Lawfare Daily: The Trials of the Trump Administration, March 14

Released on March 17, 2025

Hosts:

• Benjamin Wittes – Editor in Chief, Lawfare Institute
• Scott R. Anderson – Senior Editor, Lawfare Institute
• Anna Bauer – Senior Editor, Lawfare Institute
• Matthew Bose – Assistant Professor of Law, University of Kentucky (Guest Expert)

Introduction

In this episode of Lawfare Daily, hosts Benjamin Wittes, Scott R. Anderson, and Anna Bauer delve into the ongoing legal battles stemming from the Trump administration's policies. Special guest Matthew Bose, an immigration law expert, joins the discussion to provide deeper insights into recent immigration-related litigations.

1. Mahmoud Khalil Immigration Case

Overview: Matthew Bose introduces the case of Mahmoud Khalil, a lawful permanent resident (LPR) detained by ICE. The primary legal battle centers around a habeas petition filed in the Southern District of New York, seeking Khalil's release on bail and preventing his removal from the United States.

Key Developments:

• Detention Details: Khalil was detained by ICE inside his apartment complex.
• Legal Motions: Khalil's attorneys filed a motion for bail, with the government expected to oppose it by Monday at midnight. Additionally, a motion to transfer jurisdiction to Louisiana is anticipated by Wednesday, March 19.
• Judicial Proceedings: The judge has issued a scheduling order, indicating a rigorous timeline for the motions.

Notable Quote:

Anna Bauer [02:06]: "I'm going to ask them under oath to talk about in what way they were trying to preserve the statutory functions of the organization."

Implications: The case highlights procedural challenges in immigration law, particularly regarding jurisdictional transfers and the potential for bail in non-mandatory detention scenarios. The duplication of detention facilities and possible jurisdiction evasion by ICE complicates the legal landscape.

2. Jurisdiction and First Amendment Protections

Discussion: Benjamin Wittes and Matthew Bose explore the nuances of jurisdiction in immigration cases, especially when detainees are moved across states. They examine the relevance of the Second Circuit Court of Appeals’ jurisprudence and the potential impact of First Amendment protections on cases involving LPRs engaged in protected activities.

Notable Quote:

Benjamin Wittes [10:10]: "There was nothing all that unusual about the manner of his detention... his status was revoked on the basis of concededly First Amendment protected activity."

Insights: The conversation underscores the rarity of cases where LPR status is revoked due to First Amendment activities, drawing parallels to historical precedents from the McCarthy era. The legal team’s strategy to invoke MAPP v. Reno (2001) seeks to leverage habeas petitions in immigration contexts, a complex and seldom navigated avenue.

3. Birthright Citizenship Litigation

Overview: The episode covers the Supreme Court's attention to cases challenging the Trump administration's executive order to revoke birthright citizenship for individuals born to parents who are not US citizens or permanent residents.

Key Points:

• Preliminary Injunctions: Identical cases in the 1st, 4th, and 9th Circuits have resulted in nationwide preliminary injunctions blocking the enforcement of the executive order.
• Supreme Court Requests: The federal government has filed emergency requests to reconcile these injunctions, seeking either a full stay or limited application based on the jurisdictions.

Notable Quote:

Benjamin Wittes [25:53]: "It's a kind of a weird... it's hard to argue that there should be birthright citizenship in the Ninth Circuit, but not in the fifth."

Implications: The cases question the uniform application of constitutional principles across different circuits, emphasizing that the Constitution’s provisions should not vary based on geographic location. The Supreme Court's decision on these matters is highly anticipated, given the unanimity of the preliminary injunctions across diverse circuits.

4. Guantanamo Detainees and Punitive Detention

Discussion: Matthew Bose discusses recent developments concerning the detention of individuals at Guantanamo Bay, focusing on the harsh conditions and legal challenges associated with their detention.

Key Developments:

• Transfer of Detainees: Recently, the administration transferred detainees from Guantanamo to facilities in Louisiana, citing improved conditions and reduced misuse of the facility.
• Legal Actions: The ACLU is actively litigating to secure the release of these detainees and prevent future transfers to Guantanamo.

Notable Quote:

Matthew Bose [27:18]: "Guantanamo is, I think, largely about optics in this case, that it's a pretty horrible place to be."

Insights: The discussion highlights the punitive nature of Guantanamo Bay detention and raises constitutional concerns regarding due process rights under the Fourth, Fifth, and Sixth Amendments. The legal strategies aim to demonstrate that such detention extends beyond administrative procedures into unconstitutional punishment.

5. Administration's Legal Actions Against Perkins Coie

Overview: The Trump administration has targeted the law firm Perkins Coie through executive orders, restricting its ability to do business with the federal government due to its client representation.

Key Points:

• Hearing Proceedings: Anna Bauer recounts the hearing before Judge Howell, where DOJ’s Chad Mizell argued in favor of the executive order targeting Perkins Coie.
• Judicial Response: Judge Howell was critical of DOJ’s representation, questioning the executive order's implications and potential unconstitutional overreach.
• Legal Representation: Perkins Coie was defended by the prestigious Williams and Connolly firm, with commendations from Judge Howell for their advocacy.

Notable Quote:

Anna Bauer [37:47]: "She [Judge Howell] ... made sure to... make sure that that is how actually his name is pronounced."

Implications: The administration's actions against Perkins Coie signal a broader crackdown on legal practices that represent targeted individuals or entities. The judiciary's pushback emphasizes the importance of due process and the danger of executive overreach in targeting legal firms.

6. Foreign Assistance Funding Litigation

Overview: The podcast addresses significant litigation involving the Trump administration's pause and subsequent cancellation of foreign assistance funding, impacting numerous organizations reliant on these grants.

Key Developments:

• Preliminary Injunctions: Judge Ali issued a preliminary injunction allowing the continuation of foreign assistance funding obligations for receipients before February 13th.
• Case Specifics: The AIDS Vaccine Advocacy Coalition v. Department of State case highlighted procedural shortcomings in the plaintiff’s complaints, limiting the scope of the injunction.
• National Endowment for Democracy (NED): The NED achieved a favorable outcome, receiving a substantial portion of owed funds, differentiating it from other organizations.

Notable Quote:

Matthew Bose [53:07]: "It's entirely possible. And I fully suspect we're not going to see all this money go exactly where it was intended to do."

Insights: The litigation underscores the complexities of enforcing foreign assistance obligations amidst administrative disruptions. While some organizations like the NED receive partial victories, the broader landscape remains fraught with procedural challenges and the potential for extensive future litigation to secure owed funds.

7. Personnel Matters and DOJ Actions

Overview: The administration has undertaken mass firings of probationary federal employees across various agencies, prompting multiple legal challenges.

Key Points:

• Court Rulings:
  • Northern District of California: Judge Alsop reinstated probationary employees for six agencies, rejecting the administration’s mass firings as unlawful.
  • District of Maryland: Judge granted a temporary restraining order (TRO), halting further reductions and mandating immediate reinstatement.
• Legal Arguments: Courts have found that the administration failed to follow statutory procedures for reductions in force, such as providing advanced notice as required by law.

Notable Quote:

Scott R. Anderson [73:25]: "So on that basis, this essentially issued a remedy saying, you are obligated to restore these probationary employees to their employment status at least for the next 14 days."

Implications: These rulings represent significant judicial pushback against the administration’s attempts to downsize federal agencies unilaterally. The courts emphasize adherence to statutory requirements, ensuring that employment disputes follow due process and that mass layoffs cannot circumvent established legal frameworks.

8. Audience Question: Access to Classified Information in Legal Defense

Question: Since the administration has been revoking access to classified information by firms like Covington & Burling and Mark Zaid, what will happen in court when such cases go to trial if the defense doesn't have access to the necessary information to defend their clients?

Answer by Benjamin Wittes: In criminal cases, if classified information access is denied to defense attorneys, the court would require justification and might compel the disclosure or assign different counsel. Typically, the government would cleave cleared counsel to avoid judicial friction. For cases like Mark Zaid’s, who specialize in representing clients needing security clearances, the administration’s revocation targets his entire practice. Clients may have to secure alternative representation, potentially undermining Zaid’s ability to effectively defend them. The broader impact could significantly impede legal defenses in cases involving national security.

Conclusion

This episode of Lawfare Daily provided a comprehensive analysis of the multifaceted legal challenges resulting from the Trump administration’s policies. From immigration detentions and jurisdictional disputes to the judiciary’s resistance against punitive legal actions targeting law firms and federal employees, the discussions underscored the tension between executive actions and the rule of law. The involvement of expert Matthew Bose enriched the conversation, offering nuanced perspectives on complex legal battles.

Stay tuned for next week's episode for further updates and in-depth analysis of national security and legal developments.

Notable Quotes with Timestamps:

• Anna Bauer [02:06]: "I'm going to ask them under oath to talk about in what way they were trying to preserve the statutory functions of the organization."
• Benjamin Wittes [10:10]: "There was nothing all that unusual about the manner of his detention... his status was revoked on the basis of concededly First Amendment protected activity."
• Benjamin Wittes [25:53]: "It's a kind of a weird... it's hard to argue that there should be birthright citizenship in the Ninth Circuit, but not in the fifth."
• Matthew Bose [27:18]: "Guantanamo is, I think, largely about optics in this case, that it's a pretty horrible place to be."
• Scott R. Anderson [73:25]: "So on that basis, this essentially issued a remedy saying, you are obligated to restore these probationary employees to their employment status at least for the next 14 days."
• Matthew Bose [53:07]: "It's entirely possible. And I fully suspect we're not going to see all this money go exactly where it was intended to do."

Note: Advertisements and non-content segments have been excluded from this summary to maintain focus on the substantive discussions and analyses presented in the episode.