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- [00:01]
Benjamin Wittes
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.
- [00:37]
Anna Bauer
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Benjamin Wittes
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Roger Parloff
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- [00:47]
Anna Bauer
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- [01:24]
Benjamin Wittes
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- [04:09]
Anna Bauer
Well, you know, Ben, we're leading off the show with this, but I, I honestly think the thing that's the most notable about it is, is what they didn't change in this superseding indictment. So, so the, the thing that is kind of the big change, substantive change, is just the number of defendants for a long time in this case previously that involved, you know, nine or 10 defendants, including Don Lemon and Georgia Fort, who is an independent journalist. The government has said that, you know, it has an ongoing investigation that it wants to track down and arrest every single one of the protesters who were present in city's church on, on that day. And sure enough, what they appear to have done is now indicted a total of 39 people in relation to this protest. But, you know, we've, we've talked before about some of the potential problems in this indictment, including things like the way that they framed the conspiracy against rights charge. The predicate of it being, you know, framing it as like a First Amendment right secured by the Face act, as opposed to, you know, a right that is actually secured by the Face Act. They did not change that. There doesn't seem to be more of an effort here, and I'd be interested to see if Troy and Eric want to chime in, but there doesn't seem to be more of an effort to correct some of the apparent factual inaccuracies that we pointed to in the piece that we wrote about this. There doesn't seem to be an effort to, you know, focus in on the potential interstate commerce issue by, you know, potentially putting some facts that might relate to that in the indictment. So otherwise, you know, it's mainly just adding defendants to it. But, Eric Trump, Troy, do you guys have thoughts? Have you had a chance to look at the indictment? And is there anything else that stood out to you?
- [06:41]
Troy Edwards
I did, and my overall take would be that I think the leadership overseeing the case ought to read more of Lawfare and less of Truth Social. I'm surprised that at least the factual inaccuracies that existed in the original indictment, it's something they could have corrected in superseding now and adding so many new defendants, and it doesn't appear they've done that. And if you didn't do the small things to correct these factual inaccuracies, then I think that's somewhat telling.
- [07:13]
Benjamin Wittes
And I look at this and I say if you haven't corrected that, that sort of implies that you kind of know this is going down right, that you're there's something just for show about this. You know it's going to get thrown out or maybe it'll take a jury 35 minutes to acquit or whatever. But you know, you're not there's no reason to perfect it because you know it's not going to go anywhere. Is that your read on it as well, or, or do you think there may be a high on their own supply quality to this?
- [08:01]
Troy Edwards
I think my read was the latter. And I think we'd be silly not to wonder if there's an ego problem here at the leadership level that to change something would be to concede some non zero amount of error or defeat to the people who are pushing back publicly and saying that this was done incorrectly. And so I guess it just depends on what your metric of success is. If your metric is we stick it to the forces in the media or outside forces that say that this was done incorrectly, then maybe they have met their success now and don't care much where it heads from here. As I think we put in one of our pieces on this case, sometimes in these what appear to be politically charged prosecutions, the process may be the point that you are implementing a painful process of the criminal justice system onto folks who you disagree with or don't like. And so I worry that that's part of what's going on here, particularly when you see simple things that they could have corrected in a superseding and didn't. Though I'll end with saying they got it in front of a grand jury and received an indictment. And we ought to remember that there is a grand jury of folks who have looked at something factually and heard something legally and determined that there was probable cause. Those two factors matter to me. What facts were they presented with, what facts were they not, and what legal contours or framework were they presented with? Those are questions we don't have the answers to yet.
- [09:37]
Benjamin Wittes
Right. And moreover, we don't know what law the grand jury was presented with, either what they were told about the statutory law in question or what they were told about the First Amendment. All right. So meanwhile, while the number of defendants keeps going up, the number of FBI Agents keeps going down the Justice Department. The FBI has fired all the agents and staff who worked on the Mar A Lago case. What do we know, Troy, about the latest purge at the Bureau?
- [10:22]
Troy Edwards
So a backdrop here is that there are roughly a dozen or so combination of agents and analysts and professional staff, as they're sometimes referred to in the Bureau, who have been terminated by FBI leadership and reportedly under the guise of Article 2 and what folks are referring to as the weaponization letter, some accusation that these folks have shown poor judgment and performance in their duties. And the common link across this dozen or so folks is that they all participated in, as it's been reported, the investigation and prosecution, attempted prosecution of President Trump before the election went under, the specific factual elements of the Mar A Lago classified document retention. And so there are a lot of questions about why and why now with no real facts that have been publicly revealed that are new. But before we dive into that, I, I kind of just want to comment on this in two ways, and one is a very personal one. But I think people should remember this. There is a human cost to this. We run the risk of becoming numb to this as the number grows of FBI agents and analysts who are unceremoniously dismissed from their jobs. We should not become numb to this. We should look at this and remember the pain that each one of these individuals is going to feel for the next few days, weeks, months. They have been ripped from a fabric that they've tied themselves to for a number of years because they believed in serving something greater than themselves and they believed in protecting this great country and everybody who lives in it. And they were the best. You need to remember the Bureau and the DOJ are going to pick the best when they undergo really important investigations. These folks were the best. And so for them to be ripped from that fabric that they've tied themselves to and served for so long, it's going to be really emotional and it's going to be painful. Some of them don't even talk to their families or parents about the cases they work on. So now they have to reveal that because of how much they care about protecting the nation's secrets and the investigative tactics. And so I think we'd be well to remember how painful this will be on an individual level before we dive into this next point, which is there's a real national security cost to this. You have to remember, not only are they some of the best, but they work in counterintelligence and counter espionage efforts in this country, and they do it. They were scattered across a couple parts of the country, but largely out of this area. And so they're working on some of the most important work that the FBI can do, especially at a time where when we are facing greater and greater threats from foreign adversaries with a target rich environment, by the way of disgruntled federal employees, they have a lot of important work to do to keep this country safe and to stop those foreign adversaries from succeeding. And now leadership has decided, no, we should just fire them. And people should not ignore that great national security cost that we undergo every single time this happens.
- [13:51]
Benjamin Wittes
All right. That is a point that is worth making every single time. It is true of a usas, but it is much more true of FBI agents. There is. There are many, many, many good law schools churning out people every year who are capable of being assistant United States Attorneys. No offense to assistant United States Attorneys. There are. There is one place that produces FBI agents. And. And they are. Their expertise can be extremely specialized. All right. Anna Bauer, you were supposed to be in Fulton county today in court. You appear to be, judging from the exposed brick and back of you in New York City, not in court. Why aren't you in court in Fulton County?
- [15:01]
Anna Bauer
Yeah, I was supposed to have a whirlwind 48 hours of going from Nashville Abrego Garcia hearings to Fulton county search warrant hearing because previously there was a hearing set over Fulton county, the Fulton County Elections Board motion for return of property under Rule 41G of the Federal rules of Criminal Procedure in which they were trying to get the ballots back that were seized by the FBI a few weeks ago. And we thought that there would be an evidentiary hearing that might include testimony from Hugh Raymond Evans, who is the FBI agent who swore out the affidavit in support of that search warrant to get the Fulton county ballots. Because Fulton county had alleged in its briefing that there were all these omissions and misleading statements that were made in that affidavit. So it looked like it was shaping up to be what could be a pretty interesting hearing. But the government filed a motion to vacate that hearing, claiming, among other things, that there were standing issues. I. I mentioned this last week that there was this argument that they made that the. The Fulton County Elections Board does not have a possessory interest in the ballots because under Georgia law, it's the superior court clerk who is actually the person who has custody of these materials. But sure enough, the clerk of the superior court ended up joining the suit. So that kind of became a bit of a moot point, but the government had all these other reasons that they thought that the evidentiary hearing should be vacated. And Fulton county filed a sir reply to that, in which, among other things, they revealed that at one point in the beginning of these discussions that they were having with the government about getting some of these materials back, the government offered to make copies and then return the originals of the ballots. And they were using this as a reason to say that, that, no, we should still have this hearing. You know, the look of what the government, they've had these shifting positions, but I think it ultimately end up potentially being a little bit self defeating maybe, and I'm speculating here. But after that sir reply was filed, Judge Boulley entered an order on the docket in which he said, okay, I actually, I'm going to cancel the hearing that's set for Friday. And, and I want everyone to go into mediation. I want you guys to talk to each other and choose a mediator and, you know, consult with the mediator. If you can't pick one, I'll choose one myself and then report back to me by. I think it was March 18th. So it's possible that Judge Bulley saw this talk of some discussions about the materials and thought, oh, there's some hope of some type of mutually agreeable resolution here between the parties. It's not entirely clear. But regardless, in a somewhat surprising move, he decided to cancel that hearing. And so now we're in, in a bit of a limbo zone while we wait on the mediation.
- [18:50]
Benjamin Wittes
Can I ask a dumb question about this order? So I have never heard of mediation over allegedly illegal search. Mediation is the kind of thing you do when you're getting divorced and you're trying to divide up property or, you know, there's a, there's, you know, there's a, you have some kind of forced arbitration when you. Over a product liability complaint or something. But when you do an FBI search warrant and the allegation is there was no probable cause for the search warrant, that's not the kind of thing that a mediator can sort of divide the baby and say, you know, okay, well, this part of the search warrant was, what is, what are they mediating here?
- [19:48]
Anna Bauer
Well, well, I think it has to do with this specific thing, thing that Rule 41G provides for. Right. Like this isn't like an exclusionary rule kind of motion where you're trying to get evidence excluded in a criminal case against you. This is where the whole purpose of the rule is to allow you to get your property back or Even, you know, it's. It's the language of the rule even allows for things that don't necessarily involve you just getting your property back.
- [20:21]
Molly Roberts
It's.
- [20:21]
Anna Bauer
It's like you can craft a remedy where there might be certain restrictions over how in the future the property will be used by the government after they've gotten it. And so I think here the idea again, because I mentioned that there was this discussion in one of the reply briefs about the parties discussing, oh, well, it might be mutually agreeable for the government to, like, make copies and then give these originals back to Fulton County. Like, I think that the. What the judge is thinking here is, like, if they're taught. If they've talked about that, then maybe it's possible. I don't even have to get to the question of the unlawfulness of the search, because the remedy that I'd be crafting if I did find it to be unlawful would be something. Yeah, it's just a give it back or. Or some variation of, like, the government can make copies and then give back the originals, like the thing they'd been talking about doing between. With, you know, between the parties. So I think that there's a little bit of a. Like, Judge Bulley can maybe sees a way of having to not decide this question, which would be convenient for him, because I don't know that he wants to have to say the things that he would have to say about this search warrant.
- [21:51]
Benjamin Wittes
But what about the issue of my deferred gratification? Because I want to see this FBI agent on the stand defending this affidavit.
- [21:59]
Roger Parloff
Anna?
- [22:00]
Benjamin Wittes
Same.
- [22:02]
Anna Bauer
I was really looking forward to that. And I'm sure, too, that there are certain people in Fulton county who, apart from, you know, the government, made this argument. And I don't think that it is a reason to cancel the hearing, but I think there's an element to this that is true, that a part of this litigation is almost like a collateral. Not a collateral attack, but it's a way of getting more information about. For Fulton county to get more information about what the government is even doing here in terms of this criminal investigation. And. And because, you know, it's. It's not entirely clear, based on the search warrant affidavit, who the actual target or subject of this investigation is. So if you're someone who is, you know, wanting more information about that, it would be really helpful to be able to put an FBI agent on the stand and ask him questions about his state of mind when crafting this affidav it. So I'M sure that those folks who might be interested in that are disappointed as well that this hearing has been put off. But, you know, now it's like it'll be several weeks until we know. And in the meantime, the question is kind of like, what is the federal government doing with. With these ballots? So we'll see.
- [23:34]
Benjamin Wittes
Not to mention, what is the federal government doing in this investigation? What is the next step? Speaking of aggressive searches, Molly Roberts, I hear there is a ruling in the matter of your former colleague, Ms. Natenson.
- [23:57]
Molly Roberts
Yes, that's right. Lots of Rule 41 today. So the magistrate judge in that case did issue an order, and the upshot was what we expected. The court is going to conduct the review of what materials are responsive to the warrant that he issued for searching Hannah Natenson's home and devices and car in person. But the details are a little more interesting. So I guess the first place to start would be the merits, which is the judge essentially said there are two questions here. One is if the government believes that a reporter has national security evidence provided by a third party, who in this case is the contractor who's being prosecuted for leaking the national security information? And the government is worried that some of that information could be destroyed, in this case by signal, the messaging application, can the government seize it to prevent the destruction, even if that would constitute a restraint on the reporter's work? And then the second question is, who should locate and extract the information? So I said, what answer? He came to for the second there. For the first, he said basically that there is a restraint here, but that that doesn't mean it's not okay, because the Supreme Court has never recognized absolute press immunity from legal constraints. So the court has to determine, is the restraint reasonable? The government has a compelling interest here, particularly because national security information. And so the government can retain only the responsive information. And then the second point there, how do you extract it? I spoke to. He talked about the court finding out that it's responsive. And when he did that, interestingly to me at least, he talked about the context of the government going really aggressively after leakers. And he said that letting the government just decide here would be the equivalent of leaving the government's fox in charge of the Washington Post's hen house. And he said the government's remedy that just buy a new phone, new laptop, set up new accounts, start your whole professional universe of reporting from scratch was unjust and unreasonable. So that's what he said there. But along the way, he spent a lot of time on the kind of spicier part of the hearing, the Privacy Protection act, which is that he was upset at the government for not including in its warrant application any mention of this act, which does have exceptions for news gathering material. He went through a short little Privacy Protection act analysis and at the end of it he said, I'm not totally sure whether I would have denied the warrant if they told me about this. There are arguments on either side, but at the very least I would have asked more questions. But they didn't tell me. And when he says they didn't tell me, he also says there were conversations with people at the highest levels of the Justice Department about what to do here. They had multiple opportunities to tell me and they didn't. And so there he goes into the idea that there's usually this presumption of regularity when it comes to the government's dealings with courts and that the government's conduct has, quote, unquote, disturbed that baseline posture of deference. And I know lt Troy has some thoughts on that and kind of the consequences implications of that. Disruption of deference.
- [27:27]
Benjamin Wittes
Yeah. Is a disruption of deference, Troy, the same as a disruption in the force?
- [27:36]
Troy Edwards
I think one may lead to the other.
- [27:38]
Benjamin Wittes
Yeah. So what is the significance? This is now the 8th or 10th federal district judge who has made a not so veiled reference to the presumption of regularity being not so presumed and not so regular these days. How is this one different?
- [28:06]
Troy Edwards
Yeah, I think one significant way this seems different to me is and Molly can tell me if she read this to be different, but based on listening to the hearing in person and then reading the opinion. This seemed directed at the line prosecutors and less at maybe the top leadership. And I find that to be different. When I've heard other judges or read other judges to be talking about this presumption of regularity, they've often used that line in talking about decision making or decision makers up at the top. If I were the line, I would be really concerned right now. And people ought to think about this. And this is a context that matters. This is an out of district search warrant. And so what that means is Maryland, the district of Maryland running this investigation, is seeking this search warrant in this case and sends a search warrant because It's a Rule 41 search warrant of a physical premises. It has to be in unless there's an Exception under Rule 41, it typically has to be sworn out by a magistrate sitting in the district where the property is. And so that's how this came to be at the Eastern District of Virginia. And typically if you are on duty or you're a special A, you would say on detailed edva, you can take those on pretty quickly, review them, schedule the search warrant to be sworn out by the magistrate and go forth. Because the work that's being done is typically by the sitting district that's requesting this search warrant to be done. And so an example here from as an outsider, you think Maryland submits this and because it's of a reporter, it has gone through up to the attorney general and backed down. And so if it's already gone up to the attorney general and backed down and you kick it to an A with, say, an edva, that's not to say the EDVA USA should not be reviewing it, but it is to say you would take that and probably review it quickly and then submit it because it's been approved all the way up to the attorney general. Consider the shockwave that the judge's determination here and commentary on the presumption of regularity will have on the line and how much it may slow down the national security process if you're a line AUSA and say, no, no, I have no interest in taking on extra cases or warrants that are coming in from other districts that I don't have the background knowledge of, and I can't trust that it's gone to the AG and back. And so it's good. You may, one, shy away from that responsibility or two, certainly maybe sit in your office and not want to play a role in keeping these cogs moving and these wheels moving for fluid investigations. I think there's a lot of downstream consequences if a judge is going to now comment on the line in this regard, and that's different than how other judges have.
- [31:03]
Benjamin Wittes
All right,
- [31:06]
Molly, has the grand conspiracy gotten any grander?
- [31:13]
Molly Roberts
Actually, yes, that is precisely what has happened. So this is just a brief update on the grand conspiracy stemming from a New York Times story by Charlie Savage. And what's happened here is that we already knew that Jason Redding Quinones in the Southern District of Florida had issued subpoenas to a bunch of people involved with the 2017 Intelligence Community Assessment of Russian interference in the election. But we've now learned that the inquiry has widened to encompass the FBI investigation into connections between the 2016 Trump campaign and Russia. So that's a widening still sort of in the same time period. But that's a widening already. That's a knitting together of investigations. Of course, those investigations were in some ways related. What we've also learned from this story is that FBI agents have conducted interviews of at least one retired agent who was involved with deliberations with the Justice Department over opening the investigation into Trump's attempts to create false slates of electors in swing states. And that that's where the grand conspiracy really starts to get grand. Right. Because what is the plausible connection between these things? The agents conducting the interviews are based in D.C. but they said they were asking on behalf of agents based in Florida. You may once again be wondering what does any of this have to do with Florida? And that's when the grand conspiracy would and could become truly grand, which is if they would pull in the Mar A Lago classified document search, which of course we've already been talking about today in the context of the fired FBI agents. But one interesting component of this story is that this is all still happening out of Miami. And one concern that grand conspiracy skeptics or potential defendants have is that the administration, the Southern District, seems to have convinced the chief judge down there, Cecilia Otunaga, to stand up a grand jury in Fort Pierce, which is Eileen Cannon's district, that was supposed to start in mid January, but the latest round of subpoenas still came out of Miami. So we don't really know why. We don't know whether she intervened, which John Brennan's lawyer did request that she do. We don't know whether they're just using it in Miami for now. And it may end up in Fort Pierce, particularly, particularly when they try to bring in the Mar? A Lago connection, which still isn't Fort Pierce. But in any case, we don't know why that is. But it seems like it's still in Miami at the moment, although it is widening and becoming grand in a way that it was not yet.
- [34:03]
Benjamin Wittes
Well, speaking of Judge Eileen Cannon, I hear Anna Bauer and I even read the 15 page order that she has blocked the release of the Mar? A Lago report permanently and enjoined the Attorney General and all future Attorney Generals from releasing it. I actually was pretty surprised when I read this at how hard I thought it was going to be to ever overturn it. I'm curious what you made of it.
- [34:45]
Anna Bauer
Well, now I'm curious why you think it'd be hard to ever overturn it.
- [34:51]
Benjamin Wittes
Well, because first of all, both parties withstanding to challenge it, to take her to the 11th Circuit are consenting to this. So the only way I could imagine it being overturned would be if the some future Justice Department were to move her to dissolve it. She would refuse and then they would at that point appeal to the 11th Circuit. But having agreed to it and even requested it, I'm not sure that would
- [35:30]
Roger Parloff
be
- [35:33]
Benjamin Wittes
like, I'm not sure that would be an abuse of discretion on her part or anything or legally Im inappropriate. It actually seems to me like this is going to have to leak in defiance of her order. I'm not sure what the mechanism by which it would become public notwithstanding the order or the order would get disturbed. I don't know. What am I missing?
- [36:04]
Anna Bauer
I think the thing that you're missing is the ongoing efforts to intervene in the case by American oversight and I believe the Knight First Amendment Institute there, because keep in mind, those groups tried to intervene. I mean, it's been a long cycle of litigation in relation to this, but tried to intervene. Cannon won't let them and so now has styled this order as, you know, unopposed. But, but pending before the eleventh Circuit is an appeal of the denial of these First Amendment transparency organizations to intervene in the case. So there could be in, depending on how that turns out, there could be some type of appeal related to this that is opposed if the 11th Circuit decides to allow the intervention on behalf of these public interest groups.
- [37:24]
Benjamin Wittes
Gotcha. So that would be the immediate term mechanism.
- [37:29]
Anna Bauer
Yes. Roger, is that how you see it? I'd be curious for your thoughts as well, since you've been following this.
- [37:36]
Roger Parloff
Yeah. The 11th Circuit appeal is scheduled for the week of June 22, and they actually, these groups, they tried to intervene twice after she and so the same day that she issued this ruling that we're talking about, she also denied the second attempt to deny. So I think what we'll see is some sort of consolidation. And but it's still, it's still like you say, it's, it's complicated because you can't, they aren't going to relitigate whether the special counsel was properly had proper authority. It's going to be purely public access, First Amendment, common law, public access, First Amendment, some FOIA related arguments. And it's not. Yeah, it's not a easy, it's not a slam dunk. Right.
- [38:40]
Anna Bauer
I also, one other thing I'll mention about this order with Cannon, though, is that, you know, a big part of it is her saying, you know, essentially accusing Jack Smith of violating her dismissal order, which I do not find compelling at all, in part because, you know, that order, the way that it was styled was like, I'm going to set aside all the actions that he's taken thus far, including this indictment. It wasn't perspective and it wasn't like it disqualified him from being the special counsel, if that makes sense. It was retrospective. Am I right about that, Roger, or do you see it differently?
- [39:38]
Roger Parloff
Well, it said he was unlawfully appointed, and then he continued to. Do the special counsel draw it up. And the possible mistake he made was that he did not move to stay the order, which we saw in the Halligan thing.
- [39:55]
Benjamin Wittes
Right. It's basically the same issue, except that one has merit and the other does not.
- [40:00]
Anna Bauer
But it's kind of like what we talked about with the Lindsey Halligan thing, where we, you know, didn't. With Judge. Oh, gosh, I'm forgetting the name of the judge who said that Lindsey Halligan, by signing herself as U.S. attorney, was in violation of the court order. It's a kind of a similar thing where, like, you know, there. There. There also was a plausible argument that she wasn't in violation of a court order by signing her name as the U.S. attorney because the order did not specifically disqualify her, although it did declare her to be unlawfully appointed.
- [40:44]
Roger Parloff
And.
- [40:44]
Anna Bauer
And here with Cannon somewhat similarly, although I think there's actually distinctions that are important in that Judge Curry in EDVA was actually deciding for the whole of the district. But in Judge Cannon's order, like my memory of that order and the language she cites in this now order permanently and joining the special counsel's report is she's saying, here's my remedy. It's to declare the actions that he's taken thus far, Ultra Virus, and to dismiss the case. It's not a perspective barring him from doing anything else as special counsel, including writing the report, which he then proceeded to do.
- [41:38]
Benjamin Wittes
Nor can she do that. And that's why I actually thought Judge Novak was a little bit out of line with respect to Lindsay Halligan. You know, judges can't fire executive branch officials as a general matter. They can merely say if they act inappropriately in bringing an indictment, I can dismiss the case. And so I think both she and he has a better argument than she does, because Judge Cameron McCurry was appointed by the court to represent all of the judges because everybody else was conflicted. But I do think they're both a little bit out of line. And the idea that Judge Cannon can say, you know, I don't think you were allowed to write that report, therefore I'm sealing it forever, is, you know, it's very aggressive.
- [42:47]
Anna Bauer
Right, right. And then another thing I'll say as well is that she makes this argument that there would be a manifest injustice and there would be fundamental fairness concerns, because in Previous special counsel's reports. It's always been about someone who either there was a declination and the special counsel is explaining the declination, or she says she's hard pressed to find, you know, a case where it's like this, where it's someone who professes their innocence and they've never been adjudicated, the case has never been adjudicated at trial. And so she seems to think that is would be just fundamentally unfair. But I will note, as other, as others have pointed out, there are examples of people who, as I understand it, I think especially maybe it was the Durham prosecutions, but of people who were acquitted and then there were still, you know, special counsel reports that came out about them that rehashed the charges.
- [43:53]
Scott R. Anderson
Right.
- [43:53]
Benjamin Wittes
So it's a bad argument.
- [43:55]
Anna Bauer
Yeah, it's a, it's not a good argument.
- [43:59]
Roger Parloff
And plus, I'm seeing inspector general reports that discuss innocent people. I mean, people that have never been charged and so on.
- [44:07]
Anna Bauer
Yeah. And meanwhile, you've got Ed Martin, who is now saying that basically declaring a policy of the United States Justice Department is naming and shaming people, which is not something I subscribe to. And I think that, you know, that it's important to keep in mind that there are reputational interests when it comes to the Justice Department putting out reports about people who, whose guil is ne has never been adjudicated. But this seems like a very different circumstance than that.
- [44:40]
Benjamin Wittes
All right, we have a breaking news situation, folks. The president has announced that the federal government is no longer doing business with Anthropic. And I happen to have Alan Rosenstein right here. I texted him and said, hey,
- [45:03]
Scott R. Anderson
you've
- [45:03]
Benjamin Wittes
been writing about this. This isn't in litigation yet. But am I right that there's no way this goes another week without being in litigation?
- [45:15]
I am extremely confused. I'm mostly sleepy, but I'm also extremely confused about what's going on. So, I mean, I guess this is like about as developing of a story as it gets since we're dealing with a truth social post from 17 minutes ago that is written in Trump's usual florid style. And I will just say I do find his thank you for your attention to this matter still the only charming thing about him. But I do love that little bit of weird politeness at the end of his rants. So just to give a 30 second summary of what we've been talking about, over the last week, there's been a growing feud between Anthropic, which is actually the main supplier of classified AI systems to the Pentagon and the Pentagon, which would like to continue to use Anthropic but for quote unquote, all lawful purposes, rather than continue with the two contractual restrictions that the Pentagon had in fact agreed with Anthropic, which is that its systems would not be used for mass surveillance of Americans or fully autonomous military. And this has gotten very heated over the last week or so for those who are interested and if you're not already, shame on you. Subscribe to Scaling Laws, Lawfare's AI policy podcast, where Kevin, my co host and I did a deep dive on this on an episode released earlier today. And so what appears to have and the three options to the government were just don't do business with Anthropic anymore. The second was invoke the Defense Production act to force Anthropic to provide its services, but without these contractual restrictions. And the third option was label Anthropic a, quote, supply chain risk, which is the sort of thing that you usually label a foreign company controlled by a foreign adversary nation like Kaspersky, which is the Russian cybersecurity agency company, or Huawei, which is a Chinese telecom agency. And that would both basically ban Anthropic from government contracts, but potentially also, and this would kind of be the nuclear option, ban anyone who uses Anthropic internally from having a government contract. And because Anthropic has a huge enterprise business and that's where it gets a ton of its money to, for example, train the next models that would, I don't know if that would destroy the company, but it would be a massive impediment to the company. So anthropic had until 5pm to accede to the Pentagon's demands, which I guess is in 15 minutes. Sorry, I have to do the central to Eastern conversion in my head, but what happened 12 minutes ago is that Donald Trump released a truth social basically banning Anthropic from all government contracts, but giving military agencies that use Anthropic six months to off board Anthropic. So what this means depends enormously. The implications depends enormously on what this means. And it's not entirely clear. The good version of this is that this is that first option, which is the government just doesn't do business with Anthropic, which I think there's a certain defensibility there. Right. Government can choose to do business with whomever it wants. That would obviously cost Anthropic some amount of money, but it would be a fundamentally contained loss for Anthropic and whatever they can make their money off of enterprise. But if the way this will be implemented is through a supply chain designation. And the main reporters for Axios who have been covering this the best over the last week in their initial reporting of this eight minutes ago, seemed to suggest that there would be such a designation. But then they amended the story six minutes ago to remove that paragraph. We're like in a real fog of war situation. If this was a supply chain designation, that would be a real nuclear option. And then there would be litigation. Ben, as you point out, whereas if it's just we're not doing anthropic, I think this is. I don't think that would lead to litigation. I think that would be a face saving maneuver for everyone. That would, I think, be a win for anthropic, actually. And the trade for anthropic would be they've lost $200 million contract, but they've gained, as the kids say, an infinite amount of aura, which jokes aside, for an industry where the ability to get the very best talent is still the most important bottleneck is so much more valuable than a government contract. So if this is what I think this is, which is a face saving climb down right by the executive branch, I think anthropic actually has come out in a much, much stronger position, even if they're slightly poor. But it also could be a supply chain designation. And then we're in a completely different universe.
- [49:56]
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- [57:18]
Quite possibly. And I just have to say, as someone who spent the last 18 months becoming progressively more and more unhinged over the TikTok stuff. I am very, very nervous that this is the beginning of my next 18th month progressive unhingement. But we shall see.
- [57:33]
We shall see. All right, Scott, it is time to play the first time in a goodly number of weeks who wants to dismantle a federal agency. And our contestant this week is Scott R. Anderson. We have a variety of updates in federal agency and. Aid contracts cases. Let's start with the the aid funding updates in AIDS Vaccine Advocacy Coalition. What's what's been going on?
- [58:16]
Roger Parloff
Sure.
- [58:16]
Scott R. Anderson
Well, we saw an interesting development this week that I think people have been watching this case closely. We're a little confused what was happening. We pieced it together. That was worth talking about the appeal that's been pending before the D.C. circuit for the last few months since the you may recall there was a bunch of D.C. circuit litigation about whether or not the last bucket of funds, which the Trump administration used a pocket rescission on, basically rescinding the funds without less than 45 days go before the funds expire, which was a basis the district court said, hey, I'm going to go ahead and leave my preliminary injunction in place and try and get the government to keep paying out these funds. That was eventually stopped by the Supreme Court, which said, no, actually we're going to go ahead and stay this preliminary injunction and let these funds lapse. Although notably it noted or hinted at or nodded at the possibility that there might be post expiration remedies, something the district court judge didn't want to rely on while the appeal is ongoing. So the preliminary injunction that the district court judge issued saying you have to make payment on these funds has been pending appeal to the D.C. circuit for the last several months. It was dismissed voluntarily by both parties without any clear explanation on the docket earlier this week. Actually, the very end of last week, we were kind of puzzling, well, what exactly does this mean? Why did they go about this? It had been stayed pending a decision in The Vera Institute vs Department of justice case, another case that deals with channeling under the Tucker Act. That's the related question, which is that challenges to whether challenges to funding and contract decisions have to go through the Court of Federal Claims or that they can appear in the first instance in District court. And that is one of the issues and arguably one of the main issues at play in this case. But we weren't sure why they shifted from a stay of this appeal to dismissal. We finally got an update on this yesterday in the District court docket where they filed a notice to the district court where not only just the appeal has been dismissed, the actual litigation matter is still pending. The district court where they said, yeah, we ultimately decided Vera Institute's probably going to take care of this, especially when you combine it next to NTEUV vote, that is the CFPB decision and Climate United Fund, that is a decision over the efforts to withhold EPA funding and related to a related Citibank mechanism, both of which have been on appeal before. The en banc D.C. circuit had oral argument this past Tuesday. And what the notice basically said is that, well, we the parties collectively decided between these three cases all our issues are going to get resolved for the D.C. circuit and we didn't need to pursue this appeal anymore. Anymore. It's an interesting development because I'm not 100% sure how much the full overlap is and I haven't been able to quite piece this together yet with confidence. There were certain arguments, particularly related to the ica that were made differently in the AVAC case, I believe than they are in the Climate United Fund case. Slightly differently though. So I'm not sure how substantive it is. I'm not sure how live those are because of the weird way the D.C. circuit resolved those arguments when it was previously up for appeal. You may recall this is the case where the D.C. circuit panel revise their opinion to reach the opposite conclusion after initially issuing opinion allowing the plaintiffs to go and pursue a different cause of action legal challenge before the expiration of the funds, which I think moots out some of these arguments that arguably would differentiate this case from some of the other cases. Something I'm going to sit and percolate on. But the long and short of it is essentially right now these foreign assistance cases are all waiting on these decisions. These handful of other cases, Vera Institute, which is before a D.C. circuit panel of Henderson, Wilkins and Rao, I think is the third judge. And then these two en banc decisions, we just had oral argument and so in theory, you know, we could get a decision in theory anytime. Realistically, it'll be a couple month. Months. A couple weeks, if not a couple of months in those matters. So that's where we're waiting on. Notably, if it comes back that the en banc DC Circuit does not think these cases have to go to the Tucker act, these claims have to go through the Tucker act, under the Tucker act, through the Court of Federal Claims. And if they determine that there is a cause of action to pursue these separation of powers type arguments, that's what's at issue in Climate United Fund and NTVV vote. And if there's final agency action that's part of one of these arguments here that's particularly twin vote, then the district court's going to have to deal with the question that Supreme Court left open, which is are there post expiration remedies available? We know there are some precedents that point to both potential constitutional potential district court remedies. The district court wasn't confident enough in either of those that it wanted to rely on it. In how it structured its preliminary injunction. It said it's not clear, I think the government should just pay out these funds. But now it's going to have to confront that issue. And that's kind of the last line on which this last bucket of funds I've been subject to the PACO decision are now going to have to be resolved. So a notable case there, but we're getting essentially to that endpoint for this big foreign assistance dispute that's still hanging out there and is still very much a live issue, even though I again, we've got at least the D.C. circuit opinions to come and then the district court's going to have to deal with this remedies issue and that will probably get appealed potentially all the way to the Supreme Court, almost certainly the D.C. circuit. So we're still, let's be honest, probably a year away from getting final resolution of this, but we're making progress. And it's still very much a live case. I've seen a lot of reporting suggesting these cases are dead and they're not. They're still out there, still being litigated. Both the authorities question both in this and Climate United Fund, but then the actual foreign assistance fund is here. And notably a lot of these funds, particularly about the public health element of these funds, were reappropriated and included by Congress in its subsequent appropriations bill. So these funds are still live. I've seen reporting, I believe the administration has suggested they fully intend to obligate these funds as part of an agreement with Congress. So in theory this is really, you know, maybe should only be a one time issue unless the administration decides to go back on its kind of soft commitments about this. But we'll have to wait and see.
- [64:06]
Benjamin Wittes
All right. Meanwhile, Speaking of the D.C. circuit, we have an en banc oral argument in the CFPB case. Remind people what the CFPB is and this agency has really been dismantled and let's, and, and where are we in that litigation?
- [64:29]
Scott R. Anderson
Yeah, it's a really interesting case. It's one of the two that I mentioned earlier that had oral arguments on Tuesday. And it's worth looking at this one in particular. It deals with a separate set of questions, which is essentially, okay, we're dealing with a case here where the way the D.C. circuit has teed up this case right now, there's a question as to whether a there's final agency action, meaning has the decision to downsize different people to RIF most of CFPB staff, almost all of CFPB's staff, which the Trump administration has tried to do multiple times, does that constitute a final agency action? Right. For review under the apartment. And then you get also to the separate question of, well, do all are all of these employment disputes so they have to be channeled through the MSPB and related civil servant processes. Can the district court even handle this even on a remedies phase? The government came in the oral arguments and said, essentially, even if the remedy has to do with reinstating people, it's not the claim. The claim might be something like, oh, you have to provide certain services to constituents, for example, but if the remedy requires the reappointment of people, that still has to be channeled through the employment process. A very, very broad and aggressive channeling claim, at least by my read of the law. And then you get to this other question, which is the real hard question that's underlying all these cases, which is, let us say the court gets to the point where they don't think the executive branch is staffing up an agency in a way that it can actually meet its statutory obligations. How does it manage that? Can it tell the executive branch you have to keep X number of people appointed? How do you even go about that sort of process, managing and super overseeing a federal agency? And if you can even do it constitutionally, what the Trump administration is arguing, essentially you can't as the executive branch, given our conventional conception of the separation of powers, when the executive branch is essentially acting in bad faith and not taking the step necessary to meet its statutory obligation. It's the foundational question at the root of all of these agency dismantlement cases. And unless we see the en bloc DC Circuit take a route out through the Tucker act or through final agency action, and that's what the panel tried to do and the en banc took it up and vacated that decision. So I don't think they're leaning that way, at least on first impression of these judges, they're going to have to wrestle with that latter question. Or maybe more specifically, they're going to have to remand it to the district court, and then the district court's going to have to wrestle with it. So it's going to be a really interesting case. We're really getting close to resolution of this particular case. Oral arguments were almost three hours I sat and listened to not all of it, but a good chunk of it. It is worth listening to, but you really hear the judges wrestle with this and at each other. My sense is the Yonbach D.C. circuit seems pretty friendly to the plaintiffs, at least on the fundamental ideas of we can hear these sorts of cases, and there's a clear problem what they're doing here, but they're really wrestling what the remedy is going to be like. And probably my guess is they're going to kick this back to the district court, where ironically, that's where the last matter we're going to talk about is wrestling Judge Lamberth, a different judge than is Judge Amy Jackson, who's sitting on the CFPB case. That's what he's wrestling with in that case. Whitaker Swara.
- [67:32]
Benjamin Wittes
Yeah. So let's talk about Whitaker Swara, which is the Voice of America case. Where. Where are we with VOA these days?
- [67:46]
Scott R. Anderson
This is a great example of where we might see the NTU CFPB case go and a lot of these other cases end up, because you are essentially in this case now where the plaintiffs have really made a pretty compelling argument and you've seen Judge Royce Lamberth, not a shy judge by any stretch of the imagination, buy into it in ordering a bunch of disclosures of information by the government to this idea that in attempting to dismantle VOA and a bunch of related agencies, this is actually kind of a bundle of related cases, including Abramowitz and a couple other caption cases, in trying to boil them down, terminate a bunch of personnel, terminate a bunch of the grants, withhold a bunch of money. They're not meeting their core statutory duties. And throughout this case, the plaintiffs have argued and Judge Lamberth has seemed to kind of buy into, but has not yet issued any final ruling that they haven't provided an adequate explanation of this. You may recall back in the fall, before the shutdown kind of slowed things down, Judge Lamberth allowed for multiple rounds of inquiry and repeated questions to VOA and other agency officials like Carrie Lake, saying, how are you actually going to meet these statutory obligations? And it's not clear to me if we got a super satisfactory answer. Now we're in this position where the court had inquired as to whether the fact that the appropriations legislation we finally got at the end of January, beginning of February, out of Congress, which refunds VOA and installs very specific reporting obligations about how funds will be used and limits the gradually with which they can be reprogrammed at a level of about 80% of what it was last year. Meaning that the Trump administration request that VOA be dismantled and defunded was rejected by Congress. And in fact Congress refunded VOA at about 80% ish of what it was being funded at before, along with other elements of the U.S. agency for Global Media. Whether that how exactly that resolves. And my sense of this is that the court was hoping that the government is going to come make some sort of concession and agree, hey, we're going to have to spend this money, we're going to have to compete with, keep some people around. They haven't made this concession yet though. And now in fact what we saw happen just in the last few days is that instead we saw Carrie Lake announce on social media they are reopening the deferred resignation program and encouraging or giving VOA personnel the opportunity to resign. And therein they said while we are currently unable to implement our rrif we issued I think in September of last year, we fully intend to continue to move forward as soon as we're able to with the courts and to issue a broad rif. And so essentially implying you should take this DRP if you work for voa. The plaintiffs went to the court and said hey, just so you know, they established a super quick turnaround by March 9th. So essentially a little over a week to give people a little less than two weeks, I should say to give people a time to sign up for this drp, these personnel, a final decision from you, the court on all of our motions for summary judgment that we now have fully briefed or that I think the last element of them will be fully briefed waiting for the reply brief from the government on March 3, that will really matter to a lot of people on making this decision. So trying to get the court to finally move to a decision on these motions for summary judgment that have been teed up that now they've at least got both parties views on the relevance of the recent appropriations legislation. All that is to say I think we're finally reaching decision point where Judge Lamberth has played this very slow, put a lot of pressure on the agencies, continue to drag out the timeline. Notably he's given something like six different, granted six different requests by the government to extend the deadline for different filings in this Kind of extraordinary, and particularly for Judge Lamberth, who's not always friendly to government lawyers.
- [71:25]
Benjamin Wittes
Not always a patient judge in the world.
- [71:28]
Scott R. Anderson
Yeah, he seems to be really patient because I think he thinks the government's trying to get to somewhere on this, but it's not clear to me they're actually getting there, at least not these folks. So we'll have to see what he does. But this drp, this deferred resignation program announcement, it's like a real shot across the bow. I think that's certainly how the plaintiffs are filing it, saying this is a last shenanigan from them and it should be, you know, the one that breaks the camel's back. But we'll see if Judge Lamberth bites at that.
- [71:54]
Benjamin Wittes
All right, we will keep paying attention. All right, let us do our immigration roundup, and I'm gonna try to save time for. We've got some questions in the queue for the end. So, Anna, we're gonna be very brief on the Abrego Garcia hearing from yesterday, because we did get it got its own state special lawfare live yesterday, which I. I want to refer people to. But for those who missed it, what is the very brief overview of the hearing in his criminal case that you attended?
- [72:33]
Anna Bauer
Yeah. So in Nashville Federal Court before Judge Waverly Crenshaw, who has an awesomely named Waverly Crenshaw. Really great. Competing only with. What is it? Sunshine Sykes and Sparkle Suknan.
- [72:50]
Benjamin Wittes
Yeah, Sparkle Sukunan still has him beat, I think.
- [72:54]
Anna Bauer
Great, incredible. Incredible names for the federal judges. But Judge Crenshaw held a hearing on Abrego Garcia's motion to dismiss based on vindictive prosecution. Remember, Judge Crenshaw previously found that Abrego has raised a presumption of vindictiveness. So then the burden shifted to the government to rebut that presumption. So this evidentiary hearing was the government presenting its witnesses to try to do so. And the two witnesses that we heard from during this hearing were Raina saud and Robert McGuire. Saud is an HSI agent who is now retired, but at the time was the special agent in charge for the region that covers Nashville and was involved in the investigation, was the agent who purportedly initiated the investigation in the Nashville office by learning about it from a Tennessee Star article, learning about that 2022 traffic stop that Abrego Garcia was involved in and is now the subject matter of his alleged human smuggling charges. So we learned from her that she found out about this from a Tennessee Star article and then called up Robert McGuire, who at the time was the acting U.S. attorney in the Middle District of Tennessee, and Maguire testified to things like, I'm the one who made this decision. I wasn't directed to prosecute Abrego Garcia. I did it because I found out about it from getting this call from Reina Saud about this article, looked into it, and felt like I could prove this case beyond reasonable doubt. A lot of the case that the defense was making, though, was showing the communications and the timeline as things unfolded where you had that Supreme Court decision to facilitate Abrego Garcia's return. And then by the end of that month, you've got an investigation in which deputy Attorney General adviser Akash Singh is constantly in communication with Robert Maguire. You know, it all is, like, goes from a Sunday night phone call to three days later, you're talking about having draft charges. And the whole time, Akash Singh is looped in. So a big part of the defense case here was kind of pointing out that timeline and making sure that it highlighted just how much pressure this, like, atmosphere pressure that Maguire must have felt, knowing that, you know, in this administration, there have been. People have been fired for not following the policy goals of the administration. So that's the recap. Ben, I don't want to do too much because we've got a lot to update, but people should listen to our conversation that we had in more detail about it.
- [76:23]
Roger Parloff
Yeah.
- [76:23]
Benjamin Wittes
If that. If that summary just whets your appetite for more discussion of the Abrego Garcia criminal case, there's a whole half hour on just this hearing in the YouTube feed and on our substack, and you should go check it out. Roger, we have a summary judgment opinion in the DVD case. Remind us which case the DVD case is and what the significance of this opinion is.
- [76:55]
Roger Parloff
Yeah, this is the case about third country removals. So this is when you. There is against you a final order of removal. But for some reason, they can't send you back to the country you came from. Usually it's because there's an order that you face persecution there or you face torture there, or maybe we don't have relations with that country anymore. And in the past, other administrations until this one, basically you stayed, and often you stayed for many, many, many years, and you got roots and so on. The Trump administration developed a new policy where that basically they just tried. Their view was, you've had your due process, the order of removal is there. Now we just grab you and send you to another country, and you have no due process. South Sudan, you're done. And so In March, they issued a policy that was not quite saying that, but almost. And Judge Murphy entered a preliminary injunction in April. And then you'll remember, in June, the Supreme Court stayed the injunction. And it was one of these emergency docket cases with no explanation. It was six to three. So it goes. You know, it began on a tract on appeal to the First Circuit. And what most people speculate is that the most likely reason the Supreme Court stopped it is a jurisdiction bar for. It's called 1252 F1, 8 USC 1252 F1. You can't issue class wide injunctions over certain types of immigration matters. So basically what happened was the plaintiffs wanted to go back to the judge and say, lift that. We have a different theory. And the First Circuit eventually let them do that, remanded. And they said to Murphy, okay, don't issue an injunction. Basically issue the same decision, but under the APA and issue a stay. A stay under the APA. 5 USC 706. And it's not literally an injunction. It says the agency action, or it's a. A vacator of the agency action, the agency action with arbitrarily and capriciously. And it isn't barred by 1252 F1. And that's what we're trying to do. Obviously there's more detail, but basically that gives you the idea it's due process and it's also statutory construction. It'll take too long to go further than that.
- [80:28]
Benjamin Wittes
All right, let's talk contempt. There's. We got a lot of contempt cases. Anna, I'm going to start with you. And then Roger's got a whole long list of contempt cases. But first we got the Guatemalan children's case, and the plaintiffs have asked for the government to be held in civil contempt for an alleged court order violation. What is that?
- [80:57]
Anna Bauer
Yeah. So this is the case. Remember a few months ago, that was one of the, you know, kind of remarkably speaking of Judge Sparkle Suknan earlier, who we mentioned was initially the emergency hearing judge in this case that unfolded over a weekend, much like the Alien Enemies act case before Judge Boasberg. But there was a different outcome in that, you know, the government rounded up these children in the middle of the night, tried to put them on planes, immigration lawyers went to court and got a court order. There was some question about whether these planes were gonna take off anyway or whether they'd already taken off. But ultimately the outcome was different in that the court order was effective in stopping these planes. And then it went to a preliminary injunction phase before the judge who is now presiding over this case, Judge Tim Kelly, who's a Trump appointee. And keep in mind, these are unaccompanied children from non contiguous country, so not Mexico or Canada. And that means there are special protections that Congress has passed to ensure that they just aren't summarily removed back to the countries that they came from. And Judge Kelly ultimately found that, yeah, this policy that the government had tried to implement by summarily removing these children who didn't have final orders of removal and who were not subject to voluntary departure and had ongoing immigration proceedings, that that was unlawful. And so he entered a preliminary injunction in which it was a class of children who are unaccompanied who either are in the custody of DHS or will be. And it specifically applies to Guatemalan children because that was the class at the time. But what we've learned now from this motion to hold the government in civil contempt is that effectively what it sounds like the government has been doing, and what they're alleged to have been doing is within the first 72 hours when children from non contiguous countries arrive in the United States who are unaccompanied, before they are sent to the Office of Refugee Resettlement, which is the office tasked with keeping custody of them and providing them with legal representation and all of that under the law, they are being, as alleged in this complaint or motion, they are basically being told, without having the benefit of legal representation, you can voluntarily return to your country. And if you don't, you know, you'll be subject to detention, you won't be able to apply for a visa in the future, making all of these various claims that counsel for the children have characterized as coercion and threats. And so ultimately, because these are children who, under the clear language of the order, will be in the custody of Orr and of dhs, it seems like this is a violation because they are not subject to a final order of removal or have not been granted voluntary departure. The fact that the government is trying to do this and get them back on planes within 72 hours, we have not seen the response from the government yet, Ben. So I don't want to go too much in detail in terms of analysis because we'll see what they have to say about it. But it is among the several contempt developments that we've seen this week.
- [85:08]
Benjamin Wittes
All right, let's talk about some of the others. Roger. Roger has labeled this section in our planning document as the CRED Roundup. And so, Roger, let's hear about the judicial. And when you Mention each judge. Just mention who appointed each judge. Because I think the diversity of appointments of the list of judges on this list is a very striking one.
- [85:42]
Roger Parloff
Yeah, so the first one is Laura Provenzino. And actually, I've forgotten, she's a Biden appointee. Biden, okay. This is Rigoberto Soto Jimenez. This is the one. I did something on the site about this case. This is the civil contempt case where the special prosecutor, the Special Assistant U.S. attorney Matt Isehara, was assigned and he's the Army JAG, and he was basically unable to do anything given the understaffing. No notice of appearance, did not reply to the petition, did not reply once the petition was granted, did not forward it to ICE so that it could be acted upon. Did not file a status report. The report was the order was violated in three different ways. And you know, the fellow was not released in Minnesota. He was released in Texas. No property return, no compliance report. So they threw themselves at the. And so he issued a civil contempt. We talked about this last week contingent on you need to return the property or get the property returned or I'll fine you $500. They got the repop a day, they got the property returned. No money changed hands. And Dan Rosen, the U.S. attorney appealed, I think today or yesterday. Appealed anyway. We don't know what that means. How is this not moot? And why would you expend effort to do that when you're so understaffed? That is the first one. We don't. That's a notice of appeal. So we don't know what theory. There was no theory of defense at the hearing. It was just, we throw you, you know, ask for your good graces. The next one is Patrick Schiltz. He's a George W. Bush appointee. Scalia clerk, Juan Tobe Robles case. You heard about this one. This is the one where he. Sometime back, he ordered Todd Lyons briefly to show up in person to answer an order to show cause why he shouldn't be held in contempt for a slew of violations. The guy was released in time and he lifted the order of contempt, did not have the hearing, but instead he issued this list of violations of orders that was very famous. He said that there were 96 violations in 74 cases in January. What we didn't know was after that, the U.S. attorney, Dan Rosen, wrote him a very stiff email. And he said, you know, we went through the first 12 of those on the list and there were a slew of mistakes and it was beyond the pale. And my attorneys didn't deserve that criticism. So Judge Schiltz had his people go back all the judges and do the research again. And he looked at those cases and said, you're right, I made mistakes. It wasn't 96 out of 74. It was 97 violations in 66 of them. Plus I've asked them to do more research. And I found 113 more violations in 77 other cases. And he said what those attorneys didn't deserve was the administration sending 3,000 ICE agents to Minnesota to detain people without making any provision for handling the hundreds of lawsuits that were sure to follow. So he has vowed to escalate to criminal contempt if compliance is not achieved. The next guy is Judge Jeffrey Bryan. Biden appointee Saul Novara Govea is the petitioner. He's one of the petitioners. This is an order to show cause issued yesterday why the respondents should not be held in civil or criminal contempt. 28 cases in the caption. This is supposed to take March. The hearing is Tuesday, next Tuesday. He wants U.S. attorney Rosen there in person. David Fuller, who's the civil chief and an appropriate ICE representative. Good luck with that. And the idea is these are all cases where their property has not been returned. But if the property is returned before March 3rd at 9am Hearing will probably be off. There's another one. This is a little minor, but it's Eric Tastrud. He's a Trump appointee. Fernando Gutierrez Torres a couple days ago, this is civil contempt where he orders payment of $568.29 in airfare. You know, one of the cases where he was the petitioner was released in Texas instead of Minnesota. He wants his airfare repaid and that's a civil contempt. But it's weird. It doesn't have to be paid till April 1st and it's to be paid by the respondents. And of course the respondents are about seven different people in agencies. So I don't know where that one goes either. And it's not the ausa. The last one is not. The last one is a district of New Jersey. The last one I'm going to mention. I mean there's hundreds of these. This is a real creed occur. This is a Qureshi Zahid Qureshi Biden appointee in New Jersey and involved a 29 year old El Salvador. It's, it's a little more complicated than one of these mandatory detention cases. There's a little, the 1212, the 1212, 25B2 issue. And. But he's, he sort of had it with. All of the violations of orders. He says the treatment of the detainee shows manifest recklessness. The government's continued actions after being called to task can only be deemed intentional. It ends today. And then he says, further arrests and detentions under this interpretation of the law as to make it mandatory detention without possibility of bond. Will that come before the undersigned will likely trigger the issuance of an order to show cause. I don't see how he can do that. You know, it's. It's just district. It's. It's hundreds of district court cases that he's relying on, but they're just district court cases. And we now have the 5th Circuit saying it's a. Okay, what they're doing. So it's a live issue, obviously.
- [93:28]
Benjamin Wittes
Right. So speaking of which, it is live in the 5th Circuit or it's lawful in the 5th Circuit, and yet a bunch of judges seem to be ordering people released anyway. What do you make of that?
- [93:43]
Roger Parloff
Yeah, this is really interesting. This is a Kyle Cheney. I know this just because of Kyle Cheney's stuff. Very shortly after this Buen Rostro Mendez ruling, I think earlier this month, this was the 1st the 5th Circuit saying, upholding Trump's mandatory detention. Interpretation of the law, a lot of judges in Texas began to say, well, okay, that's the statutory issue, but there's a constitutional issue, which is due process. And when people have been living here a long time, they. They have constitutional. They have a constitutional right to have at least a hearing before they're thrown in jail for months. And, and so I think the first judge that seems to have ruled this way was in the Western District of Texas, Kathleen Cardone, George W. Bush. She's done it in at least five cases, maybe more now. And it seems to apply where somebody has been here for a substantial period. Like one of the cases, a guy named Lima was here for 37 years. Others have formulated as people who have established a life here. Hassan, that's a defendant. That one, David Brionis, is a Clinton judge. He applied it to an Ethiopian who's only been here since 2024. But he did pass a credible fear interview. Jason Pulliam, a Trump appointee, applied it to a Mexican who's been national, who's been here since 2013. Other judges, let's see, Diana Saldana. She is an Obama appointee in the Southern District of Texas. Xavier Rodriguez, George W. Bush. Fred Beery, Clinton, mostly in the Western District, but also Southern District of Texas.
- [95:58]
Benjamin Wittes
Interesting. All right. Well, we will keep an Eye on that. Let us go to audience questions. David asks for Anna on Abrego Garcia, what is the standard for a selective and vindictive prosecution motion? Is it beyond a reasonable doubt preponderance of the evidence? Yeah. So obviously Abrego Garcia bears the burden of proof, except that he's already established it by as a prima facie matter and the government is now rebutting. So who has to establish what?
- [96:35]
Anna Bauer
So I actually was just trying to pull up the briefs on this so I could see in the middle district of Tennessee what the circuit law is. I will say that my understanding and recollection of it without having the briefs in front of me is that the initial, like raising the initial presumption, it's like I think the language is you have to show a reasonable or realistic likelihood of vindictiveness to raise the presumption. And then I think then as you've explained, Ben, and as we've discussed the presumption, the burden then shifts over to the government. It's definitely not a beyond a reasonable doubt standard that you have to reach. I think in the fifth Circuit, it's a the government can rebut on a preponderance of evidence that there's, you know, some other explanation for bringing the charges. But I cannot recall and would need to look back at the briefing to, to know what in the circuit law is in the middle district of Tennessee on that question. So. Roger LT Anyone else who's been following, if you guys have knowledge on that, than chime in.
- [98:04]
Roger Parloff
No, I don't remember either. It's a good question, obviously.
- [98:08]
Anna Bauer
So we'll get back to you. David.
- [98:10]
Benjamin Wittes
Yeah, I'm pretty sure the answer is overall it is on the preponderance of the evidence, but how the preponderance, the evidence breaks up between the establishment of the prima facie case and the, and the rebuttal, I'm not really sure. David Mayer asks this is a very interesting question. There is a new granular depth to which the unitary executive can now reach into the bowels of the Justice Department, including all the firings being discussed here today. Trump has made mega dollar claims against the US Government for disclosure of his IRS information and for classified document investigation. Presumably, government lawyers will have to be involved in handling these claims. Todd Blanche, Pam Bondi, how seriously concerned should any government lawyer who touches one of these claims be for possible conflict of interest lawyer disciplinary actions? So I want to say the relevant there's a section of the civil division that is full of lawyers who spend their day Protecting the federal till against claims. And that is their job. And some of them get reps as being kind of bloodlessly protective of the taxpayer against righteous claims by people who've been injured. Right. Like, there's lots of. That's. It's a complicated job. But these are people who are very seriously committed to the idea that there should be, you know, you shouldn't be able to take money from the taxpayer without establishing it. They will. They, you know, try to rein in litigators who are eager to make settlements on. And I would think this group of people would be extremely allergic to being told you have to pay out the president a large amount of money. And I would expect there to be resignations before that happened, at least at the staff level in certain parts of the civil division. And it's because. And I do expect that eventually Trump will demand that the Justice Department pay him money. And I, I do think we're likely to see frictions at the career level in the department. I don't think that ethical. There's an, There is an ethical issue here, but it's more of a oath to the Constitution kind of ethical issue than it is a. A legal ethics issue. I think if the federal government decides to settle with the president and you execute that, that's probably not on you as a lawyer. But I do think people are likely to have real ethical problems with it. And I expect that when that day comes, there will be. And it'll be like the day they decided to throw the case in the Southern District of New York involving the mayor. You know, you're gonna see people who have a problem with that. Troy, what do you think?
- [101:50]
Troy Edwards
The only thing I get wrong is the tension will be directly between this oath to the Constitution and their interests in protecting the federal tax dollar. And this February 2025 Bondi memo that tells all of Department of Justice attorneys that they must engage in, quote, zealous advocacy. And the way she defined it was by adhering to the interests and policies of the chief executive of the United States. So in this claim, I mean, there is now a policy document, a memo from the attorney general that will set this collision course up when it comes to a head.
- [102:31]
Benjamin Wittes
Right, Right.
- [102:32]
Roger Parloff
I. The only. And maybe I'm misremembering things, but the. I think the example we have so far is it Ashley Babbitt did settle for almost $5 million, her federal tort Claims act claim. And that I didn't pore over her claim, but I've seen the video of what happened, and that Caused my eyebrows to rise. Federal tort claims acts are not generous. There's no punitive damages, there's no prejudgment interest. That was a big no.
- [103:09]
Benjamin Wittes
I think, I think that's a, you're certainly right that that is an outrageous settlement. It is not. And it, it's arguably a corrupt settlement in that, but it's not a self interested settlement. Right. I mean, they're not being asked to pay money to their boss.
- [103:27]
Roger Parloff
Right.
- [103:27]
Benjamin Wittes
And I do think that that's, that does create a kind of difference in kind. All right, last question is from John Hawkinson, who cites two transcripts from 220 in the, in Minnesota and says these made clear that the special AUSAs detailed to the District of Minnesota U.S. attorney's Office rely on paralegals to send them judicial orders because their DOJ emails don't work. Which is to say that apparently the emails in the court's ECF filing system don't actually go to the attorneys who allegedly appear for the government. So they don't get copies of court orders. I struggle to understand why judges would tolerate that. Roger, you've been following these cases. What's wrong with these federal judges tolerating that?
- [104:31]
Roger Parloff
Yeah, I did see that. I think. And in these cases, at least there wasn't a dispute that he got it, got those orders the next day, the next morning. And even the civil contempt order he doesn't get the night it's issued, he gets it the next morning. Yeah, it's just, I guess the judges have so much that they view as a higher priority. But the fact that there's no notices of appearance entered anymore, typically it's just, it's just a free for all. There's one.
- [105:13]
Anna Bauer
Sorry, just to clarify, it's because these are people who are being detailed who don't have the necessary admissions to actually file a notice in, in Minnesota or what?
- [105:27]
Roger Parloff
No, no, I, I think it's just administrative. Like they're still on the army, you know, that they're.
- [105:35]
Anna Bauer
Oh, I see.
- [105:36]
Roger Parloff
They haven't been introduced into the US Attorney office system yet and they're not,
- [105:40]
Benjamin Wittes
not used to, to practicing in federal court. And there's a sort of like, level at which they're just not geared up for this. I think the answer, John, is partly what Roger just said, that the judges have bigger fish to fry on their, on their plates or on their griddles. But it's also that, you know, they don't want to run the U.S. attorney's office and it is not their job to staff the US Government to litigate the policy choices that it makes. It's their job to supervise the cases. And, you know, advice to all of you who are contemplating taking actions that are going to produce hundreds of litigations that you're not ready to fight. You know, lawyer up first, you know, put the infrastructure in place before you call in 3,000 ICE agents to Minnesota. And, you know, I take that to be what Chief Judge Schultz is saying to them. You know, and I really think the judges, the fact that there are basically none of them on the other side of this issue, this is not an issue that's dividing the judges.
- [106:56]
Troy Edwards
It's also just. It's also possible to do it right. We've seen the Department of Justice surge resources to areas when they have to. We just talked about a chapter of that right. In January 6th, the Department of Justice, the D.C. u.S. Attorney's office, took the steps it needed. There weren't misunderstandings exactly right.
- [107:16]
Benjamin Wittes
There were no right there. And that was like thousands of cases. Is there any active litigation challenging the conditions of confinement in ICE facilities? Based on numerous reports and affidavits, they sound pretty horrific. And one would think that they violate some kind of statutory requirements, if not the Eighth Amendment. If there are no active cases, what are the prospects for one? There are active cases. We have not focused on them, but there are a number of such cases. And I'm not conversant in the details of them, but I'm aware that they are. They do exist. Roger, do you have.
- [108:04]
Roger Parloff
There's at least. There's at least four. The Perdomo Vasquez case in the Central District of California had a wing that was about the detention center there. There's one in Southern District of New York in front of Lewis Kaplan. There was. I think there was. There's at least two others. I forget where, because exactly what you say, that they weren't built for this. They have no facilities. People get, you know, and people are there for six days. They don't have any. And of course, also the attorney client. They don't have any attorney client facilities. So, no, it is a recurring phenomenon.
- [108:55]
Benjamin Wittes
All right, we are going to leave it there, folks. We will be back next week. Between now and then, the trials will keep trialing, the tribulations will keep tribulating. Thanks to Troy Edwards, to Anna Bauer, to Molly Roberts, to Roger Parloff, to Alan Rosenstein, who popped in in the middle, to Scott Anderson. It was an unruly crew today, folks. Thanks as well to Anna Hickey, who is the audio engineer and master conductor offstage for this episode. We're going to be back next week. Lawfare Podcast is a production of Lawfare. You can become a material supporter of Lawfare as well. You should join us in the studio. Get your questions answered by going to our support page, lawfairmedia.org support and please like and share this podcast or live stream on whatever platform you use and found it and whatever social media you use. We will be back next week. Thanks for listening. 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 produced by the Lawfare Institute. You can get access to 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 Rodeo and our audio engineer. This episode was an hickey of Lawfare. Our theme music is from Alibi Music. As always, thanks for listening. With almost half a million customers and over a trillion dollars of secure payments, Bill isn't new to intelligent finance. It's the proven way to simplify bill pay and maximize cash flow. Want to learn more? Visit bill.comproven for a special offer.