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You know folks, when I started the Lawfare podcast, it was kind of terrifying. You know, I didn't really know how to podcast anything. I had no idea if anybody was going to listen to it. What if people think it's dumb? What if I make an idiot of myself? Over time, the thing has proven the test of time. It has a listenership, but it was a really scary moment and I know it is for others and that it helps when you have a partner like Shopify on your side to help. What is Shopify? Shopify is the commerce platform behind millions of businesses around the world and 10% of all E commerce in the United States. From household names like Allbirds and Mattel and Heinz to brands that are just getting started. You can tackle all the important tasks in one place, from inventory to payments to analytics and more. There's no need to save to multiple websites or to try to figure out what platform is hosting the tool that you need. Everything's in one place, making your life easier and your business operations smoother. So it's time to turn those what ifs into with Shopify Today. Sign up for your $1 per month trial at shopify.com lawfair go to shopify.com lawfair that's shopify.com lawfair
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foreign.
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It is Friday, March 20, 2026. It is 4:00pm in Washington, D.C. and if you can't hear it in my voice, I am a bit under the weather. So be patient. You know, if I start coughing, that's the way life works. I am you are watching Lawfare Live and I am Benjamin Wittes, Editor in Chief of Lawfare, here with Lawfare senior editors Kate Clonick, Anna Bauer, Eric Columbus, Roger Parloff and Molly Roberts, which I think makes this the first time there have ever been 5Lawfare Senior Editors on the show at the same time. I'm not sure about that. Usually we have a public service fellow sprinkled in or something, but this time it's an all senior editor cast and we've got a lot to cover. So let's get started with our latest example of cases where you know, the government just kind of spins a wheel, turns around and points at somebody and says this is the part where we destroy your life or business or and that is of course, the AI industry and the anthropic case. So Kate, we have government responses now to anthropics suits in both the Northern District of California and the D.C. circuit. Are there any surprises? And what is the government saying in these responses?
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C
Yeah, so they filed the government filed responses to the anthropic suit on Tuesday before a judge riddled in, in the Northern District of California. And there will be a hearing on this. What is the 24th? It is going to be on the 24th and Tuesday. So one week from the date of fil. Of the of their answers, it was there was nothing like hugely surprising, I would say. Alan Rosenstein, a senior editor who covers all this, who no doubt any all listeners are familiar with, has written a really excellent write up kind of summarizing the, summarizing the arguments that the government makes. And I'm sure that we'll link to that in the episode links today. But essentially it's straightforward. They're not likely to succeed in the merits. And principally they argue that 3252 and FAFSA, like I don't even know, there's too many S's and C's and they're all like canceling each other out in terms of like the silence or whatever. So like I'm just like, I got good legal advice to just say whatever I thought the acronym was with confidence and that would be what we went with. And so anyways, that's clearly right because
- [06:00]
A
if you say it authoritatively then everybody assumes that that's and probably no one's ever pronounced that acronym before. And so there is no standardized pronunciation.
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C
I think we should just call it the Supply Chain act, the Federal Acquisition Supply Chain Security Act. So the Supply Chain act essentially, which was an act about 15 years ago that was designed basically as an anti espionage suit. And so I think that Alan, I'm just going to kind of like speak for Alan here and channel his, his excellent kind of write up of this. But like, I think that basically what Alan says is correcting the analysis of like the government's brief is correct here. The government says like listen, we can do this through, through faxfa, we can do this through the supply chain. We can also do this through 3252 and we can do this through the, you know, the apa, like the, the, you know, the Acquisition Act. And so like essentially we can, we can figure all of this out. And Alan bas main points and so does Jessica Tillipman who he does an excellent, who kind of wrote an excellent kind of write up about procurement, who basically says that essentially like one, they went around this the entirely wrong way for procurement purposes. So essentially there probably isn't a very strong case for there being a procurement issue. And two, that essentially like you can't back channel an Espionage act into a contracts dispute. You can't like just repurpose this for your own purpose. And so I, I kind of like the way that Tillipman puts it, which is essentially, you can't just basically have the President tweeted and the Secretary tweeted and then the department reverse engineered an administrated record to backfill the justification for canceling a contract. And so I think that that's kind of right. There's both procedural issues here that the administration failed to follow. Those are not really fully addressed by the government's brief and I'm sure that the Judge Lynn is going to be taking those into account on Tuesday. To the First Amendment claims. I will just say off the bat, they argue pretty like typically that this is conduct, this is contract, this is like, this is like freedom to contract. This is not First Amendment type stuff. And probably for the purpose of a preliminary injunction. I think that if Judge Lynn grants the preliminary injunction on this, it will probably not be for First Amendment reasons. There are much stronger grounds on, in, like the, in the, in the Procurement act and other types of, and other types of issues with the 3252 and supply chain act that are much richer and I think kind of more sounding and kind of constitutional avoidance than, than deciding this on First Amendment grounds, which is extremely, kind of would be a very, will be a very, like, will be a very, I don't know. We'll have a lot of debate around the First Amendment issues when and if we decide to reach those.
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A
And just to be clear, that's because it's not obviously because of anything anthropic said that the government did this. It's because it's obviously retaliatory for a position they took. And the position they took is not necessarily expressive. Right. It's just like the government wanted you to do X and you refused to do X and so they retaliated against you. And retaliation always sounds to some degree in First Amendment principles, but it's not like, you know, they went and, you know, said, you know, wrote an op ed that said we won't do, you know, this or that or the other, and the government retaliated for the op ed. Is that, is that why it's. It's a little bit mushy to think about it in First Amendment terms.
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C
That's. That's one reason. Yeah, totally. I mean, one of the reasons is that there is no nexus, essentially no cause causation, that the retaliation is from speech. Right. Like, you could basically argue that the retaliation is from, like, if there is retaliation that is from a lack of, from a failure to like a denial of conduct or something like that. But then you get into, I mean, and this is why it's such a kind of, kind of out there argument, even if you're sympathetic towards it, you get into the idea that code is speech. And so like, at the end of the day, the conduct that they're demanding from anthropic is in fact like a basically kind of a. Is basically kind of them compelled speech of a sort. And that anthropic's failure to comply with providing that compelled speech through code is therefore the act that is being retaliated against. So that's the nexus. It is like slightly attenuated and would be a, a couple of leaps in terms of what we're talking about and what we think of code versus conduct. And like code as speech. There's a lot of things implicated there. There's a lot of downstream effects.
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A
Speech. Whether code is speech has been one of the great unanswered questions in the relationship between First Amendment law and tech law since the mid-90s, early 100, 100%.
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C
And like, you can argue we could, I mean, we could have like 10 episodes on this, you know, and like, you know, and we would bore everyone. But essentially Bernstein, among other kinds of cases, leaves this question to some say resolved and others say not resolved. And of course it changes as you change like the facts. And so like, and how. And like what you see is the slippery slope of Bernstein. And then there's questions of like, kind of what you see the legacy of Lochner as and other types of other types of questions that are implied here. So in short, like the First Amendment issues are like, are absolutely a mess and robust and like this isn't the best place to answer them. And I don't think that Judge Lynn is going to. So I do think that this is going to end up being kind of, I mean this could just be dealt with kind of cleanly on the, as Alan lays out the, like the procedural failures of the administration, like to just kind of tweet this stuff and like then kind of backfill versus like kind of create a record that this was a problem. And then the, and then the idea that like this is not what the, the Supply Chain act was for. This is not like this is for, you know, actual espionage, not procurement issues. So those two things together, I think we'll see. Molly's going to be covered. Molly's going to be watching the hearing, I'm going to be watching the hearing. And I think that we will, we'll report back on kind of what happens with all of that. But it should be interesting. And it seems like Judge Lynn is kind of running a tight core court as far as I can tell, and kind of a tight briefing schedule.
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A
And so Molly, will you be at the D.C. circuit hearing at the Northern District of California hearing or at both or at one at them virtually. How do you cover the bicoastal nature of this?
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D
I do not know the answer to that question, although it might be with help. I think I'm not the only one here interested in covering those. So reporters will sort it out.
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A
And for those who are wondering where Alan Rosenstein is, Alan is in Sweden and where no district court has jurisdiction over the anthropic DOD matter. All right, Excuse me. All right, let's talk about, Molly, your favorite subject, the grand conspiracy. Because I heard a rumor that there are like 130 new subpoenas that went out. And so what do we know about the grand jury in the Southern District of Florida and what it's up to right now?
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D
Yeah, we know less than I would like to know. So what was reported this week was that there were more subpoenas out and in particular that former FBI Director James Comey had been subpoenaed, which isn't really that big a surprise given that the grand conspiracy is supposed to be.
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When we say subpoenaed, we mean subpoenaed again. Right, because he was subpoenaed months ago, wasn't he?
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D
So I'm not sure that we knew that he was in the initial batch of subpoenas. But the very fact that you're asking that question is interesting, right? Because, like, why wouldn't he have been? That says the subpoena issued last week, the reporting says, relates to his alleged role in the drafting of the 2017 Intelligence Community Assessment. We already knew that that's what this case was focusing on originally. And so why would he not have been subpoenaed, particularly when what kicked this off was this investigation into Brennan? And I believe that in the referral that John Ratcliffe made of Brennan, there was also a referral of come. So, to me, the most obvious thing is that James Comey would have been subpoenaed. And I was wondering, okay, well, was he subpoenaed then for something related to Crossfire Hurricane? Is this a new subpoena that had to do with Crossfire Hurricane? Because that would signal an expansion of inquiry. And the reporting by the New York Times last month indicated that the inquiry was expanding to precisely that. But the reporting from Axios, which is who broke this story, says 2017 Intelligence Community Assessment. So that's something I'm going to be trying to figure out and look at is does this subpoena actually cover more than just that? Because it doesn't feel like huge news if it only covers the 2017 ICA. And then, of course, what we also have our eye on is will this expand even further, not just to these 2017, 2016 investigations into Trump and Russia, but also into. And we know that there have been interviews conducted on this subject, Trump's attempts to get false slates of electors approved, and perhaps also the Mar A Lago classified document search, which would provide the jurisdictional hook. And then you may have been about to ask about this, but the other thing that I'm going to be trying to figure out is did these subpoenas come out of Fort Pierce, which is where this grand jury is, or did these just come out of Miami, which is where all the other subpoenas in this case of which, as you said, there are lots and lots, many of them. My understanding is, to people who really haven't been in the public eye, the they've been coming out of Miami. So has there been.
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A
Yeah. So Axios mentioned the number 130 subpoenas, and there are a lot of people. Everybody keeps mentioning the same five or six names, as though this is an investigation that's focused on a number of very specific people. I have no reason to believe that's the case. You know, I think those are just the people that Axios has been able specifically to identify and whose names it believes readers will know. But. All right, I have a really dumb question. I mean, I guess all questions about
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D
either no questions are dumb on this or all questions are dumb on this.
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Yeah, exactly. So, and let the record reflect, given Jim and my relationship, I have had no contact with Jim on this subject. I have no. Had no contact with anybody representing Jim on this subject. I know absolutely nothing that is not in the press. But if I were the government, I would assume that the answers to almost all of these subpoenas, if these are going to be about the ICA from 2017, is that there are no documents responsive to this request because most people don't, in fact, the paranoid fantasies of the grand conspiracists aside, take home large quantities of documents related to intelligence community assessments. And so my question is, do we have any reason to think that there, that. I mean, I don't know if this is a fishing expedition exactly, but the production of material in response to this might itself be, you know, if the material is classified, might suggest criminal activity like that. You were so, like, why, why does the government think any of these people has like a cache of. I mean, none of them is John Bolton or, and I don't mean to cast aspersions at John Bolton, but, you know, usually when you're looking for, like, if you want to know what Jim Comey or Lisa Page or, you know, Andy McCabe did in government, you subpoena the government or you, you, you send a document production request to the FBI. What, what's the, what do we know about the theory other than that it makes for a good Axios story of subpoenaing the individuals nine years after the events happened.
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D
Yeah, I think it's a really good question. I totally agree that they're not going to be able to get much here because these are classified documents. And if these people have those classified documents, then that's a whole other problem. I think that part of what's going on here is exactly what you said. It makes for a good Axios story. The other part is that this is, in my view, at least, a revenge mission, a kind of personal revenge mission. And so to enact your personal revenge against each of the people you want to get it on, you're going to subpoena them and make their lives individually difficult and make it so they each have to hire a lawyer and go through all of this rather than subpoena the government. So I think that that's one thing, too, and I think Also, part of what is going on here is they want all these individual people somehow involved in this case, because if they manage to establish that these people are part of a conspiracy, they can then encompass many acts that these people have engaged in and bypass the statute of limitations by saying that those acts were somehow related to the conspiracy. So those are kind of all my small answers to it. But they still face this big problem, right? I mean, they need to actually have something on these people, and if it's in classified documents, they can't get it.
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A
Eventually, somebody is going to file a motion roughly akin to the one the Fed filed in the Jerome Powell case, which is. Wait a minute. I don't think there's a theory of criminal liability that gives rise to a good faith subpoena on this.
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D
Yeah, no, exactly. Which I guess is partly why you want it in Eileen Cannon's courtroom.
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A
All right, we will stay on that matter. Roger, speaking of matters that we're staying on, we have another FBI lawsuit against Mr. Patel over firings of FBI agents. What's the latest of on this subject?
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E
Yeah, this one just came down. I don't think it's assigned yet. It's two FBI agents, John Doe 1 and John Doe 2 versus Patel and Bondi. It's in D.C. federal court. They were on the Arctic Frost investigation, which is the one that between November 22 and June 2023, led to the indictment of Trump in the January 6 case, conspiracy to overturn the 2020 election. And apparently one of their names was publicly leaked last, in October, this recent October, by a Republican legislator. I couldn't get through the whole complaint. It's 41 pages. It may be by Grassley, but one of the Republican legislators. And then on October 31st, Patel summarily fired both of them. They are, you know, there are procedures if. If you're going to fire somebody. And there are even, I think, extraordinary procedures that might warrant summary. But they're extraordinary. None of those were obviously taken and apparently they were perceived as political opponents, or the allegation is simply because they were assigned to that investigation and assigned. Obviously, they didn't volunteer. It's an unusual suit in that it is. Pure First Amendment and Fifth Amendment retaliation for First Amendment protected speech and Fifth Amendment due process and injunctive relief directly from those. So it's sort of like a Bivens action,
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A
kind of like the Anthropic case, actually. I mean, except that they were employees instead of a federal contractor.
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E
Yes.
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You know, alleging retaliation for, you know, for getting assigned to work on and doing your job.
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E
Yeah. And failure to follow the relevant law. Yeah. Relevant procedures. Yeah. And that one of them is a veteran of 21 years. They go into. Without revealing their names, they go into their rather illustrious careers.
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A
And it's pretty easy. We're not gonna reveal who these people are because the court is protecting their names. They're filed as John Does. But if you line up the facts against publicly reported matters, it is not particularly subtle who these people are.
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E
Yeah. And we know. Oh, so, you know, you can recognize these.
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A
I'm pretty sure I know who both of them are, but I'm not 100% sure.
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E
Okay, so one is 21. The other is eight years. He was in public corruption, but he had an unusual job, too, which was. He was working on a sensitive fraud case, and he was the guy who was supposed to. Briefly. Kash Patel himself. And Cash praised him as recently as October 1, before the October 31 summary firing. So on a crisis negotiation team, multiple awards and so on. We know from other FBI cases that one issue is likely to be, can you go to federal court at all? Is there supposed to be some. You know, are you supposed to go to the Merit System Protection Board? Some. It's easy. Some agents are. Some aren't. It depends on if you're a veteran or you aren't. So. But that's all I can really tell people at this point.
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A
All right. We will follow this case as it develops along with, you know, a bunch of other FBI cases. Meanwhile, some judges are getting a little bit prickly. Judge Boberg, fresh off his spat with Janine Pirro last week, has issued a surprising little order about no true bills in his court. Roger, what. What does this order require?
- [27:21]
E
Yeah, this is interesting. And it was first reported by Josh Gerstein this week of. Of Politico. Actually, the. The. The order was issued March 4, which might have. Which I think was before the latest tizzy with Piro.
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A
Yeah. It seems to be in response to the six members of Congress who a grand jury didn't want to indict for.
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E
I think so. Yeah.
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A
Truthfully, about military service members obligations in the face of illegal orders.
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E
There's actually, you know, and he's. It's a. It's a very sober. It's not an angrily worded thing. It's a. It's a local rule. And it just says, based on several recent matters have arisen. It says several recent matters have. Have raised the question of whether notice should be provided to the duty magistrate when a grand jury fails to concur in an indictment in a GJo, which is a grand jury original investigation and
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A
what we might call this, the passive aggressive.
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E
Yes. Yeah. So what's going on, and it's sort of unusual, is that there is a rule in the Federal Rules of Criminal Procedure that says if, if there's a case alive already because somebody's filed a criminal complaint or an information and then the, the, the prosecutor tries to elevate it to a felony by getting an indictment. And, and the grand jury, no true bills that there has to be a notice filed to the. And given to the magistrate. It's not public necessarily. It's still sealed typically, but it exists and the magistrate knows about. There's no such thing if it's an original grand jury matter, meaning there's never been yet a criminal complaint, which was the situation with the grand attempted indictment of Senator Kelly and the other congressman. So that's what this, this one says. From now on, those situations will need a formal notification. It will remain the assumption will be the default setting is sealed and it can't be released without a court order. So he's going to try this for 100. He did seek the government's thoughts on this change. He says he doesn't see.
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A
I was stunned to find that they opposed it.
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E
Does it say that I missed that?
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A
I believe they issued a statement, I think to Josh Gerstein saying they opposed it. But I could be wrong about that.
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E
Okay. The, the document, I don't think it notes that their views were solicited. It doesn't give any insights into what their views were. And it says that this will be in effect for 120 days and then he will consider making it a local rule. The thing I had not understood is that in these situations where it's a, it's an original grand jury investigation, there is, you, you don't even have to tell the magistrate. The magistrate might, it's not just even a document. There might be, you don't have to tell the magistrate at all. So there's no real way until now of saying, look how many no true bills.
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A
And of course, which really does raise the question of how the press is finding out about all these no true bills. I mean, if the, you know, I, you know, people involved in courts should of course talk to the press with propriety or not as, as a member of the press. That said, you know, if prosecutor walks out of the grand jury room and says to, you know, member of the press, I just got no true build. You know, that's a Like a violation of a grand jury secrecy rule. And the defense lawyers presumably don't know about it, except in the elliptical sense that they may have been informed that the government was going to seek an indictment and then one never materializes. So I'm, I'm a little curious where all this information about no true bills is really coming from.
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E
No, it's, it's very interesting and some, and it's pretty fortunate, it's pretty fortunate that somebody is going public.
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A
Yeah, don't stop, guys. Keep it coming.
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E
I mean, that Senator Kelly thing is such huge news and the notion that nobody would have known about it.
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A
Well, and that somebody disclosed not merely that it was no true build, but that it got zero votes among grand jury. I mean, that that was some detailed information. And it's hard to imagine that that's Janine Pirro's office, you know, dishing dirt on itself. I, I don't know, like, it's a very confusing question like where that comes from. All right. Meanwhile, in New Jersey, another judge is even more pissed off than Judge Boasberg. Roger, this one kind of took me by surprise. I'm not sure I've ever seen a judge throw prosecutors out of his courtroom before. What on earth is going on in New Jersey?
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E
Yeah, this was sort of a perfect storm. There's at least three or four things going on. And maybe a judge who's a little irascible too. It's Judge Zahid Qurashi of the District of New Jersey. I think he's in Trenton. And the case is an aggravated one, Francisco Villafane, or Vilafani, charged two years ago with possession, receipt and distribution of child pornography material. So offense where there's a five year minimum, up to 20 years, 7,000 emails to a minor over a three year period, a girl that went from 13 to 16 and videos like, show me you doing this and and so on. In April 2025, there's a plea plea agreement reached, stipulated term of 84 to 108 months, which sounds like a lot, but it's about a third of what the guidelines recommend for this sort of offense. And then twice as the sentencing is approaching, the prosecutor tells Karashi, oh, you know what, after the plea agreement was reached, we noticed that there's more stuff in his computer and we need to notify some other potentially identifiable victims. And then it develops, in fact, potentially 116 additional identifiable victims. And so we now know that he's steaming. Like, how could you make a guilty plea under this? Meanwhile, other things are happening over there. At the District of New Jersey on August 21, Judge Brand says that Haba has been unlawfully appointed. That's appealed. And Haba continues to put her name on indictments as the appeal is pending. So then in December, the Third Circuit affirms, so all of those indictments in the interim now have an appellate issue that they didn't need. And then on December 8th, she steps down. But then Bondi and Blanche, rather than following one of the ways of appointing an interim or an acting U.S. attorney, invent a new theory that doesn't involve anyone's intervention except Bondi or Trump, which is to appoint a triumvirate to head the office. And then just on March 9, Bran strikes that down and he issues a stay order while it's being appealed. But he says a stay cannot invalidate, can, cannot validate an unlawful appointment. If the government chooses to leave the triumvirate in place, it does so at its own risk. So the next day, Qureshi writes the prosecutor and says, look, do you want an adjournment in this sentencing hearing that's coming up? Because that way we can sort out what the hell is going on rather than because otherwise we're going to need your client to try to waive this, this flaw, potential flaw. And the AUSA writes back and says, no, I don't need any adjournment. Plus, you know, this. And he says, among other considerations, this is a victim case. Like, we need to go forward because there are real victims here. And this from a guy that entered a guilty plea without finishing the investigation and, you know, failed to notice 116 other victims. So he's already pissed. And we know also that last month he had issued another order threatening the office with contempt because of the way they were hand handling immigration cases. 1225 B, the mandatory detention. So. So there's all of this churning, and he really just goes. And. And when the guy shows up, the. He's a fairly young guy. He's been there since 20, 23, two and a half years in the office. He shows up with the appellate head of the Appellate Division, Mark Coyne. And Coyne hasn't entered a notice of appearance, and there was no reference that he would be showing up. And. And here Qureshi loses it and says no. And frankly, this part, I don't understand why it would be such a grave. I've seen prosecutors come in with senior prosecutors without and says it won't let him speak and says, you must, you know, don't speak. And he does speak he tries and he has him removed, or he says he'll have you removed unless you leave on your own. And eventually he does. But there's one other. There's yet another thing going on, which is that apparently Haba, meanwhile, has become a senior advisor in DOJ, supposedly supervising U.S. attorneys. And she's been seen in the District of New Jersey offices. And so that he's really wondering who is running everything. And so he's ordering that all of them now come to a hearing and testify about what the structure really is and whether Alina Haba is playing some role. And he says, and what you've told me today, and this is really not the. You here is really the office, not the young ausa, I think, which I don't believe you, by the way. I won't believe it until you testify. That is why. That is what has happened to the credibility of your office. Generations of ausas had built the goodwill of that office for your generation to destroy it within a year. You all need to figure, start figuring out how to proceed going forward. And it's not going to be walking into the courtroom making representations and us accepting it. We know now way too well not to accept those. Your folks are going to start testifying. They're going to start speaking under oath when they tell me who's running the office. So I have a proper factual record. And in fact, he specified that these three leaders of the office would be sequestered, which is a way of saying he doesn't trust them to hear. He thinks they'll shade their testimony if they've heard the others. Anyway, it was a pretty lively hearing.
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A
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fast and confident decisions.
- [43:20]
A
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- [44:37]
F
a $250 gift card as the thank you.
- [44:39]
A
That's bill.com proven terms and conditions apply. See Offer page for details. All right, Eric, back in D.C. here we have the U.S. attorney's office. And remind me, who is the U.S. attorney here?
- [44:59]
F
Jeanine Pirro.
- [45:00]
A
Okay, Jeanine Pirro has dropped prosecution of flag burning suspect rather than give him discovery regarding his claim of judicial vindictiveness or prosecutorial vindictiveness. So what is going on here and what evidence of vindictiveness is she so afraid of that she will drop the case rather than provide discovery of.
- [45:32]
F
Well, the backstory here is that in August, Trump, who has been, you know, low level obsessed with, with wanting to throw people in jail for burning the flag since his first term, he put out an executive order criticizing flag burning, which as, as I assume most of our listeners know, is protected speech under the Supreme Court decisions interpreting the First Amendment. So he put out an order saying, my administration will prosecute those who otherwise violate our laws while burying the flag. And the order said that, noted that some content neutral laws might be applicable, such as open burning restrictions or destruction laws about destruction of property. Now, you know, it's, it's, it's no longer content neutral if you are announcing to the world that you will use content neutral laws because to get at this particular type of speech that you hate. But so, so this guy goes out, a guy named Jan Cary goes out that very same day, grabs an American flag and heads to Lafayette park, right across from the White House and puts the flag down on a brick path and his megaphone and one hand, the lighter, another. And he says that he served in the army for 20 years. He said, I fought for every one of your rights to express yourself. There's a First Amendment right to burn the American flag. But the president signed an executive order saying it was illegal to burn the American flag. He then proceeded to, as a form of protest, burn the American flag. And very quickly, park police on the scene came up to him, eventually extinguished the flag and arrested him. And they were trying to figure out what to do. And there was actually body cam video, which they're saying that, you know, I don't know, there's the, the president sent out this executive order day about flag burning. Maybe we should, there's some charges in there that we could, we should use against him. Let's see. And they arrested him and he's charged.
- [48:01]
A
Just so that we're, we're clear here, I remember a case called Joey Johnson v. Texas where the Supreme Court said that flag burning was constitutionally protected speech.
- [48:14]
E
Right.
- [48:14]
A
It would have to be some crime other than flag burning, right?
- [48:18]
F
Yes.
- [48:19]
C
Okay.
- [48:20]
F
Just the crimes were basically lighting a fire on National Park Service property in ways that kind of create a hazard and are not, not permitted and stuff like that. So these are misdemeanors. And I mean, I got to say,
- [48:42]
A
I wouldn't be confident as someone who's had my own run ins with the park police, I wouldn't be totally confident about setting a fire on Park Service or Lafayette Square even if I were burning you know, twigs or a piece of paper that, that there's no reg that says you can't like like set things on fire there. I'm, I'm just like, I wouldn't, I wouldn't be confident of that.
- [49:10]
F
Yeah. And there are regs as, as it turned out. And he sues rather than. He doesn't sue. The defendant files a motion to dismiss saying that the general applicable regs, the general National Park Service regs are superseded by regs that govern D.C. park specifically. And oh, by the way, they're prostrating me vindictively. Judge Boasberg says no, the regs are fine in judicating the motion to dismiss. But he says about whether the prosecution was vindictive. He says, well, you know, I can't really tell. He says on the one hand it seems unlikely that the prosecutors would have felt free to defy the President who had just put out this executive order and had this case basically nicely teed up for him of someone who would, who burned a flag. And Trump said I want you to go after flag burners. And here's one. But on the other hand, Judge Boser said there's a good chance that he was prosecuted for the fire and not for what he set on fire. I mean there are actually photos in the opinion. This guy just lights this flag in the middle of Lafayette park and there's like, you know, it's an American flag sized fire and there are people around, there's no fire extinguisher, there's fire damaged the bricks under it. But he says okay, he's made a, a, a a a good enough showing that he's entitled to some type of process on his, on this claim here. And he orders discovery and from he that, that uh, the defendant can propound discovery, uh requests on the prosecutor's office which has to get back to them by March 16th. On Friday, March 13th, DOJ says never mind, we're dropping the case. So and Judge Boasberg of course grants that. So we don't know and we'll never know. We'll probably never know what exactly it was, but it was something that was pretty bad. I suppose that Janine Pirro, who you know, claims that she's so willing to taken not guilty verdict as she announced in that press conference, I think a week ago, was not eager to have it come to light.
- [51:37]
A
Right. I just want to say to anybody who wants to burn a flag, don't do it. Setting fires in public places, bad idea. You're going to get in trouble. You're going to. You're going to set something on fire that you didn't mean to and be imaginative. Think about using projectors to project images of burning flags that will get all the expressive value and it has none of the risk. Anna Bauer, there was another case that the U.S. attorney's office dropped in federal court this week and you were there for it very briefly because we did a whole show on this. What happened?
- [52:27]
B
Oh, you mean your, you the, the. You're mean your case. Is that what we're talking about?
- [52:34]
A
Yeah, that's the only one that I know that you were present.
- [52:37]
B
I was confused for a minute. Yes, I. Yes. So our very own Benjamin Wittis had his day in court this week in federal district court at the Eberry Printing E. Barrett Prettyman courthouse. My first time covering a proceeding of our editor in chief in court. And it was the strangest hearing that I've ever been to at Prettyman because it, it wasn't really a hearing. Ben was summons over a citation that he received related to projecting on the Washington Monument. And instead of having an actual judicial proceeding at this initial appearance before a magistrate judge, it ended up being a kind of, you know, conference situation where there's an AUSA and park police who are seated at a table and then they call people up one by one. Many of the people who were there were vendors who, you know, received citations related to things like parking violations or other types of regulatory violations. And it seemed to me that most people were not represented by counsel. It was very difficult to hear what was actually happening during this, what was called a court proceeding, but kind of wasn't one, but still had a presumption of public access because there was no microphones turned on, that kind of thing. The ausa, when I tried to approach, listen to in on what happened with Ben's case, got very upset that there was a journalist there to cover the proceeding. But Ben, do you want to explain what happened next in terms of the case getting dropped?
- [54:49]
A
Well, for people who are really interested in the details, watch yesterday's Dog Shirt TV where Anna and I went through the details with precision. But for now, no charges were filed. I agreed to pay $100 civil fine, $30 in court costs. My property, including both Lord and Lady Laser will be returned to me as well as a very treasured camera lens which I feel very strongly about. And my co defendant who was wrongly accused, he actually did not reject on the Washington Monument had charges against him dropped entirely. So altogether a very satisfying outcome despite the procedural irregularities which were Extreme. And yeah, I will be back in action doing projections again soon, although not on the Washington Monument, now that I know that there is a specific reg that forbids that.
- [56:05]
D
Yeah.
- [56:06]
B
And I highly recommend listening to that dog shirt daily episode that we did on this because it really was such a strange proceeding. Proceeding. And we go into the details as to why in that. In that episode.
- [56:21]
A
Indeed. All right, let's go to Fulton county, which is feels like a blowback to two times past where Judge Boulay has announced that mediation has failed and we are now going to have a litigation over Tulsi Gabbard's execution of a search warrant for the FBI. What's going on down there?
- [56:52]
B
Yeah, so remember, this is the ballots case in which Fulton county is trying to seek the return of the ballots that were seized by the FBI. There was a lot of briefing in the lead up to what was supposed to be an evidentiary hearing where we explained, expected to hear from the affiant in who filed the search warrant affidavit supporting the search warrant. And then at the last minute before that hearing was supposed to take place, Judge Boulley ordered the parties into mediation. And as you've said, Ben, after about a week and a half, two weeks of mediation, Judge Booley has now announced on the public docket that the mediation has failed. And now the question is, will we go forward with this evidentiary hearing that was supposed to cover essentially whether or not the search warrant affidavit was supported, probable cause, whether there were omissions in it that violated the law, that kind of thing. And again, we expected to hear from that special that FBI agent who filed and swore out the affidavit. But of course, there's this pending motion to vacate the hearing and quash the subpoena that was filed by doj. And so Judge Bulley ordered the parties to provide further briefing on that issue of whether the hearing should go forward forward, and in doing so, ordered the focus to be on the arbitrary and capricious standard under tui. Now, for people who don't know what that is a reference to, there's something called that are referred to as the TUI regulations. That's when a third party subpoena is issued upon an agent of the government. The agency has regulations that kind of set the guidance for, you know, whether or not it should allow that person to testify or the. The evidence to be released in relation to that subpoena. But these regulations don't aren't supposed to like, create a kind of substantive right to just unilaterally kind of allow the government to refuse to provide someone to testify at an evidentiary hearing. But it does set up this process. And there's different circuits that look at the refusal or the denial of a 2e request under different standards. So some circuits look at it under the same type of procedure that you would under the federal rules of civil procedure, which allow you to quash a subpoena for undue burden. That is a more favorable standard to the person who's seeking the testimony of the federal agent. But then some circuits look at it under the apa, the arbitrary and capricious standard. That's a more deferential standard for the agency. And so here there's this question of, like, now that the government has refused the TUI request that Fulton county sent for this agent's testimony, should the judge. Judge bully, look at it as that. Look at that denial as arbitrary and capricious, or look at it under a different standard of, like, they can only see quashal based on undue burden. So that was what is being addressed in the litigation. Now we do have a tentative hearing date for March 27th. Fulton county has filed its brief in which it argues first that the standard isn't arbitrary and capricious. It's, you know, just look at what can. How you can quash a subpoena under Rule 45 of the Federal rules of civil procedure. And then even if it is arbitrary and capricious, that this denial here is arbitrary and capricious because they're not seeking privilege information. They've shown that there is a reason for the agent's testimony under Frank's and under the Rule 41G, which does explicitly say that a court shall hear evidence and testimony on any factual dispute that is to be resolved. So all of this is being hashed out in these briefs. We have not heard from the government yet that's due. I actually think maybe it's today, but they haven't filed yet. And so within the next few days, Ben, I expect to hear from judge Bully about whether the. The agent will testify. I suspect that probably. It seems to me that the issue isn't whether the evidentiary hearing goes forward. It's the question of, like, whether at that evidentiary hearing, we will hear from the special agent, because there's still witnesses that Fulton county could call, like Ryan Macius, who's their elections expert, who filed a very long declaration. And I also wonder, too, that if the government declines to allow this agent to testify, will there be an adverse inference that the judge will make against the government in. In respect to deciding the ultimate issue, which is, you know, whether or not their Fulton County's rights have been violated here and. And that they can therefore get their return of the ballots.
- [63:04]
A
Anna, who is the administration of Doge? The administrator of Doge. And do we have new video evidence that bears on the question?
- [63:15]
B
We have lots of new video evidence that bears in the question. But, Ben, you will maybe not be surprised to learn that there's no clear answer in the video evidence. So in. We have 23 hours worth of deposition videos that were published online by.
- [63:38]
A
And just to be clear, how many of them have you watched?
- [63:42]
B
I have watched about 20 hours. I still have, like, three more hours ago that I'm. I'm. I'm still trying to get through, but I've watched over the course of about a week, I've watched a lot of Doge deposition testimony. I. I kind of recommend it, but also kind of don't recommend it, but we. We learn a lot about the structure of doge. This is all context, I should mention, of a case that was brought against the National Endowment for the Humanities by groups of scholars and historians, people whose grants were canceled by NEH after DOGE came in and was deciding to cancel certain grants that were deemed to be DEI or that were deemed to be wasteful. And as a part of this litigation, one of the big questions, as we've discussed before, is like, who was really calling the shots here? Was it actually the agency heads and the people who were in charge at neh, or was DOGE really kind of making these calls in a way that they. Which they had no authority. Statutory authority to make, and therefore, it would be ultravirus, because they don't have the authority to cancel these grants themselves. So that's kind of one of the issues that's lurking in the background here. And for that reason, in these depositions, there's a lot of questions about the structure of Doge and who was in charge and who was making these decisions. Was Doge just advising, or was it actually instructing on the termination of these grants? And on the Watod question, the. Who is the administrator of Doge? There's lots of interesting stuff because two of the Doge guys are deposed, and multiple times, you know, they're asked, like, who did you understand to be in charge at Doge? And there's kind of a variety of different answers they give. You know, Elon is described as one person who was understood to be in charge, even though the. The in legal Filings. And in its legal cases, DOJ has claimed that no, he was not in charge of Doge. And then also there's another name that came up over and over again, which is Steve Davis, who is one of Elon Musk's known kind of, you know, right hand guys and is described in these deposition videos as kind of, you know, regardless of whatever his title was, was the guy who was understood to really be running the day to day at Doge and ran the meetings. And over and over again when these, these questions are asked, guess whose name is not mentioned. Amy Gleason, the purported acting administrator of Doge. And at one point, Ben, there's even this moment when someone asks Nate Kavanaugh who was the Doge team lead of, you know, killing the small agencies team or whatever they called it. I believe it was just the Doge small agencies team. He's asked at one point who was Amy Gleason? And he takes a moment of like a whole like 5 second silence and kind of stares off like, who? Where have I heard that name before? Almost as if he's thinking, like, who is that? And then he goes, I believe she was the administrator of Doge. So it's just a fascinating insight into Doge. There's also a whole other saga that's going on around the release of these videos that we can talk about if you want to, but there's a lot in these videos that is very interesting.
- [67:59]
A
All right, Roger, while I wasn't looking this week, the government sued once again, that hotbed of antisemitism, Harvard University. And I confessed, I completely missed this until I saw it on the schedule this week, and I know nothing about it. And so fill me in. What, you know, violent acts or, you know, or pogroms are they responding to this time?
- [68:37]
E
It's the same pogroms and the same violent acts. It's. This is now the third litigation between the two. This is the first that the, the Trump administration has brought. The way this worked, if you remember, is that they began terminating all of Harvard's contracts just in a letter.
- [69:04]
F
Right.
- [69:04]
A
But the previous pattern had been that the Trump administration cites antisemitism as a reason to cut off Harvard's money on matters that have nothing to do with anti Semitism, like, you know, biology and.
- [69:18]
E
Exactly.
- [69:19]
A
And then Harvard sues over that.
- [69:23]
E
Yeah.
- [69:23]
A
So what's the, Is this a Title 6 litigation?
- [69:26]
D
What.
- [69:26]
A
What's the.
- [69:27]
E
Exactly. Yeah, it is and It's. And Title 6 of the Civil Rights act of 1964 forbids racism. I mean forbids discrimination on the base of race or national origin by federally funded entities. Basically. They had cited, you know, in their letters, terminating all of Harvard's contracts. They had said, you violated Title 6. And, and then Harvard went to court and said, well, okay then, but you didn't follow Title six. I mean, if you, if, if there were really a Title 6 violation, you need to, you know, Title 6 tells you how to proceed and there's due process. You don't just write a letter and say, I'm cutting off $9.2 billion in, or I guess 2.2 billion in grants and everything in the future. You have to follow. And so Judge Burrow said, that's right, and entered originally a preliminary and then a summary judgment and that's now on appeal. So now they're bringing the Title six.
- [70:43]
A
Gotcha.
- [70:44]
E
So I think that's what's happening.
- [70:49]
A
All right, so Molly, we talked last week about Judge Lamberth's ruling in Whitakerswara, which is the voa. I don't know what to call it. The destruction of VOA case. There's another one now, another ruling, this one somewhat broader in terms of the relief it granted. What did Judge Lamberth do this week?
- [71:17]
D
Yeah, so Judge Lamberth vacated the decision. The memorandum by the Voice of America parent company, the US Agency for Global Media, that put almost all about 1,000, I think it was 1042 of its 1,147 full time employees on administrative leave and also ceased most of the broadcasting. So he vacated that order. And that means that those thousand ish full time journalists and staff will come back to work on Monday or are supposed to come back to work on Monday and broadcasting operations will or should resume on Monday. Of course, in practice that's going to be tricky because it's been about a year of this organization having been totally gutted. The exception here is contractors who were terminated for their.
- [72:18]
A
This is a very big exception.
- [72:20]
D
Yes, a very big exception. And for their disputes, Judge Lamberth found that his court didn't have jurisdiction. There's a separate court that deals with that.
- [72:28]
A
Right. So, so just, just a word on that. A huge number of VOA employees are actually contractors. And the reason they did it that way is because it was easier to get people in the United States on visas that let them work on a contractor basis than to sponsor them for full time employment. These are, remember, there's 46 or 48 language services, some of them, you know, so you need these really specialized skills, you know, Cambodian speaking broadcast journalists. Right. Like, and so there's a lot of people who were brought in, including from countries with very repressive governments or in the case I'm most familiar with, countries that are in war zones like Ukraine. But, and then, you know, there a lot of them are brought in as contractors and they were all basically terminated the same day. And so this, this action is great for the people who were full time employees of doa, but it doesn't help. I, it's, it's still not clear to me how you get back the, the, if the goal is to have them start broadcasting again at the level that they were, you cannot do that without the contractors. And so it'll be interesting to see what this group of people now freed from the clutches of Carrie Lake, although still under the clutches of the, you know, Carrie Lake 2.0, what they're able to do and whether the administration really tries to go for the jugular again with them.
- [74:31]
D
Yeah, no, that is all right. And I think that, I mean, it'll be interesting to see exactly what happens. Right, because the issue here, the judge ruled, was that the US Agency for Global Media had violated the Administrative Procedure act in two ways. One, by not satisfying the reasoned decision making requirement. And he was really critical of the complete lack of reasoning in the memorandum doing this. And two, it engaged in unlawful withholding of required agency action because there's a statute that says you have to communicate directly with peoples of the world by radio and there are also specific regions in which you have to do this and they weren't doing that. So now the idea is, well, they should resume operations as they were before that, but going forward, they still need to meet that statute, statutory requirement. And I do kind of wonder, how do you do that when you've gotten rid of so many of these contractors who were responsible for it?
- [75:34]
A
It's going to be such an interesting question and it's not going to be one that is limited to voa. So in so many agencies, the administration has taken the position that it can satisfy what it calls the statutory minimum, which is the thing that the appropriation statute mandates that it spends X amount of money to do basically without having a federal agency like, you know, USAID mostly doesn't exist. Right. Like now. But how? And in the short term, the Supreme Court has been quite deferential to the executive in terms on the shadow docket in terms of what, you know, what, what it lets it get away with in reductions in force and, you know, meeting the statutory minimum. But I am not, you know, this is the first time that I'm aware of, but it won't be the last. There are other cases that are percolating up where, you know, the statutory minimum really does say some things.
- [76:47]
E
Right.
- [76:48]
A
And you're now not in the, you're not in the emergency order department anymore. You're in the merits phase. And you get a good district judge, somebody like Royce Lamberth, who's actually going to read the statute carefully and say, well, you know, it says you have to reach this number of countries in their languages. Are you doing that? Well, you know, you're supposed to be spending $400 million doing that. I think there are going to be a lot of these cases and, and I have my eye on a few others that are similar in, in that regard where I just don't, I don't see how you can meet the statutory minimum without, and terminate the existence of the agency entirely or almost entirely. All right, Roger, let's do our weekly immigration roundup, which is going to be brief this week, because there hasn't been that much going on in the immigration space this week. And I want to start with why. What, why has this been such a quiet immigration week?
- [78:01]
E
Well, two CERT grants isn't chopped liver. I mean. Okay, okay. So these TPS cases I've been talking about, temporary protected status, the Supreme Court took two of these, and they, it's cert before judgment, meaning the appellate courts haven't ruled on these cases yet, but obviously they had to do. They've had to finally face these in a, in a holistic way. Trump v. Mio involves Haitians, 350,000, Dahlia Doe involves Syrians, less than 7,000, maybe around 5,600. Mio came out of Judge Reyes here in D.C. doe came out of Catherine Polk, Faya or FALA in the Southern District of New York. And the key question is probably going to be the statute. The TPS statute has its own jurisdiction stripping provision that says there is no judicial review of any determination of the Attorney General with respect to the designation or termination or extension of a designation of a foreign state under this subsection. And that sounds, and the Attorney General has delegated this to the Secretary of Homeland Security. So that's known. All of these things start with a designation of a country as under the, as being eligible for TPS status. And then that makes a category of non citizens eligible. But they have to then apply individually and prove that they don't have criminal records and so on, like that's how you get TPS status. These are not illegal aliens. But Anyway, that sounds like, oh, so GNOME can designate which. Which countries get it and which don't. And how do you get around that? And so the way that many, many judges have gotten around that is to say that, yeah, that's the designation. I'm not quibbling with whether, you know, you choosing whether to designate or not. I'm saying you didn't follow the procedural rules you have to follow. You're supposed to do a country review first, and you didn't, you know, and you're supposed to do this in good faith. And you're supposed to make findings, you know, that they're no longer in danger of their lives. You know, this sort of thing. And you didn't. You just, you came into office and you terminated 12 of these things so far. And, and so the claim is it's arbitrary and capricious. It was a preordained decision. It was pretextual. Reasons were offered. And also in some of these, in the Haitian case, racial animus. In a fair number of these cases, not racial or national origin animus, which is either tucked in with, as a form of the arbitrary and capricious, or as an independent constitutional violation under the Fifth Amendment due process, it's equal protection that's smuggled into the Fifth Amendment for the federal actors. So it's really important case.
- [82:07]
A
Speaking of important cases, in JOP yesterday, the government seems to have admitted that there are more than 100 instances in which members of the class. This is a class action immigration habeas have been unlawfully removed from the United States in violation of some kind of settlement agreement. What happened and what do we know about these hundred cases?
- [82:41]
E
Yeah, well, this is a hearing that actually continued today in Baltimore in front of Judge Stephanie Gallagher. She's technically a Trump appointee, but I think she was first nominated by Obama. And you've heard of her before in the JOP case?
- [83:00]
A
Yeah, she's a very good judge. She did a very nice job in, earlier in the administration in this case.
- [83:08]
E
Yeah. If you remember Christian, a Venezuelan, was. This is a case that began in 2019. It's a class action for unaccompanied alien children, UACS, they're called. And for Venezuelans. And it basically reached a settlement in November 2024. All of these class members were entitled to have adjudication of their asylum claims before they could be removed. And then it turned out that this guy Christian was removed to Sakat under the Alien Enemies act, and she issued an order to facilitate his return. The government at first sort of jerked her around and then said, no, we're working on it, we're almost there, we're almost there. And then all of the Sakat prisoners were sent to Venezuela and he hasn't been heard from since. And then by November, no, by February last month, it developed that there were eight more confirmed cases of class members who had been removed. And she set this hearing. And then yesterday, apparently according to tpm and frankly I haven't seen many other press reports, so I have nothing against tpm, but I, I, I just would, I, I, I'm relying on them solely on this. A USCIS person was testifying and shocked the room, at least the, the petitioners and the judge, certainly the judge when she hear she said that there were really in the low hundreds of people and so more than 100 people. So, so we're going to see earlier back in November, she did deny a criminal contempt request partly because Rubio wasn't a party and it got too complicated blaming DHS for what state was doing. But we'll have to see what comes out of this.
- [85:38]
A
All right, finally, let's talk about some cases involving federal funding which we have not not been dealing much with recently because they've been percolating along. Eric, we have a major First Circuit opinion affirming the preliminary injunction issued by I believe Judge Burroughs could be wrong about that, against the federal funding freeze from the beginning of the Trump administration. How big a deal is this?
- [86:17]
F
It's not entirely clear how big it is. I don't think it's huge because this was decided the district court decision was from early 2025 and the first circuit at the time denied a motion for a stay pending appeal by the government. And I believe the government then did not seek Supreme Court review. So it may by this at this point be water under the bridge. But it's not entirely clear to me. I mean as you said, OMB issued a memo freezing a wide range of grants in the early days of the Trump administration and that might grants that might implicate certain of the executive orders that were issued in the first week flurry A bunch of states sued OMB rescinded the memo, but apparently kept withholding a lot of the money and a preliminary injunction was issued. And this the, the case was filed in April, the appeal was filed in April and we are in March now. So the First Circuit really took their sweet time.
- [87:25]
E
The
- [87:28]
F
government argued that these things were committed, these issues are committed to agency discretion by law under the Administrative Procedure act, citing a case Supreme Court case called Lincoln v. Vigil the First Circuit distinguished that case and said no, that just applies when there is an open ended statute that requires the distribution of funds without recipients already being predetermined. Here, however, the agency had already obligated the funds had already designated who they'd be going to and they can't withdraw that without providing a reasoned explanation under the APA and the the district court had ruled that it was the decision of the of OMB was both arbitrary and capricious and not in accordance with law. Both are two no no's under the apa. The First Circuit found it was arbitrary and capricious and therefore did not reach the accordance with law issue. And the First Circuit concluded the government failed to show that it made any reasoned assessments about the impacts of their actions and failed to consider any reliance interest that the states had in receiving the funds that had already been obligated to them. However, though there was an intervening decision in April in the state on the Supreme Court shadow docket where in a different state challenge to grant terminations, the Supreme Court said that the Administrative Procedure Act's waiver of sovereign immunity does not extend to orders to enforce a contractual obligation to pay money. And so for that you need to use what's called the Tucker act and do that in the court in a separate specialized court called the the federal Court of Claims in order to get your money back which is somewhat more annoying and because a separate process and I don't know and the opinion did not really say how you know to what extent this money has already gone out the door because there was no stay at the district court's opinion or whether there was there is in fact separate court of claims proceedings going on. But it definitely had to apply the intervening sort of Supreme Court case law.
- [89:54]
A
All right, all right. Two more cases. We have a district court order blocking the administration from taking $600 million in public health funds from blue states. What's that about?
- [90:09]
F
That gets back to a directive. It's a little bit similar to the other case involves OMB kind of sort of telling agencies not to do certain things and the agencies being a little bit squirrely in terms of what in fact is or is not going out the door. These states there is a in various orders by there was an executive order by the President in January saying that the federal government would not make any payments to quote states having sanctuary cities. And it's and there was a separate list in earlier 2025 that included various states as states that have that have sanctuary jurisdictions within them, including the four Plaintiff states here, Illinois, California, Colorado and Minnesota. However, it was never matched up and there was never like a specific order saying these four states are not going to receive money from certain agencies. And the agencies at issue in this case are HHS and Department of Transportation and also dhs. But the states put together a record indicating that they were in fact not getting money from these agencies and that there the judge determined that there is a reasonable inference that OMB directed HHS to cut the funding because plaintiffs were on these plaintiff states, were on a list of states with sanctuary jurisdictions. The, the, the order basically tells them to stop doing it, but it is not grant that give them their money back. And because of the aforementioned Supreme Court case that I mentioned in the, in the. Or in the earlier case. So the states to get their money back, need to go to the Court of Claims.
- [92:28]
E
You're muted, Ben.
- [92:30]
A
Sorry. Very quickly, as we have to wrap up, we have a district court order, last but not least, granting a preliminary injunction to Colorado in a challenge to USDA over a SNAP funding that appears to be a retaliation for Governor Polis not pardoning Tina Peters, the election conspiracy theorist who is serving time in Colorado. What happened?
- [93:07]
F
So, on December 11, Trump announced that he had pardoned Tina Peters for convictions of state crimes relating to efforts to breach Colorado voting machines and election data. Now, that is not a thing. Trump cannot pardon anyone for state crimes, but it's his way of, you know, pleasing people in some strange way. Form and attempts put pressure on Governor Polis, who he later called weak and pathetic, for not releasing Tina Peters, who was a big cause celeb on the right. And then Rob Ledictu just a few days later, a letter shows up to the governor saying that you're being required to participate in this pilot program with regard to snap. You've got to recertify the eligibility of all snap households in five of your most populous counties within 30 days of the receipt of the letter. And this is something that they usually do on a rolling biannual basis. And the letter basically mandated them to complete roughly half a year's work in one month. And the letter said, oh, by the way, if you don't do this, then, you know, there'll be consequences, there'll be financial sanctions and may also affect your continued participation in snap. Colorado sued. The judge said this, this is just quoting the. The plaintiff, the district court judge said that this project is, quote, unlawful many times over and just came up with, I think, four different ways in which it is unlawful. First, it is not authorized by the the federal, I believe it's called the Food, the fna, the Food Nutrition Act. It flouted various due process requirements. It was arbitrary and capricious. And finally, it violated the spending clause by imposing an unconstitutional condition on the receipt of federal funds.
- [95:16]
A
All right, we are going to leave it there unless Roger has an answer to the one question in our Q and A queue, which reads for Roger Rodriguez v. Porter, the Idaho Horse Fair bulk apprehension case. Seems like that has stalled. I don't see any scheduled next steps. Probably can't be answered today. So can it be answered today or are we going to put this on the list for next week?
- [95:48]
E
I think it can be answered. It was filed last month and it's a damages case. It's not a preliminary injunction. You're not seeking a TRO or a preliminary injunction. So the government gets 60 days to respond. I think that's the number normally. So I think it's just the normal pace. I mean, this event occurred last October. So. And with money you can always, you know, if you let it sit for a while, well, you're supposed to get prejudgment interest. And so it's not irreparable. So they go sort of slowly. I think it's still on track.
- [96:34]
A
All right, we are going to leave it there, folks. Thanks this week to Kate Clonick, Anna Bauer, Eric Columbus, Molly Roberts and Roger Parloff. Thanks as always to the most estimable Anna Bauer, Anna Hickey. I can't, you know, I just say Anna and Bauer comes out after it. Thanks as always to the most estimable Anna Hickey, who makes all this happen as our audio engineer and video engineer. We're going to be back next week. The trials will keep trialing, the tribulations will keep tribulating, and we will be back to talk about it. Thanks for listening. This podcast is part of Lawfare's live stream series, Lawfare 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 access to 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 an Hickey of Lawfare. Our theme music is from Alibi Music. As always, thanks for listening. Over 90 of the top 100 US accounting firms trust Bill to handle bill pay processes. Why? Because our tools are built on over a trillion dollars of secure payments. We're not just moving money, we're powering financial workflows for half a million customers. That's a level of expertise you just can't fake. Ready to talk with an expert? Visit bill.comproven to get started and grab a $250 gift card as a thank you. Terms and conditions apply. See Offer page for details.