Lawfare Daily: The Trials of the Trump Administration, March 21

Summary

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

Release Date: March 24, 2025

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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.

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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

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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

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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

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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

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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.

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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

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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

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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

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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.

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

Transcript

[Benjamin Wittes]

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[Roger Parloff]

The hearing ends and it develops that as you've heard, the planes weren't turned around, so there is an important compliance issue.

[Benjamin Wittes]

It's the LawFair podcast. I'm Benjamin Wittes, editor in chief of Lawfare, with Lawfare senior editors Anna Bauer, Quinta Jurassic and Roger Parloff. In a live recording on March 21, we discussed litigation over President Trump's invocation of the Alien Enemies act, executive orders targeting law firms including Perkins Coie and Doge's actions targeting the US Institute of Peace.

[Quinta Jurecik]

It was something along the lines of, you know, 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.

[Benjamin Wittes]

Hey folks, welcome to this week's trials and tribulations of the Trump administration. I am here in beautiful sunny Phoenix, Arizona, sitting outside. If you have a little bit of background noise, that's the reason. And I'm here with Roger Parloff, who is somewhere in the vicinity of the U.S. federal court Quinta Jurassic joining from the Ansel Adams studio and Anna Bauer joining from a hitherto unknown room in her palatial mansion. Anna, what room are you joining us from?

[Anna Bauer]

This is the I just spent 18 hours on an Amtrak train room, which.

[Benjamin Wittes]

Is blurry from lack of speed sleep.

[Quinta Jurecik]

Right.

[Anna Bauer]

Exactly.

[Benjamin Wittes]

All right, well, we've got a lot to get started on, so let's jump in and do it. There was a hearing this morning in the JGG case, which, you know, I don't remember what it stands for, but I'm sure one of you does. So, Roger, get us started. What happened in Judge Boasberg's court today and where are we now in the. In the JGG litigation?

[Roger Parloff]

Yeah, it was actually more lively than I expected today. But where we are is on Saturday, the ACLU and Democracy Forward lawyers learned that this Alien Enemies act proclamation was coming up and. And their clients had been already moved to Texas. And they actually brought suit before the proclamation came out, anticipating that this proclamation would come out, that would. In which. And maybe Quinta can describe it more later, but in which, basically they tried to depict the Trend Aragua. Well, they do depict the. The proclamation says that Trenda Aragua, which is a criminal gang, is the equivalent of Venezuela. The Alien Enemies act is a provision that says whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion by any foreign nation or government, and the president makes a proclamation, he has these extraordinary powers to expel the alien people. And so the theory is that Trenda Aragua, this criminal gang, is being directed by the Venezuelan government, that it's a wing of the Venezuelan government and that it counts as a foreign government. And in any case, it doesn't matter because the theory is that once the government, the president, finds these things, it's unreviewable anyway. So anyway, they brought this emergency tro. Saturday, there was a emerge, and he granted it even before the. Because he. The people were about to be shipped out of the country. And so he granted a TRO without the proclamation even having been public yet. The proclamation became public at 3, sometime after 3pm and then a hearing was held on the 15th, and that's the one at which Judge Boasberg was very concerned about the people. The ACLU lawyers were kept emphasizing that the planes have either left already or they're about to leave you. You need to move quickly. They had an adjournment to. So the government could find out if that was true. They came back, the government said, I'm not. I can't. They won't Tell me if it's true. It's national security stuff. And, and then, and then he made an order to the oral order, you see if I can find it. I can't. But he, he ordered that basically the planes be turned around. And if they were, if they had left. And it's a pretty, it's a, it's a very clear order. Anyway, the hearing ends and it develops that, as you've heard, the planes weren't turned around and they. So there is an important compliance issue. Judge Boasberg has avoided the word contempt. He did slip into it once at a hearing Monday, but it speaks in terms of compliance. And so there was another hearing on that on the 17th, that was Monday. He did grill the lawyers, but he could not get more information from them about the precise flight details. That's still being litigated. But. So today was supposed to be a motion to vacate that injunction and also a class certification because the first TRO just kept the five individuals in the US and then his cert, he certified the class, meaning you can't send any of these people that fall within the definition of the proclamation abroad. And that's what. What happened. Anyway, so both of those were instantly appealed, and so those are at the D.C. circuit. And there's going to be an argument on a stay on Monday. So this is proceeding on many levels. So. And hang out, hang on.

[Benjamin Wittes]

What's before Judge Boasberg today is whether to dissolve the TRO and whether to issue a preliminary injunction or.

[Roger Parloff]

No, no, no, just to dissolve it on the theory, you know, it was such a slapdash thing Saturday. It was so rushed. He wanted to. The government hadn't submitted anything. So he wanted to give them an opportunity to develop their arguments about mainly, this isn't justiciable. This needs to be done as a habeas corpus. And if you do it as a habeas corpus, you need to bring it in Texas because that's where most of the defendants are confined, and none of them were confined in D.C. so those were the key issues today. But he did end up grilling the lawyers on the compliance issue. And maybe I should let Quinta talk about it some so she can, she can weigh in.

[Benjamin Wittes]

All right, so, Quinta, what was. Where did we get to on the compliance question? And for that matter, what answer does the ACLU give to the question of what this case is doing in Washington.

[Quinta Jurecik]

On the compliance issue? Judge Bloisberg came out of the gate pretty hot, I think it's fair to say, basically putting Drew Ensign, who's the Justice Department lawyer, I believe is a political appointee. I'm not completely sure. Okay, thank you, Roger. On the spot. And saying. Asking him, what exactly did you understand was happening when you told me during that Saturday hearing that you understood my order to turn the planes around and really grilled Ensign, who kind of wriggled his way out of these issues. But I think the overall takeaway is that he was saying he was essentially not in command of all of the facts when he was making those comments. And Boasberg closed that section of the hearing by saying, I think it was something along the lines of, 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. After which there was a long silence on the line. Roger, I don't know what the. What the energy was like in the courtroom.

[Roger Parloff]

Yeah, that was a. He came out much hotter than even Saturday. I mean, Monday, right after the Defiance. And. And the thing that I think was pissing him off was that the Saturday hearing and Drew Anson appeared, then they defied his order. And then on Monday, Drew Ensign doesn't appear. It's. It's a. It's two new lawyers. One is Abhishek, who's also a political appointee, or at least he's only been there for two months. And the other was in the background. He's just. He was a career guy, but. And I think that he thought they were dodging. They didn't want to have Drew there because Anson. Because it would be. He would have to admit that he understand, stood perfectly well that this was an order. He was to turn it around. So, Mr. Anson, the first point is that you shall inform your clients of this immediately and that any plane containing these folks that is going to take off or is in the air needs to be returned to the United States. But those people need to be returned to the United States twice, he said, however that's accomplished, whether turning around a plane or not embarking. Anyone on the plane or those people covered by this on the plane, I leave to you, but this is something you need to make sure with. Is complied with immediately.

[Benjamin Wittes]

So, Quinta, how did he explain himself today?

[Quinta Jurecik]

So, like I said, he really essentially said, oh, well, I wasn't aware of the specifics about where the planes were. There was some wiggling out from under the microscope. I think it's fair to say. I would need to go back and once there's a transcript, look at the specific wording to get a sense of how specifically DOJ is going to play it here because they're definitely being very, very careful about specifically what they're acknowledging and not acknowledging. I do think it is worth noting that actually at the end of the hearing, league alert for the ACLU said that they would be filing information shortly that actually some individuals who had been on these flights. So there are three flights at issue. Two of them are full of people who have, who are being removed under the Alien Enemies Act. According to doj, the third flight was only people with a final order of removal. So those are not people who are being removed under the Alien Enemies Act. That's under the normal INA process. And so, and the important, if I.

[Roger Parloff]

Can, the important thing about that third flight is that everyone agrees it doesn't leave until after the written order in order to evade this oral order. The government is saying, oh, the oral order doesn't count. It's not till you memorialize it in the written order, minute order that it becomes an injunction. And this third plane leaves after. I'm sorry, Quinta, go ahead.

[Quinta Jurecik]

No, not at all. And so. Right. And the third plane, I think that is not necessarily violation of the court order because DOJ is saying the folks removed on that plan were removed under the ina, not under the aea, which is actually permissible under any iteration of Judge Boasberg's order. But the reason I mention this is that legalearnt for the ACLU said that they would be filing sworn declarations shortly that actually some of the people on some of those planes, I'm not quite sure which iteration of planes were returned to the United States. One of them, I believe he said, because they were not Venezuelan and I think at least one because they were female and apparently the El Salvadorian government would not take them. So they were, I assume because the prison in which they're being incarcerated is a male only prison. So they were put back on the plane and flown back into the United States. The reason that this is important is that as Gelernt points out, it means that the US absolutely had the ability, even if somehow you physically couldn't turn the plane around over the Gulf of Mexico, that you could have just put everybody back on the plane and flown them back into the United States. And that was a choice that the government made not to do that. Especially because the planes landed in El Salvador hours after these orders originally came down because they had a stopover in Honduras. So I think that's important. I want to go back to your question about why Is this case being brought in D.C. back, if I'm remembering.

[Benjamin Wittes]

Just to be clear here, it seems to me that the government is kind of dead to rights on having violated the order. And their stronger argument is going to be you had no authority to issue this order because there's, you know, it should be styled as a habeas case. None of these people are in the District, and you didn't file your habeas case in the Fifth Circuit, which is where all these people were. So, nana, nana, nana, we get to violate your court order because you don't get to issue it. I assume that is their underlying argument.

[Quinta Jurecik]

No, I don't believe they touched on that in this or any other of the hearings. Actually, Roger, I don't know if I was missing anything. There was a lengthy discussion of habeas today in terms of the ability of the individuals in question if somebody is scooped up under the Alien Enemies Act. Boasberg was pointing out there is a lot of case law that indicates that even if we accept that the Alien Enemies act is properly invoked here, if it's not justiciable to consider the invocation that individuals are able to challenge their detention or removal under the act by saying, hey, I'm not a German citizen, a Japanese citizen. I wasn't born there, or in this case, I'm not a member of Trende Aragua. That is the key issue here. There was a lengthy discussion of what the proper way to bring these challenges is. DOJ was saying it has to be habeas, which limits you, as you say. The ACLU was arguing that because the INA actually comes later, that you can permissibly challenge it through the usual INA process, which I think is the grounds for why they're framing this in part as an APA lawsuit, because the administration sort of skipped around the normal INA procedures, is my understanding again. So, yeah, please.

[Anna Bauer]

Oh, I was just going to jump in and ask a quick question, too, because I wasn't able to listen to. I was able to listen to some of the hearing, but not all of it today. And I'm curious, as someone who is not an immigration law expert, even if individuals on Plane three, which it's undisputed, Plane three took off after the written order that Judge Boasberg entered during the TRO hearing. Like, I think it's undisputed that there were people who were Venezuelan who the government is saying were subject to a final order of removal, but they were deported to El Salvador. El Salvador, Right. Or to Honduras. I can't recall which. And so the, like, you know, if someone is subject to a final order of removal, are they not typically deported to their country of nationality? Or.

[Roger Parloff]

What is the was saying? You know, when, when they were explaining the DOJ submitted an affidavit about the third plane and they said, oh, for all these people, we had final orders under Title eight. So that sounded kosher. You know, it sounded like they'd gotten all their due process. But he was saying, well, the final order has to designate a country. And he's, it's extremely implausible that it designated El Salvador. And so that sort of threw a new wrinkle in. And it sounded like, we'll get an affidavit later tonight or tomorrow raising these other issues. I'm sorry, Quinta, did you have more to say there?

[Quinta Jurecik]

I was just going to add my understanding is that sometimes people are actually deported to third countries. But as you say, Roger, I have no idea if that is the case here.

[Roger Parloff]

So I'm sorry, go ahead.

[Benjamin Wittes]

I'm still confused about what, what the case is doing in Washington. Roger. I, you know, it's initially has a habeas component, but the habeas component drops out, and Boseberg is now being asked to, to dissolve the tro. What is the government's argument that he should dissolve the tro?

[Roger Parloff]

Well, there's a couple. One is, one has to do with justiciability, and the other has to do with venue, I would say. And maybe there's two different kinds of just disability, but the venue relates to. They, they'll say, they kept saying habeas. Habeas, habeas. This sounds. In habeas, you can call it what you want, but once they're wrong about that. Yeah, I think they had, the government had a good, I mean, the plaintiffs had a good response to that, which is nobody's asking to be released, which is usually what, you know, is the gist of habeas. They say, yeah, we're detained, fine. We don't want to be removed. And we particularly don't want to be removed to a prison in El Salvador where we'll, we'll, we may be tortured. And so it's not. And, and so the, it's under, you know, there also, there are claims under the apa, the Administrative Procedure Act. There are claims under the ina, the Immigration and I think Naturalization act, because they're saying you didn't follow ordinary procedures. And we had asylum claims pending. There's a claim under fara. I think it's the Foreign Affairs Reform and Reconstruction Act. Something like that which says you can't be deported to a country where you're going to be tortured. So there are these federal claims that under, you know, conventional federal question jurisdiction and then there is a venue provision that's based on the defendant that lets you sue in D.C. that's the theory for D.C. jurisdiction as I understand it.

[Benjamin Wittes]

Gotcha. Okay.

[Roger Parloff]

Can I say one other thing that was really interesting? Sure. He's really, when this, when he, when he finally delivers, if he's allowed to deliver his ruling on compliance as, as we're calling it, it's going to be a doozy. And, and he's any vowed, he said, you know, the government's not making it easy, but I, I will get to the bottom of what they knew and who made this decision. And, and one of the things he was pointing out was that the, and this is consistent with what the plaintiffs saw is that the proclamation is dated the 14th. He signs it secretly on the 14th, that's a Friday. And what, what, what, what the attorney saw was their clients, beginning around March 9, they all began to be suddenly moving to the El Valley Detention center in Texas and missing and being prevented from attending conventional asylum proceedings or other types of immigration proceedings that they were scheduled for. And then secretly. And of course the, the Alien Enemies act says there has to be a public proclamation, but secretly, this is signed on the 14th and then it sort of leaks out. I guess we don't really know how the attorneys bring suit before there is a proclamation. And, and, and so Judge Boisberg is asking, well, if you thought this was legal, why are you doing it in the dead of night? You know, what's all this about? I mean you, you were what, you, you know, if the suit hadn't been filed, you, you'd have had the planes, they'd been out of the country before you even revealed the proclamation.

[Quinta Jurecik]

And that how are they supposed to vindicate their, their habeas claims at that point?

[Roger Parloff]

Yeah, and, and of course the, the big question, the big thing you keep coming back to, you know, Boasberg agrees there has to be some, it's clear that some things are non justiciable. There is a Supreme Court case called Ludicke vs. Watkins that says certain things are not justiciable. It's an unusual case, Alien Enemies act case, but it also says in a footnote that certain things are justiciable. And so that's one of the tough questions. I think he, he finds it tougher than, than the question of 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? And then so he's, he's, he thinks it's easier. He clearly thought it was easier to ask the question. And what, what's. There's no question about justiciability. Is there ought to be some mechanism to find out if these guys are even members of TDA Trend Aragua, you know, that much is is clear, is just is justiciable. And it sounded like he was a little shy about saying the whole proclamation is, is invalid.

[Benjamin Wittes]

But anyway, so before him now is what the question of whether to dissolve the TRO or the question of whether to extend the tro.

[Roger Parloff]

What it's to, it's to dissolve it. I mean, that's the motion pending. He's going to extend it. He. There's another twist, which is that, you know, as soon he, as he entered the original TRO for which was before there even was a proclamation and before the hearing and before there were any papers filed by the defendant, it was appealed. And so there's a question of what can he do? Can he fiddle with it now? Can he moderate, modify it? And then there was a second order where he certified the class, and that's also being appealed. And so it sort of limits. Exactly. The Galernt, the plaintiff's lawyer thought maybe you better just leave it see what the D.C. circuit does and then you can fiddle with it. He wanted to begin narrowing it already, but he was looking for a mechanism for some sort of individualized review. And it's really worth. I'm sorry if I don't want to go on and on, but it might be worth talking about the Supreme Court case that we're all working with, which is this 1948 case, Ludeke versus, as.

[Benjamin Wittes]

I know well, lives in, in Nazi history, rather. Rather interestingly and in in detention. The history of detention cases.

[Roger Parloff]

Go ahead.

[Benjamin Wittes]

So before we talk about Ludici Though, let's talk about what's before the D.C. circuit because Boseberg may never get a chance to rule on any of this. Right.

[Roger Parloff]

Yeah. So these are those, it's those two earliest minute orders. It's not the order to turn the planes around. I mean, I don't think, I don't think they'll be touching on that. I don't it's, it's just the issues of does he have justice? Does he have are these unreviewable orders? I mean, is the proclamation Unreviewable. If it's reviewable, what parts are and shouldn't it be a habeas? And if it's a habeas, you need to dismiss or send it down to Texas where they seem to think they'll have a better shot.

[Benjamin Wittes]

Let's talk briefly about Ludici and then we can move on to completely different subjects. So on its face, the. So let, let's. This is the most recent, I think, alien enemies case that there is. What in your read, does it say about the justiciability of alien enemies cases?

[Roger Parloff]

So it was, it was a 5, 4 ruling. This was a, there was no question he was a German national. And it was declared war. It was World War II, and he was arrested in 1941. And then he actually went before they had a board, an alien enemies something board that would verify that you were, you know, an alien enemy subject to, to this statute. And then they were trying to remove him beginning in 1946. So the issue became, well, wait a minute, the hostilities have ended. Can you still use this Alien Enemies act thing, which is about a declared war at this point? And both Congress and the President were saying the war wasn't over for these purposes. And Justice Frankfurter for the majority said that you really couldn't, that this was not justiciable. The, the President's determination that the war was still going. He said the very nature of the President's power to order the removal of all enemy aliens rejects the notion that courts may pass judgment upon the exercise of his discretion. But then in footnote 17, it makes clear that the additional question as to whether the person restrained is in fact an alien enemy 14 years of age or older may also be reviewed by the courts. And there's a ton of research. Steve Laudock has done some, both on his substack, but also in a law review article which Judge Boasberg said he'd read where it show in almost every case there are these preconditions to, for the statute to apply that are justiciable.

[Benjamin Wittes]

So yeah, I gotta say, the justiciability question in Ludici, at least as I remember it, I think of Ludicche as a detention case. Right. Because he's held this whole time. And the, what the court held to be non justiciable was whether the war was over.

[Roger Parloff]

Yeah.

[Benjamin Wittes]

And the war, you know, what it said is that that's an essentially political question in character. And both Congress and the executive say the war is not over. By the way, there was no peace treaty resolving the world war until I think 52 or 53. And so if you're held as an alien enemy until the end of hostilities, and the President and Congress both say that there are still hostilities, don't come to us for relief from that. But the question of whether he was an alien enemy, I think that's a fact question. And you know, in this situation, the essential factual predicates of the basis for the detention in the first place or the are simply false. There is no war between or invasion by the country of Venezuela against. And I find it hard to believe that that that question would be non justiciable.

[Anna Bauer]

Yeah. And so that's one question that I have for Roger is like, did this case go to the question of. Because I think that the question of whether there's the question of whether someone is an alien enemy in the. And then there's the question because is Trinity Aragua a foreign government as that term is used? And so I think that that's one of the big questions is the way that they've tried to describe Trinidad as being so closely connected to the regime in Venezuela, but then at the same time tried to say that it has some kind of de facto control over certain areas and so therefore it is foreign government. I mean, to what extent has the case law, to what extent does the case law speak to that question about what constitutes a foreign government under the alienation?

[Benjamin Wittes]

Ludicrous doesn't speak to that at all because there's no doubt that Ludicke was a German national and that the US Was at war with Germany. And so I don't know if there may be other case law that speaks to that, but certainly not Ludici v. Watkins.

[Quinta Jurecik]

I don't believe there is, because. So the Alien Enemies act has only been invoked three times. War of 1812, World War I, World War II, all of those were declared wars. And the individuals in question, the question was, are you a citizen or a native? I can't remember the precise language of the countries with which we are at war. It has never been invoked against a non state actor or a hybrid criminal state or whatever the ridiculous language they use in the executive order is. So we've never had to address these problems because nobody has ever tried to use it in this way. And it's very odd. It's sort of like the Trump administration found this statute that has a very broad grant of authority to the executive under certain circumstances. We're not in those circumstances, but they're really trying to kind of force square peg into a round hole here. So that they can then use that authority.

[Roger Parloff]

There, there are cases that not in the context of the Alien Enemies act that do try to define what's a foreign government. And, and so there's some reliance on those. But the plaintiff's lawyers so far at least have not, you know, they've not submitted expert declarations from historians or, or, or I don't know what you would be a foreign affairs expert to, to take issue with the specific findings of the proclamation, which frankly are, you know, assert facts that I have no idea. They, maybe they're right. I, I, I, you know, and so, and I, I think that Boasberg also wonders, well, what exactly what is, how are we going, you know, do I take judicial notice that this is false and, or do I invite experts to talk about whether, you know, second guess the findings in this proclamation? And I think what he's finding is a lot easier is to say, let's just, there has to be some individualized way of proving that they're not, that they are or aren't Trend Aragua. And Galler does want a broader ruling because he thinks otherwise this will be a catastrophic precedent. You can't give a president this sort of power to designate any gang as deportable under the alien criminal gang. So I don't know if Judge Boasberg is going to go there. I don't think it's easy.

[Benjamin Wittes]

All right, let us pivot to, not to Asia, but to law firms and specifically to a different judge who the administration is attacking, Judge Beryl Howell. So Quinta, get us started here. Hearing before Judge Howell involving the Perkins Cooey case. What happened?

[Quinta Jurecik]

I did not listen to that hearing, unfortunately. So I think that that question might be better directed to Anna or Roger.

[Anna Bauer]

I did listen, so, so I did listen to that hearing. We actually spoke about it last week, so I think we can kind of skip the details. And listeners who are interested in what happened to that at that hearing on the TRO related to Perkins Coey can, can listen to last week's episode. But Judge Howell, granted, the TRO that was sought by Perkins Coey with respect to one of several executive orders that target specific law firms that have either represented the interest of or employed people who Trump perceives to be his enemies. So the other firms, Covington and Is it Covington and Burling or Covington and Burlington? I can't. Covington and Burling, I think. Yeah. Thank you. And then Paul Weiss and then Perkins Coie. Perkins Coey is one of the firms that decided to fight this executive order that relates to its ability to. For its attorneys to get security clearance to certain contractual relationship with gut between, you know, what government contractors have to disclose to the federal government about potential relationships it might have with the law firm, the ability of its attorneys to get into federal buildings. Ultimately, Judge Howell, as we discussed, granted a TRO that enjoins the government from implementing certain sections of that order. One of the sections of the order that was not enjoined relates to security clearance. But I think that one of the more interesting developments that's happened over the past week in this case is that when Judge Howell entered this tro, she ordered the government to then send a notice to all federal agencies in which they inform them that, you know, the certain portions of the executive order are suspended. As to Perkins Coie. And then we had this really interesting moment in a filing on the docket in which the government ultimately filed the notice that ended up being sent from DOJ out to all of the federal agencies. And it essentially said, you know, pursuant to this court order, we are ordered to inform you X, Y and Z about what the court ordered. And then however they say in a separate paragraph. And Roger, please jump in if I'm butchering the paraphrase that I'm about to say, but something to the effect of we think the judge's ruling was erroneous and that this executive order is permissible, and we reserve the right to take all necessary and legal actions to enforce this executive order to combat the risks posed by Perkins Coie. And so a really defiant notice.

[Roger Parloff]

Dishonest and dangerous conduct of Perkins Coie. Yeah.

[Unknown]

Yeah.

[Roger Parloff]

I'm sorry. Yeah.

[Anna Bauer]

Yeah. I mean, what did you make of.

[Benjamin Wittes]

Somebody who's, you know, thought a lot about dangers to the United States and national security threats? That executive order was the first time I'd ever thought of a domestic law firm as a. You know, it's like they talk about Perkins Coie like it's the firm in the John Grisham novel or something.

[Anna Bauer]

Yeah. And so, like Roger, what did you make of that notice? Because I think that in. With respect to the Perkins Coie case, that was probably one of the big things that happened this week that was quite. In addition to all these other patterns of the government flirting with contempt of court and defiance of judicial orders, this seemed to be yet another escalation to that effect.

[Roger Parloff]

Yeah, I thought it was defiance. I thought it was shocking. It because. Reinforces the threat to. It says, basically, he's saying, yeah, we lost the tro, but we may enforce it anyway. And so that means you better not do any work with Perkins Coie or we're going to come down on you. So that to me is defiance. I was surprised it didn't get a little more attention. I I thought it was really shocking. Also, the the the two names on it are Pam. It's a memo, so but the two names on it are Pam Bondi and Russ Vogt. And the notice that presented it to Barrel Howell was signed by Chad Meisel, the chief of staff of Pam Bondi. So this is straight from the Attorney General.

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[Roger Parloff]

In really defiance, you can.

[Benjamin Wittes]

You can do business with TikTok notwithstanding a statute that says you can't. But you can't do business with Perkins Coie even if a federal court says you can.

[Roger Parloff]

Yeah.

[Benjamin Wittes]

All right.

[Anna Bauer]

And it really painted a contrast to what played out the same week with a very similar executive order that targeted a different law firm called Paul Weiss. And so maybe we should talk a little bit about how that played out.

[Benjamin Wittes]

Yeah. So we're going to talk about Paul Weiss in just a second. But before we do, there was a different motion I think was just filed in this case that sought the disqualification of Beryl Howell as judge in it. What do we. And this of course, follows a similar one about James Boasberg. Again, Quinta, I don't think there were any career officials on the the brief. Is that right?

[Quinta Jurecik]

That is correct. I cannot find the actual PDF. Apologies, but it is. I believe it's Chad Mazel and someone else who is also a political appointee. I also think it's worth noting that the first sentence of this motion to disqualify says, well, it's terribly written, but I'll just read you a snippet of it. They're concerned about fair proceedings, free from any suggestion of impartiality. And these are suggested, essential to the integrity of our country's judiciary. We do not want our judges to be impartial.

[Benjamin Wittes]

Yes. Any hint of impartiality, we gotta banish that. That's going to be like a new slogan at Lawfare. All right, excuse me. Let's talk about Paul Weiss, famed Democratic law firm. You know, of the. Of the. You don't want to meet them in a dark alley. School folded like a cheap suit in front of the Trump administration. And to all my friends who work at Paul Weiss, sorry, but we just gotta call that one like we see it. Quinta, what happened?

[Quinta Jurecik]

So there had been another executive order, kind of along the lines of the Perkins Coie order. It seemed like the real sort of beef between Trump and Paul Weiss was that the firm, like, over a decade ago, used to employ Mark Pomerantz, who of course, went on to work in the NYDA's office investigating Trump in the case that would eventually turn into the New York prosecution. Of course, the fact that it's a Democratic, you know, known as a Democratic law firm, I'm sure didn't help matters. But. So there had been this order. Paul Weiss had not filed suit against it as Perkins Coie had. And then last night, there was a truth posted by Trump saying that he had agreed to withdraw the order after the firm had entered into an agreement with him. And according to Trump, the terms of the agreement were that Paul Weiss agrees the bedrock principle of American justice is that it must be fair and nonpartisan. It affirms its unwavering commitment to these core ideals and principles, and that it wouldn't deny representation to correct clients because of the personal political views of individual lawyers. It would take on a range of pro bono matters across the political spectrum, and that it would not adopt, use, or pursue any DEI policies. Remember that. That it would essentially give Trump a 40 million in kind donation by providing him with that amount of money's worth and pro bono legal services. And also that they had acknowledged the wrongdoing of Mark Pomerantz. So this came out yesterday evening, I think, over the course of yesterday evening and this morning, in part thanks to reporting by One, Anna Bauer, who I will pass this off to. It turns out that Paul Weiss actually agreed to a different set of commitments. And the DEI issue and the Pomerant's, excuse me, apology were, surprise, surprise, actually not in the agreement that Paul Weiss says that it reached with the White House. So before I pass this to Anna to talk about what she found out, I would just say I think this is an example of how firm. I could see how the firm convinced itself that we're basically not agreeing to anything and we can get these people off our back. Why bother? I think the takeaway is that it may be tempting to think like that, but that's not how this administration thinks. And they will push as far as they can possibly push and make you look like a fool. And I would just point out that typically the way that protection rackets work is once you pay up for the first time, then they know that they can force you to keep paying. And so if I were Paul Weiss, I would be very, very worried about what I've signed myself up for here. And I'm very, very curious how this is going to affect the firm's bottom line. So with that, Anna, over to you.

[Anna Bauer]

Yeah, I mean, Quinta, I think that you summed it up nicely in terms of what the email and then attachment that we obtained that is presents a contrast to what Trump on Truth Social put out regarding the agreement with Paul Weiss. The documents that you're referring to are ones that we obtained that are from Brad Karp, the chairman of Paul Weiss, who is the key negotiator here, in terms of negotiating with Trump and the White House regarding some sort of agreement in which Trump in exchange, would rescind the executive order order related to Paul Weiss. And as you mentioned, some of that email and then the attachment that set out the agreement that Brad Karp sent out to all of his employees at Paul Weiss. There were a few things that weren't that Trump's through social statement kind of embellished or exaggerated or just made up whole cloth, including the DI part, the part about that Brad Karp admitted wrongdoing on the part of Mark Pomerantz. But I think you're right. That it does that in itself is perhaps some sort of lesson to firms who consider capitulating to the demands of Trump that, you know, whatever it is that you agree to may not be represented honestly. But I think also it honestly kind of doesn't matter that the details themselves were not entirely consistent in terms of what Paul Weiss agreed to and then how Trump presented it because in my view, this was a shakedown and Paul Weiss caved. And these executive orders, whether it's the one against Perkins Coy or whether it's the one against Paul Weiss, to me, they really do represent an existential threat to the legal industry and to the practice of law. And I honestly am maybe not shocked, but certainly alarmed that a firm with the reputation that Paul Weiss has seemed to find it so easy to just, within the course of a week, go and make some sort of agreement with the White House. And really, if I'm being frank, I find it quite embarrassing. But, yeah, please, if others disagree, then please jump in.

[Benjamin Wittes]

No, I don't think anyone's likely to disagree with you about that. But my question is why, other than the fact that whenever somebody disputes a factual claim that Donald Trump makes in a bilateral interaction, you assume that Trump is lying and the other side is telling the truth, why are we assuming here that Trump is overstating what's in the deal rather than that Paul Weiss is understating what's in the deal by way of minimizing the embarrassment to the firm?

[Roger Parloff]

Well, to begin with, it's inconceivable that there was anything in the deal about Pomerants. I mean, and even. Even the truth social thing was worded. He said Trump read a version of the alleged agreement, which was probably right, except for the thing about dei, but even he didn't claim that Pomeranz was a part of it. Then in a separate thing, he says, and they admitted, you know, that Pomeranz did something wrong. I mean, it was clear that he was adding that it wasn't part of the agreement. And it's just we've still never seen the agreement.

[Benjamin Wittes]

Right. We've seen Trump's characterization of the agreement, and we've seen the way Carr reflected the agreement to his partners and staff. Right.

[Anna Bauer]

But I think the agreements are similar enough that, you know, there are, like the Pomeranz part, the fact that that is something that is a difference. The. I think it's the DEI part is a difference, but they're similar enough that we know there was some sort of agreement and that the 40 million seems to be agreed.

[Quinta Jurecik]

If you look at the email, Anna, that you posted on bluesky, the specific text of the email from Brad Karp says, we want to share with you the final agreement between Paul Weiss and the administration. It is attached, and that's the version that has nothing about Pomeranz or dei.

[Benjamin Wittes]

Okay. All I'm saying is that if we accept, as I do, Anna's characterization of this as embarrassing for Paul Weiss. We should hold out the possibility that it is Paul Weiss, not Trump, that is misstating what's in the deal. I don't assess that possibility as all that great. But when we say Trump's lying about the deal, it's also at least vaguely possible that that Carp is right.

[Quinta Jurecik]

Right.

[Anna Bauer]

But I, but I also just think that I really don't think there is. I but to me, though, I think the bigger point is just that 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.

[Benjamin Wittes]

Yes, absolutely. All right. Quinta has got a drop off. And I have question. Our weekly question for Anna Bauer, which I have composed a little jingle to introduce this week, is the administrator of Doge. Anna, what have we learned this week on the Doge litigation front?

[Anna Bauer]

It's WTOED Watch time, as we now know from last week. That's how we're pronouncing it. We're going with it. So we had two big developments, I would say, and, or actually a few big developments in WITOD Watch this week, one being, and probably formality, we should.

[Roger Parloff]

Give the acronym for late people.

[Anna Bauer]

Who is the administrator of Doge W I T a o d. Last week it was determined officially by me, the official performing the duties of the acting administrator of the WITOED movement, that we are pronouncing it witoed. And every week this is our WITOED Watch segment in which we clarify this question about what have we learned about who is actually in charge of Doge. Of course, there is in the executive order, this role that is formally set out for a Doge administrator. The administration has said that is Amy Gleason. And yet publicly, Trump and Elon Musk continue to say that Musk is in charge of Doge. And this is a big question. And one of the, and actually in all of the Appointments clause cases, there are at least three that are currently being litigated. But one of the cases which is in Maryland that is being presided over by Judge Huang, was we were still waiting on a preliminary injunction order from him about whether or not he was going to grant a request from a group of former USAID employees for a preliminary injunction with respect to Doges activities to dismantle US Aid. And I'm, I'm going to hand it off to Roger in a moment to talk about more about the law and the particulars of that order. But one of the major issues with respect to who the question of who is the administrator of Doge was in this order in which Judge Schwang granted a preliminary injunction, or at least in part, he said, as a matter of one of his factual findings. I find that, at least with respect to the time period that's relevant to this motion, that Elon Musk was performing the duties to some extent of the administrator of Doge. So that was a major moment in witoed watch this week. But then we also had for the first time a number of declarations that were filed by Amy Gleason, who the administration said says is the acting administrator of Doge, which has been somewhat awkward in that if you read any news reporting around Doge and its activities, Amy Gleason is almost never mentioned. And if you've read any of the declarations up until now about who is actually calling shots or who's been involved in meetings, Amy Gleason is almost never mentioned or in fact, I don't think has really ever been mentioned until this time when she has filed declarations finally attesting under oath that she is indeed the acting administrator of Doge. One of the more interesting revelations that came out of some of these filings, though, beyond Amy Gleason attesting to the fact that she is the acting administrator, although she claims she doesn't actually have any real authority or reporting structure over any of the Doge members who are actually working within agencies themselves, we learned that in one of the cases, Amy Gleason not only is serving as the acting administrator of Doge, but on or around March 4, was appointed to serve as an expert slash consultant for Health and Human Services. So you must wonder how it is that she has time to be in charge of this massive effort to dismantle the federal government and then also serve as a consultant. Yeah. And have a part time job. And then finally. Oh, right. And then finally the last thing for what toad watch that it was important. This week the New York Times had a report in which they asked the question, who is running Doge? And one of the answers that they came up with is that Steve Davis, a close ally of Elon Musk, is someone who seems to be overseeing the organization and calling many of the shots.

[Benjamin Wittes]

And I'm going to. I've asked you this before and I'm going to ask you it every week again. Are you secretly the administrator of Doge? This whole, whole thing is just like a ruse to, to hide the fact that you are the puppeteer.

[Anna Bauer]

Ben, as Gossip Girl would Say that's a secret I'll never tell.

[Benjamin Wittes]

All right, all right. We're going to do some rapid fire because we've got a few more cases we got to get through. Roger. Presidential firings. We got some cases still going on.

[Roger Parloff]

Okay. And I'll just say that Judge Chuang did issue the preliminary injunction. He did find that it likely that that the plaintiffs would likely be able to show that Musk is not constitutionally appointed and also that the dismantling of US Aid was a violation of separation of powers. I also want to mention that in another one of these cases against Musk, the one in front of Judge Chutkan, she had ordered discovery to answer some of Anna's questions. She didn't put it that way, but I'm sure that was what, what really she was doing. And it was supposed, she issued it March 12 and we were supposed to get answers April 2. And Doge and the Trump administration is appealing that to the D.C. circuit. That's a mandamus action. So we will probably find out next week if they block the discovery. So Humphrey's executor, we had two cases. The case Wilcox and Kathy Harris, I've forgotten Wilcox's first name. Somebody in the chat will have that. One is with the NLRB and one is with the Merit, Merit System Protection Board. They were both fired. As you know, probably that ostensibly violates Humphrey's executor. So 1935, I'll go back 1926 is Myers versus United States. The the Postmaster General who'd been appointed by the President and the Senate said with Senate confirmation, a principal officer. And the Senate said you, you can only remove him with Senate approval. And the court 1926 said no principal officer. The the president has to be able to remove him. And then 1935 was Humphrey's executor. It had to do with an FTC commissioner. And they said well that's a little different from Myers. It's a multi member board, less executive power, maybe no executive power. We're going to that one. The statute said you can't remove him without cause. And they upheld that. So the question is that is that still good law? Because we had these two cases in 2020, 2021, Sela Law and Collins versus FHFA that involving the single person heads of the Consumer Financial Protection Board which had a lot of executive power and the single person head of FHFA Financial Housing Financial Housing Federal Housing Financial Authority. And they said both of those, the government, they not only said both of those, the President has to be able to remove the officer. But they said, you know what, we're not going to go one by one anymore. This sort of, you know, certainly for single, single heads of offices, the, the government the president has to be able to remove. So a lot of conservatives want to see Humphrey's executor overturned itself. So even, even multiple board members can be removed. In each of these cases, the district courts struck down what Trump did. They said, no, Humphrey's executor is still binding on us at least. And they kept the, these people in their posts. That's now on a stay petition to the D.C. circuit. It's a conservative panel. It's Karen Lacraft Henderson. It's.

[Anna Bauer]

I think Judge Mellet is, is Judge Millet on there?

[Roger Parloff]

Yes. Patricia Millette, who is a liberal. And I'm sorry, the third is Justin Walker, who's a Trump appointee. And, and so and they were the, the argument was Monday and Millette thought Humphrey's executor was still good law. The other two, it sounded like, were prepared to maybe say otherwise and say the, the writing was on the wall and to stay the, the tros or the preliminary injunctions, I guess, and which would mean you could fire those people, would lose their positions while, while we litigated further. We're expecting a ruling obviously that's going to go to the Supreme Court. That's a big deal. By the way, that panel, it's a motions panel. And, and I asked James Pierce about this, who used to be the, you know, key appellate guy at the DOJ. And so apparently in the D.C. circuit for a month, you'll have a motions panel. And this is who it is right now. And they're handling a lot of important cases. They're the ones who are going to handle the JGG stay petition. So and they handled Dellinger, if you remember that he was the single board head of os, single head of osc, Office of Special Counsel. And they did reverse effectively the TRO that Amy Berman Jackson had entered in that case or the preliminary injection. So they're doing a, they're, I can't wait for April because, because they're, they're the motions panel until then. Yeah.

[Benjamin Wittes]

We've had some developments in the Citibank investigation matter. Oh, yes, sorry.

[Roger Parloff]

Go ahead, Anna. Did you want to discuss USIP quickly or, or do we or because that was a really wild one that we might.

[Anna Bauer]

Yeah. I mean we get, we can discuss it quickly because it does relate to removal questions. So and also just is another Example of one of these cases related to DOGE that just has a completely wild fact pattern. The US Is this entity, federal entity. I'm using entity in the way that the government did in its briefs because it sounds like it's actually a little bit of a unclear exactly what type of federal entity it is, but it is created by statute as a independent nonprofit corporation. And the acronym USIP stands for the United States Institute of Peace. You know, it has this board member. I think I believe that it's correct me if I'm wrong, Roger, but 15 board members, three of which are ex officio or like, you know, officials that are kind of already in the federal government. It's Rubio, it's Hegseth, and then Vice Admiral. You know, there's a number of people who are kind of these political appointees who always serve on the board. But then for the most part, you have this group of people, or it's like five Republicans and five Democrats Democrats, and they are appointed and confirmed by the Senate. It's this, you know, body that seems to be based on the way the statute is set out, quite independent from other federal agencies. There in the statute is this language in which it suggests that the president can only fire people for very, you know, for cause under certain circumstances. And, you know, DOGE got wind of this organization and decides to go in as it has with with other agencies, though I believe that USIP was mentioned and in one of the executive orders and over the course of several days, DOGE members from DOGE go to the USIP headquarters, attempt to gain entrance to the headquarters. There are, as we've seen in other organizations, efforts by the administration to remove members of the board in a way that does not with the plain language of the statute. You know, they sent, they send notices to these people that don't have any sort of real, you know, reasons behind it, and then they try to remove the president of the board as well through, via a letter that is signed just by the three ex officio members of the board, as opposed to the statute which mentions that only the board can remove the president. And it seems like having just three people isn't there's this question of whether or not there's really quorum and who really was even on the board at that time if you've unlawfully removed the people who are supposed to be on the board. So there's all this stuff that's happening, but the real kind of shocking part of it all relates to the physical alleged trespass by members of DOGE this is one of the things in the complaint. They actually, one of the claims is, you know, trespass, because they say that over the course of several days, Doge people show up. They show up with members of the FBI, they show up with security services. They apparently, USIP suspects that DOGE has somehow gotten in with the private security contractor called Intercon that USIP hired or contracted with to provide security services for its buildings. They suspect that there's some kind of relationship that Intercon has with Doge and so they terminate that contract in order to prevent a scenario in which Intercon gives access to the building to Doge. And then despite the termination of that contract, they receive word that, you know, there are these Intercon people who still have access cards who are going, trying to access the building. And they believe it to be because DOGE has threatened interconnected insofar as it might have other federal contracts or security services. They've apparently or allegedly been told, you know, you won't have any future government contracts if you don't give us access to this building. Ultimately, the D.C. police arrive, because I believe that USIP actually was the one. What were the group who called the D.C. police because of this, what they took to be a trespass on the USIP property. And D.C. police ends up kind of, you know, insofar as one does, sighting with the Doge folks. And so then the Doge folks get in a group of individuals who were the board members or former board members, depending on how you look at it, sue. And they sue in the name of the United States Institute of Peace, not. Not in their personal capacities. They're suing, you know, the plaintiff in the case, the lead plaintiff is the United States Institute of Peace. And so they bring this case with a. With a number of different claims separated from powers trespass, like all. All of these ultra, ultra virus, all of these different things. It goes before Judge Howell for a TRO hearing. And, you know, it was a. It was an interesting hearing because on the one hand, Judge Howell was clearly appalled by the conduct and, and the circumstances of, you know, multiple law enforcement officers showing up to this building to try to get access. At one point, she wondered aloud if, if she did enter a tro, would it be the case that she was going to have to have a mediator come in, that kind of thing, in terms of getting the Doge people out of the building. But. But ultimately, I think that she came. The reason that she decided not to enter a TRO and denied it, she seemed to be quite confused by the fact that the, and that's a term that she herself used, was that there was confusion in the complaint about whether or not, you know, it was proper for the complaint to have been brought on the part of the United States Institute of Peace, when in fact, the whole case is about whether or not several of these people who are the plaintiffs are, who are claiming to be the still proper board members, you know, are the proper board members. And, and so there was that issue. She also was concerned about some of the ongoing, the questions around the President's powers of removal. She was concerned about whether or not USIP really is a. Is it a federal agency? Is it an independent nonprofit? And if it is a federal agency and not just an independent nonprofit, does that mean that this is just an intra agency, an intra executive branch dispute? So these are some of the things that she raised. And that's, that's ultimately the reasons why she decided not to enter tro. But it was kind of a roller coaster of a hearing because on the one hand you could tell she thought this was appalling conduct, but on the other hand, she felt like she couldn't quite get to a point in which she felt like the factors for a TRO and some of the legal issues were, were really clear enough that it warranted the extraordinary relief of a temporary restraint.

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[Benjamin Wittes]

Have 11 minutes left. We got three cases yet to get through and we got some audience questions. So I'm going to ask everybody to keep answers brief. Roger Judge Chuck granted in part a TRO in relation to the Climate United Fund versus Citibank case. Remind us all what this is all about.

[Roger Parloff]

Yeah. If you remember, you remember how the head of the criminal division in the U.S. attorney's office in D.C. quit sometime back because she was being asked to seize or to to sort of craft a criminal seizure order for money that was being kept at Citibank. Well this is the civil case emanating out of that situation. This is called Climate United Fund versus Citibank. It's actually three cases. These are all involved the Greenhouse Gas reduction fund which was created in 2022 by the Inflation Reduction act and about $27 billion was appropriated for to for non profits would partner with the private sector and create tens of thousands of green energy product projects. So anyway, in the middle of February all of the funds of these three plaintiffs who had been appropriated 14 billion in funds were frozen. They're frozen by Citibank. Citibank is the financial agent that the government uses in all these contracts. So she did issue a tro. It's, but it doesn't actually unleash the funds. Citibank won't it, it keeps things where they are. Citibank won't give the funds back to the epa, which is what the Trump administration wants to do. They want to claw everything back. But meanwhile the, the non profits are not getting it and they're and, and they have, they have projects underway and all of those projects are in trouble. So anyway, that's where that one stands. She's gonna try to move fast on that. There was another one you might have read in the paper and as I this was the AFSCME versus Social Security Administration. This was doge inside these ultra sensitive the data systems of the Social Security Administration. And the judge, Judge Ellen Lipton Hollander of Maryland. It's 134 page ruling which I have not had a chance to read. As I've mentioned before, when you cover 80 cases, something has to give. This one is among the ones that gave. There was, there's the Mahmoud Khalil deportion case, deportation case. That has also given as far. Maybe Anna knows more, but I'll just go get through these. That was transferred maybe yesterday from Manhattan to the District of New Jersey. You remember, he's the he protestor at Columbia. Is he, is he a green card? Does he have a green card?

[Anna Bauer]

Yeah, I believe that he was a legal permit or he was a green card holder. His wife is an American citizen, as I recall. And so, yes, I believe he was a green card holder.

[Roger Parloff]

I think he's being held in Louisiana, but, but I, I guess he went through Newark and, and the judge decided, the Newark judge, I mean, the New Jersey gets it first. Finally, Anna Reyes, the rather theatrical judge in the District, did issue a preliminary injunction against the transgender in the military order of Hegseth implementing the executive order. And I haven't read that one either, to be honest.

[Benjamin Wittes]

All right, so we are going to go through two quick questions and then wrap up. Jeff asks, does Elon Musk claiming more presidential advisor status, near presidential advisor status, shield him from the consequences of his advice? I'm not entirely sure I know what the question means, but if what you mean is, is a presidential advisor potentially liable for bad advice, I think the answer to that is no, he's not. You're entitled to take advice from whomever you want and you're the responsible actor as president. That said, the issue with Elon Musk is really, if you're claiming to be merely an advisor and you're actually issuing orders, you're actually being a, a, an executive official who's wielding executive power, then you are maybe acting illegally. That's the real issue here. Ruthie asks, are the government lawyers going beyond the bounds of their oaths or are they just vigorously supporting their clients? So let me say, as a general matter, I think the Justice Department career lawyers have been behaving honorably. And that is one of the reasons why you have not seen a lot of, you've seen a lot of these cases where they just refuse to answer the judge's questions and they say, I haven't been told the answer to that question. I can't answer that. And so Judge Boberg, as Roger pointed out, was very nice to the government lawyer who on Monday, who couldn't answer any of his questions. He understood that that guy was not responsible for the problems that he had. The representations that had been made to him on Saturday. On the other hand, you're also not seeing a lot of career lawyers signing some of the more provocative briefs. Those are being signed by Mr. Mizell, by the attorney General herself, sometimes by Emil Bovey. So you're, you know, people are being careful in their roles as officers of the court, and that is sometimes requiring that the senior administration officials do their own representations of these outrageous positions. Now, are they being honorable in the way they are representing those positions? I'm going to leave that one unanswered and let the federal judges answer it. How what, how they feel about the quality of practice in the court. I do think that Roger's earlier invocation of Judge Boasberg saying, hey, you know, you know, you've got all I tell my clerks, all you've got is your reputation and yours is a little shaky with me right now is, you know, indicative of what the answer to that question is. And I think you're going to see, particularly on some of these frivolous disqualification motions and some of the cases where the representations that the justice has made before the court, the Justice Department has made before the court have not proven accurate or have not been reasonable. I think you're going to see judges start responding to that. Do either of you have anything to add to that?

[Roger Parloff]

I, I, I, I'll just say that this guy today, Ensign, or I think somebody says it's pronounced and sign. I, I don't think, I don't think he's on the hook. He, he was very forthcoming today, I think in saying yes, I understood you to be saying what you said you, what you meant. He I don't think he's on the hook. I think it was clear that Boasberg thinks it's somebody higher up that made this call.

[Benjamin Wittes]

We are going to leave it there. Roger Parloff, Quinta Jurecik. Anna Bauer. Thank you all for joining us today.

[Unknown]

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