Lawfare Daily: The Trials of the Trump Administration, Feb. 28

Summary

The Lawfare Podcast: "The Trials of the Trump Administration, Feb. 28" – Detailed Summary

Release Date: March 3, 2025
Hosts: Benjamin Wittes, Anna Bauer, Roger Parloff, Chris Mirasola
Special Guest: Chris Mirasola, Assistant Professor of Law at the University of Houston Law Center

---

1. Introduction

Benjamin Wittes opens the episode by introducing the focus on ongoing civil litigation challenging various executive actions from the Trump administration. Co-hosts Anna Bauer, Roger Parloff, and special guest Chris Mirasola delve into cases concerning the foreign aid freeze, detention of migrants at Guantanamo Bay, and the mass firing of probationary federal employees.

---

2. Litigation Against Trump Administration Executive Actions

a. Foreign Aid Freeze Case

The hosts discuss the case Global Health Council vs. Trump and AIDS Vaccine Advocacy Coalition vs. Trump, which have advanced to the Supreme Court under complex procedural circumstances.

• Anna Bauer explains the procedural oddity:

  "The Judge entered a TRO on February 13, and then he had the defense file a status report... [The status report] indicated that not a single funding has been resumed."
  (02:15)

• Benjamin Wittes raises concerns about the Supreme Court's unusual involvement:

  "It seems to me this would be a very unusual posture for the Supreme Court to get involved."
  (08:45)

Roger Parloff comments on the unpredictability:

"It's going to be pretty boring at the Supreme Court as well. I can't imagine the Chief Justice, Justice Barrett, getting behind some of the legal theories that we've been seeing."
(02:49)*

The case revolves around whether the Trump administration's blanket freeze on USAID funding violates principles of separation of powers or the Administrative Procedure Act.

b. Detention of Migrants at Guantanamo Bay

The episode revisits litigation related to the detention of migrants at Guantanamo Bay, highlighting the administration's use of the facility as a temporary holding area during deportations.

• Roger Parloff describes the convoluted detention strategy:

  "It's a return to the past, but the past is somehow a weird new future. It's all very confusing."
  (21:46)*

• Benjamin Wittes critiques the utility:

  "So we're going to stop in Guantanamo for a few days and treat you badly just long enough for you to file litigation."
  (23:32)*

The discussion points out the lack of clear benefits for the administration in using Guantanamo Bay for short-term detentions, considering the high costs and logistical complexities involved.

c. Firing of Probationary Federal Employees

The podcast examines the administration's attempts to dismantle federal agencies by firing a significant number of probationary employees, challenging the legality through multiple lawsuits.

• Anna Bauer highlights Judge Nichols' stance:

  "Judge Nichols was saying... channeling that basically the theory is that the judge doesn't have jurisdiction, that Congress has said, I need to channel these cases to these administrative remedies."
  (39:20)*

• Benjamin Wittes questions the separation of powers implications:

  "At some point... firing enough of the employees becomes an attack on the institution."
  (44:30)*

The hosts discuss the difficulties plaintiffs face in proving irreparable harm and the judiciary's resistance to granting injunctions in these cases.

---

3. Birthright Citizenship Cases

The episode shifts focus to litigation aimed at overturning birthright citizenship, examining why courts across multiple circuits have consistently ruled against the administration's attempts.

• Roger Parloff explains the legal foundation:

  "The 14th Amendment tells us that if you are born in the United States... that you are a citizen of the United States."
  (33:14)*

• Benjamin Wittes adds a relatable anecdote:

  "I said... the people who don't have birthright citizenship by constitutional law are your kids? And they all burst out laughing."
  (34:10)*

The unanimous rulings across circuits underscore the strength of the 14th Amendment’s provisions on citizenship, leaving little room for successful legal challenges against the administration's stance.

---

4. Dismantling Federal Agencies

a. USAID Case

Legal efforts to reopen access to USAID's foreign aid programs are met with procedural hurdles and judicial skepticism.

• Anna Bauer details the ongoing litigation:

  "The main theories are a breach of separation of powers... alternatively it's arbitrary and capricious agency action violating the Administrative Procedure Act."
  (10:06)*

Judge Nichols's recent rulings have been unfavorable to the plaintiffs, emphasizing the necessity of administrative remedies before seeking judicial intervention.

b. Consumer Financial Protection Bureau (CFPB) Case

• Anna Bauer discusses the CFPB's status:

  "The plaintiffs say the administration has closed its headquarters... has removed CFPB signage... moved to cancel leases and contracts."
  (48:01)*

The case is poised for a preliminary injunction hearing, where the courts will determine if the administration's actions constitute an unauthorized dismantling of an agency established by Congress.

---

5. DOGE Cases

Challenges against the administration's Department of Governance and Economic Affairs (DOGE) center on violations of the Appointments Clause and the misuse of sensitive information.

• Anna Bauer summarizes the legal arguments:

  "Elon Musk is acting as though he is a principal officer of the United States... technically supposed to be classified as a special advisor to the President."
  (79:19)*

• Roger Parloff critiques the administrative oversight:

  "DOGE employees are being treated like agency employees... but the Privacy Act has an exception."
  (53:49)*

The lawsuits contend that DOGE's structure and operations violate constitutional mandates, with courts scrutinizing the legitimacy of DOGE's authority and its impact on privacy rights.

---

6. Politicization of the Justice Department

The discussion shifts to internal conflicts and alleged misconduct within the Justice Department, highlighting a recent investigation into climate change funding and subsequent resignations.

• Anna Bauer describes the situation:

  "A $20 billion grant under the Biden administration... Attorney Ed Martin wanted to seize funds based on dubious evidence from a Project Veritas video."
  (59:03)*

• Benjamin Wittes highlights the severity:

  "This is a very fishy thing. Apparently, there was a piece of evidence..."
  (62:10)*

The podcast underscores concerns about the erosion of ethical standards and the potential for heightened politicization affecting prosecutorial decisions.

---

7. Audience Questions and Discussions

a. Bar Sanctions for DOJ Misconduct

An audience member inquires about the feasibility of bar sanctions against DOJ attorneys exhibiting misconduct.

• Benjamin Wittes explains the process:

  "Allegations are traditionally referred by state bars to the Office of Professional Responsibility... Jeffrey Clark... Rudy Giuliani... have faced bar discipline."
  (66:06)*

He emphasizes that while the process is lengthy, serious allegations can lead to significant repercussions, despite internal resistance within the Justice Department.

b. Impeachment Measures Against Judges

Another question addresses Representative Andy Ogles' impeachment measure against Judge Ali for marginalizing presidential authority under Article II.

• Anna Bauer responds:

  "I don't think this will cow many federal judges... some performative things in courtrooms are being protested."
  (90:25)*

The hosts discuss the resilience of the judiciary amidst external pressures and the limited impact of such impeachment efforts on judicial independence.

c. Impact of Admissions Clause Issues in DOGE Cases

• Chris Mirasola shares insights from a recent hearing:

  "Amy Gleason was revealed as DOGE's administrator... there are still inconsistencies about the chain of command."
  (84:25)*

The lack of clarity regarding DOGE's administration fuels judicial frustration and complicates legal arguments against the administration's opaque structure.

---

8. Concluding Remarks

Benjamin Wittes wraps up the discussion by acknowledging the complex interplay between legal challenges and administrative actions within the Trump administration. The hosts express continued vigilance over these evolving lawsuits, emphasizing the judiciary's role in maintaining checks and balances.

"Lawfare was the first place to publish George Conway when he, you know, emerged from his shell. He's a friend... We're going to leave it there."
(92:18)*

Anna Bauer and Roger Parloff thank the guest and co-hosts, with Chris Mirasola humorously referencing his courtroom backdrops, underscoring the dynamic nature of the legal battles discussed.

---

Notable Quotes:

• "It's going to be pretty boring at the Supreme Court as well. I can't imagine the Chief Justice, Justice Barrett, getting behind some of the legal theories that we've been seeing."
  – Roger Parloff (02:49)

• "You can't force the President to rehire somebody he doesn't want to work with."
  – Roger Parloff (16:13)

• "As long as they're in that zone, which is to say, acknowledging the authority of the court and by actually appealing is a form of acknowledging the authority of the court..."
  – Benjamin Wittes (75:18)

• "Amy Gleason was revealed as DOGE's administrator... there are still inconsistencies about the chain of command."
  – Chris Mirasola (84:25)

---

This episode provides a comprehensive examination of the multifaceted legal challenges against the Trump administration, highlighting the judiciary's critical role in overseeing executive actions and maintaining constitutional governance.

Transcript

[Benjamin Wittes]

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[Chris Mirasola]

And so there's this accountability and oversight issue. It's very similar to the argument that was previously made before Judge Cannon, ironically by Trump's defense counsel in his criminal cases.

[Benjamin Wittes]

Benjamin it's the lawfare Podcast. I'm Benjamin Wittes, lawfare's editor in chief, here with lawfare senior editors Anna Bauer and Roger Parloff and Chris Mirasola, assistant professor of law at the University of Houston Law Center.

[Anna Bauer]

The main theories are separation of powers and the alternatively, it's arbitrary and capricious agency action violating the Administrative Procedure Act.

[Benjamin Wittes]

In a live recording on February 28, we discussed litigation challenging the executive actions from the Trump administration, the foreign aid freeze, the detention of migrants at Guantanamo Bay, and the firing of probationary employees across the federal government.

[Roger Parloff]

It's it it's going to be pretty boring at the Supreme Court as well. I can't imagine the Chief Justice, Justice Barrett, getting behind some of the legal theories that we've been seeing.

[Benjamin Wittes]

Hey folks, welcome to this week's lawfare Live. I'm Benjamin Whittis, editor in chief of lawfare. I'm Here with Roger Parloff, senior editor, will be joined by Anna Bauer, senior editor. And of course, we are joined today by special guest Chris Mirasola, contributing editor of lawfare, professor at the University of Houston. And we got a lot to talk about because one thing that is not slowing down are the trials and tribulations. Not criminal trials this year, of course, or criminal tribulations, but these civil trials and tribulations of the challenges to Trump administration executive actions. So let's get right into it, Roger. We had two cases reach the Supreme Court this week, and we have real resolutions on neither of them. But let's start with the one that's right there now, which is one of the aid freeze cases. What's going on in the challenge to the US Aid freeze that is now at the Supreme Court?

[Anna Bauer]

Yeah, this one in the lower court, it was called Global Health Council versus Trump. And a second case that it's consolidated with AIDS Vaccine Advocacy Coalition versus, I think, Trump. And now the captions probably reversed because it's up at the Supreme Court and it's in front of Judge Amir Ali, a Biden appointee. And so the plaintiffs below just filed their response in the Supreme Court. And I'm not sure if we're going to get a reply. I, I imagine we will, but it's, it's obviously moving exceedingly quickly. This is, he entered a T.R. the judge entered a T.R. it's an extremely odd procedural posture. The Judge entered a TRO on February 13, and then he had the defense file a status report. And it, it, it basically said, you can't have this blanket freeze on USAID foreign funding. You need to lift that. So four days go by and they file a status report, maybe five days. And the status report indicates that not a single funding has been resumed. And, and the reason given is that they found, oh, we thought, we found other contractual provisions that allow us to, to terminate these. So we thought that wouldn't violate your order. And he said, no, it's, you can't possibly have gone through 10,000 contracts and determined in an individual fashion which were appropriate and which were not this, you need to suspend the blanket freeze. And if there's some particular problem with one, yes, you can cancel it anyway. Then there, that was followed by a motion for enforcement because nothing changed again. And it was followed by another motion for enforcement and a, which was granted and then a motion to clarify and a lot of stalling. And finally there was, I think, on the 25th, an order of enforcement that said, look, you need to Pay this, you need to start paying by tomorrow night, by 11:59pm and at that point the government appealed simultaneously to the D.C. circuit and the Supreme Court. So the posture now is, first of all, TROs aren't supposed to be appealable. And they didn't appeal the tro. They appealed an order enforcing the tro, which most people think would also not be appealable. And, and, and so the D.C. circuit thought that, and they said they dismissed. There's no, you know, once you get to the preliminary injunction phase, and we're not far off from that, he's held a preliminary injunction hearing, going to get to, he's going to rule as fast as he can. But anyway, it went up to the Supreme Court and judge, Chief Judge, Chief Justice Roberts stated an administrative stay, which doesn't mean a whole lot. He had like four hours until maybe less than four hours before midnight. So that's what they often do when there's just no time to do the briefing and to get it to the full court. So that's where it stands. It's a very confusing posture. The government is raising new issues at the Supreme Court that were not raised in front of Ali, including a sovereign immunity claim. So it's quite complex. It's very hard to predict what will happen with that one.

[Benjamin Wittes]

And I mean, I find it, and I should, as I always do when we talk about this case, disclose that my wife runs an organization that is extremely directly affected by this litigation and by the underlying freeze. And so I'm going to refrain from expressing any view of it. But it seems to me this would be a very unusual posture for the Supreme Court to get involved. Is that fair to say?

[Anna Bauer]

That is fair to say. I don't think they could find a whole lot of precedence about this posture at all. And if you think about it, I mean, what the plaintiffs were arguing was that suppose, you know, what the government is seeking is a stay of the order enforcing the tro. And if they got that, they would still be under obligation to fulfill the trojan, which the judge says you're not fulfilling. So it's sort of, it's an odd thing. So unless they reach out and say, you know, something with pretty far reaching consequences, that does seem like the safer thing to do.

[Benjamin Wittes]

And then just hypothetically, let's say they were to not intervene, given the weird procedural posture, then presumably Judge Ali's order, what happens, it then goes into effect.

[Anna Bauer]

He's working, we're close to a preliminary injunction ruling from him, so that would be appealable. And, and then you would, you know, you would look at this in, in the more normal way. Is, is there really, you know, the finding the findings are about, is there irreparable harm? Is there standing? Is there, is there a likelihood of success? And the, the main theories are a breach of separation of powers. And, and because the basically the allegation is that the Trump administration is dismantling the USAID or defunding it when the Congress has created it and funded it and they're not involving Congress. The alternatively it's arbitrary and capricious agency action violating the Administrative Procedure Act. Those are the theories. And then so, you know, you would have a more conventional ruling on the merits whether those cases are made out.

[Benjamin Wittes]

And so this is actually the second court to reach this case to reach the Supreme Court this week. Tell us about the first, which is also in a strange procedural posture.

[Anna Bauer]

Yeah, Trump fired a number of heads of independent agencies. And one of them was Hampton Dellinger, who runs a small and unusual office called osc. Office of Special Counsel has nothing to do with the Jack Smith kind of special counsel. And, and it's an office that has.

[Benjamin Wittes]

Several, that's the fco, not the osc. If the office goes in front, then it is the Hampton Dellinger and they're responsible for protecting whistleblowers. If the O goes at the end, then it is office that investigates President Trump.

[Anna Bauer]

And so there's a number of these offices where Congress created the, the entity and, and provided that the head of it or the heads of it. Often you'll have a panel that is the head of it, like the NLRB or something that, which is a board, the National Labor Relations Board. But there were a few that have a single head and this is one of them. And Hampton Dellinger is the head. And in 2020, in a case called Sela Law, the Supreme Court said that that case involved the Consumer Finance Protection Board, said that you can't have a single head of an independent agency that, you know, the president appoints, but he can't get rid of at will. Congress provided that you could fire him, but only with cause. For cause. I forget the particular you something about negligence and two other categories. And Trump very clearly fired him without cause. So he's relying on that ruling and also a ruling the next year involving the head of the Federal Housing Finance Authority, which was set up the same way and came out the same way. So frankly, Trump's on pretty good grounds on his, in this case on the merits. The, the, the basis for objecting is that in SILA and I, or in at least one of those cases, they did specifically carve out OSC and say we're not deciding that one. That's a little, that's there are some special issues there we're not deciding. And it is a situation where it really can't perform the function that Congress intended. If it can be removed by the President. It's there for whistleblowers who are probably ratting out something wrongdoing within the executive branch and something the President might not want to be reported. So it's, there is a good faith basis for distinguishing it. And Judge Amy Berman Jackson granted the TRO and it was immediately appealed as a TRO. And I said, as I mentioned, TROs are not appealable. The D.C. circuit dismissed, saying it's not appealable. But one of the judges, the conservative Judge Katis, a Trump appointee, dissented, and then it went to the Supreme Court. And now I'm getting mixed up with the other, the other case. So I, I, it has been held, it was held in abeyance with two dissents, Gorsuch and Alo. Who, who would have reversed. They, they felt that you simply can't enter an injunction against a president firing.

[Benjamin Wittes]

A person he doesn't want to work.

[Anna Bauer]

You can't force the President to rehire somebody he doesn't want to work with. And I'm, Katz has had a slightly different theory. Oh, yes, his, the, his theory was that it might have been similar to that, but he also had a theory that after the Trump immunity ruling that whenever you intrude on an executive to, on an article two executives, core powers, it's immediately appealable no matter what, no matter what posture. So those are, those are broad new doctrines that are floating around that we could hear more about. So anyway, Judge with the abeyance is while Judge Jackson decides whether to convert the TRO into a preliminary injunction hearing.

[Benjamin Wittes]

And in other words, like wait for you to follow our precedent so that we can reverse you.

[Anna Bauer]

Yeah. And so she is planning to get a ruling out. She had a hearing on this week on the preliminary injunction and extended the TRL till tomorrow. So she will presumably rule by tomorrow.

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[Benjamin Wittes]

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[Benjamin Wittes]

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[Benjamin Wittes]

All right, let's shift gears. And Chris, let's talk about the Guantanamo cases, which I have to say, whenever I say that, I know it feels like, you know, 2005 or something. But these are different. Guantanamo cases bring us up to speed.

[Roger Parloff]

It's a return to the past, but the past is somehow a weird new future. It's all very confusing. Right. So our case here is in the District of D.C. right. And so this is Las Americas Immigration Advocacy Center, Vi Noam. The complaint was filed. Right. On February 12th. The request for a TRO. The part of justice filed opposition to the request on the 20th. Plaintiffs responded on the 24th. So that's getting us to what is today the 28th. God even knows. Great. Earlier this week. Right. And, and then since there, there has been radio silence partially, this seems to be because. Right. The facts keep on changing right before Judge Nichols, who has the distinct displeasure of having to deal with this case. So. Right. So folks who will crawl will recall, right. That this case was originally on behalf of a number of folks who were, who could possibly have been sent to Guantanamo Bay. In the middle of all of this kind of briefing, everyone who had been sent to Guantanamo Bay was deported. That happened, I believe, at the same time or just after DOJ filed its opposition to the request for the tro. And then just before the plaintiffs responded earlier this week, new folks have been sent to Guantanamo Bay. And so a lot. Yeah, go ahead.

[Benjamin Wittes]

People are there in a transitory capacity because it's basically a stopover where we're deporting you. You have a presumably valid deportation order. So we put you on a plane and we could fly you to Venezuela or Colombia, but we're not because we want to thump our chests and seem really macho. So, so we're going to stop in Guantanamo for a few days and treat you badly just long enough for you to file a litigation. But then we can moot out the litigation any time by actually completing the deportation. Is that an ungenerous but basically fair way to describe it?

[Roger Parloff]

I think that's about right. I mean, like, what I think we're seeing is like a big shell game. Right. Of, like where of. Of, of hide the, the, the migrant detainee. Right. So these have but question what is.

[Benjamin Wittes]

The government get out of doing this other than being able to say it uses Guantanamo Bay because it's not like these people were not in detention before.

[Roger Parloff]

Right, Right. I've also been struggling to figure out what, like, tangible benefit the government gets from this, except for, like. And it's not a benefit. A gigantic bill. Right. Because it's hard to do everything on Guantanamo Bay. Only things that I can think of is, like, it is diplomatically difficult to get Venezuel to, like, agree to a deportation flight. Why you would detain these folks in a much more expensive place than. Than detain them somewhere, like, you know, in Texas or whatever. Right. I think a lot of that comes down to what you were just saying about the vibes and the political points that you're scoring and things of that nature. I also wouldn't be shocked if folks who are making decisions, like, fundamentally don't understand the protections that apply to these folks with final deportation orders, even if they're at Gitmo. Right. I could very easily imagine a world where some of the folks making decisions think that if you put them at Gitmo, that somehow we should think of them like a. Like. Like. Like a law of war detainee, which is obviously fundamentally incorrect. But, like, also wouldn't shock me. Right. As a level of sophistication.

[Benjamin Wittes]

But. Okay, so. So is your impression that the negotiation with Venezuela, you know, if you have them at Guantanamo, then you say, we've got your guys at Guantanamo, and then Venezuela's like, oh, okay, we'll take them. Or, you know, whereas if they're in detention in Texas, you're like, hey, we've got your guys in Texas. And the Venezuelans are like, I don't care.

[Roger Parloff]

It's hard to tell. I mean, like, maybe, like. But the correlation, the causation here, like, is not, like, working, like, you know, is not helping us out.

[Benjamin Wittes]

When Guantanamo was, like. Natalie gets very upset when I say this, but when. When Guantanamo was a law of war detention facility, my view was, I don't really care where you hold law of war detainees. If you. If it's legal to do it in, you know, in Bagram, if it's. If you're holding people in ethical conditions in law of war compliant conditions, I don't really care if you're doing it in Guantanamo in, you know, Leavenworth or in Bagram or in, you know, some makeshift facility in. In wherever. But in this case, it's like, you already have them detained. You're. You're already putting them on a plane to deport them. It really feels like an extra stop. And it's not like Dubai, where there's a shopping mall or something. You know, it's like, it's like an extra stop that's just for litigation purposes. I can't, I really can't figure out what they're getting out of it.

[Roger Parloff]

Yeah, I mean, I think the only additional like maybe benefit and it's hard to construed as a, as a benefit. Right. It's like all this litigation is about, you know, do these folks have sufficient access to counsel. Right. And the facts seem to always suggest that they don't. Right. They're like, aren't enough, you know, phone lines, there are insufficient number of flights for lawyers to get there. Right. It's, it's like if the goal is to like a combination of like own the immigration defense attorneys and make it at least more difficult for folks to get any legal counsel in this like final stage of deportation, maybe putting them in a spot where it's like very institutionally difficult to like do any of that stuff gives them like some marginal benefit. But like that seems really thin, especially if you're comparing it to the, all the extra costs that they're incurring and.

[Benjamin Wittes]

Especially if you're doing it for an extremely short period of time.

[Roger Parloff]

Right, right.

[Benjamin Wittes]

The theory of it in the law of war context was these are long term strategic detentions with, associated with interrogations. So you're taking people out of the field and you're building a special facility for it. Okay, maybe that's a plausible idea. Maybe it's a terrible idea, but it's an idea here. It's like, okay, you've got your deportation order, the plane takes off, it could go to Venezuela, but no, we're going to stop in Cuba because we can. And, and the Secretary of Defense is going to kind of make a big deal about it because somehow the word Guantanamo implies a kind of level of machismo that just deportation to Venezuela does not imply. I mean, at some point people are going to figure out that this is not like a good cost benefit analysis, quite apart from the human rights components of it.

[Roger Parloff]

Totally. Right. Because this is all going to be extremely expensive. I imagine that the departments are still arguing about who has to foot this bill. Right. Because it's been entirely unclear who should be fitting the footing this bill. And so.

[Anna Bauer]

Right.

[Roger Parloff]

I mean like, I think you had like a one off idea from the dome of the President which leads to like actual concrete action. And that actual concrete action is like, doesn't make a whole ton of sense and it's really expensive. So like, I don't know if we get past like, a couple more weeks of trying to do this kind of thing.

[Benjamin Wittes]

All right, so we're having. We file, it's moot. We file, it's moot. We fight like a kind of a mootness, whack, a mole game. So what is the status of the litigation now?

[Roger Parloff]

Yeah, right. So there's been radio silence since the 24th. So the. There was a. There have been no hearings that have been scheduled. The plaintiffs and the defendants have both asked Judge Nichols that if he wanted to do a hearing, that he do it on the 26th. So what is that, two days ago now? And there was no response to that request. So at the moment, where everyone's, like, literally just waiting for the judge to decide something.

[Benjamin Wittes]

And has Judge Nichols given any indication of his thinking?

[Roger Parloff]

No, not in the way of, like, any actual. I was just checking it right before we started. There's been nothing posted to pacer since the 24th. That was. That was when they posted the reply opposition to the motion for. For the Trojan.

[Benjamin Wittes]

All right, let's talk about birthright citizenship, because it's kind of the opposite of Guantanamo, right? If you can move somebody to Guantanamo to take away their rights or to pretend you're taking away their rights that are already gone because they've been deported, you can also deny that that person, if they were born in the United States, has rights, even though the Constitution says they do. And that's the birthright citizenship cases. It's not quite two sides of the same coin, but it's awfully close.

[Roger Parloff]

The coins are very close to each other.

[Benjamin Wittes]

Yeah, exactly. All right, so where are the birthright citizenship cases these days?

[Roger Parloff]

Right? It's like, whereas with the Gitmo case, right, we have a lot of silence here. We just have resounding defeat for the administration across what is now, I think, four circuits, so quite the record. So, like, going chronologically with our cases, right? We have one case in the District of Massachusetts, so the Second Circuit over here, this is New Jersey versus Trump. And there's been a lot of steps already for that case. So there was a preliminary injunction that was entered earlier this month, and that enjoined enforcement of the executive order to Justice Appealed, asked the judge to stay the injunction pending appeal. The judge declined to stay the injunction pending appeal. And all of these decisions are all because, like, every single judge believes that there is just, like, no likelihood of success on the merits.

[Benjamin Wittes]

And why. Why are all these judges of diverse politics all in such agreement? Is there. Is there any reason that you can Think of for that.

[Roger Parloff]

Great. Yeah, that's right. Right. So a couple of reasons. One, just like the text of the 14th Amendment. Right. Right. So the 14th Amendment tells us that if you are born in the United States, if you're subject to the jurisdiction of the United States, that you are a citizen of the United States. And case after case since this one particular case called Wong Kimarc in the late 1800s has affirmed this idea that unless you are subject to the jurisdiction of some foreign power because, for example, you are the child of a diplomat or you are the child of someone who is invading the country, right. Some other person that is like unquestionably subject to the jurisdiction of another country, you get birthright citizenship. And this is consistent with common law understandings of birthright citizenship.

[Benjamin Wittes]

Okay, So I have a funny thing to say about this, which is, I swear I am not making this up. The other day I was asked to brief the staffs of four foreign embassies. And so I went to one of these embassies and, and they asked me about this case and I had to explain the subject to the jurisdiction thereof language. And I said, so you know, the people who don't have birthright citizenship by constitutional law are your kids? And they all burst out laughing. And, and so, yeah, I actually talked to the people whose kids do not have birthright citizenship about the, or constitutional birthright citizenship about this case. But the point is unlawful immigrants, undocumented migrants are not diplomats.

[Roger Parloff]

That's correct. Right. There have been a small handful of commonly understood exceptions. Right. It's the diplomat exception, it's the invading army exception. Before citizens of federally recognized tribes were given automatic citizenship in 1924, it was folks who were subject to the jurisdiction of those Native American tribes. Right. You know, very narrow categories which have been under understood for like over 150 years now and which like, contributes to the fact of like, why the administration just like keeps on losing. Right. In every single circuit, the Second Circuit, it's the, it's the ninth Circuit, it's the Fourth Circuit, I guess that was three circuits. But anyway, a lot of losing.

[Benjamin Wittes]

And normally when there's no conflict in the circuits, the Supreme Court will generally not hear a matter. Although one countervailing thing is when the Solicitor General asks for cert, they tend to get it. Is your impression that this is likely to be more interesting at the Supreme Court level than at the circuit level, or is this a total loser for the administration at the Supreme Court level too?

[Roger Parloff]

I am terrible at Supreme Court prognostication. But I will do it. So I think that it's, it, it's going to be pretty boring at the Supreme Court as well. I, I can't imagine the Chief Justice, Justice Barrett, getting behind some of the legal theories that we've been seeing to like, create ideas of birthright citizenship that are based somehow on like, ideas of being accepted into accepting the jurisdiction of the United States. It, like, requires so much cherry pick. Cherry picking of history that it's just like, really quite implausible. But I've been wrong many times before. So, like, you know, don't want to overstate it, but, like, I would be pretty shocked.

[Anna Bauer]

Is the government using the invasion analogy in their briefs on these cases?

[Roger Parloff]

Interestingly, they're not. You would kind of think they might. Right. Potentially. I've been thinking about this. Like, maybe it's because, like the idea that you're. It might be too narrow. Right. If, like, all we're thinking of is that trendy Aguila. Right. The one of the transnational cartels that the United States. That the government has been speaking about. Right. If that's the invading force. Right. And you're only talking about the children of that invading force that might give you not. Right. That's not like, not enough children to strip citizenship from. So you need something like a little bit broader.

[Benjamin Wittes]

You have to hold them under the law of armed conflict.

[Roger Parloff]

You totally would.

[Anna Bauer]

And.

[Roger Parloff]

Which is like another stuff they haven't taken yet. Right. It's like this. It's, it's, it's a whole, it's a whole battle bag of something. Yeah.

[Benjamin Wittes]

All right, so let us move on to the giant raft of cases. Roger. That involve the attempt to dismantle the federal government and fire all its employees. Where do you want to start with that? What was. I mean, the volume of these cases is now really astonishing. How do you want to organize the discussion?

[Anna Bauer]

Well, we can talk about dismantling some agencies and then there's the DOGE cases. And there are different ways of attacking doge. And so I'll briefly talk about the dismantling per se cases. Those aren't going that well. At least the usa.

[Benjamin Wittes]

For whom?

[Anna Bauer]

For. For plaintiffs. Certainly not for employees of these agencies. And that was the, the USA ID case that, that Carl Nichols, also the same judge, is. Is hearing American Foreign Service association versus Trump last week. I think, Scott. I think we knew. I think it happened before the broadcast. He had rejected. He dissolved the TRO and denied a preliminary injunction. And the main reason was this concept that the, the employees. If, if you don't look at this as a unique thing, like dismantling an agency. If you look at it as just a lot getting fired. There are remedies for employees, administrative remedies, and they're in front of a lot of different boards that Congress has set up. Things like the Federal Labor Relations Authority, the Merit Systems Protection Board, the Foreign Service Grievance Board, the Foreign Service Labor Relations Board. And so Nichols was saying, that's your remedy, so you don't have irreparable harm the, the, the employees. His ruling was actually a little worse than that for plaintiffs, I would say. He also said some things he didn't have to say. He brought up a case that we're probably going to be hearing a lot more about called White vs. Barry from 1898. And, and this is actually importantly a case that Gorsuch brought up in his dissent in the Dellinger case, which was joined by Alito. And the gist of what Judge Nichols took away from it was that you. It's not that easy to use an injunction in a government personnel case. He said, to enjoin actions on federal employment matters, you can't apply routine injunction standards, a quote, far more rigorous showing, unquote, is necessary. So when you combine this, this concept of channeling that basically the theory is that the judge doesn't have jurisdiction, that Congress has said, I need to channel these cases to these administrative remedies. That's a, that's a big hurdle. Now, people have tried, and, and, and so it'll be interesting. We've now got a question.

[Benjamin Wittes]

But, but why is the. Why is there a. An assumption that the normal standards of injunction don't apply to a mass firing of government employees?

[Anna Bauer]

I haven't read White vs Barry from 1898 yet, so I don't know. And what the, what Gorsuch was saying was that it. Almost like it's just a blanket thing. You can't. There was no remedy in equity to force a government employee back into a job when the country was founded. And, and so I can't do it either. So I don't really know. But I think that if we. It's. It's also a concept thing. Are you buying that these are conventional layoff cases, or is it really something different where this administration is violating the separation of powers by dismantling an agency that Congress created? And what Judge Nichols said is he. He was a little cavalier, in my humble opinion, because he said, well, they say they're dismantling US Aid, but it still exists. Well, it might have existed when he wrote that. I don't know that it still exists. It's certainly the funding has been the programs it's funding. I've been slashed by at least 92%. And the, the, the lease has been, is in the process of, you know, they ripped the signs off the, the, the, the, the headquarters. And we're going to have a big test of this coming up with the Consumer Finance Protection Bureau.

[Benjamin Wittes]

And I, I think there's a, there's a, like if the president bombed USAID or like took a crane and you know, with a wrecking ball and knocked it down, you know, there's some point at which firing enough of the employees becomes an attack on the institution. And if certainly it's more than three. If you fire three, you're not. But if you fire 90% of them. Right. At some point. Now that does raise a who has standing question.

[Roger Parloff]

Right.

[Benjamin Wittes]

Do the. Is that an employment law problem or is that a. And so I take part of what Nichols is saying is wait a minute. To the extent you're thinking about this in separation of powers terms, Congress can do something about it tomorrow if it wants. Why are you bringing that to me? But to the extent you're thinking about it as employment law problems, hey, go to the Merit Systems Protection Board as individuals. I do think there's got to be some point at which if you create enough problems for enough individuals, it has a kind of an institutional separation of powers quality. Yes.

[Roger Parloff]

Chris, I very quickly just skimmed White first. Berry.

[Benjamin Wittes]

See, this is the kind of thing that happens when you watch lawfare Live. It's not happening on other podcasts where we have, you know, we're talking to one guest and the other is reading Supreme Court case law from the late 19th century. And what does White v. Barrett have to say?

[Roger Parloff]

Thankfully, it's incredibly short, which is I think pretty unique for an 1898 case. And so the issue seems to be one mostly about the jurisdiction of a court sitting in equity. So what they're saying is that there aren't the court can't exercise equitable remedies for these employment decisions. So it says like the, the. So the jurisdiction determine the hiring status basically of these public officers belongs exclusively to the courts of law is exercised either by cert, error of appeal, mandamus, prohibition, quaranto or information the nature of a writ of quaranto. I don't know old civbro. And so I wonder. And so they say right you. Or like other mechanisms created by statute. Right. And so it seems like what we're doing is like a really complicated kind of civ pro thing. Right. Like, can you use these equitable injunctions to prevent the kind of firing that we're talking about? That's why.

[Anna Bauer]

And if you can't, we're in bad shape. I mean, that's the whole ball game. And, and Right. So it's, it's, it's a potential problem. I think we're going to have a better test case with the Consumer Financial.

[Benjamin Wittes]

Protection Board. And why is that?

[Anna Bauer]

It's a good set of. Well, it's a good set. It's a horrendous set of facts. And it's going in front of Judge Amy berman Jackson Monday, March 3rd and at least as presented by the plaintiffs, I haven't verified the, you know, they say the administration has closed its headquarters and its regional offices, has removed CFPB signage, has moved to cancel leases and contracts. I think they say if this does not constitute unauthorized closure of an agency established by Congress, it's hard to know what would. So. And there's a second case in Maryland, Mayor of Baltimore versus Vote, that I think is also about dismantling that agency. And we're awaiting a ruling on the preliminary injunction in that case. The hearing was February 26th. So I think we might get some rulings there that could balance Judge Nichols approach.

[Benjamin Wittes]

And what about Doge? There have been a bunch of challenges to various aspects of Doge, which of course has been difficult to pin down, what it is and how it works. What are your, where are we with those.

[Anna Bauer]

Now? Anna is actually at one of those right now. There's a couple that are challenging it under the Appointments Clause, and maybe so I'll let her. Hers is in Maryland today. Does 1 through 26 versus Musk. There was another one in front of Judge Chutkan, and she actually denied a TRO on February 18, but that was mainly due to the plaintiffs not showing irreparable harm. She would add a lot. She, she had a lot of issues about the Appointments Clause. It was a favorable ruling in, in, in many of those. In, in that way. And I would say in also this week, in a case that doesn't involve the Appointments Clause, Colleen Kolar Catelli brought up the issue sua. She, she just didn't see how, how does he have these, these powers? The, the, the trick with the Appointments Clause is how much relief. Even assuming you get a ruling, how much relief are you going to get? Because there is a argument that, well, there's something called a de facto officer and so in fact, this is the little secret about when Judge Cannon dismissed the case in Florida because Jack Smith, she felt didn't have, wasn't properly appointed. Ordinarily, one of the remedies would be to say okay, hand it to the U.S. attorney prospectively, we'll have a guy who's properly appointed. You don't eliminate everything that's happened happened. And the, the government hadn't briefed that point. And then when they realized when she, that she really looked like she was going to dismiss it, they said can we brief remedy? And she said no, the time has passed. And, and so she dismissed it. But anyway, expo. The. So that's a issue. On the other hand here I don't think Musk even seems to have de facto authority. So it might be a little different. Anyway, those are interesting cases. The most of what we've seen are cases that try to, that object to the fact that Doge is looking at these unbelievably sensitive documents of ours. You know, tax information, Social Security information, health information, his, his 20 year old, you know, software programmers. And so these cases are brought under sort of a Privacy act claim it again, it's ultimately an Administrative Procedure act claim that arbitrary and capricious or agency action or action beyond statutory authority in giving Doge access to these ultra sensitive documents. The trouble, there's a few problems with that. One is that Doge has been cleverly, you know, lawyered. It's, it's better than I think some of us thought. But the, the, the recurring problem at the injunction stage and is is that is the question of whether having one of these 20 somethings look at your stuff is irreparable harm. If, if the 20 something doesn't.

[Benjamin Wittes]

What if the 20 something is named big Balls? I think having leave aside whether he's a 20 something, I think having somebody named Big Balls look at my stuff is irreparable harm.

[Anna Bauer]

Yeah, well, it, it, it actually seems and the courts have been split, but the D.C. courts have not been and it might end. And, and what I think Judge Kolar Catelli this week actually said that the, the DC Circuits standards are higher than some of the other circuits. So for instance, we did have I think a preliminary injunction last week from Southern District of New York, Judge Jeanette Vargas against what was the Doge in the Treasury Department. But here we had a good Judge Randy Moss deny one in that, that was in the Department of Education. And we also had Judge Bates deny one that was Doge in Labor, CFPB and HHS and the recurring problem was that, as Moss put it, the mere access by a formerly, you know, some, a government employee who isn't formally authorized to see it isn't irreparable harm. But the, the, the hurdles go beyond that because DOGE has gone to great lengths to make it appear that these guys are agency employees, even though, you know, they're not being paid. Most of them are detailed from DOGE into multiple agencies. You know, some of them have been in five agencies. The reason I'm, I'm saying all this is that the Privacy act has an exception. It says if, it says that agency employees can view your information if there's sort of, if there's a need to see it. And so they're, they're claiming that all of these DOGE people are employees of treasury today, employees of labor tomorrow, employees of CFPB the next day. And so far, judges have been buying it. So we're waiting to hear what if Judge Colleen Kolar Catelli converts her Trojans into a preliminary injunction? But I heard that hearing, that was the one where she did sua sponte talk about how this seems to be an Appointments Clause problem. But she also said to the plaintiffs, your problem is your weakest link is irreparable harm. And that's a bad weak link because it's sua. You know, it's. The courts say it's sine qua non for a injunctive relief here. So without irreparable harm, you, you can't get the preliminary injunction. So I'm very. She should rule any moment. I'm curious what she does.

[Benjamin Wittes]

All right, so we're, let's talk about the politicization of the Justice Department. We were last week or the week before, I, I can't even keep weeks straight anymore. It was all about the defensive use of the politicization of the Justice Department to protect one's friends in that case, Eric Adams, the mayor of New York. But, you know, if defensive politicization comes, can offensive politicization be far behind, as Shelley wrote? And this week we got a bizarre story about a criminal investigation launched by the acting and now nominated U.S. attorney Ed Martin involving a large amount of funds for climate change that appears to have triggered the resignation of a U.S. attorney's Office prosecutor and then triggered multiple magistrates to deny a seizure order. So, Roger, what do we know about this case and what do you make of it?

[Anna Bauer]

Yeah, this is a real troubling case. It's. And everything I know about it comes from a Washington Post article that ran either this morning or yesterday and I'm sorry I don't have the reporter's names, but seems to have been a $20 billion grant under the Biden administration. Toward the end of the Biden administration under the Greenhouse Gas Reduction Fund and the EPA administer, Administrator Lee Zeldin wants to try to claw it back. He's sure there's something wrong about this. It doesn't smell good to somebody and.

[Benjamin Wittes]

They have a smell Good is not the standard of a predicate of criminal investigations or else we would be investigating the hell out of Doge. Right, right. The standard is are there articulable facts that constitute a criminal a predicate that a crime has been committed?

[Anna Bauer]

It, well, it didn't used to be the criminal standard. It appears to now be the criminal standard. And apparently Emil Bovey is involved in this as well. And Ed Martin, according to the article and we actually saw, you know, we got a glimpse of this thing last week when I think it was the Post also reported that the head of the criminal division in the U S. Attorney's office in D.C. resigned. It was over. Over this. Apparently she didn't they Martin wanted her to I think get a seizure order, criminal seizure order against a bank that had some of these funds and she refused and resigned, according to the article, Denise Chung and then this one added that at some point along the line they moved, they gave up on the D.C. u.S. Attorney's office and went to another one somewhere in the southeast and the prosecutors there didn't want to do it either. At some point somebody submitted an application for a seizure order to a magistrate and he rejected it. And the last we've seen of it, it was in the Southern District of Florida and Miami. Seeing if that we don't know if, if they're going to pursue it. So it's a very fishy thing. Apparently there was a piece of evidence they're relying on that comes from a Project Veritas video. If people, you know, that is that.

[Benjamin Wittes]

Highly reputable organization that has never been known to doctor videos that they collect.

[Anna Bauer]

So anyway, that's a very, that's a very disturbing one. Also this, this week, a DOJ spokesperson quit. Joshua Stuvy, longtime person, he said, I cannot continue to serve in such a hostile and toxic work environment. He, he praised the basic decency of his colleagues and then said it is heartbreaking to see that basic decency come to an end. Also today, I think Bloomberg is reporting that Ed Martin demoted about a half dozen January 6th supervisors. I, I, I have heard that it was about seven. And that it included one of the key, one of the proud boys prosecutors, one of the Oath Keeper prosecutors, one of the prosecutors involved in pursuing some of the worst violence at the Lower West Terrace. So the beat goes on here.

[Benjamin Wittes]

All right, let us take.

[Anna Bauer]

Oh, and then there was a development in. In. In Adams as well. The. In case you missed it, Adams has now on. On two days ago, February 26th, asked to dismiss his case with prejudice. Remember, the offer before was without prejudice so that they could sort of hang it over his head like a sword of Damocles if he didn't do what they wanted. At least that was the. What the structure implied. He now wants it dismissed with prejudice on. For prosecutorial misconduct because of the leaking of the assassin letter, which. Which also revealed that they were about to file a superseding indictment for obstruction of justice and so on. The odd thing about that is on, you know, the, the Sassoon letter came out, I think around February 12th or 13th or. And on February 19th, he was in court and said he had no problem with the dismissal without prejudice. And now he's switched and says he wants it with prejudice. But anyway, that's where that is.

[Benjamin Wittes]

All right, let's take some audience questions and then we are going to be joined by the estimable Anna Bauer, who has ducked out of court in Greenbelt, Maryland, and is looking for a quiet place from which to join. Isn't technology fabulous? The estimable anonymous attendee asks. American Oversight filed a complaint with the New York Bar requesting an investigation of Emil Bovey for his actions in the Adam prosecution. Is this a Hail Mary move? How plausible is it that DOJ attorneys who behave in such a manner may face bar sanctions up to and including disbarment? To what extent can the prospect of bar sanctions function as a deterrent to such behavior? Or are we in terra incognita? So I have some information on this, Roger, Chris, if either of you do, you're welcome to go first.

[Anna Bauer]

No, go ahead.

[Roger Parloff]

Yeah, go ahead.

[Benjamin Wittes]

All right. So the traditional posture of the Justice Department is that it investigates its own attorney misconduct. And allegations of attorney misconduct are traditionally referred by state bars to an office at the Justice Department called the Office of Professional Responsibility, which, conveniently enough, reports to the Deputy Attorney General, of which Emil Bovey is currently the acting opr, is famously protective of Justice Department lawyer ethical conduct and is often thought of as a place where, you know, ethical complaints go to die or at least to take a very long time to be resolved. The wrinkle here of course, is that the licensing agency is in fact the state Bar, not the Justice Department. And it is not a convenient thing if you are, say, a former Justice Department official, to have a bar complaint against you. This is a particularly interesting one because the allegation is an allegation of an actual conflict of interest and is being made by the U.S. attorney or the until recently acting U.S. attorney in New York, who is herself a very respected lawyer. It may be coming from American Oversight, which filed the complaint, but the allegations are ones that are actually coming from Danielle Sassoon. And of course, Ms. Sassoon wrote it in an eight page, single spaced letter with a lot of attention to detail, I think with the expectation that it might find its way to a bar or toward the Office of Professional Responsibility. Is there any history of this stuff actually causing problems? Yes, the answer is Jeffrey Clark, of course, who was a senior Justice Department official and has faced bar discipline. Rudy Giuliani, of course, has also been disbarred, and he was back in the mists of time, a very senior Justice Department official. He was Associate Attorney General, and I believe he's the only U.S. attorney for the Southern District of New York ever to be disbarred. And so I actually think bar discipline, which takes a long time and is a difficult process, it is one of the processes that has legs and it has a very interesting, I think, element that makes it a little bit resistant to Trump's, you know, predations, which is that it's not subject to the pardon power. It's actually a licensing power. Now, the wrinkle is, you know, OPR will probably get first crack at this. And it is. I have never known OPR to find that the Deputy Attorney General has behaved unethically and so report to the Deputy Attorney General. Although, of course, in OPR's most famous moment, it did once take down an FBI director, the estimable or not so estimable William Sessions, who was taken down in by a devastating OPR report by one Michael Shaheen. So I would say, look, these are serious allegations and it is going to be a little bit tricky for OPR to simply be dismissive of them. I doubt the. I don't know whether think Bovee is a member of the New York bar. I doubt the New York bar will ultimately be dismissive of them. And there are witnesses who worked with him who will presumably offer testimony. And so I think it's a potentially pretty serious matter whether it will restrain the Justice Department. In the meantime, I will leave to others to Guess Josh asks. George Conway seems concerned about the consequences if, when he assumes when the Trump administration starts disregarding court orders, are his concerns justified? Do either of you have thoughts on this question?

[Anna Bauer]

Well, the, the case in front of the court right now is, is quite a record. They do have this, you know, there is this claim that, well, we thought there was an exception to your Trojan if we could find a loophole or a separate statute allowing us to. But, you know, he clarified it about three times before this, this finally order of enforcement, you know, and it went from February 13th to, I think about February 25th with zero, you know, I don't think zero funding resumed. They're walking the line and I think there's another case, I can't right now where there's a PI, there's a preliminary injunction, and somebody is bringing up more issues. So I, I, I think they're trying to avoid doing the full, you know, apparently apocryphal, defiant Andrew Jackson defiance thing, but if that's who it was, who didn't do it. But they're pretty close.

[Roger Parloff]

Yeah, I, I think I would agree. Right. I mean, like, if you think back to like the first administration and how the administration, like. Right. Lost all the way up to the Supreme Court. Right. On all the border wall litigation. Right. They actually did along the way. Right. Stop building border wall for significant periods of time in response to lower court decisions. And we're not seeing the same track record here. Right. You could have imagined the same kind of a strategy. Right. Of finding other loopholes to get their way around. Right. The lower court decisions. And we're, you know, what are we less than two months in? I don't think that the indications are good for their appetite to at least obstruct.

[Benjamin Wittes]

Yeah. So I want to soften that just a little bit. There are, it seems to me, differences between defying court orders, not complying with court orders and, you know, sort of doing the hardball litigation that attempts to avoid compliance or tends, you know, tries to, tries to resist compliance. But within the terms of, of the order, the, they are definitely not, as Chris says, not jumping to comply. They are appealing aggressively and they are, but what they're not doing is refusing to comply. They're not saying, we acknowledge that, you know, Judge Anna Bauer has ordered us to do this and we refuse because Article two is uber alles. And, you know, and that means once when you acknowledge, you sort of pretend to be complying. Right. I'm going to file an affidavit by Pete Maraca that Says here how we're going to comply with this order. We're going to. Instead of doing a blanket freeze, we're going to individually cancel all the grants. And then the judge says, no, that's not compliance. I order you to comply. And then you appeal that. It's not exactly defying the court order.

[Anna Bauer]

It's.

[Benjamin Wittes]

It's being as aggressive as possible within the possible terms and arguing about the terms of the order. I would say as long as they're in that zone, which is to say, acknowledging the authority of the court and by actually appealing is a form of acknowledging the authority of the court, I am going to operate on the. I will not jump to defiance until it happens. I'm not saying George is wrong. I love George Conway. Lawfare was the first place to publish George Conway when he, you know, emerged from his shell. He's a friend. He's a very smart man. He's not wrong to be concerned about this. But I think you have to always approach litigation as though the court has the authority to resolve the litigation. And at the point at which somebody says the court has no authority to resolve this litigation over me, then you have to see whether the court has the authority to lock that person up or whether the court has the authority to sanction them in a way that is meaningful. And so before I get to the question of compliance or defiance, I want to exhaust all of the court's actual powers. And that starts with, okay, you say you're complying, and you're filing an affidavit that describes non compliance, and then Judge Ali comes in and calls you on that, and you appeal him. What happens when the supreme court says, no, actually, that's a valid court order? And so, you know, I'm not disagreeing with anything that Roger or Chris says. I'm saying, don't jump to catastrophize the end stage of the process While there's still 100 incremental things to do to actually get to compliance, including, by the way, figuring out what the law is and what it in fact requires. In each of these cases, we are joined by the estimable Anna Bauer, who showed up at first with the Southern district of New York court as her background, and then got embarrassed and realized that she had the wrong court in back of her. And so she is now outside of the Beltville court, having traversed 200 miles in mere seconds. Anna, what's going on in that court?

[Chris Mirasola]

Yeah, so I'm coming at you, as you said, live from the Greenbelt district court in Greenbelt Maryland, or is that a background? No, I am actually here at one.

[Benjamin Wittes]

Court with a zoom background from a different court.

[Chris Mirasola]

Yes, I forgot to remove my SDNY background from last week. So it was automatically there and then I had to remove it. But what you were seeing behind me is indeed the federal courthouse. Apologies for the recording conditions. I just minutes ago walked out of a hearing over Appointments Clause issues related to the operations of Doge and Elon Musk. And it was a three hour long hearing, it started at two. So I've been in this courthouse for quite some time and there was no ruling from the bench. It was under advisement. But happy to talk about what happened in the hearing if you all have specific questions.

[Benjamin Wittes]

Yeah. So, well, give us a little bit of an overview. Why is the Appointments Clause issued in. First of all, what is the Appointments Clause issue in Doge? And secondly, why was it. Why is it in Greenbelt?

[Chris Mirasola]

Right. So we talked about the Appointments Clause cases a little bit before. One of them is currently before Judge Chutkan. She denied a tro, but suggested that the plaintiffs in that case, which is in the District of Columbia District Court, may have at least a colorful claim. The claim essentially relates to the idea that Elon Musk and Doge are operating with significant authority to the extent that they violate the Appointments Clause in the sense that they aren't reporting to someone other than the President who is a person who is nominated in confirmed bias in it. And so there's this accountability and oversight issue. It's very similar to the argument that was previously made before Judge Cannon, ironically by Trump's defense counsel in his criminal cases. Infamously, Judge Cannon then dismissed the case based on this appointment Appointments Clause violation related to the appointment of Special Counsel Jack Smith. And so here there's a very similar argument that essentially Elon Musk is acting as though he is a principal officer of the United States, even though he is technically supposed to be classified as a special advisor to the President who only has the power to advise the President or communicate his directives. That is what the Justice Department has said in court filings at least. But of course, the public record seems to suggest otherwise. There's a number of statements that have been made by Trump and Elon Musk that suggest that he has been deeply involved in directing the dismantling of, for example, usaid. And so that was a big topic of the discussion today during today's hearing, which was the preliminary injunction hearing in this particular case, which is separate from the District of Columbia plaintiffs. The plaintiffs are number of either USAID employees who had contracts that were terminated or were employees of USAID and are now on administrative leave. And they're seeking, among other relief, access to the database that they've been effectively kind of have not had access to since DOGE took over the USAID operations. And so today was this preliminary injunction phase in which they're trying to get access back to those database systems. Some of these folks that are being represented in this case are people who, for example, are in high risk areas and they have not one of the plaintiffs at least did not have access to, for example, the, I forget what it's called, but it's like the safety and security system in which they're able to actually communicate with people in case there's an emergency. And so and then there's another plaintiff where, for example, the person is in Central America and as a result of the dismantling of USAID has had their electricity bills stopped being paid. And that is what powers their radio, if they need to contact someone in case of an emergency and that kind of thing. So that's who the plaintiffs are. And then as I mentioned, the claim is that, that the operations of DOGE violate the Appointments Clause. There's also some separation of hours issues that have been raised. And the Justice Department, interestingly, again today, this is a pattern that we've seen, including earlier this week when there was another case about Doge before Judge Caller Catelli. She questioned the Justice Department on the chain of command within Doge who is making these decisions. And the Justice Department wasn't able to answer many of those questions. Again today, it was the same kind of thing. And so the judge, I think, is weighing a number of issues, but he certainly does seem to think that if it's the case that Elon Musk is the person who directed the dismantling of usaid, then that suggests that he had significant authority that may very well violate the Appointments Clause.

[Benjamin Wittes]

And so, Anna, we found out the answer to a very important question to you this week. Would you like to tell us a little bit about who the administrator of Doge is and what we know?

[Chris Mirasola]

Yes. So as I mentioned, we not knowing who administrator of Doge is, and I managed somehow whether whether she knew it or not. Judge Caller Catelli joins my cause, my one woman mission to find out who the administrator Doge is.

[Benjamin Wittes]

Oh, I think we know the answer to that. Judge Kohler Catelli read your Twitter feed over or your Blue sky feed over many weeks and decided that your quest was a worthy one and listened to Lawfare Live and determined. It was like an amicus brief, basically and took up your cause much. It's very similar to the relationship between Josh Blackmon and Judge Cannon.

[Chris Mirasola]

Well, Ben, I gotta say, it really does help when a federal judge joins your cause because they are able to ask attorneys on the record who have a duty of candor to the court, who is the administrator of doge. Unfortunately for me, the Justice Department attorney, as I mentioned, did not know the answer, which was very disappointing. But I think that what then happened is there was a lot of media interest all of a sudden in this question of who is the administrator of Doge, because the Justice Department was not able to answer that question. And so the next day there were a number of reporters who started asking this question over and over again, essentially to White House communications and spokesperson people. And so then finally during a press briefing about two I was it on Wednesday. It's hard to keep track at this point, but I believe it was on Wednesday at a press briefing after Caroline Leavitt said I there is an administrator of Doge and I'm not going to announce the name from the podium. Minutes after the press briefing, the White House then revealed the name of the person. Her. Her name is Amy Gleason, a former USDS employee who then went back into the private sector. My understanding from reporting is that she worked at the firm of Brad Smith, a Trump ally who has also been working in the administration, and then came back to USDs or DOGE and the start in January and now has been announced as the administrator. But something I will say that is odd is that the White House said in a briefing that Amy Gleason was the administrator for several weeks, maybe a month, that everyone knew about secret but there's reporting that even DOGE employees didn't know that she was the administrator. And then today in the hearing that I was just in, the judge at one point said, so who was the administrator, if there was one before Amy Gleason? And the Justice Department attorney said, I don't know. And, and the judge said, well, I think that would be something that would be, you know, pretty basic to find out. Have you asked anyone? And the Justice Department attorney at first said, no, I haven't. But then he backtracked a little bit and said, actually, Judge, I apologize, I need to crack the record. I did ask someone that question earlier, but I wasn't able to get an answer at the time. So. So there's just there continues to be a lot of information inconsistencies here, Ben, and truly this was very frustrating to the judge, not just on this point, but on other inconsistencies, the incoherence of the public statements about, you know, what Elon Musk says he's doing and then what in court declarations they say Elon Musk is doing. And at one point the judge even said, you know, I gotta admit, it is pretty suspicious that there's, you know, this discrepancy between these public statements and then what's being said in declarations and such. And he said, at a minimum, it at least causes a lot of confusion.

[Benjamin Wittes]

All right, so I have a yes or no question for you. Do you believe that Amy Gleason is the real administrator of Doge?

[Chris Mirasola]

I believe that Amy Gleason is the formal, on paper, administrator of Doge. Is Amy Gleason performing the duties of the Doge administrator and is she calling the shots that I am, as the judge put it, suspicious of?

[Benjamin Wittes]

All right, we have one more question from the audience and then we are going to wrap. The anonymous attendee declares that this week Representative Andy Ogles of Tennessee introduced an impeachment measure against Judge Ali for, quote, marginalizing the President's Article 2 authority. Marginalizing, of course, being a known impeachable offense. In what other ways, if any, do you anticipate forces outside of the judiciary attempting to influence outcomes in the ongoing surge of lawsuits that have significant policy implications? Who has thoughts on this?

[Anna Bauer]

Yeah, I, I, I don't think this will cow many federal judges. It, it's of a piece. I, a strange thing. Also this week, Chad Meisel, the chief of staff to Pam Bondi, filed a complaint with the chief Judge of the D.C. circuit about Anna Reyes. Judge Anna Reyes in the, who had, who presided in the hearing on the transgender in the military case. And I have to say, Judge Reyes is, you know, on the spectrum of judges. She's, she's toward the performative end. She's sort of theatrical. She comes in very well prepared and she peppers the attorneys. And, and, but he was, got very bent out of shape. She used the acronym WTF death at some point, and he was upset about that. It was beneath the dignity of the courtroom. And, you know, if you're in the, if you're used to working for Donald Trump, you, you, you're heavily into decorum and dignity. And so she, he was really offended, I don't think, you know, I, I, I don't think he omitted, you know, she did do some very performative things. And then she also praised the DOJ lawyer to the hilt, said you know, I'm just sort of. You're terrific. He didn't mention any of that. And so anyway it's, it's, it's just part of the way this administration seems to work.

[Benjamin Wittes]

I will just add to that that there are a few pressure tactics that people are using with respect to federal judges. One of them of course is threats of violence. And that is, has affected a lot of judges lives from district judges to you know, famously Brett Kavanaugh who had an assassin show up would be assassin show up at his house. And you know, the environment is very toxic and when people who are responsible behave completely irresponsibly, people who are start with a level of derangement or craziness sometimes take it to very different places. So that's another thing. As Roger just described, complaints about judicial conduct over substantive disagreements are another one. And but you know, the judiciary for all of its faults, which are non trivial, is very good at protecting the independence of judges. And you know, there are liberal judges in conservative jurisdictions and conservative judges in liberal jurisdictions and you know, the day to day functioning of courts actually, you know, to the institutional judiciary's credit is largely unaffected by noise like these sort of impeachment resolutions folks. We're going to leave it there. Chris, thank you so much for joining us today. Roger, Anna, thank you guys for joining us today. And Anna, you know the whole popping out of the courtroom with the wind and the wrong court behind you, it's a very cool thing. We'll be back next week.

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