The Lawfare Podcast: Lawfare Daily – The Trials of the Trump Administration (March 21, 2025)

Release Date: March 24, 2025

Overview

In this episode of Lawfare Daily, hosts Benjamin Wittes, Anna Bauer, Quinta Jurecik, and Roger Parloff delve into the multifaceted legal challenges faced by the Trump administration. The discussion centers on the invocation of the Alien Enemies Act, executive orders targeting prominent law firms, and the controversial actions of the Doge organization against the United States Institute of Peace (USIP). The panel provides in-depth analysis of ongoing litigation, judicial responses, and the broader implications for national security law and executive power.

1. Litigation Over the Alien Enemies Act

a. The JGG Case and Judge Boasberg’s Involvement

The episode begins with Benjamin Wittes introducing the central topic: the litigation surrounding President Trump's invocation of the Alien Enemies Act (AEA). The panel focuses on the JGG case, where the administration sought to expel individuals deemed part of the criminal gang "Trenda Aragua," portrayed as being directed by the Venezuelan government.

• Hearing Developments:

  Roger Parloff outlines the sequence of hearings in Judge Boasberg’s court. Notably, a Temporary Restraining Order (TRO) was granted prematurely, even before the public proclamation of the AEA was released. Opposition lawyers from the ACLU and Democracy Forward anticipated this move and filed suit accordingly.

  “The hearing ends and it develops that, as you've heard, the planes weren't turned around, so there is an important compliance issue.”
  — [01:38] Roger Parloff

• Compliance Issues:

  Quinta Jurecik highlights Judge Boasberg's concerns regarding the administration's compliance with the court’s orders to turn around planes carrying individuals targeted under the AEA.

  “I tell all of my clerks that the most important thing that you can have is your reputation and you should be very careful about where that stands right now.”
  — [02:18] Quinta Jurecik

b. Judicial Scrutiny and Justiciability

The panel discusses the precedent set by the Supreme Court case Ludicke v. Watkins (1948), which addressed the justiciability of the AEA. While Ludicke deemed certain aspects non-justiciable, it acknowledged that factual determinations—such as whether an individual is indeed an alien enemy—remain within the court's purview.

“The major question is whether the proclamation was illegal is whether he's entitled to say, like, is he entitled to question a finding that this was an incursion by a foreign government, even though it doesn't look like it was?”
— [27:50] Roger Parloff

2. Executive Orders Targeting Law Firms

a. Perkins Coie Case Under Judge Howell

Anna Bauer provides an update on the litigation involving executive orders that target law firms perceived as adversaries by the Trump administration. Specifically, the firm Perkins Coie sought a TRO to block certain provisions of the executive order affecting their ability to obtain security clearances and engage in governmental contracts.

• Judge Howell’s Ruling:

  Judge Howell granted the TRO, enjoining the government from enforcing specific sections of the executive order against Perkins Coie. She further ordered the Department of Justice (DOJ) to notify federal agencies of the suspension.

  “Judge Howell granted a TRO that enjoins the government from implementing certain sections of that order.”
  — [39:53] Anna Bauer

b. Paul Weiss and Executive Order Withdrawal

The discussion shifts to another law firm, Paul Weiss, which was also targeted by a similar executive order. Trump publicly announced the withdrawal of the order after Paul Weiss allegedly agreed to specific terms. However, discrepancies emerged between Trump’s public statements and internal documents obtained by Lawfare.

• Discrepancies in Agreements:

  Anna Bauer reveals that while Trump claimed Paul Weiss agreed to cease diversity, equity, and inclusion (DEI) policies and acknowledged wrongdoing by former attorney Mark Pomerantz, internal communications from Brad Karp, Paul Weiss’s chairman, contradict these claims.

  “The agreements are similar enough that at least in my personal opinion, regardless, no matter which agreement you take to be the truth, there is an element of shame and embarrassment.”
  — [61:05] Quinta Jurecik

• Government’s Defiant Stance:

  Roger Parloff criticizes the DOJ’s response, highlighting a notice signed by high-level officials expressing intent to enforce the executive order despite the TRO.

  “I thought it was defiance. I thought it was really shocking.”
  — [43:28] Roger Parloff

3. Doge Litigation Front and US Institute of Peace (USIP)

a. Administration’s Attack on USIP

The panel examines the efforts of the Doge organization to dismantle USIP through legal and physical means. The administration targeted USIP board members, leading to confrontations and litigation.

• Role of Amy Gleason:

  Anna Bauer discusses declarations by Amy Gleason, who claims to be the acting administrator of Doge. Her dual roles have raised questions about her authority and capacity to oversee Doge’s activities while serving as a consultant for Health and Human Services.

  “It was an interesting hearing because on the one hand, Judge Howell was clearly appalled by the conduct...”
  — [75:15] Anna Bauer

b. Judicial Findings and Ongoing Litigation

Roger Parloff notes that Judge Howell denied a TRO despite acknowledging the appalling conduct, citing legal ambiguities regarding USIP’s status and presidential removal powers.

“She was concerned about some of the ongoing, the questions around the President's powers of removal.”
— [75:15] Anna Bauer

4. Presidential Firings and Humphrey’s Executor

The discussion transitions to broader implications of executive power concerning the removal of federal officials. The panel references historical cases like Myers v. United States (1926) and Humphrey’s Executor v. United States (1935), debating their current applicability.

• Current Judicial Challenges:

  Roger Parloff explains that recent rulings in cases such as Sela Law and Collins v. FHFA have questioned the President’s authority to remove heads of independent agencies without cause, suggesting potential overruling of Humphrey’s Executor.

  “A lot of conservatives want to see Humphrey's executor overturned itself.”
  — [73:01] Roger Parloff

5. Citibank Investigation and Climate United Fund

a. Climate United Fund vs. Citibank

Roger Parloff outlines a civil case where the Climate United Fund seeks the return of funds frozen by Citibank, which manages government contracts for green energy projects under the Inflation Reduction Act.

“Citibank is the financial agent that the government uses in all these contracts. So she did issue a TRO.”
— [86:33] Roger Parloff

b. AFSCME vs. Social Security Administration

The panel briefly touches on a case involving AFSCME employees and the Social Security Administration, highlighting the administration's ongoing efforts to influence federal agencies.

6. Audience Questions

The episode concludes with responses to audience inquiries:

1. Elon Musk’s Advisor Status and Accountability:

   Benjamin Wittes clarifies that while advisors can offer counsel, they do not shield individuals like Elon Musk from the consequences of their advice, especially if they overstep into executive powers.

   “If you do it as a habeas corpus, you need to bring it in Texas...”
   — [17:59] Benjamin Wittes

2. Government Lawyers’ Conduct:

   Wittes defends the integrity of DOJ career lawyers, suggesting they adhere to their oaths despite the administration’s provocative legal maneuvers.

   “I think you're going to see judges start responding to that.”
   — [94:43] Benjamin Wittes

7. Conclusion

The episode wraps up with closing remarks, underscoring the severity of the Trump administration’s legal challenges and their potential long-term impact on executive power and national security law.

“They will push as far as they can possibly push and make you look like a fool.”
— [37:28] Quinta Jurecik

Notable Quotes with Timestamps:

• “The hearing ends and it develops that, as you've heard, the planes weren't turned around, so there is an important compliance issue.”
  — [01:38] Roger Parloff

• “I tell all of my clerks that the most important thing that you can have is your reputation and you should be very careful about where that stands right now.”
  — [02:18] Quinta Jurecik

• “If you do it as a habeas corpus, you need to bring it in Texas...”
  — [17:59] Benjamin Wittes

• “I thought it was defiance. I thought it was really shocking.”
  — [43:28] Roger Parloff

• “They will push as far as they can possibly push and make you look like a fool.”
  — [37:28] Quinta Jurecik

Conclusion

This episode provides a comprehensive examination of the Trump administration's legal strategies concerning national security and its aggressive stance against perceived adversaries, including legal institutions and law firms. The panel underscores the ongoing tension between executive authority and judicial oversight, highlighting significant legal battles that may shape the future of American governance and the rule of law.

For more insights and updates on national security law, visit www.lawfareblog.com.