The Lawfare Podcast: Lawfare Daily—The Trials of the Trump Administration, Jan. 5

Date: January 7, 2026
Hosts: Benjamin Wittes, Anna Bauer, Scott R. Anderson, Eric Columbus, Mike Feinberg, Catherine Pompilio
Theme: A comprehensive holiday roundup of key legal and policy developments concerning the Trump administration, spanning Supreme Court decisions, major agency litigation, high-profile depositions, immigration enforcement, and headline criminal proceedings.

Episode Overview

This two-week roundup captures major legal and political events involving the Trump administration that unfolded during the holiday season of 2025–26. The Lawfare team analyzes Supreme Court actions, ongoing litigation, and critical developments in notable investigations, declarations, and prosecutions affecting Trump-era policies and officials. The panel emphasizes shifting legal standards, institutional tensions, and the immediate as well as long-term implications of these proceedings for governance and the rule of law.

Key Discussion Points & Insights

1. Supreme Court Ruling on National Guard Deployments: Trump v. Illinois

• Main Development: On December 23, the Supreme Court issued a significant decision in Trump v. Illinois, rejecting the administration’s authority to deploy federalized National Guard troops in Chicago under 10 USC §12406(3).
• Legal Nuances: The Court interpreted “regular forces” to mean “regular military forces,” not just law enforcement, requiring the President to show those forces were insufficient.
• Significance: The Court denied an administrative stay, effectively blocking the deployments and raising the bar for future use of National Guard in domestic scenarios.
• Chilling Takeaway:
  • Scott R. Anderson (03:35): “The Trump administration did … opt to end its military deployments to Chicago, Portland…in California…[but] the president did say we may come back when crime rates raise again in the future, perhaps in a stronger form.”
• Concern: The decision might incentivize the administration to rely on more aggressive authorities such as the Insurrection Act.
  • Benjamin Wittes (09:50): “Is this a Pyrrhic victory…that it just encourages the use of more aggressive authorities?”
• Political Calculus: Legal and political reluctance remains around invoking the Insurrection Act, and ongoing litigation continues regarding other federal and state National Guard deployments.
  • Scott R. Anderson (13:03): “I think there is an acknowledgment…that this has proven to be a much more uphill legal fight than anticipated.”

2. Who Wants to Dismantle a Federal Agency? – The CFPB Lawsuit

• Context: Fresh legal maneuvering over the Consumer Financial Protection Bureau’s (CFPB) continued existence and funding.
• Key Development: The Office of Legal Counsel issued an opinion potentially choking off CFPB funding via arcane Federal Reserve accounting, aiming allegedly to shut down the agency.
• District Court Response: Judge Amy Berman Jackson clarified an injunction, compelling the administration to continue staffing and fulfilling statutory duties at CFPB despite administrative maneuvers to defund and dismantle.
  • Scott R. Anderson (22:37): “It’s clear…this is all just pretext for shutting this down, which is something she’s concluded time and time again.”

3. Jack Smith’s Testimony Before the House Judiciary Committee

• Event: Special Counsel Jack Smith testified behind closed doors for eight hours; transcript and video were released on New Year’s Eve.
• Strategic Fallout: The GOP aimed to catch Smith in political or procedural mistakes but failed; Smith’s testimony was disciplined and unimpeachable.
  • Mike Feinberg (25:01): “If this were a boxing match, they would have never landed a punch. Smith was much better prepared for this and at no point got tripped up.”
• Scope and Substance: Smith’s report was praised for being focused and conclusive, particularly compared with past special counsels:
  • Benjamin Wittes (29:40): “Smith…keeps his investigation narrowly focused on very discrete events, but also does not waffle…He states that President Trump attempted to overthrow the results of the 2020 election and that he would have been able to conclusively prove this beyond a reasonable doubt had he gone to trial.”
• Limitations: Smith was restricted by a Judge Cannon injunction from speaking freely on certain matters involving classified documents.

4. The James Comey/Daniel Richman Fallout

• Procedural Tangle: The government requested repeated delays in complying with an order to return former FBI counsel Daniel Richman’s materials.
• Technical Limbo: Issues with deleting a single classified word (“Egypt”) embedded in a forensic image complicated compliance.
  • Anna Bauer (38:46): “Judge Collier Catelli said, ‘Fine, you can have until January 12…’ The government will continue discussions about compliance.”
• Effect on Prosecution: The government faces trouble moving forward without access to or the ability to use these materials in court.

5. The $100K H-1B Visa Proclamation — Howell’s Ruling

• Trump directive: Imposed a $100,000 fee on employers for H-1B visa petitions.
• Legal Justification: Judge Beryl Howell upheld the fee, pointing to extraordinarily broad presidential discretion under INA §212(f).
  • Mike Feinberg (48:31): “Any restriction means any restriction…nothing says the President can’t do that.”

6. Maduro’s Arraignment in US Court

• Scene: Venezuelan President Nicolás Maduro and wife Celia Flores were arraigned in SDNY, both pleading not guilty.
• Legal Intrigue: Maduro declared himself a prisoner of war and invoked head-of-state immunity.
• Atmosphere: Heavy law enforcement presence, crowds, and vocal supporters outside the courthouse.
  • Catherine Pompilio (51:41): “He went on…talking about how he was a prisoner of war and was kidnapped and…still the president of his country.”
• Key Legal Question: Head of state immunity will be a battleground, complicated by the US not recognizing Maduro as Venezuela’s president.

7. TRO in Center for Countering Digital Hate (CCDH) Case

• Background: Trump administration targeted CCDH and associated individuals, likely retaliation for advocacy against online hate.
• Legal Action: Judge Vernon Broderick (SDNY) granted a TRO preventing enforcement of retaliatory immigration measures.
• Comment: Even absent direct government action, targeting dissenters creates chilling effects.

8. Kilmar Abrego García (Job) TN Prosecution

• Vindictive Prosecution Allegation: Judge found a presumption of vindictiveness; an evidentiary hearing on government motives is set for January 28.
• Transparency Issues: Unsealed documents showed DoJ officials were more involved in prosecution decisions than previously disclosed.

9. Immigration Enforcement at Courthouses

• NDCA Ruling: Judges stopped ICE from detaining individuals at immigration courthouses in San Francisco’s jurisdiction, finding the policy arbitrary and capricious for failing to consider chilling effects on justice.
  • Mike Feinberg (70:20): “If you arrest them when they’re coming to vindicate their rights, then you will impair the fair administration of justice.”

10. TPS (Temporary Protected Status) for Migrants

• District Court Stays: NDCA and District of Massachusetts judges temporarily blocked Trump administration efforts to end TPS for Honduras, Nepal, Nicaragua, and South Sudan.
• Judicial Reasoning: Findings of procedural “arbitrary and capricious” defects, and pre-decisional bias based on administration statements.
• Expectation: These opinions face tough odds on appeal due to the president’s wide discretion over TPS designations.
  • Eric Columbus (78:23): “I just can’t see how an opinion like this is going to survive…these [programs]…it is going to be the hardest for the courts to in a sustainable way, intervene.”

Notable Quotes & Memorable Moments

• On Failed GOTCHA:

  • Mike Feinberg (25:01): “If this were a boxing match, they would have never landed a punch. Smith was much better prepared for this and at no point got tripped up.”

• On Supreme Court’s Message to Trump:

  • Scott R. Anderson (03:35): “…the majority said no stay at this point and threw out pretty cold water on the whole legal theory underlying what the Trump administration has done.”

• On Judicial Restraint/Scope:

  • Benjamin Wittes (29:40): “This is probably…the most focused and the most damning special counsel’s report that I’m aware of ever having been written.”

• On CFPB Dismantling:

  • Scott R. Anderson (22:37): “…this is all really just pretext for what they’re trying to do, which is shut this down, which is something she’s concluded time and time…in district court proceedings.”

• On Line Culture at the SDNY:

  • Catherine Pompilio (57:06): “The line was great. I made friends. We did crosswords…we made it into overflow with no problem…”

Timestamps for Key Segments

| Segment | Timestamps | |------------------------------------------------------|--------------| | Main theme & Supreme Court’s National Guard ruling | 01:11–18:17 | | CFPB Lawsuit developments | 18:17–24:11 | | Jack Smith’s Judiciary Testimony | 24:11–33:53 | | Dan Richman/Comey case procedural twists | 33:53–42:36 | | Trump $100k H-1B Visa fee—Howell’s ruling | 44:38–50:23 | | Maduro Arraignment in SDNY | 50:52–57:50 | | TRO in CCDH case | 58:21–62:06 | | Abrego Garcia Tennessee prosecution | 62:06–68:00 | | CA ruling on ICE courthouse arrests | 68:00–75:08 | | TPS for migrants—CA and MA rulings | 75:08–79:45 |

Conclusion

The episode highlighted a continuing surge of litigation and legal maneuvering around the Trump administration’s assertive use of executive power. The hosts delved into the interplay between institutional constraints, statutory discretion, and political motivations, painting a vivid portrait of ongoing constitutional friction in US governance as 2026 begins. The legal landscape remains in flux, with fundamental questions about presidential power, judicial oversight, and the future of vital government programs hanging in the balance.