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- [00:01]
Scott Anderson
The following podcast contains advertising to access.
- [00:05]
Roger Parloff
An ad free version of the Lawfare Podcast. Become a material supporter of lawfare@patreon.com lawfare.
- [00:15]
Scott Anderson
That'S patreon.com Lawfair also check out Lawfare's.
- [00:21]
Roger Parloff
Other podcast offerings, Rational Security, Chatter, Lawfare.
- [00:26]
Scott Anderson
No Bull and the Aftermath.
- [00:32]
Heather
Heather is a nurse practitioner from UnitedHealthcare.
- [00:35]
Roger Parloff
We meet patients wherever they live.
- [00:37]
Heather
During a house call, she found Jack had an issue.
- [00:40]
Roger Parloff
Jack's blood pressure was dangerously high.
- [00:42]
James Pierce
It was 217 over 110.
- [00:46]
Heather
So they got Jack to the hospital and got him the help he needed.
- [00:49]
Roger Parloff
He had had a stent placed in his heart preventing a massive heart attack.
- [00:53]
James Pierce
If it wasn't for my guardian angel, I wouldn't be here.
- [00:56]
Heather
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- [01:56]
Scott Anderson
We have to bear in mind something that is a reality on the ground now more than when Judge Breyer initially ordered his TR in play is that it is not just California National Guard personnel involved in these operations. It is US Marines active duty militaries.
- [02:09]
Natalie Orpet
It's the Lawfare podcast. I'm Natalie Orpet, Executive Editor of Lawfare, with Lawfare senior editors Scott Anderson, Anna Bauer and Roger Parloff, and legal fellow James pierce. In the June 20 episode of the trials of the Trump administration, we discussed the litigation over President Trump's federalizing the California National Guard, the order for the release of Mahmoud Khalil, the legal challenges to President Trump's IPA tariffs, and so much more.
- [02:37]
Scott Anderson
And so when the judge says Posse Comitaz Act, I think what he's actually saying is the actual operations happening on the ground, not just the calling up the federal troops.
- [02:49]
Natalie Orpet
Hello everyone and welcome to Lawfare Live. I'm Natalie Orpet, your guest host in for Benjamin Wittes. I am joined by the regular crew, James Pierce, legal fellow, Anna Bauer, senior editor, Roger Parloff, senior editor and Scott Anderson, also senior editor. So thanks everyone for joining us. We will do our regular rapid as we can. But oh my gosh, there's so much to talk about Roundup. So let us begin promptly. We have some very interesting things that happened this week in the immigration space, starting with an interesting matter before the Ninth Circuit. So James, let me come to you first to tell us about the oral argument and decision in Newsom v. Trump and what is it that the Trump administration is allowed to do with respect to military deployments to Los Angeles? Protests.
- [03:45]
Roger Parloff
Yeah. Thanks, Natalie. And folks, regular listeners will surely remember, but just so we're all on the same page, this is of course the case involving the proclamation by President Trump on June 7 that involved sending National Guard and then later Marines to Los Angeles in theory to respond to protest and riot type activity there in connection with Immigration Customs Enforcement, ICE enforcement actions and then kind of protests of that. At the end of last week, we talked about Judge Breyer, who had issued the temporary restraining order that agreed with California's challenge. The administration had invoked or used 10 USC12406, as we've talked about and as will be relevant in talking through what the 9th Circuit has done that has three triggering conditions that allows the president to federalize the National Guard. One is an invasion that's not in play here. The next is a rebellion that was sort of in play in the government's briefing, but as we'll talk about, really fell out at this stage in the case. And then finally, the one that's really mattered the most is where the president is unable through use of the regular forces to execute the law. That's the third and the one that got the most attention. So California challenged and said both that substantively none of those conditions were met and that procedurally the way that the Trump administration and the executive branch went about actually trying to implement it, namely essentially sending notification to the adjutant general, not to the governor himself, writing on the top of the order. This happened through the governor, which is what the statute requires, was substantively, excuse me, was procedurally insufficient. So those were the issues teed up in front of Judge Breyer. As we about talked we talked about at the end of last week, Judge Breyer agreed with the challengers, that is with California, both Finding that there was on the substantive piece no rebellion and that there was not in fact the sort of the factual predicates to show that the President could not with regular forces execute the law and that the sort of the mechanism that the administration had used going through the adjutant General was not procedurally, didn't comply procedurally with what the statute required. Then that gets us to what happened this week in front of the ninth Circuit. They had a busy week. The administration, they had put an administrative stay on quite quickly and then held oral argument on Tuesday. The advocate for the government was the same advocate who had appeared in front of Judge Breyer, Brett Schumat or Schumate. I'm not sure exactly how it's pronounced. Former Jones Day attorney. He was in front of a panel of two Trump judges, Judge Bennett and Judge Miller, and then one judge appointed by President Biden, Judge Sung. The government's position, somewhat similar to taken in the district court was to take pretty extreme positions. So some of the questions were could a court review this at all? Sort of questions of just disability. Was there any role for courts to play? And then if the courts could play some role, how deferential should they? Did they need to be in the government Top line position was no, no place for the courts here at all. No reviewability, no justice ability. But if the courts could review, it had to be highly deferential. The government advocate got pushed on things like, well, even if the what if the president said like I'm going to federalize this and give no reasons whatsoever. And by the way, imagine some hypothetical future president that you current administration don't like. Same answer. And the government stuck to its guns and that was the answer that it was going to live or die by. I have to say that the panel I thought was pressing both sides, certainly pressing the government had some trouble with some aspects of Judge Breyer's order. One of the questions that came up and certainly comes through in the opinion that the court ultimately issued later in the week yesterday, in fact was on the question of the compliance with the law or execution of the law. Remember, it is the president cannot with regular forces execute the law. Well, how much? Right. I mean just a little bit of an interruption. Executing the law enough to do this, does it have to be 50%, 20%? Judge Bennett was kind of pressing the government on this and pressing California as well. And the advocate for California, I think it was either a deputy attorney general or deputy solicitor General I thought did the best that he could. One of the things that came up quite Extensively, both in the oral argument and in the opinion that we'll discuss. We talked about it last week was the Supreme Court's decision in Martin v. Mott. This is the case, as folks may remember who've been following this or who listened last week older Supreme Court case essentially involving a militia member who when sort of pressed into service by the President, sort of said, no, no thanks, you know, I'd rather not show up. And the court, the Supreme Court said, you know, you know, you individual militia member don't, don't get to make that call when. So Jack Goldsmith, as we talked about last week, has written and said, look, this could be a real problem for California. And Judge Breyer really didn't sort of do enough to explain why. This is why Martin Ve Mott doesn't really kind of color the result here or influence the result here. The advocate for California has tried to distinguish it by saying, well, this was a case involving a foreign invasion. So the call up of the militia was in response, I think in the War of 1812 to kind of foreign military incursions. So that's a difference. And that it also had to do with the chain of command and that if, you know, if it's one person, if it's somebody within the chain of command, that's not reviewable and it's different, California argued, from what we've got here. So that's kind of where things stood at the end of argument. It was tough to kind of predict. Certainly the panel had a lot of evinced a lot of skepticism about Judge Breyer's ruling, but also seemed to be pretty skeptical of the government's quite extreme position, saying no role for courts at all and you've got to be highly deferential when you review it. So lo and behold, when we get the opinion that dropped yesterday evening, the ninth Circuit granted the government's stay pending appeal, didn't address the rebellion question at all, went straight to execution of laws. First said we disagree that this is non justiciable. There is a role for courts to play here. The political question doctrine, the 9th Circuit said, has never been applied to a question of interpreting a statute. It's arisen in kind of constitutional questions. So there's nothing here that requires, requires or precludes a court review. But it did. The ninth Circuit did ultimately conclude that any review had to be highly deferential, as it said that on the one side. On the other side it was very careful to say we don't agree, however, that this is limitless and the Particular language that they use was that the courts can make sure to review, see if I can find it. Something like where it's obviously wrong or taken in bad faith. I can't find the precise language right now. But clearly responding to this notion, we talked about this in the Law Fair Live last week. If an executive order had said something like, whereas the moon is made of green cheese, I hereby federalize the National Guard, that would be preposterous. And the Ninth Circuit, the standard that they devised, I think, was designed to speak to that. But then they say wherever that standard might kick out, we don't have an obviously incorrect or in bad faith or obviously absurd or in bad faith proclamation here. And so it ultimately landed on substantively thinking that the government would be more likely than not to succeed procedurally. It also kind of found that the adjutant general could serve as the agent of the governor of California, and thus notice to that adjutant general was sufficient to procedurally comply with whatever procedures that the statute put in place. And frankly, the statute isn't particularly clear on procedures. It just says it has to happen through the governor. Last point. And then I'm sure folks may who listened or who've been following this want to jump in. Another issue that has come up through this, and plenty of them, but one that's worth pausing on for a moment is the Posse Comitatus Act. That was another basis for part of California's concern or claim. They didn't actually press it in their litigation. And the way the 9th Circuit dealt with that is to say, look, all that the federalized forces here are doing, the National Guard is protecting property. And so we don't have to then kind of worry about whether there is something that those forces are doing, something that could implicate Posse Comitatus concerns. And neither party, neither the government or California, neither the federal government or California had put that into play. So there's a lot more that could be said on it. But the long and short of it is that this is now stayed pending appeal. I know Anna listened in on a very quick hearing today, but I don't know if any folks want to jump in with other comments on either the argument or the opinion that we saw last night.
- [13:32]
Natalie Orpet
I'm curious, James, for your view on the sort of flurry of coverage of this. Of course, the focus is on the fact that the order is stayed. But based on the opinion and the oral argument that you heard, where would you put it on the spectrum of we're issuing an administrative stay because these are novel and complicated legal issues and more briefing is warranted. Full stop to we are telescoping how we might find on this once we get to the merit stage.
- [14:00]
Roger Parloff
So I definitely think they put the administrative stay on for the first reason of getting more briefing. But, but now it's not an administrative stay. It is a stay pending appeal. And so that's going to going to last while whatever else continues to happen in the district court and whatever briefing happens. You know, query. By the way, I should have mentioned there was a short section on appellate jurisdiction. We've talked about whether, you know, appealing a TRO actually is appealable in any meaningful way. The court said, you know, we don't quite have to decide that because this isn't actually an appeal of a tro, it's a stay pending appeal. Though they also said, you know, where a TRO bears the characteristic or resembles a PI, it would be appealable in the same way, including citing the same thing that the Supreme Court had done earlier and on its emergency docket earlier this year. So I don't think that's going to end up sort of imposing much of an obstacle. But I think that the court's reasoning and again, I'll be very curious to see if others have other views. I think it probably closely tracks where they're going to come down. I mean, I think we talked about this last week. It's I think a really genuinely challenging question between how much deference or, you know, even whether there's a role for courts to play at all and then how you then map that on to a situation like we have here where there's clearly very different views about the facts on the ground and whether it is a fair invocation of subsection 3 of the statute. So I tend to think that this, this ruling is a kind of a pretty accurate sense of where the court will ultimately land. But others may have other views.
- [15:41]
Scott Anderson
I agree with that, although I do think there's a note of caution here. I believe this is still was still an emergency motion for stay. So I don't know exactly how the ninth Circuit handles it, but I think it's akin to what we've seen in the D Circuit where it goes to a temporary panel for emergency motions. So it may not actually be the same panel that I think gets the ultimate appeal when the district court issues what it considers a preliminary injunction, a self named preliminary injunction, and that gets appealed. So it's hard to know and it's hard to know how reflective this three judge panel is of, is of the broader Ninth Circuit, a much bigger body on which Trump has a number of appointees. Like this isn't the 9th Circuit of 10 years ago. Like it's not as left leaning as people used to think it is, although it certainly has some precedents that help in that direction. And so it's hard to know exactly how this panel lines up with the broader court, at least in my mind. And it's going to be a different panel, I think, that actually hears this issue once we see the full appeal. Correct me if I'm wrong on that, James. I'm pretty sure that's the case.
- [16:36]
Roger Parloff
So on that procedural point, certainly I'm not positive. We've certainly seen the D.C. circuit constitute itself as an emergency panel and then hold on to some of these for the, for the merits that could happen here. I don't know that the, the ninth Circuit's typical practice and whether now that they have this group of judges has resolved it as a, on an emergency basis, whether it would go to a different group. I will just make one brief comment which is so the panel had two Trump judges, Trump appointed judges, and as I mentioned, one Biden appointed judge. At the oral argument, I actually took the Biden appointed judge to be in some cases the most skeptical of the government's position. You know, it was, it was interesting. It's maybe not what one would have thought kind of coming in, but, you know, certainly was not kind of pressing the government, I actually think maybe didn't even ask any questions to the government at all, the federal government, and then had some questions to California, particularly about. I don't, I don't follow your reading of Martin vs. Mott. So, you know, it might scramble some of the ideological alignments that one might otherwise kind of attribute to the judges. But yeah, it'll be interesting to see.
- [17:41]
Scott Anderson
And one note on that point I think is worth flagging as well is that, you know, this motion, while we saw a political appointee argue it, Mr. Shimotsu has been it before. The briefing was done by career civil appellate attorneys, Sharon Swingle being the lead one who's like been in civil appellate for like two decades now, longer, maybe a very experienced person. The briefing was actually like quite good and a step, good step above. I think we saw in the District court, although in the district court lawyers, defense, they had to do it very quickly. And I think these are the sort of arguments you would see from the executive branch in the ordinary course, from an quote unquote ordinary executive branch. Different administrations may lean on different arguments, particularly the kind of political question doctrine, absolute deference on the standards of 12, 4, 06 differently. You know, maybe this administration leans a little more on that than other administrations might. But generally, I think this is in kind of the spectrum of how we would see the executive branch argue this under. Under most presidents. And I think this outcome, particularly Martin v. Mott, is kind of what most people who have studied law in this area kind of expect most courts to lean towards because there has been such strong deference in similar circumstances where there's this national security nexus, there is this military nexus. No, it's not foreign affairs strictly, but you do have the strong precedent of deference. So I'll say, you know, I think this might be more indicative than you might think of how the broader 9th Circuit will view it, because I don't think this actually is as ideologically stricken a case as it may seem. It's a much more just kind of conventional judicial approach to a hard set of issues.
- [19:06]
Natalie Orpet
Anna, I want to come to you on now that the district court has its marching orders. What happened today?
- [19:12]
Anna Bauer
Yeah, so today was supposed to be a hearing that was in order to show cause why a preliminary injunction should not be issued. As James mentioned, that initial order that was entered by Judge Breyer was a temporary restraining order. Typically, those aren't appealable. But as James mentioned, the Ninth Circuit, when they issued this order, one of the things that they did was say this has the qualities of a preliminary injunction. So they kind of, you know, construed Judge Breyer's order as a preliminary injunction. So then we get to, you know, 12 hours later, there's supposed to be a preliminary injunction hearing. It started about an hour late. But then when it did start, it was very clear that, you know, we weren't actually going to be hearing any substance of those arguments on the motion for a preliminary injunction. Instead, what we got was a very brief kind of status conference in which Judge Breyer said, you know, I have had a, you know, read the Ninth Circuit opinion. I'm sure that all of you have been up late reading it as well and working on these issues. Clearly, we're not going to have a preliminary injunction hearing today because I must follow the 9th Circuit's order, but I do need some guidance on how to move forward, because. And then he explains that, as James Mintion, as you mentioned, one of the issues that was kind of percolating at that initial TRO hearing was this question of whether or not the members of the National Guard were violating or would imminently violate the Posse Comitatus act, which prohibits the use of military forces in law enforcement in the domestic sphere. And so although that wasn't really pressed, and ultimately the district court judge, Bryan, or didn't really reach that issue because he felt it wasn't ripe yet. And then it, as a result, was not, you know, reached by the Ninth Circuit in this preliminary injunction briefing. The state has been arguing while the Ninth Circuit litigation was going on that, yeah, now they actually are violating the Posse Comitatus act. And we want the injunction to include, you know, barring federal forces from, you know, carrying out law enforcement functions, functions in violation of the Posse Comitatus Act. So there's this lingering question then of does Judge Breyer still have jurisdiction to enter, you know, a preliminary injunction that relates to the Posse Comitatus Act? Because he never reached it previously. The 9th Circuit didn't reach it as a result. So what. What authority does he retain to even address that issue? So that's what he brought up today. Obviously, he wasn't ready to hear argument on it because he didn't know the answer to the question. And what he did instead was direct the parties to brief the issue on what jurisdiction he retains on that question. The briefing, I believe, is due June 23, so sometime within the next few days, and then he's going to decide what to do after that. Maybe there's further briefing, maybe there's a hearing on those arguments. The other thing that was raised by counsel for California as well, in addition to that issue, was this question of timing. You know, when does the federalization of the Guard end? Is it indefinite? You know, what, to what extent is the kind of time limits on this kind of thing? And Judge Breyer said, okay, you can brief to the extent that you, you need to, you can brief that issue, too. So we will see some briefing in the next few days on those issues and, and then we'll see where Judge Breyer goes from there.
- [23:25]
Scott Anderson
Just one thought, and to add on that, which I think is worth contextualizing, what I think Breyer was getting at, people were getting out with the shorthand of the Posse Comitatus act violations. We have to bear in mind something that is a reality on the ground now more than when Judge Breyer initially ordered TRO template is that it is not just California National Guard personnel involved in these operations is US Marines, active duty militaries for whom section 12406, which has been the only subject of the TRO that was subject to appeal to 9th Circuit. That's only focused on 1246 that's completely irrelevant to the US Marines. You do not need them to federalize anyone because they're already federalized. They're now on the ground doing these sorts of operations. And so when the, the judge says Posse Comitas Act, I think what he's actually saying is the actual operations happening on the ground, not just the calling up the federal troops. And there the argument wasn't just tension with the Casi Comitatus act, it's also the scope of what the President is allowed to authorize the soldiers to do. While he doesn't. They don't actually say it in briefing in the case. The theory that they're relying on, which is this inherent capacity to protect federal personnel and property is often referred to as the protective power. It's this idea of an inherent constitutional, to some extent implied statutory authority that the President has to defend federal personnel and property that is essential to doing its mission of enforcing the law. Because otherwise, if you didn't couldn't defend federal personnel, you couldn't abide by your obligation to take care of the law, be faithfully executed. And so. But there's a big question that the Justice Department has carved out in it. Several opinions were relied on this in regards to protests, particularly in the Vietnam era. They always were really careful to draw a line between, yes, we can use this to defend federal personnel and property. And sometimes that can even mean things like clearing traffic, obstructions, making people can get to their office to. But it's really different when you're doing things like suppressing protests or proactively engaging things. There has to be this nexus. So there's a real question with how the Trump administration is using this personnel, saying, how consistent is this with this protective principle? Part of that is about tension with the Posse Comitatus act, because there is this question as to whether this is actually an exception to that. But part of it's also about the actual scope of the protective power. What is that inherent power of the President? The really fact specific, context specific line of argument. That's probably where this is going to go next. And I suspect Breyer is going to find that he has jurisdiction to issue preliminary junctions, because he hasn't touched on this topic yet. He specifically reserved it. And they are very much live topics now. And frankly, California, the one issue you may have is, well, is there a standing issue here? How can it argue it's affected by citizens who might be affected by, you know, overly aggressive use of personnel? I suspect they would have standing, but you could see attention there. But then you might see litigation come from another perspective, which is the people actually being affected by this on the ground, whether they're subject to enforcement activity, whether they are advocates who feel like their First Amendment rights or other rights are being chilled. In short, we haven't seen the end of this litigation on this. There's gonna be a lot more litigation on this going forward. I suspect it's gonna shift away from 12, 406 to this much harder set of questions about what is it the President can actually do on the ground. And that's in some ways even more fundamental question that bears to the heart of how the President can use the military domestically in a variety of contexts.
- [26:34]
Natalie Orpet
Right. And that issue has come up in other contexts as well. So it will be, I think, the first time that it's really squarely before a court. I will take a minute here to just say that we have published some truly excellent work by Chris Mirasola digging into these legal authorities. So anyone who is interested in digging in some more, you can find all of that on our website. So, Scott, I want to come back to you because DoD just announced that it is sending yet more personnel to assist with ICE operations. What happened there?
- [27:06]
Scott Anderson
Yeah. So this is like communism, a bit of a red herring. So I would not get too spun up about this particular development. The Defense Department announced, I think, day before yesterday that they were sending DoD personnel to, I think it's Florida, Louisiana and Texas to assist with administrative tasks and logistics support around the processing of individuals at ICE detention centers. This is not the same sort of thing that's happening in California. There are a variety of statutory authorities in place to which the military can provide various types of logistics support to law enforcement personnel, particularly in relation to Immigration and Border Enforcement, but also through a variety of interagency agreements and that sort of activity. Actually, there's pretty well established precedent for it in a lot of different contexts, not necessarily exactly what they're doing, but for something similar, and particularly if they're not involved with, like actually detaining people or arresting people or. Or confronting civilians, which the statutory authorities authorizing for many of these types of support actually expressly prohibit. In other words, it's not a carve out to the Posse Comitatus act that actually reinforces it. You're not going to see them being used in the same ways that raises the same legal questions. So I suspect this is a story that got a lot of pickup because it looks. It sounds a lot like the President is expanding what he's doing in California. I thought that as well, because of course, the President's June 7th memorandum authorizing all of this is not California specific. He says you can do this all across the country, Secretary of Defense, Secretary of Homeland Security, but I don't believe that's actually what's happening. Instead, we're seeing a much more conventional interagency support being used by DoD personnel. Doesn't mean it's not objectionable, it doesn't mean it's not potentially raise other legal issues, but it's not going to be the sort of thing we're seeing in California, at least not as authorized and as described by the Defense Department so far.
- [28:53]
Natalie Orpet
Yeah, I think that's right. Though I would caution that I think it has a great deal to do with some of the concerning stuff we've been seeing around Alien Enemies act cases and the involvement of the military there. So it is definitely something to watch, to say nothing of the fact that, I mean, you're correct that there are legal authorities for DoD to assist with DHS and other agency personnel. And there are a variety of ways in which that could happen, all of which require specific parameters and limits on what that authority looks like. So it's definitely going to be something to track, given that we just have more people than ever before being deployed for what are effectively law enforcement purposes, if only to support them. It's quite different from what the military is otherwise used for. Switching gears, Roger, I want to come to you to talk about a different immigration matter we've been covering for quite a while now, which is the case of Mahmoud Khalil, the Columbia University graduate student who was detained. Tell us what's going on with him.
- [30:00]
James Pierce
Yeah, so spoiler alert. We had some news today and Judge Farbiar has ordered the release of Mahmoud Khalil today. And we'll have to see if it really happens, but Judge Farbiar really wants it to happen and wants it happen today. We have talked a bit about him. So I, I won't try to do the whole. Put you through the whole thing, but this is the. This is a Columbia graduate student, lawful permanent resident, no criminal record, Palestinian. He participated in the Columbia University protests and he was really the first to be arrested. I think on March 8th he was arrested. He has a. In front of his wife who's a US citizen and she's eight months pregnant. And it was clear that they were sending a message. They used that language. They were sending a message. One official called him the blueprint that they were going to get rid of. And they actually anyway, so that he sues, he brings the habeas corpus the next day, March 9th. And the crux of it is obviously retaliation for First Amendment protected speech, his involvement in the protest. He finds out after about three days that the basis for removing him is that Rubio, you know, that provision from the 50s that Rubio invoked about Secretary Rubio, about that his presence in the United States would have an adverse effect on foreign policy. A few days after that, they brought a second charge, which Khalil's lawyers call the post hoc charge. And it claims that he made misrepresentations on his application for a green card in March 2024. So in March 20, he moved for bail. And that was never acted upon until today. And so there, that's sort of a subject matter in itself. So he's been in jail for 104 days. Meanwhile, others in this wave, at least five others, have been all charged and released because of first theory that their detention was part of a first retaliation for First Amendment protective speech. Anyway, things go along. And finally, in toward the end of May, Judge Farbiar's did not rule on the First Amendment question. He ruled that the Rubio charge was void for vagueness as applied to, to, to Khalil. And then on June 11, he enjoined implementation of the Rubio charge. But that left the other charge and which Khalil's lawyers had always regarded as, well, that's the post hoc charge. That's just something they added on as part of the retaliatory course of action. But of course, Judge Farbiars had never ruled on the First Amendment issue. But what Farbiars did say is that it's highly unlikely that DHS would try to detain him on that because Khalil had entered declarations saying nobody is detained for misrepresentations or really omissions on an application form. And they had three rock crusher declarations, one from a scholar, one from a practitioner, one from a former ICE general counsel, basically. And, but regardless of what Fabiar has predicted, they did keep him on the, on the post hoc charge. And so today Judge Farbiar's held the bail hearing and decided to order his release. And apparently for this sort of thing, you need your, the, the precedent show you need to show extraordinary circumstances beyond not just that he's a no risk of flight and no danger to the community. And so what he said was that keeping him in jail is chilling him. We know that he is an activist and you are chilling his speech right now. He can't participate in protests. In addition, he's shown at least a substantial claim that there is a, that there's a due process, violative effort to punish him. So he's finally getting out. There was a disturbing thing during the hearing. There's a parallel proceedings going on in front of an immigration judge. And so during the hearing, his lawyer, the one who was speaking for me, he has a lot of lawyers, pro bono, I imagine, from Adina Das of NYU's Immigrants Rights Clinic finally got word back about what was going whether the immigration judge had scheduled her own bail hearing. And what she learned was that she was denying a bail hearing and she was ordering removal, both on the Rubio charge that Judge Farbiar's had enjoined, you know, on June 11, and also on this post hoc charge. And both were surprising because there had been a hearing before her on the post hoc charge and it had crumbled. It was, I mean, one charge was that was so bad, she dismissed it.
- [36:14]
Scott Anderson
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- [37:19]
Unknown
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- [37:55]
Roger Parloff
You know you need unique New York. You know you need unique New York. Does that sound alright?
- [38:03]
Natalie Orpet
Ah, that's better.
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Roger Parloff
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Heather
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- [39:00]
James Pierce
Before @the the out outcome of the hearing it was at he supposedly hadn't disclosed that he was still working at the British Embassy when when he filed his application and and it was easy to show that he wasn't. He left the British embassy in 2022. And why would somebody, you know withhold that information with an intent to deceive as you. Anyway, all of it was crazy and this judge would have kept him in and did rule that he's removable on both charges. The, the, the immigration judge is in Louisiana so I'm totally speculating here. Perhaps she's thinking that the injunction doesn't reach her in Jena, Louisiana. I, I have no idea. We didn't go into that. But anyway that's the ba. That's the basics of what happened.
- [39:57]
Natalie Orpet
So is your sense then that the immigration judge's order will be appealed and will just continue as a parallel proceeding?
- [40:05]
James Pierce
I think so. Well yeah, I think so. But I think he will be out at least I don't you know I think the DOJ when, when it became clear that Far Bears was going to release him they asked for a seven day stay and obviously they were going to appeal Farbiar's release order but he denied that. So I, they may appeal his detention ruling and they're gonna probably gonna appeal his preliminary injunction against the Rubio order as well. So perhaps this will be continuing at both Levels, I, I just don't know enough about, you know, about how the immigration procedure will go given that the habeas is still sort of ongoing.
- [41:05]
Natalie Orpet
Yeah. Okay, let's switch gears to a different immigration case. But Roger, I'm staying with you on one of the Alien Enemies act cases we've been following, unfortunate acronym yet again, wjcc, which is hard to keep track of. Roger, which one is this, please?
- [41:24]
James Pierce
Well, it's actually one I don't think I've mentioned before. It's an individual case in the Western District of Pennsylvania. It's before Stephanie Haynes, which who I have mentioned before. She's the judge who handled ASR, and so she is one of the two judges who have found that the aea, the Alien Enemies act proclamation is valid. But even though she found in ASR that it was valid, she also found that the agent should get, the agent, the alien should get at least 20 days, 21 days notice before he can be, you know, taken to Sakat. He needs to be able to have an opportunity to challenge whether he's really a member of Trend Aragua and so on. And the thing that came up in WJCC was all the same issues, but the reason it's of interest is that in the meantime, in the. Sorry about this, but in the WMM case, the government has finally come up with its own due process proposal. They're now saying they will offer seven days notice before shipping somebody out. And they will also actually, in that notice, they will advise that the alien has a right to bring a habeas. And this is supposed to be read to them in their language. And they will also advise that if they want, they have a list of attorneys they can try to reach. So it's the first sort of something that looks anything like due process. And so the government said, look, we now offer seven days. That's sufficient. You don't need this 21 days. And she said, no, seven days is still insufficient. And this is a judge that Trump appointed. She said 21 days is necessary when you consider they're incarcerated. Often DHS or ICE moves them from facility to facility. So I think you still need 21 days. And, and while I'm at it, the WMM case is the big one. It's the one that's going to be argued in the 5th Circuit on June 30th. That's the case in which the government presented its new seven day policy. And the acl, you mentioned some of the same things that Judge Haynes made about, mention about why that's inadequate. The ACLU is asking for 30 days. But they also point out that, yeah, it's nice to give them this list of attorneys, and hopefully they're, you know, it's for real. But you're not entitled. You know, you can, you might be appointed an attorney, but they don't get paid. It's pro se still. And so, you know, as you get more and more of these people being sent out, it's going to be harder and harder to find attorneys. And that's an additional reason that they're going to argue that seven days is insufficient.
- [45:04]
Natalie Orpet
Specifics of due process law being made as we speak. District courts all over the United States. Okay. A different immigration case that is a little bit easier to remember because it has to do with frog embryos. John Hawkinson, friend of Lawfare, was at a hearing for Ksenia Petrova. Tell us what happened, John.
- [45:25]
H
Thanks, Natalie. Do you need any background on this case before we talk about this week's hearing?
- [45:31]
Natalie Orpet
Just a reminder who she is and what she is.
- [45:34]
H
She's the Harvard frog. Well, the Harvard computational biologist who attempted to bring in frog embryos from France in February, and she was detained by customs, and they tried to send her to her home country, which was Russia, and she expressed a fear of that. And then they took her into immigration custody, and then she sat in Louisiana for three months. Then her habeas in Vermont came up. In Vermont, because she went to Vermont on the way to Louisiana, and that's where her attorneys caught up with her. Her habeas granted her bail, which. Which would have been great, except that apparently shortly after the government saw which way the habeas might be going, they brought criminal charges against her. And so she was then in criminal custody. And she was released from criminal custody on bail when she finally came to Massachusetts last week. And at that hearing, they put off the probable cause hearing, which then took place this week. And I'm not the best on criminal procedure, but usually probable cause hearings are waived because it's a very low bar that the government has to show that there's probable cause in order for criminal proceedings to go forward. So this hearing on Wednesday I thought was pretty crazy. It lasted about two hours. There was one witness from the government who was the agent who swore out the affidavit, who had no direct personal knowledge of anything that happened.
- [47:04]
Scott Anderson
But he had.
- [47:04]
H
He talked to CBP and other agents, and he reviewed the videotapes of Petrova and her interviews. I guess the most striking thing was he could not define what biological materials Are. Which is kind of relevant when the claim is that biological materials are the things she brought in and must have declared, although the government's position is they have to declare everything. And she's charged under the smuggling statute, which requires you to be bringing in merchandise that should have been invoiced. And he was also unable to define what merchandise meant. And it seems somewhat of a stretch to suggest that frog embryos and microscope slides and vials that have no commercial value are really merchandise. But maybe. But there was really no. So much of the hearing was just crazy like that. And it ultimately ended with the judge taking it under advisement, but asking for briefing on really what the law was here. You know, whether it's merchandise and whether the fact that it may not be biological materials, because the CFR defines biological materials essentially as viruses and antibodies and things like that, not inert samples that are fixed in formaldehyde. So whether those questions matter. And that briefing will take place over the next two weeks on Wednesday and Wednesday, which is right about the time the Speedy Trial act clock runs out for her to get a grand jury indictment, although I think that might be delayed further. Excludable delay is a funny thing.
- [48:50]
Natalie Orpet
This is really becoming one of my favorite examples of litigation. Takes all sorts of twists and turns. And one day you think you're talking about immigration law, and the next you're talking about biological materials and merchandise. So thanks for that update, John. I want to stay with you, though. We are going to switch gears to our category that I think we are affectionately calling attacks on institutions in the United States. So, John, you were at a hearing earlier this week in the case regarding President Trump's executive order against Harvard relating to its foreign students. Tell us about what happened at that hearing.
- [49:32]
H
That's correct. So this is Harvard versus dhs. It's the second of two Harvard cases that are before Judge Alison Burroughs in Massachusetts. And this is the second preliminary injunction hearing after the second TRO. The case was filed on May 23, and there was an initial PI hearing on May 29, but the government decided, you know, we're going to go and follow the procedures like Harvard asked us to. They essentially said that, which seemed a strange admission. And so the hearing did not go forward, although there was a TRO that had been granted the day the complaint was filed. So flash Forward then to June 5, where the Trump administration has decided to persecute Harvard a little more strongly. And not only are they removing them from the student exchange visitor program, but they're going to deny visas to students. And so There was a second TRO from Harvard on June 5, also granted the same day. And then we had the PI hearing on that this Monday, the 16th. So this hearing was a substantive hearing. And really the question, you know, Harvard characterizes itself as a citizen of the, of the United States, which is a little funny, but I guess fair enough. And they claim that this is a retaliatory action against Harvard, which I think it clearly is. But therefore they frame it not really as a suspension of entry, which the government says. The government says, oh, we can suspend the entry of whomever we want. We have extremely broad powers under 8 USC 1182 F, which they do. And there's this thing called consular non reviewability, which is to say that the decisions that are made by the consulates in the U.S. consulates in foreign countries are generally not reviewable in the US Courts. But Harvard says, well, look, this is clearly targeted at us. It's targeted at Harvard, at our First Amendment rights, and it's retaliatory. And so, you know, that's really, that's where they are. And I think that's the crux of the question. Who is the target? Judge Burrows granted the preliminary injunction this afternoon at 2:50pm however, it expired today. There was some question as to whether she was being allowed, whether the government would consent to a further extension orally. The government waffled and said she could have till Monday, but she granted it today. But it was just a three page order, you know, the injunction itself, with no opinion. Presumably the opinion is to follow. I don't know whether that's going to be today or next week or who knows? No appeal yet.
- [52:07]
Natalie Orpet
All right, John, thank you very much, James. I'm coming to you next. So everyone I'm sure remembers, though maybe not in as much granularity as James and I, who wrote a piece about the executive orders against law firms, that there were in fact executive orders against law firms, and a number of firms chose to settle in an apparent effort to avoid those executive orders. But we had sort of a new angle come out of this earlier this week, James, in the form of a new lawsuit. So tell us about that.
- [52:44]
Roger Parloff
Yeah, this, this segment of our discussion is the attacks on institutions, and this particular bit is the institutions fighting back. This was a lawsuit filed in the District of Columbia by the American Bar association, the largest entity, I believe, that represents lawyers across the United States. Very long complaint, very, very comprehensive. And as you mentioned, Natalie really tries to set out kind of the whole history of the Trump administration's Efforts to really go after law firms, which I won't kind of walk through, but in essence captures the things that you mentioned, the executive orders against certain firms, the story of Paul Weiss that had an executive order, then negotiated, then had it rescinded, and then a number of the firms that settled. And so this is an effort to seek essentially injunctive and declaratory relief on behalf of really all attorneys. And you can see running through the complaint a sense of trying to be very bipartisan. So one of the opening few paragraphs talks about the ABA as in its time, on the one hand, opposing efforts by FDR to pack the courts and opposing Nixon in the Watergate area era to take various actions overstepping the authority of the executive branch. And then the bulk of the complaint is really just just walking through the history that Natalie, as you mentioned, our piece describes in some detail for anybody who's been following this. The complaint alone is worth reading just to kind of understand. It's not only the executive orders, it's not only the settling. It's efforts to use the Equal Opportunity Employment Commission to try to kind of compel law firms to provide information about their hiring and promotion practices, its memos within the executive branch who are trying to implement these clearly retaliatory or discriminatory policies. None of that really is new in the sense that anybody who's been following that will have been aware of it. But it's a sort of nice single place to kind of get the full write up. The complaint that identifies a handful of specific attorneys and how these actions have harmed them and chilled them. And again, it's sort of drawing from larger law firms, smaller law firms is sort of solo practice. And then the claims are not actually so different from some that we have seen from the four law firms, law firms we've talked about here, that are challenging the executive orders and have had quite a lot of success in the district courts. Firms like Jenner and Block, Wilmer Hale, Sussin Gottfried, and one more that I have just forgotten, but somebody will probably remember, Perkins Coey. Thank you. So the complaint itself has a series of First Amendment counts, and it talks about retaliation and suppression and viewpoint discrimination. Then has at the end, to me at least, a somewhat peculiar count. It's sort of an ultra vera separation of powers. We've seen a lot of these in litigation in different areas, but it's almost like a hodgepodge of all sorts of the other things that are wrong. So it mentions things like Youngstown, like their executive branch is doing this without any kind of congressional support. The Anti Deficiency act, in other words, that at least as I understand the complaint, efforts to get attorneys to provide pro bono services could, could they could be operating in a way that's inconsistent with the way the government needs to fund itself through the appropriations process. It actually mentions, Natalie, something you and I talked about, 18 USC 201, the federal bribery statute, and that that could be implicated by some of the settlements that law firms have entered into. So, again, a real hodgepodge. But I don't know whether that that particular count will end up going anywhere, but it's a very effective way of kind of flagging a lot of the risks, which, again, our piece tried to do as well. Among the things that the complaint, the relief that it seeks are declaring unconstitutional, the security clearance terminations, the access to federal buildings, a lot of the things that we've seen the executive orders try to do. So it will be interesting to see how that plays out, whether, how the government responds, whether there'll be kind of standing type responses. The case has been assigned to Judge Amir Ali, a Biden appointee in the District of Columbia. It doesn't look like there's been either a motion for a TRO or a preliminary injunction. So it looks like we just got the complaint, which was filed earlier this week. But we'll certainly keep an eye on it and see how it develops.
- [57:30]
Natalie Orpet
Great. And I'll just note, actually, the attorney is representing the American Bar Association. Here are Sussman Godfrey, which was one of the firms that an order was issued against and chose to fight back. So. And Roger, coming to you, speaking of law firms fighting back, tell us about this new organization.
- [57:50]
James Pierce
Yeah, and I did, actually, I'd like to ask James a question because and, and sort of a viewer or a reader asked me to ask the question also. But, you know, I thought this was the complaint was very useful on a factual basis, putting everything in there. And, and there's what happened to member A and member B and member C and member D. There's some very concrete evidence of how this thing is impacting people in bad ways. But as far as this notion of going further than that and prospectively enjoining something that hasn't happened yet. You know, that seemed a little, I don't know if it's a ripeness issue, but it seemed a little out there as a legal proposition. Did that strike you at all?
- [58:54]
Roger Parloff
It did. And I think I made a brief mention just of we don't know how the government will defend against it, but whether it is standing rightness. I do have this sense that although the complaint made the effort that you flagged, and I briefly mentioned about the lawyer A, B and C and trying to talk about the ways in which this has harmed and chilled them, that it certainly is not the type of concrete dispute that you had with the law firms that were targeting. Right. And so I don't know exactly how that will play out. I don't know the set of procedural or kind of threshold arguments that the government will raise, but it would shock me if we don't see them in the case.
- [59:32]
James Pierce
Yeah, I think the complaint does mention this group, law firm Partners United, which I just thought was interesting to flag. This now has 872 partners, and they are all partners of what are called AMLO 200 firms. So those are, that means American Lawyer 200. So these are the firms that have the most revenues, highest revenues, and so that overlaps with the firms that have the most lawyers. And to some extent it overlaps with quality, too. But, but, and this was formed after it became apparent that I can't speak to whether this is the cause, but that not many AmLaw 200 firms were signing the amicus briefs that were supporting the firms that were getting these executive orders. By my count, there's about 17, so less than 10%. And of course, five of those are are firms that got, that were hit with executive orders. I'm counting Covington, which was hit with a proclamation narrower, but something bad too. So anyway, 872 partners so far. And if you want to join you and you're in an Amlodge 200 firm and you're a partner, you can go to LinkedIn. And they have now submitted amicus briefs in the Sussman Godfrey case, I think another of the lawyer cases, executive order cases, and also the Mark Zaid case. Mark Zaid is a very prominent national security attorney and he had his national. He had his security clearance taken away, which really sort of comes close to putting him out of business. And that's a very interesting case. But anyway, this was started by Neil Chatterjee of Goodwin Proctor. And I, I thought it was an interesting development in itself.
- [61:46]
Natalie Orpet
Yeah, absolutely. Will be interesting to see where they get involved. Roger, let's stay with you. Actually. Now to talk about aaup, vdoj, the case relating to grants to universities.
- [62:00]
James Pierce
Yeah. AAUP is the American association of University Professors. They filed suits both relating to Columbia and to Harvard. This one relates to Columbia. They. And also the American Federation of Teachers, which is a union. The problem with The AAUP case, I mean the Colombia case from the start was that Colombia didn't join it. And so you have, they're trying to stop. They want a preliminary injunction to restore $400 million in grants and contracts that the Trump administration cut off after Trump issued the one is executive order about combating anti Semitism. And so there was always an issue about standing here, you know, if, if the, the contracts are with Colombia. So the theory is that the AAUP has members and who were beneficiaries of those contracts. And even though Colombia isn't suing, Colombia is trying to negotiate with the government that they would have a separate claim. So that was always an issue. There was a standing also whether their injuries were traceable to the defendants. And so it is dismissed with prejudice on those grounds. But it is written by, it's a Southern District of New York case. Judge Mary K. Viscassil and she is a Trump appointee. And this is a very hostile ruling. It reads like it was written by Elise Stefanik or somebody. You know. It goes out of its way to deride the notion that any First Amendment issues were at, at play here. And I can give you, it takes a knock at democracy forward, you know, saying how can without a sense of irony they want me to, to, to enjoin the acts of an elected president. And, and I'll give you a feel for they frequently call it the elite university. On the traceability issue. She says plaintiffs have not demonstrated that it makes a difference to their members whether.
- [64:43]
Unknown
This summer Instacart is bringing back your favorites from 1999 with prices from 1999. That means 90s prices on juice pouches that ought to be respected. 90s prices on box Mac and cheese and 90s prices on ham, cheese and cracker lunches. Enjoy all those throwbacks and more at throwback prices only through Instacart. $4.72 maximum discount per $10 of eligible items. Limit one offer per order. Expires September 5th while supplies last discount based on CPI comparison.
- [65:17]
Heather
Heather is a nurse practitioner from UnitedHealthcare.
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Roger Parloff
We meet patients wherever they live.
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Heather
During a house call, she found Jack had an issue.
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Roger Parloff
Jack's blood pressure was dangerously high.
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James Pierce
It was 217 over 110.
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Heather
So they got Jack to the hospital and got him the help he needed.
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Roger Parloff
He had had a stent placed in his heart preventing a massive heart attack.
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James Pierce
If it wasn't for my guardian angel, I wouldn't be here.
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Heather
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Unknown
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- [66:31]
James Pierce
Their funding for research comes from American taxpayers or non party Columbia's multi billion dollar endowment, or the largesse of Columbia's donors, or the eye popping tuition bills paid by Columbia students, including the Jewish students who apparently paid for the privilege of being threatened with violence on their way to class. So you see, this is not.
- [66:59]
H
Just.
- [66:59]
James Pierce
The facts ma' am sort of ruling. But anyway, that's what that one's about.
- [67:08]
Natalie Orpet
Sounds like quite a read. All right, let us switch gears to this one is not quite as much of a what are we talking about as the frog embryo. But I will say that tariffs don't facially seem like they have to be in lawfare's issue space, but when they are based on the premise that there is an emergency going on, they become lawfares area. So Scott, tell us about the IPA tariffs.
- [67:35]
H
Sure.
- [67:35]
Scott Anderson
Well, folks may remember a few weeks ago the President suffered two almost simultaneous setbacks to the incredibly broad worldwide tariffs he has implied he has applied using power delegated by Congress under the International Emergency Economic Powers act law most commonly used, most kind of notoriously used, to impose economic sanctions that Trump's instead using to impose tariffs. We saw the Court of International Trade rule against Trump on one theory that the statute does allow the imposition of tariffs, but for various reasons the tariffs that Trump imposed were invalid. And then we saw the Federal District court in Washington D.C. rule against Trump on another basis for another plaintiff saying that, nope, the statute just straight up doesn't authorize tariffs in the first place. So two kind of mutually contradictory conclusions as to why what Trump was doing with these tariffs is wrong that are both on the appellate track now. Well, this past week we saw the plaintiffs in the D.C. federal district court case actually try and jump the queue a little bit. They had been pending a decision in the D.C. circuit or appeal to the D.C. circuit processing that and considering that. But instead they decided and there's learning resources, incorporation, say is the name of the plaintiff. They opted to go directly the Supreme Court basically petitioning for cert without going to appeal and essentially asking hey Supreme Court, this is a really important issue. You're going to have to resolve it. And why don't we just skip over all these intermediate steps where we spend months and months litigating this, which by the way, benefits the government because the decision in the plaintiff's favor has stayed. And so the Trump administration will be able to maintain its policies in that interim period. They say Supreme Court just resolve this sooner rather than later so we can all move on with our lives and we can get a resolution of this issue. There's some intuitive sense to that, of course, especially here, where you have a straight circuit split that has mutually exclusive jurisdictional consequences, like between these two cases, like literally both courts cannot be right. So the Supreme Court will have to resolve it. But except, of course, if the intermediate appellate court court reaches a contrary conclusion and resolves it and finds some sort of resolution first. And this is, of course, a very important national issue. And so you have an argument there, but it's still an extraordinary request to jump over the appellate court to the Supreme Court. And in some ways, I think this is kind of the Supreme Court's chickens coming home to roost because of course, we've seen a very prominent debate in the context of habeas cases of the Alien Enemies act, where you've seen a number of justice like Justice Brett Kavanaugh say, yeah, why don't we just go ahead and read the merits of this? Let's just resolve this issue and get it out of the way so we can all move on with our lives. This is the the other side of the sword, if you will, of that particular argument, which is now the Supreme Court, I suspect, is going to see more and more of these arguments by private plaintiffs saying, but our issue is really important, too. Why don't you decide on that and skip over this whole intermediate appellate Michigast that we all don't want to have to deal with. Not surprisingly, the Supreme Court was not enthused about this. They denied cert, the petition for cert earlier today. But notably, it was not. Cause was not entirely lost for the plaintiffs. They were granted a motion to expedite their appeal in the D.C. circuit that was pending at the time they petitioned for cert. So maybe they were able to bring a little pressure to bear on the D.C. circuit to move things a little bit faster. But regardless, we are now waiting on the Federal Circuit for the Court of International Trade case, Voss Selections, and the DC Circuit in this case to tell us what the next holding will be and whether the circuit split coming out the district Courts Will stay put or not.
- [71:02]
Natalie Orpet
Okay. Yeah. You start letting TROs get appealed and look what happens.
- [71:06]
Scott Anderson
There you go.
- [71:08]
Natalie Orpet
All right. Yet another in our train of things that don't seem like they have anything to do with national security. The Institute of Museum and Library Services. James, coming to you, there was an interesting GAO opinion that came out this week. Tell us about that.
- [71:24]
Roger Parloff
Yeah. And for the record, this is not the first time that we have talked about. I think it's actually the Institute of Museum and Library Sciences, but maybe I've got that wrong.
- [71:31]
Natalie Orpet
Apologies. I'm sure they serve everyone well, though, too.
- [71:36]
Roger Parloff
I would imagine so. We actually talked about this agency, along with a few others maybe a month or so ago, in the context that this was one of the many agencies that the administration has essentially sought to, depending on your perspective, either dismantle or strip down to the sort of the bare minimum that it could function with. And so there have been challenges filed, both, both in the District of Columbia and in the District of Massachusetts along lines that we've talked about in other cases bringing challenges under the Administrative Procedures act and otherwise, essentially arguing that the administration doesn't, the executive branch doesn't have the power to take the steps that it is taking to dismantle the agency. And those arguments got a bit of an assist this week, as you say, Natalie, in an opinion from the Government Accountability Office, the gao, which is not a court, it is a part of Congress and sort of helps Congress fulfill its obligations to make appropriations and keep track of appropriations law. And the long and short of the GAO opinion was that the effort by the Institute of Museum and Library Sciences, under the new acting director and acting director, who was put in place under this administration to cut quite a significant amount of its funding was inconsistent with the understanding that when Congress appropriates law and when that law doesn't build in any form of discretion, as the GAO concluded was the case here, then the executive branch role is to expend those appropriated funds for the manner and in the manner that Congress has so designated. So it kind of walks through the Impoundment control Act of 1974 and the various bases on which one could a president could lawfully choose to, and by choose, I should say can lawfully opt not to fund and then explain to Congress why it is that he has not funded a particular agency. Maybe he's got a better deal. He can buy some sort of of, you know, weapon system or something for a better price than it was appropriated for. Clearly, you know, not spending all the money there is not going to Cause a problem, but not spending the appropriated funds here for the Institute of Museum and Library Sciences. There was no such argument. And frankly, in litigation, the administration has not advanced any, any such argument. So last point to make, which is the gao, as I mentioned, not, not a court. And so it's not going to bind any courts either. But it certainly will be, I think, persuasive authority that the challengers will make sure that the courts are aware of and may help them in their, in their efforts to stop the dismantling efforts that the administration has undertaken.
- [74:33]
Natalie Orpet
Yeah, the GAO is one of my favorite examples of how courts are not the only entities that get to say what the lie is. James, sticking with you, we have a case that was challenging the executive order that President Trump issued earlier this year on election integrity. What happened in that case? Yeah, so this is, I'm sorry, go ahead.
- [74:57]
Roger Parloff
No, just to provide a bit, bit more background. So this is another of another challenge, as you say, Natalie, to the Election Integrity Executive Order, which in essence was an effort by the administration to direct how voters require voters to have documentary proof to be able to vote and specifically to direct an entity that was created in the early 2000s called the Election Assistance Commission, the EAC, which was created in the aftermath of the Bush v. Gore election and in efforts to try to ensure cleaner and more public confidence in elections, VEO sought to, as I said, require documentary proof. It also had a provision that directed the Defense Department to require documentary proof for overseas voting. And then it had certain sections that were also directing states that they could no longer have laws that would allow for ballots to be mailed by Election Day, but then counted afterwards, and then a sort of a funding piece of it as well, which is if states continue to have that, then the EAC should no longer give them the kinds of funds that they would otherwise be entitled to under federal law. There was a challenge to this in the District of Columbia where there was a preliminary injunction granted to some non state plaintiffs, various kind of advocacy organizations. In that case, the judge preliminary preliminarily enjoined the documentary proof requirements, but did not enjoin the state focused requirements in part because there were no state plaintiffs. This kind of closes that gap in the sense that this is, this was litigation or is litigation brought. I think it's 13 states. California is the lead plaintiff. All of these, these states have the kind of laws that the EO targets. And I think Section 7, which says basically like if, you know, if you, if the ballot is, is cast and mailed, excuse me, by election day, but counted after under these states laws, that that would be a permissibly cast ballot. Under the eo, it would not. And so using a lot of the the reasoning that the judge in D.C. did, I think it was Judge, Judge Koller Catelli. The long and short of it is basically, look, there's an elections clause in the Constitution. The elections clause in the first instance allows states to set up how elections operate, and then next defaults to Congress when there's some reason for federal intervention. But in neither of those guises is there a role for the executive branch to play. And so that is as true with respect to documentary proof requirements domestically as it was with doing it for overseas voting, which is governed by a different statute created in the 1980s. And similarly, that does not allow the executive branch operating through the eac, the Election Assistance Commission, to tell states how they have to operate their laws or condition funding on states complying with the both the executive order and then efforts to try to implement that through other federal regulations. So preliminary injunction doesn't look like the government has sought an appeal yet in this case, as they have not in the District of Columbia. So a victory for the challengers there, at least at the preliminary injunction stage.
- [78:33]
Natalie Orpet
Okay, thanks. I want to come to Scott next on another funding matter which is relating to Voice of America, which we've been following for a while. A reminder before I do that, that if you have any questions, please drop them in the Q and A and we will get to them shortly. Scott, go ahead, please.
- [78:52]
Scott Anderson
Absolutely. Well, the big news today is that Voice of America personnel about, I think 3/4 or more of the ones that are remaining are reportedly receiving layoff notices, I'm sure, I'm guessing reductions in force and terminations of contracts for contractors. Today, this is really notable for a variety of reasons that intersect with the litigation which we've been closely following here at Lawfare, in part because the Voice of America litigation has become kind of the tip of the spear. A lot of litigation, particularly in the D.C. circuit, around the dismantling of federal agencies. A number of kind of related VOA cases have been consolidated at various points, intersect at various points, but they've primarily been addressed under the category, or pardon me, under the cap Lake, named after Patsy Wadakaswara, one of the lead plaintiffs, who is a, I believe, a former White House reporter for the Voice of America. This case I wrote a piece on about two weeks ago entitled the D.C. circuit Has Quietly set the rules for dismantling government, which goes into this more More detail, but I think the essential point is that we saw the DC Circuit on bonk step in and essentially adjust a stay that a panel had given on a fairly broad injunction. The district court had issue the dismantling of voa, including the termination of personnel and the cancellation of various grants. The D.C. circuit took the step, the en banc, I should say, after the panel essentially stayed all elements of the preliminary injunction, at least those two ones, one regained to employment, one relating to funding and grants, basically said, we are going to hear additional argument on the funding of regrants. One, we are going to let the preliminary injunction stay on that one. So they stayed the stay, if you will, and kept that in place. But we are going to allow the panel's lifting of the stay on termination employee employees to go into place. Three weeks ago, a lot of people thought that was a sign that the government was going to be open to firing personnel and that any claims were going to have to be channeled through the Merit Service Systems Protection Board and other specialized channels that were anticipated to take a good amount of time, didn't allow for this sort of injunctive relief. Long story short, it seemed like that was a sign that the personnel were going to both at VOA and potentially every other federal agency, at least the D.C. circuit is hearing the challenges, weren't going to be able to get the sort of injunctive relief that's kept a lot of those federal employees from being terminated these last few months. That said, we saw the en bloc D.C. circuit do something pretty extraordinary a few days after it refused to lift the stay issued by the panel opinion. They pointed out, hey, look, you're right, we are not going to let the injunction categorically prohibiting the termination of employees remain in place. That's too overly broad is the implication. They didn't quite say it like that, but they pointed out, pointed out, nobody's contested the part of their injunction that directs the Voice of America to actually comply with its statutory mandate, which is to provide a variety of credible news surface sources, sources and services in different corners of the world. And insofar as terminating personnel runs up against that statutory mandate and the district court thinks that it will make it impossible for the agency to meet the statutory mandate, it can still enjoy determination of personnel. It just can't do it categorically. It has to be that tie to the statutory mandate date that the En bancdc Circuit found persuasive. Woodakusoir is still being litigated at the appellate level. We're also still Seeing ongoing proceedings at the district court level, in particular, after this hearing, you've seen a number of the original plaintiffs seek a motion to enforce the remaining parts of the preliminary injunction, specifically about compliance with the statutory mandate against the agency making the point that VOA right now is not meeting its statutory mandate. The fact that they're only operating in a handful of countries, not around the world, the fact that they are largely planning to rebroadcast One America News Network as a good part of its news gathering function, just doesn't meet what Congress says VOA is supposed to do. And the plaintiffs were trying to enforce that. So when you come in and you fire 3/4 or 4/5 of the personnel, reduce the agency a lot further, that is a big, big shot across the bow by the agency. So in other words, we're about to see a whole nother round of action, I suspect, coming from VOA around this action. If you think back to the Consumer Financial Protection Bureau a couple of months ago, where we saw something similar happen, where essentially the agency took a stay by an appellate panel as a green light to then fire everyone to the agency, only to be then immediately joined by the District court and have the panel essentially allow the injunction to be reimposed, as opposed to trying to hear a bunch of testimony about whether or not they had actually done an assessment as to whether firing these people could allow them to comply with their statutory mandate. I think we're about to see the same thing happen again before Judge Lamberth, the District court court judge here in voa, and how that gets hashed out. I mean, this is the process we may see with lots of federal agencies, at least at the D.C. circuit, because this is the process that the en banc DC Circuit seems to have signed off on so far. So we'll have to see where it goes. But it's a really, really significant development on the policy front for the lives of these people. Obviously, for VOA as an institution, I suspect it's going to have big ramifications in the litigation world as well in the next several weeks to come. But both in the District Court level, and then we're set to hear argument throughout July and into early August at the appellate level in W. Kusara, too. So by the end of the summer, we should have a much clearer picture about what the rules are going to be. Right now, it does not look good for the government's ability to take steps like this where it just is wiping out federal workforces in ways that clearly are in tension with the statutory mandate these agencies have to perform their function.
- [84:33]
Natalie Orpet
Yeah, the facts really do change on the ground as the law is being hashed out in court.
- [84:37]
James Pierce
Court.
- [84:39]
Natalie Orpet
All right, let us wrap up with a look at the foreign assistance cases which we've been tracking since they were some of the very first things to be on the receiving end of executive orders. Scott, tell us what's going on there.
- [84:53]
Scott Anderson
Yeah, we remember AIDS Vaccine Advocacy Coalition, the very first case to take the rocket docket straight to the Supreme Court after Trump was inaugurated. It's about to be back in business in a big, big way. We are seeing a bunch of litigation there's around this issue of impoundments that James has already gotten to in the context of the GAO's most recent opinion. We are seeing plaintiffs in the Aid Vaccine Advocacy Coalition case actively pushing the court to enforce its preliminary injunction that's been in place for the last several months, specifically around this question of what is the federal government's plan to actually spend all this money that it's been holding of foreign assistance funds, but so far has not been resided by Congress, although they have put in a request for that is still on the books and that much of that money is approaching its expiration date mandate, meaning that the obligation to spend that money is getting closer and closer. But the Trump administration has been holding a lot of reserves saying we're going to develop a plan, but not yet has actually produced anything. Just as the court's hearing argument for that. We've seen the Trump administration introduce a major briefing really, really long, over 100 pages to the point that they're actually going to evidently have to refile it as two separate briefs or a shortened brief because it was in violation of the court's general orders, but laying out a whole range of of really in depth arguments about how they're going to handle the impoundment issue and the Impoundment Control act questions and appears to be the biggest signal we've seen about how the Trump administration is thinking about it, their legal strategy for addressing it. I'm not going to go into depth in it here because I had a very, very long in depth and very wonky conversation with Molly Reynolds about it on the Law Fair daily podcast. That episode is now out today, Friday, June 20, so encourage folks to check that out. We dig into the intersection with avac. It also comes up with the National Endowment of Democracy, where we see another strategy for kicking the can down the road. The Trump administration is rolling out, essentially saying that the continuing resolution is expanded. The window which in which you can spend at least some foreign assistance funds by up to a year, so it can continue to withhold it more, even longer. In short, all these empowerment issues are really, really about to come to a head, and we're going to see that in the next few weeks. So keep an eye on this space for people who have been following it. And hopefully my podcast with Molly will, will help tee up a lot of those issues for folks.
- [87:05]
Natalie Orpet
Yeah. And I will unapologetically say that it's really, really excellent. And Molly spotted the impoundments issue on approximately January 20th at 12:01pm so it's something that we've been paying close attention to and is going to be very important. And when it is, very few people are going to understand it. So, you know, get ahead of all of them and listen to Scott and Molly's podcast. Let us turn to questions. So first question from Freda, I apologize if I mispronounced your name. Chris Geidner reporting today indicated there was something important about the feds saying duration of Guard call out was 60 days and could be renewed. What mattered about that? And I think you're in a good position to answer this one.
- [87:52]
Anna Bauer
Yeah. So this relates to I think that Chris was also covering the hearing that was held before Judge Breyer earlier today in the district Court. This relates to what I was talking about earlier in our conversation about that hearing with the duration of the federalization of the National Guard. So the reason that this has come up is that as I, as we discussed, there was this question about, you know, what does Judge Breyer still have authority to do at this point now that the Ninth Circuit has issued its order? One of the questions is can he amend his TRO or issue a preliminary injunction related to the Posse Combatas Act? Then counsel for the California attorney general's office also said, you know, we think that there's this timing question that remains a live issue, too. In their preliminary injunction briefing, they had raised this question about Trump's order, whether it's overbroad because it uses language in there that says that the duration of this authorization to deploy the National Guard is 60 days or at the discretion of the secretary of defense. So, you know, even though the Ninth Circuit in its order keeps saying over and over again that these, this is limited to 60 days, in fact, the state of California has made this argument that this is an indefinite kind of deployment because it could be renewed in 60 days time by the secretary of Defense. And then, therefore, that raises questions about the breadth of the order. And that kind of thing. And to my memory, counsel for the government did say in response to this issue also being raised by California today at the hearing that yes, yes, it's his understanding that, you know, 60 days could be renewed at the end of that period at the discretion of the Secretary of Defense. So that's what Judge Breyer then said. Okay, you know, you guys can brief this issue as well and tell me to what extent I still retain any kind of authority to make any kind of order with relation to this argument that the, you know, duration is over broad. So that's what that relates to.
- [90:27]
Natalie Orpet
Very helpful. Thanks, Scott. Did you want to add something?
- [90:30]
Scott Anderson
Yeah, just one small flag about why this is a significant data as well for policy reasons that may actually have domestic legal or not domestic kind of state legal implications. 60 day tends to be the outer limit of state active duty deployments for most National Guard personnel under most National Guard systems. So extensions of over 60 days can cause a variety of, like, logistical problems, sometimes maybe even state, state law and funding issues. That's why you tend to see that being as like the outer limit for a lot of deployments. It's probably why they defaulted to that timeframe in the initial order. I would suspect my rough understanding as a non National Guard member, but that's my understanding from talking to folks about it.
- [91:05]
Natalie Orpet
Okay, thank you. All right, our next question from Dave P. Has anyone brought an action regarding the failure of maxed agent masked agents to clearly identify themselves as legitimate law enforcement officials? Some criminals seem to be just starting to disguise themselves as ICE agents. So I personally am not aware of any lawsuits on this topic. It is generally an operational issue within law enforcement, but I don't know. Has anyone heard of a, a case challenging this?
- [91:40]
Roger Parloff
I also have not. I, I will add, though, just to the, the very sort of the last part of that question, I don't believe, at least I'm not familiar with a federal law. But there are many state laws that make impersonating law enforcement itself an offense. And so that's obviously separate and apart from questions of actual law enforcement, ICE or otherwise identifying themselves properly. So there is at least a sort of a legal safeguard or way of addressing criminality or opportunistic behavior that is trying to take advantage of what I'm sure is a great deal of uncertainty about immigration enforcement actions. But that aside, I also have not seen any challenges to what I also think are probably policy and operational decisions for ICE and other federal law enforcement agencies.
- [92:39]
Natalie Orpet
Okay. Unless anyone else has comments on that, I think our last question is from Andrew, who asks any thoughts on the Kilmara Bo Garcia hearing and what evidence the government has been putting in. Not sure if Lawfare has had any recent coverage on that since the Post from James. James, anything further on that or anyone else?
- [93:02]
Roger Parloff
Yeah, so I haven't seen a transcript of the hearing. I've read some of the reporting about it that certainly suggested the government put on one witness that, as I understand it, talked at some length about the underlying incident in I think it was November 2022 where Borrego Garcia was stopped. And that forms clearly the basis for the substantive count, one of the two counts that he's facing and seems to probably do a lot of the work underlying the conspiracy count as well. I did actually check the document just before we started recording because I too was curious why there really hasn't been any update. One of the things I flagged in the Post and I think maybe accounts for why we haven't heard anything from the magistrate judge is that there are actually challenging threshold questions about whether the government has actually done enough to warrant a detention hearing. Now, of course, the magistrate judge did hear evidence and in part that could just be an efficiency thing. And that's not unusual for magistrate judges to kind of. All right, look, everybody's here. Let me hear all the legal arguments about whether the government has established the threshold question of whether there's a basis for a detention hearing. And let me hear any evidence that the parties want to offer, which again, as I understand it was a single government witness, I think a law enforcement agent. There's no problem with that in terms of by hearsay, talking about all of the evidence, not all of it, but at least the evidence the government thought relevant to put forward for detention purposes. But the law long delay that we've had and it is pretty unusual to go this long. It's a week now that we've had the hearing. We don't have a detention decision. That's a lot of times detention decisions are made right at the end of a detention hearing by a magistrate judge. But given the kind of moving parts and I won't sort of say more about them here but would would if you're interested, take a look at the the Post that the article from that I did last week week probably the magistrate judge is trying to figure out a, you know, should there be a detention hearing and then B, is there enough evidence to warrant actually detaining Garcia, Abrigo, Garcia and then C, if not, what does that actually mean? Is there some immigration consequences too, or should he be an immigration detention? That is, that is separate and apart from anything in the pre trial criminal pretrial detention process. So that's, that's, that's my best guess on why we've gone a week without any meaningful updates.
- [95:30]
Natalie Orpet
And James, can you remind me, what is he currently, what is the current legal authority for his detention? He's, he's in like anticipatory criminal proceedings detention. No longer immigration detention. Correct.
- [95:45]
Roger Parloff
It's actually not entirely clear. I think that that is right. And I think also if, you know, again, if the court ultimately says, I don't think there's enough here to detain him as a criminal pretrial matter, I think he remains in this kind of immigration detention, but I don't know exactly what statute or authority is the basis for his detention. But it's clearly reported that he is in detention. I assume it's for immigration reasons reasons because the court hasn't decided the criminal pretrial detention question.
- [96:20]
Anna Bauer
I also would know, I think that last week we did discuss a little bit, I think the hearing was maybe ongoing still while we had the live stream last week. One thing that we did note though is that I believe, if my memory serves correctly, we found out in that hearing that the investigation actually, actually start, the criminal investigation actually started. Was it April 28th or 29th? I think it's the 28th.
- [96:47]
Roger Parloff
Yes.
- [96:48]
Heather
Right.
- [96:48]
Anna Bauer
And then he was indicted. James, you might, it was, was very end of May. So about May.
- [96:56]
Roger Parloff
May 21st. Yeah, the 20.
- [96:57]
Anna Bauer
May 21st. And I'm curious, James, because, you know, these are serious charges, serious allegations being made. You know, he's not charged for, for example, the allegation that he was in some way involved in a murder. But, you know, that's something that the government has, has said. He, you know, and then the charges themselves are very serious as well. That's about like three weeks of doing investigative work and presenting to a grand jury. I'm just curious, like in your experience as a federal prosecutor, you know, I'm sure it varies, obviously, but is that, you know, does that seem to you like a normal length of time for these types of charges in terms of investigating and then presenting to a grand jury within three weeks.
- [97:49]
Roger Parloff
So, so with the caveat that you mentioned that, that things vary considerably, it does strike me as a pretty quick turnaround, particularly because as I think you noted, the indictment, the first count of the indictment, just charges of conspiracy, that's, that spans 2016 to the present to 2025. You know, I do think three weeks would be enough time to have had conversations, whether that means grand jury testimony or interviews with the various either co conspirators or cooperators identified in the indictment itself. It may not be a whole lot of time to track down and corroborate things that those indicators individuals have said. So for a case like this, it seems like a pretty quick investigation. And if that investigation is indeed has been quick or rushed and is not thorough, you could very much see that start to fall apart as we move forward in the case.
- [98:47]
Natalie Orpet
I think that is all the time we have for today, but thank you to James, Anna, Roger and Scott. And thanks to everyone else for drawing. Thank you for joining us. The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter at our website lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcast. 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@lawfairmedia.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, the thank you for listening.
- [100:11]
James Pierce
Sa.
- [100:42]
Heather
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