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- [00:01]
Benjamin Wittes
The following podcast contains advertising to access an ad free version of the Lawfare Podcast. Become a material supporter of lawfare@patreon.com lawfare that's patreon.com Lawfair also check out Lawfare's other podcast offerings, Rational Security, Chatter, Lawfare, no Bull and the Aftermath.
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James Pierce
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Benjamin Wittes
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James Pierce
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Anna Bauer
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- [01:49]
Benjamin Wittes
It's the Lawfare Podcast. I'm Benjamin Wittes, editor in chief of Lawfare, with Lawfare senior editors Anna Bauer, Quinta Jurecik and Roger Parloff, and legal fellow James Pierce that its role be.
- [02:04]
Quinta Jurecik
Sort of sharply limited to sort of protecting federal buildings. But instead the judge issued a much broader order. Now he did stay that order until noon today.
- [02:14]
Benjamin Wittes
In the June 13 episode of the trials of the Trump administration, we discussed the legality of President Trump's federalization of the California National Guard, the pretrial detention hearing of Kilmar Abrego Garcia, updates in Alien Enemies act cases, and so much more. Hey folks, Ben Wittes. Here it is Friday, June 13, 2025. It is 4:00pm and you are watching or listening to or otherwise consuming Lawfare Live the trials and tribulations of the Trump administration. I am here with Quinta Jurassic in the Ansel Adams Studio. Hey Quinta.
- [03:12]
Quinta Jurecik
Hello Hello.
- [03:13]
Benjamin Wittes
We're going to have a special announcement about Quinta Jurassic at the end of the show. James Pierce in the Cathedral Studio. Hey, James.
- [03:23]
James Pierce
Hey, how you doing?
- [03:25]
Benjamin Wittes
Roger Parloff in the famed Sconce Studio. Roger, it's. This was the original studio with a name.
- [03:36]
Roger Parloff
Good to be here, Ben. Thank you.
- [03:38]
Benjamin Wittes
And of course, Anna Bauer in the blurred background room of her palatial mansion. This room, I think is somewhere in New York, which is odd for a mansion in Georgia. Look, we guys have a lot to talk about today, but the first item on the agenda is the court action over the occupation of Los Angeles by the US Military. So Quinta, get us started. Charles Breyer, sounding exactly like his brother, presided over a case yesterday. Give us the background. What do we need to know? And what did he do and where can people watch the whole thing?
- [04:33]
Quinta Jurecik
Yes. So Judge Charles Breyer, who is the brother of the. The former Supreme Court justice, is a participant in the Cameras in the Courtroom pilot program, which means that the whole thing was live streamed, which was awesome. Unfortunately, or fortunately, as the judge said, there was not a camera on him. So we don't get to. We don't get to see him, but we get to see both the advocates from a somewhat unflattering angle, I must say. They might want to tweak that for future arguments. And I do not have the link immediately in front of me, but I will drop it in the chat as soon as I have a chance. And you can listen to the recording, which is very, very unusual. And yes, Charles Breyer does sound truly frighteningly like his brother. Like I would have believed that it was Justice Breyer come out of retirement had I not known that that was not the case. I have to say that I thought. Argument I was not expecting. Oh, I see Anna has dropped the link in the chat. Thank you, Anna Bauer, so everybody can take a look at that. I had expected that California would have a tough argument to make here for a number of reasons. I have to say, it became clear, I think, pretty quickly, right out of the gate, that the judge was much more critical of the government's argument here. The government was up first. Judge Breyer almost immediately really started pushing on these questions of whether or not the Trump administration went through the proper process in using this statutory authority to call up the guard. The statute says that that order has to be issued through the governor, but Governor Newsom was not in the loop, although the DOJ did helpfully point out that the memo in question literally says through the governor of California. In all Caps. But Judge Breyer seemed unconvinced that that was sufficient and was also really pushing the Department on whether or not it was making any arguments about the President's inherent Article 2 authority to. To set out this deployment beyond the statutory authority. And interestingly, Anna Bauer had made this point after arguments. The government really did not want to talk about this issue. I can't recall the name of the attorney arguing for the Justice Department, but he was really bobbing and weaving and not wanting to give a straight answer on that. And Judge Breyer was not letting him get away from the question. I think that really set the tone for the rest of the argument. Judge Breyer, then, when the attorney for California got up to argue, I think was much less tough on California to the extent that I think telegraphed pretty clearly what direction he was going to go. Indeed, I think maybe six or so hours later, we got a temporary restraining order issued by Judge Breyer ordering that the National Guard seize its deployment in Los Angeles, which is actually broader than the plaintiffs had asked for. I believe the original request was actually just that the National Guard be that its role be sort of sharply limited to sort of protecting federal buildings. But instead the judge issued a much broader order. Now, he did stay that order until noon today. And the government quickly appealed. It went up to the Ninth Circuit, which then issued its own stay. And then I believe we're going to have argument before the 9th Circuit on next Tuesday. So I'm very curious what everybody else thinks. I will say it struck me as a very well written opinion. I'm not familiar with Judge Breyer's work, but it's pretty clear the argument that he's making is quite straightforward. There are some quirky things, like at one point he cites two Victorian novels in defining what constitutes a rebellion. And there's also some sort of stirring rhetoric in there. He makes a note and I'll just read it. The court is troubled by the implication inherent in defendant's argument that protest against the federal government, a core civil liberty protected by the First Amendment can justify a finding of rebellion. So I think it was pretty clear that Judge Beyer was disturbed by some of the arguments that the government was making here. But overall the ruling is, I think, pretty clear and straightforward, though I don't have much of a sense of how it's going to fare at the Ninth Circuit. So that's my high level overview. Anna James. Roger, I'm curious for all your takes.
- [09:50]
Benjamin Wittes
Yeah. So one group of people who does have a pretty strong sense that this is not going to hold up are various colleagues of ours, Bob Bower, Jack Goldsmith. I was yesterday with a very esteemed national security law professor who considers this one the President is just going to win. And so James, you've read the opinion. What it what do you make of the question of it's like from a normal person's reading, you say is what's going on in Los Angeles plausibly a rebellion? No. And so it seems very reasonable. But from a national security law perspective, you have to start with a whole lot of throat clearing about deference to the President and interpretation of a statute involving the President's commander in chief authority. So how should we game out what this looks like as it goes up the appellate ladder?
- [11:01]
James Pierce
Yeah, I think that's a challenging question. And in full candor, I said I haven't seen yet the arguments that Bob Bauer and Jack Goldsmith and perhaps others have made. But I do think a useful parallel here, and frankly one that Judge Breyer himself draws, is some of the litigation that we've seen, quite a bit of the litigation that we've seen and covered here on the Alien Enemies Act. And Judge Breyer in the early part of his opinion, first on justiciability, in fact, maybe it's only on just justicia ability. He also Judge Breyer has struggles saying it at one point in the hearing. So I feel like I'm in good company.
- [11:39]
Benjamin Wittes
It's a hard word to say.
- [11:40]
James Pierce
It is. And when you syllables than you think.
- [11:43]
Benjamin Wittes
When you put non in front of it and then you end up get saying things like non just. And it's very hard.
- [11:50]
James Pierce
Yes. So I agree. So, so Judge Breyer looked to, I think it was Judge Rodriguez in, in one of the AEA cases and, and basically drew this distinction that, that we spoke about here. And I still struggle with a little bit, which is the courts. So the argument the government was making to contextualize this was, look, the particular provision here basically grants the President carte blanche to decide whether there's been an invasion or a rebellion or the inability of the federal government to execute the law. And the response from Judge Breyer is no, that's the like it is the job of the law, you know, the courts to say what the law is sort of the standard line. And I'm going to take the facts in some sort of objective sense. It's not clear that his reading actually does that. I mean one of the things that I think is very challenging here and I think you put your finger on it, Ben, which is a normal person's an objective, you know, reasonable person's analysis of the facts on the ground, whether we're talking about a predatory incursion under the AEA or rebellion or the inability of the federal government to execute the law seems just downright preposterous. And I think Judge Breyer is very much channeling that, that intuition. And I think he does effective job in building that argument out. He does a better job on statutory analysis, for what it's worth. I mean, he's, he's looking at how to define rebellion at the time that this, the provision was first passed in 1903 does better than the parties on all of that. But where I think the rubber will hit the road and why, perhaps there's the skepticism from folks who think a lot about the national security law implications is precisely this distinction of how much leeway or deference do we give the executive branch and the President to make these kinds of determinations? And if we are giving a lot of Runway or leeway, then I do think it becomes a question of how is the judge, or how is a judge going in here and getting to second guess the president in matters where we typically accord a lot of deference. That said, just to kind of flag a theme that I know we've talked about a lot, at the same time, it is hard to game out how a court, ultimately, the Supreme Court, almost certainly will, on the one hand, want to ensure that the President has the sort of deference to which he or she is entitled and at the same time kind of face up to this mismatch between objective reality and the kinds of things that this administration is saying. And that dovetails with our conversations about presumption of regularity. It's frankly, in my mind, at least, not entirely unrelated to the way in which government attorneys handle themselves in court in a much more kind of aggressive and unhelpful way. And so I don't know how that's all going to cash out. But I do think that, though I agree with Quinta that the order itself is well constructed, I don't think it grapples with the kind of deference issues in the way certainly the Supreme Court will.
- [15:15]
Benjamin Wittes
Right? And so imagine that a well constructed order confronts the question, all right? The, the proclamation, the executive order basically said where, whereas the moon is made of green cheese, there is a rebellion in Los Angeles and I'm sending in troops. Right? So you have a factual premise that's completely incorrect and a conclusion that does not follow logically from the incorrect premise. Presumably the court would not Say, well, I mean, the Pratt, we owe great deference to the President. Right. And so there's some limit to the deference in the face of factual preposterousness. And, you know, I think both in the Alien Enemies act case and in this, you have, we have this working assumption that the President never would enter the realm of, of the factually preposterous, and then he does. But it's not in the realm of so preposterous that no court would ever contemplate deferring to it. And so you get the question of, you know, how preposterous are you allowed to be and still, and still be the authoritative interpreter of that? And I have no idea what methodology the courts would apply to answer that question.
- [16:50]
Quinta Jurecik
So can I make one point, Ben? So just I think that along those lines, it is significant that, as James mentioned in constructing this distinction between the factual assertions the President is making and whether or not those factual assertions measure up to the legal standard that Judge Breyer is drawing on an Alien Enemies act case, which is, you know, I think the sort of most prominent example of, as you say, the sort of whereas the moon is made of green cheese type reasoning that there is sort of a dialogue going on between judges as they're trying to think this through. I don't know whether it will be successful, but I found it striking that Judge Breyer was just sort of looking at how other judges were handling the same issue, albeit in a very different case. And I don't think that. That the connection at all was briefed. So it jumped out at me.
- [17:47]
Benjamin Wittes
Right. And it goes back to this point that Roger has made several times in the Alien Enemies act cases where judges all agree that a certain amount of deference is warranted. But the question is deference to what? Is it deference to the President's assertions of fact? Is it deference to the legal conclusions that you draw from the fact? Is it deference to judgment? Is it all of the above? Right.
- [18:18]
Unknown Speaker
And I think, though, that, and that goes to the point that I think James was making about how the Justice Department, I think, was not helping itself in the hearing or in its briefing, really, in that, like, its position is way more extreme than that they were saying in the hearing that, like, a court can't even look at the factual basis or evidence that a President might have relied on in coming to a conclusion that there has been a rebellion or that he's unable to execute the laws of the United States, which is the statutory language that the President was supposedly relying on, in deploying the Guard. And it, it kind of gets to a point where, yeah, courts do need to find a middle ground, but the Justice Department is being entirely unhelpful in terms of, you know, finding any kind of middle ground because they have such an extreme position that they're taking here.
- [19:24]
Benjamin Wittes
And why, and what is the theory that they articulated behind that position when, when you say it's not reviewable, it's in a statute. Right. Why? What's the theory behind which the President's judgment that there's a rebellion going on in, in Los Angeles is not reviewable?
- [19:48]
Unknown Speaker
So, I mean, I think that they, they've relied on a bunch of cases about just justicia. Ability. James. I'm also struggling with that word. And, and, but.
- [20:04]
Quinta Jurecik
I would need to.
- [20:04]
Unknown Speaker
Pull up the statute. But they also point to this, like, this language or clause in the statute that is saying that the President can mobilize the National Guard. They're kind of ignoring the, like, the fact that the statute says whenever and then it lists the conditions, but they're basically saying that's a really express grant of authority that is giving the President this power. And all that matters is just that he finds these. One of these things. And that he puts it like the furthest that the Justice Department lawyer Brett Shumate, was willing to give is that we might be in a different situation if the President, in his memorandum federalizing the National Guard, did not actually mention a rebellion or did not actually mention an inability to execute the laws of the United States. In that case, as long if he didn't use the magic words, then the Justice Department admits, like, yeah, maybe we'd be in a different situation where courts could review that. But beyond that, as long as the President uses the magic words, then that's all that you have to do. Roger, do you have any more thoughts on kind of the authority that they're relying on there in terms of justiciability?
- [21:29]
Roger Parloff
Well, one of the cases was this 1827 case. It's either Martin versus Mott or Mott versus Martin. And it's, it's pretty distinguishable. But, but I don't think it's a, a trivial reference. It's too, you know, it's basically a guy that refused to answer the call to the War of 1812. And, and so they're saying that he can't challenge the judge, the, you know, the, the President's judgment that he should be called up. And this is an appropriate thing to fight over something like that, but it actually is. He is interpreting a predecessor of this, of this law. It's a version of one of these militia acts. And, and it, and there is exceedingly broad language in there. I, I was actually skeptical about Judge Breyer's ruling and, and probably for more impressionistic and certainly less weighty bases than whatever Jack is saying and, uh, Jack Goldsmith and Bob Bauer. But I just think that, you know, if you're going to try to get upheld with this court, you, you want to play it really straight, sort of like Judge Bates did, you know, the way he writes, very crisp. And I found this A little lecture, a little.
- [23:08]
Benjamin Wittes
Well, the judge's name is Breyer.
- [23:11]
Roger Parloff
And, and liberal. I, I mean, I'll give you, I'll give. There are a few bad things in here. Like, at one point he says, in fact, it is common sense that President Trump is. And Secretary Hegseth's unilateral exercise of federal power risks doing more harm than good. Well, I mean, it may be common sense to us. It's obviously not common sense to a lot of conservatives. And, and is that the way a judge should be deciding these things? And then there's another one that's I think is worse because it's not just rebellion. Remember, there's. They, they rely on two provisions, but, and they did say rebellion in the order, but the, the statute says rebellion or danger of rebellion. And, and so he's trying to get rid of the danger of rebellion part of it. And, and he writes, defendants do not even explain how the court should determine whether, whether there is a danger of rebellion. Well, in saying that, he's really saying it's a political question. You know, if a judge has no way of making a decision and a president does, it's the president's call. I think that's a really damning thing. The, the, the thing also he, in the fact that he grants relief that Newsom wasn't seeking is a bad sign. So there were a lot of things. And I just found myself. And like, like you were saying, Ben, once you're talking about, you know, the danger of rebellion. And the other provision is unable, with the regular forces to execute the laws of the United States. And, you know, there are some Molotov cocktails, there are cars burning, there are some officers trapped in their cars. You know, you're on a continuum. Obviously, historically this would not be considered, you know, and nobody else has used this statute here, but you're on a continuum. And so how do you decide? And I also keep asking myself, well, what if a Democratic president, you Know, you know, what if someday it has a problem in a red state like, you know, Governor Abbott's Texas or Governor DeSantis's Florida, like some county has seceded from the union and, and they won't do anything about it. Does, does he.
- [25:58]
Benjamin Wittes
Bundy.
- [26:00]
Roger Parloff
Yeah. Does, does, does the Democratic president have to negotiate with Abbott first and, or, or, or DeSantis and, and finally that procedural language through the governors. I don't know what it means. I don't, I, I don't know. So anyway, there's a lot of stuff that makes me skeptical.
- [26:25]
Benjamin Wittes
Yeah. So let me boil down Roger's skepticism into a compact single sentence question, which is how many Molotov cocktails and burning waymos before there's enough danger of rebellion that five justices of the Supreme Court will consider that line, one that the president, not they should draw. And I think the answer is you don't need a lot of burning waymos before, before that's how it's going to shake out with a lot of throat clearing about Mott's and deference and. But that's just my guess.
- [27:10]
Unknown Speaker
All right, Can I just say, I think that Roger's point about the, you know, in Republican states is important and also, I believe has historical precedent. I think that that was Johnson federalized the National Guard during the civil rights.
- [27:27]
Benjamin Wittes
Well, there's also, you know, the Civil War.
- [27:29]
Unknown Speaker
Well, yeah, but I'm just saying to protect civil rights protesters who, you know, the idea being that they needed protection. So anyway, just, just wanted to point out that that's not just hypothetical, it's a very real concern.
- [27:49]
Benjamin Wittes
All right, so let's. So nothing is likely to happen on this case until Tuesday, when the 9th Circuit's going to hear it, Is that right?
- [28:02]
James Pierce
We might get some briefs. There's some brief deadline, briefing deadlines over the weekend. But it would be quite surprising if there were actually an order entered on the case before the hearing on Tuesday.
- [28:14]
Benjamin Wittes
All right, then let's talk about Mr. Abrego Garcia. You know, when we started talking about Abrego Garcia, he was a poor Maryland man wrongly accidentally schlepped to a dungeon. And now he's an indictee in Tennessee facing charges about human trafficking and child, and child pornography, but not in the indictment. And he's got an MS.13 thing going. You know, what a difference a little bit of fame makes. James, talk about the file, the arrest filings and the, and the detention hearing, which I believe took place this morning.
- [29:09]
James Pierce
Yeah, it took place and may still be ongoing. There's a reporter there that's been live tweeting or live blue skying what's going on, although it's hard to tell whether that hearing has finished. But yeah, so we talked about this. The indictment had just become public when we started recording a week ago and we kind of briefly touched on it. But where we stand now, as you said, is the indictment, which was issued by a grand jury back in May, May 21, but remained under seal, became public a week ago on Friday. That indictment, though 10 pages worth of allegations, ultimately charges Abrego Garcia with one count of conspiring to transport non citizens and then a substantive count based in November, I think, of 2022. And there had been some public reporting about that stop, even way back before folks were aware of any criminal matters and potentially, and this is a little bit getting ahead of ourselves, but probably potentially before there was a federal criminal investigation to come up with an indictment. So between when we, when we last spoke about this last week and now, we've had a handful of things happen. The government has filed two motions seeking detention, gone a little bit out of order. I had a piece up on Lawfare, I think it was yesterday to try to walk through how pretrial detention would work or might work, work in the Abrego Garcia case. It's an area of some confusion and in fact, courts and prosecutors, I can say this, having been one myself, don't always get this right. But it's essentially a two step process where the government has to establish that there is a basis to even hold a detention hearing and then needs to prove at a detention hearing that no condition or set of conditions would reasonably assure that the person would appear or pose a danger to the community. So Abrego Garcia is in court today for an arraignment, a reading of the indictment and then his plea. He has entered a not guilty plea, which is I think, what we all would have expected. And then the most recent reporting I think suggests that there is still some kind of hearing going on. I won't walk through in detail, but again, we'll refer folks who are interested in getting into the weeds as to all of the government's arguments as to why a detention hearing is appropriate. I will pause and say a couple things about the arguments the government has made. Sorry, why a detention hearing is appropriate, why detention is itself appropriate. As you said, Ben, a couple of things came out in their memo that I don't think had been publicly reported until we saw that things like that Abrego Garcia committed a murder to be or at least admitted to a murder to be initiated into MS.13, that he has had orders try sort of violence committed against his family and sort of efforts to restrain that violence, maybe protective orders entered. And then also a suggestion in the. In the government's detention filings that he has solicited nude videos and images from a minor. Now, now, none of that's a charge in the. In the case. It is at least ostensibly relevant for the government in saying, if we get our detention hearing, these are all the things that show you that. That he is a risk of. I mean, I guess I should say something, right? The government basically has to prove that he is a risk of flight or a risk of obstructing the proceeding. The fact that he is likely to remain in immigration detention makes the idea that he's a risk of flight pretty challenging. And then the question becomes, is there a risk that he will obstruct the criminal proceeding against him? The government doesn't spin out sort of an argument that relies on anything specific to Abrego Garcia basically suggests he's a bad guy associated with other bad ms.13 folks. And in fairness, right. I mean, ms.13 does have reach and probably could very much interfere with some of the government witnesses if it can identify who it is. But a lot of that turns on this question that Roger has looked into and written about, which is what really is the nature of Abrego Garcia's association, if any, with Ms. 13? Hard to tell how much of that is being discussed at the hearing. We may know more. I assume we'll know more as soon as the hearing ends, and there's some reporting of that. It looked like there was one government witness, maybe a law enforcement officer. But beyond that, I don't think we know how much. I'm happy to stand corrected if someone else knows, but how much MS.13 related or other evidence we are getting from the hearing either just finished or currently still happening in Nashville.
- [34:10]
Benjamin Wittes
Roger, you wrote a long piece about what we know about Abrego Garcia back earlier in the civil litigation. Do you. Has the government's release of information or allegations in the context of the criminal case surprised you? Has it changed your view of who he likely is, or is it just kind of up in the air because how much they can prove and what they can say in a brief are two completely or maybe two completely different things?
- [34:50]
Roger Parloff
Well, the MS.13 thing, I think, remains up in the air. Obviously, at least one and maybe more of these six cooperating witnesses is going to say that he's Ms. 13. I think at least a couple say that. So these are, we know that one of them is in custody doing 30 months. It's his third re entry. He's been convicted of transporting. So you know, it's, it's sounding more plausible. But these people have incentives to lie to get, you know, favorable treatment. And so I would say that part is we don't know the, you know what, the stop is a pretty suspicious, you know, the one stop in Tennessee, the traffic stop, that's a pretty suspicious event. It's not, you know, trafficking alone. I think the, the ordinary. According to the sentencing commission, this was cited in the defendant's papers. It's about 15 months is the ordinary sentence for that. The guy that seems to be a bigger deal than abrego Garcia, who's CC's one, the co conspirator one, he got 18 months for that. He's now doing 30 for, for his third re entry but illegal re entry. So I, I, I don't know, I mean I, the Ms. 13 thing and I don't know the quality of the evidence as far as this claim that to get into Ms. 13, he killed somebody. Obviously that would be good to know.
- [37:16]
Anna Bauer
Heather is a nurse practitioner from UnitedHealthcare.
- [37:19]
Benjamin Wittes
We meet patients wherever they live.
- [37:21]
Anna Bauer
During a house call, she found Jack had an issue.
- [37:24]
James Pierce
Jack's blood pressure was dangerously high.
- [37:26]
Roger Parloff
It was 217 over 110.
- [37:29]
Anna Bauer
So they got Jack to the hospital and got him the help he needed.
- [37:33]
Quinta Jurecik
He had had a stent placed in.
- [37:35]
James Pierce
His heart preventing a massive heart attack.
- [37:37]
Roger Parloff
If it wasn't for my guardian angel, I wouldn't be here.
- [37:40]
Anna Bauer
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- [38:49]
Roger Parloff
Shoulders, take a deep breath in.
- [38:55]
Benjamin Wittes
And out.
- [38:58]
Anna Bauer
Feels better, right? That's, that's 15 seconds of self care. Imagine what you could do with more. Visit betterhelp.com randompodcast for 10% off your first month of therapy. No pressure, just help.
- [39:14]
Benjamin Wittes
But for now, just relax. Sorry I was muted.
- [39:26]
Roger Parloff
You.
- [39:28]
Benjamin Wittes
Meanwhile, the civil litigation however, is not over. So we now have this parallel track of civil litigation and criminal litigation. The criminal case being in Tennessee and the civil litigation being before Judge Sinis in Maryland. Now that he's back and he's not in immigration custody anymore, why is there still a habeas petition pending? What is, what are they asking for?
- [40:01]
Roger Parloff
So of course the government is saying what you're saying. Let's dismiss it. It's. We, we complied with your order. It's all moot. We brought him back. That's what you wanted. And the Garcia is saying no, we're going to finish. We need to now we need to do a contempt hearing about what you've been doing for the past nine, 90 days. And they've compiled quite a record and some of it is redacted. But you know, there was this lengthy period of completely pointless discovery, completely ineffective, nothing of value was learned. And, and they claimed that that was bad faith. What they would like to do is still obtain the documents because they want to find out who was making the decisions, the decisions not to cooperate. They believe that obviously this show the fact that he once they had a, a story to tell that was pro administration that you know, they got an indictment, they whistled and, and Bukele sent, sent him back. So it shows that in their view they did have constructive custody all along. And so they would like to get, they would like to know who is making these decisions and they would like the judge to order that on pain of civil contempt, the impo imposing fines which would be imposed personally on the. Apparently you can do that at least they cite cases have the federal officials responsible pay personal fines and have her order that they cannot be reimbursed by the government. And they get pretty, it gets pretty improbable some of the things they've asked for. They would like her to order that the personal devices of key officials, including Pam Bondi should be turned over for inspection. I doubt that we're going to see that. But anyway they've. So it's not, it's not over. We have to see what Judge Sini says about how much longer she's going to try to pursue this and of course they may appeal and try to get get it out of her hands.
- [42:54]
Benjamin Wittes
All right, so two items to Lawfare log rolling here, one related to the last subject we were talking about. Our colleague Scott Anderson had a podcast this morning with the estimable Laura Dickinson and Chris Mirasola on domestic deployments of the military. Everything you could ever want to know about the law of loosing troops in Los Angeles on the Lawfare podcast feed on Friday morning. And Roger, you have a new tracker on Lawfare because we haven't been tracking enough things. Tell us about your new tracker.
- [43:44]
Roger Parloff
Yes, with the help of Tyler McBrien and Anna Hickey colleagues I've tried to put together something so that graphic a table that so you can see all these different Alien Enemies act decisions to date and who has declared it invalid and which districts and what appoint judge appointed them and, and who thinks you need 30 days notice and who thinks you don't need any notice and, and things like that. So I hope you find that useful. And should we talk about some of.
- [44:29]
Benjamin Wittes
Those Alien Enemies act cases?
- [44:31]
Roger Parloff
Yeah, yeah. I mean the big one is AARP which is now called WWW and and by the way, unlike other reporters when, when I, I don't just cover aarp, I'm a member so and I'm sure AARP will appreciate that that plug. Yeah they so it's now called wmm.
- [45:00]
Benjamin Wittes
Are you a member of that too?
- [45:04]
Roger Parloff
And so the big thing is June 30th we'll have the oral argument in the 5th Circuit. This is you know, after the remand from the Supreme Court so that we still have a district wide in effect an injunction. We don't there isn't really a word for what it is. It's an order against removals from the Northern District of Texas. And so the wmm, which is ACLU is the attorneys filed their brief and the government filed its brief two days ago. And the, the big reveal there is that they've now come up with their own. This is their third attempt at due process or the second attempt at due process. But they've had three policies about notice. The original policy from March 14th was no notice at all when you're removing people. The second policy was 12 hours notice that we're removing you and you don't tell them more than that. And if they volunteer out of nowhere I'd like to bring a habeas corpus. Then you give them another 24 hours. Now, now they're giving something that looks plausible to, I'm sure to the fifth Circuit. It will look plausible. It's seven days notice. They tell you specifically you have a right to challenge your t, your trend Aragua designation in a habeas corpus. And they allegedly, they, they give you a list of attorneys and they say that this will be at least read to you in a language you understand. So that is something closer to due process than we have seen before. And, and that's, that's it. I think you're familiar with most of the other arguments back and forth, but that'll be argued June 30th.
- [47:17]
Benjamin Wittes
All right. Meanwhile, we've got a Western District of Texas ruling. The Maps case.
- [47:29]
Roger Parloff
Yeah, this is a woman, a 33 year old woman and it's a class action habeas. The judge is David Brionis. He's a Clinton appointee. It's a good ruling. He invalidates the, the law. I think he's the fourth to do that. He invalidates it on some grounds on the, the absence of an invasion, absence of the predatory incursion. At least three other judges have done that, including one Trump appointee. That's the JAV case, the Rodriguez case that was quoted in Judge Prior's decision. He also says that trend Aragua is not a foreign nation or government. He's the second judge to say that. But two other judges have said they can't really quarrel with Judge Trump's determination there. And then there are some additional findings which additional grounds to strike it down. Some of which I think are, are, are which are being briefed in the WMM case by ACLU and I think are sort of non trivial. I mean, you know, the Alien enemies Act was 1798. It was last used in World War II. And since then a lot has happened. The Immigration and National Nationality act was enacted in 1952 and that provides sort of the main way of dealing with most aliens. And they, and for though, for certain aliens, it's supposed to be the sole and preclusive way of dealing with them. And then there's 1980, there's an asylum law. In 1988, there's a convention against terrorism law. And so the theory is that these preempt, not preempt, supersede. So to the extent that there's some, you know, Trump wants to say the Alien Enemies act gets me around all these other things and they're saying, why would that be? No, these are enacted subsequently. So to the extent there's any conflict, you now have to follow the later law. So I think those are non trivial. But anyway. Oh, and the other thing is he does, he does give ACLU all the due process. It, it asked for 30 days notice. He's the only one to do that. We've had 21 days. We've had 14 days from other judges. So that's new.
- [50:17]
Benjamin Wittes
Well, I will just say that the, the original concept I think of why the INA doesn't supersede the Alien Enemies act is that the Alien Enemies act is only triggered by a war. And then, but then if you define a war or predatory invasion as, you know, illegal immigration by Trenda Aragua, well then you create a conflict in the statutes where there isn't one. Right.
- [50:50]
Roger Parloff
Yeah. And to be, to be fair, the INA provision would apply to some aliens that are covered by AEA and not others. So it gets really complicated. But I think it's a non trivial argument.
- [51:08]
Benjamin Wittes
All right, let's talk about jgg. Poor Judge Boasberg gets stayed again. Yeah, I can't catch a break.
- [51:17]
Roger Parloff
Yeah, I mean it was a panel with three Trump appointees composed of three Trump appointed. But honestly, if I was on that panel, you know, this is the one I think I was talking about last week he issued this order in June 4th where he certified the class of people that were flown to Sakat under the Alien enemies Act on March 15 and said that, you know, he had jurisdiction over them even though he found that there was not that the government did not have constructive custody over them. And that's one that I explained last week. I'm not going to try to explain it again, but a lot of people are going to have trouble understanding that one. And the other thing I say is, you know, he decided that June 4th, that was before we found out Abrego Garcia was coming back. And you have to sort of ask yourself, would that have changed his calculus? You know, if he'd known, would he would that because he was wondering, you know, he kept saying, I don't know if this is a ruse, I don't know if this is a fraud, but they're giving me these declarations I can't ignore. I don't know if, if, if like, like that suddenly Abrego was back, Brago Garcia, maybe it would have affected the calculus but it's too late now.
- [52:46]
Unknown Speaker
But isn't that so and maybe I'm just misunderstanding. This isn't one of the argument from the government then be well, he was brought back under, you know, some sort of extradition agreement as opposed to just.
- [52:59]
Roger Parloff
A volun know there There was no extradition agreement. There was. They did say we have a warrant and. And. And a BR&UK. Oh, a warrant. That changes everything.
- [53:14]
Benjamin Wittes
I'm.
- [53:15]
Roger Parloff
I'm gonna. I'm gonna give you. And so, you know. And that could be, you know. Yeah, that could be. Maybe so.
- [53:28]
Benjamin Wittes
All right, James, let's talk about.
- [53:37]
Roger Parloff
The.
- [53:37]
Benjamin Wittes
Indictment of Lamonica McIver. I gotta say, this indictment kind of surprised me. I sort of thought this was the. This is the woman who got in the way of some ICE officials trying to arrest the mayor of Newark. And they didn't charge the mayor of Newark, but they did charge a woman who kind of put herself in the way and put her hands on one of them, and they kind of really charged her. What's going on there?
- [54:14]
James Pierce
Yeah, we've talked about this incident a couple of times, and the charges themselves flow from a criminal complaint that we saw a few weeks ago. I want to make one quick, quick, kind of overarching comment before drilling into the details a little bit. It might have seemed an odd transition to go from all the focus on the immigration cases to the charging of Representative McIver, but this is, I think, very much a feature of. I can say this. I don't think this is proprietary information, but in the federal government, we used to call crimmigration, which is this bleeding together of criminal law and immigration. And other than it being a kind of sort of nice portmanteau, I think it's. You know, we see that with Abrego Garcia in troubling ways. This is another kind of version of it where you've got a member of Congress that will talk about trying to essentially do some legislative oversight into the immigration process and walking out of it an indicted, I guess we would say indicted felon. She is charged with felony offenses. So with that kind of throat clearing exercise out of the way, this is, again, we've talked about before, the incident at Delaney hall in New Jersey, where three members of Congress, as well as Mayor Ross Baraka of Newark, went to kind of go and try to understand what was happening at Delaney Hall. Initially. Mayor Baraka was charged with trespass. That trespass case was then dismissed. And then, as we, I think, discussed last week on lawfare, he has filed a civil suit against Alina Habba, the acting US Attorney, as well as the DHS special agent in charge here. We have, as we saw a criminal complaint a few weeks ago, the criminal indictment of Representative McIver, one of the three members of Congress. There's a slight difference between the criminal complaint and the indictment, I'm not quite sure what to make of it. In the criminal complaint, she was charged with two violations, essentially the federal assault statute. Forcibly impeding, opposing, resisting with an add on, which is she made, quote, physical contact with the victim. One of the alleged victims was an ICE officer. The other was, I think, a federal Protective Services officer. That add on takes what is otherwise a charge with a one year statute of one year statutory maximum penalty all the way up to an eight year penalty. So she's facing two counts with eight year penalties. And then the third count that the indictment adds, I can't make sense of it. It doesn't actually identify specific victims, and it charges her with what we call simple assault, which is just a one year statutory maximum, and says she has impeded or opposed by force, ICE and federal Protective Services. So maybe that's something to negotiate with on a plea, but I can't quite make sense of that third count. Last thing, I'll say, and I think, Ben, that we had a brief discussion of this when we looked at the criminal complaint maybe some weeks ago. I will be shocked if we do not see from Representative McIver a motion to dismiss arguing that her speech or debate, legislative immunity covers her actions. Here I was looking a little bit at the appellate law under the third Circuit, which is what. Which is where New Jersey falls. I think it's pretty favorable to her. And so I think she will have a pretty interesting, potentially quite compelling argument that the prosecution should just be kicked out at the outset because of legislative speech or debate immunity. I have checked the docket. We haven't seen that yet. She was only just indicted within the last couple of days, but I imagine that will be coming pretty soon.
- [58:12]
Benjamin Wittes
I will just say I found this indictment shocking, and this strikes me as at most a kind of low grade scuffle in the context of a political protest. The idea that you would prosecute a sitting member of Congress over this strikes me as sort of genuinely. I didn't. I did not see this one coming, let's put it that way. And I. And I reading the indictment, I expected there to be some aggravating fact that just isn't there. Quinta.
- [58:57]
Quinta Jurecik
And then, Roger, just out of curiosity, James, I'm curious, is there any obvious reason in your mind why the government dropped the complaint against Baraka but then chose to actually pursue and charge by Grand Jury McIver? I was very puzzled by this. I don't know if there's anything, any distinctions to be drawn between the way that they interacted with the ICE Agents, is there a clear reason?
- [59:31]
James Pierce
So a reason. Anything I say will be speculation. But I will give you my speculation. From reading the indictment, criminal complaints and the reporting on Baraka and Baraka's civil suit as well, it strikes me that at least in Baraka's telling, he shows up at the facility, he's told, you can't be here. You've got to leave. He says, okay, and he kind of walks outside of the area that he's permitted to be in, and then he is arrested. And so that, as a criminal case, strikes me as exceedingly weak, even if you are aggressive in your charging behavior. And so I suspect that may well have led to a decision, probably the correct one, to dismiss it. As you may recall, Quinta and others, it also led to some very strong words from the magistrate judge, sort of almost berating the government and saying, look, you've got an obligation to do justice. I'm glad you got to the right place here. But this never should have taken the form of a complaint at all or any kind of charges at all on the representative McIver. Although I think Ben is right in that I read it kind of as a low grade scuffle. We talked a little bit about this before. Frankly, the statute under which she's charged has been litigated and is not particularly clear. It seems like as long as you've got impeding by force, although what that exactly means isn't clear and hasn't been well developed in the case law, you've got a triable case, I will say. 1 Comment I wanted to add. There's been reporting that the Public integrity section has been cut out of the process of evaluating these prosecutions. Between both the potential legislative immunity and what does not strike me as a particularly compelling factual case, I'm not sure that this prosecution would have moved forward when. When there was that kind of consultation requirement in place. Maybe it happened, but it would surprise me.
- [61:39]
Quinta Jurecik
There's also. She would be tried by a jury of her constituents, I think, which adds a additional weird element to all of this. Yeah, she represents the district.
- [61:48]
Benjamin Wittes
I'm going to go to Roger, but I just want to say you heard it here first. This case will not end in a conviction. Roger.
- [61:59]
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- [64:00]
Benjamin Wittes
You're muted.
- [64:02]
Roger Parloff
I just wanted to ask James in the January 6 cases if you were charging somebody with impeding, it was usually a different statute. It was usually 231A3 and here if you were charging somebody with this statute, it was usually really even though it uses the word impeding, it was usually really assaulting or battery. It was usually something a level worse. Are they is that impeding word interchangeable and and why aren't they using the impeding step change?
- [64:40]
James Pierce
So a couple different things. So 231 requires there to be I think it's civil disorder. So you had to have the background civil disorder which was January 6th. Now maybe there's some argument that what was happening there could rise to the level of civil disorder, but I think that's a pretty far fetched argument to make. And in the January 6th cases you often saw the pairing of 111 what McIver is charged with here and 231. But you are right. Roger that. Where 11111 was charged. You saw often violent, aggressive behavior. Two hundred and thirty one would be the type of conduct you would see charged if you were to charge at all McIver engaged in. But you don't have that predicate civil disorder or interfering with officers who are trying to quell a civil disorder.
- [65:31]
Benjamin Wittes
All right. All of which brings us to our weekly check in on frog embryo lady Senya Petrova herself. Anna, she's had a good day.
- [65:43]
Unknown Speaker
Yeah, she's free. And she's free wearing a hakuna matata shirt, which I, I wholly support. Hakuna matata shirts. That's what she wore when she was coming out of court, as reported by lawfare listener John Hawkinson. John, I was not able to go to that hearing, but John, who is doing a lot of great work covering a lot of these immigration proceedings in Massachusetts and Vermont, covered for Cambridge Day, and his coverage is available@cambridgeday.com I believe is the website had some great reporting and live posting on Blue Sky. So please do check out John Hawkinson's reporting there. But from what has been reported, Ksenia Petrova, who is the Harvard researcher who tried to bring frog embryos, I believe it's clawed frog embryos, as we all know now, into the United States after coming back from Europe, was then detained, kept in ICE custody for several months. Her counsel filed a habeas petition. Ultimately, this habeas petition ended up in court in Vermont. After several hearings, a judge ordered her release from ICE custody. But then that day, I believe, or actually maybe it was the hearing before that, after a judge declined to dismiss her habeas petition. That same day, the Justice Department filed criminal charges against her for smuggling the frog embryos. We've learned more about frog embryos than I ever thought possible. But today, she has now been, despite being ordered released from ICE custody in respect to her immigration proceedings, she has still been kept in custody as a result of these criminal charges. There was a proceeding in which it was supposed to be, you know, a probable cause hearing. And then the question about whether or not she should be released, the probable cause hearing actually did not. It was put off, but they did address the question of whether she was released. And as, as I know from John's reporting from the hearing there, the government did not oppose her release with conditions. The main condition being that she stay within the state of Massachusetts, which I think was a little bit of a surprise, honestly, that the thing is how.
- [68:40]
Benjamin Wittes
They were trying to throw her out of the country two weeks ago.
- [68:43]
Unknown Speaker
Right. And they weren't they were, well, can't leave.
- [68:46]
Benjamin Wittes
You must leave. Well, and can't leave the state of Massachusetts. You have to go back to Russia. Get your story straight, guys.
- [68:55]
Unknown Speaker
And they specifically were trying to send her to Russia, where she has a history of being politically persecuted. And so there. There was a lot of. Of things here that were, you know, kind of surprising in terms of the government agreeing to her release. They did. However, again, I'm a little bit interested to see what's going to happen with this case. I. Again, from John's reporting, my understanding is that in statements after her release, there was some talk from her council about how she isn't sure if she wants to stay in the United States ultimately, and that she has job offers from other countries. I also understand that, again, they put the probable cause hearing off that was supposed to occur that day. I also believe that she was initially charged by complaint and that there's 30 days, you know, that there's supposed to be an indictment to follow. I think she was initially charged around this time last month. And so that window of. Of having an indictment seems to be, you know, very much close. So. So we'll see what happens. I don't know if maybe there's a deal that could be forthcoming or if this case maybe results in her leaving the country and the charges dropped. Something.
- [70:28]
Benjamin Wittes
I have three words for you. Yes, no true bill.
- [70:34]
Unknown Speaker
That's also the other option is that there's a no true bill. So. So we will see. And yeah, that's the update on Petrova. She is free for now.
- [70:47]
Benjamin Wittes
All right, it's time for this week's edition of the Game. Let's dismantle a federal agency. Our two contestants today are James and Roger. James, you're taking apart the Social Security Administration today.
- [71:08]
James Pierce
This might be a little category bleed. You know, I think this is really more a DOGE thing than a taking apart the Social Security thing. But, you know, it is hard to keep. To keep track of all this stuff.
- [71:18]
Benjamin Wittes
Yeah. All one game at the end of the day, unfortunately.
- [71:22]
James Pierce
Maybe so. So this is the Supreme Court emergency docket ruling that came out actually last Friday, where we tried on the fly, and I covered one. We didn't have a chance to talk about the other. This is a case where basically a bunch of advocacy organizations, labor unions, tried to stop DOGE getting access to Social Security Administration information, were successful in the district court, getting a preliminary injunction. There was a stay put on by the Fourth Circuit panel. The Fourth Circuit, somewhat unusually, went en banc and undid the stay pending appeal that the panel had put in place. And then the government went to the Supreme Court, and the Court, as I said just on Friday, ruled in favor of the government essentially enabling DOGE to get access to Social Security information. Very short order. The reasoning, such as it can be described as reasoning, basically boils down to a single sentence after the Court sets out the stay standard. We're all very familiar with likelihood of success on the merits, irreparable harm, balance of the equities. All the Court says is we conclude under the present circumstances, Social Security Administration may proceed to afford members of the ssa, the Social Security Administration DOGE team, access to the agency records in question in order for those members to do their work. Doesn't talk about the merits, doesn't talk about irreparable harm, just sort of says it. Justice Jackson has a. So Justice Jackson, joined by Justice Sotomayor, has a dissenting opinion. Justice Kagan also would have denied the application, but doesn't write or join Justice Jackson's opinion. What Justice Jackson says, as she had said in a case, another of these emergency docket applications, is that the Supreme Court is essentially remaking the stay standard. It's taking irreparable harm entirely out of the analysis and reducing this to essentially just their guesses about their intuitions on the likelihood of success and the merits. And that's having negative consequences for a lot of the parties. So I think that's a pretty compelling argument and one that I think some commentators, including Steve Vladek, have picked up, which is, I think, what Roger wanted to talk about.
- [73:46]
Benjamin Wittes
Yeah. So my notes say, Roger, that you want to do a short aside on some Vladec stats. Go for it.
- [73:54]
Roger Parloff
And before I do that, can I just. There's an expression I think we ought to introduce. I don't know if I've introduced it before. The, these DOGE cases where you go into the computers, ultra sensitive information. The reason, and the reason that, that the majority might have denied this is that there's this dispute about is, do you have standing if somebody is rooting around your material? But they haven't. You haven't, they haven't really pirated it yet. They haven't sold it to, you know, the dark Web. And, and is that a, is that enough for standing? And the, and the, the people saying it is have likened this to a common law tort, which I had never heard of, called intrusion upon seclusion. Now.
- [74:46]
Benjamin Wittes
Oh, it's one of the, one of the original Brandeisian privacy torts.
- [74:51]
Roger Parloff
Oh, the intrusion on seclusion.
- [74:53]
Benjamin Wittes
Torture.
- [74:54]
Roger Parloff
Oh, so everyone knows intrusion on seclusion but me? Okay, never mind.
- [74:58]
Benjamin Wittes
I'm not sure everyone does, but I. It's there. Yeah, it's, it's.
- [75:05]
Roger Parloff
Tort class recently, what did you learn? Intrusion upon seclusion or.
- [75:12]
Unknown Speaker
Roger, I'm the wrong person to ask.
- [75:14]
Roger Parloff
Okay, okay, so I will just give you then what Vladek, in his sub stack, he had some stats which I thought were interesting. He. At this point, there have been 12 emergency petitions since Trump took over, and in 10 of those, the, the government has won at least some relief. One, the 11th was moot and the 12th was AARP where, where the other side was one of the 10, where the government won eight of them. The three Democrat appointees dissented and only them. And in the other remaining two, at least one of the Democratic appointees had a noted dissent. So it's, it's extraordinarily, uh, divided, politically divided.
- [76:22]
Benjamin Wittes
All right, which let us turn to. It's like a. This is our throwback segment to back when we used to do Trump trials. The second Circuit Court of Appeals, Anna, heard arguments in the People v. Trump or the attempt to remove that again under the Westfall Act. What's going on there? Isn't he just a con, a 34 time convict then? Can't we leave it at that? At this point.
- [77:04]
Unknown Speaker
You would think, but no. This is Trump's criminal case is back in court for People very briefly and just sticking with a kind of broad stroke summary because there's a long procedural history here. Trump's New York criminal case, he initially tried to remove that case. That was rejected. And by remove, I mean removed to federal court under the federal removal statute that allows people who were indicted for or related to acts taken under color of federal office and who are able to raise a colorable federal defense to remove their case to federal court before a federal judge and a federal jury tried to do that, was rejected. Case goes to trial. Trump is convicted on 34 felony counts and then shortly thereafter, the Supreme Court issues its immunity decision in which it as a part of that opinion includes a part of it that says even if a president is indicted for acts that aren't, that are unofficial acts that aren't related to his official duties within, you know, the absolute power of his office, then even then, if there's an effort to bring in evidence of official acts to, you know, prove up that conduct, then that evidence still cannot be admitted. So they came up with this kind of evidentiary rule. So in the wake of that, because Trump's criminal trial in New York had a lot of evidence in it that included things like conversations between Trump and White House Communications Director Hope Hicks. It included tweets that Trump made while he was president. It included things that he was, testimony by a White House administrative official, Madeleine Westerhout, about things Trump was doing while he was in office, all of that kind of stuff. There then in the wake of that decision is an effort by Trump's team, like two months after the decision to file a second notice of removal to federal court. They, in that effort to remove, relied on a provision of the statute that says that you can file a second notice so long as good cause is shown. Judge Hellerstein rejected that effort to even file the notice and to get a hearing on it and all that kind of stuff. And then now after Trump's election and his inauguration, it has gone up to the 2nd Circuit and the 2nd Circuit heard argument on it. I think that the 2nd Circuit, but based on this oral argument, it seems like the 2nd Circuit thinks that there is kind of maybe some kind of arguable case here for removal. But, but, but they don't seem entirely convinced of it. Like it's, I think based on what the kind of questions they were asking, it seems like what they might want to do is remand back to Judge Hellerstein to hold some kind of further briefing or a hearing on whether or not there is good cause to even file the notice of removal and so kind of have a further process.
- [81:11]
Benjamin Wittes
And.
- [81:11]
Unknown Speaker
Then it might go back up after that. But it certainly seems to be the case that this panel, which is a three judge panel that includes Roger, correct me if I'm wrong, I think it's, it's two Biden appointees and one Obama appointee, but in any case is all Democratic appointees. But Roger, curious for your thoughts on and your take, because I know that you listened to it and James, you as well.
- [81:38]
Roger Parloff
I thought the same as you. I thought that was the most likely. I don't think they were sure what to do. I think Hellerstein is, I think, 91 years old now. And if you remember that situation, there was this overwhelming sense that Trump and his lawyers were delaying and delaying and delaying at every single opportunity. And he had had it. And so he devoted just over three pages to this motion to denying it. He denied it the day it was filed. And it was a very complex issue. And I think they might feel he didn't do justice to it and it needs to go back.
- [82:20]
Benjamin Wittes
Well, I will just say that all of this is a tempest in A teapot, because the Supreme Court is going to overturn this, this conviction on the basis of a retroactive application of the immunity decision to it. It's just a question of how many steps we have to go to get there. And so I say if Trump wants to be in federal court, fine, let him grease the wheels for him up so that we can all learn that it was illegal to get Hope Hicks his testimony. That's my view of the matter, having sat through the whole thing and had everybody waste my time as a result of not having the benefit of that decision earlier. Meanwhile, James, we have a. Yeah, go ahead.
- [83:16]
Unknown Speaker
Sorry.
- [83:17]
Benjamin Wittes
A partial stay in AP V. Buddha, which. Who is. What is AP V. Buddha? Which. And does it have anything to do with Pete Buttigieg?
- [83:30]
James Pierce
All right, so the cost for me answering that question is me giving two seconds of thoughts on the Second Circuit oral argument first. So it's the price of admission to everyone's going to be on their seats about whether Buttowich and Buttigieg are in fact the same person. I just wanted to add, it was to me, so two things. One, very interesting how much emphasis was placed on what Jeff Wall, the advocate for Trump, was calling the evidentiary immunity, which was the portion in the immunity decision that dealt with, well, look, even if there isn't a kind of a broad criminal immunity, what about some kind of evidentiary componen that could come into play and be used analogizing to other areas of immunity law? There is an argument that that entire part of the Supreme Court's decision is entirely dicta. Right? Like the question was not before them whether or not they should or should not create an evidentiary immunity. The court, the otherwise 6, 3 court, seemed to break 5, 4 on that. And so there may be some play in the joints there. Even aside from the question that was kind of, that seemed to be kind of kicked around, which is like how important to the overall case was the Hope Hicks conversation, which I should say adds a second part of this so called evidentiary immunity. Jeff Wall was arguing that, look, this is akin to a structural error. One of the judges, I can't recall which one, was like, well, why isn't this kind of like a harmless error argument? We got to figure out how important this is to the case as a whole. All of which I think underscores kind of how much this, how underdeveloped this doctrine is and how much still needs to be sussed out. Maybe I'm just still gnashing my teeth over a bad experience with this whole immunity thing. But I do think that like this.
- [85:24]
Benjamin Wittes
Kind of you won at your level.
- [85:28]
James Pierce
That's right. After that, after that, the wheels fell off.
- [85:30]
Benjamin Wittes
After that, that dream guy blew it at the, the Supreme Court.
- [85:34]
James Pierce
But you know, it will be interesting to see in this much more discreet kind of evidentiary quote, immunity question whether the, whether the Supreme Court, assuming it goes there, as I tend to think it will, will be as bullish about kind of carving off even that little of a conversation in what was otherwise a very different case. Second thing I would just say is I found it extremely refreshing to hear a very well argued case by advocates who are extremely responsive to the panel. I think Jeff Wall did a great job. SG is a terrific advocate and very much showed his skills. He wasn't one of these sort of trying to be cagey with judges, trying to talk over judges what stopped gave responsive answers. I thought the advocate for New York did a great job as well. And as I said, in this day and age, it was, was refreshing to hear that.
- [86:26]
Benjamin Wittes
Yes. And it helps that there is actually a real issue here. And my, my jokes and frustration about it aside, it's a really, it's actually even an interesting issue, if a somewhat frustrating one. And it helps that you had three judges who were engaged in it seriously. And it was well argued on both sides. All right, we got to go to audience questions. But, but we would not be fulfilling our duty if Roger, we did not talk about Dun v. Austin. What is this case about? And it's again in that throwback category.
- [87:09]
Roger Parloff
Yeah, well, this is a. Oh, good point.
- [87:13]
Benjamin Wittes
We missed Buddha, which James, you, you took more than two minutes and you didn't answer my question question.
- [87:19]
James Pierce
So I did it. All right, all right, I'll keep this crisp, although it's a fascinating case. So this is the. So Budowi is I think a deputy White House press secretary, very different from Pete Buttigieg. But this is the case involving the taking away of AP's press credentials after their style guide refused to describe the Gulf of Mexico as the Gulf of America. Judge McFadden, a Trump Trump appointee, ruled in favor of the AP, put in place a preliminary injunction and basically said the government could not take that action, which I suppose to its credit, or at least its candor the government had said, oh yeah, this is very view, this is entirely viewpoint based. If you adopt the government's view will presumably restore your credentials. The D.C. circuit granted a stay pending appeal for most of what the government wanted for the Oval Office for Mar A Lago, for sort of Private spaces. And a lot of the analysis hinged and I should say by way of background, as folks may well know, in the First Amendment there are sort of all these doctrinal edifices that courts have created over the years to try to, to help kind of decide First Amendment disputes. One of them is what kind of forum are we in? Are we in a public forum? Are we in a non public forum? Are we in a forum designated by the government? And here the two judges that granted the stay, Judges Rao and Katzis, basically said the areas that we're talking about, the Oval Office, Mar a Lago is no forum at all. And so the government can in fact engage in viewpoint discrimination there and similarly can take retaliatory steps. Judge Pillard sort of strongly pushed back and said no court, no case ever has essentially permitted the type of approach that the majority takes here. The AP filed an en banc petition, I think two days ago or a day ago. It will be interesting to see whether we know the DC Circuit's been active in a couple of different cases, the Harrison Wilcox the Voice of America cases, whether they will intervene here or not. But that's the quick and dirty on what is a very interesting First Amendment opinion in AP versus Buttowicz.
- [89:53]
Benjamin Wittes
All right, back to Harry Dunn.
- [89:57]
Roger Parloff
Roger done is a plaintiff. You know, it's Harry Dunn. And the other plaintiff is Danny Hodges. These are heroes of the January 6th. Harry Dunn was a US Capitol Police officer. Danny Hodges was Metropolitan Police Department. Danny Hodges was the one caught in the door in the lower west, the terrace archway. And in 2022, a law was passed to hang a plaque in there in the honor of the police officers who defended the Capitol on January 6th. And, and the law requires that the the plaque be hanged by March 14, 2024. In the interim, we, we know what has sort of happened. And with respect to political perspectives on January 6th and apparently on recently the Capitol architect Thomas Austin was asked why that plaque hasn't been put up. And I think his answer imp suggested that modifications to the House side of the Capitol are directed by the office of the Speaker Mike Johnson. And it, it hasn't happened. So those officers have brought a suit. It alleges the the grounds are. I don't know. I can't assess the legal merits. I think sometimes suits are brought to be to serve an educational function. But part of it is a mandamus proceeding against the architect. That's Austin. And part of it is an equal protection claim based on the fact that a plaque honoring two other officers who there was a tragic incident about them has been has been installed so that it's an interesting suit and it's being brought by Brandon Brendan Ballou. And maybe it would be appropriate if Quinta tells us who who Brendan Ballou is, because we also have something to say about Quinta soon.
- [92:40]
Quinta Jurecik
Sure. So Brendan Ballou was a former Justice Department prosecutor. I'm trying to pull up right now the op ed that he wrote after departing from the Justice Department about having prosecuted some of these January 6th cases. So this there's kind of something perhaps interesting here about having prosecuted these cases and now suing on behalf of the police officers who were defending the Capitol against the rioters.
- [93:16]
Benjamin Wittes
Brendan has also been a guest on the Lawfare Chatter podcast, if memory serves. All right. Let's go to audience questions. Josh asks should the Donald Trump appeal should Donald Trump appeal the Second Circuits on bonk affirmation of its earlier rejection of his appeal of the lower court's judgment in the Eugene Carroll matter. How likely is it that the Supreme Court will hear such an appeal of a civil judgment that is not financially significant to the defendant? I would say that is in and of itself not a certain worthy matter. It's a defamation case worth $5 million. The only thing that might make it cert worthy is that the name of the it doesn't raise any particular novel issue. The only thing that would make it otherwise is that the name of the defendant is Donald Trump. And some justices might determine that there are some dignitary factors that are important for the presidency. But I don't think other than that, is it as a cert worthy case? James, Roger, Anna Quinta, do any of you disagree?
- [94:36]
Roger Parloff
No, I agree. And the en banc ruling was 8 to 2 with the two two Trump appointees dissenting.
- [94:45]
Benjamin Wittes
Linda asks why are we concerned with what Abrego Garcia has for a criminal character? Is it not the point that he did not initially have due process? Shouldn't this be the thing that opens the door for the rest of those who have been disappeared? So the answer is for which thing? Right. He is now charged with a crime. You have to evaluate the criminal the evidence in the criminal case to decide whether he should be convicted of the crime. His case is different from as to whether his return should open the door for the rest. His case is different from the others in that he was actually deported conceitedly by accident. The government doesn't really only sort of claims the authority to have deported him. It sort of says oops, but the.
- [95:41]
Roger Parloff
Others were deported by Criminal contempt.
- [95:44]
Benjamin Wittes
Right, Exactly. So I do think his situation is different. And the reason we care about the evidence in the criminal case against him is that he could spend the rest of his life in prison based on that. And so you want to reassure yourself that if that's. If he's going to be convicted of some very serious crimes, that he's actually guilty of them. Them.
- [96:05]
Roger Parloff
I think she's right, though. The case was about due process and. And absolutely original case. And this is the way to. This is a face saving thing.
- [96:14]
James Pierce
And. And can I just add, I. I think I alluded to it, but didn't say it specifically. I think it is worth noting that one of the things that came out of the detention or appears to have come out of the detention hearing is that no criminal. Federal criminal investigation, in other words, with an eye towards charging him with a criminal offense appears to have arisen until like late April. In other words, this wasn't something where, like this, he was long on the this is someone we need to investigate and prosecute list. It appears as though this arose after all of the kind of shenanigans around the erroneous removal and the fighting about trying to bring him back.
- [96:52]
Quinta Jurecik
I think that the investigation began during the period in which discovery was. Was stayed because the government said it was working on facilitating his return. Thanks to our amazing executive editor, Natalie Orpet for digging this out. The discovery was stayed from April 23rd through the 30th. And I believe the investigation, according to this agent at the Abrego Garcia's arraignment began on April 28th. So that timing is suggestive.
- [97:24]
Unknown Speaker
And can I. I have a question for j. Oh, I guess we don't have time.
- [97:27]
Benjamin Wittes
Yeah, we gotta. We gotta wrap. All right. Finally, Andrew asks, can you. And by you here, I think he means I give a rundown of what I think the odds are of the five cases you listed in your situation post falling apart based on recent developments. So for those who didn't read the column, I mentioned five of these immigration derived criminal cases and said I was predicting that at least two of them would fall apart and not result in convictions. So in reverse order of. Of. In order of. Reverse the reverse order of confidence in the integrity of the prosecution. Number one, I don't believe McIver is going to be convicted. I don't believe Ksenia Petrova is going to be convicted. I'm not even confident, as we discussed, Petrova is going to be indicted. So those two, I would guess better than 50, 50 chance they don't get convicted. Kilmar, Abrego, Garcia, I do think will probably result in a conviction because they've thrown so many possible years in prison at him in this indictment that he'll probably have to plead out to something. So that's my. That's my lurking inner defense lawyer instinct about that. Who were the other two?
- [99:01]
James Pierce
Huertas.
- [99:02]
Benjamin Wittes
David Huerta. David Huerta is not going to be convicted of that. I don't. Again, I. When it. I don't even believe it'll go to. I'm not even confident a jury would indict that that statute is used for. For, like, really serious stuff. What was the last one? I don't remember. So you get four out of five.
- [99:25]
James Pierce
Judge Dugan.
- [99:27]
Benjamin Wittes
Oh, Judge Dugan. She may have a problem. I don't know. James is in a better position to evaluate that one than I am. James, what do you think? Chances, 1. What percent chance do you give of a conviction in the Dugan case? Case?
- [99:41]
James Pierce
If she doesn't prevail on immunity, which I don't think she will, my best bet is that she enters a guilty plea to the concealment, which is not a felony, and doesn't do jail time. I don't think she ends up going to trial. A lot will depend on what the facts really are. But if the facts are the way they're laid out in the indictment, it's not a good look for her. It's really not. But I. So I see that as potentially better than a 50% chance likelihood that she gets convicted.
- [100:15]
Benjamin Wittes
Yeah. So I would say three of them. I would take even money against a conviction. Two of them. I would take even money on a conviction. But I don't think they'll, you know, they're. I doubt they'll get indicted. They'll get convicted on the text of the indictment. Right. There'll be some plea out. I don't know. I don't have confidence in these cases. All right, this brings us to something that I do have confidence in. And that person's name is Quinta. Jurassic Quinta is leaving us, moving on to greener pastures, bigger and better things. And this is going to be, I'm afraid, her very last. Next, lawfare Live, at least until she rejoins us as a guest every week until the end of time. Quinta, you get the last word today.
- [101:14]
Quinta Jurecik
Oh, my gosh. I should have prepared something. I didn't actually prepare it.
- [101:18]
Benjamin Wittes
You can say, I'd like to thank my parents and the academy and.
- [101:24]
Quinta Jurecik
No, it's. It's, of course it's been wonderful. I will we will have more details soon about what the situation is, but thank you all and keep watching lawfare Live. I know I will folks.
- [101:38]
Benjamin Wittes
We will be back. Except for Quinta and I will not be back tomorrow next week because I am going on vacation. In fact, this lawfare Live is the last thing I'm doing before I don't do any work for an entire week. I'm going to have a glass of scotch. I'm going to get on a plane. I'm not going to go to a military parade or to protests y' all have. I will see you in two weeks and behave yourselves.
- [102:11]
James Pierce
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- [102:50]
Benjamin Wittes
Com.