The Lawfare Podcast: Lawfare Daily – The Trials of the Trump Administration (Jan. 23, 2026)

Host: Benjamin Wittes
Panel: Roger Parloff, Anna Bauer, Eric Columbus, Olivia Manis
Date: January 26, 2026
Episode Focus: Analyzing the legal, political, and national security crises of the Trump administration’s second term, with in-depth discussion of the Justice Department’s activities, notable legal battles, challenges to agency authority, and the shifting boundaries of constitutional law.

Episode Overview

This episode plunges into the tumultuous legal landscape surrounding the Trump administration, focusing primarily on the Justice Department’s actions in Minnesota, the extraordinary search of a Washington Post reporter’s home, federal litigation and protests, and the broader implications for constitutional law and agency independence. The panel also addresses recent Supreme Court arguments regarding the “for cause” removal of Federal Reserve Governor Lisa Cook, ICE’s newly revealed home-raid policy, and significant litigation around immigration enforcement and civil rights.

Key Topics and Insights

1. DOJ Investigation of Minnesota State Officials and Protesters

[02:35–15:45]

• Federal Criminal Subpoenas: At least six grand jury subpoenas issued to high-level Minnesota officials (Governor Tim Walz, Attorney General Keith Ellison, Mayors Jacob Frey and Melvin Carter, and county attorneys). The investigation reportedly hinges on 18 U.S.C. § 372 (conspiracy to impede officers), a law rarely used outside seditious conspiracy cases.
  • Roger Parloff: “It’s a six year old crime... goes back to 1871. It’s the criminal version of the Ku Klux Klan Act... used in the January 6th cases, rarely.” [04:23]
• Political Retaliation Allegations: The timeline suggests retaliatory motives, as the subpoenas followed lawsuits by state officials against DHS’s “Operation Metro Surge.”
  • Parloff: “It certainly has the flavor of harassment and vindictive harassment.” [09:20]
• U.S. Attorney Integrity: Discussion of the Minnesota U.S. Attorney’s political background, relatively balanced appointment, and mass resignations among deputies in protest of recent policy decisions [11:47–13:34].

2. Arrest of Minnesota Protesters and Use of Federal Civil Rights Statutes

[15:45–32:49]

• The Protest: Peaceful, nonviolent protest inside a church by activists targeting an ICE official’s congregation. Protesters attended service, staged a brief disruption, and were charged federally under 18 U.S.C. § 241 (conspiracy against rights), not with trespass or FACE Act violations.
  • Anna Bauer: “There have been three people who have been arrested... not for FACE Act violation, but for 18 USC 241 violation, which is the Conspiracy Against Rights statute.” [19:22]
• Unprecedented Application of Civil Rights Law: The panel questioned whether the protesters’ conduct reaches the threshold for a federal conspiracy or civil rights violation, given lack of violence or clear obstruction.
  • Benjamin Wittes: “It’s hard to say you conspired... to deprive somebody of a right secured by the FACE Act if you didn’t violate the FACE Act.” [24:26]
• Government Overreach: Government classified the incident as violent, attempting to justify pretrial detention, but the judge rejected the argument as baseless.
  • Bauer: “Pretty remarkable that the government made this claim that this is a crime of violence when it very clearly is not.” [31:55]

3. FBI Search of Washington Post Reporter’s Home (First and Fourth Amendment Concerns)

[33:41–47:27]

• Incident: Olivia Manis covers the case of government contractor Perez Lagones allegedly leaking classified docs to WaPo reporter Hannah Nathanson, resulting in a controversial search of her home.
  • Manis: “It’s a really strong normative bias against going after members of the media... that’s why there was so much outrage.” [38:16]
• Historical Parallels: The panel compared this to past cases (e.g., Rosen/Fox News under Obama) and noted the chilling effect on press freedom, as well as the Trump administration’s rollback of Obama-era protections for journalists.
  • Benjamin Wittes: “The Espionage Act is grotesquely broad... it covers the unlawful transmission of such material to anybody not eligible to receive it... there are almost no secondary transmission prosecutions.” [44:28]
  • Memorable Quote: “I really hope we are not going to try to find out in this case or in related matters.” (Wittes) [47:27]

4. The Lindsay Halligan/U.S. Attorney Fiasco in Eastern District of Virginia

[47:27–57:06]

• Halligan’s Departure: Confusion over her status, as she steps down under judicial scrutiny regarding legality of successive appointments for U.S. Attorneys.
  • Anna Bauer: “[Judge] Novak’s order... you can no longer sign your name as the US Attorney or else I’m going to refer you for attorney discipline if you do.” [51:08]
• Judicial Assertiveness: Eastern District court actively seeks applicants for court-appointed U.S. Attorney, a rare assertion of Article III power.
  • Wittes: “I have never seen anything like that before.” [52:27]
  • Bauer: “What I find to be remarkable... Congress has made it so that where there is a vacancy it can [be filled] by a court of law and that’s what’s happening.” [53:56]

5. Jack Smith’s Second Congressional Testimony

[57:06–65:04]

• Jim Jordan’s Hearing: Special Counsel Jack Smith faced Congressional grilling, again managing to avoid perjury traps and maintain composure despite “badgering” and conspiracy theories.
  • Roger Parloff: “He could not win... it was pure badgering. As soon as he begins to answer a question, he’s cut off.” [59:55]
  • Wittes: “I have seldom seen anybody a better prepared witness on any subject in a high stakes congressional testimony.” [60:10]
• Notable Absurdities: Jordan and allies pressed far-fetched theories about Smith’s appointment and deflected blame for January 6th to others, including law enforcement officials.

6. Immigration Litigation and ICE’s Warrantless Entry Policy

[69:00–83:34]

• Current Lawsuits: Three overlapping lawsuits in Minnesota challenge Operation Metro Surge, raising First, Fourth, and Tenth Amendment claims.
  • Parloff: “Tincher was the first one filed... Hussein vs. Noem is a class action... That one’s not very far along.” [69:59]
• Eighth and Fifth Circuit Updates: Ongoing litigation over the Alien Enemies Act and ICE’s home-entry practices, with the Supreme Court slow to resolve pivotal issues despite real human consequences.
  • Wittes: “It is grossly irresponsible of the Supreme Court to say that and then not grant cert before judgment, on its own motion.” [75:46]
• ICE Home Entry Memo: Newly leaked ICE policy allows officers to raid homes with only an administrative (non-judicial) warrant. This appears to directly violate settled Fourth Amendment expectations, but may prove difficult to challenge due to justiciability and lack of adequate remedies (per Oren Kerr/Lawfare analysis).
  • Eric Columbus: “This has been long understood... not to allow the forcible invasion of people’s homes due to a little thing called the Fourth Amendment.” [78:05]

7. Efforts to Deport Pro-Palestinian Activists and First Amendment Litigation

[83:34–88:48]

• Split in Federal Courts: Massachusetts federal court found Trump administration’s efforts to deport pro-Palestinian advocates to violate First Amendment rights, offering nationwide relief and unusual burden-shifting remedies.
  • Eric Columbus: “It really revealed just how threadbare the administration’s efforts are in this regard — you really are just kicking these people out because they advocated on behalf of Palestinians.” [87:42]
• Possible Circuit Split: Contrasting approaches in Massachusetts and the Third Circuit tee up a likely Supreme Court conflict about viewpoint discrimination in immigration enforcement.

8. Supreme Court Oral Arguments: Firing of Federal Reserve Governor Lisa Cook

[92:06–99:43]

• The Case: Trump administration’s attempt to remove Lisa Cook from the Fed board under a “for cause” provision, based on politically motivated allegations.
  • Wittes: “It’s not a case that challenges Humphrey’s Executor... The question is, is ‘cause’ just the President pointing and saying ‘mortgage fraud’?” [92:06]
• Court Skepticism: Even conservative justices appeared skeptical of a theory where the President can unilaterally remove for cause merely by asserting an accusation.
  • Eric Columbus: “It’s unlikely... the court will allow Trump to fire Lisa Cook summarily... The importance of the Fed’s independence is going to be gone.” [93:01]
• Likely Path: Panel predicts Supreme Court will maintain some shield for the Fed, distinguishing it—unconvincingly—from other agencies whose independence may be gutted.

9. Quick Hits & Listener Q&A

[100:30–104:00]

• DHS’s Home Entry Policy: Likely to eventually fall in court, but challenges to standing and the lack of private damages remedies present significant hurdles.
  • Wittes: “The government’s position is very precarious, but they are going to be protected by justiciability barriers.” [100:30]
• Court-Appointed US Attorneys: Yes, the President can fire a court-appointed US Attorney, as confirmed by recent events in the EDVA. [103:47]

Memorable Quotes

• “It certainly has the flavor of harassment and, and vindictive harassment.”
  — Roger Parloff on the Minnesota DOJ subpoenas [09:20]
• "It’s hard to say you conspired... to deprive somebody of a right secured by the FACE Act if you didn’t violate the FACE Act."
  — Benjamin Wittes [24:26]
• “It’s a really strong normative bias against going after members of the media... that's why there was so much outrage.”
  — Olivia Manis on the FBI’s raid of WaPo reporter's home [38:16]
• “He could not win... it was pure badgering. As soon as he begins to answer a question, he's cut off.”
  — Roger Parloff on Jack Smith’s congressional testimony [59:55]

Notable Timestamps

• [02:35] Start of Minnesota DOJ investigation segment
• [19:07] Federal conspiracy vs trespassing in protest arrests
• [33:41] FBI search of WaPo reporter’s home
• [47:27] The Lindsay Halligan/EDVA saga
• [57:06] Jack Smith’s House Judiciary appearance
• [69:00] Immigration roundup: Minnesota, Alien Enemies Act, ICE home-entry memos
• [83:34] Massachusetts district court ruling on pro-Palestinian deportations
• [92:06] Supreme Court arguments on firing Fed governor Lisa Cook

Conclusion

This densely packed episode offers a sobering look at the legal machinations and strategies of the Trump administration as it tests the boundaries of federal power, civil rights, and constitutional protections. With cases touching on political retaliation, the rights of protesters and journalists, the independence of law enforcement and regulatory agencies, and the fundamental tenets of the First and Fourth Amendments, the Lawfare Podcast panel provides clarity and critical analysis.

For next week: Expect updates on ongoing litigation, the fallout from DOJ and immigration policies, and further analysis of the shifting legal landscape in Washington and beyond.