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- [00:00]
Mike Feinberg
AI.
- [00:03]
Benjamin Wittes
Had the time of my life A I never felt this way before.
- [00:10]
Anna Bauer
From building timelines to assigning the right people, and even spotting risks across dozens of projects, Monday Sidekick knows your business, thinks ahead, and takes action. One click on the star and consider it done.
- [00:22]
Benjamin Wittes
And I owe it all to you.
- [00:25]
Anna Bauer
Try Monday Sidekick AI you'll love to use on Monday dot com.
- [00:32]
Scott R. Anderson
Today's trivia quiz is on mobile games.
- [00:35]
Anna Bauer
All right, I'm very excited about this one. I'm going to give you a few hints.
- [00:40]
Scott R. Anderson
Ready?
- [00:40]
Catherine Pompilio
Ready.
- [00:41]
Anna Bauer
This game has no ads and no.
- [00:44]
Scott R. Anderson
Need for Wi fi to play.
- [00:46]
Anna Bauer
Wait, so does it cost a lot of money? Nope.
- [00:48]
Scott R. Anderson
It's completely free to play. What?
- [00:51]
Catherine Pompilio
No way.
- [00:52]
Anna Bauer
It has amazing graphics and they recently added a bunch of new minigames. Hold on.
- [00:58]
Catherine Pompilio
Is that Royal Kingdom?
- [00:59]
Anna Bauer
Yes.
- [01:00]
Scott R. Anderson
Bingo. So if you haven't played Royal Kingdom.
- [01:03]
Anna Bauer
Yet, go to the App Store or.
- [01:04]
Scott R. Anderson
Google Play and download it for free.
- [01:11]
Eric Columbus
It's the Lawfare Podcast. I'm Benjamin Wittes, editor in chief of Lawfare, with Lawfare senior editors Scott R. Anderson, Eric Columbus, Mike Feinberg, Anna Bauer and Roger Parloff. This is a two week roundup special edition of the trials and tribulations of the Trump administration that covers the holidays. It covers all the things that you missed while lying on the beach with a Mai Tai and thinking that you were not thinking about the trials and tribulations of the Trump administration. They were still thinking about you.
- [01:54]
Scott R. Anderson
And.
- [01:55]
Eric Columbus
And they stored up in a big pile to be discussed now. So, Scott, the most important single development while we were all lying on the beach with our Mai Tais was that the Supreme Court, who came off the beach for a moment to issue a major opinion on National Guard deployments that caused the President to kind of give up on National Guard deployment in American cities. It's kind of a big deal. What happened?
- [02:37]
Scott R. Anderson
Yeah. So on December 23rd, we finally got the long awaited decision in Trump v. Illinois. For those who may not recall, this was the case where after the attack, intended deployment of Illinois federalization, I should say, of Illinois National Guard personnel and deployment of them to Chicago was enjoined by first a federal district court and then the seventh Circuit Court of Appeals on appeal. And I should note, they enjoined the deployment of the troops. Actually the federalization was allowed to proceed. The administration quickly went to the Supreme Court. This was back in the fall, I think, actually towards the end of October, maybe the beginning of November, and said, Supreme Court, please intervene and clarify that the President has the authority to do this. And they actually request an immediate administrative stay. That is something the Court has been willing to hand down in a number of other cases, but they did not do it here. Instead, we saw a months long deliberation involving an additional round of briefing solicited by the Court on the issue that ended up deciding it for a majority of the justices. And that was probably a sign pretty early on that the administration was not in a good place place in terms of its legal arguments as to why the President could take this step of federalizing and then deploying these National Guard personnel to Chicago. And it's the same legal argument they also used in Los Angeles and attempted to use in Portland as well. So all three deployments more or less hang on this legal argument. The court determination that came down hinged on one specific question, and that is a provision of the statute, 10 USC 12406 sub provision 3. It's a provision that allows the President to federalize the National Guard of different states in a variety of circumstances, one of which where is, I'm paraphrasing it, but here, subsection three, where the President cannot execute the federal law with the law with the regular forces. Up through the briefing, the parties on both side had more or less accepted that the regular forces meant conventional law enforcement. Although, although the district court in this case did nod towards the possibility that regular forces could just be regular military forces. But as we discussed previously on this podcast and on these live streams, we had a very influential amicus brief filed by legal scholar Marty Lederman, who came and talked to us about it shortly after it was filed that led the Supreme Court to solicit additional round of briefing from the parties on a specific question, that is whether in fact under the statute in which it was inserted in the US code back in 1908, this regular forces language actually means regular military forces, not regular law enforcement personnel. And that's ultimately where we saw the Court issue this ruling that came out on December 23rd. It was a unsigned opinion, but we can tell from the distribution of dissents and concurrences that we essentially had five justices in the majority, that is the three Democratic appointees as well as Chief Justice Roberts. Justice Amy Cody Barrett. What they said essentially is that while 124063 does really talk about the regular forces and from context of the statute, we believe this means regular military forces, at least at this preliminary stage of the proceedings. And that poses a problem for President Trump because he has not made any sort of determination that the regular military forces could not meet the needs of enforcing law in these cases. But then this 5 justice majority went one step further. They said, also it's notable that the theory on which you are deploying these troops once you federalize them, as well as notably some standing military, regular military, in the context of California, there were some Marines deployed there early on in the deployment there. You're relying on something called the protective principle. And this is a theory of inherent constitutional authority of the president able to use the military to defend federal personnel and property. But a big part of the protective principle, a big part of the argument the executive branch has made and reiterated in briefing in this case, is that it does not run afoul of the Posse Comitatus act limitations because the protective principle is not actually enforcing federal law. It's just defending federal property. This led the 5 Justice majority to say, well, there's a tension here because you are saying that what you are doing is not enforcing federal law for purpose of the Posse Comitatus act, but is for purposes of 124063 being able to mobilize these personnel. So they would double down and say, it seems like you haven't even articulated a legal basis under which you could actually, you could invoke 124063 to do these sorts of deployments because these deployments aren't enforcing federal law, which is what 124063 authorizes. On that ground, they basically said, we're going to deny the motion for a stay that the government sought way back in the fall. Justice KAVANAUGHTER Joined these five justices on the first part of this analysis. He said, I agree regular forces means regular military forces. But he said basically didn't go quite this far, but he strongly suggested that really just means the president needs to make a determination that's the case. And he even says pretty expressly, hey, that's going to be on a pretty deferential standard. And he criticized the majority for taking that extra step further about drawing this inference from the Posse Comitatus act. And 124063 as it relates to the protective principle. He says, we should have done more. I wanted to see more briefing on that. I wouldn't have gone that far to make that assertion. And he cast some cold water on whether he would join that analysis if we're actually on the merits and essential to reading the reaching the disposition, which he didn't think it was here. And then we had two dissents, one by Justice Alito, joined by Justice Thomas, one by Justice Gorsuch, which said similar things essentially somewhat more stridently in Justice Alito's case, somewhat more reservedly in Justice Gorsuch's case, where essentially they said in this preliminary matter, none of the parties actually raised this argument, so it really should have been seen as waived, or at least we shouldn't have stretched ourselves to reach it, as we did in this case, based off strictly an amicus brief. And that in these cases, the balance of equities, in this case, defending federal personnel adverse towards the fact that the executive branch should kind of presumptively get its way if there's any sort of gray area or ambiguity. And they all thought this issue warranted, had enough ambiguity that it needed further deliberation. And so they would have granted the stay at this preliminary stage regardless, because 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. The Trump administration did, as you noted, opt to end its military deployments to Chicago, Portland, neither of which actually happened. For the record, they were just federalized, but troops were never actually on the ground doing anything. In California, which had mostly wound up, it's like, still had some, a few personnel on the ground doing things. But the president did say we may come back when crime rates raise again in the future, perhaps in a stronger form. And that is, you know, I think a lot of people are taking that as a suggestion that there are other legal authorities the president could invoke to do similar things like the Insurrection act, that might lead us back to a very similar position with similar arguments.
- [09:17]
Eric Columbus
Yeah. So let's, let's talk about that, because it seems to me that since the authority to invoke the Insurrection act is a little bit clearer, I wonder if this is a kind of Pyrrhic victory for those who don't, aren't excited about domestic deployments of federal troops or National Guards, and that it just kind of encourages or incentivizes the use of more aggressive authorities.
- [09:51]
Scott R. Anderson
Yeah, it's a real question, and it is the underlying question that the court very expressly said we don't reach and we don' strongly implied we don't want to reach this question. And that's the question as to what degree of deference the president gets when he's invoking these emergency statutes and determines, well, I can't enforce federal law or in other provisions of both 12406 and the insurrection act, maybe, that there is an insurrection or domestic violence or an invasion allowing me to invoke these sorts of authorities. And I admittedly am a little bit torn on this personally about what exactly this means for invoking the Insurrection Act. Would it be a stronger argument than 124 06? On the one hand, 124 06, we actually saw all the lower courts more or less agree the President gets substantial deference on invoking 124 06. And the basis for which they did it was a bunch of cases about the Insurrection Act. So on the one hand, you read this and saying, well, you're saying the President gets a lot of deference in invoking the Insurrection act under these precedents that most of which are 100 years old or more, and you're extending that to 124 06. So that kind of implies, well, actually 12406 might be getting the same level of deference. So at least according to the lower courts, the Insurrection act wouldn't be any more invocable than 12406. Again, the Supreme Court may disagree. They didn't reach that issue here. But at least the lower courts, the outcome might be the same, but it is a little tricky because the provision of the Insurrection act that talks about invoking or using the military to enforce federal law, actually has language that, unlike other provisions of the Insurrection act, is more expressly deferential to the President, basically saying, if the President determines that this is necessary to take this step. So you could read that as saying even within the Insurrection act, maybe that provision is entitled to even more heightened deference. And notably those provisions, I believe, if I recall correctly, although I would want to double check this, I think those provisions were actually at issue with some of those 19th century precedents that are cited as a basis for deference. But the language has shifted a little bit over the years and I believe in the interim, at least from the earliest those opinions. Martin vmod so the long and short of it is it's a little bit of a variable here. There's going to be arguments Executive Branch is going to make as to why the Insurrection act should receive, at least under this provision, even more deference than 124 06. And those may be persuasive because of the way Congress has worded this particular provision. But I don't think it's open and shut. I mean, the core conclusion here reached by the lower courts is even under really substantial deference of the sort the Supreme Court has given to the President on the Insurrection act in the past. The President lost in these cases and I, I kind of suspect the lower courts are going to feel the same way even under the Insurrection act, invocation of similar circumstances. But again, the Supreme Court may not agree.
- [12:34]
Eric Columbus
And so do you take this to mean that the Trump administration's flirtations with and experiments with deploying the National Guard in American cities is over? Or do you take it to mean I, you know, he's gotten bored of it and in the face of a judicial setback and an exciting military opportunity in Venezuela, he's focused elsewhere?
- [13:03]
Scott R. Anderson
Now I lean towards the latter, but tend to think that there is an acknowledgment in the administration that this has proven to be a much more uphill legal fight than they anticipated. Now, notably, there are other legal authorities the administration is relying on to deploy National Guard and the military domestically. In other Contexts in Washington D.C. they rely upon 32 USC 502F to deploy volunteer National Guard units volunteered by state governors, red states primarily to Washington D.C. that is still in play and still being pursued there. Similar authorities are being used in Tennessee, discussed being used in other places where red state governors were want and are inviting National Guard units to come. That's a different sort of authority is being done with the consent of the governors involved, which makes it somewhat less legally problematic. Although notably legal challenges are pursuing against both all those actions on other grounds. D.C. law grounds in D.C. state law grounds in Tennessee. The D.C. case has not the plaintiffs have not succeeded as of yet. I believe in Tennessee they're still debating whether the state constitution actually raises some issues about how the National Guard units are being laid out deployed there. Regardless, there's still legal fights happening under these other deployments and these authorities are still being used and are likely going to still be being used. And that's before we even get to the fact that they're express statutory authorities for things like using the military on the border and for various types of law enforcement support around that don't rise to the level of deploying them to the streets alongside law enforcement personnel. So a lot of this is still be happening. But the exact model of deployments that this administration innovated were the first to use in Los Angeles, then in Portland, then Chicago. I think that's DOA at this point, unless they decide to come back and invoke the Insurrection act. And for whatever reason that's just a step they've been really reticent to take so far for reasons that I guess are, I'm guessing are predominantly political, but now may be doubled down by the fact that the courts have proven much more willing to scrutinize those determinations probably than a lot of people thought, including in the administration. They would be going into the going into these debates.
- [15:04]
Eric Columbus
And what about D.C. i assume this all has no bearing on D.C. because it's pursuant to a different set of authorities ways.
- [15:13]
Scott R. Anderson
Yeah, Exactly. In Washington D.C. again you have 32 USC 502F that is being relied upon to deploy volunteer non outside state red state National Guard forces. So when we see you know, Ohio, Florida, I can't remember the Florida is actually deployed to this here not I know Ohio has West Virginia. They are being deployed under this 502F authority, technically under the command of their state governors. Technically they're on state National Guard duty, but they are being funded and directed under by the federal government under what's called a kind of hybrid status, Title 32 status. The then you have the DC National Guard units which are being called up specifically by the president under his own authority. Because D.C. being an odd duck basically says the commander in chief is the head of our D.C. city National Guard and that there are limits to that legal authority, some which are being litigated. But the there's a decision on that I think we've talked about in this live stream series before that came out before the holidays where District Court basically did not buy into the legal challenge before by the city as a plaintiff to a couple a bunch of those different actions. And I we have to check and see exactly where that is in the appellate process. I'm not sure off the top of my head.
- [16:24]
Eric Columbus
All right, so what is the next state the next stage of this battle is that there is no next stage except in D.C. right?
- [16:35]
Scott R. Anderson
I think that's right. And some of the state again Tennessee State court, they are having a debate over state authorities. And look, I mean particularly when you talk about 502F deployments, those state law questions are really, really integral because again, they're contingent upon the governor's ability to volunteer troops for these purposes. So I think you very well might see more litigation in state courts over state constitutional law provisions. But those are the two real fronts where we're going to see this fought out in the future. Unless the administration decides to find another way to to use troops on the ground. And that is likely to be the Insurrection Act. If they want to have National Guard troops or they can use the regular military, that is a door that's opened up. And that's something Justice Kavanaugh kind of flags in his opinion. He says an outcome of this, intended or not, might be that the executive branch uses the regular military more for these sorts of things. That's opposed to National Guard units. And frankly, if you read the Dick act and the early 20th century legislation that installed 124063. That actually does seem to be what they were intending because they wanted to make it harder for the federal government to put the burden on the states for those sorts of deployments. They only wanted to make that necessary if they didn't have the regular military forces to do it. But over the last century, there's been a much stronger tendency to actually lean more on National Guard forces because they're seen as more local, they're seen as less intrusive. That practice may now kind of ground to a halt a little bit in these sorts of contexts, but because at least this one statute, although there are other statutes that can be used for it, does suggest, well, you maybe should be using the regular military first. And that is something the president can do in this protective principle. It raises other legal issues that may be challenged. But you would get around the need to rely on this 124063 authority.
- [18:17]
Eric Columbus
All right. Well, it is time, folks. We're doing things a little bit out of order today because we want to let people dismiss themselves as they finish their parts. And so we are front loading today. Every everybody's favorite game show and the only game show we play on lafair, who wants to dismantle a federal agency. And this time Scott has rolled the bad dice and will be dismantling the cfpb. Scott, what happened with the CFPB while you were lying on the beach with a Mai Tai?
- [18:54]
Scott R. Anderson
Yeah, so we had a pretty substantial development in NTEUV vote that is the litigation around the efforts to dismantle the Consumer Financial Protection Bureau. Folks who keep on top of this case may have recalled seeing in the news that in November the Office of Management and Budget Director Russ Vogt, who is the named defendant in that case and is also the de jure head of the cfpb, had requested an opinion from the Office of Legal Counsel, which then issued essentially saying that the funding mechanism for the CFPB works differently than the way it's been applied more or less throughout its history and that funding wasn't actually available for it. The exact mechanism essentially is that cfpb, as I understand it, draws money down from the Federal Reserve and that this new argument advanced by the Office of Legal Counsel at the request of CFPB was that the statute only allows CFPB to draw down that money where the Federal Reserve is not operating at a loss because the Federal Reserve has been increasing interest rates and paying out more money and interest. It actually has been arguably, by some means of calculation, operating at a loss substantially since 2022, although there's some amicus briefs that were inserted into the filing saying that's actually not true anymore and hasn't been true. And again, there's a lot of different ways to count what that means. Regardless, it's a pretty bold move because essentially they're saying no, CFPB A can only pay for itself when the Federal Reserve is not actually is taking in more money than it's letting out, which would mean that you either would be severely constraining monetary policy or only allowing CFPP to operate when US Monetary policy is operating in a direction where kind of a lowering interest rates, essentially, that's not really what the. It's not very hard to reconcile that with the statutory intent of the CFPB statutory system, which was to maintain a body and insulate it from a lot of political influence and for a lot of flows and changes basically to make it more secure. And finally, what we saw happen is that the plaintiffs in this litigation, which we should note the overall challenge to the CFPB's actions, particularly its personnel actions, is before the D.C. circuit's actually pending reconsideration or rehearing en banc before the entire D.C. circuit. Prior panel opinion hostile to the plaintiffs in this case was vacated, and they're going to have hearings on it starting in February. February, if I believe while that's been going on, the district court is still managing the preliminary injunctions, which are still substantially in place, basically saying you have to keep paying CFPB personnel and maintaining basic minimal statutory duties. And Judge Amy Berman Jackson there issued at the request of the plaintiffs, a clarification of her preliminary injunction, basically saying, hey, look, the statute says you have to try and do these functions. You have a duty to employ these functions. And you are now advancing an argument as to why the Federal Reserve might be able to say we can't pay you the money you requested, but it's not a legal basis for you not to request that money. And notably the Office of Legal Counsel's opinions a little unclear whether Federal Reserve will agree with them or have to rely on them, which is actually kind of an interesting note, just to be.
- [22:06]
Eric Columbus
Clear, have to rely on them because the Federal Reserve is in some sense part of the executive branch. Branch. And OLC is binding law for the executive branch.
- [22:17]
Scott R. Anderson
Yeah, exactly.
- [22:19]
Eric Columbus
And so that, of course, the Federal Reserve is uniquely not part of the executive branch because it's a descendant of the first and Second Banks of the United States. And therefore maybe not subject to the appointments clause, presumably.
- [22:32]
Scott R. Anderson
Yes, exactly. I think that's all the. All the direction we assume this is headed in all. They're waiting.
- [22:36]
Eric Columbus
I see. Okay, just. Just check it.
- [22:38]
Scott R. Anderson
Yeah. And so, you know, essentially there is this argument that she essentially rules, look, you can't get out of your statutory obligations from doing this. And she really, really drags the point that Russ Vote has continued to say expressly, our whole goal in this is to dismantle the cfpb. We expect it to be gone in two or three months. He said this in an interview on the Charlie Kirk show or a segment on the Charlie Kirk radio show in November or December that she quotes at length from numerous times in the brief, really underscoring. It's clear that there is 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 and time again in district court proceedings. And part of the reason why she has kept ruling against the government on this. And frankly, it doesn't seem like the government's able to stop shooting itself in the foot with these very public statements about what they're intending or trying to do for whatever reason. That combination of factors, essentially a letter to say, I'm issuing this clarification, the prior injunction still stands. You have to request this money, and you still have to pursue these duties and pay these people. And that you can't get out of this because the OLC is, if issued this opinion at your request, definitely doesn't relate to your duties as an agency. I haven't seen signs of an appeal in the docket. It was updated. I checked as of this morning, and it looked like the docket I was looking at had been updated just a few hours prior. So we'll have to wait and see exactly how the government responds to this. My guess is maybe they're waiting to see how the D.C. circuit handles other issues related to CFPB before taking action, if they can wait that long. But regardless, that's the way the place the order stands. And it does seem to mean that the CFPB and people work there are still going to be in place and getting paid if not doing their jobs for a few more months.
- [24:12]
Eric Columbus
And we are going to turn to the estimable Mike Feinberg, who. Mike, One thing that we all missed while lying on the beach the last couple of weeks was Jack Smith's testimony, eight hours of testimony before for a deposition, a Capitol Hill deposition that was done in secret, but then released mysteriously on December 31st by the same people who insisted on doing the deposition secretly. What did you make of his testimony?
- [24:56]
Mike Feinberg
Quite a bit.
- [24:57]
Benjamin Wittes
So you're right to point out, sort of, that this happened in a rather odd form fashion. Most special counsel testimonies to the relevant oversight committees, the Judiciary committees, have been done in open session. Jack Smith very much wanted to do this one in open session. He has made a number of public statements through his attorneys at Covington and Burling that they would like to do that, but the chairman of the House Judiciary Committee, Jim Jordan, insisted that it be done closed session. Now, in spite of that, the full transcript as well as video recordings of the testimony was released at the less than opportune hour of the final hours of 2025 on New Year's Eve. And I'm going to presume that it was done in this fashion because the majority on the House Judiciary Committee very much did not get any. Anything they were seeking out of Jack Smith. The mode of interrogation shifted almost immediately from one where the staff members for Jordan and his party were really trying to put Jack Smith on his back feet. And at no point do they. 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 whatsoever. Which sort of begs the question why they released the transcript and the video testimony at all.
- [26:29]
Eric Columbus
And I don't what they also what they thought was going to happen. Right. Because they weren't asking him profoundly difficult questions that a reasonable person would suspect would trip him up. They were asking him, you know, basically, did you engage in a political witch hunt to, you know, interfere in an election? And, you know, you say no over and over again for eight hours. It's not the. It's actually not the hardest testimony in the world to give. I agree with you. He was extremely well prepared. But I'm not sure why they thought he would have been otherwise.
- [27:13]
Benjamin Wittes
Well, there were a number of.
- [27:18]
Scott R. Anderson
Political.
- [27:19]
Benjamin Wittes
Rose bushes in which they wanted him to get trapped up in the thorns. They tried to do this with the obtaining of the toll records from various senators and one House member. But all he had to fall back on, which he did, is that he was entirely within Justice Department policy and got all the necessary approvals that are normally required, required for those sort of sensitive records requests. You know, the fact that he himself was the chief of the Public Integrity Network just means that he's going to know what these requirements are inside and out in a way that the Judiciary Committee is not. And so they tried to get him there. They tried to get him somewhat with the original predication. They tried to a little bit impugn the integrity of the people with whom he was working, whether prosecutors or investigators, or even at one point, the people who did the analysis of the toll records. But it was all innuendo. They had no hard facts to really point to, to push forward these sort of conspiratorial musings that the investigation was politicized. And it's actually worth noting that the final report Jack Smith released, which we've been able to see, we've been able to see volume one of the special counsel's report, which pertains to the attempts to overturn the 2020 election. We have not been able to see the portion of the special counsel's report which deals with the mishandling of classified information. But if you look at the volume we've seen and you compare it to the original file openings of the investigations which he eventually took over, he actually narrowed this scope considerably in a way that a lot of special counsels throughout recent history have not. This is probably, if you look at his report and you look at his testimony, the most focused and the most damning special counsel's report that I'm aware of ever having been written.
- [29:38]
Eric Columbus
How do you mean?
- [29:40]
Benjamin Wittes
Well, special counsels have sort of always fallen prey to two pitfalls. The first is in expanding scope without guardrails. And as you know better than most of us, this is most visible in Ken Starr's inquiries. It starts with a very simple question and then goes on to look at other questions and other parties than those originally intended. And it sort of just runs off the rails. And we saw this to a certain extent with the Durham Special Council as well, where the question that he's supposed to be answering is rather vague. And so he goes off in a whole bunch of different directions against a bunch of different subjects, resulting in almost no convictions. He gets one plea bargain from an FBI employee for changing a line in an email, but that plea doesn't even really speak to the underlying charges Durham is trying to prove to writ large. Conversely, you have special counsels like Robert Mueller who keep their investigation pretty narrowly focused, but don't really come to a lot of legal conclusions with respect to the primary subject. Mueller famously said that he declined to say whether President Trump had committed obstruction, injustice. Smith, in comparison to these sort of two models, keeps his investigation narrowly focused on very discreet events, but also does not waffle one bit whatsoever with his conclusions. 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. That sort of certitude is very rare in this type Of. Of arena.
- [31:49]
Eric Columbus
Yeah, I agree with that. Anna, you also watched the deposition. Do you have additional thoughts on. On Smith's testimony? Not.
- [32:00]
Anna Bauer
Not really. I mean, I will say that I agree with Mike's analysis that they didn't really land a punch at all on Jack Smith, though. You know, one of the things that I've noticed in watching the reaction from people on to the testimony is that the content of it all kind of didn't seem to matter because regardless of Jack Smith's performance, his words and representations are still being spun and twisted. And so to kind of fit this narrative of weaponization. I will also add as well, which I believe that Mike mentioned briefly, that there was a lot that he could not say about the second volume of the final report, which dealt with the classified documents case, because there is still an injunction imposed by Judge Cannon down in Florida that restricts his ability to speak freely about that case. Obviously, there's other reasons why he would not be able to go into certain things about that case, things like grand jury testimony, that kind of thing, Rule 6e. But the injunction by Judge Cannon really seemed to restrict his ability to give responses to questions based on the classified documents case. And so to be determined whether that final report will ever become public at any time soon and whether Jack Smith can, you know, speak more freely about that issue.
- [33:54]
Eric Columbus
All right, speaking of people turning into pumpkins, Mike is going to turn into one. Now. Keep your eye on his screen for pumpkin evolution. And Anna, let's talk about the estimable Daniel Richman, who's gonna have enough good questions for, like, 100 criminal law exams at Columbia University. While you were on the beach with your Mai Tai, what happened in the Dan Richmond fallout to the Jim Comey case?
- [34:36]
Anna Bauer
Well, the government, some government attorneys, maybe they were on the beach with my ties because they were seeking extensions of time to comply with Judge Caller Catelli's order that the government must return Dan Richmond's materials and then place a copy with the District Court for the Eastern District of Virginia. There were several motions over the holidays, Ben, in which the government said, we need more time, one reason being the holidays. But then most recently, over the past several days, the government, after Judge Color Catelli, said, okay, I'll give you some more time to comply with this order. We had an appearance from Stanley Woodward in the case, people might remember Stanley Woodward, former criminal defense attorney. No one was threatening him, as far as I'm aware. Ben is making a reference, I believe, to an episode during the Classified Documents case when Stanley Woodward claimed that Jay Brat, one of the prosecutors, had implicitly threatened him.
- [35:52]
Eric Columbus
Matter shows up at some point length in Jack Smith's testimony who gave a quite extensive explanation for why he did not believe that Stanley Woodward had in fact been threatened by Jay Bratt.
- [36:07]
Anna Bauer
Yeah, and Roger has written extensively about this issue for Lawfare. So I suggest people who want to remind themselves of what happened to go and check out Rogers piece.
- [36:19]
Eric Columbus
Anyway, Stanley Woodward shows up here, does not get threatened.
- [36:23]
Benjamin Wittes
What?
- [36:23]
Anna Bauer
Stanley?
- [36:24]
Scott R. Anderson
What? Right.
- [36:24]
Anna Bauer
And Stanley Woodward, I should say, is now the Associate Attorney General who was recently confirmed to that position previously was, I believe it was White House counsel, and now shows up in this matter and says, judge Caller Catelli, your order said to return these materials, the forensic copy of these materials to Dan Richmond. We've gone ahead and placed a copy of them with the district court, as you've ordered. However, we have this issue because Judge Collarcatelli said there's a single classified document on there. That classified document is the one that was one of the memoranda written by comey back in 2017 that he then sent to Richmond, who was his attorney at the time. It was not at the time classified, but then was, you know, after the fact, classified.
- [37:20]
Eric Columbus
One word in it that was classified.
- [37:23]
Anna Bauer
Oh, I did not remember that part, but it was.
- [37:26]
Eric Columbus
I believe there is that. The, the classified nature of this document is that one word, which is the name of a country which, if memory serves, is Egypt is classified.
- [37:43]
Anna Bauer
Well, it, it because of this document. And, and apparently the one word heard in that document, the government has been saying there's classified information in this. We can't just give this guy classified information back. And so Judge Collar Catelli said, oh, well, I've told you that you can delete the classified information that apparently is just this one memorandum off of the copy before you return the materials to him. Well, Stanley Woodward comes in and says within the past several days, we need more time to comply with your order because we can't delete the one memorandum off of the forensic copy without, you know, deleting the entire thing or something to that effect. He says it's not technologically possible to just delete this one thing off of the copy. I don't really understand that. I'm not a technologist. I barely know how to work my iPhone. So I do not quite Understand that explanation, but maybe there is something to it, maybe there's not.
- [38:46]
Eric Columbus
Regardless, they may be in the nature of a copy that, you know, a. A forensic copy that it.
- [38:54]
Scott R. Anderson
Right.
- [38:54]
Anna Bauer
It's a forensic image.
- [38:56]
Catherine Pompilio
Right.
- [38:56]
Eric Columbus
So that it's not. These are not discrete files on it.
- [39:00]
Scott R. Anderson
Right.
- [39:00]
Eric Columbus
It's all one. One image of what was on the original iPhone. And so you can't. It's. And it's designed to be tamper proof.
- [39:13]
Scott R. Anderson
Right.
- [39:13]
Anna Bauer
And so as a result, Judge Caller Catelli said today, fine. You can have until January 12, which is when the government requested. The government has me, in the meantime, said that it will continue discussions with Richmond's counsel about this issue and how to comply with the order. So I assume we might see some forthcoming additional motions about how they. The parties want to handle this before January 12th, unless the government figures out how to delete that one classified document off of the image. Additionally, the government has agreed not to access or use the materials in question. So that leads me to believe that over the next several days or weeks, we should not expect a new Comey indictment because these materials are very key to the government's case in the Comey case. So that's what's going on in the Richmond case, Ben.
- [40:15]
Eric Columbus
So let's talk about it with reference to the Comey case. The government still has not noticed an appeal in Comey, nor have they moved to re. Indict him. I assume they could notice an appeal without reference to any of this material, but it's hard to see how they could re indict him.
- [40:39]
Anna Bauer
Now. There was a notice of appeal. Am I wrong?
- [40:42]
Eric Columbus
Oh, yes, sorry. I was lying on the beach with a mic. When was the notice of appeal?
- [40:49]
Anna Bauer
Yeah, so it was over the holidays. It was like. Right. It was right in the thick of the holidays. I can't recall the date, but there was at least in the James case. Let me check on the Comey case. But I would presume that if they are appealing the Letitia James case. Oh, yes, it was Comey. Thank you, John. Okay. Both. So, yes, we do have a notice of appeal. I don't think that that would prohibit, though the government from. If they wanted to, still trying to seek a new indictment while that appeal is ongoing.
- [41:24]
Eric Columbus
No, I think that's exactly right. But the point is that they don't have.
- [41:28]
Scott R. Anderson
Have a.
- [41:31]
Eric Columbus
They don't have the. The unavailability of the Richmond material does not affect their ability to appeal the underlying decision, but it very much affects.
- [41:46]
Anna Bauer
Their ability to bring the case to trial.
- [41:49]
Eric Columbus
Bringing.
- [41:50]
Anna Bauer
Right.
- [41:50]
Eric Columbus
Right.
- [41:51]
Anna Bauer
Well, and also to bring the in the so let's say that their appeal is successful in the Comey case. I would think that the current at least obviously I would assume that by the time we get out to beyond an appeal, everything's resolved, they're preparing to go to trial. If they are if they succeed on appeal in the Comey case, you know, you would think that by then they would have sought a warrant for these materials, which is now what they would have to do to get the Richmond materials again. But if they don't do that, then they will have issues because they no longer have evidence that can be authenticated and introduced at trial. Right?
- [42:37]
Eric Columbus
Gotcha. Yes, I think that's exactly right. Mom, Dad, I just have to say.
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Anna Bauer
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Mike Feinberg
They've got pre made and one pan meals, plenty of balanced nutrition, no subscription needed.
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Eric Columbus
You could be plating like a chef.
- [42:58]
Anna Bauer
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- [44:10]
Catherine Pompilio
Experian.
- [44:14]
Eric Columbus
All right, so we are going to assume that Roger is not going to be available.
- [44:26]
Anna Bauer
So Eric, wait, wait. We do have though. I do. Oh maybe you're okay. No, you're moving on to something else that and you will come back to me. Sorry.
- [44:39]
Eric Columbus
Yes, I will come back to you. Eric, talk to us about Judge Beryl Howells ruling on Trump's $100,000 fee for H1B video visas.
- [44:57]
Mike Feinberg
So in September, Trump issued a proclamation requiring employers to fork over $100,000 if they want DHS to process an employer's petition for an H1B visa for an employee. Now, the H1B visa program was created in 1990 to allow employers to bring in foreign workers for a temporary basis to work in, quote, specialty occupations requiring highly specialized knowledge, including education in this specific area. And Trump and his proclamation said that the H1B program is being abused to replace American workers and to lower prevailing wages. And this is echoing a lot of the rhetoric that's been heard on the right, though it's a place where the Trumpist coalition kind of has some friction because the H1B program is beloved by a lot of big tech companies that have, whose leaders have been very supportive of Trump. So then the Chamber of Congress, sorry, Chamber of Commerce and the association of American Universities sued, claiming that it exceeds the President's legal authority. Judge Howell ruled in favor of the Trump administration, which I think came as a surprise to some people, but I think her opinion actually is fairly strong. Now, she relies on section 212F of the Immigration and Naturalization act, which is the same statute that Trump relied on for the so called Muslim ban at the beginning of his first term. And that is an incredibly broad statute. And I'll just read it out to you. Whenever the President finds that the entry of any aliens or of any class of aliens into the U.S. would be detrimental to the interests of the U.S. he may, by proclamation, and for such period as he may deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. It's very, very broad statute. As. And Judge Howell notes that the Supreme Court said in the Muslim ban case that it exudes deference to the President in every clause. So the plaintiffs made a bunch of different arguments. I'll just discuss a few of their relatively stronger ones. And Judge Howell's response. The plaintiffs argued that the detriment to the United States that the statute contemplates has to come in the entry of these people to the United States. But the President's proclamation is about domestic hiring decisions. And these people can still come into the United States by other means on other types of visas, like a tourist visa. Or a student visa, perhaps. But Judge Howell says no. She says, again, look at the statute. The statute says the President may impose on the entry of aliens and any restrictions he may deem to be appropriate. It doesn't require the detriment to come in the entry itself. The plaintiffs also argue that this is a payment requirement, which is a power reserved to Congress, which is not authorized it here. And then again, Howell again says, look at the statute. The statute says any restriction that he may deem to be appropriate, and any restriction means any restriction. And it could be monetary restriction. There's nothing saying that the President can't do that. And when you're imposing a monetary restriction, what you're doing is reducing the incentive for employers to use H1B visas and by comparison, increasing their incentive to hire Americans. And plaintiffs also suggested this conflicts with the scheme of the Immigration and Naturalization act, which specifies specific fees for H1B visas. And Howell says, again, no, this is not a fee, and it's for a very different purpose. It's to, as I just stated, to kind of equalize or more equalize the cost benefit analysis between hiring a foreigner and hiring an American. And Nothing in the H1B fee statute says that no additional payments may be required. Finally, the plaintiffs argue that this will cause H1B petitions to plummet below the statutory cap set by Congress. And Judge Howell says, well, look, that's a cap. Congress set no requirement that or even a goal for a minimum number of such visas to issue. And so there's no way cap contravenes the statutory scheme.
- [50:12]
Eric Columbus
So liberal activist Judge Beryl Howell giving the Trump administration everything it wants.
- [50:18]
Mike Feinberg
So that basically tells you how it's likely to go on appeal.
- [50:22]
Scott R. Anderson
Right.
- [50:23]
Eric Columbus
We are joined at this moment by the estimable Catherine Pompilio, who just walked out of court where President Maduro was being arraigned. I know nothing about what happened in that courtroom, save that Catherine texted me. Crazy stuff. Catherine, what is the crazy stuff that happened at the Maduro arraignment?
- [50:52]
Catherine Pompilio
First of all, his orange shoes were awesome, but that is not any part of what I'm about to say. They both. So Maduro and his wife, Celia Flores, both pleaded not guilty to all of the charges against them. Maduro was asked by Hellerstein, Judge Alvin Hellerstein, to just state his name and make sure.
- [51:11]
Eric Columbus
92.
- [51:12]
Catherine Pompilio
Right, 92. And does all of his hearings with AirPods in, which is my favorite thing ever. But he. He was asked to just state his name and confirm that he was who he thought he was. And he went on, Maduro went on a bit of a soliloquy, talking about how he was a prisoner of war and he was kidnapped and that he is still the president of his country. And Celia Flores.
- [51:39]
Eric Columbus
And what language did he do that in?
- [51:42]
Catherine Pompilio
Spanish. They had interpreters with both of them shout out to the Spanish speaking journalists next to me in the overflow room who helped me understand the stuff that he was saying. Yeah, we landed on. They waived a right, both of their rights to a speedy trial. The next hearing is the Rule 16 conference on March 17, St. Patrick's Day. And they also both requested that they have medical assistance because they both claim they've sustained injuries during their, quote, abductions from Venezuela.
- [52:23]
Eric Columbus
And who is representing them? Do they have retained counsel or court appointed counsel?
- [52:29]
Catherine Pompilio
So they've retained Maduro. They have separate counsel. Maduro has Barry Pollack, Pollock, who was the lawyer, I think for Julian Assange. So he was there for him. And then Andrew Sanchez and one more person whose name I will get something. Donnelly was representing Flores, but they both were in consultation with one another and seemed to be filing jointly. Yes. Crazy day.
- [53:01]
Eric Columbus
Interesting. And so Anna, you look like you had a question.
- [53:07]
Anna Bauer
Yeah, I was just wondering if we got any information about the other deadlines or, or expected motions that might be filed.
- [53:21]
Catherine Pompilio
Kind of. Not really. No more. No specific deadlines. Pollock raised the points that there are significant legal questions that need to be addressed. He said that Maduro is still the head of a sovereign state and so he's entitled to the immunity that comes with that. So there are legal questions around that as well as that is a reference.
- [53:44]
Eric Columbus
For those who don't know the law of this area. That's a reference to what is called head of state immunity. And that is going to be a major issue in this case. Although for reasons partly addressed in the Noriega case and partly a function of the fact that the United States has not recognized Maduro as head of state for a number of years, ever since he stole the last election and we transferred recognition to Juan Guaido. It is not a slam dunk matter on his side either. And it's. I think it's very plausible that you could have a court reject the head of state immunity motions that he's certain to file.
- [54:36]
Catherine Pompilio
Pollock also made reference to legal issues surrounding his military abduction. So it's. And they both, they, the lawyers for both of them made clear that this was going to take a lot of time. So that was kind of the only hint we got towards future motions.
- [54:54]
Eric Columbus
Interesting. And was There any discussion of SEPA matters, Classified information procedures, act issues?
- [55:02]
Catherine Pompilio
Nothing about sipa.
- [55:04]
Anna Bauer
Who is. Who is there for doj?
- [55:09]
Catherine Pompilio
Great question. I have their names. Kyle Washabee, Caitlin Nicholas Blair Henry Ross, Caitlin Lasky. I have to double check that because I can't read my own handwriting, but yeah.
- [55:27]
Eric Columbus
Excellent. Well, any other theater you want to give us a sense of from the scene or is that. I mean, it was not a long hearing.
- [55:37]
Catherine Pompilio
No. I spent most of my time in the lobby at sdny, but I did count. There's a massive, massive law enforcement presence everywhere. You can hear the sirens behind me. I counted. I tallied all of the DEA agents that passed me while I was waiting, and the number was like 85. In addition to U.S. marshal Service and New York City NYPD bomb squads. And the journalist to the left of me was, before the hearing started, was talking about how her family came from Venezuela in 1993 and that she said today was a good day, but she is hesitant about the future because there's no stable leadership now. So there's also in front of me a massive rally about no war with Venezuela, oust Trump. But then also outside the courthouse, people are handing out Venezuelan flags and a lot of the members of the public waiting to get into the trial were telling me and other reporters that they were there because this was an injustice and they are big Maduro fans.
- [56:48]
Eric Columbus
So interesting.
- [56:50]
Anna Bauer
What was the line situation like? Because I heard on the grapevine last night that there was already a line out there starting going right for the.
- [57:01]
Eric Columbus
Jugular of the important question. How was the line?
- [57:06]
Catherine Pompilio
The line was great. I made friends. We did crosswords. They people lined up there at started lining up or the line dude started lining up at 7pm the night before. I got there around 8:15 this morning and the girl directly in front of me got there at 7am and we made it into overflow with no problem. There were many more people behind me and the line was inside for most of the day, which was absolutely lovely. Yeah, yeah. Other journalists were wearing like snow pants and long underwear and were shocked that we. That we were let inside so early. I waited outside for maybe 10 minutes. So it's luxury at SDNY.
- [57:50]
Eric Columbus
All right, we are going to leave it there. Catherine, thank you for joining us. And let's get back to our roundup. Eric, we have a TRO in the CCDH removal case. And I confess, fass, I do not even know what the CCDH removal case is. So bring me up to speed.
- [58:21]
Mike Feinberg
Sure. So CCDH stands for center for Countering digital hate and it is a London based organization founded by man named Imran Ahmed which combats online disinformation and other harmful online conduct largely on social media. It has gone after a lot of the usual suspects such as anti vax conspiracists, people on hateful conduct on on Twitter and X, stuff on TikTok and ChatGPT, but also looking at how Iranian state the Iranian government has used social media to spread anti Semitic conspiracies and they. This the reason why this case is very late breaking. In December, the European Commission issued $120 million euro sorry, 120 million euro fine against X for violating certain provisions of their digital services, the European Digital Services Act. Trump got furious about this and made noise, as did Marco Rubio. On December 23, Rubio put out a statement saying that they are acting against five individuals whom he did not name whose entry, presence or activities in the US have potentially serious adverse foreign policy consequences. And this is a somewhat odd statute that gives him very broad authority and that he has used or attempted to use in the term last year against pro Palestinian activists. And then the next day, or maybe later that day, the Undersecretary of State for Public Diplomacy named Sarah Rogers tweeted out the names of the five individuals who were involved, all of whom were citizens of European countries, including Imran Ahmed. Ahmed, I believe, I believe two of the five were actually located in the United States at the time. Ahmed, one of the two, happens to be a legal permanent resident with US Citizen, wife and child. And he sued and claiming that this is retaliation against his activities largely against X. And that also constitutes viewpoint discrimination and abridgment of his violation of his due process rights and also arbitrary and capricious agency action in violation of the Administrative Procedure Act. Now, nothing has been done to him yet and that he has not received a notice to appear. He has not been obviously not obviously, but he has not been arrested. But even so, I would think being.
- [61:23]
Eric Columbus
Identified as basically a target is sufficient to convey standing, no?
- [61:30]
Mike Feinberg
Yes. And the judge did not even wait for the administration to respond, but rather granted the TRO that Ahmed requested. This is Judge Vernon Broderick in sdny, an Obama appointee. So he granted the TRO and further proceedings will follow. This may be another instance where even if Ahmed wins, the process is the punishment and it is designed to one, discourage future dissent and two, to make people like Elon Musk happy.
- [62:07]
Eric Columbus
Speaking of further proceedings in which the process is the punishment, Anna Bauer we have developments in the Kilmar Abrego Garcia, AKA Job case. What do we know?
- [62:23]
Anna Bauer
Yeah. So in the criminal case against Kilmar Brego Garcia in Tennessee, there were some interesting developments over the holidays. So there was this to just keep people, catch people up to speed again on what's been going on. Judge Crenshaw previously found that Abrego Garcia had raised a presumption of vindictiveness. That's kind of the first step in this process in considering whether to dismiss his prosecution for selective or vindictive prosecution. And there was a hearing that was supposed to happen, an evidentiary hearing, on this question of whether the prosecution was vindictive. The government was supposed to attempt to rebut the presumption of vindictiveness that Abrego, according to Judge Crenshaw, had successfully raised. But in the interim period, there was a number of intervening issues. There are like 3,000 documents that Judge Crenshaw needed to go through to decide whether or not the government should turn those materials over to the defense. There was also this question of whether Todd Blanche and Patrick McHenry and Akash Singh, people who are high level officials within doj, should have to testify at that hearing because the defense wanted them to testify. But the government was seeking to quash that those subpoenas. And over the holidays, we got a number of answers on all of this. So the first thing that happened is that Judge Crenshaw ruled on the motion to quash subpoenas for Blanche, McHenry and Singh, but he kind of didn't rule because he basically just said, I'm going to put this off until we have this evidentiary hearing in which the government will have an opportunity to rebut the presumption of vindictiveness. And if it does rebut that presumption and the burden then shifts back to Abrego, then I'll revisit this question of whether Blanche and McHenry and Singh should have to testify. And so he canceled the trial that was previously set for January 27th, and he instead scheduled that evidentiary hearing for January 28th. So later this month, that hearing, I think, should finally go forward. It's been, you know, canceled and then rescheduled and had a number of issues getting to that point, but I think that it likely will finally go forward. However, there was this other issue related to all of this, which was this order that was under seal, related to the documents that Judge Crenshaw had been going through in chambers that the government handed over. And in this order that was unsealed on December 30th Judge Crenshaw reveals that though the government had previously said that, you know, people like the Office of Attorney General and Todd Blanche didn't have a role in deciding whether to prosecute Abrego, it turns out that, in fact, there's a number of documents in these materials that Crenshaw went through in which Akash Singh, who is Blanche's deputy, seems to be pretty involved in the prosecution and is communicating with Maguire, is. Is saying things like, this is a topic priority, this prosecution. And that is significant not only for the defense's, you know, the merits of the defense's claim, because previously the government made the argument that Robert McGuire, the US attorney, was the only guy who made the decision. He was the ultimate decider. He filed affidavits as well that said that he did not have correspondence, including email, text calls, with, quote, any personnel at the White House, the Secretary of Homeland Security, the Office of the Secretary of Homeland Security, the Attorney General, the Office of the Attorney General, the Deputy Attorney General, or the then principal Associate Deputy Attorney General. You know, it turns out that he actually was speaking, even if not with Todd Blanch himself, but was talking to Akash Singh, who is Blanche's deputy. So there's a number of things that raise questions, not only about the candidness of Maguire in terms of these affidavits that he filed about whether he received direction from the Office of the Attorney General or the Deputy Attorney General, but also that seemed to go to the merits of Abrego's selective or vindictive prosecution claim. So that was very interesting, this unsealing of that motion. But for now, the next thing to come up in this case seems to be that evidentiary hearing. There's also a pending motion on sanctions for extrajudicial statements. That has been an ongoing issue in the case because the government continues to make extrajudicial statements about Abreu Garcia, despite the fact that the court has multiple times said, you know, cut it out and follow the local rules about this.
- [68:01]
Eric Columbus
All right. Speaking of people who shouldn't be deported, a judge in the Northern District of California has stopped ICE from detaining people for deportation who show up for their immigration court dates. Eric, what is the half life of such an opinion before the 9th Circuit and more pointedly, before the Supreme Court?
- [68:32]
Mike Feinberg
So I should note that this has been this opinion. This order is limited to areas that are within ice's San Francisco field office, courthouses that are within the scope of isis.
- [68:49]
Eric Columbus
It is not a national injunction.
- [68:51]
Mike Feinberg
It is not a national Injunction. I don't know how fair an appeal. I think the opinion is well reasoned, although it does conflict with an opinion in the Southern District of New York. It's by Judge Casey Pitts, who I believe is a Biden appointee. If I'm wrong about that, then he's definitely an Obama appointee. And basically this is something that.
- [69:25]
Scott R. Anderson
This.
- [69:25]
Mike Feinberg
Is kind of a similar issue to something we've seen in a lot of cases in this Trump administration, the last one, where the government revises a policy in a way that they are, in theory legally authorized to do, but their rationale is sufficiently vague or lacking that it gets overturned as being arbitrary and capricious. And ICE has historically been very sparing about its use of arrest, arresting people at courthouses. And it's gone, and especially immigration courthouses, in large part because this has a chilling effect on people who try to vindicate their rights in court.
- [70:20]
Eric Columbus
And also these courts order people to show up and it seems unfair to then use that, particularly if it's somebody who's, you know, got a pending asylum claim or was subject to some discretionary non detainment to then sort of use their, to use their compliance and cooperation against them.
- [70:47]
Mike Feinberg
Yes, exactly. And there's been a, during the Trump, Biden, Trump era, there's been in this and in many other areas a kind of a whiplash in policy. In 2018, ICE made it easier to conduct its civil enforcement actions and arrests. Biden then dialed that back in 2021. But in 2025, then ICE open it up again.
- [71:25]
Scott R. Anderson
And.
- [71:27]
Mike Feinberg
Made it kind of broader and allow them to conduct immigration civil arrests, including immigration courthouses. The government argued, somewhat oddly, that their new practice of conducting widespread civil arrests at immigration courthouses is not actually the result of any policy at all, but it just stems from individual officers discretionary enforcement decisions. And they, they said that for the first time at, at oral argument. And the judge is like, well, one, it's waived because you didn't put in your briefs, and two, come on, this is ridiculous. But so then the judge then looked more carefully at the 2021 policy and said and noted that. Focuses on the chill to individuals access to courthouses and that if you arrest them when they're coming to vindicate the rights, then you will impair the fair administration of justice. That's what the government, that's what the Biden's administration's ICE said in 2021. And he noted that the current policy did not address that and did not explain why this is a price worth paying. And if you change your position and you don't give a reasoned approach about why the issue that underlay the old policy is no longer something that warrants a continuation of the old policy, then.
- [73:11]
Eric Columbus
That doesn't sound like arbitrary and capricious.
- [73:14]
Mike Feinberg
Exactly. And so that was one part of Judge Pitts's reasoning. The second part was that it relies.
- [73:24]
Eric Columbus
On.
- [73:26]
Mike Feinberg
A certain kind of lack of logic in the reasons that it does offer. For example, it says that the ICE said that civil enforcement actions at courthouses can reduce safety risks to the public and to ICE officers because in the courthouse you've already screened these people and searching for weapons and contraband.
- [73:51]
Scott R. Anderson
But.
- [73:53]
Mike Feinberg
You'Re dealing with this is the judge noted, you're dealing with people who by definition have not been detained. These are people who you've put in removal proceedings, but you're still letting be free in the community. So you've already determined that this person is not a threat to the public. And ICE also said that these enforcement activities are often required when jurisdictions refuse to cooperate with ice, including when they refuse to honor immigration detainers and transfer citizens directly to ICE custody. But as Judge Pitts noted, that applies in situations where people are being moved from jails to ICE custody. And that may have some relevance to the need to arrest individuals when they appear in criminal court. But the ICE has not drawn a rational connection between its need to arrest criminal nonsense specifically and its use of civil arrests in immigration courthouses generally, which especially this day and age has been covering people with vast numbers of people with no criminal records at all.
- [75:08]
Eric Columbus
All right. So speaking of Northern District of California District Court opinions that have a short half life before appellate bodies, a different Northern District of California judge has blocked the Trump administration's efforts effort to end TPS temporary protective status for migrants from Honduras, Nepal and Nicaragua. And I just want to say I cannot think of an area where the courts are more likely to defer to presidential discretion than tps. Eric, what possible arguments could a good hearted district judge come up with to contradict me on that?
- [75:59]
Mike Feinberg
Well again we have it's an arbitrary and capricious review. Judge Trina Thompson, a Biden appointee.
- [76:09]
Eric Columbus
Found.
- [76:10]
Mike Feinberg
That the the administration's actions were basically for ordained fore ordained as she put it, based upon the comments by by Trump and by by DHS Secretary Kristi Noem about how TPS was being abused and and correctly noting that these the in many cases including here, the TPS's Temporary Protected Status has lasted for for many, many years. And the judge also noted that there were the. Kristi Noem had basically pre written her decisions about temporary protective status in these cases without before receiving country condition reports. Apparently that's true for note for Honduras and Nicaragua, when she did receive country condition reports in the Department of State, they were, apparently, they were requested to be very brief and to include improvements in those countries without mentioning, without mentioning environmental concerns or climate change. And that they'd also been instructed to not to include any different harms that might have occurred in the subject countries without that were separate from, from the original harms that gave rise to the temporary protection status in the first place. The judge deferred, pending appellate review, other claims advanced by the plaintiffs, including claims that these were based, these decisions were based on animus. She, she rejected the plaintiffs, the defendant's motion to dismiss on those grounds, kind of citing Trump's comments and Noam's comments about how we're getting too many immigrants from too many bad places. But she will return to that if this is overturned on appeal.
- [78:23]
Eric Columbus
Right. Which it, I think will be. I just, you know, I'm, I, I love the TPS program. I don't think the President should be revoking TPS for any of these countries. But I just can't see how an opinion like this is going to survive flying over many flyover states from there to the other coastal elite center of Boston, Massachusetts. Another judge has done basically the same thing vis a vis South Sudan. What, what is the difference between this opinion and the one from the Northern District of California and should I suspect it will have a longer, healthier existence?
- [79:11]
Mike Feinberg
Well, I don't think we can answer the second question because of one key difference is that this is just an administrative stay. This is just.
- [79:19]
Eric Columbus
I see. So it's not even really reasoned.
- [79:21]
Mike Feinberg
It's not even really reasoned, but it affects a very small number of people. But obviously for those South Sudanese who apparently 70 or so had temporary protected status, it obviously means a lot to them. The judge, this was, I think, issued late December. The judge put on hold a very recent TPS verification and called for briefing on it.
- [79:46]
Eric Columbus
Yeah. So just to be clear, TPS is a really important program. And what the administration is doing to. It's really hundreds of thousands of people in the United States with GPS is a, it's a very grave and serious thing. And I don't mean to make light of it. I do think these programs where the President gives discretionary relief to people are programs in which it is going to be the hardest for the courts to in a sustainable way, intervene and So I I do suspect that district courts throwing wrenches into the gears is going to be a very temporary thing. That is all for today. Believe it or not. There are zero questions in the queue. So we are going to do something we almost never do on Trump Trials and tribulations. We're going to finish up a few minutes early today. Welcome back to the year 2026. The trials and tribulations are not slowing down. They continue to trial and tribulate. And we will be back on Friday for our regular week roundup, which will start again on the regular Friday at four times. Thanks to Anna Bauer to Eric Columbus to Katherine Pompilio, to Mike Feinberg, to Roger Parloff for his valiant efforts to join us, failed or otherwise. And to Scott R. Anderson. And thank you to Anna Hickey, who is the organizer, convener of all of this. The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can become a material supporter of Lawfare and thereby get your questions answered if you want them. Although nobody wanted their questions answered today in our Livestream Studio, we will be back. This podcast is part of Lawfare's live Stream series, Lawfare Live the Trials of the Trump administration. Subscribe to Lawfare's YouTube channel to receive an alert the next time we go live. The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter at our website, lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. The podcast is edited by Goat Rodeo and our audio engineer. This episode was Anna Hickey of Lawfare. Our theme music is performed by Alibi Music. As always, thanks for listening.
- [83:15]
Anna Bauer
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