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- [00:01]
Benjamin Wittes
The following podcast contains advertising to access an ad free version of the Lawfare Podcast. Become a material supporter of lawfare@patreon.com lawfare that's patreon.com Lawfair also check out Lawfare's other podcast offerings, Rational Security, Chatter, Lawfare, no Bull, and the Aftermath.
- [00:32]
James Pierce
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- [01:00]
Anna Bauer
Underwear and T shirts.
- [01:02]
Roger Parloff
Warning, bombas are so absurdly comfortable you.
- [01:04]
James Pierce
May throw out all your other clothes.
- [01:05]
Anna Bauer
Sorry, do we legally have to say that? No, this is just how I talk.
- [01:09]
Roger Parloff
And I really love my Bombas.
- [01:10]
Anna Bauer
They do feel that good. And they do good, too. One item purchased equals one item donated.
- [01:15]
James Pierce
To feel good and do good, go to bombas.com acast and use code acast for 20% off your first purchase. That's B O M b-s.com acast and use code Acast at checkout.
- [01:27]
Benjamin Wittes
Out.
- [01:34]
Anna Bauer
Insofar as we have been discussing examples of things that are just really far outside of what the normal Justice Department actions are, this strikes me as a really good example of that.
- [01:47]
Benjamin Wittes
It's the Lawfare podcast. I'm Benjamin Whittis, editor in chief of lawfare, with lawfare senior editors Anna Bauer and Roger Parloff, and legal fellow James pierce. In the June 6 episode of the trials of the Trump administration, we discussed the breaking Supreme Court opinion which blocks discovery against Doge, the criminal indictment of Kilmar Abrego Garcia, President Trump's recent executive orders targeting Harvard University, and much, much.
- [02:23]
Unknown
Foreign.
- [02:28]
Benjamin Wittes
Welcome to this week's lawfare Live, the tribulations and trials of the Trump administration. I am here with the estimable James Pierce, Roger Parloff and Anna Bauer. Hi all. We're going to jump right in because there is so much going on that just getting through it today is going to be a challenge. First of all, James, we got breaking news. Kilmar Abrego Garcia is coming back to the United States to face a criminal indictment. This is, I suppose, compliance with Judge Sini's order, but in a fashion, maximally Steve Millery. What do we know? What's he being charged with and have what, what can we say about the indictment?
- [03:27]
Roger Parloff
Yeah, so this, this looks an awful lot like facilitation through extradition. And what, what we have, as you said, is an indictment in the middle district of Tennessee. That's essentially the Nashville area. And it is a two count indictment that charges Kilmar Abrego Garcia with conspiracy to knowingly smuggle aliens and then one substantive count as well. And so what it appears in the 10 page indictment that has just been made public. According to reporting, the actual indictment happened at some point last month and then was just recently unsealed. So this is apparently, and in fact at the bottom of the indictment it says May 21, 2025. So that's, that's how long this indictment has been on the book, so to speak. So what the indictment seems to lay out, so notably it alleges that Camaro Borrego Garcia is a member of Ms. 13. That's not a surprise that it would be alleged. Certainly that was what the administration has consistently said. This moves forward to a trial perhaps that will be proved or not. It's not an element of the actual offense here, but it is certainly something that the U.S. attorney's office that the government saw fit to put into the indictment. The thrust of the indictment is essentially that Kilmar Abrego Garcia working with others, and I should mention there are five co conspirators, all just named CC1 through 5. Not unusual in a federal indictment. Some of the reporting I think from ABC News has identified one individual who perhaps is one of those co conspirators. I don't remember the gentleman's name, but at least according to the reporting, it was someone who himself is serving time for I think perhaps a legal re entry and whose car, according to the reporting, I didn't see this in my quick skim of the indictment Abrego Garcia could have been using. The indictment alleges a conspiracy from 2016 to 2025 and basically says that Abrego Garcia with others picked individuals up in Texas and then transported them throughout the country. Again unlawful individuals did it as part of his work with MS.13. And these were folks that were coming through essentially Central America and Mexico to cross the border unlawfully into the United States. And again there's, there's the conspiracy charge that has all the other individuals and then there's a single substantive count for November of 2022. Interestingly, as I read the kind of the manner and means or sort of the what, what the indictment calls transportation in Tennessee Looks like all of the allegations are on that November 2022, notwithstanding the much more, much broad, much broader alleged conspiracy of 2016-2025. So that's the. That's the quick and dirty on the few minutes that the indictment has been out.
- [06:48]
Benjamin Wittes
Help me out. When I see the word facilitate, I don't usually mentally translate to the be indicted. And on the other hand, Judge Sini's did her order is that they facilitate his return to the United States. This will do that, I suppose. And I assume that the reason that the discovery in that case has been, you know, slowed to a crawl and we haven't had any rulings. Right. Is because they have made her aware that this process was ongoing and that it would presumably satisfy her order once completed. Is that a fair assumption, or do you suspect otherwise?
- [07:47]
Roger Parloff
Yeah, and I'll take a crack at answering this. And then perhaps either Anna or Roger, who I know have been following kind of the immigration proceedings or the mistaken removal proceedings, I suspect that assumption is correct. We don't know. And at some point we may or we may not, but I do think that it is a fair reading of the order to say that the requirement on the. On the government was to facilitate his return. I don't think this is what he would have expected. But if he is, in fact extradited under this criminal indictment, he will. His return to the United States will have been facilitated, and then presumably he will face the same criminal justice process that any indicted defendant in the federal system will. And so whether the pause or the sort of seemingly from the outside mysterious continuing of the deadlines in the matter before Judge Sinis has this to account for it? I would think so, but I don't have any inside information. Perhaps either Anna or Roger does, but that seems to me the most rational explanation for it.
- [08:59]
Benjamin Wittes
Anna, Roger, do either of you have a sense of what role the this indictment, which has been pending for two weeks now, played in the litigation in Baltimore or in Greenbelt? What do we know about the interaction between the civil litigation and the criminal case?
- [09:23]
Unknown
We don't know anything, but I think we maybe one week of the delay might have related to this investigation. And they want. The government wanted more delay. They kept saying that they were working on something that might solve the problem, so maybe that was it. I think the rest of the delay has been, you know, conventional discovery privileges, state secrets and that sort of litigation.
- [09:54]
Benjamin Wittes
All right, I want to ask the question that everybody is thinking about right now, which is how suspicious we should be of this indictment on the One hand, the government has said from the beginning, this guy's Ms. 13. And, you know, it was not an accident that he was rolled up, even though they said it was an accident that he was rolled up and bad guy. And, you know, we've seen this in terrorist contexts where people go from civil liberties victims to, oh, you know, the guy that you were holding, the American citizen being held in Saudi Arabia, that the United States wasn't doing a whole lot to get back. Turns out we're indicting him for a plot to assassinate President Bush. Right. And so, on the one hand, you know, I hold in the possibility that this is a clever resolution to a sticky problem. On the other hand, let me. You know, maybe this concedes my bias here. I'm not instinctively giving a presumption of regularity to this indictment. I. I look at it and I say, boy, it's really convenient. This guy's been living here for a long time, free man. Any time prosecutors in Tennessee wanted to bring, you know, a human trafficking case against him, they could have done it. They waited until he was a cause celeb for being shipped off to the gulag in El Salvador, and US Senators care about him. I will wait until this is proven in a court of law. And this is one of those situations where it's worth taking the presumption of innocence very, very seriously. What do you guys think? I mean, do you look at this and say, hey, federal prosecutors generally don't bring shit cases. This, you know, he's like, let's afford a presumption of regularity to the justice system. Or do you look at this and say, yeah, prove it to a jury of 12 people beyond a reasonable doubt, and then we'll talk.
- [12:10]
Roger Parloff
I can jump in here because I find myself torn, which is, I spent 11 years as a federal prosecutor. I have been in front of many grand juries, notwithstanding the old saw that you could indict a ham sandwich. I think that going in front of a grand jury and eliciting your evidence and building a case is a serious matter, and is one that serious. Justice Department prosecutors take and understand the gravitas of and act accordingly. That said, it has been very dispiriting to see everything that has happened in the. Whatever it is, four months or so that five months that we have been under the Trump administration. And, you know, I think Lawfare has written and others have certainly also echoed. I think I saw something in the chat that says, look, the presumption of regularity with which we typically expect the government to operate really seems not to exist. And courts have pushed back on it, and the public has pushed back on it. And so I think I would put myself in the latter camp of the two, kind of. That being the one of. I'm quite. I don't say suspicious, but it does strike me as all too convenient to have moved to indict this individual at this point, notwithstanding allegations that reach all the way back to 2016.
- [13:35]
Benjamin Wittes
What do you think, Roger and Anna?
- [13:38]
Unknown
Well, I. I think I'll take a posture of trust, but verify the. This incident occurred three or four years ago, and he was not even given a ticket at the time. And so obviously there's. There's that, but I. I just don't know the. The facts. The other. The other thing that. And we're gonna speak to that in a moment, is that, you know, they've been saying we can't get him back. We have no control over what they do in El Salvador. And then they get a story that they like or. Or maybe I don't know if we have an extradition treaty, but suddenly he's coming back. So, you know, there's that, too.
- [14:30]
Anna Bauer
Yeah, I mean, look, I'm not going to say anything that I think others haven't already said. I will say, like, you know, I think when I was in law school, I planned to be a criminal defense attorney and a public defender before I met Ben Wittes and became a legal reporter instead. And so I think that in general, my posture is a little bit more skeptical of prosecutorial power than maybe James has as someone who has been a prosecutor. But I do agree certainly with him, that things that we've seen over the past few months. I mean, at one point I even posted on something to the effect of throw the presumption of regularity in the trash as a kind of a joke, but. But also not. Because I think that everything that we have seen points to the idea that these presumptions of good faith that we usually place in federal prosecutors in particular really just has kind of gone out the window. I also will add, though, that this indictment came out right before, you know, we just got our hands on it right before we came into this podcast recording. So I would like to have more time to look at it and study the facts. I just haven't had a chance to do that in detail yet. And so we will see. Judgment is out.
- [16:09]
Benjamin Wittes
Yeah, I think that that's a good point. It is wise for everybody to keep an open mind. This is something that did have to go through A grand jury. It is something that did have, will have to be proven in court beyond a reasonable doubt. And I will also say that, you know, Mr. Abrego Garcia, there is one actually very good side of this for him, which is other than not being in El Salvador anymore. But he, you know, presumably you will have a prompt bail hearing. And I, I think that is something that has been missing from a bunch of these cases. And one thing the criminal justice system, unlike the immigration system, has, is a reasonably prompt approach to bail. And I, I do think that is, you know, worth something on for him. All right, let us turn to the other case involving people who were shipped off in violation of a court order to El Salvador and who are, unlike Kilmar Abrego Garcia, not coming back to face indictment. This is the JGG case in which we have had substantial developments. Roger, what's going on?
- [17:43]
Unknown
Yeah, I think this is pretty important. It was a nominal success for the aclu, but I'm, I'm, I'm concerned about it in the long term. This was. Judge Boasberg did certify a class of. Composed of all of the people that were sent to Sakat on March 15 under the a Alien Enemies Act Proclamation. So that's about 140 people, 137. And he also is going forward with the case in D.C. and he ordered. He found, which is not surprising, that they weren't accorded due process. These people weren't accorded any due pro. I mean, they weren't given notice. They weren't told where you're going. You know, they were. They were begging, pleading, crying, praying. And they said, we can't. We're not telling you. And they get on the plane and so on. And in fact, that's why he frames it with references to Kafka's the Trial. But we, I thought that if Judge Boasburg went forward with the case, he would find constructive custody. That was the big issue. You can't, you know, this is a habeas corpus. And. And so does anyone in the US still have any custody over the prisoners? And the government was, say. The government was saying no. And he says that the plaintiffs, on balance, though, it's a close question. They have not shown constructive custody. And he was obviously uncomfortable with that. But government had submitted an affidavit since it goes contrary to a lot of public statements, you know, like Trump saying, I could bring him back with a phone call. And, but. And all the statements about, you know, a renewable contract and outsourcing and so on. But A guy named Michael Kozak, a high level State Department guy, put in an affidavit that said, you know, once there, we don't know, it's redacted, heavily redacted. But, but Boasberg has seen the whole thing, obviously. And it says in essence that once they're over there, it's ultimately his call. It's. It's Bukele's call that we lose. We don't have any. And the best evidence of that was that Bu had announced that he ostensibly that he had. He was negotiating a deal with Venezuela where he would send 252people from Sakat to Venezuela, Venezuelans, and they would send back 252 Salvadorans. So he said, on balance, he had to take. He's. Even with all the misconduct, he had to take the government's word based on the precedents. And he did say he recognized this might be a ruse and it might be a fraud. And, and if it turned out to be, he would not be happy. He would take steps. He also warned the government about the perjury statute, but that's where it is. So, so, and then explain something to.
- [21:21]
Benjamin Wittes
Me, Roger, because I, I'm mystified by this. If there's no constructive custody, why is there a case at all?
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Unknown
Well, that's the next part, and that's what makes me uncomfortable. His workaround is he says, and, and I guess the acl, you must have briefed this too. I can't remember. But we're gonna, he's gonna call it a. This is a case about due process. It's directly under the Fifth, the Fifth Amendment. The federal due process is said to come through. It comes through the due process clause, the Fifth Amendment. And, and because the defendants are not seeking release, they're seeking process. They're seeking an opportunity to show that they're not trend. And, and they're also trying to show that the proclamation's invalid. But. So it doesn't necessarily lead to their release. But. And, and he makes an argument that's strong in itself. But the problem is that the Supreme Court sort of already rejected an argument that sounded almost identical to that in this case. You know, the last time around, he, he had, he was entertaining a class action on the theory of that it was under the apa, Administrative Procedure act. And they pretty much said, no, if you're challenging the aea, you need to do it under habeas. So that's one problem. The other problem I'm concerned about is the issue of redressibility. You know, if you're saying that the government, these defendants, don't have constructive custody, then how are you ordering them to do anything? And, and that's sort of a, I think that falls under the standing rubric, but a case or controversy rubric, if you're, you know, if you can't do anything to help the person, it's sort of an advisory opinion almost. So those are pretty serious problems. And, and then it also impacts all the other people who are trying to get people home from Sakat or from other El Salvador prisons, of which there are quite a few now. And I thought that would include Abrego Garcia, but it includes Christian, you know, the guy in the other Maryland court, and there's now two guys out of Georgia. And so it's a, it's a troubling ruling.
- [24:24]
Benjamin Wittes
And I take it it is not, at this point appealable. Right. Because it's not an order of, it's not dispositive of anything.
- [24:36]
Unknown
That sounds right. He. He. All he's done so far. Well, no. Well, I don't know. He ordered the government at this stage to take the first stab at proposing how to provide habeas corpus rights to the people in Sakat. And I anticipate their response being, how could we do that? You just said we don't have custody. And where it goes from there, I can't exactly. I can't extrapolate. Maybe somebody else can.
- [25:20]
Benjamin Wittes
All right, we are going to shift gears from people who were locked up in El Salvador.
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Unknown
Oh, can we. Can. I just want to give Katherine Fders a shout out. She's the ABC reporter. That's a pretty big scoop, so we should credit her.
- [25:36]
Benjamin Wittes
Excellent. We are going to shift gears from people who are locked up in El Salvador to universities that are locked up in Cambridge, Massachusetts. And I'm going to turn the moderation duties over to Roger here because they're. The person who's been following this case is me.
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Unknown
Yeah. So I understand there was a new executive order issued this week. If. Can you tell us a little about it, Ben?
- [26:09]
Benjamin Wittes
Yeah. So this, this one came as a bit of a surprise to me. I, and I shouldn't have been surprised by it because I've spent a lot of quality time with the order, with the law that it is issued under, which is USC 1812 F. Some of you may remember that statute because it's the statute that gave rise to the travel ban in the first Trump administration and its many iterations. And it says that the president can designate any class of aliens and forbid their Entry or suspend their entry into the United States. And usually we use this for, like, people interdicted on the high seas or people in Russia who are, you know, killing Ukrainians or people, in the case of the travel ban, people from eight countries that I don't like. Right. But Trump did something really weird and, and a little bit clever with it, which is he defined the class of people not by anything that they had done overseas or that they, you know, that were creed features of who they were or something like that, but according to their desire to attend Harvard University. And he said, you know, okay, you've. You're stopping me from having. Giving grants to Harvard, preventing Harvard from getting its grants. You're stopping me from decertifying it from. For foreign students, but you can't force me to admit foreign students to the country. And so he issues this proclamation that says basically suspending entry of aliens who are intending to enroll in Harvard University. And it's a little bit of a puzzle. Harvard went into court and got a very quick temporary restraining order. And it's a comp. It's a complicated little case. And I have to say, whoever, whichever of the like harass Harvard University team came up with this one. It's kind of like, I don't approve of your vocation, but this is. It's a slightly clever one for reasons we can go into.
- [28:38]
Anna Bauer
Can you tell, I'm curious, Ben, why it's so clever. And also, I hope it's not another one of my former classmates who is in charge of the destroy Harvard University team.
- [28:51]
Benjamin Wittes
I mean, that would be, you know, the ultimate way to put your middle finger up to your law school would be to prevent it from admitting students. So the cleverness arises from the fact that Congress has essentially plenary power over admissions of people. And the power of Congress over the border is enormous. And the delegation in 1812 F is super, super broad. So John Roberts, in one of the travel ban cases, wrote that it exudes deference to the president. You know, it's. This is not one of those statutes about which how much deference they get is debatable. It's. It's an extremely deferential statute. And so, you know, and moreover, the administration can argue. I don't, although I don't think very credibly that, you know, they didn't really take an action against Harvard University here. They're merely refusing entry to people at the border, which is their prerogative and something that a court has no authority to review. Under a 1972 case called Kleindienst v. Mandel, which interestingly involved a guy who wanted to come to the United States to give a lecture at universities. And the plaintiffs were people who wanted to hear his lecture. And so, you know, the Supreme Court said in response, you know, we don't, we're not even consider the First Amendment implications for those people because the consular decision not to admit somebody is unreviewable. And so there is actually some really good, like pretty strong law on the side of the administration here. And that said, the argument that they're making is exceptionally dangerous because if you, if you accept it, why couldn't the administration say were issuing a proclamation that's denying Elon Musk is on the outs now? So anybody who has an H1B visa to work for SpaceX. Nobody. No entry. Or how about, you know, anybody who reads the New York Times?
- [31:43]
Unknown
But Ben, what somebody could say, I mean, I mean they aren't really, the law is supposed to, you can suspend somebody's entry if you think they're detrimental to the interests of the US but as you said, they aren't suspending anyone's entry. They can all come in if they go to a different school. And, and they aren't even declaring the person detrimental. They're.
- [32:08]
Benjamin Wittes
That's right. And that, and that's the, the counter argument is this is a little too clever by half because in fact the statute says you can restrict the entrance of aliens or a class of aliens. But there has, but this actually doesn't do that because all the individual alien has to do in order to circumvent this order is enroll at Columbia. And, and so it may be a completely, you know, Harvard got the TRO right away. And so I'm not, I'm not at all confident that the administration prevails on this and very much hope they don't. But I do think unlike some of the other, unlike the law firm cases and some of the other Harvard cases, you know, there is some, the administration has some, one very strong statute and one very strong Supreme Court opinion that it's going to be able to work with in defending this action.
- [33:23]
Unknown
Okay, I think I can hand the moderating duties right back to you.
- [33:30]
Benjamin Wittes
All right, well, James and Anna, the other attack on Harvard is on the law review. What's going on there?
- [33:44]
Roger Parloff
I can jump in and then Anna can, can add that.
- [33:48]
Benjamin Wittes
We can go, we can go through this one quickly.
- [33:50]
Roger Parloff
Yeah, it's pretty quick. It was sort of surprising news that dropped, I think the beginning of this week, which was basically that news came out that the administration is. Is undertaking an investigation of the Law Review for discrimination and has essentially someone like a cooperator who was on the Harvard Law Review, if I've read the news correctly, and then joined the administration within maybe the past few. Certainly the past month, possibly even the past few weeks. The thrust of the classmate, Anna. Yeah, another classmate.
- [34:25]
Anna Bauer
Yes, but not. Not someone that I knew, like, wasn't in my.
- [34:32]
Benjamin Wittes
We know who this person is.
- [34:34]
Anna Bauer
We know who this person. Oh, gosh, why am I blanking on his name?
- [34:40]
Roger Parloff
I think it's Daniel Wasserman.
- [34:42]
Anna Bauer
Yes, Daniel Wasserman. I was thinking it was Andrew Wasserman, but yes, Daniel Wasserman. He just graduated within the past. Harvard's HLS just. They just had their graduation in May, and so he just graduated and then now is at the White House working for Stephen Miller.
- [34:59]
Roger Parloff
Yeah. And from the reporting, it sounded like he graduated and two or three days later he was on staff with. With Stephen Miller and working to bring a legal action against the Harvard Law Review, which, as some folks may know in this reporting is made clear, is actually neither a part of Harvard Law School nor Harvard University is its own standalone entity. And it's not quite clear where this stands or where this is going, but it was at least extraordinary to me, maybe, maybe it shouldn't be that the administration is sort of among the many tendrils toward Harvard University includes this effort at rooting out discrimination. So the claim, I'm not sure we said that, was that there was discrimination against white males in the selection of, I think, articles and potentially leadership positions within the Law Review. And there was at least some cooperation from the Law Review, though where things stand precisely was. Was not clear. Though Anna may have more information.
- [36:02]
Anna Bauer
Yeah, well, one thing that I will just mention that I think is in terms of, insofar as we've discussed the politicization or weaponization of Justice Department functions. You know, what was really remarkable about this whole ordeal to me is that there's this exchange of letters that the Justice Department is sending to the Harvard Law Review about, you know, these. This claim that it's making about discrimination, all that it has this cooperating witness, Daniel Wasserman, and at one point before the HLR apparently knew that this guy was, you know, a cooperating witness, according to the Justice Department, they instigated some kind of disciplinary review process because of. It relates to basically someone potentially taking documents and then, you know, disseminating them outside of hlr, which apparently was a violation of HLR policies that led to a revelation, according to The New York Times that this cooperating witness had downloaded a bunch of files that apparently, you know, was a violation of HLR's policies. He had a reprimand in his file as a result of this kind of review of these actions. And the Justice Department, in one of the letters that it sent to hlr, said, you know, by the time this guy graduates, you must retract or withdraw any reprimand that you have given this guy, which is such a level of, you know, meddling and micromanaging in this, like, internal bodies or this external bodies affairs that it just is re was really remarkable to me that this is what the Justice Department was demanding. I have not reviewed the actual text of these documents because I don't have them. They were just reported on at the time. So I don't know the full context. But, you know, insofar as we have been discussing examples of things that are just really far outside of what the normal Justice Department actions are, this strikes me as a really good example of that.
- [38:39]
Benjamin Wittes
Yeah, keeping the world safe for white men at the Harvard Law Review. This is why we have a Justice Department people. All right.
- [38:50]
Unknown
Do you know if the Harvard Law Review gets any federal funds?
- [38:54]
Anna Bauer
Yeah. So this is a good question, Roger. And this is something I've been meaning to look into and maybe I'll do this this weekend in terms of. Because, like, I have a loose sense of what HLR's relationship is to the university. Like, there are some ways that the university facilitates things, like the HLR competition. They obviously have a very close relationship with hlr, but I don't know the exact kind of legal status that HLR has in relation to the university and then any funds that the university receives from the federal government. So stay tuned on that, folks, because that's something that we certainly intend to look into. And if anyone has recommendations or insight on that, then feel free to email me or send me a dm.
- [39:44]
Benjamin Wittes
All right, let us move on to how much of the federal government you can fire. James, give us an update on the personnel cases. Sure.
- [39:57]
Roger Parloff
I think there are two cases we wanted to flag for people this week. The first is one that has been kicking around for a while and it stems pretty much from a executive order that was issued in, I want to say, the 11th of February that that directed agencies and was subsequently codified, I think in a. Codified is not quite the right word, but through an OMB memo was. It was additionally then transmitted to. To several agencies, I think 19 in total, essentially directing those agencies to engage in widespread Reductions in force or riffs that led then to a challenge from various plaintiffs, including labor unions, state governments, advocacy organizations in the Northern District of California. And the district court there first issued a TRO and then a preliminary injunction. The government appealed. There was a little bit of procedural jousting that's sort of beside the point for our purposes. But the long and short is on a stay pending appeal. After the 9th Circuit at the end of last week denied the government's efforts to stay the district courts and joining of the RIFs, the government went. At the beginning of this week, the Solicitor General's office went to the Supreme Court and sought the Supreme Court's intervention, making arguments that we've seen in some of the other cases. Essentially things like the district court shouldn't. Actually, there's not a case for the court to rule on either because this matter should be in front of the Merit Systems Protection Board. And it was sort of a different statutory scheme under the Civil Service Reform act or that there's no viable cause of action. And then, by the way, on the merits, the government argues the president has long had the power to order reductions in force doesn't actually have to flow from a particular statute that is inherent in his in his Article 2 abilities. You know, interestingly, at least for me, the government's filing a couple of Times cites Nixon vs. Fitzgerald, which some folks may remember is the case that held that presidents are immune from civil liability and was much going to talked about in the in the case, the Trump immunity case litigated last summer. In much of last year, what folks may not remember is that the core issue there was a civilian member of the Air Force who was fired essentially through a reduction in force. And he argued, look, this reduction in force was just an effort to retaliate against me. So the long and short of that is the government has been citing Nixon v. Fitzgerald, and in addition to citing Nixon v. Fitzgerald in a tactic that we've seen elsewhere, the government's filing invokes the practice of the Clinton administration. In other words, trying to say, look, what this administration is doing is actually no different than what other past administrations of different political colors have done. So we'll see. That was filed, I think, on Monday of this week. Justice Kagan ordered a response June 9th. I think that's Monday of next week. But yet again, on the Supreme Court's emergency docket is one of these cases involving these mass reductions in force. So that's case number one. Case number two is a little bit different than what we've talked about and was not actually filed within the past year, but has a ruling and reasoning that is quite interesting for cases that we have been following. So this is a case out of the Fourth Circuit, that is the Executive Office of Immigration Review versus Owens. Essentially, it was a group of immigration judges who were trying to challenge or were challenging a policy that required them to get approval anytime that they wanted to speak in their personal capacity, whether it's at a conference or in some kind of public setting. And so they were challenging and saying, look, under the First Amendment, we should be able to speak freely. And the government came back and responded, this is not. And they had filed that in federal district court, I think the Eastern District of Virginia. And the judge overseeing it said, well, this isn't actually a claim that should be here in federal district court. This really ought to be in front of the Merit Systems Protection Board. So this all happened in, I believe, late 2023, argued in 2024, toward the end of the year, I think after the election, but obviously before the new administration had come in. This week, we got an order from the 4th Circuit that basically said, we think the district court's probably right that Congress meant for these types of claims to go to the mspb. But we're concerned that when Congress made that decision, it had in mind an actually functioning, operable MSPB system. And what it didn't imagine was something where the Office of Special Counsel would be fired, the MSPB would have members who were removed and thus not have a quorum. And so essentially, one of these presumption of regularity issues sent it back for the district court to engage in fact finding to determine whether, in light of all these things that have happened recently, this case should nonetheless be required to go through the MSPB proceedings. So we'll see what. What the district court there does with it. But. But very interesting. And I went back. This was essentially sua sponte by the 4th Circuit. So there was. They hadn't sought additional briefing on it. They sort of took notice of the public record and then. And then issued this ruling. So we'll be curious to see. See where it. Where it goes. But. But certainly an interesting commentary and the fact that, hey, judges live out in the world and are aware of what's happening elsewhere.
- [45:58]
Benjamin Wittes
We have breaking news from the Supreme Court. Anna is taking a look at it.
- [46:05]
Anna Bauer
Yes. Come back to me, please.
- [46:09]
Benjamin Wittes
Discuss it at the bottom of the show to give her a little bit of time to familiarize herself with the situation. All right. While we're on the subject of firing all the workforce of the federal government, let's talk about agency dismantling as well. James, what do we have going on there? Delete Me makes it easy, quick and safe to remove your personal data online at a time when surveillance and data breaches are common enough to make everyone vulnerable. Delete Me does all the hard work of wiping you and your family's personal information from data broker websites. You sign up, you provide Deleteme with exactly what information you want deleted and their experts take it from there. It's not just a one time service. I get these regular privacy reports showing what they found, where they found it and what they removed. And every time there's new stuff because the data brokers keep collecting on me and Delete Me keeps coming back to get the stuff taken down. It is constantly monitoring and removing the personal information you don't want on the Internet. Look, I'm someone with an online presence and you know, I put a lot out there, but my privacy is actually important to me. I've used Delete Me since before they were an advertiser on Lawfare. I've been the victim of identity theft, of, you know, a certain amount of harassment from my political activities, and if you haven't also, you probably know someone who has. Delete Me can help. So take control of your data and keep your private life private by signing up for Delete Me now at a special discount for our listeners. Get 20% off your Delete Me plan when you go to JoinDeleteMe.com lawfare20 and use the promo code lawfare20 at checkout. The only way to get 20% off is to go to JoinDeleteMe.com Lawfare20 and enter the code lawfare20 at checkout. That's JoinDeleteMe.com Lawfare 20 code lawfare20.
- [48:48]
James Pierce
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- [49:13]
Anna Bauer
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- [50:14]
James Pierce
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- [50:43]
Roger Parloff
Me and myself A couple of cases in the agency dismantling front, one similar to the first of the two of the personnel we just talked about, which is essentially the government going to the Supreme Court. This is in the McMahon vs New York case out of the District of Massachusetts. This was an effort very similar in terms of the reductions in force. What happened here were firings of, I think nearly 1400 individuals through a reduction in force, and that was then challenged in the District of Massachusetts, which granted a tro, a preliminary injunction. The fourth, excuse me, the First Circuit upheld that. The government has now gone again to the Supreme Court here arguing a couple of different things, very similar to the arguments that we saw in the case out of the 9th Circuit just discussed, essentially that this should be in the MSPB system, not in front of a federal district court, and that in addition, the types of reductions in forces that are reductions in force that that have been ordered here are entirely permissible. One other point, which is maybe sort of a categoric kind of, you know, what, what category or box we put this in the way the plaintiffs have litigated this case is very much the way we actually just teed it up here, which is an agency dismantling case, that in essence these firings were were done in a larger effort to try to make the Department of Education go away, which of course Trump has not been shy in saying that's exactly what he is, what he'd like to do with a sort of tack on to the extent that's permissible under applicable law. What the government has argued here is, yes, it's true there have been nearly 1400 firings, but there still, remember, there still remains some 2000 individuals at the Department of Justice excuse me, at the Department of Education. That's still consistent with the government's view of what is statutorily required to keep an operating Department of Education. And that is also within the wide discretion of the executive branch and the president in deciding how he needs to or the government as a whole needs to operate an education department. So that was just filed today and out of the First Circuit. Justice Jackson ordered a response a week from from today. So we'll we'll see a response from the plaintiffs at some point next week. The other case in the agency dismantling realm that's worth a quick comment is Aviel versus Gore. This is another case that we've been litigating for quite a long time. This is the the firing of the CEO of the Inter American Foundation. For those who may remember, Pete Morocco, I think some of the reporting suggests that he was placed on the board by President Trump and then immediately started firing people, including the CEO Sarah Aviel, who then challenged it. AVL had a successful challenge in the District Court. This went up to the D.C. circuit and we had an interesting ruling from the D.C. circuit this week. Interesting insofar as the panel is one that we've seen. I don't think it's any more the motions panel for June, but was for last month May, which is Judges Pillard, Katzis and Rao. We'd often see the more conservative Republican appointed judges Katzis and Rao ruling in favor of the government. That is not what we saw here. We saw judges Pillared and Katzis essentially holding that the District court was correct in both, that Morocco didn't have the authority, neither the president nor Morocco had the authority to remove the CEO and that reinstatement to her position was, in fact permissible. Judge Katzis, you kind of get the sense he was holding his nose to reach this because he says something like it's permissible under the en banc court's recent decision three weeks ago in Wilcox, from which he dissented. But I thought he's sort of an admirable acknowledgment that he is bound by circuit I shouldn't say bound by, but in a stay posture, he said, look, we're determining we're engaged in Stay litigation here. The en banc court addressed a similar reinstatement question in the state posture there. We should draw, you know, we should, we should weight that heavily in our thinking. So long story short, the CEO of the Inter American foundation lives to fight another day.
- [55:40]
Benjamin Wittes
All right, it is time for the three letter initials lightning round. Let's, let's go through a whole string of immigration cases, the first one of which of course does not involve three letter initials. But Alina Haba has a lawsuit against her. James, what. What's going on in the great state of New Jersey?
- [56:10]
Roger Parloff
Yeah, this stems out of an incident we've now talked about a couple of different times. And this was the visit by Mayor Ross Baraka as well as three members of Congress to Delaney hall, an immigration facility in New Jersey. As some folks may remember, in the immediate aftermath there was the arrest of Mayor Baraka, then that was dismissed, and then there was, as we've spoken about either last week or the week before, the arrest and now the prosecution of one of the mayor, the members of Congress, Representative McIver, for allegedly assaulting one of the security officials or one of the security, but one of the federal officials who was there at Delaney Hall. So this is now a federal civil suit brought by Mayor Baraka against Alina Haba and I think Ricky Patel, who was the special agent in charge of the Department of Homeland Security Security in the relevant region, presumably New York or excuse me, New Jersey, maybe New York, whatever other area that that covers, essentially arguing malicious prosecution and a defamation claim against Haba and saying that everything here were just trumped up charges to, to, to go after the mayor. There's some, some disturbing allegations in the complaint, of course, and complaint has not yet been subject to testing, but essentially suggesting that certainly Habbo was just trying to do this. The complaint says in her capacity as a political operative, which is an effort, I take it, to kind of plead around the type of immunity that would otherwise protect a prosecutor. And there's both absolute and immunity and qualified immunity. I am, I would be shocked if we didn't see motions from both Haba and Patel arguing that they were acting in their capacities as such when they initially kind of had the arrest of or directed the arrest of Baraka. But. And so my early prediction is that this lawsuit probably won't go anywhere, but it's a pretty damning indictment in the non formal sense of the kind of conduct that, that if true that Haba and Patel engaged in. The sense was that when Baraka learned that he wasn't allowed to be on the property. He just left and then he was arrested off the property. That is what the sort of, the thrust of this civil suit says. I don't know how much that aligns with, with the actual facts, but if, if true, that would be, that would be quite disturbing.
- [59:01]
Benjamin Wittes
All right, Roger, remind us who Arevalo Milan is and what is going on in his case.
- [59:11]
Unknown
Yeah, Darwin, Antonio. Arevalo Milan, this is a Alien Enemies act putative class action. And John, I think it's pretty important ruling. John Holcomb, who's a Trump appointee, he becomes the second judge to uphold the Alien Enemies act proclamation. And it's actually even more deferential than the first one to Trump's, this what he puts in the proclamation. Interestingly, despite that, he does enter a class wide injunction against removal because of the due process issues. The government would not commit to him basically to anything other than to say, we'll, we'll give them more than 24 hours notice, but we won't tell you how much more. And so he, he didn't enter the classified injunction. This is the Central District of California, which despite its name, as most of you know, is, is really more like Los Angeles. And east of it, the Mojave Desert. This involves a guy in the facility in Desert View. And the thing that's, you know, like the other two of the other Trump judges who reached other results had said, you need to, you can't dispute the fact finding in the proclamation, but you can dispute Trump's, the legal conclusions he draws from those. So, for instance, when he says that Trend Aragua is directed by Maduro, you have to accept that you can't put in affidavits that dispute that. So they accept the idea that Trend Aragua is the same as Venezuela. But you still have the other judges still evaluated whether this was an invasion or a predatory incursion. He says you can't even do that. It leaves up to the President both the legal conclusions, the findings and the factual findings and the legal conclusions. So I think that's a pretty important decision.
- [61:36]
Benjamin Wittes
Yeah, that has a, and unfortunately, it's not zero chance of survival at the Ninth Circuit, but not zero chance of survival at the Supreme Court.
- [61:47]
Unknown
Exactly.
- [61:49]
Benjamin Wittes
All right, let's talk about DVD and all its subcomponents. What's going on there?
- [61:57]
Unknown
Well, one thing that happened, and I'll, I'll is that yesterday, I think one of the, the defendant filed an affidavit. Remember that we have these six very serious criminal aliens that are now sort of Stranded in Djibouti. They were headed for east for South Sudan. And Judge Brian Murphy stopped that. And then he said, look, you need to provide them a reasonable fear interview. Make sure. And. And where you do it is up to you. You know, you can bring him back. You can. You can do it there, if you can do it there. And actually, there was a lot of back and forth where the ice guy, you know, he was asking the ice guy, do you have facilities to do it there? And finally he said, yes, we can do it there. So they're doing it there. And here in this affidavit, there's a very sort of nasty thing about your. About they're in danger of getting malaria. They're in danger of attacks from Houthis in Yemen. Everyone is getting sick. And. And then Chad Meisel retweets or tweets that out and says, look, what the Brian Murphy. Judge Murphy is causing these people to go through. Obviously, he isn't causing anything. They could have brought them back in the very beginning. The other thing is that.
- [63:33]
Anna Bauer
Wait, can I just say, before you move on, Roger, I just wanted to jump in because I heard you talking about in the background on that affidavit. What's. What is interesting about it is that, you know, when Judge Murphy on May 21, or whatever it was, initially ordered this remedy, which was, you know, you've got to give these reasonable fear interviews, he basically said during the hearing, I don't care where you do it, but the government was the one who suggested, you know, we could do it where they're at now, and which, you know, they had been kind of sidetracked on their way to South Sudan. And so now they're in Djibouti and they're in this shipping. Converted shipping container. And as Roger explained, this affidavit explains all the ways that the government is finding it really hard to actually comply with the requirements of the judge's orders that these people be able to meet with counsel, that they have these interviews, all that. But. But one thing I will add about it that's interesting is that, you know, like, this declaration was filed after a status report that the judge had required every seven days had already been filed, like, two or three days earlier. And it doesn't really have anything to do with the details of what the status reports required by the judge require. You know, it. It has all this extraneous information about how ICE officers are getting sick, and they're in close proximity to these people who have been accused of these horrible crimes. And all of this stuff. And so it really seems like it is mainly just being used as kind of a PR vehicle as opposed to having any real kind of legal significance to it. And it really is interesting because people like Chad Mizell, who's a top official at the doj, is going out and tweeting saying this is the position that the judge put us in. He's risking the lives of ICE agents. But in fact, it was Drew Ensign, the government's own lawyer, who, who suggested that the most narrowly tailored, you know, remedy here would be to allow them to. To do this in the country that they're in. So it was government's own suggestion. I just want to make sure we got that point across.
- [66:10]
Benjamin Wittes
All right, Roger.
- [66:12]
Unknown
And the other tidbits there is that one of the name plaintiffs, OCG in the original case who had been improperly, he had withholding of removal to Guatemala, and they just removed him to Mexico with no ability to raise any concerns about persecution or torture. And he had, in fact, been gang raped in Mexico. He is back in the US we don't know much more than that, but the New York Times has reported and, and it was.
- [66:51]
Benjamin Wittes
We.
- [66:52]
Unknown
And what I think is they're doing is this case is now at the Supreme Court, and I think they're cleaning up some of the worst stuff in the background so that they can sort of. Yeah, that's been taken care of. Let's focus on jurisdictional issues. And that's been completely briefed at Supreme Court. So I'm actually a little anxious about what happens next there.
- [67:16]
Benjamin Wittes
Yeah. Although I will say, you know, a few weeks ago, we had three people who, the Supreme Court had removed her. The administration has removed improperly. And there were orders to bring them back, and there was a question about whether they would be able to be compliance with any of those orders. Two of those people are now back in the United States. And that is actually a, I think, a promising sign from the point of view of compliance with court orders. Although, again, the circumstances of Abrego Garcia's return are, are, shall we say, peculiar. All right, Roger, we're almost through the parade. Jordan Melgar, Salmaron, what's, what's going on there?
- [68:09]
Unknown
This was one. This was a story that was broken by the Investigative Post out of Buffalo, a guy named J. Dale Shoemaker. And it's a. This was a guy that had. Was filed a petition back in 1983, and it's actually in front of the second circuit. He, he's trying to get. He's A Salvadoran. And he did have, he acknowledges some MS.13 associations back then in the El Salvador. And he's tried to escape, he's disavowed, he's tried to escape the gang. And anyway he was, he, he's bringing a cat claim, a claim under the Convention against Torture. So he was appealing a adverse administrative ruling to this Second Circuit. And, and the government this all of a sudden on April 17 said look, if you don't order him, if, if the court doesn't order a stay of his removal, we're just going to remove him on May 8. So the 2nd Circuit on May 7 issued a stay of removal. So it could and it issued that at 9:52am and 28 minutes later he was removed. And so the court has been trying to get to the bottom of that. The government has acknowledged a confluence of administrative errors. And it does sound like that. It sounds, but I won't go into it. It's a, it's a long, it's a pretty interesting story I might try to write more about. But anyway, the, exactly what the his lawyers are asking for a special master to do fact finding. It's a weird thing when you're at the Second Circuit and there's no, there's no district court because it goes directly from the immigration board, you know, Bureau of Immigration Appeals to the Second Circuit. So we'll have to see what they do.
- [70:27]
Benjamin Wittes
Finally jop our last three letters this week.
- [70:33]
Unknown
Yeah. So this is the story about Christian who was sent to Sakat on March 20, March 15 with everybody else. He but in violation and alleged violation of a consent decree. He was part of a class that had been pending in District of Maryland. And couple interesting things here. The Judge Gallagher yesterday ordered discovery mainly with an eye to pursuing contempt for a lack of compliance with her other orders about trying to facilitate his return. And she is a Trump appointee. I, I think that actually she was a Democrat before she was a Trump appointee. So I'm not exactly sure how that came down, but she had really laced into them. There's a couple of things she had really laced into them on on May 28, she had said the court finds that, that defendants utterly disregarded the court's order. Defendants untimely response is the functional equivalent of we haven't done anything and don't intend to anyway. Put that aside. Then on June 2, there was this interesting declaration that said that Rubio, it's, it says Rubio personally is personally handling negotiations with Bukele. He has a personal relationship with President Bukele that dates back about a decade. He has read and understands the court's order and wants to assure the court that he is committed to making prompt and diligent efforts on behalf of the United States to comply with that order. You know, I'm not sure given what the court's Supreme Court has said, that might be about all you can can. You know, if he says that, I don't know what you can do. But anyway, that's a possibly important development.
- [72:38]
Benjamin Wittes
All right, it is time for breaking Doge news. And here it is. There is widowed merch people. Anna, tell us about the widowed merch which is now available.
- [72:57]
Anna Bauer
We have merch on, I believe the name is lawfairstore.com lawfairstore.com the Lawfair store, is that right? Okay, the lawfairstore.com we have our phase one merch drop for the long awaited WTOED merchant. We have two different types of hats.
- [73:20]
Benjamin Wittes
Hang on. We're going to share the screen so that everybody can see the hats.
- [73:25]
Anna Bauer
There was a bitter division within the lawfare team about whether there should be a question mark or multiple question marks or just one question mark on these watoed hats. I know that a lot of people wanted an unhinged level of question marks and I promise in future merch drops there will be content that includes multiple question marks. But in this case for a hat, it was, it was kind of off centered if you had a bunch of question marks.
- [73:58]
Benjamin Wittes
I want to point out that for those who are truly bold, there is. It doesn't look like it will display it, but you can get these in MAGA colors. For those who are truly willing to. Oh, did it not share the screen?
- [74:24]
Unknown
Did for me.
- [74:25]
Benjamin Wittes
Oh, okay. Did it go away?
- [74:29]
Anna Bauer
No, it's still there.
- [74:32]
Benjamin Wittes
Well, I don't know how to turn it off. So the, you know, for those who are truly bold and who want to be, you know, offend people, go with the ones with the MAGA colors. We will be doing more witoed merch as well as other important offerings very soon. All right, Anna, what is the real breaking wito news in the Supreme Court?
- [75:16]
Anna Bauer
Yeah, so the real breaking news, we we've talked before about Cruz suit against Doge trying to argue that Doge or the United States Digital service is subject to foia. The government has argued that the United States Digital service is not subject to FOIA because it is a component of the executive office of the President and that it is merely just an advisory body and traditionally advisors of the President or advisory bodies within the executive office of the President would not be subject to foia. But that question hinges on this factor of, you know, determining whether or not DOGE or the United States Digital Service exercises substantial independent authority apart from separate from the President. And so in this suit, at one point, Judge Cooper, Judge Christopher Cooper in the District Court in D.C. issued a discovery order granting discovery to CREW on a number of preliminary questions around these factual issues about whether or not the United States DOGE Service actually does wield substantial independent authority. One of the things in that discovery order related to requiring the United States Doge Service to respond with any recommendations that it has made to federal agencies and whether or not those recommendations were followed. The reason that the plaintiffs wanted this and that the judge granted it is because, of course, there's this kind of debate about whether or not DOGE really is advising or if it's directing. And Judge Cooper recognized that there's a very fine line between recommendations and directions. And so this is one reason why he granted this request. This discovery order also would, would require Amy Gleason, the alleged acting administrator of doge, to sit for a deposition, and it would require some other things. The government appealed. They argued that this is a separation of powers issue. They argued that there is they shouldn't have to disclose these recommendations because, you know, a recommendation doesn't necessarily have to be followed. The D.C. circuit said, Nope, we're not going to stay. Eventually said, nope, we're not going to stay. This after there was an administrative stay. The reason being that the government did not object on the separation of powers grounds that that it eventually brought when it appealed or sought a writ of mandamus. So basically they had waived that objection. Then it went up to the Supreme Court and the court issued an administrative stay. And then now the breaking news this afternoon is that the court, in an apparent 6 to 3 decision, has granted the government's application to state stay the discovery order. Ben, they, they found the. And the three justices who dissent are the liberal justices. But the court finds in this order that the case should be remanded back to the Court of Appeals for further, for, for, for further, for a further look. It says that the portions of the district court's April 15 discovery order that require the government to disclose the content of intra executive branch USDS recommendations and whether those recommendations were followed are not appropriate. Tailored, appropriately tailored. The reason why, the court says, is because whether an entity is an agency for the purposes of the Freedom of Information act can't turn on an entity's ability to persuade Furthermore, separation of powers concerns counsel, judicial deference, and restraint in the context of discovery regarding internal executive branch communications. So now this is supposed to go back to the lower courts. I need to look at this a little bit more and compare it to the original discovery order. But it seems to me that because the focus is primarily on the part of the discovery order that relates to the disclosure of these recommendations, that once it's sent back down, there still may be things related to discovery that can still go ahead that were included in Judge Cooper's order. I also have some questions here about how this will play out, because the court is talking specifically about the United States Doge Service, which is in the Executive Office of the President. But if you look back at Judge Cooper's order, it had requirements about not just the United States Doge Service, but any Doge team members who are embedded in agencies and what recommendations they made to their own agency. And of course, the government's line has been in other cases that those Doge team members are not actually a part of the United States Doge Service. They are apparently a part of the agencies themselves. So it, it's, there's a lot of different, you know, nuances that may be worked out as it goes back to the lower courts. But for now, Amy Gleason's deposition apparently will not go ahead.
- [81:30]
Benjamin Wittes
All right, we have another Supreme Court Doge ruling as well, Right.
- [81:39]
Anna Bauer
I have been focusing on this Supreme Court Doge ruling, so unfortunately, I have not gotten through the other Supreme Court Doge ruling. I do believe that it relates to the Social Security Administration case, but I'm not sure if James or Roger have had a chance to look at that. If we are able to come back to it in a few minutes, though, I can update.
- [82:01]
Benjamin Wittes
Have either of you taken a look at this?
- [82:05]
Roger Parloff
I have not yet. I was looking at the one Anna was looking at as well.
- [82:08]
Benjamin Wittes
All right, no worries. We will. We'll talk about it next week. If there's a Supreme Court memo to the Supreme Court, stop dropping these while we're ruling, while we're working on these things.
- [82:20]
Anna Bauer
But if Roger and James, if you have anything to add on what I mentioned in terms of the.
- [82:25]
Benjamin Wittes
Actually, even if they do, we need to move on.
- [82:29]
Anna Bauer
Okay.
- [82:29]
Benjamin Wittes
Running out of time. And we would not be, it would not be sporting of us to leave the Trump Musk feud without asking Anna Bauer. Anna, can we now exclude Elon Musk as the administrator of Doge as a suspect?
- [82:52]
Anna Bauer
I think we can, unless you are one of the people who adheres to The Galaxy Brain theory that this is all a ruse and that it's a fake fight. A way to throw the quartz and also maybe me off the scent of who really is the administrator of DOGE.
- [83:14]
Unknown
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- [83:29]
Anna Bauer
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- [84:12]
James Pierce
With the Redfin app, you'll know the moment your next place hits the market. Whether you're looking to buy your dream home or rent a sweet apartment. Give Redfin your gotta have it wish list of property features and you'll receive real time notifications tailored just for you, ready to see it up close. And personal scheduling a tour is just a tap away. Don't wait to find your perfect match. Download the Redfin app and start searching today.
- [84:43]
Benjamin Wittes
I think we're gonna. We're gonna call that a yes. All right, we're gonna go to audience questions. Josh asks, what is the status of the two Eugene Carroll VDJT cases? If one of us is going to know that, it's going to be Roger. I do not. I haven't kept up with it the last few weeks. Roger, do you. Do you have any information on that.
- [85:12]
Unknown
One was upheld by the second Circuit. It was unanimous. I don't know if they're trying to. And bank or not. That would be. The other one is.
- [85:24]
Benjamin Wittes
Which is the big one?
- [85:27]
Unknown
The other one? Yeah. The big verdict they raised belatedly. It's. It. It's hinging on either. I think on either a late presidential immunity ruling, whether that was decided or. Yes, I. I think there was a late presidential immunity claim and they. They need to litigate that now. And. And. I'm sorry, I. It is a blur.
- [86:06]
Benjamin Wittes
All right. Mike asks, aside from the Question of a Brgo Garcia's guilt under the indictment. What is the possibility that Judge Sinis will make one or more findings of contempt? So there is obviously a contempt question, but it is much harder to argue that somebody is in contempt when he has been returned to the country and there is a notification of compliance, which I understand has just been filed. And so the question would, you know, there was no specific deadline for his return, and the government does seem to have complied in the sense that he's back in the country or he will be, assuming they get him from El Salvador. So I don't know what the basis for contempt would be unless there are specific interstitial rulings that were not complied with. Generally speaking, you know, Judge Sinis can probably congratulate herself for having effectuated one way or another, for good or for bad, Abrego Garcia's return to the United States. And I doubt you will see a contempt finding. It's not like Judge Boasberg where in the broad scheme of things, her order was defied. Her order was foot dragging Lee and weirdly complied with. Do any of the three of you disagree with that?
- [88:03]
Unknown
My silence is not. No. Noted dissent.
- [88:11]
Benjamin Wittes
Well put. I mean, I don't. Look, I don't say that with any sense. The government has not shrouded itself with glory in this case. But if you're Judge Sinis and you look at it and you say, which of my orders was defied? The big one was you got to do what you can to bring him back. And they did something, and they kind of brought him back belatedly, foot draggingly, resentfully, and with a lot of really contumacious behavior, including by the President. But at the end of the day, the order didn't say the president can't be a flamboyant asshole in the. In the White House.
- [88:49]
Roger Parloff
House.
- [88:51]
Benjamin Wittes
All right. Catherine Watkins asks what does James think about Judge Dugan's motion to dismiss based on her immunity for official acts in her courtroom, which she says is similar to the immunity that SCOTUS gave to Trump. So James has addressed this before, but let's turn it over to him again.
- [89:17]
Roger Parloff
Yeah, I wrote a short piece for Lawfare on this. I also spoke about it a few weeks ago when we sort of first saw the motion and then wrote a piece where basically I said, I don't think very much of it. I don't think courts have recognized any kind of an immunity from judicial. From criminal prosecution for judges. The sole outlier that I am aware of was a district court case from a prosecution actually involving, among other people, Charlie Chaplin, which is sort of an interesting historical anecdote. But the upshot of the court's analysis, the district court's analysis, there was a lot of skepticism about the prosecution. And the merits of bringing a prosecution seemed to to bleed over into the judge's thinking about the immunity issue, which I thought was mistaken. All of that said, I did note that at some point last week. So when I wrote the piece and when we spoke about this last on lawfare Live, Dugan had filed like a seven or eight page message to dismiss. Her lawyers have since filed a much more comprehensive about 30 or 35 page motion that makes a slightly more sophisticated argument and relies, as I think the question suggests, much more heavily on kind of the Trump v. United States methodology and says, well, for official acts in my official capacity, I should have immunity and tries to distinguish away a handful of cases where judges engaged in bribery or corruption for officials acts. Right. So they took bribes to issue reduced sentences or to decide cases in certain ways. So I think that's a better effort to articulate from kind of relying on Trump. I think Trump was wrongly decided. I also think, even if you don't agree with me, it was very much this is a free pass for presidents, but nothing to suggest it should more broadly open apply outside of that to judges or to others. So I may do a sort of a follow up piece on what I think is a better articulation of Dugan's argument in her longer motion to dismiss. But I still come down where I did in the shorter piece and speaking about it before, which is it's not one that courts have recognized and I think for good reason.
- [91:48]
Benjamin Wittes
All right, last question from Andrew Enrique Tarrio and a handful of other proud boys, including one John Doe, brought a Bivens action this afternoon in the middle District of Florida seeking $100 million in punitive damages. This case can't be very likely to prevail, but could we see a settlement akin to the one we saw with Ashley Babbitt's family for $5 million? Also, the attorney, attorney who signed the complaint is named Augustus Soul Invictus and he is recent a recently convicted felon in Virginia. So just to be clear, I know nothing about Augustus Sol Invictus and whatever criminal record he may or may not have, although I do love the name Augustus Sol Invictus, Augustus being, of course, a reference to Caesar Augustus and Sol Invictus being a reference to the God of the unconquered Sun.
- [92:49]
Anna Bauer
Okay. But to be Clear. His real name is like Andrew Gillespie or something.
- [92:53]
Benjamin Wittes
Yeah, but I think we gotta get, you know, when someone's gonna show up on our show named Augustus Soul Invictus, we. We gotta spend a moment with that because that's kind of awesome.
- [93:03]
Anna Bauer
And his law firm is named the Invictus Law Firm. Of course.
- [93:07]
Benjamin Wittes
Of course. That's great. That's great. Well, good old Soul Invictus. You know, look, this is a good scheme, honestly, because in fact, the government has unrestricted authority to settle cases. The case against Ashley Babbitt is, you know, there was, there was no plausible way she was going to prevail in that case, nor was that case worth $5 million to settle to the government unless the goal was to reward, you know, reward the family of somebody in January 6th, just as pardons were benefiting families, people involved in January 6th. And so if. The question is, if the Justice Department decides under its new anti weaponization leadership eagle Ed Martin, that it wants to put money in the hands of, of Enrique Tarrio's family individual as well as it can settle the case on whatever basis it wants. And so, you know, look, if you have, if you're a MAGA person, their slogan right now is no MAGA left behind. That's what Ed Martin literally says. And so if you have a, you know, even a ridiculous claim represented by Augustus Sol Invictus against the federal government on behalf of criminal activity that you engaged in for Donald Trump, it's a good time to stake your claim. I mean, it's like a kind of homesteading, I think. What do you guys think?
- [94:51]
Unknown
I agree. There's no, there's no punitive damages in a federal Tort Claim act, and there's no prejudgment interest. So in a real life case, it's, it's, it's very hard to get much money. But if Ashley Babbitt is getting 5 million, then there's, there's no, you know, this seems like a collusive suit. And I guess they just have to make a judgment about if, if they give him a big reward, those guys, a big reward. Where does it stop you? How much do you give the 15, 1600 others?
- [95:30]
Benjamin Wittes
No, I think that's right. But I think you will start to see, I mean, they're going to have to make a threshold judgment. Do they want to. And he's sometimes talked about, you know, compensating. Right. Do they want to do that? And if they do, there's really very little to stop them. I mean, Congress cannot, I don't think you'll see Congress pass a 911 compensation like scheme for it. So you have to do it through individual settlements. But you can. And you know I think some of them are, you know I the, the restraint on this is that it's not likely to be particularly politically popular. And you know, it's one thing to pardon criminals, it's another thing to pay them.
- [96:20]
Unknown
Oh, the other thing is I see somebody mentioning that this is a Bivens action. I don't think, you know anyone is won a Bivens action outside of fourth Amendment claim in since Bivens. Yeah.
- [96:35]
Benjamin Wittes
All right. We are going to leave it there. We're going to end on time. Buy your witoed hats, tweet your witoed hats or blue sky or with toad hats at Annabeller. Make her regret that we ever did this. We're going to be back next week. A quick programing announcement in response to a lot of comments from you guys. We have, we think, a new concept or a concept for how we're going to refine this Law Fair live, which is generally speaking, we're going to keep things as they are. We are going to. When we need surge capacity and we have too much stuff to do in a single week, we're going to do an extra episode on Tuesdays. We may not do them on any given week, but when we surge, we will surge on Tuesdays if we possibly can. All episodes will go on the podcast feed. We are going to restrict questions in the regular episodes to four and we are going to have monthly AMA episodes like the ones we had this week that will be purely devoted to questions. And as to what time on Tuesday, we don't know yet. We haven't decided that.
- [98:08]
Anna Bauer
The Lawfair podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a LawFair material supporter at our website lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for our other podcasts including Russian Security Allies, the Aftermath and Escalation. Our latest Lawfare Presents podcast series about the war in Ukraine. Check out our written work@lawfaremedia.org the podcast is edited by Jen Patia and our audio engineer. This episode was Ian Enright of Goat Rodeo. Our theme music is from Alibi Music. As always, thank you for listening.
- [99:05]
James Pierce
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