← The Lawfare Podcast
Loading summary
Transcript134 lines
- [00:01]
Benjamin Wittes
The following podcast contains advertising to access an ad free version of the Lawfare Podcast Become a material supporter of lawfare@patreon.com lawfare that's patreon.com Lawfair also check out Lawfare's other podcast offerings, Rational Security, Chatter, Lawfare, no Bull and the Aftermath Ready.
- [00:33]
Quince Ad
To level up your everyday Quince makes premium essentials without the premium price tag. From quality clothing and stylish accessories to travel staples and high end home goods, Quince has it all. And by partnering directly with top artisans and ethical factories, Quince delivers high quality at half the cost of similar brands. Shop elevated essentials without the markup at Quince. Go to quince.comlevelup for for free shipping and 365 day returns. Quince.comlevelup got a new puppy or kitten?
- [01:04]
Lemonade Ad
Congrats. But also yikes. Between crates, beds, toys, treats and those first few vet visits, you've probably already dropped a small fortune. Which is where Lemonade Pet Insurance comes in. It helps you cover vet costs so that you can focus on what's best for you and your new pet. The coverage is customizable, sign up is quick and easy, and your claims are handled in as little as three seconds. Lemonade offers a package specifically for puppies and kittens. Get a'llemonade.com pet your future self will thank you. Your pet won't. They don't know what insurance is.
- [01:46]
Benjamin Wittes
It's the Lawfare Podcast. I'm Benjamin Whittis, Editor in Chief of Lawfare, with Lawfare Senior editors Roger Parloff and Anna Bauer and LawFair Public Service Fellow James Pierce. In a live recording on July 3rd of the trials and tribulations of the Trump administration. We talked about the big beautiful bill and its implications for litigation in the immigration space. We talked about the Abrego Garcia case in all its many forms. And we talked about continued politicization of the Justice Department, which is not getting any better. It is the 3rd of July. Anna Bauer is preempting us with the fireworks in the background. It is 4 o' clock PM and you're watching Lawfare Live. I'm Benjamin Wittes for from the new Lawfare Studio, joined by Roger Parloff in the Scott studio. Hey Roger.
- [03:00]
Roger Parloff
Hey Ben.
- [03:02]
Benjamin Wittes
And James Pierce joining us from the backwoods of North Carolina, where he is on the run from the Law. James, it's good to see you.
- [03:16]
James Pierce
Wonderful here in an undisclosed location. And good to you see you as well.
- [03:20]
Benjamin Wittes
And from the fireworks room of her palatial mansion, it is Anna Bauer. Anna, tell us about the fireworks room. How often does it get used and what are the occasions in which your family retreats to the fireworks room?
- [03:39]
Anna Bauer
Well, we built this room to specific as a dedicated fireworks viewing room. As you can see in the background, there are indeed some. A very impressive fireworks display is happening live on this podcast and it's used about once a year around the 4th of July to specifically again for the dedicated purpose of viewing fireworks. So.
- [04:09]
Benjamin Wittes
And the background image there of people rioting, I see somebody with a.
- [04:16]
Anna Bauer
Is that what they're doing?
- [04:18]
Benjamin Wittes
Oh, no, no. Are they watching what the question is what are they doing?
- [04:24]
Anna Bauer
And feathering somebody? It appears to me that they are in the background looking at the fireworks with things like binoculars or, you know, think things.
- [04:37]
Benjamin Wittes
I see I'm looking at the one on the lower right who's got like a club or something.
- [04:43]
Anna Bauer
Well, that's unfortunate. I'll have to speak with my construct production manager about who built this room, about whether people are being depicted as rioting in the fireworks viewing room. But no, I think that that's just, you know, I don't think that's a club.
- [05:06]
Roger Parloff
Okay.
- [05:09]
Benjamin Wittes
I mean, you're the one in the room. If he's wielding it, it's against you, not me. All right. I'm Ben Wittes, editor in chief of lawfare, and we've got a lot of stuff on the age it today. First, we're going to do something that we don't do that often, which is we're going to talk about legislation because the House today gave final passage to the big Beautiful Bill act or whatever they're calling it today. And most of that bill, which is to say those portions that extend tax cuts and cut Medicaid or whatever you want to call the reductions to Medicaid, have nothing to do with lawfare subject matter. But there are two provisions, one in the bill and one not in the bill, that really do. And so let's we're going to talk about those briefly and I'm going to defer one of them on which we will give a fuller report next week. But the first one, James, there was a provision in the House passed version of this bill that was, you could call it the James Boasberg provision that was designed to prevent district judges from holding the administration or any officials in contempt for violating court orders. What happened to that provision and is it becoming law?
- [06:44]
Roger Parloff
Yeah.
- [06:44]
James Pierce
And so it was a provision that in essence flipped what is a discretionary requirement or discretionary aspect under current law, which was that for Individuals seeking injunctive or other relief, they would judges may require them to post a bond of some sort. And by and large, in the many, many instances, instances where that has popped up so far, in the many, many instances of litigants seeking such relief, courts have not held the parties to that. The contempt provision would have essentially required before you could even get in the door to start litigating, getting injunctive relief litigants to post bonds in the amount of the sort of whatever the relief they were seeking. If they were wrong, what that would cost and that would be prohibitive and essentially mean that you could never move forward. That has fallen out, as I understand it, in the reporting of the Senate bill, the Senate version of the bill, which, which of course was the one that passed first before it went back to the House and passed today. And so that is no longer in the bill and, and will not be part of the big beautiful bill. And so that potential roadblock for litigants and as you say, a mechanism to hold government officials in contempt did not make it through into the final law. That I don't think we've heard yet whether the president has signed it, but.
- [08:26]
Benjamin Wittes
I think that's he will foregone conclusion at this point. Okay. So the other thing that happened in this bill is a truly historic, and I mean historic in the literal sense of having no precedent in history, not in the positive or negative sense, truly historic increases in funding of immigration enforcement. It increases the ICE detention budget by something like $45 billion, which is a nearly tripling of its current annual budget. There is an additional $29 billion toward enforcement operations, and according to the American Immigration Council, $46 billion in border wall construction. And this is also, in addition, an additional $10 billion for DHS. So you're talking about a truly enormous increase in the available monies for.
- [09:58]
Roger Parloff
All.
- [09:59]
Benjamin Wittes
Sorts of aspects of immigration enforcement, notably not including enforcement adjudications. So, you know, you have a lot of ability to detain people, you have a lot of ability to lock them up for however long a bottleneck of adjudication takes, but it does not materially increase the capacity for adjudic those cases. So I think one thing you can expect is many more people to have much longer periods of detention as a result of this, at least absent any additional monies for immigration courts and, and the like. But for our purposes presently, I think you can also imagine many, many more people on the streets, ICE officials and agents that are capable of doing these arrests, along with Border Patrol officials who, of course, don't do interior enforcement, but for our purposes, you know, keep this in mind as we discuss this week and next week, and I will try to next week and give a little bit more comprehensive an account of what is actually going on in the bill in terms of new enforcement spending, what we can expect in terms of other than in aggregate numbers. But, you know, as we talk about these immigration cases, the rate limiting step in, how many of these cases there are is, you know, not the capacity of the courts to hear them. It's the capacity of ICE to arrest people who have or detain people who have cases to bring the capacity of the, you know, how many people, if one in every X files a lawsuit. Right. Raising an issue, how many people are there in, in detention? This is going to raise that number a lot. And it will therefore increase by a lot the amount of disputes that end up in, you know, since all things boil down to how long on Friday or in this case, Thursday afternoons, we spend doing trials and tribulations of the Trump administration. You know, this is a full employment act for us, among other things. And, you know, whether you want to consider that something to be thankful for.
- [12:46]
James Pierce
Or.
- [12:48]
Benjamin Wittes
Horrified by it, it is a, I think a truth. All right, let's talk about the litigation that is currently ongoing. Anna, get us started with Mr. Abrego Garcia, who's had a big week, and it's hard to hard to keep his civil case issues from his criminal case issues. So let's start with the criminal side. He wants to stay in detention. What's going on with that?
- [13:22]
Anna Bauer
Yeah, so we talked about this a little bit. Last week, the magistrate judge declined the government's request to keep Abrego Garcia in criminal custody and in fact, declined to even, you know, hold that they had shown met the burden of even having a detention hearing to begin with. And that so there was supposed to be this forthcoming release order. They were working on the conditions of release with respect to Abrego Garcia, who, again, we've now learned, prefers to be called Mr. Abrego. So I will refer to him as Abrego for the remainder of this podcast.
- [14:08]
Benjamin Wittes
But I will accept when I forget to because I've, I've gotten used to calling him Abrego Garcia. And it's going to, it's going to take me a little while to undo that. And so I'm not doing it on purpose. I'm not, you know, calling him by a name other than his chosen name by way of disrespect or anything, but I'm going to screw up a few times.
- [14:30]
Anna Bauer
And I will, too. And I will say in our defense as well, in terms of screwing up the name, the case caption and the way that his own attorneys refer to him in these cases is, for example, in the civil case plaintiff Abrego Garcia. So it does get a little bit hard to remember to just keep it to Abrego, but I will try to do so when possible. But so we had this issue where it's seemed like he was going to be released, at least from criminal custody. But then there was this outstanding issue in which the government had said that it intended to keep him in immigration custody because he had ongoing immigration proceedings that were contemplated. However, the government was very unclear, like were they going to immediately try to remove him back to El Salvador to a third country? At this hearing before Judge Sinis, the government represented that its understanding was that he would be removed to a third country, but it didn't necessarily specify would it be after his criminal trial occurred, would it be before? So there's all these kind of contradictory statements. The counsel in the civil case tried to go to Judge Sinis to try to get some relief there, get a move back to Maryland and get an order that would prohibit his immediate removal if he was released from criminal custody and then was put into immigration custody that didn't fly. She basically said, I need to hear argument on all these jurisdictional issues. So as a result, Abrego's counsel in the criminal case asked the magistrate judge to stay or put on pause this forthcoming release order that was agreed to by the government. And so there wasn't really much of an issue there in that. Now the magistrate judge has issued an order staying the forthcoming release order until July 16th. That is when we expect the district court judge, because remember, whenever you appeal from the magistrate judge's order, it goes up to the district court judge in the criminal case. And so on the 16th, that judge will have an evidentiary hearing and hear evidence and argument on this question of release from criminal custody. So the magistrate judge has, at least until then, stayed the order of the or the forthcoming order to allow Abrego to be released from criminal custody. Then we go to the civil case, Ben. And in that case, we have a hearing coming up on Monday on various questions that I mentioned regarding jurisdiction. The government has a motion to dismiss the case as moot. And then also there's this outstanding question around an emergency motion that we again talked about last week. So folks can go and listen to that for more information on the hearing that was held on this emergency motion. But there's an emergency motion in which Abrego's counsel is requesting that he be transferred back to Maryland and that there be an order in which essentially the government is enjoined from removing him from the United States or from Maryland without notice. So there's a number of responses to briefing on this issue. Again, the government is arguing that this case is moot. In response, Abrego's team in the civil case has said, no, it's not, because we're asking for declaratory relief still on a variety of issues. One of their main arguments, though, is that the judge previously ordered that Abrego be returned to the status quo. And they're arguing, well, we're not at status quo yet because he's in criminal custody over in Tennessee, and if he's not moved back to Maryland, that is what the status quo would be, would be getting him back to Maryland. And they cite the Supreme Court decision in which the Supreme Court basically said, like the government needs to return him and put him back and treat this case as it would be if he had not been removed. So their argument is that, well, you've got to bring him back to Maryland then. So that's kind of where we are in terms of a variety. Like there's a number of different moving parts in this criminal case, in the civil case. We've got a hearing on Monday on these jurisdictional questions. But one of the other big developments that happened yesterday was this amended complaint, the first amended complaint in the civil case and that I think most notably contained new allegations about the conditions that Abrego suffered during his time at Sakat. It's, you know, some of these allegations are very difficult to stomach because it's horrific. There are things that he alleges, among other things, that he was subjected to severe mistreatment upon arrival at Zakat, including, but not limited to severe beatings, severe sleep deprivation, inadequate nutrition and psychological torture. Specifically, the amended complaint alleges that Abrego was forced to kneel in his cell from approximately 9pm until 6am so for a very long period of time, with guards striking anyone who fell from exhaustion. During this time, Abrego Garcia was denied bathroom access and soiled himself. It also alleges that prison officials at Sakat repeatedly told Abrego that they would transfer him to the cells containing gang members who they assured him would, quote, tear him apart. It also alleges that Abrego actually saw gang members, alleged gang members in other cells violently harm each other with no intervention from prison officials. So some very disturbing allegations here, which results in Abrego's team in the civil case adding to the complaint, among other different causes of action, one that is related to the Convention Against Torture. And they are arguing that essentially if he's removed to a third country or to El Salvador again, he faces a substantial risk of being tortured. Other things in here as well. One of the things that's interesting in terms of the government's repeated arguments that Abrego has, is a member of Ms. 13. There is in this amended complaint an allegation that while he was at Sakat, Abrego was separated from other people who are alleged to be gang members and kind of kept in a different category of people. And so the idea being there that even the people in Sakat did not believe that he was affiliated with a gang. So that's some of the things that.
- [22:35]
Benjamin Wittes
Although it could be more a function of the fact that they were aware that certain senators and certain had concerns about his case and they didn't want him killed.
- [22:48]
Anna Bauer
Right, right. And. And they, and they talk about how essentially, you know, he, there were periods of time in which he was isolated from, you know, being seen by anyone who was a visitor at Sakat until that Van Hollen visit. Essentially, there are allegations about, you know, basically, like when there was a photo opportunity, you know, it was his understanding that there was kind of food that was better or things were kind of managed to an extent to where it looked like conditions were better than they were when there was not, you know, the photographers and media there. So. Oh, one other thing I will mention as well that is important in this amended complaint is that it also adds the it incorporates the whistleblower letter that was from that we discussed last week from Ruvaney, the former DOJ official whose name I probably. The pronunciation, I probably got it right. Butchered. But that whistleblower letter is also incorporated and added into this complaint regarding, you know, the government's efforts to frustrate Abrego's return even after the court order. So I think that that kind of highlights the main updates. Roger James, am I missing anything important that stood out to you?
- [24:29]
Roger Parloff
Those seem like the highlights to me.
- [24:33]
James Pierce
I agree. I would just add there's a certain strangeness to somebody actively seeking to remain in criminal custody after a judge has decided that the government not only hasn't proven the factors that warrant detention, but hasn't even done enough to warrant a detention hearing in the first place.
- [24:53]
Benjamin Wittes
Literally shows up in a Charlie Chaplin movie when they Try to release him. He's a hobo vagrant, and they try to release him from prison. And he says the subtitle says, can't I stay here a little longer?
- [25:09]
James Pierce
Exactly. Right. I mean, other than, other than movies, I have certainly never seen it in my career as a, As a prosecutor, and I think it's just yet another way underscoring the deep strangeness and disturbing aspect of this case.
- [25:23]
Roger Parloff
All right, so if I could add, there is. I would have said in the briefing until today that it was going to be really hard for her to keep control of this case. I mean, the only thing that seemed convincing to me was to go ahead with the civil contempt stuff or criminal contempt, whatever grade. But I thought the, even the torture accusations change everything. They don't change it legally. They change it in terms of the. The incentive to somehow do more. And, and so I, I thought they were significant that way.
- [26:04]
Benjamin Wittes
Yeah. So I want to try to zoom out to, you know, break through to higher ground a little bit and say what is still really at issue in this case. So there's not a great public interest other than perhaps, you know, one of curiosity as to whether he is a gang member who was, you know, can or cannot be proven to be beyond a reasonable doubt to have been involved in migrant trafficking. Those cases come and they go. He has found to be deportable, but has a withholding of deportation to El Salvador. And so assuming he is a. Adjudicated to, you know, that there's some basis on which he could be returned to El Salvador that doesn't violate that, or that gets rid of that, or that there's some third country that he could be resettled in that, you know, isn't a, you know, dropping him in the desert in South Sudan. What is still the question, like, why do we still care about this case? That's, you know, for, for any of you. I have my own sense of the answer to that, but I, But I. It's not, it's not obvious to me what the answer is at this point. Like, he was deported by accident. The court ordered him to be returned. He was returned, albeit under strange circumstances. What, you know, in the, in the spiritual sense of mootness. Why is this not moot?
- [27:59]
Roger Parloff
I'm not sure which. I mean, in, in rule of law terms, this guy who has no. Still, as we stand here, he has no criminal convictions either here or in El Salvador, was sent to one of the worst prisons in the world and tortured by a great many Trump administration officials who are very proud of it. Who are making, you know, Instagram reels of themselves in front of this torture center.
- [28:37]
Benjamin Wittes
But normally, normally we would think of it when you say it in, in the past tense like that, you know, you should file a damages action against Stephen Miller. He should, you know, Kristi Noem, you know, like, has, you know, her middle name is Bivins. But, like, what, what's the active issue other than whether they can prove this criminal stuff beyond a reasonable doubt in a, in a frontward looking sense?
- [29:08]
Roger Parloff
I mean, if you're looking at it from the. I'm sorry, go ahead.
- [29:12]
Anna Bauer
You go ahead, Roger. And then I'll go.
- [29:14]
Roger Parloff
If you're looking at it from the perspective of the Trump administration, everything is always, the paramount concern is always political messaging. And so there was this mistake and they couldn't admit it was a mistake on several levels. You know, first it's incompetence at best. But, but then they had to show no, but the fact that at that point, he has no convictions and he sent him to this terror center. And then it turns out that 75% of the people sent there have no convictions. That's a very bad political messaging point. He's saying that everyone. We're getting out of the country, every single one of them is a violent gang member. And so we're going to, we need to show that this guy is. And ever since then, they've been smearing him in a number of ways. It began with, you know, whatever they had. They had the orders of protection from his wife. They had the traffic stop. There's MS.13. MS.13 is the most. And they've begun to try to, they began to try to create actually a legal defense out of MS.13. They began to say, well, that's now a foreign terrorist organization. And so the withholding of removal vaporizes. And now, in fact, there was no mistake because we could have sent him. And, and that's been rejected. But it's still important to the. That's why this is so important, the bail hearing, because it was going to be so embarrassing after having built up this crime and after. Built up what a supposedly heinous guy he was. You couldn't even keep him in that. He wasn't even eligible for bail, which is what the judge found. And so for them, it's all political messaging at every stage.
- [31:07]
Anna Bauer
Yeah. And I think to that point, though, what I think Abrego's counsel in the civil case would argue, Ben, in terms of what remains, is that there is still the fact that he has not been returned the position that he would have been in had his case been treated like another case had he not been unlawfully arrested and removed. And so I think that that is kind of the basic gist of what they would argue remains of this case. And then also the fact that, you know, like they're, they're also asking for a habeas hearing that he should be released from custody under habeas. And so in terms of the more specific, like Roger did a great job answering the kind of zoomed out version, but in terms of a more kind of specific answer to what they would maybe argue in terms of a high level legal argument, I think that it's. That. What's your, what's your sense though, Ben? About what, what's your own answer to the question?
- [32:13]
Benjamin Wittes
So my answer to the question is that what is prospectively important here is that you don't get to backfill with bullshit a when, when you screw up, you don't get to make up in retrospect, well, he's a bad guy because. And that's true in the immigration context, but it's really true that you can't fill in the gaps in the criminal context. And that's not to say that if he committed a crime, you can't prosecute him for that. There's no exclusionary rule. But you don't get to say our screw up is whitewashed because he turns out to be a bad guy and by the way, then cut a thousand corners in proving that he's a bad guy. And so I think that once, once they invoke the criminal process as an answer to the deficiencies in their immigration law processes, the criminal process, the integrity of that criminal process achieves a kind of importance that it doesn't otherwise have. Like, we make Ms. 13 cases against people all the time and nobody cares. Right. They're not national stories. But because they're using this to try, as Roger says, to, to make him to, to justify what they did, it achieves an importance that it doesn't necessarily otherwise have and it doesn't natively have. The other thing I will say is that the, you know, there is this problem. I think it's a general problem in a lot of law when you're creating a remedy for somebody. You know, are you creating, are they, are you supposed to restore the status quo in which Kilmar Abrego Garcia is standing in a Home Depot parking lot looking for work, for day work and he's free, or are you merely supposed to restore the status quo in which he is, you know, not in Sakat. Right. And he has not been deported. And I think if you're the ACLU right now. And again, full disclosure, some of his lawyers have represented me on some things and I'm very fond of them and I think very highly of them. Look, if you're legal learned or Scott Michaelman, you want to get as close to he's free and in Maryland and not, you know, not in danger of being prosecuted or deported or otherwise legally molested as you humanly can, because you want that remedy to approach making him whole not merely in the sense of a, you know, in as holistic a fashion as possible. And I think that's what's really at issue in the case is what are we going to be satisfied with as, you know, making somebody whole when you've yanked them off the street and sent them to Sickot? I don't know. James, what do you think?
- [35:47]
James Pierce
Yeah, I mean, I think a couple of different reactions. One is, as I understand the status quo ante before all of this started, Abrego had a withholding of removal to El Salvador, but otherwise could have been removed to any other third country. And the government screwed up and sent him to El Salvador and sent him to a place of atrocious misery. And sounds like from his amended complaint, he, he suffered mightily because of it. And rather than kind of squaring up to that and just saying we screwed up, okay, we'll bring it back and then we're going to remove him somewhere else. It's just kind of become, and I think Roger's right, just this ongoing kind of he's bad guy, he's terrible. And all of this messaging, I don't think, and this seems very in keeping with, with Trump in his pre president days and in his, his presidential days. Right. You never acknowledge a mistake and if anything, you just swing and you make sort of threats to the other person. But then if the rubber ever hits the road, you got to get out of there quickly. And so translating that to this context, I think it's. You don't acknowledge that there was a mistake. Now, you know, the threats is essentially the criminal prosecution. And the sense that I get as to why the government wants to remove him, which by the way, again, I think they can to a country other than El Salvador is that they are probably quite legitimately concerned that they don't have the goods on a criminal prosecution. Right. It was enough to sort of make the statement he was a bad guy. But look, I mean, a courtroom is a Crucible. And you know, if this actually moves to trial, would the evidence stand up while the co conspirators or the cooperators stand behind what they said in the or appear to have said in the grand jury? I mean, I have my doubts, but. But possibly so. But yeah, I mean, all of this, I think just stems from certain idiosyncrasies of Trump himself that have been translated writ large to the, to the United States government and the Department of Justice.
- [37:50]
Benjamin Wittes
Yeah. All right, we're going to move on, Roger. A judge that we have not heard from all that much so far on the district court bench, Randy Moss, who is one of the most scholarly and accomplished, I think, intellectual voices on the district bench in Washington, former head of olc, longtime Wilmer partner, very smart guy, wrote quite an opinion the other day on the issue of the lawfulness of the president's attempt to basically suspend all asylum consideration at the border. What's going on with this opinion and how seriously should we take it for.
- [38:50]
Roger Parloff
The reasons you stated? I think we should take it very seriously. It's also very interesting in a couple different ways. Before I get too much into it, I'll just say, by the way, this case is brought by the ACLU and Legalernt, I think the Brago Garcia one is actually one of the few that isn't being brought by them.
- [39:09]
Benjamin Wittes
Is that right? I thought they were.
- [39:11]
Roger Parloff
No.
- [39:11]
Benjamin Wittes
Oh, that was they.
- [39:13]
Roger Parloff
Remember, it's Simon Sandoval Moshenburg.
- [39:17]
Benjamin Wittes
Right.
- [39:17]
Roger Parloff
And now Quinn Emanuel is doing the civil.
- [39:20]
Benjamin Wittes
I am so sorry. I stand corrected. But you know, all the disclosure I made before for applies now.
- [39:27]
Roger Parloff
Now it. Okay, so yeah, this was yesterday, actually. It's how everything gets truncated. I mean, it seems so, so long ago. There's so many things. And this has to do with a proclamation that Trump made the day he was inaugurated. And it's called guaranteeing the state's protection against invasion. And it says the current situation at the southern border qualifies as an invasion because the sheer number of aliens entering the U.S. it's overwhelmed the system. And so as Ben said, if you enter at any port of entry, if you enter over the southern border anywhere except at a port of entry, you can't seek asylum. You can't keep withholding of rem, seek withholding of removal, which we've been discussing, you can't seek any protection under the Convention against Terrorism. And in fact, even if you did enter at a port of entry, in a lot of cases, you can't seek those things if you didn't have a visa if you don't have extensive medical information. And so he. Judge Moss calls that basically a wholesale rewriting of the nation's immigration laws. And so he granted yesterday a summary judgment against implementing this proclamation. And it's also a, it's a length opinion.
- [41:10]
Benjamin Wittes
It's like 130 pages or something.
- [41:12]
Roger Parloff
It's 128. And I can't swear that I've read every one of them. In fact, I can swear that I certainly haven't. But the money line is that the statutory and constitutional provisions Trump has asserted as a basis for the proclamation.
- [41:35]
Benjamin Wittes
Can.
- [41:35]
Roger Parloff
Quote, none of those can be read to grant the president authority to adopt an alternative immigration system which supplants the statutes that Congress has enacted. So that's the gist. It. The theory behind it that Trump had in actually he. One of the key authorities that he was using was one that Ben is familiar with, very familiar with. It's 8 USC section 1182 F. That's the one that he tried to use in the Harvard visa case. It authorizes the president to suspend or restrict entry of any class of aliens he finds would be detrimental to the interests of the United States. There was another vague statute like that he cited. There was also Article 2, just no clause in particular, just, you know, executive.
- [42:38]
Benjamin Wittes
Article two says I can do whatever I want.
- [42:40]
Roger Parloff
The, the, the he can do any whatever he wants clause. And also Article 4, Section 4, which is the guarantee clause, the US will protect each state against invasion. There were. It's also interesting at the sort of, you know, in terms of what we just heard about the universal injunctions, this was brought by 13 individuals and then three nonprofits and as a class action. And it was brought as a class action. And they're from Afghanistan, Ecuador, Cuba, Egypt, Brazil, Turkey, Peru. And he granted yesterday a nationwide class action. It's all indiv. So, you know, it's all individuals who are or will be subject to this proclamation and who are currently in the US Some, some of the plaintiffs had already been removed. He also vacates all of the guidance that has been, you know, by the agencies to implement this. And not just as to the 13 defense plaintiffs, but as to everybody.
- [44:00]
Benjamin Wittes
And he's a representative of a class.
- [44:03]
Roger Parloff
Well, actually, that one is just under the apa, because that's what the APA tells you to do. And, and so these are two, you know, very quick. And, and Stephen Miller is on the warpath already about this, saying that that's what it is. It's a, you know, he's defying or the he's doing an end run around the CASA case. It also rejects some jurisdiction stripping claims, mainly the one that was probably crucial in dvd, which is the one that bars class relief against certain provisions of the immigration law. And the answer is I'm not enjoining the immigration law and I'm enjoying implementation of this crazy proclamation. He also, he, he denied stay pending appeal, but he did postpone the order 14 days, at least the, the class portion of it. But the individuals who are here are immediately benefited by the order. And so he, the 14 days permits the government to seek a stay. They've already appealed. They appealed within hours. So that'll be, this will be an interesting one to watch. We don't, we don't know, I don't know if anyone listening knows. We don't know the new motions panel for July. Or do you, James? Have you seen it yet? Because we just switched to July and.
- [45:39]
James Pierce
I have not seen it yet. And I think we'll have to wait for the first sort of motion to go up to it and just see the names of the judges on the, on the order that then, that then issue.
- [45:48]
Roger Parloff
Okay, anyway, so that's what I have on, on this case.
- [45:53]
Benjamin Wittes
All right, so yes, in response to the chat, we are aware that the Supreme Court has taken an action in dvd. I have asked Anna to do a crash course in the 10 pages of Supreme Court action while we are talking about other things. And you can see the look of concentration on her face. He does that. We're going to talk about some other things. And when, when Anna has finished reading up, she will signal me and we will talk about DVD about which I know nothing. All right. Meanwhile, we had a argument in the fifth Circuit on the Alien Enemies act case. And Roger, I want to ask you about this case, but I also want to ask you about the relationship between this case and Judge Moss saying, hey, there's no invasion here, guys, because granted, the fifth Circuit is not controlled by a district judge in Washington D.C. even a very respected one like Randy Moss. On the other hand, the whole issue in the before the 5th Circuit is do we have to give absolute deference under Ludici v. Watkins to the President when he issues a proclamation that says, you know, Venezuela is controlled by this gang and they're invading. It's a predatory incursion of the United States. And granted, in a somewhat under a different proclamation, Judge Moss says, you know, basically there is the are you frickin kidding me? Principle. And so I did not get the sense that the plaintiffs were likely to prevail in the fifth Circuit. What did you make of the argument?
- [47:59]
Roger Parloff
Yeah, it was. Well, initially, I mean, there's, this is the most conservative circuit there was. So initially I thought this was a foregone conclusion that they. But the panel was actually relatively what a fighting chance sort of panel given the fifth Circuit. There was, there was a Trump appointee named Andrew Oldham, who's 46. There was Leslie Southwick, who's a George W. Bush appointee, who's 75. And James has actually appeared before him and who's. So I, I thought he might be more reachable. And then there was Irma Carrillo Ramirez, who's 61 and a Biden appointee. But nevertheless, I think that this panel will find that the proclamation is valid under the AEA Probably 2 to 1, but possibly all three. And they gave little insight into what due process will be due. It was clear that Ramirez, the Biden appointee, thought that seven days is not enough. Seven days is what the government is currently offering. It was not clear about the others. Oldham, the Trump appointee, thought that basically nothing was just dishable. He kept wondering what authority do we as judges have to countermand the President of the US on any of this? And in fact, he was so into that that he thought that the, the, the aliens don't even have the right to challenge that. They're in Trende Aragua. He had a remarkable conversation with Drew and Sign, who are the. Who was arguing this for the government, where he said, what, you know, why are you. I don't understand why you're saying that. And, and Sign says something like, well, we, we agree with where you're coming from, but the Supreme Court, we, we felt that the Supreme Court had sort of already decided that. And so we were taking that as a given because that's what JGG seems to say. But anyway, that's where he is, Southwick. And this surprised me. He seemed inclined to follow the ruling that I thought was the weirdest outlier liar out there, which is the Stephanie Haynes ruling in Western District of Pennsylvania. She's the one who said it sounds like he feels that predatory incursion is the viable statutory hook for this proclamation. Not invasion, probably, but. And Haynes, if you remember, said that, yeah, if it were just a criminal gang TDA infiltrating the country over time, that would not be enough. That would not be a predatory occursion because it doesn't have a military aspect, but because Marco Rubio called this on February 18, he declared that this is or February 20, I'm not sure what date that this is a terrorist, federal foreign terrorist organization. That changes everything. And to have somebody sending a foreign terrorist organization into the United States, that's a predatory incurred.
- [51:45]
Benjamin Wittes
So can I, can I just say, like, as somebody who has spent more of my adult life than I would like to admit, thinking about the material support statute like that is just wrong as a matter of law. The, the only significance of something being a designated foreign terrorist organization is that it becomes a crime to give it material support. It doesn't mean anything else in US Law. It all it means is that Congress has made it illegal to, to provide material support to an organization that the Attorney General and the Secretary of State have designated as a foreign terrorist organization. It doesn't mean that if they do an attack, it's an invasion. Like, show me where in the law it says that. You, you know, I'm saying this to Drew Ensign and Andrew Oldham. You can't. Because it doesn't. And like the Blithe kind of like, oh, but now it's a foreign terrorist organization. So it means like they cite no authority for that and they can't because it's incorrect.
- [53:06]
Roger Parloff
And remember, it's also the same that day. It's not like he puzzled, you know, for months they, they investigate TDA and, and decide, yeah, we better. It's that day he declares 8 criminal gangs or 12. I forget how many to be foreign. It's a, it's a legal strategy. You know, he wants, it's. He also does Ms. 13. He does some Mexican gangs, he does some cartels. It's, it's part of. Anyway, the other thing that he attached weight to was that if you remember, the FBI had a report saying that they were the dissenting organization, sort of. They had a report saying that they thought TDA really was acting for Maduro and he might be. It might be planning assassinations. The other 17 parts of the intelligence community voted the other way. But, you know, if, if Trump chooses to believe the FBI, why not? And then Southwick also seemed reluctant to weigh in with a bright line ruling on the due process question, even though it sounded like the Supreme Court wanted the court, this court, to, to weigh in there. He was even talking about sending it back to Judge Hendricks, which I don't think the Supreme Court wanted anyway. That, that's the main takeaway, if you remember. There's a.
- [54:42]
Benjamin Wittes
Hang on. Does it matter what the 5th Circuit says on this subject? Because, you know, at some point the 9th Circuit is going to say or the 2nd Circuit or the 1st Circuit or some other circuit is going to say it doesn't mean this.
- [55:00]
Roger Parloff
Well, I wasn't thinking we'd even get, I mean, the way the, the Supreme Court ruling in ARP sounded, it sounded like because some emotions.
- [55:10]
Benjamin Wittes
And then we'll hear it.
- [55:11]
Roger Parloff
Yeah, because remember, they have him. They have in place a, a district wide injunction or order of some kind preventing removals from the Northern District of Texas. And you know, if, if this court says no, there's no need for that, they'll start shipping them out of Blue Bonnet. So I, I don't know if they can wait for these other circuits. So far, just in the past couple of days, There have been two appeals in the other cases, but one's still in the 5th Circuit. It's the Jav case that's from the Southern District of Texas and the other is from New York. But that was just today, so that's not on a fast track.
- [56:03]
Benjamin Wittes
All right, let's talk about.
- [56:13]
Anna Bauer
Only Boost Mobile will give you a free year of service when you buy a new 5G phone.
- [56:17]
James Pierce
Oh, like a BOGO.
- [56:18]
Anna Bauer
A BOGO.
- [56:18]
James Pierce
Buy one, get one BOGO.
- [56:20]
Anna Bauer
Well, technically it's buy one phone, get one year. So BOPGOY.
- [56:25]
Benjamin Wittes
Ah bopgoy. Get the Boost Mobile.
- [56:28]
James Pierce
Bop goy. Deal Bop goy with Boost Mobile, Bob Goy bop goy.
- [56:33]
Benjamin Wittes
Bop goy.
- [56:35]
James Pierce
This is the best idea we've ever had. When you purchase an eligible device, you get $25 off every month for 12 months with credits totaling one year of free service, taxes extra for the device and service plan online only.
- [56:43]
Quince Ad
Ready to level up your everyday Quints makes premium essentials without the premium price tag. From quality clothing and stylish accessories to travel staples and high end home goods, Quint's has it all. And by partnering directly with top artisans and ethical factories, Quince delivers high quality at half the cost of similar brands. Shop elevated essentials without the markup at quints. Go to quints.com LevelUp for free shipping and 365 day returns. Quince.com LevelUp we all belong outside.
- [57:15]
Alltrails Ad
We're drawn to nature. Whether it's the recorded sounds of the ocean we doze off to or the succulents that adorn our homes, Nature makes all of our lives, well, better. Despite all this, we often go about our busy lives removed from it. But the outdoors is closer than we realize. With Alltrails, you can discover trails nearby and explore confidently with offline maps and on trail navigation. Download the free app today.
- [57:46]
Benjamin Wittes
Attacks on law firms the Law firm of Sussman Godfrey.
- [57:54]
Anna Bauer
Wait, do you want. Before we go to law firms, do you want me to talk about scotus? Because.
- [57:58]
Benjamin Wittes
Are you ready to talk about DVD and scotus?
- [58:01]
Anna Bauer
I mean, I can't. I can. Sure.
- [58:03]
Benjamin Wittes
All right. What happened?
- [58:05]
Anna Bauer
All right, so this is the DVD case, which. The DVD case. There's a lot going on in that case, as our colleague Quinta Jurassic has. Has written for Lawfare and has a piece that was out a few weeks ago explaining all of the things in that case. But folks will recall that this is the case before Judge Murphy in which he essentially, there was preliminary. An initial preliminary injunction that barred the government from removing people to a country that's not on their order of removal without providing them with meaningful opportunity to have due process regarding things like, you know, a reasonable fear interview and the ability to raise concerns about treatment in the country that they're being removed to, notice of which country they're being removed to, those kinds of things. And then subsequently, in violation of that order there, a plane took off that was carrying, I believe it was 6 of people who were being. The destination was South Sudan. There was a number of emergency hearings and orders on this. And ultimately, the kind of remedy that Judge Murphy then subsequently issued with respect to this violation was that the people who were on this plane be held in custody on a US base in Djibouti and be given reasonable fear interviews and meaningful opportunity to kind of, you know, have all the things that they were supposed to have had they been provided with that process prior to removal. So that was the remedial order in terms of what the government had to do because it violated his previous class wide preliminary injunction. All of this, the initial injunction went up to the Supreme Court after the government sought a stay. The Supreme Court then issued a very unclear one paragraph order granting the application for a stay of that initial preliminary injunction. It was kind of confusing because, you know, it wasn't really clear what would happen with the remedial order, which is the one that related to those six individuals who had been, you know, taken with the destination of South Sudan. So what Judge Murphy did in response was say, okay, you know, the preliminary junction has stayed, but as to the order that I issued regarding these six individuals, that is still in effect. The government then went up to the Supreme Court on that specific issue. And now today we have an order from the Supreme Court in which they say, yeah, we agree with the government that a preliminary injunction that we have stayed, it is no longer can be the case that the court is enforcing that with a remedial order. And so therefore, the remedial order is also state as well. That is a clarification, they say, of their previous order that was this one paragraph long. And we have a dissent from Sotomayor and Ketanji Brown Jackson, who, you know, argue that the remedial order, the enforcement, should not be stayed. But interestingly, Justice Kagan concurs with the majority of the court. She says, although I do not think that the court should have stayed the initial preliminary injunction, I do agree that now that it has been stayed, the court cannot continue to enforce it through its remedial order. So as a result, it looks like.
- [62:36]
Benjamin Wittes
So the Djibouti guys just get exactly dumped in South Sudan now.
- [62:42]
Anna Bauer
It seems like it, Ben, but what Roger James, I think that you read it as well. What are your thoughts?
- [62:50]
James Pierce
No, I think the way you've summarized it and characterized it is exactly how I've read it as well. I will just add one additional piece of color which is at the very end of Justice Sotomayor's dissent, joined, as you said, by Justice Jackson. There's some, again, pretty heated language. It reads today's order clarifies, and I think that's referring to the fact that this is all in a motion for clarification clarifies only one thing. Other litigants must follow the rules, but the administration has the Supreme Court on speed dial. So you're getting a sense here at the end of the term of, you know, quite a lot of fracturing on the court. And I think we saw this in certainly the sense from Justice Sotomayor and Justice Jackson, as we talked about a little bit last week in the universal injunction case and here again in this disposition of the on the on the motion to clarify.
- [63:46]
Benjamin Wittes
Yeah. And I think you also see here a real divide between Sotomayor and Jackson in particular, and the majority with Kagan mostly with the other, with the other two dissenters about how you should think about balancing of the equities. Right. Like which I don't know if they discuss that here, but, you know, like the government's position is, you know, basically we need the interim rule to be that we can deport people fast to third countries without worrying too much about things like the cat. And the Supreme Court seems to agree with that. And the dissenters are much more solicitous of wait a minute. You know, you got some real irreparable harm if you're deported to South Sudan and, you know, you turn out to be right on the law. There's a, you know, if you're stuck in Sakat or in South Sudan, there's not a lot you can do with it about it. And that's a, I think a recurrent theme in these disputes is the what's the default rule and what happens if we're wrong? All right, back to our regularly scheduled programming. Sussman Godfrey got a ruling, James, from Judge Ali Khan that seems pretty much the same as every other law firm ruling. Is it different and what do we make of it?
- [65:32]
James Pierce
So not, not too different. And as you said, this is the fourth in a, in a series of four of the four law firms that had challenged the executive orders directly targeting them. We had Perkins Coie with Judge Howell as the first kind of a voluminous ruling just about 60 days ago, which is relevant for a moment, for something we'll say in a moment. Then we had, I think Judge Bates is pretty careful ruling in. I believe that. I think he had the Jenner and Block, could be Wilmer and Hale. I think it was Jenner and Block. Then we had Judge Leon's exclamation, you know, chock full of exclamation mark ruling in, I believe Wilmer Hale as well as a gumbo recipe in one of the footnotes. Judge Ali Khan's ruling is any recipes? No recipes. I did not see any exclamation marks. I think it's pretty, doesn't really break in my reading any new ground. Walks through the various First Amendment challenges, retaliation, viewpoint discrimination, freedom of association, rights to petition. Walks through a series of due process challenges and then ends with a discussion of separation of powers. And it's an across the board win for Sussman Godfrey, the challenger giving full kind of permanent injunction and declared injunctive and declaratory relief and does so with Judge Ali Khan relatively new judge on the bench. No fireworks in the opinion, Even though for July 4th it would have been appropriate, I suppose. And so yeah, that's. That was the decision there. Probably not a surprise for anybody who's either been watching this litigation or seen that hearing. The one piece of news that I think is interesting in this space is not so much the Sussman Gottfried ruling itself, but the government's decision, the middle part of this week, to notice an appeal just before the 60 day limit lapsed of Judge Howell's ruling in the Perkins cooie case. So it does now appear we've talked about this a couple of times whether the government would or would not seek to appeal and what has been A string of losses and losses where the judges themselves have not sort of sent signals like, you know, they were, they were waffling. This was a tough decision, but have used pretty strong language to suggest that they think this is a pretty blatantly unlawful set of orders against these four firms. And so we don't have a, we might have a briefing schedule. I haven't, I haven't checked. It will take a couple of months to brief it all up. But we do have confirmation that the government has appealed the Perkins Coey case. Maybe there'll be some effort to consolidate these other cases, but the D.C. circuit will now weigh in on the lawfulness, at least as to Perkins Coey, presumably as to the others.
- [68:17]
Benjamin Wittes
All right, so I want to ask you about the Perkins Coey appeal because part of me says that's insane. And how on EARTH did the SG's office authorize that? Why would the SG think this was a good idea? You have a district court order or four district court orders there, I suppose relatively harmless. They're controlling only as to the parties. Nobody doesn't prevent you from shaking down a different law firm. But you go to the D.C. circuit, it's hard to imagine any panel of the D.C. circuit, even the most conservative panel, not affirming in major part what Judge Howell has done. And all of a sudden you've got some pretty controlling precedent. And so part of me thinks this is a kind of nuts so move by the sg. The other side says, well, wait a minute. You know, just last week we were ringing our hands about what? Whether the, you know, whether the administration will engage in all kinds of gamesmanship with appeals of the Birthright Citizenship Order. Maybe you have these orders and you just don't appeal them. And then all of a sudden you get, you never get a controlling precedent. That's exactly this situation. Right. And yet they have appealed, probably knowing. I mean, John Sauer, the Solicitor General is a reasonably smart guy. He knows he's going to lose this case. And so part of me was kind of cheered by it, like, okay, well, at least they're, you know, not, not appealing things that are going to create controlling precedents. What do you make of the decision to appeal this?
- [70:14]
James Pierce
Yeah, it's a great question. And I have to say I have sort of similarly split reactions from the years I spent in government and doing appellate work. The, the, the SG's office is the, the holder of the keys of the kingdom on, on appeals. And the, the, the general approach of the Solicitor General's office has typically been to be very parsimonious about when it seeks to appeal the government's credibility and its ability to persuade courts of appeals that the argument is right and ultimately if it has to the Supreme Court to take a case. Right. I mean, the battle largely in front of the Supreme Court is, is getting that court to grant cert. Let's put to aside the whole emergency docket that has been much more of a recent phenomenon. And so from that perspective, from a more institutionalist perspective, it does surprise me that the Solicitor General's office would sign off on an appeal on an issue that I think they're going to lose, that I think they think they're going to lose and thus would not seem to be a good use of government, you know, gunpowder, you know, keep your powder dry. They're not doing that here. Right. On the other hand, you know, if you take seriously the idea that the Department of Justice is, is actually not some, a federal executive agency exercising its independent judgment on cases and is essentially under a unitary executive theory, implementing the administration's agenda, and the agenda is we, we never this sort of acknowledge defeat and we fight to the end. You know, maybe that's something that is, that is going on here. You know, I don't know your idea of, or the sort of what you put on the table about potential gamesmanship here. It's hard to see how they could argue if there's an opinion and if, as I would anticipate the government loses that they can say, oh, well, you know, this wouldn't apply to these, to these other firms. Their orders are, you know, this one just says Perkins Coey. It has nothing to do with Sussman Godfrey or Wilmer or Jenner.
- [72:28]
Benjamin Wittes
There are no universal injunctions anymore. So, you know, you know, it's just the parties are the only ones who can get relief.
- [72:36]
James Pierce
Yeah, yeah, right, exactly. So, so, so, you know, we'll, we'll, we'll see. It struck me that a bit of an, of an odd choice, but I'm not sure we have the institutionalist Solicitor General's office anymore. I mean, look, I think it's fair to say if the government thought it had a compelling argument, it would not have been shy to get on the fast boat or whatever your metaphor is, to get on the Supreme Court's stay docket. Right. Or emergency docket. It's clearly been doing that. So the fact that it waited 60 days and filed this one appeal in this one case I think is a fair sense of an evaluate the government's evaluation of the merits of this appeal. But, you know, we've got now something where DC Circuit will weigh in. And one last point, and I'm sure Roger's got thoughts. You know, the firms that settled. I've sort of given some thought about this. You know, they may. They may turn out, whatever you may think of that as a matter of the courage of the firm or whatnot, they may turn out to be able to benefit from a ruling from these firms and not ever have to follow through on their settlements because they can say, look, those settlements that you think we reached, it turns out a court of appeals has said they're all unlawful, and so we're backing out of those deals and there's nothing you can do about it. So.
- [73:51]
Roger Parloff
Although.
- [73:53]
Benjamin Wittes
Although, actually, I want to argue the other side, which is they were never sued. They were never. No action was actually taken against them with the exception of Paul Weiss. Right. There were. There was one where there. But a whole bunch of them reached settlements proactively and preemptively. And so they would have to argue that they get the benefit that this contract that they entered into is null and void because they did it under duress of any legal action. That's actually a complicated argument to make, seeing as how they all went out and, you know, were excitedly announced that they had given nothing up. So I actually think they've got a little bit of a problem, and they might. They. They might not benefit by it in the way that one would hope.
- [74:48]
Anna Bauer
But is there even actually a contract? Like, it seems like there's not. Like, what is the consideration that you're not going to get a targeted executive order?
- [74:59]
Benjamin Wittes
You're like, well, there's presumably some document that they signed. Right. With the administration.
- [75:05]
Anna Bauer
Yeah, but I don't even mean like, the formality. I'm talking about, like, in terms of just the basic, like, can, like, in terms of the, like, requirement that there be some kind of consideration?
- [75:19]
Benjamin Wittes
I just want to say, like, I just want to see Paul Weiss issue the statement that says, fuck the veterans, you know, you know, that we promised to do, you know, $40 million in. In pro bono work for. We're not doing it.
- [75:37]
Anna Bauer
I mean, I guess, yeah, like, clearly on their part, there's an exchange of promises, right. Where it's like, you know, they promise to do things, but, like, it just. It's weird to me that this would be considered a contract, but maybe I was never a contracts person, so I leave it to the contracts experts.
- [75:58]
James Pierce
I mean, I think. I think what the, what the argument on the other side or the consideration would be is that the, the government would, would forswear taking what, what will turn out to be all unlawful retaliatory targeted actions against that law firm. And the question is, can that be, you know, can agreeing not.
- [76:17]
Benjamin Wittes
I won't stab you if you.
- [76:20]
Anna Bauer
Right. It's like, can that count as consideration?
- [76:24]
Benjamin Wittes
Well, I just remember, remember my Thomas Hobbs, where he defines a contract and he, he contends that if you hold a gun to somebody's head and they agree to go into slavery rather than to be shot, that that is a binding contract. And, and I remember reading that as a, like, young student of liberalism and thinking. Huh. That is not part of what, why one of the reasons we remember Hobbes. All right, James, in the ultimate meta moment, the Trump administration is suing the district court in Maryland and that suit has been transferred. What's going on with the administration and suing courts?
- [77:19]
James Pierce
Yeah, so just a quick update. We spoke about this last week. This is the lawsuit the administration has filed against all of the judges on the District of Maryland bench in connection with a standing order that put in place essentially an automatic day and a half stay for habeas petitions in the immigration context because the government had sued every single judge before whom the case might land. The government also sought, and I don't think the judges themselves opposed, a transfer order that went up to the Fourth Circuit, the circuit over which, in which Maryland sits. And the chief judge there just a couple days ago transferred the case to a judge, Judge Thomas Cullen, a judge in the Western District of Virginia. He was appointed by President Trump, obviously during the first administration. Looks like he's got kind of bipartisan ish bona fides. He was a law clerk for Judge Gregory, who is currently a 4th Circuit judge. Judge Gregory himself was appointed initially by Clinton, but ultimately put on the 4th Circuit by, by George W. Bush. George Cullen appears to. Excuse me, Thomas Cullen. Judge Thomas Cullen appears to have been in AUSA for a number of years and then in private practice. So he, a Judge Cullen will now preside over the lawsuit brought against the District of Maryland. The district, Maryland law will still apply, though I think everyone will have to trudge now to Judge Cullen's courtroom in the Western District of Virginia. I don't know exactly where he sits. It may be Roanoke. I, I saw he was a law partner there for a while, but I'm not, I'm not exactly sure of if that's where he has his chambers, in his courtroom.
- [79:02]
Benjamin Wittes
So basically the Trump administration. And no, I don't know why I am fading into a ghostly appearance here. The Trump administration is suing the federal court in Maryland. In Virginia.
- [79:19]
James Pierce
Loneliness as a feeling is part of the human condition, and it's not necessarily my job to rise above it. It's my job to listen to it.
- [79:28]
Mind if We Talk Ad
Feeling lonely is natural, a signal that something's missing. But sitting with loneliness can be hard, and feeling that void quickly often feels like the easiest choice. On the latest episode of Mind if We Talk, host and licensed therapist He Su Jo and her guest Case Kenney discuss the topic of loneliness and how it might be an opportunity to reconnect with yourself and realign with what truly matters to you. If you're looking to fill your life with deeper, more meaningful connections and uncover the difference between being lonely and just being alone, this episode Episode Is for you. Mind if We Talk is available wherever you get your podcasts. Listen and subscribe Today we all belong outside.
- [80:08]
Alltrails Ad
We're drawn to nature. Whether it's the recorded sounds of the ocean we doze off to or the succulents that adorn our homes, nature makes all of our lives, well, better. Despite all this, we often go about our busy lives removed from it, but the outdoors is closer than we realize. With alltrails, you can discover trails nearby and explore confidently with offline maps and on trail navigation. Download the free app today.
- [80:37]
Uber Eats Ad
This is Paige, the co host of Giggly Squad. I use Uber Eats for everything and I feel like people forget that you can truly order anything, especially living in New York City. It's why I love it. You can get Chinese food at any time of night, but it's not just for food. I order from CVS all the time. I'm always ordering from the grocery store. If a friend stops over, I have to order champagne. I also have this thing that whenever I travel, if I'm ever in a hotel room, I never feel like I'm missing something because I'll just Uber Eats it. The amount of times I've had to Uber Eats hair items like hairspray, deodorant, you name it, I've ordered it. On Uber Eats, you can get grocery alcohol everyday essentials in addition to restaurants and food you love. So in other words, get almost anything. With Uber Eats, Order now for alcohol, you must be legal drinking age. Please enjoy responsibly. Product availability varies by region. See app for details.
- [81:40]
James Pierce
Yes okay, I.
- [81:42]
Benjamin Wittes
Gotta say, that's freaking weird. Oh, it looks like I'm coming back into human form now. Not sure what that's about. You know, these things are weird. All right I think we got to get the District of Wyoming into this somehow. All right, let's talk about the corruption of the Justice Department. It was only a matter of time. James, before, for a January 6th, pardon me, went to work for the Justice Department. It has now happened. And he's working for the weaponization group for Ed Martin, the former acting U.S. attorney. What do we know about Jared Wise? And should we be reassured that someone of his stature is keeping us safe from the weaponization of the Justice Department?
- [82:50]
James Pierce
No, I don't. I don't think we should. And this is one of a couple of pieces of January 6th news from this. This current week that I think are pretty, pretty disturbing. So Jared Wise, as you mentioned, Ben, was a January 6th defendant. He was actually a former FBI agent. He was in the FBI, I believe, for. From 2004 to 2017, worked some counterterrorism matters, was involved with the Benghazi, I think, investigation as well, left the FBI in 2017. And according to reporting by the New York Times and others, seemingly because he viewed his career there as having stalled reporting suggests he worked for a brief period of time at Project Veritas, where essentially he was, I suppose, using law enforcement training. He was going undercover to places like teachers unions to, I suppose, gather information that would then be helpful for political purposes. And then fast forward a little bit to January 6, 2021, where he was among the thousands of rioters who made their way to the Capitol. He was not only outside on Capitol grounds, but he went inside the building. He then came outside the building and was near a scrum of law enforcement officers, and according to allegations in the indictment and then also filed in the government's trial brief, and I believe in evidence that was actually introduced at trial. So to sort of cut to the chase, he was pardoned. He was pardoned in the middle of his criminal trial. So on January 20, when the pardon dropped, his criminal trial was proceeding in front of Judge Moss, who we were just talking about a moment ago. The allegations, the evidence at trial suggested that Jared Wise, excuse me, was essentially right in front of a line of law enforcement who were trying to hold back rioters. As the rioters were overcoming that line, Wise was yelling things like, I'm a former law enforcement. You're describing disgusting. You're Nazis. You're the Gestapo. And then as officers kind of fell and were being attacked by rioters, Wise was saying things like, kill them. Kill them. And so he was charged in, I think ultimately a six count indictment that included not only what many of the Rioters were who went inside the building were charged with which were trespass offenses, but additionally with aiding and abetting the assault and the obstruction of law enforcement officers in the midst of a riot of a civil disorder. So he then this week the news broke or within the last week the news broke has has come on board in a somewhat unclear position as a counselor or essentially an assistant to Ed Martin, as you said Ben, on the weaponization Committee, the weaponization task force. It is not clear exactly what that task force is trying to do. The ostensible articulated rationale is trying to root out weaponization in the government. I suppose to my eyes it looks a lot more like they are trying to weaponize law enforcement. And certainly a lot of what Ed Martin did as an interim U.S. attorney would tend to bear that hypothesis out. What precise role wise will play is unclear. But the one thing that seems clear to me is that this is not a good development.
- [86:22]
Benjamin Wittes
Yeah, I think as a general rule I look not a fan of the January 6th pardons, any of them. I do believe in the power of the pardon. I think as a general rule one thing you shouldn't do after you've been pardoned for felonies is work in law enforcement enforcement that there's just some things that you know, there's a kind of. It's not that you can't. The pardon is complete, you know. But it's probably ill advised for the Justice Department to be employing people who required pardons to keep them out of prison. Meanwhile, the anti weaponization Justice Department has fired another three January 6th prosecutors. What do we know about them? And frankly, what took the Justice Department this long? It had kind of gotten rid of all the others.
- [87:29]
James Pierce
Well so not quite the, the, the January 6th Prosecutors or prosecutors who had worked January 6th cases faced basically two fates as far as I could could understand. Those who still were in their probationary periods were fired across the board as employment law seems to permit. Though I believe some are litigating that. I think Emil Bovey during his confirmation hearing when he was pressed on this said things like oh, we thought these were potentially radicals who were coming in to carry out a political agenda. I think there are all sorts of reasons why that is deeply, deeply mistaken. But that was one group of of the January 6th folks who were who were fired from the, from the department. There was also reporting that said individuals who worked January 6th cases were demoted within the US Attorney's office. So these are people outside of their probationary period. They were moved off of management roles and into roles where they were essentially dealing with, with paperwork and we sort of had much lesser levels of, of responsibility. But, but the only other prosecutors who until Friday who had handled January 6 cases and been fired were not probationary folks, were actually people like me and others who had some other reason like also having worked with special counsel Jack Smith. So this is a bit of a new development in that it is three non probationary January 6th prosecution prosecutors. I, I have worked with all three. They are, I'm not going to use their names here. I don't know if it's been reported, the fact of their firing has been reported. But these are all individuals who are, were dedicated nonpartisan public servants. I know at least two of them worked throughout the first Trump administrations. They, they had, you know, no engagement with sort of politicized prosecutions in, in any way. To the second question you ask why? Now that's a mystery. It's hard to tell. The one thing that I can say, and this is purely speculative, is that the three individuals did work on getting a geofence warrant, but there were a lot of other people who did that, too. So hard to see why these three would have been singled out. And I can say that I think there is fear among folks who are remain in government and who touch January six cases. Whether this is the what happened last Friday is kind of the tipping of the, or the start of another round of firings of non probationary prosecutors who handle January six cases.
- [90:08]
Benjamin Wittes
I think it was all about the fact that Emil Bovey wanted to, you know, had his hearing and he wanted to put his best foot forward for the Judiciary Committee. That was a joke, Anna. Meanwhile, the Justice Department is thinking about going after state and local elect election officials. What is that about?
- [90:37]
Anna Bauer
Yeah, there's a report in the New York Times this week that the Justice Department is exploring whether they can bring criminal charges against state or local election officials if the Trump administration determines they have not sufficiently safeguarded their computer systems. It's unclear from this reporting and the reporting specifically says this what exactly which criminal statutes they would actually are contemplating using. Apparently the people who are looking at this have struggled to find a criminal statute that they would charge state or local election officials with. But apparently there has been a number of communications from DOJ that's being sent out to states regarding measures that they're taking to protect computer and cybersecurity systems related to voting secure. You know, I think that for me, as someone who has spent quite literally hundreds of hours of my life reporting on the Fulton County, Georgia criminal case against Trump and 18 others, of which a big part of that indictment is the Coffee county voting system breach. The irony of this is just too much because it seems to suggest that the Trump administration is focused on unauthorized access to or unauthorized attempts to access voting systems or voting data. And if people remember, several of Trump's co defendants in the Fulton county case were specifically charged with efforts to copy and disseminate voting data in Coffee County, Georgia. That was probably the most, the strongest part of, of that entire case. And one reason that I say that is that, you know, there were two of Trump's co defendants, including Sidney Powell, a Trump aligned lawyer who worked on some of his legal issues during the 2020 election, who pleaded guilty to charges related to unauthorized access. At the same time, there are people like Tina Peters who made similar efforts to access voting systems or facilitate unauthorized access to Trump allies. She was previously the elections clerk in Mesa County, Colorado, was sentenced to nine years in state prison as a result of those actions. And the Trump administration has called for her release with the Coffee county charges. Excuse me, the Fulton county charges, Trump has consistently decried those as a witch hunt. And yet now we have this report that, you know, the Trump administration is considering bringing charges against state and local election officials related to cyber vote, failure to secure voting systems. And so, you know, Ben, to me it is, it is interesting in terms of the broader politicization of the Justice Department that we've mentioned, but also kind of the irony of the way that they've treated other attempts to access voting systems. James, I'm curious if you, as someone you know, who has, is a former prosecutor, like, what do you make of this and what would even be the criminal statutes that they might be contemplating? Do you have thoughts on that?
- [94:40]
James Pierce
Yeah, quickly. I mean, I'm disturbed by this. I think the New York Times article mentioned, and I had a similar reaction, that prosecutors were having a hard time identifying applicable statutes to something like, quote, to meet the, the administration's demands, which is problematic on so many levels. One, the idea that the, you know, that these are these demands for prosecutions and then second, the fact that you're, you're kind of, you're picking your targets and then you're hunting around for statutes that that would apply is deeply antithetical to the way that, that federal prosecution and federal prosecutors work. One other quick comment that I'll make on this and this reporting, when you pair the reporting here, the suggesting kind of efforts to use the criminal justice system against state and local election officials with some of the, with the Election Integrity Executive Order that we've talked about a couple of times, which is essentially an effort to take over the Election Assistance Commission, sort of the federal independent agency that is through fulfilling or implementing Congress's constitutional role in federal election regulation, you're essentially seeing an effort, or at least it could be argued that you're seeing an effort by the executive branch and the presidential administration to deeply get its fingers into how federal elections operate. That is itself also antithetical to how the Constitution imagines it. And I don't think it takes much work and imagination to worry about the democracy distorting effect that could have.
- [96:18]
Benjamin Wittes
All right, we have two more subjects to cover, but we're going to have to race through them relatively quickly. So, James, we have a number of developments in the firing board members department. Give us a little overview of what's happened over the last few days in this area.
- [96:43]
James Pierce
Yeah, sure. And I'll keep it, keep it pretty compact. Litigation involving the consumer protection. In fact, I'm now I'm getting the wrong name of the so many of these it's hard to keep track of them all. The Boyle case, which involves the Consumer Product Safety Commission, the cpsc, these, there were three commissioners removed in May. This is a five person commission, deals with product safety. Those three filed suit in District Court. The District court ruled in their favor. The government sought a stay pending appeal, which the 4th Circuit denied. That stay pending appeal was denied earlier this week. And then just I think it's either yesterday, I think it was yesterday the government went back to the Supreme Court on its stay docket and said, hey Supreme Court, remember what you just did in Wilcox and Harris, the removal of the nlrb, National Labor Relations Board and Merit Systems Protection Board cases. You should do that here. And by the way, it's even more pressing in this case because this is a five member commission. President Trump just removed three of them. When, when those three were reinstated, they went back into this agency and started calling meetings and firing people and doing all these things and, and creating this, this havoc and uncertainty. So the government has sought both an administrative stay and a stay pending appeal. The Supreme Court, unlike in Wilcox, didn't put, put in an immediate administrative stay in place. And in fact, the plaintiffs argued that one wasn't appropriate. So as of now, it's still status quo. So that's in that front. I have to say I don't think that the chances for the plaintiffs here are high in another of these cases in front of the D.C. circuit. The D.C. circuit today just Granted a stay pending appeal in a challenge by a removed member officer of the Federal Labor Relations Authority. This is the Grundman case, Grundman v. Trump. And essentially what that that panel, fairly favorable panel to the government. It was Katzis Rao and Walker said, you remember Wilcox, the, the, you know, the, the FLRA is, is substantially similar to the nlrb. And so for the same reasons that the Supreme Court issue to stay in that other case, we're going to issue one here. And so that is the quick and dirty on sort of the agency removal cases that we have seen this week.
- [99:30]
Benjamin Wittes
All right. Finally, Roger, we have a few updates in three letter immigration initials cases bring us up to speed.
- [99:43]
Roger Parloff
So the first is Badr Khan Suri. If you remember, he's an Indian national. He was a postdoc at Georgetown. His wife, a US Citizen had been active on social media criticizing the war in Gaza where she grew up. Rubio issued one of those orders that his presence in the U.S. would cause serious adverse foreign policy consequences. Two days later, he was arrested March 17. And then there begins, you know, one of those, the race to get him to the fifth Circuit. And they, they moved him from Rosslyn to Virginia to Chantilly, Virginia, to Farmville, Virginia, to Richmond, Virginia, and then to Alexandria, Louisiana. And and so the his lawyer finally when he, when he filed the habeas, the guy was touching down in Louisiana but hadn't gotten to the detention facility yet. So one of the key questions is could the judge in Eastern District of Virginia hear the case? And below that was permitted. And, and she released him from jail for First Amendment retaliation. That was not too long ago. That was in May 14th. And so the issue on appeal was not whether there was retaliatory, whether he was in jail because of first retaliation, which was not, you know, contested for these purposes. It was two jurisdictional questions. There was the issue about was he in Louisiana already? And then the other question was whether a bunch of jurisdiction stripping provisions apply. And so this was at the 4th Circuit now and judges win, Andrew win Obama and DeAndrea gist. Benjamin Biden denied the government a stay. And so Badr Khan Suri remains released. Judge Harvey Wilkinson, the Reagan appointee, dissented. He felt a jurisdiction stripping provision should have applied. He didn't like these duplicative having parallel proceedings in immigration court and the, and the federal court. And there was a good, there was a footnote by Judge Wynn for the majority. We cannot so easily consign an individual's liberty to the concerns of bureaucratic tidiness. Our Courts should not become sanctuaries for efficiency at the expense of justice. And that's very moving. And unfortunately, if this gets to the Supreme Court, we know for sure it will be reversed.
- [103:00]
Benjamin Wittes
One other case, right? Yeah.
- [103:02]
Roger Parloff
And just very quickly, it's the Melgar Salma case. This is the guy that admittedly was in Ms. 13 at some point. And this was, he was the 2nd Circuit said don't move him. We, we want until we finish our case. And 28 minutes. They moved him to El Salvador, removed him. He's Salvadoran. Not to Sakat, but apparently to we think to his lawyers think to another horrible prison called Izalco. And so they had ordered the 2nd Circuit last week ordered his government to facilitate his return. And the first order back was due to a response from the government was due yesterday or so earlier this week. And they said we don't know where he is.
- [103:57]
Benjamin Wittes
And that's all right. We are going to leave it there. Only eight minutes over today. I apologize for the sun's behavior today. It is wreaked havoc with my visage. I, I promise you I really am here. I'm not being beamed up to any spaceships or dematerialized. Thanks to.
- [104:26]
Anna Bauer
Can I say one thing too, about my background because I figured out what this guy is doing. He is taking pictures. That's a cell phone that he's holding, not a club.
- [104:36]
Benjamin Wittes
Okay. It's not a club. Well, he's very committed. He's been in the same position for 98 minutes, folks. Have a happy Fourth of July. Thanks to Roger, thanks to James, thanks to the great Anna Bauer and we will be back next week at our regular time on Friday. I have a feeling we're going to have a lot to talk about.
- [105:06]
Podcast Outro
The lawfare podcast is produced in cooperation with the Brookings Institution. You can get ad free versus versions of this and other Lawfare podcasts by becoming a Lawfare material supporter at our website, lawfaremedia.org support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for our other podcasts including Rational Security, Allies, the Aftermath and Escalation. Our latest Lawfare Presents podcast series about the war in Ukraine. Check out our written work@lawfaremedia.org the podcast is edited by Jen Patya and our audio engineer. This episode was Ian Enright of Goat Rodeo. Our theme music is from Alibi Music. As always, thank you for listening.
- [106:03]
Quince Ad
Ready to level up your everyday quince makes premium essentials without the premium price tag. From quality clothing and stylish accessories to travel staples and high end home goods, Quince has it all. And by partnering directly with top artisans and ethical factories, Quince delivers high quality at half the cost of similar brands. Shop elevated essentials without the markup at quince. Go to quince.comlevelup for free shipping and 365 day returns. Quince.comlevelup.