of powers. The challenge for the dissenters here is that all three of the dissenters have previously embraced fairly robust interpretations of both the major questions doctrine and the non delegation doctrine. Right. So they have to not only conclude that sort of, you know, a textual reading of regulate importation of property includes a tariff power, they then have to sort of explain why neither the major questions doctrine nor the non delegation doctrine would be applicable here to limit the President's tariff power. And you essentially see two different arguments there on the major questions doctrine,
- [16:37]
Molly Roberts
you
- [16:37]
Peter Harrell
know, one of which is maybe there is a foreign affairs exception to the major questions doctrine. And I think we, you know, sort of, sort of that is one way that you would, you would get out of it. And then, you know, as I say, we saw on the, the non delegation doctrine kind of a view that because, and this, I'll close in just a moment because this is an area where the President does have, in the dissenting Justice's view, some inherent authorities, some foreign policy powers. And then Thomas has his own sort of, sort of old, you know, look at the history view that the non delegation doctrine doesn't apply. I will say, you know, it's not that explicit in the opinion or it's like the divide is not argued this way. But I do think one of the through lines in the majority opinion and the concurrent opinion and then against the dissent is that the Justices in the majority did fundamentally see this case as about the taxing power, which is very clearly the pres. You know, the congressional power, at least in PeaceTime, in Article 1. And the dissenting Justices, I think, do see this more as a foreign policy, you know, or sort of a hybrid kind of power. And that kind of conception of are we talking about taxation? Are we talking about foreign policy? I do think was a backdrop throughout all of the opinions.
- [18:16]
Benjamin Wittes
Let's talk about the President's reaction. I understand he gave a temperate and intellectually serious press conference this afternoon.
- [18:30]
Peter Harrell
Yeah, I mean, so the President, you know, in his usual temperate self, you know, argued that he was betrayed by several of the Justices that the Justices seem to be in hock to foreign powers, you know, and the kind of usual temperate stuff. He also argued that he has personally read all of the statutes involved and, you know, thinks he understands the law and it was very clear to him. I'm sure he has me skeptical. He's actually read all of these statutes, but he said he's read all the trade statutes. So he was in his usual sort of temperate self. He did. Also he got asked a question about whether the Justices were still invited to the State of the Union on Tuesday. He did say that they were still barely invited and then at least three of them are definitely invited. So, you know, we had usual sorts of things we might have expected here, but on a more serious note. So he talked about a couple of different things in his press conference beyond his kind of denunciations here of the Court's ruling. The first was he emphasized the fact that AIPA still gives him the authority to do things like impose trade embargoes. And some of this was he was, you know, sort of how could it, if I can impose an embargo, how could I not have a tariff? And isn't it bizarre that I could impose an embargo but I can't collect $1? He kept saying, I can't collect $1, but I could destroy a country. So he made very clear he continues to view IIPA as a potentially powerful tool, even if they've taken away the revenue collecting part of this. And then he talked about how he has other authorities to reimpose many of the tariffs that he has imposed. He announced plans to invoke one of those as of today. He said it would come into Force in three days at Section 122, the Trade Expansion act in 1974. Said he would be imposing a 10% tariff under that. Under the statute, that 10% tariff can last for 150 days. And then Ambassador Greer said they're also working on some 301 investigations. These are an authority to impose tariffs under Section 301 of the Trade Expansion act of 1974. Where you find a foreign country has engaged in unfair trade practice, those tend to take some time to come into force. So I think there is as sort of. We, many of us have thought about looking at this over the last couple of months. He sort of seems to be seeing 122 as the gap filler to keep tariffs in place, you know, through July. 150 days would be mid July sometimes.
- [21:24]
Benjamin Wittes
What is 122?
- [21:26]
Peter Harrell
So 122 lets the president impose up to 15% tariffs. He chose 10, not 15. Says he chose 10 for up to 150 days. If there is a balance of payments issue in the United States And A, the standard of is there a balance of payments issue is defined in the statute is pretty liberal. And B, I, it's never been used, it's never been litigated. I wouldn't be surprised if the courts find that the President's determination there is kind of a non reviewable question or reviewable by some exceptionally differential standard. So I think he's going to get away getaways. I think the courts are going to uphold 150 days of 122 tariffs.
- [22:09]
Benjamin Wittes
But 150 days is, I mean, that's a hell of a rollback from. I have a unreviewable tariff power in my pocket that I can do whatever I want with, you know, 150%. I mean, he, you know, and it's, and it's indefinite.
- [22:29]
Peter Harrell
Yeah, I look, I mean, I think Trump had gotten used to having, you know, he really enjoyed having what I think of as kind of a magic tariff sharpie where he could, you know, sign a piece of paper with a sharpie and there were tariffs like he loves it. Like that's what he loves. And none of these other statutes are going to give him that, even if they will let him continue to sort of take, you know, U.S. tariff rates from 2 1/2% where they were maybe when he got inaugurated to, you know, call it 10 or 12%.
- [23:02]
Benjamin Wittes
All right, so we have some questions from the audience on tariffs. We're going to do audience questions on tariffs first because Peter has to go relatively soon and we want to be respectful of that. So David asks, how common is this much written discussion in a Supreme Court opinion?
- [23:27]
Peter Harrell
My impression is pretty normal, right?
- [23:29]
Benjamin Wittes
Yeah.
- [23:31]
Peter Harrell
I mean, you guys read opinions in lots of different areas. I mean, you just have, you know, like, yeah, it's a long opinion, but not out of bound. I mean, I think of a sort of a normal long opinion.
- [23:42]
Benjamin Wittes
All right, Joyce asked. I'd love to hear Peter's thoughts on whether the liberal justices should reconsider their take on the MQD as a way to rein in the President's emergency powers related to national security and foreign policy. So first of all, what is the MQD and what is the liberal's take on it? And should they reconsider it?
- [24:06]
Peter Harrell
I'd open up. I feel like I've talked a lot of somebody else on the panel. I mean, I have thoughts on this, but I come at this not as the con law guy. I come at this as a trade guy. So you probably also have some thoughts on this, Ben?
- [24:18]
Benjamin Wittes
I don't Actually, I am. I am. And besides, I'm here in my capacity as a, as a convener and a moderator. Not, not. And I haven't even read the opinion. So I'm, I'm, I'm not in a position.
- [24:35]
Peter Harrell
Well, maybe I'll open it up then and then see if anyone else wants to chime in. So the major questions doctrine is this doctrine the Supreme Court started articulating clearly about a decade ago. There's some debate in the opinion today, and the justices have been debating for a number of years about whether the major questions doctrine is something that they invented 10 years ago or whether it actually comes out of older case law. But it essentially says that if a president is going to rely on an old statute to do a very big
- [25:14]
Benjamin Wittes
action,
- [25:17]
Peter Harrell
and no, it's sort of a new novel action under the statute, Congress has to have spoken clearly on whether the action's allowed. So this came up under the Biden under the Obama administration when the, when President Obama, or with the EPA under President Obama tried to impose greenhouse gas emission rules under the Clean Air act from the 1970s. And basically the conservative majority of the court found, well, you know, if this 1970s era statute that did not speak clearly to greenhouse gases, this is a huge action impacting hundreds of billions of dollars of the economy. There's no clear statement out of Congress on it, and so overturned the clean power rule. Similarly, under the Biden administration, the justices used the major question doctrine to overturn Biden's student debt forgiveness program, saying it was sort of not clearly authorized by Congress. And you know, here it had always seemed to me, you know, if you take major question doctrine with a straight face, like the question of Whether this ambiguous 1977 statute authorizes hundreds of billions of dollars tariffs, just seems like a major question. So not surprised that some of the, some of the justices got there. The liberals just haven't liked it from the beginning. The liberals have sort of a view, the three liberal justice have a view that this is a doctrine that the conservative majority is using to rein in liberal presidential actions that they dislike, that they, the conservative majority dislikes in the regulatory space. In the regulatory space specifically. And so the, the, the, the, the liberal just have just never accepted it, you know, because they think you can, you, you just don't. A, they think it's not historically grounded. They think it's sort of wrong as a matter of interpreting the jurisprudence. But B, they think it's sort of misused. And so they were not going. I was not surprised that they did not accept it in this, in this case and wanted to reach the same conclusion without relying on it.
- [27:29]
Benjamin Wittes
Yeah. So I will just add to that that the, the liberal suspicion of the major question doctrine comes from the fact that it is kind of a modern gloss on what was called in the 30s the non delegation doctrine. Right. Which is, you know, this, this idea that Congress kind of can't give away its own legislative powers to federal regulatory agencies in these sweeping delegations of power. And that idea, you know, when conservative justices revive this idea through the major questions doctrine, it's definitely with an eye on broad, broad delegations of regulatory authority not to the president, but to agencies. Right. And so it goes to this idea that liberals, that conservatives are very suspicious of, which is Congress's legislative power being wielded by federal regulatory agencies. And I think Brett Kavanaugh has been, you know, sort of speaks for a lot of kind of conservative sensibilities when he says, well, wait a minute, that's not the national security. You know, the national security space is not what we were talking about when we did this. And I think the split that you see between the chief and Kavanaugh here is emblematic of something. Is this a split, you know, the branches have a different, you know, delegation to the branches, or is this really about regulatory power? And I think the, you know, you see a division between them. Some of them are saying, well, you know, major question means major question. And I think Kavanaugh is saying, no major question means a delegation of power to an agency as opposed to the president himself. All right, Matt asks, since the alternative tariff statutes involve more process to be followed and findings to be made, does that translate into more opportunities for challenges and judicial review?
- [29:54]
Peter Harrell
Well, I have had the view since the beginning of last year, 2025, that the, the, the clearest, truest winners of Trump trade policy are trade lawyers. And I am quite confident that trade lawyers will continue to be the clearest winners of Trump trade policy in 2026 as well. On terms of legal challenges to the fallback options. Obviously, we'll have to, you know, see what the fallback options are and how they play out. There has been litigation on the, on 301, so there's never been litigation in the past on 122, because 122 was never used in the past. But there has been litigation on the, the 301s without sort of digging into all of the case law to the CIT and the Federal Circuit on 301 litigation, the court of International Trade and The Federal Circuit, which sits above the Court of International Trade. Generally speaking, the case law on 301 is that if the U.S. trade Representative has followed the procedures, it's done a factual finding, it has, you know, provided notice, an opportunity to comment in the fact finding. If it has provided notice on the tariffs, an opportunity to comment on the tariffs, there will be a substantial amount of deference to the substantive actions of the U.S. trade Rep.
- [31:20]
Benjamin Wittes
Right.
- [31:20]
Peter Harrell
So there's sort of, in general, the case laws follow the procedure, and then you'll get deference on, on substance. So litigation will depend on, you know, what does USTR actually do, how robust are these, those kinds of things. The other thing is, you know, it'll be different for litigation because with the IPA tariffs, fundamentally, the three cases that were in front of the Supreme Court were all about whether AIPA authorizes any tariffs at all. And if it doesn't authorize tariffs and all the IIPA tariffs are illegal. With 301, you're gonna have to bring 3.01by 3.01challenges, right? So it'll be a 301 on Europe and a 3.01 on Japan and a 301 on Korea and a 3.01on, you know, Canada or whatever. And, like, if you're litigating them, most of your challenges are gonna be sort of country, you know, 301 by 301 kinds of challenges that might well play out differently based on the specific facts of. Of the different 300 ones.
- [32:21]
Benjamin Wittes
All right, one last question, and then we will let you go. Peter, I assume there is now going to be a race to the courts to get $200 billion in tariffs back by every corporation that's ever had to pay a tariff. How big a deal is the hole that this is going to blow into the budget?
- [32:42]
Peter Harrell
Look, it's, it. I mean, you know, I, I've seen estimates. I think you're right. I mean, the estimates I have seen from the economists are, you know, close to $200 billion. The government said in mid, no, mid December in a court filing that it had collected at that point 140 billion. And like, it's been going up by 30 billion a month since. So, you know, 200 billion seems very reasonable. This is a fiscally meaningful issue. The government, I mean, government collects what, 3 or $4 trillion a year, so it's not, you know, it's not 10%, but it's definitely several percent of the federal government revenue, what Trump said. And so the opinion didn't talk about refunds at all. The Opinion the only place refunds came up at all was a little note in the dissent noting that refunds are now probably going to be a mess. Definitely use the word mess. I don't remember exactly what else they
- [33:35]
Benjamin Wittes
said,
- [33:38]
Peter Harrell
you know, so this will now be an issue for the lower courts. We saw in December the Trump in, in litigation about refunds in the lower courts. While all of this was pending from the Supreme Court, the Trump administration has conceded that the, that if refunds are going to be legally required, the Court of International Trade has the authority to order refunds. So the Court of International Trade is now going to have to litigate through in light of this decision. Are refunds required? And then if they are, it's conceded the court has the authority to, to order them.
- [34:20]
Benjamin Wittes
And why would they not be required? If, if, if the government taxed me illegally, it seems to me I'm entitled to the amount of money that the government took.
- [34:31]
Peter Harrell
So I, I 100% agree with you, Ben. And this has been my point for the last six months. Like if, if Scott Besant had just decreed everyone now has to pay a 50% income tax and the court says that's illegal, we'd all think we get our, our income tax money back. No one would have any question on this whatsoever. And tariffs are, from a kind of constitutional and legal perspective, tariffs are just another tax. In fact, they're the tax that Congress was most worried about in the frame. You know, in the founding days, right. Most taxes were tariffs back then. This is just another tax. So it has always seemed to me 100% clear you should be able to get a refund. And the only question has been, you know, will the government make it easy for you to get that refund, or are they going to say every individual person who has paid a tariff has to go into court and sue and, you know, litigate through the process. I keep hearing people speculating maybe there's some way to not give a refund. I just don't see it for exactly the same reason you just laid out, man, like, it's a tax, it's an illegal tax. You get your money back.
- [35:40]
Benjamin Wittes
Cannot see the government prevailing on that. All right, Peter Harrell, thank you so much for joining us today. You should feel free to hang around and participate for as long as you like. But I know you when, whenever you have to drop off.
- [35:56]
Peter Harrell
I'm afraid I do after Ron, I've really enjoyed this. Thanks for having me on.
- [35:59]
Benjamin Wittes
Great to see you. Thanks. Bye. All right, let us turn from the halls and hallowed walls of the Supreme Court to the hallowed walls of the U.S. department of Justice. Troy Edwards. Yesterday, on the face of the Robert F. Kennedy Building, there is now a. A large mug shot of Donald Trump. I didn't know that we traditionally posted wanted pictures or portraits of felons on the Justice Department, but what do we know, uh, yet?
- [36:43]
Troy Edwards
I used to try to explain to defense counsel that DOJ had a really good rehabilitation process and reentry services from bop. I didn't know how good. Now, now we have one as the. The leader and his photo on our building. It. It's funny that I want to kind of frame my thoughts in two ways. One is the obvious reaction I think everyone is sharing. And then two is maybe a less obvious reaction I had to. The banner just to walk us through yesterday looked like Hannah Rabinowitz from cnn at least tweeted a picture of the outside of the building showing a banner that listed the Department of Justice title, President Trump's face. And then I think a phrase on the bottom that said make America safe again. And the department has actually responded now and provided a statement today saying that they were proud of the 250 years of this history in America, but also proud of the historic work that, quote, this department is doing to make America safe again at President Trump's direction. And I think that language is really important. So here's my obvious reaction. My obvious reaction is this is a problem. And to some folks who pushed back while talking about this yesterday, isn't it obvious this department has lost its independence? Really? What does this reveal? I think it's more concerning that in the last year, the department leadership has at least paid lip service to the concept of an independent Department of Justice. Todd Blanche, the Deputy Attorney General, has consistently tried to speak in those terms confined by ethics and values of an independent doj. I have to think that feeling that constraint has provided some boundaries to what they're willing to do or what the President is willing to order. If you've just removed those constraints now and openly owned that this department is no longer independent, it's concerning to me about how bold the President may become in using the department, and the department may be willing to engage on those orders. And so this is a new world, I think, which is an obvious reaction to the banner.
- [38:58]
Benjamin Wittes
Hey, folks, Ben Whittes here. This episode is brought to you by the folks at Ground News. I want to talk to you about media and trust people. Listen to this podcast and read Lawfare's content because Lawfare brings people information and analysis of a particularly high quality and that generates trust in an era when trust in news and media sources is low. Ground News is another organization that is working to create trust in media and media worthy of trust. It's an app that doesn't just bring you news on subjects you're interested in. It curates that news so that you can see information that people of your own political persuasion are likely to miss. It's not publishing its own stuff, but it's also doing a lot more than aggregating. It's identifying stories that are filling a blind spot that is pervasive for the left or for the right. For example, the app also shows you bias ratings and factuality ratings for each news organization covering a story so that you can see whether the story you're interested in is mostly being covered by news organizations of the left, right or center. Let me give you a specific example. I just returned from Ukraine, so I was particularly interested to see how Ground News would handle stories about the war there. It flagged that an important story about deadly Russian strikes in Ukraine is being largely ignored by right wing press. On the other hand, it also flagged that left outlets are ignoring a story about Ukrainian nationals in Germany charged with trying to send parcel bombs to Ukraine at the direction of Russian intelligence. These blind spot notices are really useful as a way of seeing what information you are probably not seeing on stories of interest to you. Or consider the recent story about President Trump proposing voting reforms that demand voter ID and proof of citizenship of would be voters. The Ground News app shows 29 media organizations reporting on this story, and it shows radically different headlines associated with it depending on the ideological valence of the outlet from the free press. Washington Power struggle Jeffries moves to block Trump's plan for federal election oversight. By contrast, the Daily coast headline Republicans bail on states rights so Trump can rig elections Again. You can see information about each news organization's bias tendencies and its factuality ratings. You can even see information about its ownership. I find Ground News an impressive tool for checking my own biases and the biases of the media I consume, and for seeing the news that people like me generally don't see. I encourage you to check it out. You can get Ground News vantage subscription for 40% off, which allows unlimited access to the Ground News app by visiting groundnews.comlaw that's groundnews.comlaw one more time. Groundnews.comlaw check it out. I really think you'll be glad you did Delete me Makes it easy, quick and safe to Remove your personal data online at a time when surveillance and data breaches are common enough to make everyone vulnerable. Hey folks, the other day I got a phishing attack and I got tell you it was good. Even some of the URLs looked real and I almost fell for it. But it was missing one thing. It was missing any personal information about me. And that made me really glad that I used Delete Me. Delete Me does all the hard work of wiping you and your family's personal information from data broker websites so that when the phishing attack comes for you, it doesn't have something that makes it really seem authentic. Delete Me knows your privacy is worth protecting. Sign up and provide Delete Me with exactly the information you want deleted and their experts take it from there. I am someone with an active online presence. I express political opinions and I am not looking to have that turned against me with personal information about me used in spear phishing attacks. You know I've been the victim of identity theft harassment and if you haven't, you probably know someone who has and I'm telling you I'm an example of this. Delete Me can help. So take control of your data and keep your private life private by signing up for Delete Me now at a special discount for Lawfare listeners. Get 20% off your Delete Me plan when you go to JoinDeleteMe.com lawfare20 and use the promo code lawfare20 at checkout. The only way to get 20% off is to go to JoinDeleteMe.com Lawfare20 and enter the code lawfare20 at checkout. That's JoinDeleteMe.com code lawfare20. Want to turn your timeline into a
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Benjamin Wittes
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- [45:25]
Molly Roberts
Experian okay, I have to tell you,
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Anna Bauer
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Peter Harrell
And there it was.
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Roger Parloff
That hologram Trading card.
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Peter Harrell
One of the rarest. The last one I needed for my set.
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Benjamin Wittes
Shiny like the designer handbag of my dreams.
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Molly Roberts
One of a kind.
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Anna Bauer
Ebay had it.
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Benjamin Wittes
And now everyone's asking, ooh, where'd you
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Eric Columbus
get your windshield wipers?
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Troy Edwards
Ebay has all the parts that fit my car.
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Benjamin Wittes
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Molly Roberts
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- [45:59]
Benjamin Wittes
This is not the first building that the administration has put a banner of Trump on. There was one on the Department of Agriculture for a while, next to a banner of Lincoln. There was one on the. Was it transportation? There have been a bunch of them. Is it different to put one on the Justice Department? I mean, I do think having big Dear Leader pictures of the President on federal buildings is, in general, a kind of gross North Korea vibe. But, you know, I. I guess I'm. You know, the President's picture has been in every office in the Justice Department since I started going there in the 90s. And what's really the difference between hanging, you know, the President and the Attorney General and the Vice president's picture on the inside of the department and hanging it on the outside of the department? Or do you think there really is a difference between, like, doing it on the surface of the Justice Department versus NASA?
- [47:17]
Troy Edwards
Yes. Yes, I think there's a difference. And I think what you're putting your finger on is a tension that has existed in the Department of Justice since its origin in 1870, which is there is this structure in place where the President oversees it and appoints the Attorney General, but it is a department that ought to function independently from the political waters of the White House. And so how have we existed through that, through the department's history, when we have these pictures of the President in there? That tension has always existed. So that's not new. What's new is the side of the spectrum that this department and this White House have decided to lean fully into, which is not only the physical blowing up of the photo, but also the actions that the department has taken. And that's a much larger conversation about moving forward, how do we fix that, if at all? But what's different about putting this banner on the outside of the Department of Justice as opposed to other institutions, I think, is the unique nature of. Of the value that the Department of Justice adds to American life, stemming from the independence of the institution. I've often said, and some friends make fun of me, for being a little corny, the Department of Justice is one of the only agencies with a moral imperative in its title and it does not live up to that.
- [48:41]
Benjamin Wittes
The more that transportation is a moral imperative,
- [48:46]
Troy Edwards
I don't mean to devalue what other agencies do.
- [48:49]
Benjamin Wittes
I don't know, because there's also the Department of Education. I think you could make an argument that there's a moral imperative in there, too.
- [49:00]
Troy Edwards
That's fair. My wife, who is getting her PhD in education, is probably going to sprint into the room shortly. But what I mean to say is at least inherent in the terminology that we call that agency. It's.
- [49:14]
Benjamin Wittes
It is.
- [49:14]
Troy Edwards
There's a reason for it. Right. And it's obvious. This is what I mean when I frame my thoughts as this is the obvious reaction. Putting the president's face on the outside of the department is a problem. It is reflective of what is coursing through the veins now of that building. Okay, so here's the maybe less obvious reaction I've had. This is going to be a problem in litigation, and it's going to be a problem in carrying out the president's duty or requests of the department moving forward. The litigation. The department's response to this was that they're proud of doing this under Keeping America Safe at President Trump's direction. As you all know and many of our readers know and listeners, there is a lot of litigation out there claiming that the president is directing the Department of Justice's actions. And the leadership has consistently tried to push back, saying, no, no, we make our own decisions. If you're a defense attorney, that picture may be an exhibit in one of those motions moving forward. And that response, and I don't think that's silly, I think that has some force to it, that there is no question now, the department does what the president orders them to do. And as we all know, under vindictive prosecution and potentially selective prosecution theories that could lead to dismissal of indictments. The second, less obvious reaction is this is going to be harder for the president to do what he wants with the Department of Justice, because I think more people are going to find this reason to leave. It's less that there's this picture on the wall now and I need to leave. It's more that career folks who I feel pained for since yesterday have to walk past that obvious banner and now represent to the world why they're staying. And that's a shame. Right? This is a disservice to the victims those folks serve, and it's a disservice to those career servants who walk in at an opportunity cost of a lot of money every day to serve that institution. It's going to be harder now when they're basically wearing the red hat every time they walk into the building or being forced to look like they do. I think it's more in your face. I think it's going to be harder as people leave, and this department is going to have a tough time replacing those folks.
- [51:27]
Benjamin Wittes
Yeah. I mean, I still remember when Donald Trump was first elected, an AUSA walked into my office and said, I'm resigning. And I asked why? And he said, because I don't want to stand up in court and say I'm so and so and I represent the United States. And that was with. And I talked him out of it and I persuaded him to stay. But that was with Donald Trump's face not on the outside of the building, you know, and I think that would be a harder conversation if, if I had to have that conversation today. All right, let us turn to a, a consequence of representing the Justice Department when you are, when Donald Trump's face is hanging on the outside of the building, which is you may get held in contempt. And I think this is now the first, or maybe not the first, but it's one of the early contempt findings by. It's a judge in Minnesota. Roger, give us what happened and what did this attorney do that of all the attorneys who have represented the United States with Trump's face on the side of the building, why is this poor soul the one who's being held in contempt?
- [53:06]
Roger Parloff
That's a good question. It's honestly a little arbitrary. It's sort of the straw that broke the camel's back here. This is the case. And it's another glimpse of the total breakdown that is going on in the District of Minnesota at the moment. It's a civil contempt, I should say. And it came down, I think, the 18th, which is, I think, Tuesday. And it's another special assistant. We should read this sort of in the context of, you know, we all saw that this job sucks case a week or two ago involving another special assistant U.S. attorney, Julie Lee. This one is a special U.S. attorney, and I'll put up front sort of all the defenses, because obviously he's not, you know, the one that's wholly culpable here. He's an Army JAG officer who was moved over into this U.S. attorney's office as a special assistant just a month ago. And as he explained at the contempt hearing, he's had anywhere between 126 and 129 cases assigned in the last month. And also he said it's a steep Learning curve, which I'm sure it is. Here, however, was Judge Provenzino's predicament. So the case begins on February 2nd. It's a detainee named Rigoberto Soto Jimenez. It's a habeas case. Immediate Isahara Matt Issahara is the name of the man who got the civil contempt, and it was for $500 a day. He admits that it was assigned to him that day. February 2nd, the same day the judge issues a show cause order to file papers. Why he should not be released. That's sort of the standard thing in a habeas, and they must be filed by February 5th. There's no response at all on February 5th. That's a Thursday. So the following Monday, she issues the release orders. You've waived any response. And this being Minnesota, she's learned from experience, as all the judges have there, it's not only release him, it's release him in Minnesota, not a thousand miles away, which is often happening. And give him his property. Don't release him without his documents and his property and his coat. And, and also. You must, on February 17, file a certificate of compliance. So again, the release has to be by February 13th. That Friday. On February 11th, the defense attorney begins to try to find out if anything is happening because she's never heard squat from the government. There's no notice of appearance at this point, and that's a common thing in Minnesota. Now it's too hard for the attorneys to even issue a notice of appearance. So she doesn't know who's working on the case, and she emails directly to the detention center she suspects he's at in El Paso and to send the order herself. We now know that Issahara on February 9 was aware of the judge's order to release and all the other things and did not do anything. What he's supposed to do is to send that order to opla, which is the office of Principal Legal Advisor for ice. And then ICE is supposed to relay that to ero, the Enforcement and Removal office in El Paso. That didn't happen. So she begins reaching out. She gets no response. February 12, the client contacts her. He has been released, but he's in Texas and he has no way to get back. And so she then contacts an attorney, a U.S. attorney AUSA that she's worked with in the past and she knows has been responsive. And let's give him credit, his name is Trevor Brown. He immediately emails back and says Matt Issahara is the one assigned CCS him. She writes to him and explains the situation. He writes back, Let me get back to you in a bit. I have a few urgent matters I need to close the loop on. I'll circle back with you this afternoon. That's February 12th. He never gets back to her, ever, until the contempt hearing. So the attorney, defense attorney finds a shelter for him that evening. She stays in a shelter and she also finds a way to get him a flight back the next day. I don't know the details of that. The following Monday, she also finds out that he doesn't have his property and begins to email people about that. On February 17th, we're supposed to have the certificate of compliance. Nothing is filed again. There's no egregious, there's no notice of appearance filed at the. I mean, there's no sign of the government in that docket. And so at the end of the day, February 17th, Judge Provenzino sends the show cause order why you should not be held in contempt. Show up tomorrow at 2pm I want you there. She's found out who it is from the defense lawyer who is the attorney on the case. I want David Fuller there, the chief of Civil division replacing Anna Voss, who quit. And I want somebody from ICE who knows about this case and they show up the next day and all of them are unprepared. And the ICE guy there is a guy from ice. He's a deputy field office director. He knows virtually nothing about the case. And, and you know, the, the, the guy come, apologizes, asks for grace. David Fuller asked for Grace and today the judge issued an order after just a couple hours ago, the certificate of compliance has been filed. He's gotten his property back. At this point, she lifted the civil contempt. She said it was purged. She didn't charge him anything, but she said, you know, you've asked. She writes again and again and again and to other judges in this district, again and again and again and again and again and again. And each of those agains has a footnote to a written ruling where the person is complaining. And in fact, Issahara himself, two weeks earlier, she had called him in to explain, why haven't you followed an order? So, you know, she's saying she understands they lack basic resources, they lack basic training, but there are consequences to the petitioners and she's got to do something and she can't just keep. And I think the final part of this story is that the New York Times, you know, when this contempt order was issued on the 18th, went to the U.S. attorney's office, Daniel Rosen. And he made an outrageous sought comment. Yeah. And you know what it is without me telling you? It was, if I can find, was
- [61:58]
Benjamin Wittes
talking about how it was an outrageous abuse by the judge of power.
- [62:03]
Roger Parloff
Again, just blames the judge. It's just knee jerk, inane, offensive, and it's indicative of why this situation exists and can't be improved.
- [62:19]
Benjamin Wittes
All right. Speaking of situations that exist and maybe can't be improved, Molly, you and Troy were just at the Nathanson hearing in the Eastern District of Virginia. Can that situation be improved? Wait, you're. You're muted, Molly. My bad.
- [62:44]
Molly Roberts
Yes, I think it actually can be improved. Troy can agree or disagree with that. But the hearing was about Hannah Natenson's and the Washington Post's efforts to get her materials that were seized from her that included her work laptop and her phone and what they described kind of as her entire professional universe returned to her, or at least the data returned to her. And the upshot of the hearing, I think the judge didn't issue any formal ruling, but it was pretty clear what he was going to do was that for the review of what materials were responsive to the warrant and then what weren't. And it's likely that the vast majority weren't, that the court will conduct that. That's what it looks like is going to happen. So the hearing, the Hannah Natenson's team, the Washington Post team, started arguing that the search was an unconstitutional prior restraint. But the judge didn't seem very interested in that. He seemed to really just want to discuss what should this review look like. The Post was arguing we should have first crack at this. The government was arguing we should through a filter team. And then the sort of middle ground there was let the court do it. And the hearing was basically a sort of weighing of the equities when discussing what that search should look like. So the government was saying, this is classified information. It's very sensitive. We don't want counsel for the. For Hannah Napinson or for the Post to be able to see this. And their argument there wasn't very convincing about exactly why. I think Troy can talk more about that. But. And then the Post was saying, this is information that is a different kind of privilege. That is reporter privilege. And I'm not sure that exactly what reporter privilege was very convincing either.
- [64:49]
Benjamin Wittes
But the judgment came down because it doesn't exist.
- [64:53]
Molly Roberts
Yeah. And we were discussing, Troy and I were discussing after. What did they mean by that? Because they never said. And we were thinking, well, perhaps they didn't say for a reason. Right. They just kept stating reporter privilege, reporter privilege, as if it's this assumed thing that exists, but they didn't really confront the question of does it, and to what extent and under what analysis.
- [65:13]
Benjamin Wittes
There's a wonderful opinion by Richard Posner, the former 7th Circuit judge, in which he dissects the myth of the reporter's privilege and how the pressure took Branzburg B. Hayes, which denied that such a privilege existed and over years of lower court case law, turned it into a quite robust privilege. And he writes, well, if you.
- [65:40]
Molly Roberts
If you.
- [65:40]
Benjamin Wittes
Kind of admiringly, but basically with this, you know, like, guys, the emperor has no clothes kind of vibe to it.
- [65:49]
Molly Roberts
Yeah. If you read the cross motions, they certainly both cite Branzburg Vas in very different ways. But there was a particularly kind of spicy moment during this, and I don't want to monopolize the conversation, so I'm happy to kick it over to Troy for that.
- [66:03]
Benjamin Wittes
Troy?
- [66:04]
Roger Parloff
Yeah.
- [66:04]
Troy Edwards
So there was a detour that I think Judge Porter, the magistrate judge overseeing the hearing, called it a detour, but made it crystal clear that it all revolved around the Privacy Protection Act. And the judge made it very clear that a couple things that I don't think were known before. One, he had gone back and forth with the AUSAs rejecting the warrant multiple times prior to approving it, which was new. And two, demanded an answer to the question of whether the AUSAs knew about the Privacy Protection act and didn't put it or didn't know about it and didn't put it.
- [66:44]
Benjamin Wittes
Did he get an answer to that question?
- [66:45]
Troy Edwards
He got an answer that the AUSA involved. You know, in full disclosure. I worked in this office. I know these folks. The AUSA involved. Gordon Kromberg spoke publicly to the judge after the Federal Programs Branch attorney answered the question by saying he was not involved in the warrant drafting. Judge Porter didn't take kindly to that and still pushed for answers as to the Department Writ Large's approach to not putting any language about the Privacy Protection Act. Gordon Kromberg then answered afterward by saying he was aware of the Privacy Protection act, but did not put it after DOJ practice dating back to 2013 through 2020, not putting language about the Privacy Protection act because it was the Department's view that it doesn't apply in these circumstances. And he was relying on the WikiLeaks litigation and case law that came out of that. And so that's all to report what happened. I think Molly and I were talking afterward about our thoughts on I don't want to speak For Molly, we've actually had a lively debate about this case. Her coming from a reporter's view and my coming from a national security prosecutor's view. I will say I think I have now shifted after hearing both sides. Amy Jeffers represented Natenson, the person who is aggrieved here, whose phones and technology was taken. I think she had the best of the three arguments from the Washington Post argument, the government's argument, and Amy Jeffers argument, which was to say that two things, One, this was a completely overbroad search and seizure, that it was historical in nature that that search warrant was executed on the reporter's home, and that importantly, no steps were taken before that. And I'll get back to that in a second, that the government went straight to this search warrant. And then second, this is a counsel, Amy Jeffers, who has a lot of experience in the Department of Justice, has a TSSCI clearance and has worked repeatedly, full disclosure, including with me on the other side of me in cases with government prosecutors, to meet in the middle with Main Justice's litigation security group and navigate classified information together so it doesn't get to this stage. And so I think it's really important to say after now reading the briefs and seeing these arguments, it's clear to me we should not be here. I'm not sure what happened, but the government often will try. And look, the premise here is they are aware there's top secret classified national defense information on a device. And so the government, I think you would hope your government wants to retrieve that so it doesn't then disseminate and risk grave danger to national security interests. But there are a number of steps you can take before executing a search warrant on someone's home. And to hear that those steps weren't taken is concerning to me. And I inquiry whether that was coming from the top down in a rushed adventure in terms of the Privacy Protection act not being included. I just want to clarify something for those who are listening or reading and may not know this. Maybe it's obvious the FBI agents are actually not the ones often writing these. Right. It is common for the attorneys to be writing these. Now, of course, the agents are the affiants, and so they have to verify the accuracy and know this material. But these agents, I keep throwing all these disclosures in. I know the agents as well. They're very good and they're experienced agents. The agents review it for accuracy. It's the lawyers that ought to be responsible in leading these agents through this process. And so Judge Porter pointed something out that's really important that even under the current guidelines in the Justice Manual, a search warrant like this has to go to the attorney general. Right. And the attorney general or the deputy attorney general and the AAG for CRIM or National Security Division had to have reviewed all this and approved it. And that Privacy Protection act language was not included. Now pause for a second. It's not clear to me the Privacy Protection act language is a necessary inclusion to determine whether or not there's probable cause to believe that evidence of a crime will be found where you're trying to search. For example, there are a number of internal deliberations the Department often engages in from the Office of Enforcement Operations when they're trying to decide whether or not someone you're executing a search warrant on is a member of the news media. For example, you will send this analysis to that area of the department. They will make a determination. If they say no, then you can go forward with your search warrant. You're not including that process in your affidavit. And I think that's appropriate. You don't reveal all of that deliberate process, deliberative process behind the scenes. Pause. Whether you should include it is a different question. And the question in my and it's different here because of how uniquely tied the Privacy Protection act is into the actual act of searching a reporter's home. And it's really, if you want to maintain credibility with a court and you want to maintain credibility in your investigation, you ought to include it. And the fact that it would go all the way up and back down forces you to wonder, did leadership not know about this Privacy Protection act or did they know about it and intentionally not include it? And I think that's a really important question.
- [72:03]
Benjamin Wittes
All right, quick question before we move on. Any further indications of whether Hannah Nathanson is a subject of this investigation or whether she's just a drive by shooting victim?
- [72:19]
Molly Roberts
It didn't. You can tell me if you disagree. Disagree, Troy. It did not seem to me like she was a subject of this investigation.
- [72:25]
Troy Edwards
No. I think, I think all parties, they didn't address it directly, but they talked about it as if she's not. I think something that did come out was important here and it gives life to the movement's arguments. The government admitted, I think, as it, as it had to, that the plain view doctrine will apply while the government is engaged in the search of all of these records. Keep in mind this is her phone, her computer, her smartwatch. If there are, as the Washington Post says, hundreds of sources, then and in fact, the Washington Post counsel then said something that I didn't know before, which is that it includes court sources, and that was revealing, I think, publicly. And so if that's. And they said that to call into question whether the judge even ought to be running this filter. But if that's true, the government was asked by the judge, will you waive the plain view doctrine here? And the government, I think, correctly said, well, no, because you can imagine a world where they see evidence of someone saying, I know where the body is. They certainly can't wave before they've looked. But that is the point from the Washington Post perspective, that they're now going to search all through these other sources to find stuff related to this underlying Espionage act case. And if plain view applies, they may seek new warrants. I think that's the point that the Washington Post is making of this overbroad search. And I want to end by saying it is something we could have avoided. Right. You could have worked together with DOJ's Litigation Security Group to avoid a lot
- [73:54]
Molly Roberts
of this, unless this is the point, which, you know, that's right.
- [73:57]
Troy Edwards
Right. Fair.
- [73:59]
Benjamin Wittes
All right. We have a bunch more material to get through. And so I'm going to ask everybody to be brief, which particularly affects Roger. As we go through the next round, which is our weekly immigration roundup, we're gonna try to speed through some of this stuff. But first, Eric, I hear that a district judge has enjoined ICE enforcement actions at churches. What's going on with that?
- [74:30]
Eric Columbus
With all the usual caveats that this applies only to the plaintiffs in the suit, which actually represent a somewhat significant large group of churches, and it only applies to certain type of enforcement actions. It does not apply to actions with administrative warrants where they're looking for a specific person that have been authorized by a supervisor. The judge determined that he did not have jurisdiction there. Basically, there was in 20. The previous policy under Biden and predecessors was having a what's, quote, unquote, sensitive places policy that restricted the places where you could conduct immigration operations in general, generally eliminating places such as. Such as hospitals, schools, and religious institutions. And it basically said to the fullest extent possible, you shouldn't do this sort of thing.
- [75:37]
Benjamin Wittes
Thing.
- [75:37]
Eric Columbus
And there was a. It was really putting a strong thumb on the scale, but not letting it, not. Not prohibiting it in general. The, The Trump administration put basically a thumb on.
- [75:49]
Benjamin Wittes
On.
- [75:50]
Eric Columbus
On the opposite scale, side of the scale, basically saying that you, You. You can do it where. Where necessary, and it. It very well may be necessary. And you don't need to get approval beforehand if that's difficult. Do bunch of plaintiffs went plaintiff churches went in and sued under, among other things, the Religious Freedom Restoration act, which says that the government cannot burden a. Cannot impose a substantial burden on religious exercise unless it's to advance a compelling government interest and it's the least restrictive means of doing so. And the court first found that these churches have standing because they stated and provided declarations that people were less likely to attend services and other church activities because of fear of enforcement operations there and then conclude that this was there was not. This was not the least, that this did in fact burden the exercise of religion. That was not the most restrictive means of doing so, as evidenced by the fact that it had not been done that enforcement operations existed before 2025 without giving free reign to immigration agents in this way and therefore enjoined the activities.
- [77:27]
Benjamin Wittes
But it applies just in Massachusetts, right?
- [77:30]
Eric Columbus
Well, it applies. It's a bunch of national churches, so it may apply elsewhere. I believe it applies elsewhere as well, but only as to those groups and to those specific church organizations.
- [77:41]
Benjamin Wittes
So check which church, you know, if you decide church you're going to be a member of, check the caption in this case. Because whether whether ICE can come get you in the church may depend on which church you're a member of.
- [77:56]
Eric Columbus
And ICE was very, DHS was very angry in response, and they said, they put out a statement saying we do not raid churches. And that, I think, depends upon the definition of what a church is. I do not think there have been reports of them like literally invading a church service and grabbing someone. But they're having a lot of actions on church grounds.
- [78:16]
Benjamin Wittes
Right. All right, Roger, we have a hearing in on the administration's new policy of detaining without warrants all refugees in Minnesota who have not adjusted their status to lawful permanent residence within a year. What is the status of that and how did the hearing go?
- [78:43]
Roger Parloff
Yeah, this hearing, the plaintiffs are looking for a preliminary injunction. There's already a Trojan against this brand new policy interpretation of a law that's been interpreted otherwise for 40 years. And it would require, they say that it requires the government to arrest and detain every refugee. They're applying it in Minnesota. There's 5,600. On the one year mark of if after one year they have not become, have not applied to become or have not become lawful permanent residents, which is basically all of them, because I think you have to live for a year before you're eligible. So the night before the government issued a new policy, fleshing out the reasons behind defending their, their new policy and making it sound, implying that it was going to be enforced more reasonably than it has been, but not really backing down from any of their positions. So it looked like the judge, John Tunheim, who's a Clinton appointee, was tending toward the a ruling for the petitioners.
- [80:10]
Benjamin Wittes
All right. Meanwhile, another big week for Palestinian students. At this time at Columbia, an immigration judge has ended the removal proceedings for Motion Mandawi, who we've talked about on the show before and who was an LPR and who the Trump administration arrested back in April and attempted to deport under that noxious foreign policy provision. It seems like the administration's running up a list of losses between, between this guy and Ms. Ozturk, who's not Palestinian but who is a pro Palestinian. What's going on and how much legs does this have?
- [81:09]
Roger Parloff
It might not have much legs, but it's another brave immigration judge who did dismiss the removal immigration judge did dismiss the removal petition without prejudice. So that's an important thing. Weirdly, the Rubio letter and Madawi is out. He was let out on habeas by a district judge in Vermont and that case is now at the Second Circuit. But this is a parallel. You know, the immigration case continues. Apparently the letter from Rubio saying that his presence in the United States imperils foreign policy lacked authentication. And it was dismissed on that. On those grounds. The government took the position it was self authenticating. She disagreed. Like I say, it's dismissed without prejudice. You would think it wouldn't be very hard to fix that. But apparently it sounded from the letter that Madawi's lawyer wrote to the Second Circuit, like the government may appeal this to the bia, the Bureau of Immigration Appeals, but in any event, it's a live ongoing issue one way or another. And the habeas is not moot and the Second Circuit case is not moot.
- [82:41]
Benjamin Wittes
Speaking of people who are not in custody, Kilmar Abrego Garcia, a perennial favorite of the show, will not be taken back into custody. According to Polissini's.
- [82:55]
Roger Parloff
That's right. According to Paulusini's.
- [82:58]
Benjamin Wittes
That's Judge Paula Sinis to us.
- [83:00]
Roger Parloff
But yes. Right. And this is another, a sort of weird one if when last we Left you on December 11, I think she had released him on habeas because it turned out there was never any notice, there was never any order of removal. And the same day that she there was an order saying don't send him to El Salvador. There's an order of withholding, but there was no order of removal. That the order of withholding was to prevent him from happening.
- [83:42]
Benjamin Wittes
Usually, usually the order of removal precedes the order of withholding of removal. But, you know, I think the same
- [83:52]
Roger Parloff
afternoon as Sini's order, the government had a ex parte proceeding with an immigration judge. And no one knows how the judge was picked and the defense wasn't there. But he said instantly this was a scrivener's error. And we're making. We're putting in the order of removal into the earlier order, nunc pro tunk, meaning now for then effective October 19, October 10, 2019. And her people, and then they tried to start removal proceedings and she issued a Trojan to stop them from taking him back into custody. And this week she extended that and made it permanent. And she sort of tries to hoist the government on its own petard, saying, well, if it's nung pro tunk, then you've had since 2019 to remove him and you haven't. And he's. And he's done a ton of time in custody. You know, there's a presumption that you won't be have more than six months. So I'm releasing him under, you know, that Zadvidis decision we've talked about before. And so that's where that one stands right now.
- [85:34]
Benjamin Wittes
All right, Wilder, Idaho, not usual fare for Lawfare Live discussion, but we have an ACLU class action suit stemming from an immigration raid there. What's up with that?
- [85:52]
Roger Parloff
Yeah, that's a really interesting case. We don't have many. We don't talk about many damages suits for good reason. This is a class action damages case that the ACLU filed, I think last week, but it took me the weekend to get on top of it. And it relates to a raid that occurred in October. 200 Joint Task Force state and federal people, 200 of them descended on a Latino festival In Wilder, Idaho. 400 people, families, a horse race. And they zip tied all the. There was a, you know, helicopter. There were five armed vehicles, armed, you know, people, guns out, tasers. And 400 people, all the adults, zip tied. And many of the teenagers all searched and their belongings put in plastic bags and hung around their necks. And it's interesting on a couple different levels. One is that the theory of this, which has been used in other places, was of the government's theory, was that they got arrest warrants for five people, including the property owner, for unlicensed gambling. And then they also got a Property search warrant. And so they theorize that that permits them to also search, you know, hundreds of Latino people on the property at the time the ACLU filed suit. And that the big hurdle here and the reason we don't talk about damages suits with government employees is that, you know, you can sue state officials under the civil rights laws, but they don't extend to federal officials. And so the only way used to be something called a Bivens action, but it really doesn't exist anymore. And there's also a federal Tort Claims act, but that's not a very. It's the money is not paid by the officer. So it's not really much of a deterrent. And it's not much money. You can't get punitives. You can't get prejudgment interest. So here they theorize that it was a joint task force, so the federal officers were conspirators with the state officers and they try to sue the federal officers under the state Civil Rights act that way. So that will be sort of an interesting thing.
- [88:51]
Benjamin Wittes
Interesting. All right. Meanwhile, speaking of civil rights violations, the U.S. attorney's office in New Jersey has admitted that it violated more than 50 court orders in immigration cases over a rather short period of time. What's the context of this admission and what do you make of it?
- [89:20]
Roger Parloff
Yeah, the case is Kumar versus Soto. It's before Judge Farbiar's is the same judge who handled the Khalil case. And I guess he was getting frustrated with failure to follow court orders in New Jersey. And he ordered that somebody compile the numbers going back to October 5th. And I mean, December 5th, I'm not sure how he chose that date. And the figures were provided on February 13th, so that's a little over two months. And by the chief of staff to Deputy Attorney General Blanche Jordan Fox, who also who has a lot of titles, including Special attorney in New Jersey. And she they listed 52 and they seem to be proud of that number. She they kept saying out of 547, you know, that's we got nearly a 10%. Yeah, yeah. You know, and it included 17 times where people were transferred out of the state in violation of court order and one time where they were removed from the country in violation of court order.
- [90:41]
Benjamin Wittes
Lovely. Troy, what's the right answer? If you're asked as a you've been in recent member of the U.S. attorney's office, somebody asks you, a judge asks you how what percentage of orders of this court have has your office violated 500 cases? There's going to be some screw ups. What's the. What's a number that an office should actually be proud of?
- [91:11]
Troy Edwards
Zero.
- [91:12]
Peter Harrell
Okay.
- [91:13]
Benjamin Wittes
Jacking.
- [91:15]
Troy Edwards
I'm just going to throw that out there. This is not one of those weird uchicago law circumstances where people talk about the optimal number of deaths per year being non zero. Because you know, for the economy. Right. We're not engaging in that. The reality is the answer should be zero every time.
- [91:30]
Benjamin Wittes
Okay, so we're just not violating court orders. Is that the.
- [91:35]
Troy Edwards
Typically when I supervised a. We say is I would advise them that we had a zero tolerance policy for violating court orders.
- [91:41]
Benjamin Wittes
Okay, just checking. All right, last item on our immigration roundup. The 2nd Circuit has not stayed a order blocking Kristi Noem from ending TPS for Syrians. I gotta say the case for ending TPS for Syrians is a bit better than the case for ending it for Haitians. But I'm glad for any TPS that doesn't get removed. That doesn't get ended. What happened here?
- [92:13]
Roger Parloff
Yeah, 6,100 Syrians. They had been so Judge the in the in Manhattan, Judge Catherine FIA had blocked the termination of TPS for them. And that went to the Second Circuit. This was. And the Second Circuit denied a stay. So they keep their TPS status for now. And it is in conflict with a recent 9th Circuit ruling from a week or two ago which what's coming. One of the key issues. There's this, this TPS has its own jurisdiction stripping statute.
- [93:02]
Troy Edwards
Right.
- [93:03]
Roger Parloff
And it says basically the secretary's determinations don't get judicial review. And the way around that for those that have been willing to go around that is to say. Well, I'm not appealing her determination. I'm saying she didn't arrive at her determination by using the proper procedures. And Second Circuit joins those courts that have taken that route.
- [93:31]
Benjamin Wittes
I cannot promise you many things in life, Roger Parloff, but I promise you when the Supreme Court considers this issue, they will be on the other side of it.
- [93:43]
Roger Parloff
Well, and there are two Second Circuit. I mean Supreme Court stays in the Venezuelan case. That sort of hint that that might be the way they're looking at this.
- [93:58]
Benjamin Wittes
Yeah. TPS is a wonderful program and I love everything that slows down getting rid of TPS protection for anybody frankly. But this one is not going to have legs. I'm.
- [94:12]
Roger Parloff
Oh and this is, this is the panel was three Biden judges. So.
- [94:17]
Peter Harrell
Yeah.
- [94:17]
Roger Parloff
Yeah.
- [94:18]
Benjamin Wittes
All right. Finally Anna Bauer. She, you, you know we said she was going to be here. She disappeared into a black box and there's a reason for that, which is that she was doing a deep dive heroically during the show on the amended motion in the Fulton county suit to get the 2020 ballots back. While you've been watching the show, she's been pouring through the amended motion. Anna, what do we know what's going on?
- [94:51]
Anna Bauer
Well, actually, it's the response to the amended motion.
- [94:55]
Benjamin Wittes
Oh, yeah, yeah. It's Fulton County's response. Yeah, sorry.
- [94:58]
Anna Bauer
No, it's. No, it's.
- [95:00]
Benjamin Wittes
Oh, it's the government's response.
- [95:01]
Anna Bauer
Yes, the government's response. So. So Fulton county filed their amended complaint earlier this week. Or I guess I should call it. What are we calling a Rule 41G motion. I know that it's a petition, so it's actually kind of more complicated, though, because it technically is a motion, but when it is in the context of not being in an active criminal case, like I read authority, that it's technically civil action and equity. So is it. But it's not a complaint.
- [95:33]
Benjamin Wittes
I'm not going to fight about this on the show.
- [95:35]
Molly Roberts
Okay?
- [95:36]
Benjamin Wittes
The Civ Pro people can fight about this in, you know, in. In law schools.
- [95:41]
Anna Bauer
Point is, the we earlier this week, we got the amended complaint in which Fulton county goes through their reasons why they think that the affidavit supporting the search warrant for getting the ballots in Bolton county is not sufficient. And as a result, because they've been aggrieved by unlawful conduct of, you know, a search that happened without sufficient probable cause, they should be able to get all the ballots back. So the government just filed its response. I will say that there's a lot of interesting things in both of these motions on the Fulton county side of things in their amended 41G motion. I think the thing that is, is really interesting is just how much the government emitted from its affidavit. And we talked a little bit, I think we mentioned it at one point that, oh, maybe in challenging this affidavit, you do a kind of Franks vs. Delaware type of hearing or type of claim. Although it's a little bit weird in this context because It's a Rule 41G motion, and it's not in the context of an active criminal case. But basically what you would usually do in that circumstance is challenge the validity of the warrant by saying that there were knowing or reckless misrepresentations or knowing or reckless omissions that were made in the affidavit. And Fulton county got this election expert, Ryan macius, who in 2020 was one of the guys who was advising and has been very involved in Georgia election processes and knows a lot about it. To write this declaration explaining all the different ways that this affidavit really just admits some critical context about elections and how they work in Georgia. And I definitely recommend that, because, honestly, that was the thing that got me reading the affidavit was like, I know a lot about how elections work in Georgia from my reporting and from being a longtime Georgian. And I was just, like, tearing my hair out, like, reading these statements that are just clearly not reflective of how the voting process works. The things that are, I think, are really interesting in the government's response. One of the major issues might be standing here because the government points out that the suit to get the property back was brought by the Fulton County Board of Registration and Elections. Now, under Georgia law, the clerk of the Superior Court is actually the custodian of these records. And that's why, when initially they went and got that warrant, I think that they had to then go back and get a second one to amend it so that they could access just the part of the warehouse where these materials. Materials were that were the clerk's storage, not like the Board of Registration and Election storage.
- [99:06]
Molly Roberts
And.
- [99:06]
Anna Bauer
And so here you have this kind of interesting situation where the plaintiff is the Fulton County Board of Registration and Elections, but the clerk is actually the person who's the custodian of records. So the government's arguing that there's no possessory interest in this property that the Board of Registrations has, and that, you know, for that reason, they don't have standing to bring this claim. Another thing that I think is interesting about this motion is that they're arguing that you don't have to have. You don't have to show probable cause for every element of. Of the stated offense. I think that's actually different in various circuits. I did a quick check on it because that was new to me. I've. I've done some probable cause hearings in Massachusetts, and I. We always. My understanding was the law of the law was that you have to have probable cause for every single element of the stated offense. The government is claiming that is not the case. I took a quick check, though, at some of the cases that they cited, and they really omit. It's kind of one of those where they'll do a few words, and then a. And then you. They'll do a few more words in the sentence, and when you go and check it, you're like, oh, actually, those few words that you left out were really important. Critical context. So I'm not sure how I. How we should assess that claim yet, Ben. But a few other things, though, too, is just that they noted that the clerk of the Superior Court, because a part of this motion, right, is that, like, the county is saying, like, we need our property back. We need these ballots back. But the government cites here that in a recent hearing in Fulton County Superior Court, the clerk went before the court and requested to destroy the ballot, saying that the county no longer needed them and that it had been years since the election, and so they should be allowed to be destroyed. So the government cites that as a reason of, like, oh, there's no need for the county to have these records back because they wanted to destroy them anyway. And meanwhile, we have an ongoing criminal investigation. But so those are some of the things I would just point out that are interesting on first read otherwise, you know, really just remarkable that this is a Stanley Woodward brief, and he's citing the 11th Circuit decision in the Mar A Lago overturning the.
- [101:50]
Benjamin Wittes
The Cannon's names on the name on the brief. Who? Tulsi Gabbard.
- [101:55]
Anna Bauer
Tulsi's name is not on there, but it does. No. No pictures of her, no references to foreign interference. But again, also, it's just so remarkable that, like, the United States Justice Department is saying things and they're quoting the affidavit. So, like, I get that, but, like, saying things that are just completely not true about how elections work in Georgia. It's like, just the most ridiculous kind of claims. And literally, the like. I just can't get over the fact that we're using the crack in litigation pristine ballots claim in the year 2026. Like, I just cannot believe that this is where we're at. So. Yeah.
- [102:41]
Troy Edwards
All right.
- [102:41]
Anna Bauer
That's all I got to say about that.
- [102:43]
Benjamin Wittes
We got one more thing we got to get through. Eric, very briefly, I understand that a federal judge has ordered the slavery exhibit restored to the president's house in Philadelphia. And I just want to say, was slavery really that bad that we have to have it all over all of these exhibits?
- [103:11]
Eric Columbus
Yeah, so it's interesting case. It was the 3rd Circuit just issued an administrative stay, basically saying that the government does not need to do anything for the time being.
- [103:25]
Benjamin Wittes
Oh, so slavery wasn't that bad after all.
- [103:28]
Eric Columbus
So.
- [103:29]
Benjamin Wittes
Exactly.
- [103:30]
Eric Columbus
I mean, basically, the case that the.
- [103:33]
Benjamin Wittes
On that decision.
- [103:36]
Eric Columbus
I don't think so. I think it was Judge Harderman. I didn't notice the other two judges.
- [103:40]
Benjamin Wittes
Just checking.
- [103:42]
Roger Parloff
The
- [103:44]
Eric Columbus
issue is whether Trump basically had his. His executive order early last year that said, you know, we shouldn't have bad, we shouldn't emphasize bad things in American history and etc. Etc. Maybe you could call his accentuate the positive executive order and it's the city of Philadelphia sued claiming that sorry, back up. There is this house in Philadelphia that was discovered maybe 20 years ago that belongs to it was where was where George Washington first lived as president in I guess 1789. And this was made part of Independence park, part of National Park Service exhibitions and the city of Phil and the Trump administration took down various displays about slaves who had lived in that house and who had constructed that house. And the city of Philadelphia sued and said it was basically contrary to agreements that it had with the government and this was contracts that they had with the federal government over the course of decades and the judge agreed. This is now put on hold by the Third Circuit and there will be fuller briefing next month on the merits of the government's request for a stay pending appeal, which as we've seen so often these days, is where the real action is on stay requests.
- [105:29]
Benjamin Wittes
We are going to leave it there, folks. We've gone from tariffs to slavery to Fulton county to the walls of the Justice Department in an hour and a half. We're going to be back next week with dogs and we will see you then. This has been a podcast produced by Lawfare and our audio engineer is the very estimable Anna Hickey. You should become a material supporter of Lawfare and join us in the studio while we record these. You can get your questions answered by Peter Harrell about tariffs by Roger Parloff and Anna Bauer and Eric Columbus and Troy Edwards. We can answer your questions. Go to lawfaremedia.org support. This podcast is part of Lawfare's Live Stream series, Lawfare Live the Trials of the Trump administration. Subscribe to Lawfare's YouTube channel to receive an alert the next time we go live. The Lawfare podcast is is produced by the Lawfare Institute. You can get ad free versions of this and our other Lawfare podcasts by becoming a Lawfare material supporter at our website lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. The podcast is edited by Goat Rodia and our audio engineer this episode was Anna Hickey of Lawfare. Our theme music is from Alibi Music. As always, thanks for listening. Want to change the efficiency game?
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Peter Harrell
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