THE LAWFARE PODCAST
Episode: Lawfare Daily: The Trials of the Trump Administration
Date: February 23, 2026

Episode Overview

This episode of The Lawfare Podcast, hosted by Benjamin Wittes and an extended panel of Lawfare editors and fellows, dives into an eventful week in law and national security. The main focus is the Supreme Court's landmark decision to strike down President Trump's use of the International Emergency Economic Powers Act (IEEPA) for imposing tariffs, with broader discussions on executive power, the Justice Department's independence, and consequential developments in immigration, civil rights, and ongoing high-profile litigation.

Key Discussion Points & Insights

1. Supreme Court Strikes Down IEEPA Tariffs

Background and Decision

• The Supreme Court (6-3 vote) ruled the President cannot use IEEPA to impose tariffs. The panel, led by Peter Harrell, breaks down the legal reasoning and implications.
• The decision pivots on the distinction between "regulate" (the statutory text) and "tax"/"tariff," which historically reside with Congress.

Legal Reasoning and Doctrinal Debates

• Chief Justice's majority opinion: Statutory language "regulate" does not authorize tariffs.
• Historical context: IEEPA has never been used for tariffs; 'taxation' is Congress's power.
• Divide within majority: Some justices lean on the "major questions doctrine" (MQD), others (liberals) reject it.
  • “The Chief Justice did…rely on the major questions doctrine...liberal Justices...didn’t think it was necessary to reach this outcome.” (Peter Harrell, 07:20)
• Concurrences: Each justice has a nuanced take—Gorsuch pens a detailed concurrence on MQD, Barrett responds, Jackson advocates for legislative history.

Dissents

• Three dissenters (Thomas, Alito, Kavanaugh) see a broader executive authority, possibly grounded in foreign affairs.
  • “The dissenting Justices…see this more as a foreign policy, or sort of a hybrid kind of power. And that kind of conception…was a backdrop throughout all of the opinions.” (Peter Harrell, 17:16)

Impact and Administration Response

• Roughly 70% of Trump tariffs (by dollar amount) were under IEEPA; the rest under Section 232 (not at issue).
• Trump can potentially recover some tariff authority under other statutes (Sections 122, 301), but not with the same speed or breadth.
• “What’s going to be hard for him is…there’s really no good way…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.” (13:04)
• Peter Harrell: Loss of “tariff by whim” for the President; alternative statutes impose more procedure and judicial review risk.

President’s Reaction

• Trump denounced the Court, claimed betrayal, and vowed to use other tools (e.g., embargoes, Section 122 for temporary tariffs).
• “He…argued that he was betrayed by several of the Justices; that the Justices seem to be in hock to foreign powers.” (Peter Harrell, 18:30)
• Section 122 allows 10–15% tariffs for 150 days under certain economic conditions.

Refunds and Legal Fallout

• Major question: Will $200 billion in tariffs be refunded? Panelists believe refunds are likely, though process may be messy.
  • “Tariffs are, from a constitutional and legal perspective, just another tax…It has always seemed to me 100% clear you should be able to get a refund.” (Peter Harrell, 34:30)

Notable Quotes and Timestamps

• [06:27] “IEEPA…never use the word tariff or duty…The government’s argument was, well, a tariff is a form of a regulation on the importation of property…” (Peter Harrell)
• [14:23] “Clearly not legally the same ability to do tariff by whim…this is Donald Trump…” (Peter Harrell)
• [32:41] “How big a deal is the hole that this is going to blow into the budget?…I’ve seen estimates…close to $200 billion.” (Benjamin Wittes & Peter Harrell)

2. Department of Justice Independence & the Trump Banner

Banner Incident at the DOJ

• A large banner featuring Trump’s mugshot appears on the Justice Department building with the slogan “Make America Safe Again,” prompting concern over the Department’s independence.
• DOJ statement: “...proud of the historic work that, quote, this department is doing to make America safe again at President Trump's direction.”
• Troy Edwards: “My obvious reaction is this is a problem.…it’s obvious this department has lost its independence.” (36:43)

Implications for DOJ Operations

• Concerns about increased political interference and vulnerability to vindictive or selective prosecution claims in court.
• Possible impacts on staff morale and retention.

Notable Quotes

• [49:13] “The department’s response…they're proud of doing this under…President Trump’s direction…if you’re a defense attorney, that picture may be an exhibit in one of those motions moving forward.” (Troy Edwards)
• [51:27] “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.” (Troy Edwards)

3. Contempt Proceedings in Minnesota’s DOJ

Case Overview

• Special Assistant U.S. Attorney Matt Issahara held in civil contempt for failure to ensure a detainee’s lawful release and return of property, amid systemic administrative meltdown in the Minnesota U.S. Attorney’s office.
• Judge Provenzino points to chronic resource issues but emphasizes consequences for petitioners.
• Office response considered evasive and pointed fingers at the judge.

Notable Quotes

• [62:03] “It’s just knee jerk, inane, offensive, and it’s indicative of why this situation exists and can’t be improved.” (Roger Parloff)

4. Press Freedom: Nathanson Hearing in EDVA

Hannah Nathanson / Washington Post Device Seizure

• Reporter’s digital devices seized by the government under Espionage Act investigation; debate over search procedures and protections.
• DOJ’s exclusion of Privacy Protection Act language from warrant scrutinized by judge.
• Judge leans towards court taking a direct role in privilege review.

Debates on Reporter’s Privilege & DOJ Practice

• The myth/reality of robust “reporter’s privilege” dissected (per Judge Posner).
• Debate on proper DOJ protocol, need for internal checks before extreme actions against journalists.

[65:14] On Major Questions Doctrine (MQD)

• MQD requires clear Congressional intent for major executive actions; liberals have historically resisted power-limiting doctrines thought to target liberal regulatory agendas.

5. Immigration and Civil Rights Roundup

ICE Enforcement in Churches

• Judge enjoins certain ICE actions at churches, finding religious freedom violations under the Religious Freedom Restoration Act.
• Limited to specific churches and types of enforcement.

Minnesota Refugee Detainment Policy

• New federal policy detaining all refugees who haven’t adjusted status within a year challenged in court; judge leans toward injunction.

Palestinian Student & Procedural Wins

• Immigration judge ends removal proceedings against Columbia student targeted under foreign policy rationale, echoing other recent government failures in politically charged removals.

Civil Rights Suit: Idaho Raid

• ACLU brings class action challenging joint task-force raid at a Latino festival (200 officers, 400 detained), advancing a novel theory to hold federal officers liable via state law.

DOJ Violations in Immigration Cases (New Jersey)

• DOJ admits to violating 52+ court orders over ~2 months in New Jersey immigration cases. No excuse for noncompliance.
  • “[Q]uestion…how what percentage of orders…has your office violated?…The answer should be zero every time.” (Troy Edwards, 91:11)

TPS for Syrians

• Second Circuit refuses to stay order blocking TPS termination, but host predicts Supreme Court will ultimately side with government.

6. Fulton County Ballots: Rule 41(g) Litigation

Motion & Response

• Fulton County seeks the return of 2020 ballots, challenging government’s affidavit and search warrant (key issues: standing, probable cause, technical custodianship).
• Govt counters on procedural/ownership grounds and necessity for ongoing investigation. Amended brief includes echoes of controversial 2020 election claims.

Noteworthy Discussion

• “Just cannot believe that we’re using the crack in litigation pristine ballots claim in the year 2026.” (Anna Bauer, 102:41)

7. Slavery Exhibit in Philadelphia / Executive Order

• Federal judge (temporarily stayed by appeals court) ordered restoration of slavery exhibit at Philadelphia President's House, after Trump administration removed it following EO to "accentuate the positive" in American history.
• Legal action relies on prior agreements and contracts with the city.

Notable Quotes (w/Timestamps)

• “The government’s theory is that IIEPA…lets the President, in a time of a national emergency, regulate importation or exportation of any property. [But] all the arguments against…boiled down to: a tariff is not a regulation of the importation of property.” – Peter Harrell (06:27)
• “It has always seemed to me 100% clear you should be able to get a refund. And the only question has been…will the government make it easy…or are they going to say every individual…has to go into court and sue…” – Peter Harrell (34:30)
• “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.” – Troy Edwards (49:13)
• “If you’re a defense attorney, that picture may be an exhibit in one of those motions moving forward…” – Troy Edwards (49:13)
• “I’ve had the view since the beginning of last year... that the clearest, truest winners of Trump trade policy are trade lawyers.” – Peter Harrell (29:53)
• “The answer should be zero every time.” – Troy Edwards on violating court orders (91:11)

Important Timestamps

• [02:14] Panel introductions; Supreme Court decision announced
• [05:49] Chief Justice’s logic and statutory interpretation
• [14:23] Presidential reaction, limitations of alternative tariff statutes
• [18:30] Trump’s reaction to ruling
• [32:41] Fiscal impact & tariff refund litigation
• [36:43] DOJ independence and banner incident
• [53:06] DOJ contempt in Minnesota case
• [62:41] Immigration roundup (Minnesota, TPS, ICE & churches)
• [94:50] Fulton County ballots: analysis of Rule 41(g) proceedings
• [103:11] Philadelphia slavery exhibit litigation

Conclusion

This episode offers a sweeping, incisive look at the current legal battlegrounds of the Trump administration. From executive overreach and rebukes at the Supreme Court to the symbolic and practical challenges facing the Justice Department, and fresh legal fronts in the ongoing battle over immigration, civil rights, and press freedom, Lawfare’s experts break down complex issues with clarity, candor, and the occasional dose of wry humor.

For full context, legal citations, and ongoing developments, visit LawfareMedia.org.