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- [00:01]
Benjamin Wittes
The Electronic Communications Privacy act turns 40
- [00:04]
Roger Parloff
this year and it's showing its age
- [00:06]
Benjamin Wittes
on Friday, March 6, Lawfare and Georgetown Law are bringing together leading scholars, practitioners and former government officials for installing updates
- [00:15]
Roger Parloff
to ecpa, a half day event on
- [00:17]
Benjamin Wittes
what's broken with the statute and how to fix it. The event is free and open to
- [00:21]
Eric Columbus
the public in person and online.
- [00:23]
Benjamin Wittes
Visit lawfaremedia.org ecpaevent that's lawfairmedia.org ecpaevent for details and to register.
- [00:37]
Scott R. Anderson
Need real insight from industrial data Versit
- [00:41]
Kate Clonick
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Benjamin Wittes
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- [00:47]
Roger Parloff
Transform the everyday
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Kate Clonick
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- [00:54]
Benjamin Wittes
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Kate Clonick
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Benjamin Wittes
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Kate Clonick
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Benjamin Wittes
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Kate Clonick
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Benjamin Wittes
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Kate Clonick
Individual results may vary. Meds and personalization based on Clin Clinical need Not reviewed by FDA for safety, efficacy or quality.
- [01:29]
Benjamin Wittes
No affiliation with Novo Nordisk Inc.
- [01:31]
Kate Clonick
The only US source of FDA approved
- [01:32]
Benjamin Wittes
semaglutide not available in all 50 US states.
- [01:47]
Scott R. Anderson
It is Friday, the 13th day of March 2026. It is 4:00pm in Washington, D.C. on a windy day and you are watching Lawfare live the trials of the Trump administration. I'm Benjamin Wittes, Editor in Chief of lawfare, and I am here with four lawfare Senior editors, Scott R. Anderson, Roger Parloff, Eric Columbus, and Kate Clonick. This is Kate's first trials of the Trump administration and we're going to get to Kate in just a moment, but we have breaking news. Judge James Boasberg, the perhaps who has yet earned the title the bane of the existence of the entire Trump administration, I'm not sure there's some competition for that, has issued a 27 page memorandum opinion that the New York Times calls blistering. Roger Parloff, I haven't read concerns Jerome Powell and a subpoena that was issued to the Fed. Number one, is the word blistering a fair characterization? Did you emerge with blisters when you read it? And number two, what does it say?
- [03:13]
Eric Columbus
I think blistering is fair comment here and it is 27 pages I haven't finished. And Eric Columbus will help me out, I'm sure, on things I miss. But the one of the, I guess the gist of it, there were two grand jury subpoenas that, as you probably know, Jeanine Pirro issued to actually to the Fed, I think, but aiming to put pressure on Powell, Jerome Powell, the chair. And the final line is, or nearly final. A mountain of evidence suggests that the government served these subpoenas on the board to pressure its chair into voting for lower interest rates or resigning. On the other side of the scale, the government has produced essentially zero evidence to suspect Chair Powell of a crime. Indeed, its justifications are so thin and unsubstantiated that the court can only conclude that they are pretextual. So she quashes the subpoena. He quashes the subpoena. She gave a press conference which I think Eric saw more of. She is apparently going to move to reconsider. We'll see about that. I know that the beginning of this says that Trump made more than 100 statements in media and, you know, social media, pretty much laying out very obviously that he wanted the rates to come down and failing that, that he wanted to pressure Jerome Powell into resigning. If you remember the. The. I don't know if he goes into this in the opinion really, but the. Powell went before the Senate Banking Committee at some point to give what was a monetary mainly to talk about monetary policy. But he was asked a couple questions about the renovations of two buildings, two Fed buildings that are over budget. And to be clear, he really was trying to interject comment because they were sort of talking at him, making angry comments about the cost overruns and he tried to interject some balance into it. And then afterwards, one Representative Anna Paulina Luna, not anybody on the Senate Banking Committee, but Representative Luna sent something she called a. She characterized as a criminal referral. I forget where she sent I think she to. To the doj and, and I could not find anything in there that looked remotely criminal. I wrote an article for us in case you want background calling searching for the crime in Fed Chair Powell's testimony. That was in January. Apparently they did not for both from Boasberg's perspective, there was a. They didn't come up with more. He also wrote there is abundant evidence that the subpoena's dominant, if not sole purpose is to harass and pressure Powell either to yield to the president or to resign or make way for Fed chair who will on the other side of the scale, the government has offered no evidence whatsoever that Powell committed any crime other than displeasing the president. So I guess that's the gist of it.
- [07:02]
Scott R. Anderson
And Eric, what did I understand Jeanine Pirro had a press conference in the last hour or so about this. What did she have to say on the matter?
- [07:17]
Roger Parloff
She did. And she. There was, I would say it's fair to say there was an audience of precisely one person that she was aiming at. And she was very combative. She said that.
- [07:31]
Eric Columbus
I assume that was you, Ben. That was you.
- [07:33]
Scott R. Anderson
She was trying to persuade me, representing the reasonable viewer, that there was a coherent, objective law enforcement purpose behind this subpoena.
- [07:46]
Roger Parloff
Pretty much. And, and yeah, of course. And she, she said that, that this, this case is not over. The case continues. She's
- [07:58]
Scott R. Anderson
said that
- [08:01]
Roger Parloff
Judge Boasberg got his dates wrong. I don't. She thinks she specified in what manner and therefore she's going to file a motion for reconsideration. Good luck with that. And then she said they're going to appeal if that does not prevail. She missed. She totally got wrong. Excuse me. The standard that Judge Boasberg applied. She said that Judge Boasberg said that you need probable cause in order to issue. Have a grand jury issue a subpoena. And that's not correct. In fact, he wrote in his opinion to be sure, the Supreme Court has held that the government need not establish probable cause before issuing a grand jury subpoena. But basically, and he said you need to the rules that you could quash a subpoena if the evidence of improper purpose outweighs the strength of the government's reasons for issuing the subpoena. And Judge Boasberg said there really is no evidence of any strength of government's reason for issuing the subpoena. And Judge Boasberg said, look, I asked the government if they want to give me. I understand they don't want to tip their hand. If they want to give me some evidence ex parte, they're welcome to. And that's happened in some other cases. And the government did not do that. Pirro said she's looking at 1001, which is lying to Congress and looking at statutes involving criminal fraud, presumably regarding the cost overruns on the new Federal Reserve, on the Federal Reserve's building, renovations to it. But she was also making the, the, she was arguing for why the case needed to proceed, not because he was necessarily going to be indicted, but because the grand jury had the right to go down certain avenues in order to ensure it's assure itself that no crime had been committed. And she was relying on that lower standard of below probable cause. But the problem, though, is that she was falsely accusing Judge Boasberg of, of not having done so, when in fact he had done so. And then she defended her own record about having kind of gone after, but pursued a much higher percentage of cases than her predecessors in the last administration. And she said, look, I'm willing to take a not guilty verdict. I'm willing to take a no true bill in order to pursue justice. She's very, I won't say compelling, but she is a very dynamic figure in front of, of a camera. And to use the question here, but
- [10:46]
Scott R. Anderson
what is the standard? So my understanding of the standard for a subpoena is that it is relevance to a grand jury, a lawfully constituted grand jury investigation. Right. And. And so is Judge Boasberg holding here that he sees no evidence that there's a reasonable grand jury investigation to be relevant to or that this subpoena does not appear to be relevant to it? What, what, what is the standard that he is applying? And obviously it's not probable cause. But what is it?
- [11:28]
Roger Parloff
Well, he's saying that a, a subpoena has to be both relevant and it has to serve a proper purpose. And if it's. And, and so you can move to quash a subpoena because it's irrelevant or because it serves an improper purpose. And so in this case, he was. The Fed obviously was accusing it of being issued for improper purpose, and he was weighing that against any evidence of relevance, and he couldn't find any. And he said at one point about. He had a good line about the testimony. If I could find it, he said, searching for any reason to suspect that Powell might have lied to Congress. The only one the court can describe is that he testified at a hearing. The government might as well investigate him for mail fraud for. Because someone once saw him send a letter. So, I mean, it's beyond the fishing expedition in some sense. It's kind of hearing that there is a lake somewhere in the vicinity and going on that basis.
- [12:44]
Scott R. Anderson
All right, so the next step is they say they're going to ask for reconsideration and then go to the D.C. circuit.
- [12:55]
Roger Parloff
Yep.
- [12:56]
Scott R. Anderson
And so do we assume, realistically, it's hard to imagine the D.C. circuit reversing judge Boasberg on this, although they have done so on some other things that I would have found reversal hard to imagine. Do you assume this thing is sort of over at this point or that. And that this is a face saving Press conference for an audience of one on Jeanine Pirro's part, or do you assume we're going to see a substantial additional litigation?
- [13:29]
Roger Parloff
Well, as we recently saw, with the reversal in the apparent decision not to appeal the adverse judgments in the District Court striking down Trump's executive order against retaliating against various law firms, Trump is often not willing to take no for an answer in litigation. And he might insist that this goes all the way up. And there apparently is not D.C. circuit case law or Supreme Court case law on the standards for quashing a subpoena for an improper purpose. And therefore they might decide to take their shot. It seems unlikely they would win, but I make no predictions on that.
- [14:14]
Scott R. Anderson
Indeed. All right.
- [14:16]
Eric Columbus
Remember that his term as chair ends in May.
- [14:20]
Scott R. Anderson
It's true.
- [14:20]
Roger Parloff
That's a good point. Although he's still sorry, he still would be a member of the Fed unless
- [14:27]
Scott R. Anderson
he really stay on as a member of the Fed on a a longer term basis. And presumably if he lied to Congress, the evidence of that would still be available. All right, speaking of Judge Boasberg, Scott R. Anderson, another case of titanic importance landed in his today and it's one. Let's start with a disclosure. Who is the plaintiff in this case?
- [14:59]
Benjamin Wittes
The plaintiff is we here at the Lawfare Institute. Last week we at Lawfare filed a lawsuit against the State Department, the Secretary of State, Marco Rubio, challenging their failure to comply with a broad range of disclosure obligations put into law by the 2023 NDAA, but which amended the case of Blocky act, the act that has required the Executive Branch to notify Congress and now to publish publicly a variety of information about international agreements. And that case was eventually assigned after a little back and forth with another judge, to Judge Boasberg. So we will look forward to Judge Boasberg hearing our case in the weeks to come.
- [15:36]
Scott R. Anderson
What are we seeking in this case? It's very weird to talk about us in this case.
- [15:42]
Benjamin Wittes
It is a little bit, to say the very least.
- [15:45]
Scott R. Anderson
Just to be clear, this is a long standing work stream of Scots, which is why I'm having him talk about this. What is the body of work that we're seeking? What is the statute that we're seeking it under and what is the claim?
- [16:07]
Benjamin Wittes
So the Casablacki act as amended by Congress in the past few years says essentially the Executive branch has to disclose both executive agreements and certain qualifying non binding agreements. These are two different types of international agreement or arrangement. The government enters into the former binding executive agreements that are binding under national law. And qualify non binding, a category of non binding arrangements that are defined through a variety of sort of criteria. The Executive Branch is supposed to disclose those to Congress and along with some related information such as that describes things like the legal basis for entering into them in their current form. And then that information is supposed to be disclosed to the public unless it falls into certain relatively narrow exceptions. We saw the Biden administration spend the first year under this new legal regime implement it in a fairly effective and consistent pattern. We saw consistent disclosures of agreements. I have no doubt there are probably some late ones in there, some exceptions, things that might have gotten left out and brought back in, but nonetheless a clear pattern of agreements and non qualifying, non bindings being put forward at the public sphere along with backing information on a regular basis. Each month starting in January of last year, that stopped. We saw several months go by without any posts. Then we saw some efforts to catch up. In the middle of the summer it looked like the State Department may have taken some steps to get back on track, but then towards the end of last summer it fell off again and for months we didn't see anything. The last few months there's been a little more activity, a little more posting of certain agreements, but we've identified through press accounts easily approaching a dozen. I've actually sat down to count. I think it's at least a dozen different agreements and qualifying non bindings that are discussed by the administration or in detailed press accounts as having existed that aren't included in this datab, including some that have been disclosed elsewhere but aren't disclosed in these databases and public sources. Where the State Department has said this is where we are disclosing this information, we believe we have standing to pursue this information. We are an organization that obviously not only cares about these agreements, we've covered the amendments that were introduced in the NDAA and the scholarship that's rooted in academic scholarship by Jack Goldsmith, Ona Hathaway and Curt Bradley, who have written about this very topic on Lawfare for many years. We followed it very closely. Me and many other Lawfare contributors use these databases regularly as part of our scholarship or part of our work, along with other work we do in other contexts. And we rely on it. And it's a public resource that's supposed to be out there for Americans so that Americans can hold the Executive Branch accountable and understand the types of international law and foreign policy we're making through these different types of instruments. So what we're seeking is not just the specific agreements we've identified as missing but clear evidence that the executive branch of the State Department in particular is complying with their obligations to reliably produce these documents and present them, put them and make them available to the public. That's something that's really acting and how exactly we get there is something we're going to have to talk about with the courts and something we're going to talk about with the State Department. But the key point here is that this is a set of obligations and notably its obligations on while the State Department is responsible for gathering this information, publicly posting it, it's really on the whole government. The State Department isn't the only agency that enters into these international agreements and qualifying non bindings. They need cooperation from other agencies. They also need enough resources and enough commitment from the political officials that oversee the State Department and other agencies to ensure compliance with these statutory obligations. And like we're seeing in a variety of other contexts, this is just an effort to ensure that the executive branch, the Trump administration in this case, complies with the statutory obligations Congress has put forth specifically in this case relating to transparency around these international agreements.
- [19:41]
Scott R. Anderson
All right, well, this case will is just at the filing stage now, so we're presumably at the very beginning stages of it. But we will keep you updated as it goes along. All of which brings us to another pair of cases that was just filed this week by Anthropic against Pete Hegseth and the Department Department of Defense, nay, the Department of War, or maybe it's the Department of War, nay the Department of Defense. Kate, There was a status hearing in one of these. So let's first separate them and say why are there two suits by Anthropic against the Department of Defense?
- [20:30]
Kate Clonick
Yeah. So basically, hello, this is why I'm on Lawfare Live instead of my normal rational security appearances and everything because there's lawsuits and they involve tech and AI. And so on Monday, Anthropic filed one case in the Northern District of California alongside a quest for a request for emergency relief to block the government's moves and accompanying civil suit. And in that case, Anthropic is arguing that their designation is a supply chain risk is illegal under the statute that the Pentagon used, but also that it violates the First Amendment, the Fifth Amendment and the apa, the Administrative Procedure Act. And at the same time, we're also in the D.C. circuit because part of the government's action appears to have taken place under a different federal procurement and supply chain law that sends review straight to the D.C. circuit. So that was those were both filed on Monday and they quickly had a status hearing on in the Northern District and California. And they basically set the. I think there's a, it's a pretty quick, it's going to, I mean relatively speaking, it's going to be a pretty quick kind of move through to arguments over the emergency injunction. And so we're kind of waiting to see what's happening. In the meantime, it has just. All this week I have been kind of been getting drafts like under, you know, and, and everything else and things have been getting filed that are amici of people that have interest in these cases and they are not small players. So Microsoft filed yesterday and amici basically in support of Microsoft warning that this kind of move could create an obviously dangerous precedent for the government contractors and tech companies. There are supports from groups of employees, specifically engineers that were tied to other major AI companies that filed an amici in support of anthrop topic. And yeah, we have the preliminary injunction hearing coming up soon. Molly Reynolds is going to be covering that for us. And yeah, I think that that's, that's, that's kind of where things lay right now.
- [22:49]
Scott R. Anderson
So before we move on from that, what, when, when, when you say there's a quick briefing schedule, my impression is that the judge jumped over the TRO and basically said I'm not even going to rule on that. I'm just going to go directly to a preliminary injunction. Is that, is that right?
- [23:11]
Kate Clonick
Yeah. And so there's. So basically. So that's kind of part of what's happening. And then the, the other thing, I mean the bigger picture kind of in all of this is that there is, this is really obviously not a niche contract fight about like government, government contracts. And you know, this is a major test of whether like the government can use national security procurement powers to pressure AI companies into removing safety limits that they think are ethically non negotiable. And on the other hand there are some really interesting first Amendment issues that are kind of getting brought up as well. And so it's just kind of, I think that there, I think it's going to be a clearinghouse for a lot of issues and kind of frankly explod this kind of hypothetical world that everyone has been kind of living in in this vague kind of sense of like this stuff is really important. These tools are so powerful. Who is going to control them? They have such, you know, are we going to control the AI companies or the AI companies going to control us Type of questions. And this kind of puts a point on it like, very, very frankly. Like, I mean, it actually kind of finally constrains the problem in a way that I think you can kind. That we're starting to be able to, like, lay out the stakes and what the stakes are in terms that, you know, that we can kind of get our. Get our minds around. And so that's. That's. It'll just kind of be interesting to see how sprawling. And I think it'll probably not be that sprawling. The courts decide to kind of like what they decide to take into account on this.
- [24:44]
Scott R. Anderson
Yeah. So if you're anthropic and you get. On the one hand, you get a judge who's keen to jump over the TRO and proceed directly to a PI, You've. You've got to think that's a good sign for you. On the other hand, you know, March 24th is not like, if you've asked for a TRO to freeze things in place. March 24th is not that soon for a TRO. It's fast for a PI, but, you know, like, presumably they are suffering business harm, like, immediately from an order that says nobody in the government's allowed to do business with anybody who does business with them. Right. So are. If you're. If you're Anthropics Council, are you pleased with an order that says, a scheduling order that says screw the tro. Let's. Let's proceed directly to a preliminary injunction question two weeks from now.
- [25:53]
Kate Clonick
I mean, I think that you're kind of. I would take it as a positive signal, but yes. I mean. I mean, I'm also think this is not good for their business. That is certainly for, like, that's certainly the. The money that is flowing into these companies is so astronomical that I kind of can't believe that they're not able. That this is like the positive signaling that they get from the. From the judge jumping over this hero is like, actually kind of maybe worth it. I don't know. I'm interested in what Roger's take is on this. Like, if he has kind of some thoughts on this, if he thinks the same thing. But, I mean, the other. The other thing to kind of consider here is that there is. I just think that these companies are so desperate for these government contracts. We were, you know, I think that we had said on national security that, like, late last week there was a kind of a report that said that, like, you know, Claude, just. Claude is like, losing $3,000. Like, they're being. They're subsidizing users, like, $3,000, $3,000 in compute, you know, for, you know, a month. And this is just not sustainable as, like a business model, direct to consumer. So the whole game is clearly and very quickly coming down to where are these giant contracts going to come from. Claude is by far the best, the best model that is out there by, like, leaps and bounds. It has clearly kind of taken kind of the. The top thing. And these guidelines also, I just want to be super clear. These guidelines are not. Not like, these aren't just like technical guidelines about how high offenses or something, Right. These are like hypothetical kind of ideas that the Trump administration, to a certain extent, politically, is saying right now, we, like, when we ask you to jump, you're going to ask how high. Right? And like, Anthropic is saying, no, we're not. That's not how this is going to work. Or at least it seems like they're saying that like, you know, it. Like that's kind of what all of this is about. We'll see. Like, there's a lot of the devils in the details and all of these things. Like, I'm not actually kind of convinced that they're going to, like that all of this is going to. Isn't going to kind of get unfortunately resolved in code and backroom discussions around settlements.
- [28:10]
Scott R. Anderson
All right, so we have in the D.C. circuit, I take it there is a question of whether there would be some emergency relief before the 24th, or is the. Or is the next date of any consequence March 24?
- [28:34]
Kate Clonick
Roger, do you want to jump in on that?
- [28:36]
Eric Columbus
Yeah, there won't be. The briefing for the D.C. circuit won't be done until the 23rd. And so there won't be any relief before then. If I can just talk about that 24th date. There was some haggling over that. And I think she didn't want to enter a TRO before she could see something from the government.
- [29:02]
Scott R. Anderson
Who is she here?
- [29:04]
Eric Columbus
Judge Rita Lynn, the Northern District of California. I'm switching back. She wanted to see something from the government. The government was saying, well, we need a long time to write our brief. And so this was. And the anthropic said, was the government wanted to put off the hearing till, like, April 3rd. And anthropic said, well, we're willing to do that if Anthropic will commit not to doing anything more than what it's done right now. And they wouldn't. The Justice Department wouldn't. Anthropic said they were worried, for instance, that an executive order might come down attacking, and this wasn't just like worry. They had reason to believe it. And there was a lot of evidence of the really onerous immediate results that they're already coping with. And then the government said, well, you know, our lawyer, the guy that we want to argue it isn't available March 24. And the judge said, well, the government's a big place. Get somebody that can argue it. So she understands the urgency.
- [30:16]
Scott R. Anderson
All right. Speaking of somebody who had a worse week than anthropic Scott Anderson, let's talk about Carrie Lake. And Carrie Lake came up against one of the scariest judges on the United States federal bench, whom she proceeded, as I understand it, to describe in public
- [30:42]
Benjamin Wittes
as fat rotund, I believe was the
- [30:45]
Scott R. Anderson
word of choice, I believe the word she used. What did Royce Lamberth do to offend Kari Lake?
- [30:55]
Benjamin Wittes
Well, he more or less put her out of a job retroactively by several months. Ms. Lake has, of course, been being challenged in her status as depending on what point you ask her, the acting CEO or deputy CEO of the U.S. agency for Global Media, which is the body that oversees Voice of America and a number of other sort of media operations funded and operated by the US Government that she, she has, at the direction of the White House, been winding down or at least attempting to wind down aggressively, including by terminating leases, firing the vast majority of staff, canceling contracts, and taking a bunch of other steps. The latter steps have been largely put on hold, particularly the employment related ones by the federal courts. But it has not stopped multiple efforts, including multiple rounds of rifts that were interrupted by a judicial order in this past summer, one in June and another in August. The question underlying all this is what has been her authority to do this? The CEO for the US Agency for Global Media is a principal officer usually appointed by the president and confirmed by the Senate through its advice and consent. Not something that Carrie Lake has gone through. And traditionally under the Vacancies act, you can either elevate a subordinate within the agency who's been employed there for a certain period of time to fill the role in an acting basis of a vacant principal officer position, or you can move somebody else from another agency who's already been Senate confirmed into that role and let them fill the responsibilities. But you can't just bring in anyone from the outside and put them in that role. And that's been the focus of a big thread of the legal arguments between the different plaintiffs in this case, Utegusoara, which is actually a number of cases all representing different people with different angles within the U.S. agency for Global Media. But including employees, former executives, some contractors were involved as well at this point, although I think at this point they've fallen out of the litigation. But all were challenging a variety of actions regard the VOA and other institutions, most of which originate with Lake herself. And Judge Lamberth looked at this and said, essentially, look, the Vacancy act is the sole vehicle, quite expressly barring a subsequent statute that determines who can serve in this role. You were not, you cannot be the acting CEO in that capacity because you were not previously employee at this position. You have not been sent a confirmed for anything. And the backup argument that they fell on was that a career employee who was made the acting CEO in name only, I believe it was Victor Morales, if I'm named correctly, was for a long time filling this role. That person appears to have left or at least no longer be filling this role. That person had delegated the authority to Lake under a delegate. What the government describes the delegation statute. But what Judge Lamberth pointed out is that, look, the Vacancy act expressly says you can't use delegation to just recreate an appointment in violation of the Vacancy Act. There's limits to this delegation. And it's also not 100% clear that the statute you're pointing to actually is a delegation statute, at least of the scope of which you're describing it. And so Judge Lamberth really pointed this as a textbook violation of the Vacancies act, something that, frankly, he's been hinting at for a long time. If you've been following this case for a while, as we have, and frankly, from my perspective, has been basically inviting the Trump administration to say, why don't you try and do this through the proper procedure? So I don't have to tell you how to do it. But after months of that fairly open invitation that I don't think has been delivered particularly subtly, the Trump administration hasn't chosen to act on it. And instead he took the step that he suggested he's going to take a while ago that he sound like is not qualified, and by virtue of not being qualified, actually essentially invalidated all her prior actions she's taken. That includes all the prior risks, a lot of the prior contract terminations, I suspect the cancellation of the leases, although it's not clear what exactly can be unwound from that at this point, particularly if they have been leased or moved to a different purpose. So now you have this difficult position to say, okay, all of these different steps have been invalidated. Now where do we go from here? What if this damage can be undone? What Consequences are there for damage that can't be undone because remember VOA and these agencies have for example, auctioned off a lot of their equipment. We received like lots of other media organizations in D.C. big laundry lists of equipment that they were auctioning off for sale in the middle and late last year, which is going to be hard to recoup and very expensive to replace, let alone leases and things like that. But at least for the time being, the rifts are off. A lot of the contract terminations that were being challenged and suspended haven't been implemented are off. There may be remedies to restore certain ones that were canceled. I suspect that's going to be a little case by case and a lot of these actually have to be unwound. Notably, the Trump administration has stepped in and now appointed both. Somebody nominated someone to be the eventual CEO for the US Agency for Global Media whose names escaping at the moment. But I'm going to go find it. So I can remind myself and has said that Michael Rigas, who's the undersecretary of state for management or was under secretary of state of Management I think might to figure out where they might move now that was their prior role. I think he just moved somewhere else. Regardless at the State Department as essentially acting is now acting as CEO. So he's a Senate confirmed position. In his prior position he looks like he lines up with the I have to go back and look more closely certainly seems like he lines up more closely with the vacancy act requirement. And then Sarah Rogers, excuse me, the person who is also in the public diplomacy office at the State Department, a fairly senior official there, she has been nominated to fill this role I'm assuming concurrently with the public diplomacy function. And the way we've heard Lake spin this has said look we are facing the activist judge who is rotund, which is really, you know, that's the least professional thing somebody might be able to say in this sort of circumstance. But regardless says essentially, look, the whole goal of this was to take this whole function, eliminate it, strip it down and make it subordinate to the State Department. So we're still doing that. Now we're just going to move it under the State Department's direction. So these two State Department officials are the ones who are going to be taking control of it and directing it. And that appears to be the posture. We haven't gotten wind yet of exactly whether anybody else is has tried to re implement any of these measures. Additional risks, additional terminations, things like that. We haven't gotten wind of that yet. But there may be additional risks and other measures coming down from this new leadership that wouldn't have this vacancy. Acting error. But the judge was quite express. You cannot just go back and vindicate and reinstate what she's done. That's actually a remedy that's pretty expressly prohibited by the Vacancies Act. Instead, everything's invalidated and we've got to move on and start all fresh at this point. So now we're waiting to see exactly what the Trump administration has done. And the one other factor I should note that I should have mentioned, that I mentioned last week or the week before last time I was on the podcast, on the podcast to talk about this case is that in between the last rifle and this kind of round of litigation, earlier end of the last year, beginning of this year, Congress appropriated a ton more money for U.S. agency for Global Media and Voice of America and other agencies. Not the full allotment that, you know, the same amount that they had for last the year prior, but something like 80% of it. And so it seems pretty clear that Congress doesn't want USAGM to completely go away. And Judge Lamberth again gave ample opportunity for the administration to say, maybe we're going to pivot and react in response to that. Kerry Lake, whoever was driving the litigation, did not take him up on that opportunity. But perhaps this new leadership team, having now gotten a strong shot across the bow from Judge Lamberth, will do so. Final note on this, Carrie Lake did say she was going to appeal on npr, if I recall correctly, or at least a quote that I saw echoed on npr. No sign of that in the docket as of yet. We haven't gotten an official notice of that, but there is still time for them to take that step.
- [38:47]
Scott R. Anderson
Well, I will just say, Carrie Lake, I am not your lawyer and I am not giving you advice, but I will say if a government official who picks a fight with Judge Lamberth is playing with fire, and he will not go after you for saying insulting things about him. But if you mess with Judge A lot of people in government have thought that messing with Royce Lamberth was a smart idea for them. And very, very few of them have proven to be correct over time. And so just, you know, just somebody who's watched the court for a long time. All right, speaking.
- [39:38]
Benjamin Wittes
Ben, can I clarify one thing just to catch up? One clarification I had. Michael Rigas is still the Undersecretary of Management and Resources, the deputy secretary of State for Management Resources at the State Department. I was confused because he was also concurrently the Ministry of the GCA for several months at the end of last year. But evidently he has ceased to have that role. And now he is just the deputy Secretary for Management Resources. So that's. So it is fully State Department leadership now in charge of that.
- [40:02]
Scott R. Anderson
So speaking of people who've had a bad week, Eagle Ed Martin finds himself before the D.C. disciplinary Council, which has filed ethics charges against him. Remember, he's the former acting assist acting US Attorney currently, I think, both the pardon attorney and the head of the weaponization group at Justice. Eric, why is he facing ethics charges and how serious are his problems?
- [40:41]
Roger Parloff
Just to back up a bit, I think he has now been stripped of many of his titles. I think he was at one point carrying four of them. I think he is now merely the pardon attorney. I think he is no longer ahead of the weaponization hunter, or whatever it was called working group. He is no longer a associate deputy Attorney General. I think he is no longer a
- [41:02]
Scott R. Anderson
special attorney named the head of some kind of a junta at the Justice Department.
- [41:07]
Roger Parloff
I think that's he's been noted that he's been cast out of the main justice building to one of the less glorious DOJ real estate holdings in D.C. and the news broke this week that the D.C. bar Council filed disciplinary charges against him. And it's not clear why these charges were just filed now because the events in question occurred from February to May of last year. But maybe they have a lengthy backlog and takes them a while to get through these things. This seems like ancient history by this point. But In February of 2025, Ed Martin, then serving as interim U.S. attorney for D.C. the job that, well, Janine Pirro now has, although I believe she is Senate, confirmed, Martin wrote a letter to the dean of the Georgetown Law School, William Trenor, and saying, basically, it's come to my attention that you're teaching and promoting DEI in your law school and that's really bad and you should remove it. And by the way, I have instructed our staff that we're not going to give any Georgetown people any jobs in our office and in our, in our fellowship program or a summer internship or even employment until you get rid of all your dei. And Dean Trenor wrote back basically saying, this is stupid and unconstitutional. You're trying to tell us how a private us, a private institution, how we can, must can do our job. And that's unacceptable. And it's an attack on our mission as a Jesuit and Catholic institution. And then Ed Martin doubled down another letter saying, you know, you Guys get about billion dollars of tax money and that this might bear on that. And so for all that, someone filed a bar complaint. Actually it turns out it was a former retired judge in California, a retired state judge in California who happens to be a Georgetown law alum. And there could have been others who filed complaints, but this is the one that they acted on. And the, the bar, the, the Bar Council determined that Ed Martin should have known. Knew or should have known that it. His actions violated the, the First Amendment and the due process clause of the Fifth Amendment. But that's not all, because it's not entirely clear that you can violate your. Violating your ethical obligations by doing something that you, that you should have known was unconstitutional was lawyers, unfortunately, and even public officials do that fairly frequently. But what Ed Martin did in this situation after being, after being informed of the charges against him in March, he instead of responding to the letter, he sent an ex parte letter to the chief judge and senior Judges of the D.C. court of Appeals, which is not to be confused with the D.C. circuit, but the local District of Columbia Appellate Court, which is the highest tribunal equivalent of the Supreme Court for local DC Matters and that supervises the bar. And he complained about the disciplinary council's, quote, uneven behavior and requested a meeting with the judges. And then he copied White House counsel on the letter for informational purposes. And then the chief judge wrote back and said, you know, we can't meet with you ex parte if you have any concerns just taken up through the normal disciplinary process. Instead, Ed Martin sent a second letter to the judge complaining about. About what? About what was going on. And then after she said, don't know, you still really can't do this, she sent a third letter. And these things eventually made back, made their way back to the disciplinary council who slapped an additional charge on him of communicating ex parte with the judge during proceeding when. Unless when not authorized to do so, and engaging in conduct that seriously interferes with the administration of justice. So I think.
- [46:02]
Scott R. Anderson
Does this seem to you like a compulsive behavior? Like, or what? I don't mean to ask a clinical question, but when somebody gets a letter from a court that says I can't talk to you in an ex parte basis and then fires off two more letters, you know, there's a little bit of a question at like. And does it kind of in public. I mean it's, I mean he knows that this stuff is going to become, it seems like there is an impulse control issue going on here.
- [46:35]
Roger Parloff
It could be that, that could be said about a lot of Ed Martin's antics. He is very much a showman and likes getting attention. He has been rebuked for that by higher ups within doj, although, you know, not, not publicly, publicly, but it is kind of leaked out. I think he also feels that he is on the good side of the president and that he feels he's got a little more running room that way. But as he found out when he was stripped of most of his job titles, he flew a bit too close to the sun.
- [47:12]
Scott R. Anderson
Well, I am, I am praying for his well being and I trust he will come through this period of trial and tribulation unscathed and crushing his enemies like bugs. Speaking of people who have not crushed their enemies like bugs, there is like a proliferation of US Attorneys around the country who have not been able to retain their jobs because they were illegally appointed, Roger. And it's like these cases meet and have children and all of a sudden there are more of them. I learned this week for the first time that there's an issue in the Western District of Virginia and the Eastern District of Wisconsin. What is going on? And why can't the Trump administration appoint people legally to be interim U.S. attorneys?
- [48:18]
Eric Columbus
Well, that's what Judge Matthew Brann is asking with more and more vociferousness. Brann. We'll start with the District of New Jersey. That Bran is the judge who disqualified Alina Haba. And that happened in August 25th. And that was upheld six months ago now. Yeah, yeah.
- [48:47]
Scott R. Anderson
And then that was affirmed by the 3rd Circuit. Right.
- [48:50]
Eric Columbus
That was affirmed December 1st. She resigned December 8th. And so then Pam Bondi, instead of using one of the four methods of replacing the U.S. attorney that statutes permit, invented a new approach. And she appointed three people to create what the judge calls a triumvirate to run the department, one to run. And she does this herself. This way, she doesn't need any Senate confirmation. She doesn't need to obey any restrictions that might appear in the Federal. Vacancy Reform Act. She just, boom, does it. And she says that that's why she's doing it. So she replaces one in the criminal division, one in the civil division, and one to do administrative stuff. So in this ruling this week, I think the 9th Judge brand strikes down this triumvirate and all, all three, which is interesting because these are, these arise when a criminal defendant says the Prosecutor isn't the U.S. attorney, isn't qualified. And of course, it's weird to disqualify head of civil division, too. But the theory is well, you did this in lieu of the U.S. attorney. This is your ploy. I'm disqualifying all of them. I don't know if that's correct. It's 130 page ruling. I gotta say, it is tough going at points, but you can also tell at some level it's relatively easy. It's like what I just said, that, look, you know, the statutes give you four ways to do this. Do it already, and you're not. And one of them, the Federal Vacancy Reform act, also says, you know, when it gets out outlining its ways of doing it, gets through outlining its ways of doing it, it has an additional section that says, and by the way, you cannot use general delegation statutes in lieu of this. And of course, here she's using at least two. But in the briefing, up to eight different general delegation statutes to try to effectuate this, to fill this U.S. attorney post. That's sort of the gist of it. He sounds frustrated at times. He says, I am not fooled by the government's superficial arguments. He calls things a rhetorical smokescreen. So there's some language that shows he's getting angry. He says the court will not countenance another novel attempt to game Congress's statutory scheme, which I have now spelled out in painstaking detail. Basically, if you continue throwing novel leadership plans at the wall to see what will slow stick, he threatens them that a third attempt at a unilateral office filling will be met with extreme strict scrutiny. Any deficiency in its method will be taken as bad faith and result in dismissal. I have to say that nevertheless, it's not crystal clear that this is the obvious result. I think that parts of this decision are inconsistent with the results of other judges who have disqualified U.S. attorneys but have given Bondi more delegable power in the Central District of California, the District of New Mexico, for instance. And then in this case, there's interesting stuff in that there are two criminal defendants. Nariwala, that's not the way it. That's Naviwala and Torres. Naviwala was convicted back in February 2025. He's been waiting for sentencing because of all of these shenanigans ever since February of 2025 over a year. He does not benefit from this because, you know, neither Haba nor the triumvirate had much to do with this case. The other guy is an interest at Torres. He was indicted between Judge Brand's ruling and when it was on appeal, but before the appellate court affirmed, and that was a superseding indictment. So he wants more briefing about the status of Torres's case. That's multiple people, Haba and another ausa, a legitimate AUSA signed anyway, that's where that one stands. And then, as you said, these situations are brewing now in the Eastern District of Wisconsin and the Western District of Virginia where people that were appointed under the sort of the interim U.S. attorney statute, the 546, their 120 days have run out and the district judges of those districts are refusing to reappoint them. They also seem to not be reappointing or appointing anyone else because they know
- [54:55]
Scott R. Anderson
that Trump will just fire anybody they appoint.
- [54:58]
Eric Columbus
Exactly, because that's happened twice now. So those are developing situations. And interestingly, in the Western District of Virginia, the guy who will run out of his term is the guy that replaced Robert, his name is Robert Trachey. He replaced Bob Gilbert, who was forced out in August for refusing, you know, to bring a grand jury indictment that, you know, one of these vindictive grand jury indictments that had to do with the FBI and I think the, the burn bags and things like that.
- [55:39]
Scott R. Anderson
So anyway, all right, so it's funny you mention vindictive prosecutions because we have yet another motion to dismiss a criminal case for vindictive prosecution, this one by executives associated with smartmatic, the voting machine company, which, Eric, I don't think I even knew there was even a criminal prosecution of the Smart Smartmatic people. So back up and tell me what this case is about. I saw some news stories about it and why they are, why they are contending that this is, you know, on a Brago Garcia, Letitia James, Jim Comey situation rather than, you know, just a prosecution of people for, you know, stealing the 2020 election and, you know, using Italian satellites and Venezuelan hacking.
- [56:46]
Roger Parloff
Sure. So in smartmatic is a company that makes voting machines and other relevant voting technology. And in, In August of 2024, that is under Merrick Garland as attorney general, DOJ indicted four people, like four Smartmatic employees or former employees for alleged money laundering and violation of the Foreign Corrupt Practices act arising from Smartmatic's provision of technology in the 2016 election in the Philippines. And there were no charges filed against the company itself. This apparently had been a long running investigation dating back for like since 2018. In October 2025, DOJ changed their mind apparently, and perhaps there was new evidence that they had. The Smart Mac alleges there was not and they charged smartmatic, the company itself. Now, the smartmatic is very much an enemy of the president in the sense that he has accused all the companies involved in the 2020 election, including specifically Smartmatic of rigging the vote. And Smartmatic has made a pretty penny by suing a lot of the President's allies such as Fox News and lots of individuals and famous most famously by sorry by suing them for defamation and most famously won a 787 million dollar or I believe it was a settlement with Fox News to the tune of $787 million for Fox News's suggestions on air that Smartmatic was involved in rigging the election. So after they get, they get indicted
- [59:04]
Eric Columbus
in October 2025, Dominion I think was the, the, the settlement. I think the settlement.
- [59:13]
Benjamin Wittes
Sorry.
- [59:13]
Roger Parloff
I am sorry. You are right. And in fact they said that in their brief and I read it and I just noticed the $787 million and but, but misread that that was to Dominion. Smartmatic has in fact still also sued Fox Corporation and and lots of others. But the 787 million was paid to Dominion, not to Sparmatic. Thank you Roger for that. So this was this indictment was, was brought by one of the more Trumpy US Attorneys Jason Redneck Quinones in Southern District of Florida which is overseeing what we had lawfare called the grand conspiracy investigation which Anna Bauer and Molly Roberts have have written about or maybe and I believe separate pieces. And smartmatic now files a motion saying that their indictments should be dismissed for vindictive and selective prosecution. They note that they are not just
- [60:19]
Scott R. Anderson
there is it a indictment against executives of the company or against the company itself?
- [60:25]
Roger Parloff
Against the company itself. There were, sorry, there were separate. What they are contesting is the indictment against the company itself. They, they are, this is just, they are not this arises out of the same investigation that involved some of their employees. But what they are contesting here is the decision to belatedly indict the company itself. And they note that the new DOJ in early 2025 basically said that they are going to be I don't want to say turning a blind eye but that they will be streamlining, if you will, their enforcement of the Foreign Corrupt Practices act and focus on investigations relating to that to criminal operations of, of drug cartels and TCOs, which I believe stands for, it does stand for transnational criminal organizations. So they're saying they look this is kind of suspicious the way that the Trump, Trump's DOJ said that they're not going to focus on these types of cases and they in fact dismiss a lot of pending FCPA cases and then Eight months later, they turn around and indict us. And that's their main point. And then, then they go through the whole litany of the ways in which Trump has demonized the company and anyone who was involved in legitimizing the 2020 election. And they say that this shows both that their prosecution is selective, that others who are similarly situated were not prosecuted, and that it was vindictive, that it was retaliation against them for exercising their protected rights, namely their rights to sue the president's allies for defamation.
- [62:38]
Scott R. Anderson
All right, let's talk about Hulk bank, which is a case that's been lurking around for a really long time and is now no longer around. I think this goes back to like the first Trump administration.
- [62:55]
Roger Parloff
It does very much does. It's a scandal that is in some ways seems, I wouldn't say that seems quaint, but it has been. The type of thing has been dwarfed by a lot of things that happened in the past year. Hulk bank is a Turkish bank that is, is state owned and was allegedly engaging in money laundering to the advantage of Iran and was involved in building up, helping build Iran's nuclear program. And this was a case that was very important to the prime minister of Turkey, Erdogan, and who very much lobbied President Trump to do anything he can to kill the case. The prosecutor, the Chief Prosecutor, the U.S. attorney for the Southern District of New
- [63:51]
Eric Columbus
York,
- [63:53]
Roger Parloff
Jay Berman, in the first Trump administration apparently prevailed against his supervisors, against Barr, the Attorney General, and by insisting on indicting the company. This was back in the days when the phrase the sovereign district of New York still had a good deal of meaning where they could act in ways that were bucking main justice and somewhat get away with it. Berman did not keep his job. He lost his job in large part due to this. According to reporting by the New York Times in the, in the waning days of the 2020 election.
- [64:34]
Scott R. Anderson
Did write a good book, though.
- [64:37]
Roger Parloff
I've not read it, but I'll add a list. And the case, the, the prosecution did not go anywhere right away during the Biden years because there were hulkbank raised challenges on sovereign immunity grounds. It went foreign sovereign immunity grounds. It went all the way up to the Supreme Court and then all the way back down. And now in the Trump administration, there was talk of settling the case for maybe $100 million, apparently, which was a big come down from, I believe, like $2 billion that was discussed during the first Trump administration. Just this week, the Trump administration announced that they're offering a deferred prosecution agreement to Hawk bank, which would require them not to pay any money, but just to set up programs to demonstrate that they'll be in compliance in the future. I think if this had happened during the first Trump administration, there would have been a big hullabaloo, as there had been, as there was at the time. But now it is just dwarfed by issues of much, sadly, much greater magnitude on both the corruption and geopolitical significance scale.
- [65:54]
Scott R. Anderson
All right, let us do our immigration roundup, Roger. And as always, when I say immigration roundup, don't get offended. I'm not talking about rounding up immigrants. I'm talking about doing a round roundup of the immigration cases. I know some of you get upset when I say that. All right, let's start in Minnesota, where Judge Eric Tored has found compelling and troubling evidence that DHS has a policy of illegally stopping people based solely on their race and ethnicity. Remind me who appointed Judge Tostrad. Whoops, you're muted.
- [66:43]
Eric Columbus
That is President Trump. Yeah.
- [66:45]
Scott R. Anderson
Yeah. Okay, just checking.
- [66:47]
Eric Columbus
Now, I should also. That's, that's. The good news is that he made that finding. The bad news is he granted no relief whatsoever.
- [66:57]
Scott R. Anderson
And how do you make that finding and then grant no relief?
- [67:02]
Eric Columbus
You know, this is where the state of the law sort of is. And, And I want. It's an important case. So I, you know, he's a meticulous judge, and so I. It's interesting to. To. To read what he did. This is 111 page opinion. He had a. An evidentiary hearing. This is about plaintiffs who say that there is a policy of illegal arrest and illegal stopping without reasonable suspicion and illegal arrest without probable cause based solely on race and ethnicity. And basically, he says, you're right. And there are three plaintiffs, there are four declar witnesses who come to court. There are two dozen declarations that describe these stops. And he goes through meticulously and he says, you know What? You're right. 23 examples of people who were illegally arrested, illegally stopped, and of them, 11 were also illegally arrested. Of those, 17 were US citizens,
- [68:24]
Scott R. Anderson
four
- [68:25]
Eric Columbus
had green cards, one had a U visa, and yes, it was a policy. And then, no, no relief. Because of, I think Eric described to you once in the past, the Lyons case, and then which was sort of reinforced by the Supreme Court in the shadow docket case, the Vasquez Perdomo case, the famous case, where the problem is to show standing and also irreparable harm. They're closely related. You need to show not just that this happened to you, but that this might happen again because what you're trying to get is a preliminary injunction. These aren't damages suits. And, and that's what basically he says they couldn't prove, especially because Operation Metro Surge is sort of in drawdown stage. And so he says, and he quotes Kavanaugh's now notorious concurrence in Vasquez Perdomo, the one that people are now calling the stops, Kavanaugh stops. He says, I conclude that plaintiffs have no good basis to believe that law enforcement will unlawfully stop, bracket, or arrest and bracket them in the future based on prohibited factors. And certainly no good basis for believing that any stop, bracket, or arrest and bracket of the plaintiffs is imminent. That's quoting Kavanaugh's concurrence. And just so that you can think about this a little more, the judge, also to his credit, explains, There are 76,000 Somalis in the Twin Cities. There are 388,000 Hispanics. There is this policy of arresting or stopping based on race or ethnicity alone. 94% of the Somalis are US citizens, 76% of the Hispanics are US citizens. So this is what's been going on. And yet there is no relief here. And also, if you're saying it's not just that this isn't a damage suit, it's that there is no damage suit at this point against federal officers for Fourth Amendment violations. So this is really a troubling case.
- [71:04]
Scott R. Anderson
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Roger Parloff
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- [76:11]
Scott R. Anderson
Next troubling case. I think that's the thing about our immigration roundups is they all are kind of troubling cases. We have TPS updates from Haiti and from Syria. I assume this is all headed nowhere good.
- [76:31]
Eric Columbus
I am bracing. Both of these cases are now at the Supreme Court. These are the third and fourth applications that the government has brought to the Supreme Court in TPS cases. The first two, the court, without explanation, granted them, granted the government the relief they wanted, which was to stay the rulings below and basically to let the terminations of TPS status, temporary protective status, take effect. NOME has used these, has tried to terminate temporary protective status against 12 nations immigrants at this point, the Haitians, Judge Reyes protected them with what's called a 705 stay, meaning it's under the APA and it's not technically a preliminary injunction, but it stays. The agency actually stops Noam from doing what she was doing. Same thing happened in the Southern District of New York with Syrians, Haitians. There's 350,000 Syrians, there's 5,600. So they're both now in the shadow docket up there at the Supreme Court and the Supreme Court. And the Syrian case is fully briefed. And remember, like I said, they've already twice ruled against TPS with respect to Venezuelans. Those were, I think those were injunction cases. So it's possibly different, but it's a long shot.
- [78:22]
Scott R. Anderson
All right, next up, Amica center vs. EOIR EOIR is the Executive Office of Immigration Review. This is Judge Randy Moss blocking an attempt to do away with administrative appeals of immigration rulings. What did Judge Moss do? Again, this seems like a doomed effort. On the other hand, Judge Moss is one of the most respected district judges on the bench here and his analysis carries a lot of weight at the D.C. circuit. So what's going on here?
- [79:07]
Eric Columbus
I actually think this is a strong one legally, for what it's worth. I'm not an immigration lawyer obviously, but you know Back in the first administration, the first Trump administration, he tried to streamline the appeals. It was blocked, but he went through notice and comment rulemaking. He did, you know, you did it the way you're supposed to, but it was blocked long enough for Biden to take office and then get do away with it. This time he tried to just get. Just do away with it entirely. You know, it's not like. Well, I shouldn't say entirely, but for almost all cases, the presumption would now be that an appeal from an immigration court ruling to the Bureau of Immigration Appeals would be summarily dismissed. Also, you would only have a small number of days to decide that, which is not going to be easy for indigent detainees to meet. But this time it wasn't even notice and comment. You know, they tried to say, well, we don't need notice and comment rulemaking because it's sort of internal housekeeping or alternatively it has to do with military or foreign affairs. Those are two exceptions to notice and comment rulemaking. He said no. So he didn't even have to reach the Fifth Amendment due process issues or the statutory, the arbitrary and capricious issues. It's just you didn't do the notice and comment rulemaking and you need to. So they haven't decided yet whether to appeal. I think this one is pretty strong.
- [80:53]
Scott R. Anderson
All right. USA versus Johnson is a criminal case in Minnesota challenging the nature of a. The cross appointment of a special United States attorney who is a jag. This is obviously a concern because the District of Minnesota has all these jags who are sitting there instead of a usa. Is there a serious question about whether they can do that?
- [81:29]
Eric Columbus
Yeah, I don't know. And this is one where I'm just going to basically tell you that this issue exists. There hasn't been a ruling on it yet and I haven't pored over all the briefs. This is something Chris Grider has been following closely. Law dork, if you follow him. And yeah, this was in January. They started bringing over these jags. And like Matt Isihara, if you remember him, the.
- [82:04]
Scott R. Anderson
I mean, it's a real issue. I just, I just never occurred to me that you can't make a special AUSA out of a JAG if they're following Justice Department rules and operating under the auspices of the Justice Department rather than the DoD.
- [82:21]
Eric Columbus
Yeah, the government doesn't seem to have think so either. Obviously, the claim is that this violates the Posse Comitatus act, which is a criminal statute, as you probably know. And the. But the Government does say that. No, this falls into an explicit statutory exception. But there is a amicus from 11 former JAG officers who think this is a serious question. And it's now gone to a sir reply brief. And maybe next time I'll be more up on it.
- [83:06]
Scott R. Anderson
All right. What is the Portland chicken case?
- [83:08]
Eric Columbus
We spoke about this. Oh, I'm sorry.
- [83:12]
Scott R. Anderson
And should I be concerned about the use of non lethal munitions against peaceful
- [83:23]
Eric Columbus
protesters or peaceful chickens?
- [83:27]
Scott R. Anderson
You know, I'm worried about it.
- [83:29]
Eric Columbus
Yeah, I think Molly. Molly did speak about this before at the TRO stage. Now it's become a preliminary injunction. It's Michael Simon in Oregon. I think he's Obama appointee. These are the plaintiffs, are all U.S. citizens. They're allegedly peaceful protesters and they are journalists. And Jack Dickinson, the name plaintiff, likes to dress up in a chicken costume.
- [83:58]
Scott R. Anderson
Is it an inflatable chicken costume or.
- [84:01]
Eric Columbus
It's a good question. It's a good question.
- [84:03]
Scott R. Anderson
It's Portland. I think they sort of pioneered the inflatable costume protest thing out there.
- [84:09]
Eric Columbus
Oh, did you know, by the way, that I once appeared in Times Square as the Michelin Man?
- [84:19]
Scott R. Anderson
I did not know that.
- [84:20]
Eric Columbus
Yeah, a lot of people don't know.
- [84:22]
Scott R. Anderson
It's true. I think a lot of people who see the byline Roger Parloff don't react to it with like, oh, my God, I saw that guy as the Michelin man in Times Square.
- [84:35]
Eric Columbus
And I can. I can tell you being inside those. Those costumes is hot. It is hot in the.
- [84:42]
Scott R. Anderson
I have been in an inflatable frog costume. And.
- [84:45]
Eric Columbus
Well, then, you know, in there.
- [84:46]
Scott R. Anderson
Yeah, you know.
- [84:48]
Eric Columbus
Okay. But anyway. Yeah, so the issue is that they were being. That the ICE and other DHS troops were using less lethal munitions, OC spray, pepper balls. And they had a three day evidentiary hearing, about 13 witnesses, 62 declarants. And the judge said, yes, that's exactly what's happening. There was interesting testimony that the DHS troops were dropping red flares at their own feet so that right wing counter protesters could film them from a roof and allege that the protesters were throwing explosives at them. So there's interesting fact finding, but it's the sort of fact finding that Republican judges don't credit. But anyway, that's what we have in the Portland chicken case.
- [86:02]
Scott R. Anderson
All right, what about in jgg? We've got the inevitable weekly update in jgg. Speaking of Judge Boasberg.
- [86:10]
Eric Columbus
So this is this strange situation where the. This is the class action for 137 Venezuelans who were shipped to Sakat under the Alien Enemies Act. They, at that point they brought suit. They were in custody. The claim is they were in. There's a couple claims for jurisdiction. One is constructive custody, one is sort of a direct due process claim and equitable claim. And then they're prison swapped to Venezuela. Some of them escape to third countries. ACLU has been trying to reach them all. Do you still want to challenge your designation as TDA Trende Aragua, and are
- [86:56]
Scott R. Anderson
you willing to come back to the United States and be detained in order
- [87:01]
Eric Columbus
to do it right now? Boasberg said you could do it two ways. You could come back, you could be detained and you could have a hearing, or you can, if you've made it to a third country, you can submit a petition on paper and we can try to do it that way and see if a hearing's necessary. Anyway, the ACLU has now reached 91 of the 137 people. 90 want to contest. 22 of them want to come back and be detained and try to contest it here. That's, that's just mind boggling. The government did appeal now this order without really taking it very seriously. And the ACLU is not going to oppose a stay if the government agrees to an expedited appeal, which it has. So I think that's what's going to happen.
- [88:09]
Scott R. Anderson
All right, what about in dvd, which is not to be confused with JGG and is in a different circuit.
- [88:18]
Eric Columbus
DVD is the very important case involving third country removals, like, you know, removing people to South Sudan or Ghana or places they have no connection with.
- [88:32]
Scott R. Anderson
Wanting you to cure a body.
- [88:37]
Eric Columbus
Anything is, is possible. I, I, I don't know if that's a country.
- [88:43]
Benjamin Wittes
It is.
- [88:43]
Scott R. Anderson
Okay, then it's possible. Small little island.
- [88:47]
Eric Columbus
Okay. And I, I learned about, well, I've forgotten the name of one they were using too, but Judge Murphy, remember, ruled, granted summary judgment, recently said that this third party country, this third country policy is illegal both under the statute and the fifth Amendment. The us, The First Circuit granted an administrative stay while they decide whether to grant a pending stay. Clearly this is another one where the government is chomping at the bit to get this to the Supreme Court. They're just daring you don't, you know, if you don't put a stay. We're going right up.
- [89:35]
Scott R. Anderson
All right, finally, remind us who Rigoberto Soto Jimenez is and what his beef with our former, I guess she's still the current DHS secretary Kristi Noem is.
- [89:51]
Eric Columbus
Yeah, this was actually the guy we talked about, Matt Isihara, the special assistant U.S. attorney who was hit with a civil contempt fine. This fellow, his habeas was granted, but he was supposed to be released in Minnesota with all of his belongings. He was released in Texas with none of his belongings. And so the time came, the deadlines came past. He was called before the court. This was Provenzino, Judge Provenzino forgotten her first name. And. Or was it. Anyway, the judge said, I'll fine you $500 a day beginning tomorrow unless you get his belongings back to him. And they got his belongings back to him. And he or she purged the fine. And U.S. attorney Rosen appealed and appealed the purged fine. And so this week, Hogan Lovells, which is one of the best appellate law firms in the country, I think.
- [91:28]
Scott R. Anderson
I think Rob was John Roberts.
- [91:30]
Eric Columbus
Yeah, John Roberts, where he went.
- [91:33]
Scott R. Anderson
I mean, it was the preeminent appellate practice in the country.
- [91:38]
Eric Columbus
And, you know, Barrett Prettyman, courthouse. Barrett Prettyman Jr. Was at Hogan levels and taught Roberts. Anyway, Sean Morota at that firm took this case pro bono and filed a motion to dismiss. The appeal purged contempt orders are. There's no case or controversy. There's pretty good law on that. There's no standing, or you can call it moot. The courts sort of disagree about the right term, and so they just move to dismiss. And you might think, what does Soto Jimenez care at this point? But actually, Sodom Jimenez never asked for this contempt proceeding to begin with. But there is law that if there is lack of jurisdiction, all the litigants have an obligation to bring that to the attention of the court. Also, there was this question, well, what about reputation? Can Isihara's besmirched reputation? Is that standing? And the argument he gives is that nothing that the court can do will change what caused the bad. You know, he admitted at the hearing all of the things that were alleged.
- [93:07]
Scott R. Anderson
So there are no facts in dispute.
- [93:10]
Eric Columbus
Right. So how will this affect your reputation? That's. That's the argument. So we'll have to see if Rosen continues or withdraws.
- [93:23]
Scott R. Anderson
All right, so we have three questions in the queue, one of which from David, I am going to defer because it concerns an article that we are going to have a podcast devoted to next week. And since neither Molly Roberts nor Anna Bauer is present and both will be present when we record a podcast on their article next week, I'm going to defer that question for then from Andrew on behalf of Rhys, I want to say to the. Again, this week, none of us is an expert on the Development Finance Corporation. And so I am going to pass on that question. Freda, however, has a question that Eric will address with respect to the disciplinary proceedings against various Trump DOJ people. Didn't the Trump Justice Department take some action to try to block the ability of state bars to discipline DOJ attorneys?
- [94:41]
Roger Parloff
Yes. What they did is they published a proposed regulation which would, if approved, enable the DOJ to request that state bars not investigate DOJ lawyers, rather that it be handled internally. And it seemed to contemplate some procedure where DOJ might sue the state bars if they, if they don't agree to stand down. This is very perplexing because state bar bars are the ones that, that give lawyers, all lawyers, including DOJ lawyers, a license to practice. And you need to be a member of a state bar in order to be paid by the attorney general as a DOJ lawyer. That's an actual law passed by Congress. It's not clear how this is going to work. I'm sure they'll get lots of comments in response saying that this is an extremely stupid idea. And then it's a 60 day comment period. Then DOJ decides whether to approve the regulation or not. We at Lawfare may be publishing something on this in the next couple of weeks.
- [95:53]
Scott R. Anderson
So can I ask a stupid question about this, that this goes back 20 plus years in my memory, so anything that I get wrong, please forgive me. But my recollection is that sometime in the early aughts, the Congress passed something called the McDade Amendment, which was a, if memory serves, named for a Florida congressman named McDade who had been prosecuted by the Justice Department and was salty about it and that actually by its terms would forbid this exact proposal. It requires that Justice Department lawyers be treated by the state, their state bars in exactly that the rules apply to them in exactly the same way that they apply to any other member of the state bar.
- [96:58]
Benjamin Wittes
Isn't.
- [96:59]
Scott R. Anderson
Is that wrong? And if it's right, then how could the Justice Department turn around and ask for bars to treat Justice Department attorneys differently?
- [97:10]
Roger Parloff
I believe, and I could be wrong. I believe the McDonald amendment said that DOJ lawyers need to be held to the same standards as other lawyers, that they need to be held accountable to state bar rules. But it doesn't. I don't believe that it said that they need to be held accountable to the actual state bar governing authorities. So it's more a what than a who.
- [97:37]
Scott R. Anderson
I see. Okay. Anyway folks, we're going to be back next week. Thanks to Roger Parloff, to Eric Columbus, to Kate Clonick, to Scott R. Anderson thanks to our audio engineer, the most estimable, Anna, and not Anna Bauer. Anna Hickey. And thanks to you all for joining us. The trials will keep trialing, the tribulations will keep tribulating, and we will be back with more of them next week. This podcast is part of lawfare's livestream series Law Firm Fair Live the Trials of the Trump administration. Subscribe to Lawfare's YouTube channel to receive an alert the next time we go live. The lawfare podcast is produced by the Lawfare Institute. You can get ad free versions of this and our 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. The podcast is edited by Goat Rodeo and our audio engineer this episode was Anna Hickey of lawfare. Our theme music is from Alibi Music. As always, thanks for listening.
- [99:23]
Benjamin Wittes
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Roger Parloff
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