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- [00:01]
Benjamin Wittes
The following podcast contains advertising to access an ad free version of the Lawfare Podcast. Become a material supporter of lawfare@patreon.com lawfare that's patreon.com Lawfair also check out Lawfare's other podcast offerings, Rational Security Chatter, Lawfare, no Bull and the Aftermath.
- [00:37]
Scott R. Andersen
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- [01:13]
Anna Bauer
Give you this deal.
- [01:13]
Scott R. Andersen
And hey, stop messing with the mic.
- [01:16]
Roger Parloff
I'm just helping this catch people's attention.
- [01:18]
Benjamin Wittes
This is a great deal.
- [01:21]
Scott R. Andersen
Exactly. So it doesn't need all that.
- [01:25]
Anna Bauer
Fine.
- [01:26]
Scott R. Andersen
Head to your nearest Boost Mobile store right now.
- [01:28]
Roger Parloff
Visit your nearest Boost Mobile store for full offer details. Apple Intelligence requires iOS 18.1 or later. Restrictions apply. He really was saying I know what you're doing. Executive Branch and we're not even going to get there. We're going to stop this. Nip this at the Bud.
- [01:46]
Benjamin Wittes
It's the Lawfare Podcast. I'm Benjamin Wittes, Editor in Chief of lawfare, here with Lawfare senior editors Scott R. Andersen, Anna Bauer and Roger Parloff. In the July 11 episode of the Trials of the Trump administration, we discussed the Supreme Court's ruling allowing mass terminations of federal employees, the many hearings this week in the Kilmar Abrego Garcia civil case, updates on the Trump administration's attempts to dismantle various executive agencies, and so much more. It is Friday, July 11, 2025. It is 4:00pm and you are watching Lawfare Live, our weekly roundup of the trials and tribulations of the Trump administration. I am joined well, I am Benjamin Wittes, editor in chief of Lawfare, joined by the very estimable Roger Parloff in the Sconce studio. Hello Roger hello Ben and Scott Anderson in the very blurry basement studio. How are you Scott?
- [03:07]
Roger Parloff
Cannot complain.
- [03:08]
Benjamin Wittes
Cannot complain because you are not a State Department employee and have not been riffed. But we are going to get to all of that in a moment. We are shortly to be joined by the very estimable. Anna Bauer from some previously undisclosed room in her palatial mansion. She is just returning from the latest of the Kilmar Abrego Garcia hearings, which required that she take the train back to New York. So she will be with us in a moment. Let us start this week, Scott, with the Supreme Court's big decision on the emergency docket. Of course, not to stay the riffing. And by riffing, we mean implementations of mass firings, otherwise known as reductions in force, at a variety of federal agencies. This one was not with the usual 6:3 split. It was very bitter, however. So what did the Supreme Court do and who objected and what is the ongoing result?
- [04:33]
Roger Parloff
So this was a decision that came out down 8:1, as you noted, Justice Jackson being the sole dissenter. And it is because it's one of these motions or cases that's arisen on the shadow docket, the kind of expedited proceedings docket, we actually don't get, as is often the case of those cases, an explanation as to exactly what the court's reasoning is, which makes it a little hard. The question before the court is whether to maintain a preliminary injunction a district court had issued that had essentially enjoined the executive branch, the Trump administration, from pursuing risks. And a couple of the related measures risk being terminations of federal employees across a whole range of federal agencies. Based on the president's early executive order about downsizing the size of the federal government and a implementing OMB directive. The majority said essentially we're going to stay that injunction. We don't think that injunction is appropriate at this point. A concurrence from Justice Sotomayor, who I think it's fair to say is the justice who joins Justice Jackson most often in dissent, at least has recently in these particular line of cases dealing with some of the Trump administration's actions, wrote a paragraph or two concurrence, essentially saying, look, here's why we're doing this and implicitly why I'm joining is that the actual executive order by President Trump and the OMB implementing directive both say that executive agencies shall take steps to reduce agencies within the contours of the law, consistent with the law, and so on its very face and worth noting, neither one is very specific. They both basically just direct agencies to develop plans for pursuing these broad policy objectives consist consistent with the law. So on their face, neither of them actually direct any sort of unlawful conduct. So there's no basis for enjoining it or no basis for believing that the government will lose on the ultimate merits so as to warrant an injunction. And that's the base on which they stay. Now, Sotomayor really takes pains to make clear, and the court itself, I would say if you read it particularly in the context of Sotomayor's concurrence, seems to say much of the same thing, which is basically we're not pass no judgment whatsoever on any actual plans agencies might adopt to implement this executive order and this om. So if an agency develops a rift plan or actually rifts people, then at that point you can challenge it and maybe you can even get another injunction. But right now, when all we're dealing with are two very broad orders, both of which expressly say act consistent with the law, it's hard to say that the executive branch is doing anything illegal here. Justice Jackson wrote a pretty lengthy, certainly compared to the rest of union dissent from this, where she both laid out the factual findings that had led Judge Elston in I believe, the Northern District of California to make this injunction initially, where she essentially said, look, whatever these memorandum might say, it's very clear they are intending, meaning the Trump administration is intending to dramatically cut these agencies in ways that pushes strongly against a variety of statutory authorities and almost, or at least almost certainly will. And therefore this is a very reasonable prophylactic measure. And Justice Jackson essentially said when you have an executive branch that you have good strong evidence, is clearly intended to do something illegal, is acting very broadly, has already done so in a lot of other contexts, it is not unreasonable for a district court judge to act with that sort of breath, to act essentially prophylactically to prevent it. You don't have to wait for them to get further along in this kind of causative chain of unlawfulness to enjoin it. And she also says we should give district courts and district court judges the tools they need to to regulate these sorts of things, because they're the ones at the front lines and we shouldn't be second guessing their judgment. But with by being too nitpicky, that obviously didn't persuade any other justices, including Justice Sotomayor. And you know, I think it is the role that Justice Jackson has found herself in and kind of willingly adopted of really calling out the Trump administration on doing something really unusual and essentially implicitly, if not expressly saying the usual standards shouldn't apply, they are doing something extraordinary and the court should act in an extraordinary fashion. In response regarding this case, though, at least personally, I was not terribly surprised with the court's outcome in this case because Judge Ilston's Preliminary injunction really did address something that was so preliminary before you got these actual plans. I'm not sure it's actually that significant because, again, you will be able to see injunctions and legal challenges to specific agency dismantling and termination plans when they come. You're going to see a multiple array of other litigation that's annoying for plaintiffs, it's more costly for plaintiffs, but it doesn't mean the Trump administration is going to get away with it any more likely. And in a case dealing with the executive branch, I can see why the Supreme Court would be hesitant to, to kind of adopt a preliminary injunction that is arguably overbroad in that it's restricting things that aren't clearly illegal.
- [09:13]
Benjamin Wittes
All right, I want to ask you, before we go on to the practical effects of this, I want to ask you about a quality of this opinion that both you and Roger have raised in other contexts before. So, you know, normally, if you're going to be fired from an agency and you want to claim your firing was illegal, you don't go get an injunction against the action. Right? You get fired, and then you contest it before the Merit Systems Protection Board, and then you file a lawsuit later. And normally, if you're, the government wants to stop your USAID grant, you don't get an injunction against stopping USAID grants. You contest it. You go to the Court of Federal Claims. You, if it's illegal, you get relief. And so part of what the majority is, and there's. This plays out in a million different contexts in this litigation where there's a normal remedy, which is you sue after the fact. And then there's a, hey, wait a minute. But the Trump administration is trying to dismantle USAID or destroy the whole foreign aid program or rip apart the United States Institute of Peace, which is a private organization, Right. And do these in these, you know, proactive senses. And so do you see it as a thousand litigations in the regular process, or is there something genuinely extraordinary going on that causes you to say, wait a minute, none of those remedies in the ordinary course of business gets you to what's really happening here. And I guess the question is, is this six, seven or eight justices? It's not really clear how many, because all we know is who signed a dissent. Right. But is this, you know, just Justice Jackson saying by herself, like, we should treat all of these questions as though, like, don't pretend this is a thousand individual cases of people getting fired, and that's literally the number of people who were dismissed from the State Department today, 1300 or something. This is a programmatic activity and we know that. And so let's just proceed that way. Is that like, is there a big common theme here?
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Roger Parloff
There is, but I would not, I hesitate to read too much of that into this particular case because kind of on one end of the spectrum, at least in my mind, towards a.
- [12:13]
Benjamin Wittes
You.
- [12:13]
Roger Parloff
This is at such a macro level that it's not maybe unreasonable for the court to say we need to get a little more specificity without going all the way down to which some judges have argued. And we've seen district courts and appellate courts find that, you know, each of these employment disputes, each of these contract disputes has to be taken individually to the MSPB or to the Court of Federal Claims and adjudicated there on their individual merits as contract claims or as employment claims. I don't think this court was weighing into that debate at all in this particular instance. They have in a few other cases, but with kind of mixed results. But in this case, I really think this is actually just about the nature of this injunction. Judge Olsten was acting, again, prophylactically, I think is the best way to think of it. She really was saying, I know what you're doing, executive branch, and we're not even going to get there. We're going to stop this, nip this at the bud. I think they're saying even in extraordinary times when you're we are the Supreme Court and we are dealing with a co equal, to borrow frequent language, the court uses branch of government. We shouldn't be acting prophylactically, at least to that extent. We actually have to wait for the executive branch to try and do something illegal and then we can enjoin that we can evaluate, we can do whatever we want. But here it's not even clear that they've actually tried to do it, even though there is pretty compelling evidence that that's what they intended to do and almost certainly will do now. And somebody pointed out in the chat, I'll mention it here, I missed this, but it's really useful. Judge Ellison has directed the government to produce the RIF plans by early next week. So at that point, then we'll have a clear idea about what exactly the agencies are planning, as will the different parties. And presumably they can pursue more direct legal challenges than them. Again, my guess, I think they're probably going to do it separately, particularly in light of CASA and the approach nationwide injunctions. Obviously, this court is skeptical of overly broad relief to overly generalized categories. So it's probably going to be multiple different types of litigation. But having those plans on board gives you something to sink your teeth into. And, and then what this court decided really isn't restrictive at all. That's why I don't think in the end, it's actually that significant on certainly on the merits of the ability of the Trump administration to pursue these sorts of restructurings.
- [14:14]
Benjamin Wittes
All right, one agency, Purdue, did some something of that nature today. Tell us what's going on at the State Department.
- [14:26]
Roger Parloff
Yeah, I mean, we've, we are getting reports of 1300 ish rifts or terminations. I think a little north of 13, about 1000 to the civil service and the State Department, about 300 to the foreign Service. Although it's worth noting overseas deployments are reportedly still being reviewed. So there may yet be additional cuts from the Foreign Service and from overseas deployments. I think the 300 foreign service people being cut currently are mostly those on domestic deployment and offices that are being terminated. You know, the actual formal reporting of this, I think, is coming together. I'm a former State Department employee. I spent all day texting and talking to people about it. It is, as far as I can tell from anecdotally, extremely arbitrary. People are being cut with years and years of experience, whereas junior employees are staying in place simply based off what offices they're being they work in. Huge reservoirs of institutional memory are being vacated because they are, for example, planning to consolidate the front office and human resources components for all the different bureaus, which are currently managed separately in one office, meaning they're eliminating a lot of the people who do that sort of work, which I find slightly terrifying if I were a State Department employee dealing with those processes. Normally, a ton of people at a variety of different policy offices are being shut, and there's still a lot of ambiguity because they're being done in batches. So not everyone who's going to get RIFT has heard yet. We got reports that it was going to come over a number of days. It does seem like a lot of them have come today. Like almost every office has been hit by some degree of rift so far, but there may be yet to come. And reportedly the total kind of downsizing coming, the State Department in this wave, in this restructuring is going to be in the vicinity of 3,000 people. It is. The number of people being terminated is only 1300 because about 1700 people have already taken the fork opportunity that was on the table until about Memorial Day, as I recall, or otherwise departed the department. So pretty substantial downsizing. And the point I will throw in there, which I will just point in there. Again, as a former State Department employee, State Department is the most under resourced federal agency there is for the scope of its mission and the scope of activities it has to undertake. This is a really, really dramatic capacity undermining for really important agency doing important things at a dangerous and important time in the world. And the sheer numbers, while the sheer number of people being terminated doesn't compare to certain other agencies, we've seen other agencies fire people in the tens of thousands. The impact on the, on the agency, on the department, I think is going to be pretty substantial and it's going to make Marco Rubio's job a lot harder. So I think it's a step he's going to yet live to regret.
- [16:59]
Benjamin Wittes
And what is the relationship between the State Department rifts that are going on now and the litigation at the Supreme Court and now back in front of Judge Ilston?
- [17:13]
Roger Parloff
I don't believe any. Because I don't believe this. Now you have me second guessing because I should go back and double check that.
- [17:18]
Benjamin Wittes
I do not think you're right. I think it's unconnected.
- [17:20]
Roger Parloff
I don't believe the State Department was one of the agencies enjoined by Judge Elston's preliminary. I will actually double check that to make sure and I'll correct myself if I'm wrong on that later in this discussion. But my recollection is that is not included in that. We've had the reorg plan on the table for a while. We've known that this scale of cuts. To their credit, the State Department has not ambushed people the way other agencies have, at least in terms of the macro level planning.
- [17:43]
Benjamin Wittes
Yeah, they've been signaling this for months now.
- [17:46]
Roger Parloff
Exactly. Down to the same number of people. Has been pretty consistent. This 1300-1400 number has been pretty consistent for the last several weeks. So we knew was coming. What people didn't know is what components, what offices. Some people did know the drl, Department of Democracy Rights and Labor Bureau, which is kind of the human rights office, is being removed and decimated. Global Criminal Justice. A lot of offices that deal with issues the Trump administration is not a fan of are being decimated and removed, if not eliminated entirely. And so those people had a good sense that they were on the chopping block. Many of them took the fork and already left. But we are seeing a variety of cuts on again, lots of bureaus, almost every bureau is getting hit by some degree of cuts in some capacity. And that's, you know, it is A real resource constraint for a department that is often already stretched extremely thin.
- [18:35]
Benjamin Wittes
All right. We will keep an eye on the State Department situation. Scott will look into and make sure that we are correct. He and I both have the same instinct, which is that the relationship between this and the, and the litigation is timing, coincidence, not a, not a direct result of what the Supreme Court did. But let us turn to what is the direct result of a Supreme Court emergency docket matter, which is that we have a new nationwide injunction on birthright citizenship. What is old is new again, Scott, you know, meet the new injunction, same as the old injunction. What's going on here?
- [19:29]
Roger Parloff
Well, I'm glad you said nationwide injunction. Justice Barrett will be immensely relieved to hear you say that. And not universal injunction.
- [19:35]
Benjamin Wittes
Right? It's not a universal injunction.
- [19:37]
Roger Parloff
We're all living in Europe. Class, class certification.
- [19:40]
Benjamin Wittes
It's a classy injunction is what we're going to call.
- [19:43]
Roger Parloff
Yes, exactly. This is in Barbara v. Trump, a case in the District of New Hampshire. There's one the ACLU lawsuits challenging the birthright citizenship. I don't think it's actually, I have not been checked the exact status of all these. I actually don't think it's that big a surprise. This was the first case to reach the status because the judge came in immediately after the CASA decision on universal injunctions, said essentially we are going to speedrun this at the request of the plaintiffs to I think over the course of 10 days was the schedule that set out completely brief, brief this class certification question and resolve it so that there's lots of time to appeal it all the way up to the Supreme Court court, But in the 30 day time frame that the court has stayed its own decision on universal injunctions. So because of the court was very aggressive in pursuing it, it hit that timeline and now we have a resolution of this issue to, to the judge's immense credit, essentially what the judge determined is that she provisionally certified a class or he presently certified a class. Excuse me.
- [20:43]
Benjamin Wittes
And just to be, just to be clear, for those who either don't remember CASA because it was, you know, a week and a half ago, or who never quite understood it, CASA said you cannot issue a universal injunction. A single district judge cannot issue a universal injunction that binds the beyond the parties to the case. But of course, the parties to the case can include a class and a class can be nationwide if it meets the, if it meets the standards for a nationwide class. And so what Scott is saying here is when the class certification is a way around the nationwide injunction band and a way of effectuating nationwide relief against a. Against the executive order while it goes up for Supreme Court review.
- [21:52]
Roger Parloff
Yeah, exactly. And so in this case, what we saw the plaintiffs motion for is that they renewed a request to certify a class for essentially the same group of plaintiffs that have. They've been representing, which is the individuals, the. The children who will be affected by this in policy that the Trump administration is implementing and their parents. Interestingly, Judge. And this Judge LaPlante in the district court said, essentially, I am going to grant a provisional class certification. That's usually what's done. There is some debate as to whether that's appropriate, but that is usually what you do at this stage where you're evaluating a preliminary injunction. Again, this is all provisional. It's all preliminary relief. So maybe the judge reaches a different conclusion eventually when ultimately weighing the merits, but for the purposes of the preliminary injunction, he reached a provisional conclusion for a provisional class certification. But he said, I'm going to apply Rule 23 as a federal rule of civil procedure that governs class certifications. Looked at this request of the plaintiff. He said, actually, no, I'm not going to certify as brought a class for the reason that parents are clearly affected by this policy. They clearly affect a lot of different ways. But the types of harms they suffer actually aren't what squarely addressed in the complaint. The complaint is about the constitutionality of the policy and the loss of citizenship for the actual children. And those harms are different both across that class, because different parents may have different relationships with their children, their children's citizenship status, and are different than, more importantly, the harms the children will suffer. And this is really indicative of what a lot of courts are really going to wrestle with in the aftermath of the CASA decision, which is that Rule 23 requires, among other requirements for class certification, that the class have pretty similar torts of claims look a lot alike. And that's something the Supreme Court has really engaged with pretty skeptically over the last 20 years or so. There have been a number of cases where, including one this term that actually ultimately got dismissed as improvidently granted. But Justice Kavanaugh wrote a dissent from that in where he essentially said, I think this class was overly broad, where they say, we. You really need class members to all sort of look alike. And now the next big question on these cases is going to be, well, how far does that go? How far does that stretch? How diverse plaintiffs can be members of the same class in the birthright citizenship context? It's not that hard because they are really, really similar. Lots of other cases that have relied upon universal relief, including, like the foreign assistance cases we're going to talk about later today. That's a much harder question. So it is something that we're going to see litigated over and over and over again. Rule 23 allows for interlocutory appeals on this class certification question. So that is where this is going now. We have this provisional class certification. It is expected to be appealed. The judge actually stayed her determination for seven days pending appeal. I think it's fully anticipated. She's expecting it to be, or he's expecting, pardon me, to be appealed. Ultimate. The Supreme Court, who's going to have to decide on this or, you know, deny, cert on whether or not this is a properly construed class. I don't think it's a hard question for this particular set of plaintiffs in a lot of cases. It's going to be a really hard question. And we're going to see a lot of case law on what is a legitimate class and what isn't, particularly in this sort of public interest litigation context where, because of the use of universal injunction the last 15 years, we haven't seen that many public interest class certifications. So it's, it's, it's going to be a very contested legal issue moving forward.
- [25:08]
Benjamin Wittes
And Scott, let me just ask you, I mean, one of the reasons that class, the Supreme Court has really tightened up on class certifications over the last 25 years is that you have these giant plaintiffs law firms that are, or, or plaintiffs law firms that try to certify these giant nationwide classes. And the court has the impression, and in my judgment, rightly so, that the principal beneficiary of a lot of these class actions are the lawyers. You know, you get these huge classes. You get these immense settlements. You take 40% off the top, and then, you know, tens of millions of class members get a pittance. Right. And the court is super skeptical of that. And frankly, I don't think they're wrong to be. It seems to me a really different matter when you're asking for injunctive relief against a policy and you, you're saying, look, we're not asking for, you know, 30 gazillion dollars of which we're going to take half and, and divide the rest by the number of people in the class. We're asking for an unconstitutional policy by the government not to be enforced. And by the way, the consequences for any one of the class members could Be dire at a moment's notice. Do you think there's any, Is there any reason to think that the, when you're not asking for damages and you're dealing with a public party like, like the federal government on a policy matter rather than a private action for recovery of damages like the tobacco industry. Right. That you, you. That, that some of the anxiety that people have about the Supreme Court's class action standards might be like they might take a very different attitude toward it in the context of injunctive relief, or am I just fantasizing there?
- [27:19]
Roger Parloff
I worry that might be optimistic. It's possible. I mean, I certainly see the logic there. But a, the case law doesn't distinguish between public interest and private interest class certifications. So the same determinations that the district courts are going to be wrestling with, the precedent they're going to be juggling doesn't draw that sort of distinction. And you know, the logic, you see a lot of judges, including Justice Kavanaugh in that dissent I mentioned on the case that got digged this term, if I recall it correctly. You know, part of it is the essential logic that if this isn't important enough for a plaintiff to litigate, maybe it's not something that we should impose the costs on a company or the government or the defendant to really have to deal with. It's only when you aggregate it that it becomes an issue. And yeah, in the, in the private sector context where you're talking about $5 of damages for each plaintiff, that provides kind of perverse incentives for lawyers to say, yeah, but you get a million five dollar payouts or 10 million, and I get 40% of it, that's actually a good chunk of money. That's something that people may object to. But the logic is there for, you know, smaller scale public harms as well. And so the real question is like, where is the incentive there? The same logic still kind of applies. Is this really a burden we should put on the government? But these are real harms that people are really suffering. And I think the bigger issue here really is that you have public government, public policies. The same policy affects Americans in really diverse ways, in really different ways. All of it can be bad, all of it can be very real harms. And so this alikeness requirement, when you're dealing with often non pecuniary harms, non monetary harms to American citizens, which is much more common, you're talking about public policies that are being wrought. The commonality is just not there. But all these district courts are made dealing with precedents that come from the context of private claims and, you know, financial harm. So I think it's going to be really messy. I think you might see some courts push back on that logic as you're describing. I don't know whether the Supreme Court will buy into it or not. We'll have to wait and see. I certainly hope. I think they need to, or else they're going to have to deal with a lot more litigation, which they ultimately may not want to do, and maybe they'll come around to that view eventually. But in the initial instance, I am a little more skeptical.
- [29:27]
Benjamin Wittes
I think it's a really dangerous area because I think. I think a bunch of those justices are, you know, skeptical of class actions for, you know, for reasons that I'm not unsympathetic to. And. But they're really thinking of the sort of big evil corporation of America. And commonality is, you know, we all ingested asbestos. One of us is dying of mesothelioma, and the other is. Is asymptomatic, completely asymptomatic, but shows up as a, you know, has having some kind of asbestosis on a screen. Right. And this. I don't think the Supreme Court is wrong to say, wait a minute, a mesothelioma patient and somebody with, you know, sort of mild asbestosis do not have the same harm. Right. That's not a commonality question. I do think when you're saying my child is entitled to citizenship and the government isn't giving them their citizenship, and the result is that they're treating them as an illegal alien and they may be deported, and you've got a lot of, like, there's a lot of commonality there. That's, that's sort of inherent. And, and so I would hope I was started thinking about this because Sam Alito wrote this very grouchy concurrence saying it's really important that we enforce our, you know, that we do the exact opposite of what I think is important here, which is, you know, that, that we not treat, you know, that we insist on commonality, on common harms, on, on, you know, similar effects and all these things. And I was just like, whoa, you know, I, I understand that. I understand where that comes from, but, boy, is that wrong when you're talking about the federal government enforcing unconstitutional policies. So I was, I was moved by Sam Alito to think about it a little bit and unsurprisingly, came to some different conclusions. All right, we're going to break this up now and go talk about Kilmar, Abrego Garcia, and then go back to the subject of dismantling federal agencies before coming back to the subject of, of the other immigration cases. Roger, Anna, you guys were both at the Kilmara Brago Garcia hearing on was it Tuesday or Monday?
- [32:14]
Anna Bauer
It was Monday, Wednesday and today.
- [32:18]
Benjamin Wittes
All right, so we talked about Monday, the Monday one on Tuesday. So let's. Roger, give us the briefest of brief summaries of Monday.
- [32:31]
Anna Bauer
Oh, so that was a hearing about three, you could say, four motions. And, but and she made some preliminary findings about two of them. She wasn't going to dismiss. One was a motion to dismiss. That one's rejected. One was a second motion to dismiss. That's basically about mootness. That's sort of still on the table. That's the idea. Obrega's back. That's what you asked for. Isn't this case over? That's the government's position. And obviously it's not Abrego's position. It has to do with. Well, the order said restore the status quo ante, and that hasn't happened yet. But really, the, the big motion is the one that they filed. It's called a motion, an emergency motion for relief. They're worried about what is going to happen if he is released from criminal custody. And he will. Then there's a detainer, he goes into ICE custody. And the trouble is they're worried that once he goes into ICE custody, they will whisk him off to either a third country or to even El Salvador again. And they want to make sure he gets some sort of due process. So that's the key one. There's also a motion to file an amended complaint, which we, we didn't really get to yet. That's the one that makes torture allegations. And so she wanted to decide this emergency motion. She wants to know more about the process. And ideally she wanted to know, what are you going to do with him? And they were pretty clear. They're not going to tell her what they're going to do with them. They're going to, they're taking the position that, you know, nobody knows. We haven't thought about it. This will, you know, if he's released, then he goes to a case agent and, you know, he goes to a detention center, and the case agent at that detention center will start deciding, well, how are we going to deport him? And she doesn't buy that. And anyway, so she wanted to hear some testimony. And we heard four hours of testimony from an ICE official yesterday. And then today was oral argument about the upshot and should she issue a tro, a temporary restraining order that would give him some protection. If he's released the next week, on Wednesday, there will be a new detention hearing. The detention hearing that occurred was in front of a magistrate judge, and she said that she. If. If it were up to her, she would release him. And with a magistrate, you get a chance to appeal to the US District judge. The US District judge did not stay the ruling, but we'll give a new hearing that's going to be Wednesday. Anna's going to attend in Nashville. And so the concern is, you know, theoretically, as soon as Wednesday, I don't think that'll happen. The judge, Waverly Crenshaw, could release him, and then, you know, there could be this mad rush again. And that's why she wants to. She's worried that plaintiffs want something in place there. So, anyway, maybe I'll turn it over to Anna to. To cover in more detail.
- [36:20]
Benjamin Wittes
Yeah. So, Anna, that's Monday, and then. And then we had Wednesday or Thursday and Friday, right?
- [36:32]
Scott R. Andersen
Yeah. It was a long week in the Abrego Garcia case world. I'm really tired, actually, because I expected that the hearing on Thursday would last two hours, tops. This hearing, as Roger just explained, was related to this emergency motion to return Abrego to the District of Maryland if he is released next week in Tennessee from criminal custody. Because, remember, the whole idea is that, you know, he's going to go from criminal custody to immigration custody. And then the question and concern from the plaintiff is what happens once he's in immigration custody? Are they going to whisk him away to a third country as they. Or, excuse me, to El Salvador or to a third country as they did before. And so this motion, at first, it was, you know, we want him to be returned to the District of Maryland, and we want an injunction that basically prohibits his removal from the continental United States unless there's, you know, further order of this court. And then ultimately, they kind of shifted it a little bit to be more so that the minimum requested relief is, you know, give us, like, a pause between that, you know, getting out of criminal custody and then potentially removal to another jurisdiction. You know, give us some kind of, like, little thing to work with. Set 48 hours, 72 hours, so that if they do plan to remove him, he at least gets notice. He at least gets opportunity to be heard, you know, something to that effect, that kind of ensuring that there is due process for our Brigo Garcia if he is removed, transferred to immigration custody. So as a part of the argument around this specific motion that occurred on Monday, Judge Sinis is asking all these questions, as Roger explained, trying to get to the bottom of, like, what is exactly the plan for Mr. Abrego? And no one can say. And so she orders DOJ to produce someone on Thursday for an evidentiary hearing. The order specifically required someone with personal knowledge or who has acquired, you know, knowledge from people who do have personal knowledge about what the government's plans are for Mr. O', Brago, you know, a number of different subjects about the government's intentions if he is released from criminal custody, transferred over into immigration custody. The guy that they choose to come in on Thursday for this hearing is Tom Giles, who is a senior ICE official. He's the Assistant Director of Enforcement and Removal Operations. So he shows up for this hearing that was scheduled for 1 o'. Clock. Again, I, I want to reiterate, I really did not think that this hearing would last that long. And we get in there and it turns into a like, five hour plus hearing then, in which, you know, we have direct examination by the government. There was an individual, a new attorney named Roger. Help me out here. Cogasta. Is that how you pronounce it? It.
- [40:02]
Anna Bauer
Sarmad Kojasta.
- [40:05]
Scott R. Andersen
Kojasta. Okay. So Mr. Kochista, you know, does the direct examination. And it was kind of expected, I think, by anyone who's been following this case, who's been going to the hearings, that it was seemed very likely that the government was going to produce someone who maybe didn't really have a whole lot of knowledge of. Of what was going on there. You know, the kind of line that they've been saying over and over again even before this is, you know, we don't know what's going to happen to him. He'll either be removed to a third country or will kind of reopen his immigration proceedings and try to get that withhold of removing to El Salvador removed. So we go into this hearing on direct examination. The government gets Tom Giles to basically just kind of talk more generally about what typically happens in removal proceedings. And there's this DHS policy memo that was issued in March 2025 that was a big subject of the direct examination and the hearing as a whole, in which it kind of sets out what, what the process is for third country removals. And again, you know, Tom Giles kind of just more generally walks through explaining, you know, what happens with third country removals. He seems to suggest that, you know, an individual will receive notice of their removal. That they will have an opportunity to express of reasonable fear of persecution or torture before they're removed to that third country. And then that might trigger some further procedures that might ultimately end up being referred to an immigration judge. And so the whole point of this kind of line of questioning is to suggest that Mr. Abrego is going to. There's all these processes, and he will receive these processes if he is. If the plan is to remove him to a third country. He also testifies that things to the effect of, you know, as far as he's aware, there are no plans. Because the reason why there's been no determination about a third country he might be removed to, if that's the option they choose, is that they don't make those decisions until someone is actually in immigration custody. He also claims that once Mr. Obrego is in immigration custody, he will be treated like. Like everyone else, in which he's assigned to a case officer, and it is that case officer who makes these determinations about whether his withholding of removal will be reopened or he'll be removed to a third country and then which third country it is that he is removed to, if that's the option that they choose. So that's kind of the gist of his testimony. It takes a long time to get through it, at least on. On the direct examination and the cross examination, in part, because he. There are times when the questions have to be rephrased two or three times because he. He doesn't seem to understand, you know, what is actually being asked of him. And. And then in the cross examination, I think that a big part of. Of what the cross focused on by Sasha Rand, who is Abrego's counsel, who handled the cross, was focusing on the fact that this is not someone who has personal knowledge. And then also that the direct examination didn't really seem to get into the fact that if you read the DHS policy for third country removals, seems like there's two tracks. One is that you get certain processes, as you might in a typical immigration removal process. But then the other track is if a third country has given diplomatic assurances that someone won't be tortured or persecuted, then the DHS policy memo says that no further procedures are required. And so that might indicate that even if Mr. Abrego does express reasonable fear, that might not trigger the typical credible fear interview and these other processes that you might get in a usual immigration proceeding. So that's kind of where we ended. We got so late in the day, Ben, that we ended up having to Take a little break while DOJ figured out, you know, whether they wanted to come back the next week or after Judge Crenshaw makes her decision. Judge Zini's suggested maybe she would just go ahead and enter a tro. If so, because, you know, she was like, I don't still don't have a good idea of what's going on here. I think maybe, like, you know, maybe what I do is enter a TRO so that there's a little gap between the criminal custody release and then, you know, whatever might happen with removal. And DOJ didn't want to do that after they came back. And so they ultimately scheduled for to return today to have oral argument. And I'll let Roger talk a little bit more about what happened today because we had about three hours, I think, Roger, of oral argument on what happens next.
- [45:55]
Benjamin Wittes
Yes, Roger, pick up the story. It's, you know, two days hearing down now it's Friday morning. And what happened today, she did, she.
- [46:11]
Anna Bauer
Let off a little steam today. She, it was allowing arguments on what we'd heard yesterday. She was saying that, um, like she would say, you're relying on this notion that he'll be treated like every other person. And this guy Kozeste said that's the evidence in the record. And she said, and that evidence is incredible. And he also, the fact that he hadn't. The expert, Giles hadn't even spoken to the office that would likely be making the decision on what to do with him. She said that's an insult to my intelligence because she as, as, as, as Anna said she'd provided all these questions she wanted him to be able to address. She also said.
- [47:16]
Scott R. Andersen
The presumption of a regular, of regularity is destroyed. According to Judge Sini's.
- [47:22]
Anna Bauer
Yeah, that's right. So that was another big one. And then there was one point that might be less important because I think it was a little. He made one flip comment and she responded that if that's where we are, you can sit down right now and something like, we can all go home right now. But I think that even on the substantive stuff, she was sort of shocked. And Giles, for instance, Giles, you know, was a 24 year veteran of ICE, but, you know, the truth is he had only handled one third party third country removal because they never did this before January 20, 2025. So experience doesn't really matter. The memo we're talking about, like Anna said, it's marked March 30th of this year.
- [48:17]
Benjamin Wittes
I mean, just, just to give you an idea of like Roger is not overstating this. This third country removals happen on this extremely bespoke basis. When you have people like Zadvaidis or, you know, people who you can't effectuate their deportation for some reason. You're also really, really resistant to letting them out on the street in New York because they're say, career criminals or something. And then you go through these years of negotiations with countries to find a place for them. It's not. This is not something that you did en masse until a few weeks ago.
- [49:00]
Scott R. Andersen
Well, and one. And one of the things that was so frustrating is that on cross, Rand tried to get at this that it is very unusual that it is relative to other immigration removals. The third country removals is a very, very small proportion relative to, you know, removals to a country of origin. And, you know, Giles was just totally unwilling to agree that it's unusual, which really the credibility, like it was not credible.
- [49:37]
Anna Bauer
He'd said he'd only done one in 24 years and it was unsuccessful. And that, you know, he's done. He's been involved in probably, you know, thousands upon thousands. And the other thing that really struck me was and he did not know what refulimon or refuliment is. And in fairness, I didn't know what it was, you know, a month ago. But I'm not an ICE official. Refulimant is sort of crucial to what's.
- [50:09]
Benjamin Wittes
Anybody who spent any time on the Guantanamo cases has spent quality time with the non reform doctrine.
- [50:17]
Anna Bauer
Yeah, the whole problem with third party. A key problem with third country removals is, for instance, if you sent Abrego to Mexico, Mexico might say, okay, he's not Mexican. And you say he's Ms. 13. Why do we want him? We're sending him back to El Salvador where, you know, he had a withholding of removal that's double refoulimo or. Or chain refoulement or chain something. And it's sort of basic and he'd never heard of it.
- [50:53]
Scott R. Andersen
Well, but he also just didn't like. It wasn't even that the term was unfamiliar. It was that he could not understand what we were getting of that you might send someone to country X even though they're prohibited from going to Y in order to get them to X so that X can send them to Y. Judge Zini's tried to explain this to him. The council tried to explain it to him, and he just could not even comprehend the idea of it.
- [51:25]
Anna Bauer
So anyway, long story short, the. She's gonna. She didn't make a ruling right there. She's gonna try to make one as soon as she can. She's gonna certainly make the ruling before Wednesday, which is when, you know, conceivably, I don't think he will, but conceivably, Crenshaw could make a ruling.
- [51:42]
Benjamin Wittes
So this is just to be clear. We're expecting a ruling from her in advance of. Excuse me, the criminal case ruling as to his continued custody and bail. Is that.
- [52:01]
Anna Bauer
That's right. And I wouldn't be surprised to see an instant attempt to go as right to the Supreme Court saying, this is. This is moot. It's no jurisdiction. It's not right. So on.
- [52:13]
Benjamin Wittes
All right, so we have one more thing to cover on Kilmar Abrego Garcia, and it's his criminal case, because we have a piece about. Quite an exhaustive piece about the last detention hearing. And also we have a detention hearing coming up, which Anna is going to attend. So, Roger, tell us a little bit about the detention hearing that was. And then Anna, tell us a little bit about the detention hearing that will be.
- [52:51]
Anna Bauer
Well, my story is about the detention hearing June 13 in front of the magistrate, Barbara Holmes, and she, of course, did. Would have released him. And I, I. It's a deep dive. So you can get a feel for what the evidence is, um, because you can't really understand the detention hearing without understanding the criminal case, and you can understand the criminal case without understanding the civil litigation over the wrongful removal. It becomes a big piece. It's all about political messaging. But I think what you can see is, you know, in the new case, in. In the new hearing, they will be permitted to try to shore up the weaknesses. And. And I'm certain that they will. They might call an additional witness. There was only one witness this time. And there's certain topics that are, you know, the most sensational thing of all that Pam Bondi announced when he arrived here June 6 was he said there's. She said there's this allegation that one conspirator says that. That Abrego told the conspirator that he participated in a murder and that that was how he got into Ms. 13. Well, this would have been powerful evidence at the bail hearing because it would show. Tend to show he was Ms. 13, and it would tend to show he's dangerous. Things that are relative, relevant to detention. Also, detention has really lacks evidentiary rules. You can get multiple layers of hearsay. None of this could possibly come in at the trial. It's too prejudicial. And irrelevant to the charges, which are just human smuggling. So it's sort of now or never. And they didn't mention it, you know, at the first hearing. So I'm assuming whatever it is will probably hear, unless there's something bizarre about, about the quality of that evidence. So that's what I'll be looking for.
- [55:05]
Benjamin Wittes
Anna, what's happening on Wednesday?
- [55:09]
Scott R. Andersen
Yeah, so we're gonna have another detention hearing or combination, you know, do they have. They met the threshold for detention hearing last time? What they did is kind of do it all in one. But I think that it's go, you know, this last hearing that they had, it was six hour hearing. And to some extent it was a bit like a mini trial. Ben. There was a lot of. Obviously there was only one witness, but it was one of the case agents on the case who testified about a lot of different areas of the investigation that relate to the evidence. And so I think that we will maybe get an even better understanding of what exactly the government has. But we do know from filings that the government has made in the interim period that they do intend to produce some additional evidence. For example, they mentioned in one of their filings in a footnote that they intend to include phone records that they say show Mr. Abrego on the phone with one of the cooperators who has been identified in the press as Jose Ramon. Oh my gosh. Roger, help me. I'm sorry, I'm blanking on the name Jose Ramon Hernandez Hernandez Reyes. Reyes. Thank you. Jose Ramon Hernandez Reyes, who Abrego says in the this, it's actually interesting to me because the government talks about how they're going to produce these phone records. But in the video, Abrego says, you know, this is my boss that I'm calling. That kind of is undisputed. And the government is suggesting, you know, that these phone records kind of, you know, prove up their case. But you know, if you, if you take. It's all consistent as well with what Abrego's defense counsel has represented in terms of or defense argument has been in terms of that he was calling his boss. So point is, I think that we will maybe get some new evidence. We don't yet know who the witnesses will be. Will it be the case agent again, will it be multiple people? One of the big kind of issues that the magistrate raised about the evidence that they presented at last hearing was that they didn't produce, for example, the trooper who was one of the people who actually, you know, pulled over abrego during this 2022 stop is the guy who said that he took passport photos of the people who were in the car who would have been able to see if there was a minor child in the backseat, which is what the government is saying, would have been the person who actually took the names of the and birth dates of the people in the car. So there's this question, you know, will they maybe try to have someone like the trooper or someone else there to try to shore up the reliability of the evidence, which is one of the big concerns that the magistrate had.
- [58:39]
Benjamin Wittes
All right, Scott, we are you and I have miss collectively misinformed the audience about the relationship between the State Department riffs today and the Supreme Court decision. Mea culpa, mea culpa, mea maxima culpa. Correct us ourselves.
- [59:04]
Roger Parloff
Yeah. If there was ever a doubt that we do in fact to do this live and do not plan our QS and as in advance, here's evidence of that that we were wrong. The Department of State was one of the agencies enjoined in the AFGE v. Trump or Trump v. AFGE case Supreme Court decided under Judge Ilston. And actually, more than that, digging into the docket a little bit during our Abrego Garcia discussion, it looks like there actually was a very specific question as to whether the State Department reorg plan it had filed and various other statements that it made were covered by the injunction. The judge actually clarified it just a few weeks ago, saying, yeah, these are covered by by the injunction. You cannot move forward with them. So it's worth noting that, yeah, it probably is not a coincidence that this happened this week. In fact, this might have been a response to this Supreme Court decision, although the timing is something that they had had been signaling a little bit in advance as well. So so there might be a combination of factors there. It's also worth noting this is part of the reason why we're getting this discovery in early next week that Judge Olston has asked for is again, a remedy, something that the plaintiffs asked for so that they can pursue additional litigation, potentially do and join this. And that may yet come in the State Department case as well if the council are actively representing them. So we'll have to wait and see. Early next week, maybe we will see another action. And in prior cases that had resulted in the suspension and reversal of the issuance of rifts. Think of the CFPB and a few other contexts where that's what's been the result of litigation. So there may be some silver lining there for some State Department employees next week. But we'll have to wait and find out where the courts land on that and if somebody stands up to litigate it.
- [60:36]
Benjamin Wittes
All right. Meanwhile, it has been a banner couple weeks for agency dismantling and for litigation over that. And so I think we're just I'm just going to turn it over to you for the next few minutes. Scott, give us an overview. You're our contestant this week on who wants to dismantle a federal agency. Which agencies are we taking apart?
- [61:04]
Roger Parloff
A number of them. And it is has been a really busy couple of weeks. And it's worth noting it is all coming to a head. Not a cool coincidence at the end of the fiscal year. So a lot of the impoundments issues are we're approaching the end of the fiscal year, so the impoundments issues are really coming to the fore, which are integrated with a lot of these issues. We're seeing personnel actions and in a lot of these cases. So they're really hitting a point where the litigation is getting to some really trigger tricky questions. Let's start with Whitaker Swara v. Lake. This is the litigation in D.C. district Court and the D.C. circuit that relates.
- [61:35]
Benjamin Wittes
The distinction of the most impossible caption to pronounce of any in the Trump era.
- [61:44]
Roger Parloff
I'm very proud of myself for having pulled it off.
- [61:45]
Benjamin Wittes
I think I just want to point out that that Scott just did it with aplomb. I mean.
- [61:54]
Roger Parloff
I have been talking about this case a lot, which helps for better, for worse. I think it's a very important case that people haven't been paying enough attention to. I wrote a piece about it maybe a month or so ago for Lawfare that's probably due for an update, if you all recall. And as I detail in that piece, essentially after this matter went to the D.C. circuit, then en banc D.C. circuit, we ended up in a situation where three prongs of the original preliminary injunction issued by the judge, one was barring people from being removed or fired.
- [62:20]
Benjamin Wittes
Two is barring usagm, the VOA and.
- [62:24]
Roger Parloff
Voice of America can case exactly. Two relating to the cancellation of various grant monies and contract monies three relating to meeting the statutory mandate of these different agencies and organizations. The the two prongs of litigation, the first two prongs preliminary injunction are being debated and are being appealed to the DC Circuit. Notably, we got the panel and the DC Circuit assignment in the last week and a half of this. It's going to be decided or heard oral argument in September. It's not a very Friendly Panel for U.S. agency for Global Media staff. It is Walker, Katz and Rao, which is pretty extraordinary. All three of them dissented from how the en banc court handled the funding issue that they're hearing. So we know how they're going to come out on it. Probably, and probably the en banc may come out the other way. So we may not get resolution for yet another step beyond that. But regardless, in the District Court, while it's all happening, there's still that third prong of the preliminary injunction that says the government has to meet the statutory mandate of of these agencies. And as the en banc DC Circuit kind of signaled, as I wrote about in my piece a few weeks ago, it signals that that can include enjoining people. If you terminate too many people to meet your statutory mandate or you cut too much funding to meet your statutory mandate, that third prong of the injunction still stands. And that's something that district court judges today should be evaluating and ensuring compliance with. Well, the plaintiffs have taken the government and the en bang DC Circuit up on that. They fired filed a number of motions in the last few weeks trying to enforce the injunction or to show cause why the government is not violating the injunction. They got a big win on that. Just in the last few days, Judge Lamberth, who's overseeing this case in the District Court, basically came and said, hey, U.S. agency for Global Media, I've gotten all your explanation about how you're meeting your statutory mandate and I don't get it. Here are a bunch more questions. Give me an expedited response the next few days. It's not a is not yet enjoining the termination of UA employees that the VOA is pursuing and the U.S. agency of Global Media pursuing It's not. Yes. Yet mandating that they expand their services beyond just rebroadcasting OANN and pursuing, you know, three or four foreign language services as opposed to the 48 they used to do. But the judge is asking very, very targeted question. The judge, in my view, is laying a foundation for being able to issue injunctive relief later by really establishing a a factual basis for saying, yeah, you're clearly not meeting your statutory mandate. Here are the elements of the statutory mandate and here are the things you are and aren't doing and the things you can't give me answers to. And notably, that's the relief the plaintiffs actually asked for. They didn't go forward and ask for additional enforcement of an injunction to bar things yet. They just asked for more clarification. They get. The court has to build that record to for withstand appeal and they're helping it do that. So that's actually a big win for the plaintiffs in that case, I think, and something that may yet be bear fruit. Meanwhile, in another case, the AIDS Vaccine Advocacy Coalition of the Department of State case, also Global Health Council, it's referred to by both captions somewhat confusingly. A lot of big developments in this case. This is the case about a huge array, probably the largest swath of foreign assistance funding was the very first case to go up to the Supreme Court on the shadow docket under the Trump 2.0. We had oral argument on the conventional appeal to the preliminary injunction that's in that the district court issued in that case before the D.C. circuit, this before judges Henderson, Katz and Pan. So what you might not think is a super friendly panel, I will say the government did not get a very warm reception by my hearing in this opinion. I was not there in person. I have listened to the audio.
- [65:47]
Benjamin Wittes
I mean, Henderson has not been like a friendly. I mean she's a, she's one of the old lion conservatives of the D.C. circuit, but she's been, you know, she's been quite an unpredictable as a Trump, as a pro Trump vote, including on, on before the administration on issues of presidential immunity. I mean she's, she's been an interesting voice in the last year or so.
- [66:24]
Roger Parloff
She is, she of course wrote a very JGG too. I think that's exactly. She wrote a really compelling opinion. Yeah. In those cases, in the agency dismantling cases so far, she has joined most of the other Republican appointees and essentially saying under the Tucker act, under various other statutes, employment and contract disputes should go to other courts, which has been the main government line of arguing argument. Although not directly at issue here, here, this case is really focusing on this impoundments question because the existing preliminary injunction really sits on is there a statutory mandate the government is failing to meet in a manner that is unconstitutional and or in violation of the Impoundment Control Act. That is something this court can enforce, the district court can enforce. That results in the government having to spend this money and then more specifically having to spend this money on the plaintiffs in this case who are the original intended recipients of this foreign assistance funds. The panel, the debate really started hinging on a lot of very technical questions. The government is making a very technical argument that in fact, the plaintiffs aren't able to enforce the Impoundment Control act or other statutory cause of action, therefore have to make a constitutional argument that they say isn't a remedy that you can pursue in this case. The plaintiffs say, we never conceded that that's the case. We're making all these arguments, but in fact, this is essentially a Youngstown, you know, constitutional compliance, separation of powers type issue in the first place. That has statutory implications. But we're not trying to enforce the Implementation Impoundment Control Act. We really are looking primarily at this constitutional separation of powers. While a lot of the debates center on those issues and an effort by the government to resurrect an argument it arguably waived because it was not in its preliminary brief, it brought up a whole new line of cases in its reply brief, which is something that's a big no, no in most courts, particularly in the D.C. circuit. Regardless, when it really got to the nub. What Judge Katz has said at one point, I think it's probably true, at least for this panel, is that the real question here is, is how many of these appropriation statutes expressly say, hey, government, you have to spend this money for this purpose? And how many of them say, you have to spend up to this many for this purpose, as the government was saying. And at one point he said, pretty revealingly, I read these statutes and all the ones I'm seeing look pretty mandatory to me, especially in light of the Impoundment Control Act. That's a really revealing statement. We'll see if that's where he ultimately lands on this. He had plenty of hard questions for the plaintiffs in these cases as well. Well, was a really interesting oral argument. You know, we'll see an opinion on this maybe soon, maybe not. A number of these cases have tape are still. Were two months later, like in the CFPB case. Two months later. We're still waiting on an opinion, so it could be a while, but they might move relatively quickly.
- [68:54]
Benjamin Wittes
For those of you who want a political read of this, there is no universe in which Judge Katz is. Is right, is left of the center of gravity of the Supreme Court. So I think it is. I, I think, I mean, Judge Katz is a. Is a very, very bright, able, very conservative jurist, and he is squarely to the right of both John Roberts and Amy Coney Barrett and probably Brett Kavanaugh, too. And so I think if you, if you, if you don't clearly have his vote, and much less if you don't have his vote on an impoundment inflected question, it's very hard to see how you count five votes for that position on the Supreme Court. Is that. That's a crude argument, but I think it's right.
- [69:50]
Roger Parloff
Scott I think that's exactly right. He is a very closely tracked with Roberts and Kavanaugh, leaning towards Kavanaugh, I would say. And so he's somewhere on the spectrum between the two of them on most issues, comes from a similar background, executive branch lawyer, former in the White House counsel's office like Kavanaugh was. And so I think he's got a lot of the same presumptions that are friendly towards the government. So when you lose him, it's bad. And notably the government has lost him before. He also sided with the government in Aviel v. Gore. That's the case about the Inter American Fund that basically found what the government had done was illegal there, siding with Judge Pillard against Judge Rao in that case. So he's somebody who's, who's been able to stand up on this. So I'm very curious, curious to see where this comes out again. I thought the oral argument was really interesting, But I don't 100 know where it comes out. But it was more interesting, I expected. Meanwhile, at the district court stuff is still happening because there the plaintiffs are, much like in Whitakeus wara, are trying to enforce the preliminary injunction that's still on the books. They have basically said we are getting close to the period where the appropriations for these foreign assistance programs are expiring are set to expire, and the government still has provided absolutely no plan to explain how they are going to spend this money down other than to give the money to us, which is what we argue that they should do. The district court had said, essentially my preliminary injunction is not going to compel them to spend this money moving for the rest of the fiscal year, but they have to come up with a plan to spend it on the purposes Congress has said they have to spend it on, or else you're going to have an impoundments violation. And they haven't provided that plan yet. And so we now have fully briefed at the district court level, essentially a motion to enforce the preliminary injunction to compel them to develop and produce before the court court a plan as to how they're going to spend this additional money. If they can't produce a plan, then the court's going to weigh, well, we are looking at an impoundments violation. So how do we remedy it? And then potentially is the right remedy here compelling the government to pay these specific foreign assistance recipients that the Biden administration had intended to pay, but that had since had this money pull out, even though usually the government has some discretion deciding who they do pay among different foreign assistance recipients for certain purpose. It is the bleeding edge of impoundments challenges. It's the first case that I think the only case that's teed up to approach it as squarely. It's already been the Supreme Court once. So keep an eye on this case. It's going to be a big deal. We're going to see a decision on those matters. And again, it's probably still going to be the next step is another demand for report, more information from the government, more to pressure on them to give reports about what they're going to do. But that's all building a record that the district court will be comfortable actually ruling on on the Impoundments act substantive questions. And that's not too far away because a lot of this money does start expiring September and later this year. Also note there, there's cost identification, that provision. There's been a big debate in that case saying can the injunction, preliminary injunction the court issued, actually provide relief to all foreign assistance recipients or just the plaintiffs? They've got the. The district court have previously said it can in fact be all the foreign assistance recipients after it was initially challenged by the Trump administration after casa, that argument's coming back and I suspect it will be narrowed to some extent, although we may also see additional plaintiffs kind of jump in to avoid being cut out of the relief in this particular case. Two other quick updates, because I think those are the big ones. In National Endowment for Democracy, the United States, we have a new updated superseding indictment or I'm sorry, amended complaint. Superseding indictment. Wrong, Wrong. Civil, not criminal, amended complaint in this case. This is a case where folks may recall the National Amendment for Democracy gets a big statutorily directed chunk of funding, traditionally from Congress every year through the executive branch. Trump administration initially didn't provide it when it withheld all sorts of foreign assistance funds. Ned filed a lawsuit and pretty quickly the Trump administration seemed to capitulate and say, we're going to give you some of this money after all. And they basically, this case was essentially in abeyance for a while. Now the Trump administration, as we reported a few weeks ago, has come back and said, well, well, after the continuing resolution expanded the funds, we understand that this money is actually available through next year and we're going to hold it in abeyance. We're not going to pay you the rest of your 2025 money. We're going to reapportion it all the way until 2026 through our apportionment authority. Ned is saying we're not going to stand for that. We're going to sue over it. Now we now have an amended complaint set up. It's being teed up to have full litigation, including the new motion for a PI that is going to be filed I believe next week and that's going to be fully briefed by August. So we're going to see a big resolution of that case which is another one of these kind of frontier cases for these foreign assistance questions. And the last case which is notable that we talked about before is US Institute of Peace v. Jackson. As agency Ben mentioned earlier, they had received a preliminary injunction from the district court after initially being denied a TRO preventing people from coming in, kicking them out of their offices, taking their signal down their side sign off the wall, which did happen. They then got a preliminary injunction from the district court judge despite initial reservations that about we little over a week ago that preliminary injunction was stayed by a panel of the D.C. circuit, another relatively conservative Republican appointee dominated panel that said essentially we're staying this without much explanation. Notably though they didn't issue an opinion but in their order they talked a lot about the President's Article 2 form Foreign affairs power and basically read that this is a reason the President's dominance of foreign affairs is actually a big reason why we shouldn't we can't have to read this agency as performing executive functions and therefore is under the Appointments Clause something that Congress can't restrict. The removal power which is integral to how essentially Trump reappointed the board and took control of usap that is going to be litigated further. The plaintiffs immediately moved for an urgent emergency appeal to the en banc DC Circuit. Traditionally the en banc DC Circuit really reticent to take these sorts of cases. Not something the D.C. circuit likes to do and reverse a panel. But they've done it already in one case here that is the Wittakeus Fara case on a fairly similar set of issues. And I think you were going to see it again. Potentially it is a the disposition of the case is not a super strong one. Again, it's a complicated question, but leaning so hard on Article 2 Powers is something I have trouble seeing a lot of D.C. circuit judges leaning into. So we'll have to wait and see. But regardless, we might see the en banc DC Circuit weighing in again in response to what has been a real run of Republican dominated panels, even on a court that is not Republican dominated. So we may see a flip in that position. On that case. But for the moment, that PI is stayed, meaning that Trump administration, administration can and perhaps have, I haven't seen reports about it, but can begin reasserting control over usip.
- [76:16]
Benjamin Wittes
Yeah. And speaking of cases that have immediate implications for workforce, federal or quasi federal, you know, when they asserted control over usip, they threw every all the employees out of the building. And when the preliminary injunction issued, George Moose, who's the head of usip, went back to the building with the staff of usip. And so, you know, these, these cases, this case in particular is really about who gets to control the the key to the front door of US ip. Is it the president of USIP or is it, you know, some doge monkey? All right. Thank you. All right. Thank you, Scott. Week for another episode of who Wants to Dismantle a Federal Agency? But we have a few more things we've got to cover this week. Let's talk about, you know, some politicization of the Justice Department. Let's start with, I guess I'm asking myself questions about this one. But the announced investigation of former CIA Director John Brennan and former FBI Director Jim Comey. I'm going to be brief on this. This is a, a story that I think I actually don't believe, and it's not that I don't believe that Justice Department sources told FOX News that such an investigation exists. They clearly did. I have no reason to think Fox News is making them up. I will note that if you look at the FOX News story, it actually does a rare thing which is attributes this to Justice Department sources, not sources familiar with the matter or government investigators, which can be code for congressional sources or, you know, this says the Justice Department. Justice Department officials say this. And the reason for that is that it comes from the attorney general's office or the deputy attorney general's office or somebody acting at their behest. This is not, you know, some line prosecutor who's leaking some something. This is a decision to disclose for political reasons the existence of a criminal investigation. And I want to say that I don't personally believe a real criminal investigation exists. And I go into the the reason for this in some detail in a column that I wrote on Wednesday. I believe there is it is very hard to look at the laws that might apply to the conduct that is supposedly at issue, which has to do with the production of the intelligence community assessment eight years ago on Russian interference in the election, and find any conduct that the statute of limitations would not have run for by now. And moreover, one thing that you cannot identify in that Fox News story is what anybody is supposed to have done. That's illegal, with the exception of a single statement by Brennan that could arguably be thought to be false if you don't have the whole context for it. And it was not more than five years ago, which it was. So I think the best way to understand this case is not as the use of the criminal justice system to harass perceived political opponents, but the announced use, the use of the announcement of an investigation that may exist on paper, but in fact does not exist in reality at all, at least in any sense. That would involve, you know, interviewing witnesses, executing search warrants, issuing subpoenas. I don't believe any of that is happening or is going to happen. I think this is an example of you. The use of the criminal justice system to issue press releases by way of harassment of people. And so I think that's super disturbing, but I don't think it's exactly what it seems to be, which is, you know, launch of criminal investigation. Don't expect John Brennan's going to be, like, dragged away anytime soon. That's just my view of the matter. I lay it out in more detail. Also, we have an excellent story on the merits of the underlying tradecraft review by the very estimable Renee Diresta. And my buddy Shane Harris has a very good piece in the Atlantic on the underlying merits as well. So I think between those three pieces, you can get a very good sense of the parameters of this issue. Does anybody have stuff to add on this? All right, Anna. We had. Anna's favorite thing in the world happened the other day, which is a document dump.
- [82:08]
Scott R. Andersen
Oh, you know, I love some hot docs, Ben.
- [82:12]
Benjamin Wittes
I mean, like, it's. You have no idea the excited texts I got. OMG, there's a Rouvini document dump. It's 150 pages.
- [82:25]
Scott R. Andersen
When I see over 100 pages of internal DOJ text messages and emails, you know, I'm just the happiest person alive.
- [82:35]
Benjamin Wittes
Yeah. So what's in.
- [82:37]
Scott R. Andersen
All right, so this is. This relates to a Res Ruini, who is the. A former Justice Department official who was ousted previously, a senior DOJ official who is the one that, during one of the Abrego Garcia hearings, you know, was candid with the court about the fact that, you know, conceding that, yes, he was erroneously removed at times expressed some. Some frustration with the fact that he'd not been able to get answers from his clients. But to be honest with you, having been to almost every single hearing, or in fact, Maybe every hearing in that case, it was Ruvini who was the most effective at kind of judge management and rapport, because sometimes you do have to acknowledge that you haven't been able to get answers, that kind of thing. The thing that has really frustrated Judge Sinis is when people are very obviously not. Not, you know, being helpful to her. And that's. I think, with many judges, it would be the same thing. He was ousted from the department. And then after Emil Bovey was nominated to the Third Circuit Court of Appeals, there was a whistleblower complaint that, from Rouveni that became public that described a number of allegations. Some of. Of some of the ones that are probably the most notable in terms of someone who is, you know, for Bovey, nominated to be a federal judge, include that, you know, it's alleged that during this March 14 meeting ahead of the JGG case, a big hearing in that case that related to the Alien Enemies act proclamation that Trump issued that sent a number of. Of men off to El Salvador to be conf Sakat, a notorious prison. Ahead of that issuance of the proclamation, there was this meeting between top DOJ officials in which it was discussed what would happen if there was an order that's issued to enjoin the removal of these individuals under the aea. And it was alleged that Bovi said, you know, maybe we have to say fuck you to the court courts and, and ignore court orders. There's a number of other allegations in this whistleblower complaint as well, including that Drew Ensign, who is one of the other top officials who's been dealing with a lot of these immigration cases, made a untrue statement to Judge Boasberg in that JGG case when he. When he said basically that he didn't have knowledge of. Of, you know, planes taking off within the next 24 hours. So that's the background bin. And this document dump that we have relates to Bovey's hearing in that it was released by a Senate minority staff who requested additional documents from Rouvini related to this whistleblower complaint and some of the allegations that he made. So we get all of these text messages between Rovini and his supervisor, between Rovini and colleagues, call logs, all of these things that corroborate some of the key allegations that he made in this complaint. And it doesn't really reveal a whole lot of, like, new things, but the thing that's important about it is that it is highly corroborative of the allegations that he has made already that have been, you know, dismissed as inaccurate by Bovey and by other top Justice Department officials with respect to the fuck you comment that Bovee allegedly made regarding, you know, telling the courts or saying that they might have to ignore court orders. There's a number of text messages in which Rouveni refers to this FU comment, and it is implied that the people he is talking to, whether it's his supervisor or other colleagues of the Justice Department, understand that he is referring to a comment that was made regarding a decision point around this kind of FU question. The other really big corroborative thing that stands out to me from these documents sense relates to the Drew Enzyme thing, in which, you know, I mean, I truly reading this, you are like, oh, this doesn't seem great in that it involves Rouveni and a call a DOJ colleague contemporaneously texting during the JGG hearing when Ensign is representing the government, being questioned by Boasberg about what the government's plans are with the these planes that are about to take off. And I kid you not, one of the text messages as they're listening to this hearing is, oh, shit, that was just not true in reference to something Insign just said to Boasberg. And. And they have this conversation about, you know, well, he definitely knows that there are plans for AEA removals within the next 24 hours, and it's real. So it's a really, really bad.
- [88:33]
Benjamin Wittes
Look.
- [88:34]
Scott R. Andersen
For one Drew Ensign, especially because Drew.
- [88:38]
Benjamin Wittes
Ensign then was asked by Boasberg a few days later, do you give me your word of honor that you were telling the truth when you said you didn't. You know, I believe you as a lawyer and a member of the bar, that you didn't know. I think if you look at the transcript between Boasberg and. And Ensign in the, in the cleanup phase of that, it. That text gets even worse.
- [89:08]
Scott R. Andersen
Yeah. And. Well, and it's also gets even worse when, you know there's other text messages included in these documents in which it's DOJ colleagues wondering whether is going to be able to. To escape this hearing before Boasberg without sanctions. I mean, they. Quite literally, one of them says the question is whether Drew gets out without sanctions. And keep in mind, Judge Boasberg already tried to initiate contempt proceedings, and there is a part of that order that he issued in which he is going through the things that made him. At least it implies that he's very suspicious of Ensign. And then the D.C. circuit administratively stayed that contempt order back in April. We still haven't had any Kind of, you know, re. Any order, further order from the court on that. But you know, it seems like when these messages come out, it gets harder for the D.C. circuit to, even if you know, it's not a part of the record, surely they seem to probably, surely they're aware of it. And I think it gets harder for the D.C. circuit to say we want to keep this contempt thing on ice because the things that these messages are showing indicate that Judge Boasberg, you know, may have been on the right track in terms of, you know, thinking about whether or not the representations that were being made to him were true. So that's kind of some of the big takeaways for me. Roger, I think that you gotta, we gotta move on. All right, cool.
- [91:03]
Benjamin Wittes
Roger. We have a motion to dismiss resolution in the Judge Duggan criminal case in Wisconsin, which is normally James Pierce territory. But this won't come as a surprise to anybody who's been listening to or reading James Pierce on the subject. What happened? You're muted.
- [91:37]
Anna Bauer
Sorry. Motion was denied. This is Hannah Dugan, Milwaukee County Circuit Court judge that was indicted. So she was making a. You remember she's charged with obstruction of justice and a similar charge about concealing a person whose arrest war warrant has been issued. And it had something to do with the a Taking several facts but alleged facts, but taking a, an alien that was before her into, that was going to be arrested by ice taking her into her chambers and then letting him and his council leave through a non public jury door. And she, she was claiming she was asserting absolute immunity as a judge. And that was the main claim. And it's quite an interesting 37 pages. I, you know, I thought it was a frivolous motion and it is a losing motion. It might not be quite as frivolous as I thought, but it's very interesting reading. It's like 400 years of. It's really 400 because it goes back to Floyd versus Barker in 1607 case by Lord Cook spelled Coke and all these wacky fact situations going back 400 years.
- [93:15]
Roger Parloff
Years.
- [93:16]
Anna Bauer
But the long story short is that, you know, every. The Supreme Court has only recognized immunity in, in for. For judges in civil cases. And beginning in 1880 it allowed prosecution of a judge for in a criminal case. So it's not really that that close a question. But you may remember in recent years there's the kids for cash scheme in Philadelphia where judges were sending juveniles to a particular private detention center in exchange for kickbacks. You know, they were allowed to be prosecuted. So anyway, we're we're over time, so I'll. I'll let that stand.
- [94:03]
Benjamin Wittes
All right, so we are. We have one more subject, which is an update on the non Kilmar Abrego Garcia immigration cases. We're going to run through those quickly. Anna. We have a jgg un, El Salvador situation. What's going on there?
- [94:28]
Anna Bauer
You. That was the one you discussed earlier, earlier in the week. You want me to summarize that for you or.
- [94:40]
Scott R. Andersen
No, I was looking for the mute button. I'm good.
- [94:42]
Anna Bauer
Okay.
- [94:44]
Scott R. Andersen
No, I just couldn't find it. So. Yeah, so this is related to. So one of the big questions, and I'm going to try to do this really briefly so everyone can go and listen to our other conversation about it. One of the big questions that has been kind of throughout the JGG case relates to this question of whether the US has constructive custody over the people who were removed to Zakat in El Salvador. Also in the Abrego Garcia case, although it's a little bit different because the US has argued that Abrego Garcia was not removed under the aea. It was an administrative error. There's been this question about what the us what power they have to facilitate his return. They've consistently said, you know, we don't have the power to facilitate his return. Separately, in the JGG case, there's this question about constructive custody because there seemed to be an agreement between El Salvador and the US in which the US Pays El Salvador to keep some people in detention at Zakat. And, and over and over again, the US has said they are detained under the sovereign power of El Salvador. And Judge Boasberg ultimately ended up accepting this representation, deferring to it, in which he, in a recent order found, essentially, I don't think that the US has constructive custody, but I do think that in any event, there's some equitable relief that I can still grant. So amid all of this, after Judge Boasberg has already made that finding, the counsel in the JGG case become aware of this UN report or communication from the El Salvador government. This is in the context of, within the UN Special procedures, there's a working group on involuntary disappearances. As a part of that, a number of families of Venezuelan nationals who were taken to Sukat asked for information. The UN requested information from the El Salvador government, which is where they believe that these men are being held. And El Salvador basically writes in response to this request for information that, you know, under international law, one of the things that you have to show if you have legal responsibility for Something is attribution, you know, that there's a kind of causal connection between the thing, the disappearance and the state, the actions of the state. And so what they're saying in this response is at the time that these people were disappeared, they were in the jurisdiction and legal responsibility of the United States. The only thing that El Salvador is responsible for is the implementation of this bilateral cooperation agreement. There's a line in there. And Roger, I don't have it in front of me, so if you have a better summary of what exactly they say, but there's a line in there that basically suggests, like, all of the legal responsibility is that of the United States, not El Salvador.
- [98:33]
Anna Bauer
Yes. In this context, the jurisdiction and legal responsibility for these persons lies exclusively with the competent foreign authorities, I. E. The United States.
- [98:42]
Scott R. Andersen
Right. And there's. I think there's two ways to read it. And I'd be interested, Roger and Scott, if you read it the same way. One is that they are. They are specifically looking at responsibility at the time that these people were disappeared, meaning when they were in the US and taken to El Salvador versus Another way of reading it is that they're saying, you know, so the responsibility writ large, even if they're in El Salvador now, that is the responsibility and jurisdiction of the United States. Anyone have thoughts on that?
- [99:20]
Benjamin Wittes
Wait, we're not. We're not going to. Other people's thoughts.
- [99:25]
Scott R. Andersen
I actually think this is a. But. Okay.
- [99:30]
Benjamin Wittes
We have to. Roger, we have three short updates. JP Christian, Melgar, Salma and the new Mahmoud Khalil case. Bring us up to speed.
- [99:47]
Anna Bauer
Okay, so the day after that, you know, that was filed before Boasburg. Even though Boasburg doesn't have jurisdiction to do anything right now, he can't act. So the next day, Judge Stephanie Gallagher in Maryland, who's over presiding over the Christian case, another guy in Sakat Suispante, issues an order, a letter order. She wants the people in her case to respond because, quote, defendants have repeatedly skirted this court's directive to provide information regarding the steps they've taken. And defendants have repeatedly made oblique references to their request of assistance from the Department of State. But if this is true, basically no diplomatic discussion should have been required. Respond to this by July 15th. So we will get whatever the government's take is on that next week, I think. Tuesday, Melgar Salon. He's the guy, El Salvadoran, that was sent to El Salvador 28 minutes after the 2nd Circuit said, Don't remove him from the country because they were adjudicating his case. And so they ordered him the the government to facilitate his return and to give joint give status reports. After two weeks they have located him. That's the good news. The bad news is he's in Sakat. And that's all they have for the Second Circuit so far. Mahmoud Khalil, who you remember was arrested in March did about three months over three months in Jena, Louisiana in a prison there was released recently finally by Judge Farbiar's on several theories he is has filed an FTCA claim Federal Tort Claims act claim seeking compensation for false arrest, false imprisonment, malicious prosecution, abusive process, intentional infliction of emotional distractions, distress, negligent infliction of emotional distress. Those claims you need to file one of those an administrative claim and then six months later you can sue. Honestly, Federal Tort Claims act stuff is very specialized. I would be surprised if maybe I just shouldn't comment. I don't know the strength of this, but that is that's where that stands. You're muted this time.
- [102:56]
Benjamin Wittes
We've got two audience questions. We're going to get through them quickly. The anonymous attendee asks, is there a threshold where the Supreme Court will abandon a presumption of regularity? I think of the census ISIS case during the first Trump administration, but I feel like that may be an outlier. Number one, that's a good example of where the presumption of regularity does bend. Number two, so yes, there is a threshold. And normally speaking, when, you know, when the plaintiffs or the opposing party shows that you've litigated in bad faith and that you've made factual representations that aren't true, the presumption of regularity gets overcome. I think the the interesting question that the questioner raises is is there a point at which the administration will lose the presumption of regularity in the first instance? And I think that's an issue that the justices kind of disagree about. And one of the things that underlies Ketanji Brown Jackson's recent dissents is, hey, we're dealing with a repeat player who may be a coordinate branch of government but is serially behaving in predictable fashions. We shouldn't treat this executive branch like all other executive branches, whereas the majority takes the view that, hey, the president is due a certain set of deferences and presumptions and every time you litigate, it starts over. So I think it's a profound debate among them. The more alarmed are more more willing to like, abandon the presumption and then abandon it as in the first instance the next time around. The more conservative, more deferential ones are not Andrew asks Judge not Justice Breyer has set a trial in Newsom v. Trump to adjudicate violations of the Posse Comitatus Act. This is the the Los Angeles deployment of the military and National Guard. Has there ever been an adjudicated violation of Posse Comitatus? What will California have to prove? Scott, you being the closest thing to Chris Mirasola we have on this call, I'm going to throw this one your way.
- [105:45]
Roger Parloff
It's a great question about a really interesting case that was almost I almost added to our agenda, but I was worried we didn't have time for that. Has been litigated before and it is not a totally novel question. I am not aware of a case where somebody has tried to enjoin military action by the virtue of violating the Posse Comitatis act. And notably that's actually not the full scope of the argument the government the state of California, I should say, is making. There's other elements of it as well, but it comes up a lot in exclusionary rule and evidentiary context and context of detention as a defense defense or ability to challenge availability of evidence. And MO doesn't come up a lot but has come up there a number of times, most notably as recently as 2015 in the Ninth Circuit. It's a case called United States Fee Dryer where a military investigator essentially in investigating child pornography among service members snatched up a bunch of data for non service members and handed it over to local law enforcement who then arrested somebody and that person did not ultimately successfully argued and persuaded the ninth Circuit on Bach that there was a PCA violation and that could warrant the application exclusionary rule, although in this case they ultimately determined it did not warrant invalidating his his conviction. But to the N Circuit has experience about it relatively recent and so it is definitely a real thing that could come into play here whether reaches an injunctive relief. That that's another question.
- [107:05]
Benjamin Wittes
Well, go ahead.
- [107:09]
Scott R. Andersen
I would just like to know if the pilot project is going to apply to an evidentiary trial which is the pilot project is the reason why we've been able to actually see these this this hearing before. Just Judge Breyer on Zoom, which is novel in federal courts. And I don't know the answer to that but it will be very exciting if we do actually get to watch it on Zoom.
- [107:34]
Benjamin Wittes
All right. If Anna does not want to seize control and start throwing questions to the other panelists, I will declare this at an end. Roger Parloff, Anna Bauer Scott R. Anderson, Senior Editors all, thank you for joining us today.
- [107:54]
Scott R. Andersen
The Lawfare Podcast is produced in cooperation with the Brookings Institution Institution. 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. Please rate and review us wherever you get your podcasts. Look out for our other podcasts including Rational Security, Allies, the Aftermath, and Escalation. Our latest Lawfare Presents podcast series about the war in Ukraine. Check out our written work@lawfaremedia.org the podcast is edited by Jen Patya and our audio engineer. This episode was Ian Enright of Goat Rodeo. Our theme music is from Alibi Music. As always, thank you for listening.
- [108:50]
Benjamin Wittes
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Scott R. Andersen
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