← The Lawfare Podcast
Loading summary
Transcript128 lines
- [00:00]
A
Why choose a sleep number Smart bed? Can I make my site softer? Can I make my site firmer?
- [00:05]
B
Can we sleep cooler?
- [00:07]
A
Sleep number does that cools up to eight times faster and lets you choose your ideal comfort on either side your sleep number setting. Enjoy personalized comfort for better sleep night after night. And now during our President's day sale, take 50% off our limited edition bed shop now for a limited time only at a sleep Number Store or SleepNumber.com.
- [00:31]
B
Want to change the efficiency game AI.
- [00:34]
C
IT Automate tedious tasks to spend more time on the future.
- [00:41]
B
Transform the everyday with Siemens. Eric it's the Lawfare Podcast. I'm Eric Columbus, lawfare Senior editor with Lawfare senior editors Anna Bauer, Roger Parloff and Molly Roberts. In the January 30 episode of the trials of the Trump administration, we discussed the FBI search of the election center in Fulton county, the arrest of protesters in Minnesota, including Don Lemon, the decision out of the ninth Circuit regarding temporary protected status for Venezuelans, and more. And we're live. It is January 30, 2026, and I am not Ben Wittes. I am Eric Columbus, Lawfare senior editor. Because Ben is in Kyiv today, I am joined by three of my fellow senior editors, Anna Bauer, Roger Parloff and Molly Roberts. And in order to try to attain the gravitas that Ben carries with him effortlessly, I have grown a beard. So we'll see if that suffices. We've got a lot to talk about this week because of January refuses to end. This month has gone on for so long that if you can believe it, when it started, Nicolas Maduro was still running Venezuela. So many things have happened in the past week. The first we are going to begin with the first item. On Wednesday, the FBI searched the Fulton county election office. Fulton county is basically Atlanta, Georgia and is the believe the home terrain of Anna Bauer and she will explain to us what this is all about.
- [02:55]
A
Yeah, thanks for the setup, Eric. It has been it feels like this week alone I've lived like five lifetimes. But every week it does seem a little bit like that. So I guess that I should be used to it at this point. So in Fulton county, yes, we had the FBI execute a search warrant at the Fulton county elections warehouse where at the time of the search they were.
- [03:22]
C
Holding.
- [03:25]
A
Ballots, election data, things related to the 2020 election in Georgia, the that for many, many years Trump and his allies have been trying to get access to in a variety of different ways. You might remember, of course, the false claims of fraud in the wake of the 2020 election, Georgia was kind of at the center of that, and. And ever since has indeed been a focus of Trump and his allies in their effort to prove these baseless claims of fraud. And, of course, Fulton county is also the place that Trump was indicted for his efforts to overturn the election. And it wasn't clear to start with, in, with respect to this search, exactly what the predicate was. We didn't at first, when the news hit, have access to the warrant or the supporting affidavit. We still do not have the supporting affidavit. So there's a lot that we don't know. But what I can tell you that we know, Eric, is that in the lead up to this, there were a number of moves that the Justice Department was making to try to get access to these ballots from 2020. One of them involved a bizarre letter that Ed Martin, the guy who has, like, five different hats that he wears in the Justice Department, including pardon attorney and Director of Weaponization Working Group. Sorry, it took me a minute to remember exactly what the full name of that was, but the Weaponization Working Group, and he sent this letter to a judge in Fulton county seeking access to 2020 election materials. And this is all coming kind of in the wake of the state election board being taken over by a MAGA majority. They, earlier that summer had requested assistance from the Justice Department. So Ed Martin sends this letter in August. In the follow up to that, the Civil Rights Division of the Justice Department files a suit after sending a letter of their own in which they requested these materials, basically, you know, again, demanding access to these materials. And so all of that is kind of happening in the lead up to this search. But again, that doesn't quite answer the question of, like, what's going on here. But what we do know from the search warrant, the materials that we have thus far, is that there are two statutes that are cited as the predicate for this investigation in which a magistrate found probable cause that these crimes had been committed. Because keep in mind, it's a search warrant. That means it's a criminal investigation. So someone has to be the target, and there has to be some type of predicate. The first statute is a retention statute that basically says that, you know, you have to retain certain election materials. I believe it's 22 months after an election. And then the second statute is a criminal penalty for, among other things, essentially criminalizing someone who knowingly allows fraudulent votes to be counted. So that potentially could, you know, be something that relates to a theory of the case that's like, oh, Fulton county officials or the Secretary of state's office or someone to that effect allowed these votes to be tallied knowing that they were fraudulent. There's other ways that that statute could, could relate here to the search, but it's not entirely clear. And so that's what we know right now. Again, the affidavit is not the supporting affidavit has not been made public yet. I'm assuming it's still under seal. And so we hope to learn more when that affidavit or if it is unsealed. But that's kind of where we're at right now.
- [07:47]
B
There were pictures that emerged of the Director of National Intelligence, Tulsi Gabbard, at the raid, looking like a little bit like a villain from a techno thriller, kind of peering around a corner on his cell phone wearing a black, literally a black hat. What do we know about her presence there? It seems rather unusual, does it not?
- [08:10]
A
Well, I'm actually going to turn to Molly Roberts on this one, who has written a lot about the so called grand conspiracy case and wrote an excellent article for Lawfare on, on, on what maybe that case is and what it might mean. And I think that Tulsi Gabbard's presence at the Fulton county search this week may implicate or be related to something with the grand conspiracy case. But it's, but it's not clear. Again, there's a lot that we don't know. So, Molly, what's your take on it?
- [08:47]
C
Yeah, so definitely a lot that we don't know and definitely a big may as to whether it's related to the grand conspiracy. I guess the place to start would be it is very weird for the Director of National Intelligence to be involved in a routine law enforcement investigation. It's weird for her to be involved in looking at evidence from a county elections office. And even if there were some national security nexus to the case, it would still be strange that she appeared on the scene. Of course, that leads to the question of is there some national security nexus to the case? And that's where the grand conspiracy idea might come in, because Tulsi Gabbard released a bunch of documents over the summer that had to do with the 2017 intelligence community assessment of Russia's activities in the 2016 election. And that, of course, is a national security, is a foreign intelligence issue. There was a very strange cabinet meeting this summer where the president asked her, hey, Tulsi, when are you going to tell us about all the evidence you found about how corrupt the 2020 election was. Haven't you found a bunch of evidence in burn bags? And she answered that question by saying we're finding documents tucked away everywhere. And these documents are part of covering up the activities of people like former CIA Director John Brennan, James Clapper. And so essentially she was referring to grand conspiracy stuff. It's not totally clear to me whether she was just playing along when the president was confusing one of his grievances with another that he was asking about 2020. And actually the burn bags only had to do with 2016. But she did play along. And that's kind of what the grand conspiracy is all about. It's about playing along with this vast witch hunt narrative that the president spins and tying any bad thing that ever happened to him into theoretically, eventually a conspiracy against rights case. So that's the thinking there. That said, whether or not it has to do with the grand conspiracy, Tulsi Gabbard has indicated that she's interested in probing fraud in the 2020 election. The Wall Street Journal reported yesterday afternoon that for months she's been leading an administration effort to investigate the 2020 election and to search for potential crimes. That she's working on a report that she's briefed Trump on her progress and that she's looking into the various conspiracy theories about foreign governments having been involved in rigging that election against him.
- [11:24]
D
Thanks.
- [11:25]
B
Thanks so much, Molly. Roger, is there anything you'd like to add on this on Fulton county before we move on to other topics?
- [11:34]
D
Just a little mystery to me. I mean, all aspects of it sound crazy except the fact that some that a magistrate did approve the search warrant and the magistrate is not, it seems like a perfectly straight up person with good credentials. So I'm really puzzled. I just going to sit tight and see what they've got here.
- [12:01]
A
We just published a piece I think in the last hour on the Fulton county search and what we know, and mostly what we don't know and what we have questions about. But part of one of the questions that we had in that piece is what's up with the statute of limitations? Because generally there's a five year statute of limitations that may be applicable to some of these predicate crimes that are listed in the warrant. And, and it's, and it's, you know, it's more than five years since the election. So, so what's going on with that? Eric, can you help us out explaining some the of some, some of that?
- [12:44]
B
Sure. There are two possible answers. The first is that one of the statutes as you mentioned Anna requires election officials to hold on to certain election documents and records for 22 months after the election. So if I have an obligation to hold on to something for 22 months after the the election, then I am, if I discard that document the day after the election, that I am committing an ongoing crime for each day that I'm not retaining the documents up till 22 months after the election. And so then you have basically 20, you have five years from the end of that 22 month period, which would take us into September 2027. Now that I think would probably suffice. However, that applies only to one of the two charge statutes. For the other charge statute, it's possible that the government could assert that there were acts after there were subsequent acts to the election that were still in furtherance of the conspiracy, perhaps lying to investigators or to public bodies about it, or perhaps conceived act of concealment of the crime. Now, the law is a little bit complicated to the extent to which that can kind of basically restart the statute of limitations, but it may be something that they will argue. Now, I also again want to emphasize what Anna mentioned was that a bunch of us, including the four of us, worked on a piece that lists all kinds of questions arising out of the raid, some of which we have good answers for, some of which we have no clue about. But the things that we will be watching in the days and weeks to come. I encourage all our listeners to go to our site and check it out. Now, since there's so many weird things happening, we will continue to explore them. And the next one up is the turning to Minnesota, which will be the focus of a lot of our time. Today, the Attorney General, Pam Bondi, announced the arrest of 16 Minnesotans, 16 protesters who were charged with a very popular statute for the Department of Justice, 18 U.S.C. 1, 11. And the Attorney general, in a rather unusual move, tweeted the arrest photos of, I believe, 11 of them. And Molly, what can you tell us about those arrests?
- [15:31]
C
Yeah, I'm gonna start by saying that tweeting the arrest photos is against the Justice Manual. And that's a little bit of finger wagging that feels kind of silly and small potatoes in the grand scheme of things here. But this statute is a statute that the administration has been very fond of deploying against protesters amid the surges in federal law enforcement to various cities over the past several months. And it is an assault statute having to do with impeding law enforcement officers in the discharge of their duties. So that's the statute. The 16 people charged here, that's a real variety of the kind of things that of the underlying conduct. So you have throwing a brick seems pretty clear cut. It does not seem crazy that someone who threw a brick at a CPP officer is being charged with assault, misdemeanor or felony assault. You can charge either under the statute, other people, someone apparently, apparently, allegedly tried to grab or pick up a law enforcement officer while the law enforcement officer was trying to arrest someone else. Someone else sprayed, allegedly sprayed a chemical agent at a law enforcement officer. So all of that you say, okay, yeah, clear cut, straightforward. And then you have stuff that feels a little less clearly assault. Spitting is very common in these documents, but there is precedent for, first of all, spitting being considered assault under this statute. That's just first circuit precedent, but it exists. And second of all, there's precedent already for this administration having brought charges against protesters for spitting at law enforcement. So spitting is a big one. Someone threw an egg. It puts you in kind of weird place where you're asking, first of all, do these meet the definition of assault? Which perhaps. But then second of all, is it reasonable or is it. Reasonable is probably not the right word. But would an administration typically charge people doing that with this if they weren't out there protesting? Because this isn't a statute that historically was used primarily against protesters. This is a statute that was used against, for example, prisoners assaulting prison guards. The use of it against protesters is a pretty new thing that has been prevalent in the Trump administration. It's the statute they used to charge sandwich guy, for instance.
- [18:12]
B
So there were no sandwiches. Was the egg the only food item involved?
- [18:16]
C
Yeah, and I believe it was uncooked. So really nothing close to even a.
- [18:19]
B
Sandwich topping an uncooked egg. Okay, so it's not, it was not a hard boiled egg.
- [18:24]
C
No, no, not soft boiled, not poached, which really I think would be difficult.
- [18:27]
B
To charge, I suppose. But if I were to be targeted with an egg, I suppose a poached would be my preference.
- [18:37]
C
I'm glad I know your order. I don't know if Roger has anything to add on these. I know he was taking a look at them too.
- [18:45]
D
These are really fluid situations. And I was for the most part, as Molly said, that most were pretty clear cut assault case. I mean, there were, you know, the Pepper Springs police officer, you know, accepting the accusations as true, as I think I, I thought most of the spitting and the egg throwing led then to an attempted arrest followed by resisting arrest. Resisting arrest is also pretty clearly 111. But when the. I Don't know exactly what the, if you're supposed to, what sort of arrest, or if they were going to give them a ticket for the egg throwing. You know, I just can't tease all of that out. But I thought for most of them there was a plausible, you know, accepting the facts. It was better than Sandwich guy. There was one that looked to me like a misdemeanor and looked to be charged like a misdemeanor, but, but it was hard to tell from what's been filed so far.
- [20:00]
B
So have any of these cases, do we know if any of them have gone before grand juries yet?
- [20:05]
C
My understanding, and Roger, you can correct me if I'm wrong, but my understanding is they're all criminal complaints. And then they did this press release where they had this kind of strange language where they said these are only complaints. And they basically left open the possibility that they won't pursue indictments for some of them, which isn't typical.
- [20:25]
D
Yeah, I think that's right. And I think everyone was also, correct me if I'm wrong, released on personal recognizance bond, which sounded like, you know, the judge, magistrate didn't think, you know, these were dangerous people.
- [20:42]
B
Do we know if the, if the Justice Department in any of those cases wanted, was okay with that or, or did they try to, to get them kept behind bars pending trial?
- [20:57]
D
I don't know that. There was no, there was no filing. Certainly. I don't know what was said at, at the, at the initial hearing.
- [21:06]
B
I just want, just to add in terms of the, the photos that, that Pam Bondi tweeted. There's, it's out of policy. And it's also, it's why you never see booking photos in the, in the federal system. In a few, the mug shot, for example, of Donald Trump came out of his booking in Fulton County. And if you submit a FOIA request for mugshots, the Department of Justice, the Bureau of Prisons, the US Marshals will basically give you the back of their hand because they don't release them. And I think personally, it's a very honorable policy because these are, these are people who are presumed innocent. There is no reason, other than our own titillation, if you will, at looking at these pictures. And I'm a little bit biased because I used to work in the Department of Justice. I recall there was litigation over this, and it seemed to me like we were on the right side at the time. Moving on now to, well, staying within, I think, moving now from Minneapolis to St. Paul. I suppose there was A protest that we talked about a little bit last week in city's Church St. Paul, where some, a bunch of protesters interrupted a church service at a church where a high ranking ICE official in St. Paul is one of the pastors. There have been further developments in that over the past week, including today. Anna, what do we know about what's been going on?
- [22:55]
A
Yeah, so remember we discussed last week the issue of there were three people who were charges were filed based on a criminal complaint, but the government had sought to file charges initially against about eight people, I believe it was. So the magistrate who reviewed this found no probable cause against five of those people. We discussed last week a little bit about why that might be. What we've learned just in the past few hours is that the government did go before a grand jury, it appears, seeking indictments against a number of these folks, including Don Lemon, the former CNN anchor who was there live streaming. There's also a second person who is not affiliated with Lemon, but claims to be an independent journalist. Georgia Fort, I believe is the name. And that person as well was arrested along with others who were indicted on these charges that include the Face act, which we talked about last week, and then Conspiracy Against Rights, in which the predicate is the Face Act. So something that I think is really interesting here and again I refer people to the conversation that we had last week about these charges. Keep in mind that here, you know, looking at the indictment, there's two things that I'll observe. One is that with respect to the Face act charge, it, it doesn't, it's not necessarily clear that the grand jury understood what physical obstruction means in that statute. The, the indictment alleges that there was physical obstruction because keep in mind for a Face act violation, you have to, in this instance at least, you have to have by threat or force or hear physical obstruction intentionally interfere with someone's First Amendment right to worship at a house of worship or a site of religious worship. And physical obstruction, though, is defined very narrowly as basically making it difficult or hazardous to pre prevent people from going to or coming from a church. Right. That's basically what it's defined as. So it's a really narrow definition of physical obstruction here. The indictment does improve on the allegations in the affidavit that we saw that the magistrate found no probable cause for in that it's more individualized, you know, it makes additional factual allegations in which it's claiming that these people physically obstructed people in the church. But you know, I'm still very doubtful that this case going forward is sustainable on a Face act charge, at least with respect to some of or most of these people, because it doesn't seem like there's evidence that there was an intent to prevent people, you know, going to or coming from the church. It's very different from a lot of FASAC cases that if you look at the indictments in those cases, there's like pretty clear evidence that people intended to block people from going to or coming from a place, including reproductive health facilities, which the act also applies to. You'll have evidence of things like people chaining themselves together, standing in front of doors and doing things like that. And if you watch the video of this interaction, it seems like it was more geared towards, you know, a generalized kind of disruption or protest, as opposed to something like we've seen in these other Face act cases that I just mentioned. The second thing that I will mention as well about the conspiracy against rights charge is how that what really matters there, I think, is how you define the predicate. And what I mean by that is a conspiracy against rights charge. It's a crime to conspire with another person to oppress or intimidate someone in the exercise of a right secured by federal law. So the question then becomes like, what is the right secured by federal law that is being intimidated or oppressed by this alleged conspiracy while the government is alleging in the indictment that it is the First Amendment right to religious expression protected by the FACE Act? Well, that's a really broad way of putting it. And it seems to me that it's not that the FACE act, you know, is a generalized pro protection or generalized kind of statute that allows for this freestanding right to religious expression. What it really is is a right to be free from physical obstruction in the exercise of your. Your worship, as that. As physical obstruction is defined in the statute. Right. And so I think that as we go further in this case, again, that's going to be an issue. And to me, what I've seen of the evidence, it doesn't seem to really support for. For a lot of these people, at least, and based on what we know now, the idea that they were conspiring to physically obstruct in the. In the way that that is defined in the Face Act. But Eric, you've written about or you've thought about this a lot too. Do you have thoughts?
- [29:26]
B
Well, I was going to say that as you were describing the predicate and how broadly the government had said it had described, seemed to me that one problem with that is that they're describing a right against actions, a right not be subject to actions by the government.
- [29:49]
A
Yeah, that's one of the problems, too. So the way that they. Hold on, let me pull it up just so I can read to you the exact language. So they say in the service, the church's pastor and congregation were then exercising and seeking to exercise the First Amendment right of religious freedom at a place of religious worship, a right that is also protected by a federal statute codified at Title 18, United States Code, Section 248. That's the face Act. So that first part of it, that is a right, a negative right against or a negative, you know, a limitation on governmental interference. That's what the First Amendment is. So here you've got private actors that are allegedly interfering, but that doesn't implicate the First Amendment right of religious expression. So the way the government's trying to do this is by saying that essentially the, the. You, you. The right of First Amendment right of religious expression is protected by the Face Act. And so it almost is kind of broadening what is actually secured by the Face Act. And secured is the language or the word that' in the Conspiracy Against Rights statute. I think that's quite different. Something that is a right that is secured by a statute versus a right that might more generally be protected by a statute, if that makes sense. And what is secured by federal law is, as we've said, a much more narrow range of conduct in which you are protected or secure. You, you have a right to be free from physical obstruction or use of force or threats of force that are intentionally designed to interfere with your worship at a place at a religious facility. Does that make sense?
- [31:42]
B
I think it makes sense to me. If it were there, if, for example, if there were like a. A cop who's engaging in this behavior, we could. We, we might be able to. The prosecutors might be able to use just the First Amendment as the predicate rather than the Face act, because then it would be state action and in violation, in alleged violation of someone's right under the First Amendment to free exercise of religion. Now, one. One obviously interesting part of this and one that's caused a lot of alarm in certain quarters today, has been the detention of at least two journalists who obviously are protected in. In a lot of what they do by another part of the First Amendment. What, what thoughts, if any, do we have about that and whether there are any particular. We've talked about problems with the indictment with regard, in general, with regard to all the defendants. But are there any Particular issues that anyone would like to flag regarding Don Lemon and Georgia Fort. And I, I know there was someone else who had been identified as Don Lemon's producer. I don't know if that person was one of the people indicted today. It appeared to me that there was some redaction still in the leaked indictment was suggesting that maybe still trying to arrest some people who are still large.
- [33:08]
A
Yeah, so I actually am not. I want to turn to Molly after I answer this because I'm curious if she has thoughts because she's written and thought about some of the First Amendment issues. I am not actually sure. I know that the Don Lemons counsel has kind of raised the First Amendment and First Amendment protected activity in his, in his role as a journalist, as a, as a kind of thing that's implicated here. But I actually think that actually the question is like Don Lemon was covering this as a journalist, you know, and how that affects this idea of whether or not he entered into an agreement or a conspiracy to, to violate the statutes at at issue or, or rather the statute at issue in the conspiracy charge. And then on the other hand, the question of whether he intentionally, under the face act, physically obstructed to interfere with religious worship. And so I think it goes more so to the like elements of, of the crime as opposed to directly implicating some type of First Amendment protection for journalists. But, you know, there may be privileges that he, he could raise to that end. I haven't thought a whole lot about that yet. But Molly, do you have a take on it and am I wrong?
- [34:40]
C
Yeah, I mean, I don't have a super clean take on it. Obviously you can't prosecute a journalist for doing journalism, but you can prosecute a journalist for doing crimes. Even though there are some exceptions. There. There have been. There is case law on exceptions for journalists when it comes to violating privacy law, for example. So there are, but this, there aren't to my knowledge. There's no case law having exceptions to something like this. So you're right that the question would be, did he commit a crime either as part of this conspiracy, did he knowingly enter into an agreement to violate someone's rights, or did he violate the Face Act? I didn't find the indictment particularly convincing there. You know, they try to say that he was part of the conspiracy because he, they focus a lot on him having taken steps to maintain operational secrecy because as he's livestreaming, he's saying, we're not gonna give this away. But everything else they say is basically like he Kept asking people questions. And I think that you say, well, what was he doing? Was he trying to help them or was his primary goal there to cover it? And I think if you're able to prove that his purpose in being there was not to help them pull off their operation, but was to cover their operation, then I don't see how he's a member of the conspiracy. But maybe that goes the other way. I don't know if it does, you kind of get to the law versus norms thing. I mean, it's very dangerous precedent to prosecute a journalist who covers some sort of operation that might be prosecutable by saying that anytime a journalist covers it, the journalist is part of a conspiracy to do it. So, so I think that that's very troubling. And of course, that's not something that has typically happened. And Pam Bondi made a pretty big fuss about how she was in the lead of this. And when you go and, you know, look at the indictment, there's not a single line attorney on there. It's Pam Bondi, Harmeet Dhillon, and then other, other assistant attorneys general at various levels. And so I think that, I don't think the charges against Don Lemon are gonna stick. I think it reads a lot more like a name and shame at the moment. But if they do, it would be even scarier.
- [36:57]
B
Roger, were you. Sorry, Go ahead, Anna.
- [36:58]
A
No, Roger, you, you, Roger, chime in on this, please.
- [37:03]
D
Yeah, I, I don't know a lot. I, I, I'm pretty certain it's a change in norms at, at doj. And it's like Molly says. I mean, there is his, his footage is available online, the footage Lemon made. And you can see that he is, he does not appear to be participating. He is fully apprised beforehand. He knows what's going to happen. It's not like somebody tips him off and then he runs down to the church. He's in on it in that sense. So they're saying, well, that's conspiracy. I don't know if, if that gives him the mindset that you would need for conspiracy. There, there were cases along the edges, a lot of cases actually. In January 6, there was a guy that was sort of the in house photographer for Proud Boys, and all of his footage became very important in the case and they never did end up prosecuting him. He was one of the last to be taken. He went into the Capitol and was one of the last to be taken out. I don't know. It was touch and go, I think whether they were going to charge him or not. And he also was in a wheelchair, so he wasn't a very. It wouldn't have been a very attractive case to bring. For multiple reasons, they never did charge. There was another fellow that was in the media room with us for most of that, Stephen, and I forget his name. Anna, you know, I think you co authored that Blaze article that. That famed the. Yeah, yeah. He was eventually charged, but I don't know for what relating to January 6th. I don't know why they eventually decided that. Went over the line, I think.
- [39:11]
C
And you know a lot more about January 6th than I do. But my understanding basically was that if they charged a journalist, they charged a journalist for something very concrete or anybody who was getting footage for something very concrete, like crossing a police line or entering a restricted area or not leaving the Capitol. And so that kind of goes with the Don Lemon thing. Sure, if he physically obstructed people from getting in this church, then face act, charge him. But if you're going to say that he's part of a conspiracy because he was hanging out doing journalistic stuff while other people were allegedly violating the law, which Anna and Eric talked a little bit about, whether that's even what they were doing, then it seems like another story to me.
- [39:59]
E
Hey, folks, this is going to come as a surprise to you, and for those of you at shocks, make sure you're sitting down. But I did not found Lawfare in order to get stuck doing repetitive, boring administrative work. I mean, I wanted to bring you guys first rate national security legal coverage. And I never gave a thought to doing payroll forms logistics, much less to have those completely eat up my day. And I gotta say, I got into this and I thought there has to be an easier way to do this. And there is. As the new year begins, I know a lot of you are thinking about how to get your business operations together. And, you know, having payroll, benefits and HR handled by Gusto is like starting the year with a clean desk and an organized inbox so you can focus actually on growing your business. Or in my case, a small nonprofit media organization. Gusto is online payroll and benefits software built for small businesses. It's all in one, remote, friendly, and incredibly easy to use. So you can pay, hire, onboard and support your teams from anywhere. You save time with automated tools that are built right in, offer letters, onboarding materials, direct deposit, and more. It's quick and simple to switch to Gusto. You just transfer your existing data to get up and running, and it all works fast. Plus, you don't Pay a cent until you run your first payroll. It has automatic payroll tax filings, simple direct deposits, health benefits, commuter benefits, workers comp, 401k, you name it. Gusto makes it simple and has options for nearly every budget. So try gusto today@gusto.com lawfare and get three months free when you run your first payroll. That's three months of free payroll at gusto.com lawfair one more time gusto.com/lawfare.
- [42:21]
B
Flowers die in three days matching underwear from Meundies that's a gift that lasts Meundies creates matching prints for couples and friends. Same adorable designs and different cuts for each of you. All made from their signature ultra modal fabric that feels impossibly soft. With 30 million pairs sold and 90,000 five star reviews, MeUndies matching prints are the perfect gift. Valentine's Day is February 14th, so don't wait. Get exclusive deals up to 50% off at Meundies.com acast code acast that's Meundies.com acast Code acast why choose a sleep.
- [42:56]
A
Number Smart bed Can I make my site softer? Can I make my site firmer?
- [43:01]
B
Can we sleep cooler?
- [43:03]
A
Sleep number does that cools up to eight times faster and lets you choose your ideal comfort on either side your sleep number setting. Enjoy personalized comfort for better sleep night after night. And now during our President's day sale, take 50% off our limited edition bed. Shop now for a limited time only at a sleep number store or sleepnumber.com.
- [43:26]
B
Well the holidays have come and gone once again.
- [43:28]
A
But if you've forgotten to get that.
- [43:29]
D
Special someone in your life a gift.
- [43:31]
A
Well, Mint Mobile is extending their holiday.
- [43:34]
D
Off offer of half off unlimited wireless.
- [43:36]
A
So here's the idea.
- [43:37]
C
You get it now.
- [43:38]
A
You call it an early present for next year.
- [43:40]
B
What do you have to lose?
- [43:42]
C
Give it a try@mintmobile.com Switch limited time 50% off regular price for new customers. Upfront payment required $45 for three months, $90 for six month or $180 for 12 month plan taxes and fees. Extra speeds may slow after 50 gigabytes per month when network is busy. See terms.
- [43:59]
B
Now do you? I guess Anna do you know if you have to be like intentionally, does your goal have to be to obstruct or can it just be inadvertent? Like say I'm holding a camera, I'm just videotaping what's going on and I'm just being completely oblivious and not really caring that much and in so doing I'm Blocking all these people from leaving the church. Have I committed a face act violation?
- [44:30]
A
I mean. No, I don't think so. Because you have to buy physical obstruction, intentionally interfere, like, like it. You would not be intentionally interfering by physical obstruction as that, as that is defined in the statute. Right, like so. So I would think that that would not suffice for the mens rea standard. But. And I think that's the point that I'm trying to make here. Do you, I mean, is that your understanding as well, Eric?
- [45:05]
B
I've, I've, I've emptied my mind of all, all knowledge of the Face act for the purposes of taking the role as fair.
- [45:13]
A
No, that's fair. But yeah, I will, I, I will also say that like, you know.
- [45:22]
C
For.
- [45:22]
A
Conspiracy charges like the, the, because the conspiracy against rights statute is so potentially broad, the Supreme Court has read a specific intent requirement into that statute such that, you know, you have to intentionally conspire to deprive someone of the rights secured by federal law, which again I will point out is here it seems to be the face act, which, which makes the really broad conspiracy against rights application or potential application here much more narrow when you appropriately, as I see it, define what the right at issue is. So that's like really key here. And what it may be, honestly is like I'm trying to think of the posture like in terms of the. You might have some type. I mean it might be, I'm trying to think motions wise, like when this kind of thing definitely in terms of jury instructions, this will be the kind of thing that will be important, but also of course could be raised in a variety of ways for pre trial motions, that kind of thing. So we'll see. But I think that's the big key battle here because yeah, the conspiracy against rights charge is quite broad. I mean the other thing too is as Molly said, this question of like you have to knowingly enter into an agreement. So like what, what is the evidence in terms of the agreement here? And, and a meetings meeting of the minds as, although I'd have to look and see exactly how the 8th Circuit, I know in some, some circuits, I think they actually talk about a meeting of the minds, but in terms of evidence of a conspiracy. But some have said it doesn't have to be a kind of meeting of the minds as such. But, but, but yeah, so I mean those are some of the key things in terms of the conspiracy charge that I'm thinking about. And the conspiracy charge is the one that is more, has a much more severe potential Penalty. It is a felony in the face act charges. Typically, a first offense that does not is not, that is non violent physical obstruction is a misdemeanor. Although, interestingly, this indictment, you know, I, I just read it within the past hour, so I need to look at this again. But I think it does allege that bodily injury resulted because someone, when they were walking out of the church, fell and broke their arm. So I would need to look and see a little bit more about how that affects some of the potential sentencing issues here.
- [48:28]
B
Yeah, I recall that from the affidavit that was originally issued when they tried to. When they went before a magistrate judge, there was talk about people falling and injuring themselves. They weren't. They did not connect it directly to the actions of the defendants, I think. But I do remember when there were people leaving their church and falling. Now, obviously, the weather conditions being what they were, it's possible that they had nothing to do with anything deliberately caused by the defendants. Okay. One other thing I wanted to know is that this type of charge is kind of a catnip for the Justice Department. And I may have used that word because Molly, for those people who are watching, has a kitten over her right shoulder in sitting in a chair. So that may be why catnip is on my mind. But Don Lemon was a big enemy of Trump in Trump's mind, I should say more than necessarily in reality during the first term, and was one of the many media villains who Trump loved to set up as enemies of the state. And back in the day, I was on Don Lemon's show a couple times. He's a very nice guy, very funny. Never met him. He was in New York, I was in D.C. but that's just how I'm gonna make this about me. Now we can move on to other aspects of Minnesota and immigration issues. They were quite a few, and Roger will tell us about some of them. Let's start first with Judge Schultz and his effort to hold the head of ICE in contempt. And a little list that Judge Schultz put together. What's that about, Roger?
- [50:26]
D
Yeah, Judge Schultz, if that's the pronunciation. Chief Judge of the District of Minnesota. He's a George W. Bush appointee. He's a Scalia clerk, and I think we. Anna spoke about him last week, or he was the one that he was in the news on a different matter last week. That was when they couldn't get an indictment, when they couldn't get a criminal, a magistrate, to file a complaint, sign a complaint against Lemon and others. They actually tried to Appeal that, the magistrate's ruling to the judge, and that went to chief judge. And he wrote sort of eventually he refused or he wanted more time to ponder it. It had never happened before, apparently, in 30 years. Anyway, I won't. He wrote a remarkable letter, but I want to get to this event. So this was triggered by a dispute, a habeas corpus, a petition for release by an alien, and it was this issue of mandatory detention that we've talked about a few times before. It's the issue that Kyle Cheney has really been all over. There are now 2,500 cases nationwide, 2,600 relating to the Trump administration trying to make virtually every alien subject to mandatory obligatory detention with no option for Bailey or bond. And the way this worked was the case came in and it was a habeas. And Judge Schultz ordered the government to respond in a week. And there was no response. So then he issued an order, said, okay, I'm ordering ice release the man or give him a bail. A bail hearing within seven days. And again, no response. And on the eighth day, his attorney advises Shilts, he's still in jail. He hasn't been given a bail hearing. There's just nothing in the record. It's like Schiltz doesn't exist. And finally, he issues this order to show cause he wants ICE Director Todd Lyons to come in personally Friday, which actually is today, and explain why he shouldn't be held in contempt. So the next day, the man, Juan Tobe Robles, is released. And Schultz had basically agreed that if they released him, the hearing would be off. Robles attorney tried to say, well, I think you should still have a hearing. I mean, something happened here. Let's give him more time, but let's have a hearing. And Schiltz responded with an interesting order where he said, no. I said I wouldn't. But I asked my fellow judges to look into how many of these orders have you violated this month? This month. And he said it came to 96 in 74 cases. And he said ICE had violated more court orders in January 2026 than some federal agencies have violated in their entire existence. So that was what happened there.
- [54:18]
B
Now, Roger, you've been covering district courts for a minute or two. How unusual is this to see a judge, to see kind of a district bench, this kind of annoyed and seemingly acting in unison?
- [54:39]
D
This was obviously, you know, brewing when he wrote that other letter. You know, the, the total inundation with these cases, the total, you know, ICE is just totally unprepared to handle the volume of People that they are arresting and detaining. And it is, it's totally unprecedented. And, and the number of people, I mean, this relates to the other Minnesota cases. You know, the Chicago Midway blitz was a big deal, and we covered it. It was 300 ICE agents. This is 3,000, maybe 4,000. Lyons said 4,000 at one point. It's ICE and CBP and BP. We haven't ever seen anything like it. And nobody can handle it. The detention centers can't handle it, and the judges are fed up. And it was interesting in Schultz's order, he said he actually praised the ausa, you know, in a footnote, he said, this is not her fault. Anna Voss, she's working her butt off trying to handle all these cases. But it's ice, and that's why he wanted Lyons to come in. You just can't do this. So I think it's totally unprecedented.
- [56:16]
B
Yeah, I noticed that. I'm glad you mentioned that, Anna Vos. I noticed that, too, which I found that also to be kind of unusual to have to see a judge go out of his way. I mean, it's, it's rare for a judge to mention counsel by name. I certainly, if you're a lawyer, you would rather be praised by name than excoriated by name. But it still was quite surprising. And it did, as you say, really kind of direct the blame at the, at the party, at ICE itself, which is, as you said, highly unusual. Now, that was only one of a kind of an array of notable developments, immigration related in the Minneapolis District Court over the past week. Tell us, Roger, about the, about the Minnesota v. Nome case in which the state and the Attorney General of Minnesota are suing dhs.
- [57:24]
D
Yeah. And there was a hearing on Monday. It's a very interesting case. It's Minnesota and both of the Twin Cities. And it's a 10th Amendment claim, which is a little unusual. And frankly, the, the initial brief, I thought was weak. And then the reply brief, they changed tack a little and it became more plausible. But I mean, just telling you the relief they want, you will see how unprecedented it would be. They want to the court to order a pause in Operation Metro surge and actually a reduction in force to what it was like on November 30th. And we've never seen that. You know, we've never seen a judge tell a federal agency enforcing federal law. You've got too many people in town. Take, you know, so it's totally unprecedented. So it sounds crazy. The theory, the initial theory was anti commandeering, which is this notion you can't. For instance, the Brady Gun Control act tried to order, they set up this nationwide gun, I forget what you call it, background check system, and ordered the AGs of each state to participate. And the court said, I think, well, it, it said you can't impress into service state officers to, to enforce federal law. And they were trying to say that that was the theory. And, but, you know, there were parking lots that are being, you know, state parking lots that are being commandeered as a staging operation. But it's pretty small potatoes. There's a lot of indirect costs being inflicted, you know, answering 911 calls and the police costs. Minneapolis St. Paul, but that wasn't that impressive. By the reply brief, they had a better argument, which is that what this is really all about, and I think they're right about what it's about, is this is the Trump administration saying, we're going to make your life hell until you abolish the sanctuary city policies. And there is actually, I don't think there is a sanctuary state policy, but Trump thinks there is, but you need to abolish that. Otherwise we're going to, you know, make chaos and violence. And it's like, you know, it's like COVID 19 in there. You know, schools have closed, businesses have closed. It's a complete disaster. And so the argument is coercion. You are coercing us into changing a policy. And that that violates the 10th Amendment. And the. So the best precedent is Sibelius NFIB versus Sibelius, the Affordable Care act case. In addition to upholding Affordable Care, the court struck down one provision that said. The states, it wanted the states to expand the Medicare program. And I forget which, frankly, it was Medicaid. Yeah, Medicaid. Okay. And they said, if you don't, we're going to wipe out almost all of your current Medicaid reimbursements. And the government said, you can't do that. You can have incentives, but this is a gun to the head. And so the analogy is to that in their reply to the. And actually, so the hearing was held at that stage, and I thought it was very. And it went better for the plaintiffs than I thought. Catherine Menendez, the judge, you know, was really. Because that is what's happening. And yes, it's unprecedented, but what's happening is unprecedented. Also. What had happened by then is that Attorney General Bondi had issued a wacky letter in this context, and it said, it seemed to say, you know, it didn't say a quid pro quo. But it said, you know, things might be going a lot better for Minnesota if you would just do three things. You know, one, get rid of your sanctuary city laws. Two, turn over your Medicaid and nutrition records. I think this has to do with the idea of fraud. And three, turn over your voting roles. And it really sounded what is happening here. And all of these things, by the way, are things that the Trump administration has gone to court to try to force various people to turn over and has failed because of the 10th Amendment, because it's coercive and, you know, like by withdrawing federal funds of various kinds unless you drop your sanctuary cities. So that's the theory. The government responded and it said, you know, this coercion theory has never been used outside of the context of Congress as opposed to the executive branch, certainly not by the Supreme Court. And it's much clearer in a statute what the intent is with the executive branch. You have to infer and in fact, you have to go behind what the executive branch is saying. The executive branch is saying the only reason we're doing this, of course we have to put in more troops because you don't enforce your, you won't help us enforce our immigration laws. We need more troops. Do you need 4,000 troops? But in theory, that's their approach. And then the other thing that the government points out is that the remedy is so amorphous. The remedy in the Sibelius case was obvious. You take out that provision that, that is offensive here, what is it? You reduce it to 256 troops, 253 troops, and you have a judge supervising a federal enforcement agency that's enforcing its laws. So anyway, it's very, I thought it was very interesting. And there's no ruling, or at least there wasn't a ruling when we started this.
- [64:50]
B
Even when we started. Rulings tend to break, as in the middle of our, our late Friday afternoon recordings was judges understandably want to clear their plates for the weekend. So the, but there's, there's, there's, we, we've, well, we've done more than scratch the surface, but there are a couple more suits in Minnesota. One which we talked about last week, is a suit by private parties try against Kristi Noem, trying to stop a lot of what's going on. What's the update there?
- [65:20]
D
Yeah, this was a suit by six observers, Observers, you know, people that we've, you know, people like pretty, you know, people that are out there on the street with the phones watching what's happening. And they were being manhandled in various ways. And it was an attempt to sort of a putative class action. And the judge, the same judge, Catherine Menendez, had issued an injunction saying, no stops without reasonable suspicion, no arrests without probable cause, no use of pepper spray of peaceful protesters. The problem with that is that it sounds like an obey the law injunction, and those are not permitted because it's vague. And it also means that the police officer who is making all the same decisions that he has to make every day is now under the extra fear that if he does something wrong, he'll be hauled into court for contempt. And so the courts don't permit those. And the 8th Circuit did not permit it. The panel. Stayed her order. I guess there was one partial dissent. One of the judges would have allowed the part against pepper spray to go forward saying, don't pepper spray peaceful protesters. But also the majority did put observer in quotation marks. They were suspicious. They were suspicious that people are. That being that peaceful. They said, I've looked at the. We've looked at the videos. They aren't so clear. Some of this is not peaceful, is not in our book, and it was fairly hostile. And that brings us to what Steve Vladek told us. I don't know the exact numbers, but basically, I think all but one appellate judge in the 8th Circuit is a Republican appointee. Four of them are Trump appointees. So this is a conservative bench.
- [67:56]
B
Yeah, I think that's right. It's all but one of the active.
- [67:59]
D
Judges, one senior one, is also a Republican. The one senior one hearing cases is also a Republican.
- [68:08]
B
There's only one senior judge hearing cases.
- [68:11]
D
On the 8th Circuit, on the. On the appellate panel, according to Vladek.
- [68:18]
B
I'm gonna take a little bit of a detour now from Minnesota to Chicago just because this. This actually dovetails very well with a case that I've been following by a lawsuit brought by protesters and journalists in Chicago challenging a lot of what had ICE and DHS have been doing. And what you saw is kind of a similar course of action. You saw a victory, an injunction, the district court level, that was then stayed pending appeal by the 7th Circuit for kind of similar reasons as the reasons that that Roger just mentioned. And the new development there is that the District, the plaintiffs, sought successfully to dismiss their case, which is highly unusual, but they were afraid of, understandably, of losing on appeal. Now, the 7th Circuit had merely stayed the case pending appeal, saying which. And the standard for that is, in large part, likelihood of success on the merits. So they were afraid that they would make binding 7th Circuit law against them and against the rights of protesters and journalists. So they, they voluntarily made the case go away. And, and then when what that then the, the government then successfully sought to have the case the decision vacated, which means that it no longer has any legal effect at all. And it's not clear to what extent this really matters that much because a district court case is never binding on other district courts. But to the extent to which it could be said that a federal judge made findings a fact that Greg Bevino lied on the witness stand, well, that's still true. But the plaint the government or Greg Bovino himself could at some point note that they were not able to test those findings on appeal because the plaintiffs themselves made the case go away. There is now a new case filed by the state of Illinois that I think is in some ways similar to the case filed by Minnesota and that it seeks broad relief. And I believe among the things it seeks is that CBP itself not be allowed to be involved in immigration enforcement in Chicago unless authorized by Congress. It seems to me I have not followed the case that closely. It seems like a large lift, but it is before the same judge who ruled on behalf of the protesters in, in Chicago. Now back to that little detour down. I was going to try to name a highway that goes from Minnesota to Chicago, but I've, I've completely failed at coming up with that. Is it maybe I 75. I don't know, maybe one of our, our commenters will, will be able to, to find that out. Uh, it's going back to Minnesota and there was a, a recent uh, interesting case involving refugees in which a TRO was granted. Roger, what's that about?
- [71:47]
D
Yeah, that was just granted Wednesday and I'm sure the government is going to try to stay that. This is a weird thing. It's a putative class action by five refugees, people that are lawfully admitted through the US Refugee admissions program, which is, you know, so you, you are admitted. It's a lot of vetting goes into it. Make sure there's no criminal record. They, there's medical vetting too. Then they take a lot of biometric information so they can track you and what the government decided to do earlier this month, operation Paris with two Rs post admission refugee reverification and integrity strengthening, they begin to try to arrest and detain refugees who have not yet become legal permanent residents, green card holders. And there's. So they're doing that with 5,600 refugees. I'm afraid I don't Know, if that's, I think that's the number in Minnesota, not nationally. And so five of these people, couple of whom have been arrested without notice, without warrants, without squat. You know, one of them was taken to Texas for detained for 16 hours and then released in Texas, but with no, you know, no help to get back to Minnesota. Another, I think, is still one, the first is still detained now. And the judge said, stopped it said a tro and also temporary class wide, at least statewide relief to those saying that those detained should be released and those who are not detained should, should not be arrested in this way. I, I think that it's complicated. There is like if you're, if you go a year, and I may not get this right, but I think if you go a year without converting your refugee status to LPR status, there's a law that says you can return to custody to be inspected and so on. And the judge is saying custody there, that means you go in and there's a limited interaction and they figure out have you done anything to make yourself removable? Have you committed a crime or something like this? It doesn't mean you can just be detained again indefinitely and then thrown out of the country. But it's early and maybe the government will have. This is a tro. I don't think there wasn't a government filing in there that was public anyway, so we'll see what happens.
- [75:19]
B
Now, is this an operation they're doing only in Minnesota?
- [75:24]
D
It's a good question. I don't know.
- [75:29]
B
And this is obviously Minnesota is a place with a large population of refugees from Somalia. And a lot of people feel that animus specifically against the Somalian Somalis is a reason why everything is going down in Minnesota. And it's certainly been something that President Trump has been talking about in, in kind of starkly bigoted terms about how Somalis are basically bad people.
- [76:08]
D
Garbage used the word.
- [76:11]
B
Yeah. And another thing I find noticeable is that the term, it's kind of part of the, the term for the operation is operation Paris with two Rs, which to my ears sounds or eyes ears sounds like a reference to Parris Island.
- [76:30]
D
I think so, yeah.
- [76:31]
B
Is the Marine Corps training facility in Beaufort, South Carolina. And people of a certain age may recall there's a reference to it in a Billy Joel song Good night Saigon, from 1982.
- [76:51]
D
And.
- [76:53]
B
Sorry, Roger, do you want to add something?
- [76:55]
D
Just also a huge HHMONG Population in St. Paul, I think maybe the biggest in the country, Hmong, the Lao, Laotian.
- [77:09]
B
Immigrants, a group of immigrants that had, if, if I believe have came to this country largely because of our actions in the Vietnam War, basically made it uninhabitable for them to, for many of them to remain where they were. Is that, is that your understanding too, Roger?
- [77:30]
D
Yeah. Based from quite a while ago.
- [77:33]
B
Yeah.
- [77:33]
D
Yeah.
- [77:36]
B
And so there, I believe that does it for Minnesota somehow, at least for this week. I'm sure we'll have more. We'll still be in Minnesota next week. There's one more immigration decision to discuss, and it's still on Roger's docket. It involves a temporary protective status and Venezuela and maybe Haiti, too. Is that right?
- [78:04]
D
Maybe what?
- [78:05]
B
Haiti as well.
- [78:08]
D
600,000 Venezuelans.
- [78:12]
B
The case also involve Haiti.
- [78:13]
D
Oh, Haiti, yes. I thought you said Haiti. Yeah, Haiti also. Yeah. And this is the case that's been to the Supreme Court twice and the Supreme Court has stayed orders trying to help these people out twice. So the ninth Circuit has now ruled in their favor again and maybe third time is the, what's the expression?
- [78:46]
B
The charm.
- [78:47]
D
The charm, although I don't think so. So three judges. It's unanimous. But it's also a Clinton judge and two Biden judges. So. And they found TPS is Temporary Protective Status. It's a program started in 1990. And, you know, when there's a crisis, an earthquake, disease, cholera, the president can designate the country and political crises and allow people in for 18 month chunks at a time. And they can also, while they're here, they're authorized to work and they can try to get citizenship. So there's about 600,000 Venezuelans with that status since 2021. As soon as Kristi Noem came in, she purported to. Vacate existing TPS periods. So not wait till the end of the 18 months, but vacate it and just, you know, throw them out within 60 days or, you know, give them no status within 60 days. So the theory of the court is that there's no, the statute doesn't talk about vacating. It doesn't give anyone that power. And no one's ever tried to do it in the past 36 years. And so it was beyond Nome's power. A couple in fairnesses, the, the, the re upping of design of this designation, at least for a big chunk of the Venezuelans, was on January 17, 2025. So three days before Trump took over. So I think Trump is pretty pissed about the idea that he is bound for 18 months by what Mayorkas did three days before he took power. Other sort of in fairness type things. There is a provision in this TPS statute that looks like it might take jurisdiction away. It says there's no judicial review of the Secretary's determinations. And the court says, well, this, we're not looking at the determination. We're looking at whether she had the power to do what she did so that, that maybe that works. I don't know. So anyway, we've seen the Supreme Court be. There's it, it, it's, it does talk about the tremendous cruelty this is working on the people. The record is replete with examples of hard working contributing members of society who are mothers, fathers, wives, husbands and partners of US Citizens, pay taxes, have no criminal records, who have been deported and detained. This affects physicians, artists, automotive mechanics, food service employees and so on. People that work hard. One of the three wrote separately to also write that this was also heavy evidence that this was done due to racist stereotyping. The actual animus against of Nome and Trump against Venezuelans based on race and national origin. But that was just one judge.
- [82:57]
B
Thanks so much for that, Roger, and thanks for that Tour d'.
- [83:01]
D
Orizon.
- [83:01]
B
I'm not sure if I'm pronouncing that correctly. I'm probably not of immigration law. It was also a tour de force. Maybe the only two tours I can think of at the moment. Well, there's also the Tour de France. It's a tourist and some. Oh, very nice. Back in the day, Donald Trump, before he entered politics, tried to do his own biking tour. He called it, of course, Tour de Trump. This is a true story. Not making this up. We believe have one more item on our agenda and it involves the man who created the tour to Trump. And quite a, quite a coincidence. Molly, what did Donald Trump do in court this week?
- [83:54]
C
Yeah, Donald Trump. Donald Trump Jr. Eric Trump and the Trump Organization sued the IRS and Treasury for the unauthorized release of Trump's tax form. So this dates back to when Charles Littlejohn, who was an IRS contractor working for Booz Allen Hamilton, leaked and he's been since convicted of this leak. Trump's tax returns and the tax returns of thousands of other wealthy individuals to the New York Times and ProPublica. This was very upsetting to Trump because it was revealed in a New York Times story that he'd paid only $750 in federal income taxes in 2016 and 2017 and none at all in 10 of the previous 15 years, partly because his businesses were struggling. So was not a good look for him and he's been angry about it ever since. So he has brought this lawsuit, and they're asking for $10 million in damages, which can be added to the other tens of billions of dollars in damages that the president is looking for from companies like JP Morgan, Capital One, the New York Times, and also could be added to the $230 million that he was saying that he wanted to sue the Department of Justice for, for the investigations against him. So that's what's going on. The case is self is very similar to a case that was filed by one of the other people whose tax returns were leaked at that time, Citadel founder Ken Griffin. And the charges are filed under the Internal revenue code, section 7431. But it's just a section of the Internal Revenue Code that says you can't leak people's tax returns. And then the Privacy act, it's very similar to the case that this guy Ken Griffin filed. His Privacy act claim was eventually dismissed because he wasn't able to show any actual damages. And then the IRC part, that's the Internal Revenue Code part, was not dismissed, but he eventually settled and got the IRS to send out a public apology and stuff like that. So the difference, of course, between him and Trump is that Trump is in charge of the irs, and this was actually Trump's IRS that leaked that, that allowed the leak of his tax returns to happen. Which also points to one of the kind of legal difficulties, I think, in this case, which is that, first of all, the IRS could argue, well, this guy was a contractor, he didn't work for us. But if, if they say, oh, well, he essentially did work for you, then who ultimately was his boss at the very top of the totem pole, it's Donald Trump who's bringing the lawsuit. There's also a small statute of limitations issue, I believe.
- [86:48]
B
And of course, I'll get back to the statute of limitations issue. But the obvious, the other issue is that the people who are going to go in and defend the Department of the treasury and the IRS happen to work. If you elevate all the way up the chain for the plaintiff.
- [87:11]
C
Yes, yes. There's a big public corruption angle. And then, you know, it kind of harks back to his. I don't know if threat is the word, but his assertion that the Department of Justice should also be giving him $230 million for what it all the bad things that happened to him there, which when he talks about that, he's like, yeah, that's kind of my decision, isn't it? That's my Department of Justice. So, yeah, it's really gross. It's really gross.
- [87:38]
B
Well, it kind of makes a $230 million claim sound like a bargain for the taxpayers compared to the 10 billion he's seeking against Treasury.
- [87:47]
C
Yes. Yeah. No, maybe he should up it to 230 billion. There's still time now.
- [87:52]
B
So getting back to the statute of limitations, I believe that there's. For the Privacy act claim, there's a two year statute of limitations.
- [88:00]
C
Yeah. Two years after the discovery of the disclosure. And I think he has said that he heard of the disclosure in January of 2024. So we're just about to finish out January of 2026 in, I believe it.
- [88:11]
B
Was precisely, precisely to the day, two years before he filed suit. And. But what about under the tax code claim? Is there a statute of limitations there?
- [88:25]
C
I don't think think so. I don't know. I don't want to say that too definitively because I don't want to be wrong. But. But I don't think so. But also, I mean, when this other guy sued for damages under that 10, 10 billion is insane, right? I, I don't think it permits that.
- [88:44]
B
But did Griffin sue for a specified amount?
- [88:47]
C
He assumed. He sued for, I think $1,000 per unauthorized disclosure.
- [88:55]
B
Which is what Trump, I mean, Trump has did that too, but he just assumed. Wasn't Trump also saying that, like, we kind of like include everyone who read the New York Times as being in.
- [89:06]
C
Yeah, right, right, right. Yeah, I think so. I think so, yeah. So.
- [89:12]
B
Good stuff.
- [89:14]
C
Yeah. Bad stuff.
- [89:16]
B
Well, we have, I think, come to the end of our agenda and I'm looking at the public chat. I do not see any questions for anyone. So that means either that we have done such a fantastic job that we have explained everything that happened in this crazy week with absolute perfect clarity, or another possibility is that we have bored everyone to tears and they are just kind of lying on their couch, unable to make it to their keyboard to ask us any questions and begging that we just leave them in peace. I suppose it's possible that it may vary among people who are listening and some may be have in one camp and others in the other. But it is right now 5:26, and incredibly, we may be ending a couple of minutes early, but before we do that, just want to give Anna and Roger and Molly a chance to have a closing thoughts on any of the topics that we have discussed or even on a topic that we have not discussed.
- [90:30]
C
Now to channel Ben. Another wild and woolly week.
- [90:34]
B
Another wild and woolly week. Roger.
- [90:38]
D
Thanks for stepping in. Eric, you did a fine bend tonight.
- [90:45]
B
Find Ben.
- [90:46]
A
Yeah, Eric, you did a great job. And Lucy, my dog, as you might have seen, is very excited to get done a few minutes early because she has been trying to get me to feed her dinner for the past 30 minutes. So this is great.
- [91:04]
B
Well, that works out well. I think I will call myself a Temu Ben in the parlance that the kids use. And so thank you again to our senior editors, Anna, Molly and Roger. Thank you to Anna Hickey, our offstage guru, our Svengali, who has been helping us record this and serves lawfare admirably on a daily basis. And thank you to all our listeners. We will be back live one week from today on February 6th, which happens to be the birthday of both Ronald Reagan and Babe Ruth. So make of that what you will and we'll see you in a week.
- [91:56]
E
This podcast is part of lawfare's Live Stream series, lawfare Live the Trials of the Trump Administration. Subscribe to Law Firm Fair'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 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 and other content available only to our supporters. The podcast is edited by Goat Rodeo and our audio engineer this episode was Anna Hickey of lawfare. Our theme music is from Alibi Music. As always, thanks for listening.
- [93:02]
B
Want to turn challenges into chances?
- [93:05]
A
Go digital enterprise and adapt to every.
- [93:08]
C
Change by combining the real and digital worlds.
- [93:12]
B
Transform the everyday with Siemens.