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- [00:01]
Benjamin Wittes
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- [00:32]
Darina
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- [01:32]
Roger Parloff
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- [02:15]
Benjamin Wittes
It's the lawfare Podcast. I'm Benjamin Whittes, editor in chief of lawfare, with lawfare senior editors Scott R. Anderson and Roger Parloff and Lawfare legal fellow James Pierce.
- [02:28]
Scott R. Anderson
Kind of starts with quite strong language. Once again, this court uses its emergency docket to destroy the independence of an independent agency as established by Congress.
- [02:37]
Benjamin Wittes
In the July 25 episode of the trials of the Trump administration, we discussed the Supreme Court's rulings allowing the removal of executive officials of independent agencies. We talked about ongoing agency dismantlings, developments in the Kilmar Abrego Garcia case, and much, much more. It is Friday the 25th of July. It is 4pm Eastern Time. And this is Lawfare Live, the trials and tribulations of the Trump administration. BENJAMIN I'm Benjamin Wittes, editor in chief of lawfare, and I'm here with lawfare senior editors Scott R. Anderson. Hello, Scott hello. Roger Parloff joining us from France. Hey, Ben, are we doing this in French or in English?
- [03:39]
James Pierce
We'll do French tonight.
- [03:41]
Benjamin Wittes
Okay, I'm sorry. English tonight. All right. And James, who could do this in German or Arabic or Spanish, is that right? James?
- [03:54]
Scott R. Anderson
That might be testing my abilities, but maybe that'd make it amusing. If Roger does it in French, I'll do it in Arabic, and we'll just keep this very lively this evening or this afternoon.
- [04:03]
Benjamin Wittes
Yeah, and very comprehensible. And Scott could do it in Arabic, too, at least he could a few years ago, only a little bit. I, who cannot speak German, French, or Arabic, will do my part in broken Ukrainian. Look, we got a lot of ground to cover today, so let's get into it. And let's start with the Supreme Court, which, as Justice Jackson would want us to remind you, is not infallible because it's final. It is, sorry, is not final because it's infallible. It's infallible because it's final. And James, the Supreme Court this week allowed on an interim basis the dismemberment of the consumer financial the Consumer Product Safety Commission. I want to start with the question, what is an interim dismemberment?
- [05:12]
Scott R. Anderson
Yeah, great, Great question. I think it's an outgrowth of all of the interim work that the Supreme Court is doing. I mean, one might pause to ask, here we are toward the end of July, and how is it that we are actually still talking about things that the Supreme Court is doing? Longtime watchers of the Court will know that justices usually hasten to get everything done by the end of June, beginning of July, so they can go out and teach sort of boondoggle courses in nice places across the world. And as the Chief justice him said once when he was in government, something like only the Supreme Court and school children are expected to and do take the summer off. So that does not seem to be the case for this summer. And as you said, Ben, what we got this week was a decision in a case called Boyle, which, as you said, involved a removal of three members of the Consumer Products Safety Commission. They all challenged I'm sorry, I don't know if folks can hear a clock in the background, I'm in a different location. But if not, you can ignore it. They all challenged their Removal, they were successful in the District Court. The government then sought to stay their removal both in the District Court and in front of the relevant court of appeals. The Fourth Circuit was not successful in either location. And then the government went to the Supreme Court, which in fact provided the relief the government sought. I'd have to say for those following this closely, not really much of a surprise the way it's a very brief decision, just a couple of paragraphs in the brief majority and then a concurrence from Justice Kavanaugh and dissent from Justice Kagan. The whole thing, not more than five pages. The main decision basically says, hey, District Court. You remember that decision that we issued in Wilcox and Harris? That's the case we've talked about a number of times, the removal of both a member from the Merit Systems Protection Board and the National Labor Relations Board and basically seeming to signal that the exception carved out or the recognition in the 1935 case, Humphreys executor, that limited the President's ability to remove executive branch officers when the relevant agency was a multi member, partisan, balanced, independent agency. The court stayed in that case, a decision from the D.C. circuit that had allowed those, those individuals, those removed officers to be reinstated. The Supreme Court did the same thing here and as I mentioned, basically just said the reasoning, such as it is interim or emergency docket cases in Wilcox Controls here, the Consumer Product Safety Commission has no material difference from the nlrb. One of the cases, one of the cases that issue in Wilcox and Harris, the Wilcox case. And so that was pretty much that Justice Kavanaugh wrote an interesting concurrence, I think very much in line with the concurrence he had written in, in the casa, birthright, birthright citizenship, universal injunctions, where he basically said, just like I'd said in Wilcox, I again think we should, we, the Supreme Court should grant cert and decide this thing. There are some issues where kind of further percolation of an issue in courts of appeals and lower courts is useful to kind of get differing perspectives and then the Court, the Supreme Court can kindly come in and have the final word. But he makes the point and I think he's right on this, when the real question is the continuing validity or not of a Supreme Court decision. Here Humphrey's executor, no lower court has under our vertical sort of system of stare decisis, the ability to overrule the Supreme Court. And so if the court's going to do it, the court should do it or not. But it really makes no sense for this to kind of keep kicking around in lower courts. Justice Kagan has a dissent joined by Justices Sotomayor and Jackson. I'll say, just for clarification, you started, Ben, with a, with one of my favorite Justice Jackson quotations. That is not Justice Ketanji Brown Jackson, that is Justice Robert Jackson, but sage wisdom, I think, on his part. The Justice Kagan dissent, very short, basically says, kind of starts with quite strong language. Once again, this court uses its emergency docket to destroy the independence of an independent agency as established by Congress, criticizes the court for doing this on the emergency or shadow or interim relief docket, sort of criticizes the absence of any kind of briefing and sort of I think observes accurately that the court has all but overturned Humphrey's executor, even though it has not reached this on the merits. So another victory for the government. And I think more bad news for so called independent agencies whose independence seems to be evaporating in, under this administration and with the decisions of the Supreme Court.
- [10:45]
Benjamin Wittes
And today we had a lawsuit brought by several of your former colleagues at the Justice Department basically saying that though they haven't contested their firings at the Merit Systems Protection Board, the reason they haven't done so is that the administration has disabled the Merit Systems Protection Board by an action more or less the same as the one that the Supreme Court just allowed to take place at the Consumer Product Safety Commission. So my question is, first of all, let's talk a little bit about that suit. And secondly, is the administration and the Supreme Court buying for the administration a bunch of trouble by disabling these agencies, depriving them of a quorum, all in the name of presidential control, but the result is that they, you know, can't do things anymore and thus that people are maybe entitled to other remedies that they wouldn't otherwise be entitled to.
- [12:04]
Scott R. Anderson
Yeah, good questions, both of them. I'll start with just a little more background on the suit and then address. I think what also jumps out to me is the hardest question, which is this question of bringing this in the first instance in the District Court and essentially arguing that the Merit Systems Protection Board is no longer a viable avenue given developments over the last six months, many of them driven by the administration. So lawsuit, I think it was four filed yesterday, actually has, has only one former January 6th prosecutor. It's interesting. It's three former Justice Department officials. The lead plaintiff is Mike Gordon. He was One of the three January 6th prosecutors filed fired just at the end of last month. Great prosecutor. I worked with him in my time also handling January 6th cases. The next plaintiff is Patricia Harmon, Patty Hartman, excuse me, a public affairs specialist at the Justice Department. And then finally, the last plaintiff is a lawyer named Joseph Tyrrell, I believe. Don't know either Ms. Hartman or Mr. Tyrrell personally, but Mr. Tyrrell was in the news earlier this month, head of the ethics department and reporting suggested fired by the attorney General. So those were the three plaintiffs in the case, brought the case, as you know, as we've said in District Court, it's been assigned D.C. district Court to a relatively new judge on the district court bench, Judge Gia Cobb, a Biden appointee who's probably had two, two or so, maybe three years on the bench at this point. So, yeah, why bring it in District Court? Right. I mean, the complaint itself does spell out a little bit of this argument and I think it largely tries to track reasoning that we saw in a case that we discussed on Lawfare Live some point in the next couple past couple of months of a Fourth Circuit decision that involves challenged by immigration judges where the district court had said, you've got to take this before the MSPB and the Fourth Circuit, interestingly, with no supplemental briefing or arguments from the parties, essentially Sua Sponte said, well, you know, we agree that in your typical mine run case, this type of challenge would need to go in front of the Merit Systems Protection Board. But given sort of taking judicial notice of given all of the things that have happened over the past months, the removal of Kathy Harris from the Merit Systems Protection Board, I think the opinion says things like the administration's efforts to try to really centralize control over these agencies in the executive branch, the 4th Circuit sent it back to the district court in, I think it was the Eastern District of Virginia to sort of figure out whether the typical analysis, the Thunder Basin analysis for those kind of following this doctrinally, which is a question of look, if Congress has committed the jurisdiction or the authority to decide certain matters to some entity other than courts, has Congress done that in a particular instance and have they done it with the immigration judge case? That's going to be the question for the District Court here. First is has and I think the answer to the question of has Congress committed this to the MSPB with an appeal to the court of the Federal Circuit that will be clear. What will then be interesting is this question, hey, what do we make of, as you've said, Ben, efforts to remove someone from the mspb, keep it from having a quorum and generally undermining claims that are before that, I have to be, I'll be candid here. I have a little skepticism about the likely success of that claim. It's not clear to me that although certainly the administration has removed someone from the mspb, I believe they've nominated someone else to try to get on there. And so there's an argument that, yeah, okay, they've taken someone off, but it's not clear they're just doing it to try to swamp the MSPB or otherwise keep cases from, from getting there. And, you know, as I mentioned, the 4th Circuit case that it seems to be the only case that I've seen hasn't really been, you know, it was not the product of briefing and argument on this. And I read the sort of the thrust of this lawsuit that we see here to be, and I have sympathy with this claim here and for full disclosure also, you know, impacts my situation, which is, you know, whatever one thinks of the president's or ability to remove principal officers from independent agencies, that power, that Article 2 removal power doesn't extend down to reach civil servants. And the argument that I think the complaint is starting to sort of suss out as well, look, the MSPP can't really adjudicate that. That's really a question that district courts have to have to make. I'm not entirely sure that's right. I think the MSPB generally doesn't try to kind of weigh into meaty constitutional questions, but I think that's more of a matter of practice than it is of some kind of commitment by statute. And then ultimately there is the opportunity to go in front of a federal court, the court of the Federal Circuit on appeal. So I do think this could be a challenging road to hoe for the plaintiff.
- [17:27]
Benjamin Wittes
There has to be some point at which if you disable the MSPB and it can't do its job, people don't have to wait forever. Right?
- [17:40]
Scott R. Anderson
So I agree there probably is some point. I mean, this idea of not having to wait forever, you know, I think it's one thing if you could point to and maybe the evidence is better than I'm setting it out to be. And I won't, I won't pretend that I'm kind of deep involved in this. But like, you know, if you had an administration saying not only are we removing the MSPB so it has no quorum, but we have made a determined issue that we are no longer going to put anybody on the mspb. We are saying right here and now in the first year of our administration, we are going to keep the MSPB without a quorum for its entire existence. Yeah, I think if you started to get facts like that, then I think the case becomes a lot stronger. But look, I mean, there have been immigration matters sitting in front of board of Immigration courts and immigration judges for years and years and years now. The dynamic there is often quite different. Right. Folks in immigration courts are actually sometimes happy to have that matter sit forever while they assuming they're not in detention, they're out living their life here. So I do agree there's probably some point where that argument, the argument that the MSPB has been fatally undermined has bite. I just don't know if we've hit that here.
- [18:51]
Benjamin Wittes
All right, Scott, you are our contestant this week on who Wants to Dismantle a Federal Agency. Our regular weekly game show portion of the the segment of the show. And we looks like you are dismantling a lot of federal agencies today. So give us the rundown. What's going on at omb.
- [19:27]
Unknown
So it's been a mixed bag, but a pretty busy bag this last week or week and a half or so. So we checked in a lot of these cases. As I was out last week, we had a fairly significant decision in Crew Visa versus omb, that is the Citizens for Responsibility and Ethics in Washington advocacy group here in D.C. in the D.C. district court where they successfully secured a preliminary injunction compelling. Well, that will compel, if it's put back in place, which we'll get to in a second, the Office of Management Budget to restore its to restore its website that it uses to record and publicly disclose apportionments. Apportionments is a process used that basically allocates where appropriated funds and how appropriated funds will be used in different and.
- [20:09]
Benjamin Wittes
Just to be clear, for those of you who find the use of the word apportionment in this context confusing. It has nothing to do with apportionment of congressional seats, which is the only other context in the world in which apportionment gets used. That's the census and reapportionment that happens once every 10 years. Redistricting. This has nothing to do with that.
- [20:37]
Unknown
No, this is about apportionment of appropriated funds. It's a very, very technical process, technically legally binding. That is this way that the executive branch and the Congress have kind of come to understand how to enforce the obligations of appropriated funds. After Congress's enactment of the Impoundment Control act in the 1970s, the Trump administration pulled this website down in March, has basically saying yeah, the statute may compel us to do this, but this is an infringement upon executive power. The President has exclusive presidential authority to control how appropriated funds are spent and Congress can't interfere with that by compelling transparency. And the district court here says, are you crazy, of course, that of course they can actually require you to disclose things, are not requiring you to do anything specific in regards to your these funds. They are just saying you have to disclose it publicly. And by the way, this apportionment process is something that's closely related to statutory obligations that they can impose. So they won in the District Court quickly. The government went to the D.C. circuit and secured a temporary administrative stay of this planning junction which is currently being reviewed by the D.C. circuit. Briefing for that is due in on the 28th, which I believe is Tuesday or Monday. Excuse me. So we'll probably have a decision pretty shortly after that, at least on the administrative stay as to whether this will website will have to be restored barring further appeal, not only this one before Judges Pillard, Millet and Rao as the motions panel for this month in the D.C. circuit. I believe that that's the motions panel. I haven't actually checked. I believe that's right. So a slightly friendlier panel, at least compared to a lot of the motions panels we've seen on the DCC Circuit recently to the plaintiffs, I should say, not to the government.
- [22:17]
Benjamin Wittes
All right, so we have movement on foreign assistance cases also at the D.C. circuit. What's going on in AIDS Vaccine Advocacy coalition?
- [22:34]
Unknown
So there's two different tracks that this case is proceeding on. One, we have an appeal pending in the D.C. circuit. It was fully argued two weeks ago or so. This is to the preliminary injunction that Judge Amir Lee issued in this case way back in March or April that is still, still awaiting a decision on that. Meanwhile, we've seen a lot of action happening in the District Court, the within the District Court. We have seen an effort by the plaintiffs to get the court to require the enforcement of its original preliminary injunction. They have essentially argued, look, the original injunction said you can't ignore the appropriated funds. You have to spend down funds appropriated for foreign assistance purposes. And they're not doing this. And the plaintiffs argue the government is not doing this. And specifically they point out a lot of these funds in dispute expire in September 2020202025 at the end of the month. And they have no plan for doing this about how they're going to spend this out. And they also noted that they've held up spending on some funds that they say the original cancellation prior to February 13th, that's a period where the court ruled any work done prior to February 13th has to be paid out under these grants. Some of the cancellations were retroactively verified that they were trying to withhold funding from. The court rejected the withholding of funding from the retroactively verified cancellations. They reiterated, no, you actually do have to pay these funds out. But the court declined to actually reach this apportionment clause issue. Pardon me, the impoundments issue or this question of a related question regarding pocket rescissions, which I'll get to in a second on the essential logic that they said, look, the government came and you actually consented to before the D.C. circuit that you need an opinion by August 15th because the understanding is August 15th is the date by which you have to start apportioning or obligating funds to get them paid out by September 30th. So that's the drop dead date. So I'm not going to get ahead of that date. But the plaintiffs correctly, I think pointed out, yes, but that's Also the date 45 days out from the expiration of these funds, which is the exact window in which some people in the executive branch have suggested a pocket rescission is possible. This is a theory that Russ Vogt and Mark Pauletta and other people in OMB have put forward saying, well, look, if we put forward a rescissions request within 45 days of the expiration of funds, that money automatically expires because the rescissions request, they have 45 days for the, for Congress to kind of reject it or verify it and that therefore those funds should expire. It's a theory that no court has ever ratified that a lot of people had to take issue with, but that a lot of people suspect the Trump administration may ultimately rely on here. But the court wasn't willing to bite on this. The court really said, hey, look, I'm going to wait till August 15th and then we're going to deal with this. The government has said a million times to me and to the D.C. circuit we will pay out these funds if we get an adverse judgments against us on or on or before August 15th. We understand that that is a drop dead date and we're going to start processing these funds. Exactly then. And he says, I'm going to give the government the benefit of a doubt on this. This is the lingering effects of the presumption of normalcy for the executive branch in this regard. And that's notable from Judge Ali because Again, he has been at the front of the bleeding edge of misrepresentations by this administration. If you remember the first couple of weeks of this litigation and some of the stories that were being told in court about what was being done with some of these foreign assistance funds. That said, the government has been more of a straight player the last few months. I think it's fair to say they've been pretty candid about their plans. They haven't come forward with any plan about how they're going to spend these money down before September 30th. Not clear why, but he hasn't compelled them to do more in details. And notably the, the lapse, the lap lapse of the apportionment's website feeds into this because the apportionment website will give a sense about how some of these funds may be played or maybe paid down. Otherwise, the plan the administration has, but because they pulled it down, you don't have that degree of public visibility. And so the plaintiffs can't really rely on that information. Long story short, it's setting up a very big fight for August 15th and this is going to be the first big case to break on the impoundments question. I think this is the case we're going to have that, have that big constitutional fight fought on the first time around. So keep an eye on the space with DC Circuit. And DDC is going to really quickly come to the head as we get to the middle of next month. And I think we're going to see potentially a very angry district court judge when the government does not stick to its word on this particular obligation. But we will wait and see.
- [26:53]
Benjamin Wittes
So it's 21 days from now, is that right?
- [26:56]
Unknown
That is correct. That is the date by which both parties agreed. The D.C. circuit has to issue an opinion if we're going to get these funds obligated by September 30th. That's not all the funds, but a big chunk of the funds at issue are September 30th and notably they were not rescinded by the rescissions package that Congress enacted recently. So they are still live.
- [27:12]
Benjamin Wittes
Well, I have only one thing to say on this subject, which is tech, tech, tech, tick, tick. All right, let's talk about Judge Carl Nichols decision in AFGE versus Trump, which is a chat. One of the challenges to the USAID dismantling. Take it. It's. He dismissed it today or yesterday. I take it it's not a big surprise at this point.
- [27:38]
Unknown
Not particularly. You know, this is a case, if you recall it was actually the, I believe, the very first legal challenge filed after dismantling of USAD started. And it is a broad challenge to the dismantling of usaid. The plaintiffs are essentially arguing, look, this whole bundle of interrelated actions the Trump administration has taken, including terminating personnel, terminating grants, all these other things, all amounts to dismantling the usaid. But because the main plaintiffs were two sort of labor groups, a labor union and a association of PCs that I don't think is technically a union, but it's kind of a representative group as well as Oxfam a. A group that doesn't actually directly get a lot of grants, but essentially was arguing that because it benefits from a lot of direct grantees of State Department money, it had standing to challenge this dismantle of usaid. They kind of came together in a coalition to launch this lawsuit, but it's always been at a higher level and a little less specific than like the AIDS Vaccine Advocacy Coalition case we just discussed, which very specifically targets specific grants and cancellation. In this case, Judge Nichols denied a preliminary injunction way back in February or March, I believe, on similar grounds that he ruled on today. Today he basically said, look, the labor union representing USAID employees, all those are employment claims that have to go through the MSPB process. I don't have jurisdiction over those for the PSC association claims. I don't can't say confidently these have to go through the MSPB process. I can deny that we have jurisdiction, but I think there may be jurisdictional issues. And so I'm going to deny a preliminary injunction, but did not actually decide dismiss those claims. There's going to be additional litigation on those claims, presumably as he sorts through, okay, do I think I have jurisdiction or not? How do these relate to this statutory regime for resolving different sorts of claims? And in regard to Oxfam, he essentially denied that they had standing, said, you can't stand in for direct USAID grantees to assert and challenge these actions. The only thing I think is notable here is that it is notable. I mean, this is a big defeat for people who are combating the dismantling of usaid. But I don't think it's a surprise Judge Nichols came out where he did because of the PI. What is notable here that I think is a bit of a mistake or a problem for Judge Nichols, potentially, although we'll wait and see, is that he relied in part on Whitaker Swara. This is a case that we've been following for a couple of weeks Here, where the D.C. circuit en banc correctly. He noticed this correctly did essentially allow. Allow a stay of a preliminary injunction on barring terminating employees for Voice of America and US Agency of Global Media injunction to remain state basically said, hey, we're not sure the district court has the authority to bar the government from firing these people at this point. And that's part of the reason he said, hey, you don't. I don't. Not sure I have jurisdiction over this. As in Woody Koussoir, they basically strongly implied this all has to go to MSPB and related sort of processes. What he misses, though, is the issue I wrote about Lawfare a month or two ago and I think is really central, which is that the D.C. circuit en banc went the extra step to say, but if the termination of people interferes with your ability to meet your statutory duties, that can still be enjoined by the district court, as far as I can tell. And I won't say I went through the opinion with a fine tooth comb, but I actually read it cover to cover because I was looking for this. It doesn't look like he really dealt with that part of that opinion or really analyzed the extent to which the termination of USAID personnel actually interfered with its statutory duties. And that's actually the basis the D.C. circuit en banc, at least by my reading, has strongly suggested it's going to look at these cases. So there may be a narrow little sliver basis for appeal that people may be able to pursue in this case, but we'll have to wait and see. And it's possible I'm not reading the cases correctly, so I could be wrong in that regard.
- [31:13]
Benjamin Wittes
All right, let us move on. Speaking of Whitakers Wara to Whitakers Warra v. Lake. And the Lake, of course, in whitakerswara v. Lake is one Carry Lake, who has been installed at the head of usagm, which is the parent company of organizations like the Voice of America and Radio Free Europe. We got a big fight in front of us. What's going on in whitakerswara which is the coolest named case in our repertoire. We've all learned to pronounce it. What. What's going on? What's the big fight?
- [32:00]
Unknown
I would like to motion to rename this patsy's case because of course it is named after the plaintiff patsy. What a Gustavo. Which is a little easier to say, but I like saying it. I think I've got it right now, so I'm going to stick with the original caption. So this is another case to watch closely, like AIDS vaccine advocacy Coalition. We still have a D.C. circuit appeal that's not going to get resolved until September. The briefing lasts through then. But meanwhile, the district court is still wrestling with this exact question we just had, which is that the Voice of America has briefly tried to fire most VOA employees, has terminated a bunch of contract, or they actually had to repeal most of the rifts they issued for evidently some unrelated administrative reason that they have not corrected them yet. And I understand most of them have not been reissued since they were initially rescinded a few weeks ago. Regardless, it's been very clear they intend to terminate everybody, almost everybody at VOA and have dramatically wound down their activities, reducing them to basically rebroadcasting one America News Network and really, really limited bandwidth of activities in certain markets. And we saw this exchange where the plaintiffs were arguing, hey, Judge, the agency here is not doing what the D.C. circuit strongly suggested it still has to do, which your preliminary junction still stands, it still obligates to do, which is to meet its minimum statutory duties. Because if it's terminating these people, it's trimming this program. It's bringing it way below its statutory duty duties. They filed a motion to enforce the preliminary injunction a few weeks ago. The judge said, you know what, you're raising some really good questions here. I can't rule for you yet because I need more information, but government, here's a list of questions for you. I really need more information on very pointed questions about very specific parts of Voice of America's operations. The government came back with a response to that this week, and I have to say it was remarkably lackluster. There's an eight page statement by Carrie Lake basically saying, yeah, no, we did exactly what we said. We shrunk everything down. We don't think we're obligated to doing this. We have no broadcasting in Africa. We have one to two people for each continent, one to two people in studio production. We have 28 people working on Persian news. That changed from the last time we had these filings because we bombed Iran in the interim as they staffed back up their Persian language news program. But other than that, it's reduced to almost nothing. And they very clearly say, we think this is beyond our statutory duty. The long and short of it is that this is just directly pitting up the hardest question that this judge is going to have to address, which is to say, what is actually necessary to meet the variety of statutory duties that are put on U.S. agency for Global Media and the Voice of America? How much deference do I need to give them in their interpretation of those statutes and what it means to be the statutory minimum, particularly because a lot of the statute obligations are there for the agencies, but they're a little broadly worded. They're kind of mission statement sort of obligations. It's a really, really hard position for a judge to be put in. It is where, at least in the D.C. circuit, a lot of these agency dismantling cases are headed. If I'm reading Whitake Swara right, and where the court seems to to be and this is the place we're going to see it first at this point it's fully briefed. It's up to the district court judge to say am I going to try and force my preliminary injunction in additional ways here? So again, there's another case to keep your eye on. I think this is going to be the front of a very big legal fight and the tip of the spear probably in the next two weeks.
- [35:05]
Benjamin Wittes
All right. Finally, I don't know if it counts as a federal agency. Evidently it's part of the argument in the case is whether it is a federal agency. But the control of USIP keeps shifting hands. First it was ripped away from the fabulously named President George Moose. Then it was the keys were handed back to Ambassador Moose and the that's really his name and his and the USIP staff came back. And then in response to a D.C. circuit ruling, the keys were once again torn from the hands of Ambassador Moose and the staff was I believe, kicked out of the building again. And it is, I want to say the best building for a think tank in Washington. And if I support the staff of USIP and their struggle for control over but if, by the way, you know, the government wins, I want that building for lawfare. Scott, what's going on with US ip, Who's in control this week?
- [36:22]
Unknown
Well, sadly for US IP and its employees, I think we've reached probably the end of the road for the US IP fight potentially at least for a while. We had a case where a panel of the D.C. circuit did in fact reverse or stay, I should say the preliminary junction issued by the district court just judge that had briefly returned control of USIP back to its original leadership and to its employees. And they stated on the basis, not in a written opinion, interestingly, but in a somewhat lengthy kind of two page order where they basically said look, USAIP is a federal agency. It's not a nonprofit corporation. That's the best way to understand it. And that it engages in foreign affairs functions. And those are so central to the president that any sort of restrictions that Congress may put on it are unconstitutional on the removal of its board members and therefore the president can remove its board members or at least likely can. Again, this is all still preliminary. It's not any sort of final conclusion. And then they said Trump v. Wilcox, Supreme Court's earlier decision about appointments clause issues, said essentially, you know, the government suffers immense harm when it can't control its own appointees and control its own agencies. So that when we're weighing these preliminary remedies, the government's harm should generally weigh quite heavily in these cases. And on that basis, the panel opinion said, hey, you know, we are not going, we're not going to let this preliminary injunction rest. We're going to stay it. You can take back control of USAP while we're resolving these, the merits of these decisions. Trump administration USAP immediately appealed to an en banc DC Circuit and DC Circuit came back this week and said, no, we're not going to vacate or reverse the panel opinion. The panel opinion stays. I think this is really unfortunate and I think this is wrongly decided kind of separately from the actual merits, because in my mind, what you see happening here is you actually see the D.C. circuit getting ahead of the Supreme Court and recrafting the scope of the apportionments clause, pardon me, the appointments Clause, which is not what they are really supposed to be doing. We have a lot established precedent, not to mention years and years of activity, of USAIP being a valid allocation of potential removal restrictions and being able to operate this way. We have plenty of case law that says that seemed okay with a lot of these removal restrictions for a long time. It's obviously being disrupted. There's obviously lines being drawn. But the Supreme Court hasn't reached this sort of case yet. It strikes me as odd and not a great posture to start getting ahead of it and start guessing, well, how far is it going to go, particularly in an area like here where you're saying, oh, because this touches on foreign affairs, even though this looks a lot like it might be a nonprofit company or organization as opposed to a federal agency, we are going to go ahead and say this touches on foreign affairs. This has to be presidential because Congress can do lots of things related to foreign affairs, including foreign assistance and lots of things like that, which by the way, much more like what USIP actually does than any sort of diplomacy or the sorts of things that, you know, were pointed to by the court in its opinion. I think it's really unfortunate. I suspect the en banc. D.C. circuit had more reservations than are advertised, but they don't like going en banc. It's not something the D.C. circuit likes to do. They've done it a fair amount recently and my guess is they said this one's close enough to the line that we're going to defer to the panel on this. And it was a fairly unfriendly panel. But it's the sort of luck of the draw that's really, really tragic for us IP and USIP employees. And by the way, the Wilcox weighing of harms is absurd in this case because USAIP does, if it were to continue operating, it would do absolutely nothing to interfere with the President's conduct of foreign affairs. And the fact that the courts are satisfied by simply referring to that without accepting the fact that that was a decision in one institutional context regarding one way of equities and they're not doing the work to weigh other equities. It's a little embarrassing. This is a very bad opinion and a bad outcome. But unfortunately I think it is a final one. And unless they appeal to the Supreme Court, and I think they should because I think they should get a final decision on where the exactly the line lies around these sorts of agencies. But it's not clear to me the Supreme Court actually disagrees and they may end up denying certain which case. This is where it's going to rest until the actual merits decision comes up through the two years from appeals process. Two years from now? Yeah, maybe longer.
- [40:15]
Benjamin Wittes
All right. Well, to Ambassador Moose and our other friends at usip. Godspeed. And you know we are jokes about names aside and you're building aside. It's a freaking crime what has been done to usip. And you know we try to keep things light hearted in this but that's a building full of people that does good work on hard issues including all kinds of conflict management stuff in parts of the world that lots of people don't care about, including in the rest of the US Federal government. And there are a lot of lot of people who've done a lot of good work at USIP over the years, including my wife who was, was worked there on Middle east conflict stuff for a number of years. It's before coming to Brookings years ago. It's a, I mean it's a crazy thing to want to dismantle usip. But also the way it was done was really obnoxious to a lot of hard working people, which doesn't separate it from whether where the way a lot of things have been done over the last six months. All right, speaking of things that are being done in obnoxious ways, let's talk about the ICC sanctions case, Smith v. Trump, which is being litigated and of all places, the District of Maine. And we saw a preliminary injunction granted this week. Scott, what's going on there?
- [42:15]
Unknown
Yeah, I feel like one. There's one really, really happy district court clerk in the District of Maine who like, took national security law, international law, and finally gets the case, the one case coming through that district on these issues. This is a case brought by two human rights.
- [42:28]
Benjamin Wittes
There were a couple of material support cases in that district.
- [42:32]
Unknown
Not every year, though. Clerks are only there for a year or two. You got to get the one. You got to get them while you can get them. I say from experience, and this is a case where we had two human rights advocates suing who regularly coordinate with the Office of the Prosecutor in particular, as well as other elements of the icc, which has been targeted by the Trump administration by pretty comprehensive sanctions for pretty comprehensive sanctions. And they basically said, look, this goes overly broad in infringing upon what we argue is our First Amendment rights. We have a right to engage with, you know, express our views, to take various activities related to advocacy and implementing our views, and then to share that information with the icc. They also made a lot more specific arguments about the International Emergency Economic Powers act, or ipa, where specifically they pointed out, look, a lot of what we're.
- [43:21]
Benjamin Wittes
Doing is like pronounce that correctly, Scott.
- [43:23]
Unknown
Ipa, it's a great acronym and one we will hear a lot more of because also what they are using for the tariffs currently in the Trump administration. But in this case, it's being used for sanctions, one of its more kind of common, well established uses, and that has something called the Berman Amendment in it, which for a variety of kind of speech, protective reasons, Congress carved out informational materials in related categories from IPA restrictions. Basically, the president can't regulate those using ipa. And in this case, the plaintiffs argued, well, that's basically what we're doing. We're giving information to, to the icc. In a lot of cases, you can't really restrict that in this sort of context. Not like we're transferring the money, we're transferring them information about cases. So, you know, long story short, in this case, the court found this persuasive and basically said, hey, you know, I think you're right. I'm not going to reach the Berman Amendment question. I'm not going to reach questions or whether this is kind of like facially overly broad in regards to the First Amendment generally. These restrictions in this executive order are not nearly tailored enough to the state interest to avoid unduly infringing upon your First Amendment rights. And therefore I'm going to invalidate it as it applies to those scopes of activities. I will note, I think my vague recollection is that the First Circuit has actually fairly friendly First Amendment jurisprudence in this. It's probably why this case may have been brought there, which may be leaning into this, because they're citing a lot of First Circuit precedents, particularly around questions of kind of ripeness and scope of the effect of the chilling effect on the First Amendment. More fundamentally in this case, it doesn't rapple very much with Humanitarian Law Project. It's been court opinion from 15 years ago in a separate kind of related sanctions context is about the FTO regime, which basically said, hey, look, if you're coordinating with a designated terrorist organization because all money is fungible, you are essentially subsidizing their activities and therefore the government's free to prohibit that if it thinks it's an enemy organization. That's very clearly the logic the Trump administration is invoking here. Maybe there's reason to think that doesn't apply outside the terrorism context. Or a better argument may be because, you know, Congress did not pass judgment on this particular executive order just on IPA generally, which has nothing to do with the ICC in and of itself, that the kind of joint branch difference that Humanitarian Law Project invoked doesn't extend to this case. There are ways you can distinguish it, but the district court judge didn't really seem to wrestle with it at all. I suspect that's going to be an issue the government's going to bring up on appeal, and they almost certainly will appeal this regardless. It's a victory for folks wrestling who deal with the icc, the International Criminal Court in this context, and a blow to the sanctions that the Trump administration has imposed against the Office of the Prosecutor. And notably, they amended their complaint since this decision was issued, I think to address the fact the ICC sanctions have been somewhat broadened as well. I don't think it actually affects the underlying outcome and they haven't actually requested for it adjustment to the preliminary injunction yet, but we'll have to wait and see. So maybe a little bit more to percolate even at the district court level before if and when this goes up on appeal.
- [46:22]
Benjamin Wittes
All right, Roger, let's talk about Kilmar Abrego Garcia. We had big wins for him. He's got to be released and he's got to be returned to Maryland according to two different district judges, one in his criminal case and one in his civil case. Is he a free man walking the streets of Baltimore soaking in the sun?
- [46:56]
James Pierce
Not. Not just yet, but we, we did agree James was going to take the lead on this. And then if I have tweaks afterwards, I will pipe in.
- [47:07]
Benjamin Wittes
All right, James, is he walking around the streets of Baltimore soaking in the sun?
- [47:13]
Scott R. Anderson
I fear that. That he's not. Although with the. The way the sun is pounding down, you know, maybe that's not the place you'd want to be. But no, I don't want to make. Make light of the situation. He certainly did have a successful week in both. The criminal case in the middle district of Tennessee in Nashville, where, top line, the district court judge found that the government had not established a basis to detain him, although on slightly different grounds than the magistrate judge had, which I'll discuss in just a second. And then in the civil immigration or really habeas matter in the District of Maryland, where Judge Sinis ruled on the emergency motion that he had filed. It was a, I thought a pretty aggressive ask to say, I'd like an order that the government can't remove me at all, that they can't hold me in ICE custody, that I have to be returned to Maryland. And the district court there gave him quite a bit, I think, of what he wanted, though not. Not quite all of it.
- [48:19]
Benjamin Wittes
That's gotta be careful where he walks, basically. Yeah. So. So what are the rules? Under what circumstances are the. Is the government not allowed to take him into immigration custody?
- [48:33]
Scott R. Anderson
Well, so. And I should preface this by saying, as far as we know, he is currently in U.S. marshal custody in Nashville, and that is at his. At his. On his own motion that the government did not contest. And that is because after he was one, or at least after the district court judge in the criminal case found that the government couldn't detain him, that judge sent it back to the magistrate judge who entered the order. Abrego's own order to stay in custody. I think he had filed that order because he was worried based on statements government attorneys had made, both in public or the government had made in public. Government attorneys in front of Judge Sinis, that he would. That the government would remove him.
- [49:19]
Benjamin Wittes
Okay, so let me just get this straight. This guy. I'm not. This is not a joke. This is literally the case moved a United States district court to keep him in criminal custody to protect him from ice.
- [49:40]
Scott R. Anderson
I think that is, in fact an accurate statement of.
- [49:43]
Benjamin Wittes
That's literally accurate, right?
- [49:46]
Scott R. Anderson
Yes, that's.
- [49:47]
Benjamin Wittes
That is that scene where Charlie Chaplin gets released from jail. And it's in one of the silent things. And he, he says plaintively, can't I stay here a little longer? That's actually Kilmar Abrego Garcia.
- [50:04]
Scott R. Anderson
I think that is, that is very much, very much true. And what will be interesting to see is whether Abrego and his attorneys move to dissolve his request to stay in Marshall custody in light of what the District of Maryland Judge Sinis. Judge did in a ruling the same day, also on Wednesday. So I think it's worth kind of spelling that out a little bit.
- [50:29]
Benjamin Wittes
Let's talk about Judge Sinis.
- [50:31]
Scott R. Anderson
Yeah. So as I mentioned, the motion that Abrego filed was to try and get relief, including government. You can't. You can't remove me at all. That was the sort of, the biggest ask. And then the sort of other asks, including, they cannot. ICE can't take me into custody. I have to be returned to Maryland. And the court did not say, and addressed just in a footnote toward the end, that it was entering an order that precluded or prevented the government from ultimately removing Abrego. And in fact, at one particular point said, look, as long as the government files the. Follows the rules. Excuse me, and I'll explain what the rules that the court sets out are and, and, and moves to remove Abrego to a country other than El Salvador and provides him with adequate notice in so doing. Like, I think, I think the order says something like the court has nothing to say about that. So it's quite clear on that point. But what the order does require is that the government cannot put Abrego into ICE custody in Tennessee, that he does need to be returned to Maryland, where he will be not in ICE custody, but under ICE supervision, which was, and I maybe should have started with this, but all in service of restoring the status quo ante, the status quo before his unlawful and improper removal to El Salvador. So those protections would, in theory, mean that should abrego leave U.S. marshal custody in Tennessee, he should be able to return to Maryland. He again will have to check in with ICE as he was doing before he was ever removed, and thus also cannot be placed into ICE custody. The other part of Judge Sinise's order is to require the government to provide a 72 hour notice to Abrego if the government decides to initiate removal proceedings. That notice has to, A, say we're initiating removal proceedings and B, let Abrego know to what country he is being removed. As already mentioned, and as those who have followed along know, there is withholding of removal to El Salvador. But in theory, he could be removed to any other country that will agree to take him. So that just puts Abrego in an interesting position. I mean, he's got to kind of game through a couple of things. One, how likely is Judge Sinis's order to stand up? The government, when I last checked the docket, had not appealed, but they might. And even if the terms of the order stand up, how likely is it that he shows up in the District of Maryland and he promptly gets a notice that says in 72 hours we are consider considering shipping you to South Sudan. If you've got any problems with that, you know, you better get yourself a litigating. So that is kind of where he stands. There's one other kind of update to be aware of here, which is back in the criminal case in Tennessee. All of what I've just described, all of those decisions were Wednesday, so two days ago. Perhaps unsurprisingly, though as a former government attorney, somewhat depressingly, I think mostly officials from the Department of Homeland Security went on various sort of social media outrage tours calling the various rulings unhinged or lawless or whatnot. And that led Abrego to file in front of Judge Crenshaw. This is the district court judge in Tennessee, essentially a motion to gag the government as in violation of commenting on an ongoing criminal case, which they shouldn't be doing. And hopefully Judge Crenshaw will find a way to put a stop to that. So collateral to kind of some of these harder decisions for Abrego and what is going on, but I think very much illustrative of the government, government's conduct through in both the criminal and civil versions of Abrego's cases.
- [54:51]
Benjamin Wittes
All right. Speaking of misconduct by the Justice Department, let's talk about the politicization of the Justice Department, which proceeds apace on many fronts. We have a new whistleblower in Ray the matter of Emil Bovey, but we don't know the person's name and we don't know the person's allegations. Is that right, James?
- [55:22]
Scott R. Anderson
I think that is this is relatively recent news that's come out, I think very much in connection with the pending and potentially very soon vote on Emil Bove's ascension to a Third Circuit judgeship. And as I understand it, and there may be others, including Roger, who've seen additional information, but we've learned that there is an additional whistleblower from the Justice Department that can corroborate Erez Rouvini's statements in his whistleblower complaint. Of course, many will remember the statements that, that Bobby said things like fuck you to the or we will need to say fuck you to the courts to kind of implement the immigration agenda that we want. The particular news that I saw suggested that this whistleblower, in addition to corroborating what Rouvainy has already said, would lend additional support to the claim that Bove was not truthful during his confirmation hearings. But I have investigated seen any reporting on precisely the, the point that the whistleblower's allegation or set of points would which tend to, to call into question from Bove's testimony. But that's, that's, I think what we know.
- [56:38]
Benjamin Wittes
I have seen, however, that the whistleblower has been trying for some days or weeks to get in touch with Republican con Senate leadership slash Judiciary Committee leadership and has been ignored. Is that, is that a fair summary of the matter?
- [57:03]
Scott R. Anderson
I think it is. And I see Roger may have additional things, but, but I think that that additional point is, is what I've also seen in reporting.
- [57:14]
James Pierce
Yeah, that's, that's what I read. I heard as well read as well.
- [57:18]
Benjamin Wittes
I believe the vote is scheduled for next week. And so if anybody on the Republican senatorial side cares whether Bovie told the truth before the Senate Judiciary Committee. And I would just like to remind everybody that he said he had no memory of a meeting or did not recall a meeting at which he reportedly said that they might have to tell the courts to go themselves, which is not the kind of thing when I say that sort of things about courts in meetings with lots of people, I do tend to remember it having done it that often, but I do tend to remember having done it. But Mr. Bovey doesn't remember that sort of thing. And so, you know, if members want to have a opportunity to resolve their own doubts that they may have as to the veracity of Mr. Bovey's testimony. Tick, tick, tick, tick, tick, tick, tick.
- [58:30]
James Pierce
One other thing that that guy, the new whistleblower, it sounds like if he's corroborating Rouvainy, this also reflects on Blanche Todd, Blanche, who was the first one to come to Bovey's defense on Twitter and to say I was at that meeting and it's utter falsehoods what he's saying. And everyone else at that meeting will denies that this occurred. And it has developed that apparently he wasn't at the meeting. He popped his head in, he said something, or least according to Ravaney, he whispered something into Bov's ear and then left and wasn't there for most of the meeting. And this reflects poorly on him as well, if it's true.
- [59:23]
Benjamin Wittes
Yes. All right. Let us talk about the saga of Alina Haba, a woman about whom ballots will be written. The Ballad of Alina Haba. She was the act, the interim U.S. attorney. She's removed. She is now the acting U.S. attorney in New Jersey. I can't keep up with it. What's going on, James?
- [59:57]
Scott R. Anderson
Yeah, this is more shenanigans about interim and acting U.S. attorneys. I think on on last week's Law Fair Live talked a little bit about what was happening and ultimately happened with the U.S. attorney position in the Northern District of New York. And I think at that point we started to see some initial questions about what was happening with Alina Haba in New Jersey. But here's my understanding of where things are. So of course, she was put in as the interim U.S. attorney and held that position. And consistent with the statute, I think it's 28 USC 546, was coming to the end of her term. And at that point, it is up to the district courts to name, assuming that, of course, a U.S. attorney has not been confirmed by the Senate to name a replacement. Now, some people have argued that that process is inconsistent with the Appointments Clause. It is consistent with the Appointments Clause clause on the government's long view that US Attorneys are not principal, but are, in fact, inferior officers. That's the position that the government has taken in Office of Legal Counsel memos. It's a position that a couple of courts of appeals have reached. That distinction is important because for inferior officers, unlike principal officers, courts of law, in addition to the present and certain department heads, can name sort of replacements for those inferior officers, like a U.S. attorney. So Alina Haba is coming to the end of her time. It's up to the US District courts to decide essentially whether to keep her in her role. And I will say that the typical, I would say more often than not, much more often than not, frankly, thing that district courts do is that the attorney general has named an interim U.S. attorney or the President is named an interim U.S. attorney. They hit the end of their time and the US District courts think, okay, this person has done a fine job, kind of kept the ship moving forward, done things in the normal range of federal prosecutorial investigative activities. Sign that person on for essentially until the confirmation of the actual named position but we've seen both. When we discussed last week the Northern District of New York, we saw again here the district court bench, which is not a rubber stamp, basically saying, you know, we don't, I mean, they don't, they don't, I'm glossing a little bit, adding some editorializing because they don't, they don't actually say we've decided here are the reasons why we have not re upped Alina Haba or the Northern District of New York individual, but they say through their, through appointing someone else that they don't have faith in her. So they do that the middle of this week and that promptly gets responses, I think, both from the Attorney General, Pam Bondi, and possibly blanch a lot of this rhetoric like we're not going to stand for lawless or interfering judges. Of course, statements that are, that seem totally oblivious to the actual statutory framework, which has the district court judge doing judges doing exactly what they did, which is appoint someone and gives them that the independent opportunity to appoint someone if they don't have faith in the acting individual or the interim individual. So then what the government does in response or the executive branch does in response is two things. One is, and I should have said this by way of background and many folks will probably already know this, Alina Hava, in addition to serving in the interim role, was also the nominee for the permanent role. And in that position she would not be able, if you, if you switch statutory frameworks and started acting under the Federal Vacancies Reform act to come in as an acting. So what the administration did today was withdraw her nomination for the permanent role. Then I think she was appointed as the first assistant and then named as the acting. I think the real collateral damage here is from, from someone who was by all accounts a good accomplished prosecutor that the district court bench had named as Haba's replacement. And it appears from reporting that she's been removed not only from the role as the sort of acting U.S. attorney, but fired from the department. I haven't gotten full confirmation of that from the reporting, but either way, I think it's a consequence that she did not deserve. And the sort of upshot of all of this is that Alina Haba now has under the Federal Vacancies Reform form act, different statutory scheme, 210 days to serve as an Acting US Attorney, not to be confused with the Interim US Attorney which she was before. I believe, though that will not enable her to get a nomination or at least a kind of a continuous period, a nomination to serve as the permanent U.S. you know, ultimately Senate confirmed.
- [65:01]
Benjamin Wittes
All right, but I want to, I'm now a pissed off district judge judge in New Jersey. And it seems to me that if you're a district judge, maybe the chief judge of the relevant district, you might say, wait a minute, the statute says that we get to appoint the person. We did not have confidence in this woman, can't imagine why, and we appointed somebody else. That person has now been fired and this person has been, you know, gone through mat. The president has gone through machinations or the Attorney General has gone through machinations to install her. Do you have any doubt as to whether her appointment is lawful? And might a district judge in that jurisdiction just say strike indictment that her name is signed to. Why is the government confident that she can be the Acting U.S. attorney under these circumstances?
- [66:14]
Scott R. Anderson
Yeah, I mean it's a good question. Of course, like a district court judge there should not sue a sponte take that action. But I did see some reporting that.
- [66:22]
Benjamin Wittes
But it's, but it's a free card for any defendant to play.
- [66:26]
Scott R. Anderson
Oh yeah, I think, I think defendants will be, will be filing these challenges. And I did see reporting suggesting that the U.S. attorney's office for the District of New Jersey decided to not seek grand jury indictments or other filings that would require the U.S. attorney's signature or imprimatur in these last couple of days so as to avoid potential challenges during that period. Period. You know, I do think we'll see those challenges. You know, the, the kind of realpolitik question of whether judges being pissed off that their authority has been thwarted should, would play into how they assess the legal merits of those challenges. You know, I'd like to think that's not true, but, but, but it might. I, I do think that these, these machinations, as you put it, or shenanigans like I'm not an Appointments Clause expert, but I do think they are lawful. But you know, I think there are non trivial arguments on the other side. But see the bottom line, I mean it just, it seems just as though, and this is very much on brand, that the administration is just looking for fights and looking to try to, you know, see themselves as fighting the judiciary and fighting judges and you know, you can add whatever adjectives you think the administration wants. Rogue, unhinged, lawless. And so for the administration, the sort of potential legal challenges are less important than the public relations battle is kind of my read on the situation.
- [67:59]
Benjamin Wittes
All of which would be merely juvenile if the fight were on the basis of somebody whose Qualifications were a little bit more elevated than Alina Habas. All right. Meanwhile, speaking of suing of lawless, reckless, out of control judges, the executive branch has been suing the court in Maryland because why not? And the court responded, I believe in Tennessee or West Virginia, which, what state is this being litigated in?
- [68:38]
Scott R. Anderson
So it's still in one of the district courts in the, in the 4th Circuit. It is in the western district of Virginia, not to be confused with any of the judicial districts in West Virginia. And it is, it is still captioned as though it is in the district of Maryland. But, but all of the judges, all of whom have been sued, have recused. And it's in front of a. I think Judge Cullen is the judge who's presiding there. And yeah, what we got this week was a response filed by, by the judges. It was a response. It was two things. It was both a response to the government's motion for a preliminary injunction as well as an independent motion to dismiss the prosecution. This was done by Paul Clement and Aaron Murphy's law firm. Obviously extremely talented, capable attorneys and in my view, make a pretty compelling case both on kind of practical grounds and on doctrinal grounds as to why this case has no business being in court at all. Sort of as a practical matter, they do a nice job in likening. And I should maybe, by way of very brief background, the suit is over essentially a standing order that in certain immigration habeas petitions puts in place an automatic day and a half or business day and a half short stay so that, you know, the courts can actually get their arms around what the issue is in front of them before the government moves to remove someone. And of course, in the context of the last few months, things that, you know, the importance of that type of protection is quite important and something that even that the Supreme Court has recognized, you know, some of their later pronouncements notwithstanding, but certainly in the case I think originally known as aarp and now maybe WMM said something like, don't remove anybody pending further order of the court. So the filing just does an effective job of saying, look, this is a basic, functionally an administrative stay that gives courts the chance to take the actions that courts need to take to ensure that all rights are protected. And look, if there's not a viable challenge, then quickly the government will be able to remove folks. And the filing that the Clement filing does a nice job in really challenging the kind of heavens are falling type of claims that the government is making, like, oh, this is fundamentally interfered with and undermined our removal agenda, saying, look, it's put a few days pause on some of these cases, but when it is, you know, courts get, they quickly get to the matter, and if it's not meritorious, then removal proceedings can happen in turn. So that's sort of the practical point, sort of doctrinally, there are, I think, pretty compelling arguments that the case is not justiciable. There's no cause of action. I mean, the government's complaint kind of relies on equity and maybe the All Writs act, but certainly isn't clear. And the filing does, I think, an effective job in pointing that out. It talks about how, you know, even if you got to the merits, there are other ways that the government should have challenged. You could have challenged them in individual cases. You actually could have filed a challenge to the Judicial council for the 4th Circuit. By the way, there's sovereign immunity protections that don't allow you to sue the whole court there. Judicial immunity. Now, we talked about that with the Judge Duggan case in Milwaukee. That's a criminal case. No judicial immunity. This is a civil matter. Judicial immunity would apply and certainly kind of standing order is fully within the scope of judicial acts. So it'll be interesting to see what the government comes back with in response. But to my mind, I think it's a pretty compelling case, again, both practically and legally, as to why this, this case should, should, should be quickly disposed of and we should move on with our lives.
- [72:44]
Benjamin Wittes
All right, so Tulsi Gabbard last Friday released a bunch of documents that didn't do anything like what she said they did, but she said they showed a treasonous conspiracy on the part of the, the Obama administration, the one who has written about this and, and about Pam Bondi's response and the investigation she didn't order up is me. So. But it feels awkward to ask myself about it. So if either of you guys wants to ask me about this, I'm happy to talk about it.
- [73:30]
James Pierce
Ben, could you tell us a little about, catch us up on what Tulsi Gabbard did and how Pam Bondi responded.
- [73:38]
Benjamin Wittes
Why, sure, Roger, I'd be happy to. That's why.
- [73:45]
James Pierce
I'm sorry.
- [73:46]
Benjamin Wittes
Yeah. Asking the tough questions here, Roger Barloff. So, look, this is basically a document dump of material that shows what, that the government and the intelligence community in 2016 didn't believe the Russians were hacking election equipment or count of tabulation software or hardware, which, of course, the intelligence community assessment in 2016 was very clear about. What it said was that the Russians interfered with the election by hacking servers and dumping emails, the so called hack and dump operation, and by engaging in social media manipulation through the Internet Research Agency and other means. And so what Tulsi Gabbard has released is a highly deceptive set of claims that in no way contradicts the so called iac. And she knows that she is, I think it is fair to say, lying, much the way the CIA director in his earlier referral was lying. And so she dumped this material in public. The president was very pleased with it. There's a kind of good New York Times story today about the background to this, but it was kind of obvious from his reaction. And this put Pam Bondi in a sticky little situation because you got to investigate it because the president is thrilled and wants and announced that he wants Barack Obama to be gone after and go to jail and he's, you know, committed treason and he's guilty. But, you know, you can't just open an investigation of anything. You actually need a predicate to open an investigation. You need to be able to write down what you're investigating. And so Pam Bondi issued a statement, I believe two days ago that announced that basically they were putting to they were putting together a strike force course, but it actually didn't say they were conducting an investigation because they're not. And it really doesn't say more than that. They're reading the documents that the DNI sent over. And so I wrote a little thing just kind of outlining, dissecting what she does and doesn't say in this statement. And I think if you read the statement carefully, you will agree with me that she does not announce an investigation. She announces that she's put together a strike force to read some paper, presumably in electronic form. But and so that is what's going on. And I don't think it warrants more time than that.
- [77:02]
Scott R. Anderson
Can I ask you one very quick follow up, though? Of course, which is, I think point taken. And I think there's a compelling case which you make that there is in fact no investigation. But let's just assume that there were an investigation. Do you have any thoughts on what potential charges might come into play? And in answering the question, I'd be curious if I don't know concepts like presidential immunity or the statute of limitations seem like they might have anything to say under these circumstances.
- [77:34]
Benjamin Wittes
Well, so let's deal with Barack Obama first, which is that, you know, if the concept of presidential immunity as articulated in Trump has any application to presidents of the other party, which I assume at least for some justices, it does. Does. I wouldn't necessarily say that it does for all of the six members, but for some of them, there's a neutral principle here. These are clearly immune acts, right? Ordering the intelligence community to issue an assessment, to look at, certain questions to think about. These are core executive functions. And so I think Barack Obama has nothing to worry about here. Now, for the intelligence community leadership, there are a few, few considerations. So first of all, to the extent that there's, that the issue is most felonies that you could imagine having possible application here, the statute of limitations will have run. Certainly, you know, any testimonies to Congress, right. Any. These are five year statutes of limitations were eight years after the fact. So you need something that's going to extend. If you're serious about this, they're not. But if you were serious about it, you need something that's going to extend the statute of limitations. So one of one possibility would be espionage or the, the Espionage act, some, some sort of leaks or something, disclosures. I haven't seen a whiff of a suggestion that there was any conduct like that going, going on. But that would get you around the statute of limitations problem just because those are much longer in those cases. The more plausible strategy would be to use conspiracy law, because with a conspiracy, you can run the statute of limitations from the last overt act of the conspiracy, right. And you could say the conspiracy continued through 2020 or 2024, or you could, if you're in the business of inventing a conspiracy, you can have it run as long as you like. The problem is that the people that they're most interested in, I. E. Jim Comey, John Brennan, James Clapper, were all out of government by 2015. So our 2017. So what exactly is the conspiracy that they could still be involved in that could still be going on by five years ago? So I think if you think about this in a, in a logical way, like a normal prosecutor or a normal FBI agent, this is in the land of fantastical and silly and it's not in the land of, by the way, there's zero evidence that any of these people conspired to do anything illegal. The evidence is overwhelming that they conspired to find a, you know, to, to follow the President's direction and figure out whether the Russians had interfered in the United States election. They discovered and reported on accurately, by the way. No one's really contradicted the IAC and that they did their jobs as requested. And so I, there's no, you know, even if you use the word conspiracy. You have to be conspiring to do something illegal. You can't conspire to follow a lawful request from the president to produce intelligence product. And so I, I don't think there's anything serious to talk about here at all. I do think the thing that is worth talking about here is the abuse of the intelligence community and the abuse of the Justice Department. But I don't believe there's a real investigation. There may or may not be be a farcically predicated investigation, but no, still nobody has explained to me what there is to investigate. All right, we got a couple more things to go over, and then I want to go to audience questions. So, Roger, we've had two major developments in university matters, one at Harvard and one in Columbia. Let's talk about the Harvard hearing. What happened at this hearing?
- [82:56]
James Pierce
Yeah, this was Monday, and it was before Allison Burrows, who's an Obama appointee in Boston. The, this is the first of the Harvard cases, if you remember. And it began when it had to do with a list of grievances that Trump had, some relating to the way it handled the Gaza protests and also some just relating to belief that the faculty and students are too leftist and words also like woke idiots and so on. So in April 11, and of course, the, the treatment of the way they handled the protests was called anti Semitism. And so on April 11, they, they presented Harvard with a list of conditions that they needed to agree to in order to continue to get funding. One was hiring a third party to conduct an audit of viewpoints of Harvard's student body, faculty and staff. And then depending on the audit results, they would have to hire a critical mass of new faculty and admit a critical mass of new students to achieve, quote, viewpoint diversity in each department, field or teaching unit. Three days later, the president of Harvard, Alan Garber, declined. He politely declined. And a few hours later, they froze 2.2 billion in funds, about 950 projects federal funds. Harvard sued April 21. Then more punitive action continued after. After that, McMahon, the secretary McMahon issued a letter known as the no More Harvard Ever letter, which say they would get no more funding that would take, eventually lose 9 billion at 1 point, Trump said in an interview, every time they fight, referring to Harvard, every time they fight, they lose another 250 million. So the claims are First Amendment violations, unconstitutional conditions on funding, retaliation for protected speech and viewpoint discrimination. Title 6, because Title 6 of the Civil Rights act, which does give the government a way to, to punish universities for race discrimination or anti Semitism, but you follow procedures and it's limited to. You would retract funding from things that are related to people who committed these offenses, and the person would get due process. And also the apa, which is arbitrary and capricious action. And the. As Stephen Lihotsky was the main lawyer for Harvard, there were also AAUP as a party, and, and, and so is the uaw, which is a bigger union than just automobiles at this point. But I don't think she's really going to rule on. They were present and they argued. I, I think she's going to rule on the Harvard case first because it's urgent.
- [86:57]
Benjamin Wittes
And, and Harvard did not seek a, a TRO here. They just were like, let's litigate this thing on the merits.
- [87:09]
James Pierce
That's right.
- [87:10]
Benjamin Wittes
Rather than, rather than try to get temporary relief.
- [87:14]
James Pierce
Right, that's right. But as a result, there is now an urgency because the way they do the funding cut off and it's bureaucratic and I don't understand the process, but there's a paperwork closeout that is supposed to begin, like September 3rd, after which the funding freeze would become irreversible. So she knows she has to get a ruling out before September 3rd. And so the gist of the argument was Stephen Lihotsky was their main lawyer, pronouncing it phonetically. It's the constitutional third rail, or should be, demanding that a university develop a critical mass of faculty or students who share the ideology of a particular administration. The government's position. And the government was represented by Michael Velcik, who's a political appointee. He was Josh Hawley's senior counsel and legislative director, and he was also in the White House Council during Trump's first administration. Their position is that this is not about academic freedom, it's about money. And there were these anti Semitic abuses. And the government wants to invoke a provision of the CFR relating to how to terminate federal contracts. And it says they can do it if an award no longer effectuates the program goals or agency priorities. So they eliminate $9 billion with that provision with no due process. And that's their theory. The bigger theory, the more important theory is because this is about money and because it's allegedly about contracts, it should have been filed in the Court of Federal Claims. And that's a more serious.
- [89:28]
Benjamin Wittes
Question.
- [89:29]
James Pierce
And that's where I think the rub will be here. But she did talk a lot about just. She did not regard that as a hard question for her, in part because the First Circuit ruled on Friday, three days before the hearing in a different case, the NIH case, the American Public Health Administration versus NIH, 34 page ruling. It was a stay order, but, you know, not a. It wasn't a one, you know, one paragraph ruling. It was thought out and they upheld this. But obviously it was the First Circuit that the court, Supreme Court stayed a while ago, a couple months ago, in Department of Education versus California, precisely on this issue. And the government is taking the position, they're so sure that that was a shadow docket ruling, but they are taking that as they're so sure that that is now the law, that according to the First Circuit, they didn't even cite the leading decision on the merits of the Supreme Court on this issue, Massachusetts versus Bowen from 1988. So that is the government's position as far as the sort of the merits. Her attitude to give, to give a feel for Judge Burroughs. She said, you know, hold on a second. I am both Jewish and an American, so I hear what you're saying about antisemitism, but what is the relationship between cutting off funding for things like cancer research and Parkinson's and Alzheimer's and all of that to combat. To combating antisemitism. She also said, it sounds to me like you're saying you can terminate the contract for any and all reasons, including if the reason you're giving is a violation of the Constitution. And Belchick more or less said that that was right. He said, so the court should start by interpreting the terms of the contract. These all include terminations for any policy reason referring to that agent, that CFR provision I'm talking about. And that was met. So anyway, that's how it went. Oh, and she finished by saying, and as a Jewish, I am going to say particularly, this is close to home for me. But I think the issue is whether there's a legitimate relationship between our distaste for discrimination and the approach that the administration is taking to the funding and to discouraging that sort of behavior and whether there's any sort of relationship between the two. I haven't prejudged it. So anyway, I think it's clear how she'll come out, but I don't know what the Supreme Court will do when this gets up to them on the port of federal claims issue.
- [92:46]
Benjamin Wittes
All right, so a different university took a very different approach this week. Roger, tell us about Columbia.
- [92:58]
James Pierce
Yeah, and I, I think administrators in university seems a little split. They agreed to pay $221 million to. Actually, I'm not sure to whom to the administration, and I don't know who that money goes to. They made a bunch of pledges which are sort of vague and not in themselves, you know, offensive. The. The university asserts and claims that it has not. They have not agreed to allow any influence on faculty hiring or firing or on admissions decisions or on the content of academic speech. There will be. It's not a consent decree, but there will be a resolution monitor who will see whether they are complying with the. The rules. So it could have been worse, I guess, is the attitude that many academics are taking. And, and, and they think that it might become, you know, a template. Although the amount that. If Harvard wants to go that route, the amount would presumably, and I'm relying on reporting from the New York Times and the Wall, but presumably, you know, if. If Harvard wanted to go that route, they would have to pay a much steeper price. They're talking about at least five more schools. New York Times names Brown, Cornell, Northwestern, Princeton, and Wall Street Journal mentioned Duke. So I guess that's. That's where we are. Penn already made a deal that related to transgender athletes. I don't think there was.
- [94:54]
Scott R. Anderson
I don't.
- [94:54]
James Pierce
I don't. I don't. I don't know how much more was involved than that.
- [94:58]
Benjamin Wittes
All right, finally, one last issue before we go to audience questions. James. The Ninth Circuit responds to the Supreme Court's reigning in universal injunctions on birthright citizenship by issuing a universal injunction on birthright citizenship. I take it this is an unsurprising exploitation of the loophole the Supreme Court left for class action matters. Is that right?
- [95:35]
Scott R. Anderson
No, not quite, actually. So the. The class action piece comes into play, but it's a little bit different than that. So this is a case involving both state plaintiffs and individual expectant mothers. The individual expectant mothers were part of a class that had already been certified under the decision in the District of New Hampshire. And so the Ninth Circuit actually found that they had no standing and kind of booted them from the case. This was about the states. And so the question that was left behind, or one of the questions left behind in the Supreme Court's ruling, was kind of, is it possible that the only way to provide states with the type of remedy that they need would be a universal injunction as to the states? And that is, in essence, what the.
- [96:23]
Benjamin Wittes
Ninth Circuit held on the theory that the states have. Have equities that you cannot satisfy merely by saying, you know, if you. Anybody born in California or in X state has to be given birthright citizenship because some people born in other states are going to move there and the state has to deal with them and figure out whether they're citizens.
- [96:54]
Scott R. Anderson
Yeah, yeah, that's, that's basically right. So, so clearly that they will need to do this for everyone. That's, that is in California. California or Washington or some of the various states. But, but as you say, the obvious fact of mobility and people coming in and out and the states need to establish systems and have sort of programs in place for, for people that is based on citizenship means that the only type of relief appropriate is a universal injunction. The one interesting thing here, there's a lot. But, but, but, but there's a fight between the two judges in the majority. Sorry, a disagreement on a question of state standing, which is where I think the next big fight will be. So the majority obviously holds. The states have standing because their funds are at issue and they have to build systems to kind of apply and give out services. The dissent written by Judge Bernard Bumate, a Trump appointee, makes an extended argument that the pecuniary harms and the sovereign harms that the states articulate aren't sufficient. I think really drawing from Justice Alito's concurrence in the birthright citizenship case and at one point sort of explicitly says something like, we can't just tighten up relief on the one end only to loosen it on the back end. In other words, tighten up this idea that universal injunctions are no longer available, only to now just open up standing in a way that you can kind of get, get around it. So I think that that question of third party standing, associational standing, will be another big fight that we will see. And it wouldn't surprise me, honestly, if the government takes up this question not on the merits. The majority has a long discussion of, of all the reasons on the merits why birthright citizenship is unconstitutional. The dissenting judge has nothing to say about that. I bet you the government will actually seek again to get the Supreme Court involved and make it all about the standing issue that the dissenting judge relied on here, but we'll see.
- [99:03]
Benjamin Wittes
All right, we have four audience questions. We're going to deal with them quickly. Freda asks, and I have no idea what the answer to this question is. I have not looked at the, this executive order, the latest executive order about the possibility of having civil commitment of homeless people considered a danger to themselves and others, and end housing first policy. What would need to happen to stop this EO, especially in states with Republican AGs. Have either of you looked at this executive order at all.
- [99:42]
Scott R. Anderson
No, I have not, unfortunately.
- [99:44]
James Pierce
No, me neither.
- [99:46]
Benjamin Wittes
We're going to have this a little outside our area. We don't really do home housing policy. But in any event, none of us is in a position to address this today. The anonymous attendee asks, I know it's a borderline cynical framing, but does Congress have any power left with respect to the executive short of impeachment? And I'm not talking about the power this Congress has been willingly relinquishing. Answer Absolutely. Congress has enormous power, starting with the power of confirmation. We've just been talking about Emil Bovey. But you know, the power to confirm is also the power not to confirm. Congress has extraordinary spending powers. And you know, Congress, Judge Justice Scalia used to say, I think very wisely that Congress has all of the power if it can get up the energy to use it. And you know, if you simply said to the president we are not authorizing funds for the White House helicopter to tell take you to Mar a Lago. Congress has a lot of leverage over a lot of things and even the most extreme, you know, Palettas and Russ votes do not contend that the president can spend money that Congress has forbidden the expenditure of or that has not been appropriated. And so you know, Congress has a lot of power. That's before you get to any lawmaking power. David asks any chance we'll see a case based on a tainter make it to the courts? Mark Zaid seems to me will get dismissed on standing before it gets to raise substantive issues. Just Roger, do you have thoughts on this?
- [101:57]
James Pierce
Yeah, I think, I think Zaid is the best chance. I, I'm not expecting it to be dismissed on standing. I, I do think there's a hurdle with just the, the substantive law in that area. It's very difficult to, to, you know, the executive, it does have non reviewable power to not give security clearances as long as procedures are followed. So but his is a good chance he did not ask for it at the preliminary injunction stage but did plan to argue with that at the merit stage. So I think that's the best the.
- [102:49]
Benjamin Wittes
The yeah but even that I doubt if, if you got past the substantive law problems which are the intense deference that the president gets on security clearance things, it would be resolved on First Amendment grounds on retaliation before you got to the attainder issue. Right.
- [103:11]
James Pierce
That would be the easier that and in fact he was pushing due process. His lawyer, Abby Lowell was pushing due process as his best. As his best read.
- [103:24]
Benjamin Wittes
All right. Finally, the anonymous attendee, maybe the same anonymous attendee, maybe a different one, asks how long can Trump stall his Wall Street Journal suit before he has to drop it in order to avoid discovery? The answer this one's easy. As long as he can avoid a motion to dismiss. Discovery starts after a motion to dismiss fails, and so you can go through the entire motion to dismiss briefing without, without any discovery. But then when you lose, if you prevail on the motion to dismiss as the the plaintiff, which is if you survive it, you go into discovery. And he's not going to want to go into discovery, in my view.
- [104:16]
James Pierce
I the question I have about that case is why he didn't file in Amarillo.
- [104:22]
Benjamin Wittes
Yeah, it's an interesting question. Maybe because he was hoping for Judge Eileen Cannon. We're gonna leave.
- [104:29]
James Pierce
He filed in Miami, so I don't think, I don't think she would be.
- [104:34]
Benjamin Wittes
In the, in the wheel for that.
- [104:37]
Scott R. Anderson
She is on the wheel for Miami.
- [104:39]
James Pierce
Oh, okay.
- [104:41]
Benjamin Wittes
Well, we are gonna leave it there. James who knows something about Judge Eileen Cannon? If you look on lawfare, the first reference to James Pierce, I believe, is a headline by one Anna Bauer, pierce Argues in Fort Pierce. And it is a story about James Pierce appearing in front of Eileen Cannon. We're gonna leave it there, folks. But we're gonna be back next week. Don't fret. We're gonna be back. There's gonna be a lot of stuff to talk about and it'll be a blast. Take it easy.
- [105:26]
G
The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfair 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 podcast 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.
- [106:23]
Roger Parloff
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