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- [00:00]
Anna Bauer
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- [00:30]
Roger Parloff
Hi, I'm Darina, co founder of Quo.
- [00:33]
Benjamin Wittes
If you run a business, you know
- [00:34]
Anna Bauer
the team that responds first wins the customer. You've probably opened your phone to a bunch of missed calls and no voicemails. Those are missed opportunities and exactly why we built Quo. CUO is the business phone system that helps your team handle every call and text right away. Join over 90,000 businesses that win more customers with Quo.
- [00:53]
Benjamin Wittes
Try Quo for free at quo.comtech that's quo.com tech. It is Friday, March 27, 2026. It is 4:00pm in Washington, D.C. and you are watching Lawfare Live. I'm Benjamin Wittes, Editor in chief of Lawfare, and I am here with Molly Roberts and Roger Parloff, both senior editors of Lawfare, in what has been a comparatively light week in the trials and Tribulations department of the Trump administration. But yesterday evening was a definitely a tribulation. If your name happens to be Pierre Hegseth, the Northern District of California picked you up bodily and threw you down on the mat in the first page of a 43 page opinion and then kicked you over and over and over again for 43 pages. Molly, let's start with anthropic versus department of war. And the really important question did Judge Lynn reform her ways and refer to the Secretary of Defense as the Secretary of Defense and the Department of Defense by its proper name, or did she keep humoring this delusional renaming and false consciousness on the part of a giant federal agency?
- [02:50]
Molly Roberts
If I recall correctly, there was a lot of Dow in there, but if I missed something, let me know.
- [02:55]
Benjamin Wittes
No, you are quite correct. She did not reform her ways and and I'm salty about it.
- [03:04]
Molly Roberts
Well, we, we will say Department of Defense as many times as possible in discussing the case to make up for it, but I fear that as the litigation continues, we're going to hear much more Department of War. And I don't know that anybody said Sec War, which for some reason grates on me even more. So as long as they keep doing the extended title or full title I'll feel a little better.
- [03:28]
Benjamin Wittes
All right, so what did we make of the. What do we make of this opinion? Is there any good news in it for the government?
- [03:39]
Molly Roberts
Not really. The only good news in it, I suppose, is that it stayed for seven days to give them time to appeal and presumably to seek a stay from 9th Circuit. But otherwise it looked pretty bad for the government. I mean, really, they lost kind of in every way possible. Not only did they lose on every action that was taken, so that includes President Trump's tweet, Pete Hegseth's tweet that imposed the secondary boycott, and the formal letter designating anthropic as a supply chain risk, but also they lost on every legal and constitutional argument. So Judge Lynn did not content herself with saying the statute doesn't authorize this. In fact, she got to that last. She also said this is First Amendment retaliation. There's a due process problem here, and this is arbitrary and capricious. So not. Not looking good for the Department of Defense in any regard there.
- [04:37]
Benjamin Wittes
Yeah, I could not find a bright spot for Hegseth. I suppose she didn't reach the code is law question, so you could say that's a bright spot, but she really did. I mean, she had a choice. You could decide this narrowly on statutory grounds or go big on both first and Fifth Amendment grounds. And she did the latter. She included a fair bit of salty rhetoric, including the Orwellian word, the O word, and I. And she also took the time, this is a perhaps more important point, to lay out a pretty extensive record that I think it's going to be very hard for an appellate court to go a different direction given this record. I'm curious if you see a lot of room for either the Ninth Circuit or the Supreme Court to interpret this record differently than she did, or whether this is just one, like the law firm case, where it's going to be super resistant to whatever panel you put in front of it. This is just a kind of the law is the law is the law kind of case.
- [06:05]
Molly Roberts
Yeah, it's a great question. I'd be curious to think what Roger thinks there, too, or to hear what Roger thinks there, too. I thought that the laying out of the record was one of the. I thought the opinion was a strong opinion, but I thought she did a really good job laying out the record and that that was probably the strongest aspect of it. And she made it really clear that what had happened here was that the Department of Defense hadn't had any issue with these usage restrictions until there was this public fight about it. And she also made it really clear that there was no legitimate basis to think that Anthropic would become a saboteur, and indeed that nothing on the record showed that it had the ability to go in and access these systems after they're deployed, which feels like something that could be misunderstood because nobody really understands how AI works. So I thought it was useful that she went through the record and established that. I also had a question maybe for you on why did she do the First Amendment and Fifth Amendment stuff and not content herself with saying that, what is it, 10 USC section 3252 doesn't enable this? Which is, does it matter at all that there's also this case pending in the D.C. circuit having to do with a different statutory authority? And if she had just said, there's no statutory authority here year, could the Department of Defense said, well, we're just doing it under the other statutory authority. And the D.C. circuit hasn't decided yet.
- [07:36]
Benjamin Wittes
Yeah. So that, I think, is part of the reason. I think part of the reason is also just an argument in the alternative that, you know, if you're going to get taken up to the Ninth Circuit, which she certainly is, there are many possible ways to affirm this. Even if she's wrong on the statute, she's clearly right on the, you know, do process stuff. And even if she's wrong on that, she's, you know, they still have a First Amendment retaliation problem. There's a lot of things wrong with this record. And, and I think she just made a strategic judgment rule on all of them, and that makes it harder to reverse. Actually. You, you have to find fault with every level of it. Roger, you have thoughts?
- [08:30]
Roger Parloff
Yeah. I mean, there's also the, like Molly said, remember, there's three things here. There's the Trump tweet, there's the Hegseth tweet, and there's the formal letter so 3252 doesn't reach the Trump tweet where he purported to wipe out. You know, just say you can't use. No federal agency can use it based on Article 2, my Article 2 authority. So without. So the First Amendment and the Fifth Amendment go to that, and it won't be that. It's not phrased as I'm enjoining Trump from doing that. I'm enjoining anyone from listening to him from implementing what he's saying.
- [09:23]
Benjamin Wittes
You must ignore the president executive plan.
- [09:25]
Roger Parloff
Exactly. And I think to some extent, that's true of the Hegseth tweet as well, because it wasn't the formal 3252, and it did purport to do crazy things that I did purport to impose the secondary boycott and things that he's not really authorized to do.
- [09:50]
Benjamin Wittes
Right. I think without the constitutional holdings, there would still be some portion of the action that would survive, assuming the D.C. circuit didn't rule differently on the other statute. I forget which statute that is, but this way, I think virtually none of it is extant at least seven days from now absent a stay. Roger, how do you, how optimistic, pessimistic would you be if you were Pete Hegseth looking at your appellate chances, keeping in mind that you have a very favorable panel at the D.C. circuit?
- [10:45]
Roger Parloff
Yeah, I think he's got a very favorable panel at the D.C. circuit. That's Wilkins, Katzis, Rao. So two Trump appointees there in the Ninth Circuit. It depends a lot on the panel. This is going to sound cynical and snarky, and I don't mean to, but it's just as far as, although I think the factual findings are very strong, I don't see a lot of deference being given to district court findings by appellate judges who are appointed by the other party or at least by Trump. It just doesn't seem to be working that way. And the other way they could go, if they wanted, they could say that enormous deference needs to be paid to the Defense Secretary in this context. And, and there is something totally unique about this situation. You know, it's not like we're looking at, you know, Windows 17 or something here. It's, it's, you know, it's, it's software that's, or I don't know if software is the right word. It's a, it's a thing that is smarter than us and we've never had before. And, and so how they're going to respond to what, how the President and the Secretary of Defense can treat that, I really don't know.
- [12:29]
Benjamin Wittes
Yeah, I mean, I gotta say, I find it hard to believe that there are five votes on the Supreme Court for the other side of this position, for the DoD side of this case. I, I, I, I think this case is no different from the law firm cases or the Harvard case, and it's fundamentally a retaliation case, and it's wildly in excess of, of his statutory authority. So I think the case boils down to, in the absence of a statute that authorizes Q to do it, can you retaliate against a company for criticizing you, your negotiating positions and by the way, do it explicitly on the basis that it's a woke. You know, like they kind of gave the game away with the tweets. And I just don't see, you know, John Roberts or Amy Coney Barrett or, you know, I have a hard time imagining Neil Gorsuch going there. It just feels to me like, like if you wanted to win this case, you had to do it subtly. Like there's probably some way to retaliate against them subtly in which you don't create a giant record with a big red stamp on it that says retaliation. But. But once you've created that record, I just don't see how you win the case.
- [14:00]
Molly Roberts
No, it's tough because I think they wanted it to be loud. Right. And the biggest problem for them, or one of the biggest problems for them is that they could just stop working with anthropic legally. But they wanted to make a big fuss and they wanted to say that. They basically wanted to say, we're retaliating, to have this show of force of. We're not going to let our. Just like Hicks has said, we're not going to let the ideology of Silicon Valley dictate how we use our war fighters. So.
- [14:25]
Benjamin Wittes
Right. All right, Well, I, I asked Claude what he thought of. Of the matter, And here is what he said. First, he asked me which anthropic decision I was talking about. He said there have been a bunch of them recently, and he wanted to make sure he. And he mentioned that there was a. There were decisions on some products and there were decisions on. And he wanted to make sure I was talking about the. Wanted to make sure he had the right case.
- [15:12]
Roger Parloff
But then can I just say that given that I don't think he should have control over autonomous lethal weapons.
- [15:20]
Molly Roberts
He doesn't know you very well, Ben, to be fair.
- [15:24]
Benjamin Wittes
I, I just, I did say, what did you. What do you think of the anthropic decision? And, you know, I didn't say the judicial opinion, so he was just clarifying. So then he gave me a very good summary of the opinion and then said, as for my own view, since this directly involves anthropic, I'm not well positioned to offer a neutral opinion. But the legal question at the heart of the case is genuinely significant. Whether the Executive branch can use national security designations as a tool to retaliate against a private company for its public speech. Judge Lynn's answer, at least at this stage, is a firm no. So, you know, there you have it. Claude taking himself out of the conversation because he's got a, he's got a dog in this fight. All right, by the way, which is more than a lot of journalists do. So kudos to Claude for being intellectually honest and disclosing his biases. All right, Meanwhile, down in Fulton county, and I know what some of you are thinking, some of you are thinking, where is Anna Bauer today? And the answer is she is not here with us because she is in court in Fulton county, you know, doing the Anna Bauer thing. And so, Roger, what case is she in and what, what do we know about the case? She's been in it all day. What do we know about it? And, and, uh, what can we say prior to her emergence from. From court?
- [17:12]
Roger Parloff
Yeah, this is that suit, the Rule 41 suit, the. That Fulton county brought to get back its all the voter records that were taken in the search. And earlier this week, the judge, Judge Boulay decided that the FBI agent who swore out that weird search warrant did not have to testify. That was a big ruling. And that as a result of that, today's hearing is less interesting than it might have been, although it's still going on. And so Anna might eventually have a lot to tell us and she'll probably. I'm going to watch her Twitter or her Blue sky tonight. She'll probably explain a lot.
- [18:04]
Benjamin Wittes
But I gotta say, I like, I don't understand what there is to talk about all day if you're not gonna hear from the agent who's war. Who's. Whose affidavit constituted the warrant. What's like, what's a day's worth of investig, you know, of evidence to hear once you've decided you're not hearing from the one person who knows something about the, about the circumstances of the warrant.
- [18:32]
Roger Parloff
Yeah, I, they. I believe the Fulton county has called Ryan Macius or Masias, who is an election technology security expert, very, very well credentialed and who had been. Who was an advisor working for Fulton county during the 2020 election and through all of the recounts and audits and reviews and litigation. So he really knows all of this stuff. And he wrote a very strong declaration earlier in the case about, you know, all, all of the stuff that the agent seemed to have known about because he sort of picked and choose, chose and yet didn't refer to in the, in the warrant. So I think that's the, the crux of it. If I could go back to that decision that Boulay made, and I won't go into it in detail, but basically the question was there Are these rules when you try to get a federal employee to testify there, you make a TUI request. And then there are regulations about that govern whether the DOJ can refuse your request or not. And so they were trying to. The Fulton county was arguing that the refusal under the TUI rules was arbitrary and capricious. And. And he said that that wasn't. The showing wasn't made. The only thing I want to say is that, you know, that's a complicated thing. But what you could tell is that this judge was treating. He didn't use the words, but a complete presumption of regularity here, that he was just treating this like any other underlying criminal investigation, even though on its face, it's fricking bizarre. You know that with the head of DNI there on the scene. And you know, the backdrop of this, where the do where Pam Bondi has been trying to get these records from every single state for some reason that has nothing to do with criminal activity. So he is. Is approaching. And yes, he is a Trump appointee. He seems to be appoint. Approaching this with. As if it were. With no rage. And this is actually our second data point. Remember the mediation? The fact that he tried to put this into mediation suggests he's not as outraged as us about what happened. This is a run of the mill case and he's treating it like that.
- [21:41]
Benjamin Wittes
Right. And it's a very striking difference between the way he treated it and the way the D.C. district Court treated a similar issue that arose in the context of Dan Richmond's. You know, it's also a Rule 41 petition in which they say, wait a minute, for political reasons, you've run roughshod over Fourth Amendment stuff because you're so eager to get, in Danny's case, Jim Comey, or in this case, the grand conspiracy or whatever. You know, the. And you know, and in one case, you have a relatively rapid look under the hood of that affidavit and a ruling from the D.C. district Court. You know, this is not an appropriate search to have conducted of Richmond's phone, and you have to give it back. And there's all kinds of. And in the other case, you have. I don't know what they've spent the day talking about, but it's not. It doesn't seem to be whether that search warrant was appropriately issued.
- [22:59]
Roger Parloff
Yeah. And we did get a short report from Anna during a break, so I can relay that she says that Boulay seem skeptical that they need the originals back, they being Fulton county, because DOJ gave them A digital copy of the records. She also said that DOJ keeps asking Macias what the agent knew and the agent's state of mind, I guess, to show that he doesn't know that. And, and so Abby Lowell seems to be saying that he, they, they've opened the door for Boule to reconsider whether to quash the subpoena. Since they've made an issue out of the agent's state of mind, I predict that that will not succeed.
- [24:02]
Benjamin Wittes
Yeah, I suspect not. All right, let's go to a place where judges are a little bit more irritated, which is the District of New Jersey. And when last we checked in, they were throwing prosecutors out of court. And now the prosecutors actually seem to have capitulated. And so what happened in New Jersey this week? And do we now have resolution to the long running. Who's wearing an Alina Haba mask or which mask is Alina Haba wearing? I guess is the right formulation of it.
- [24:53]
Roger Parloff
Yeah. So I'll set the stage here. This is the battle over the U.S. attorney's office for New Jersey. And remember, Haba was appointed as a interim, and they could not get Senate confirmation. They couldn't get a vote because the two Booker and the other Senator Blue slipped. Blue slipped them. And so then they tried to get her in any way through some shenanigans. Judge Brann ruled that she had been appointed unconstitutionally in August. They appealed, and while they appealed, she kept signing new indictments. And then on December 1st, the 3rd Circuit affirmed. And December 8th, instead of appointing in one of the ways that the statutes permit, DOJ Bondi appointed three people to run the office, a triumvirate, all of whom she could just appoint herself, she said, without any confirmation or approval or anything. Bran struck that down on March 9th and was really very angry about what was going on and also suggested that those people in the interim that she was signing her name to while it was on appeal, he was going to have to consider whether to throw out those indictments. And while that was going on, another judge really hit the. He was going to do a sentencing hearing. Judge Qureshi, there were other things on his mind as well that were pissing him off. But. And he wanted to know whether this triumvirate was going to create an appellate issue for the validity of this sentencing, among other things. And when the court of the chief appellate guy began to speak, he hadn't had a notice of appearance, and he threw him out of the room, out of the courtroom. Wouldn't, wouldn't hear from him nearly had him removed. And, but more important, he ordered that the Triumvirate would have to come and testify before him on May 4. They would be sequestered beforehand, and they would have to each testify about what the hell was going on there. And one thing he was concerned of was apparently Haba is still with doj, and she'd been seen in that courthouse. And so he wanted to know, is she still the puppet master and what's going on? So apparently. And so what happened has been called
- [28:18]
Benjamin Wittes
many things in her life, but I think this is the first time she's ever been called a puppet master.
- [28:24]
Molly Roberts
Right. Okay.
- [28:28]
Roger Parloff
Now the last. Well, of course, Halligan herself was called a puppet, which is. But that's a different story. But anyway, on March 24, which I think is that Monday or Tuesday we learned that this had all been resolved. The U.S. district Court had appointed Robert Fraser, and the DOJ was very happy with him. Then an article came out in the New Jersey Globe by Joey Fox and David Wildstein and gave us some of the background, which is quite interesting. The chief judge, Renee Marie Bum, had been negotiating with Blanche Todd, Blanche, the deputy Attorney general for several days. Bum is the one of the very few Republican judges on the District of New Jersey bench. There's 17 judges, mostly Obama and Biden. So they agree that on Fraser, who's 59, who's a, who's got. He was a career guy, he's 20 years in. DOJ was a Manhattan DA beforehand, but they would not appoint him until he verified that he had voted for Trump all three times. So there was a little litmus test. And then apparently their first choice was Jordan Fox, who was one of the triumvirate. She was five years out of law school, she's 30. The judges wouldn't go along. And then their second choice was Lamparello, who was another member, and he wasn't approved. Anyway, they finally agreed on Fraser, and it seems like a pretty good resolution. Booker and Senator Kim were not consulted, by the way.
- [30:26]
Benjamin Wittes
So is the, is the May 4 hearing now off, or.
- [30:30]
Roger Parloff
Yes. Of the next day of Korea? Well, the, the sentencing will go forward, but those people will not testify.
- [30:38]
Benjamin Wittes
And, and is Frazier going to be nominated or is he just appointed by the court pending somebody else's?
- [30:47]
Roger Parloff
I think that those. That's a 546d appointment, and I, I think it can just last. I don't think there. I mean, he, he could try to get another person Senate confirmed, but I don't think he will. All right. Or at least Those New Jersey reporters didn't think he would.
- [31:09]
Benjamin Wittes
So Roger, the state of Minnesota brought suit in the District of Columbia Court in, in, in D.C. district court in Washington over withholding of evidence in the killings of Renee Good and Alex Preddy and the shooting of another gentleman. And I, first of all, I'm surprised this has taken this long but secondly, I'm a little bewildered as to why the suit is in Washington rather than in Minnesota where they have this bench full of super angry judges who really understand the, the magnitude of the misconduct that the Justice Department and the Department of Homeland Security have been involved in in, in Minneapolis. So I, I like tell us a little bit about the soup. But also like there's clearly a strategic judgment to bring it here rather than there. Why didn't they just like, you know, go to any of 10 judges in, in their district and say, you know, you know, here you go, Judge Troheim or Judge Bryant or I mean like these are, these are angry judges. Why are they going around them?
- [32:47]
Roger Parloff
Well, there's a, it's a good question and I, I'll, it'll, it's, it's going to be an issue. I think it's going to be an issue. If you remember, they actually the, the Minnesota Bureau of Criminal Apprehension brought a suit to try to get access to the pretty crime scene and that one went before Eric Tastrude who is a Trump appointed judge in Minneapolis or in yeah, Minneapolis and he denied them the emergency relief. I think he felt that by then DOJ or FBI said they were going to look into it and he saw no reason not to believe that they would or insufficient reason to believe that they wouldn't on March 24th. So this week they voluntarily dismissed that suit and brought this one here. So if you are, I, I suspect the government might think oh, they are trying to get away from the Trump judge who rules against them and trying to get away from the 8th Circuit, which is almost all Republican, if not all Republican. I can't, can't remember appointees. And so here it's different in some important ways. It's all three shootings and it's about TUI demands and the word Tuohy did not come same sort of demand I mentioned earlier with that's at issue that was at issue in the trying to get that FBI agent to testify in Fulton County. And so it focuses on TUI demands that were denied by DOJ and by dhs. And so in that sense. Jurisdiction is here in D.C. and it makes sense. But yes, it might be that they feel that this is strategic, that maybe the government will make some claim that this should have been brought in front of. Judge it makes, you know, it's fundamentally the same legal arguments, 10th amendment, APA arbitrary and capricious. And so it'll be. It'll be interesting. I forget. Oh, it's been assigned to Emmett G. Sullivan, who is, I think, a pretty different judge than what I've seen so far. So far.
- [35:50]
Benjamin Wittes
That's a. That's going to be a. That's a difficult draw for the government.
- [35:56]
Roger Parloff
Yeah, yeah. And if you remember, he was the one who resisted Bill Barr's attempt to dismiss millionaire Mike Flynn's case. The case against Mike Flynn. General Flynn, who just incidentally won or settled his Federal Tort Claims act case against the United States for $1.2 million.
- [36:26]
Benjamin Wittes
Molly, remind me who Bill Pulte is, because it's been a while since we've talked about him, and I think I'm probably not alone among the audience for having willfully forgotten about his existence.
- [36:45]
Molly Roberts
Yeah, I was going to say, I envy your ability to forget. Bill Pulte is the Federal Housing Finance Agency director, but he has also turned himself into something of a fishing expeditionist against Trump's political enemies. So we've talked about Bill Pulte a lot before in the context of prosecutions on allegations of mortgage fraud. So Lisa Cook, Letitia James, and Letitia James is what we're talking about now. So Bill Pulte, the mortgage fraud, made a little bit of sense that he was looking at that because Federal Housing Finance Agency director, although there was some sketchy stuff going on, it seemed possibly involving how he got information, that he got to dig up some information about Letitia James from Fannie Mae. But anyway, what we've learned this week is that he has made two criminal referrals. He made criminal referrals in the Letitia James mortgage fraud case, but that he's made two new criminal referrals and these have to do with insurance fraud, that he is suspicious Letitia James has committed the referrals.
- [38:03]
Benjamin Wittes
Housing insurance. Like, what does this have to do with the.
- [38:07]
Molly Roberts
Yes, yes, exactly.
- [38:08]
Benjamin Wittes
So, okay, so it's like the connection to his day job is that it's homeowner's insurance.
- [38:15]
Molly Roberts
Yes.
- [38:15]
Benjamin Wittes
That is the connection to his day job, life insurance. She's taken out a policy on herself or something.
- [38:21]
Molly Roberts
Yeah, yeah. So, you know, there's like, the more plausible connection, and I don't think, unless I'm wrong and have forgotten, just as you willfully forgot some stuff I don't think he's involved at all with the investigation that presumably is still ongoing, if it ever really existed, into her hairdresser, which has nothing to do with houses. That has to do with a Range Rover or something.
- [38:42]
Benjamin Wittes
And it's in New Orleans.
- [38:44]
Molly Roberts
Yes, yes, yes, yes.
- [38:45]
Benjamin Wittes
She has a house in Norfolk and she's the Attorney General of New York, but her hairdresser is in New Orleans.
- [38:53]
Molly Roberts
And wait till you hear where these criminal referrals are, too. One of them is to U.S. attorney Andrew Boutros in the Northern District of Illinois, and the other is to U.S. attorney Jason Redding Quinones in the Southern District of Florida.
- [39:09]
Benjamin Wittes
The inevitable. Jason Redding Quinones.
- [39:11]
Molly Roberts
Yeah. Yep.
- [39:12]
Benjamin Wittes
So the father of the grand conspiracy investigation.
- [39:16]
Molly Roberts
Precisely.
- [39:17]
Benjamin Wittes
All in Molly's case, it all leads back to the Southern District of Florida.
- [39:21]
Molly Roberts
Yeah, I've got a new place, a new string of red thread to connect from one place to another for my. My bulletin board. But the reason that it's to those two districts is. So the properties in question, turns out that the same properties we were talking about with the mortgage fraud stuff, they're in Norfolk, but the insurance companies for the two respective applications are in the jurisdictions that these referrals are to. So a very convenient. A good way to get yourself to the Southern District of Florida.
- [39:50]
Benjamin Wittes
So wait, but is it the same.
- [39:52]
Molly Roberts
It's the same property. Yeah, basically. So, in fact. So the information, the kind of tip off to Pulte, it seems, was from Mike Davis. We're going to grand conspiracy again here. But Mike Davis, who's kind of a conservative activist, advocate, good friends with Jason Red and Quinone. So that's something that he has said himself many times. My buddy, he dug these up and we've seen them because they showed up in the second indictment of Letitia James. So. Or the failed. Yeah, Anyway, so we've seen them and they. It was always odd in the mortgage fraud cases because when you looked at the documents, a lot of what they were saying she had done wrong did have to do with insurance. So the allegation here is that she made representations that this house would be occupied by a single adult, no children. And then her niece may recall hearing about her niece lived there with her three children. So. And then. So that's one of the properties. These are the two properties we heard about in the. In the old days. Right. So that's one of the properties. That's the one that's to the Northern District of Illinois and then the one to the Southern District of Florida. Is she represented that the property would be unoccupied five months out of the year, but it was occupied year round, so they couldn't win on mortgage fraud, the occupancy fraud stuff. So they said, well, I actually made the same misrepresentations that we were using to allege occupancy fraud, but now we're alleging insurance fraud.
- [41:32]
Benjamin Wittes
And is there any indication that either quinones or the U.S. attorney in the Northern District of Illinois is engaging on these referrals?
- [41:45]
Molly Roberts
Not that I know of. They're very new. They were just made on Wednesday, so I think we don't know yet. I wouldn't be absolutely shocked if Jason Renning Quinones acted on it. On the other hand, he does have his hands full with the grand conspiracy.
- [41:58]
Benjamin Wittes
Right? And the thing about the grand conspiracy is that it's grand. It's so grand.
- [42:02]
Molly Roberts
It's so grand.
- [42:02]
Benjamin Wittes
And so it takes up a lot of time and energy because it just keeps growing. Hey, folks, I want to tell you a story about the founding of Lawfare. I started lawfare, and it was just a blog, and then we realized we had to create an organization to support it. And all of a sudden, I found myself doing paperwork, forms, logistics, personnel stuff. It just completely ate up my day. And I want to say I was bad at it. And it was repetitive, it was boring. And I thought to myself, there has to be an easier way to do this. I didn't know about Gusto at the time, and in retrospect, I wish we had. Small business life means hustling and figuring it all out a lot of times on your own. And I did it a lot of times on my own, and it was bad. But you don't have to make the same mistakes I did. You don't have to spend your evenings guessing at tax forms or tracking down onboarding documents. Gusto handles all of that so that you can spend your time on the parts of your business you actually love. Like, in my case, running a magazine about national security and law. That part I love. Gusto is an online payroll and benefit software system built for small businesses. It's all in one remote, friendly, and incredibly easy to use so that you can pay, hire, onboard, and support your team from anywhere. You save time with automated tools that are built right into the system, offer letters, onboarding materials, direct deposit, and more. It's automatic payroll tax filing, simple direct deposits, health benefits, commuter benefits, workman's comp, 401k, you name it. Gusto makes it simple and has options for nearly every Budget. It's quick and simple to switch to Gusto. Just transfer your existing data to get up and running fast. Plus don't pay a cent until you run your first payroll. So try Gusto today@gusto.com Lawfair and get three months free when you run your first payroll. That's three months free payroll@gusto.com LawFair one more time Gusto.com LawFair. Want to turn your timeline into a fast lane digital twinit to outpace the field with fast and confident decision. Siemens. Transform the everyday with Siemens. That new thing.
- [45:04]
Molly Roberts
Yeah, we've got it.
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Anna Bauer
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- [46:02]
Benjamin Wittes
Yep. All right. Speaking of really important cases involving false statements and things that, you know, the world will not sit still unless we resolve the government made a rather interesting admission in the Jerome Powell case, Roger, which I don't mean to be reductive, but kind of boils down to that. There was no evidence that he'd done anything wrong. What was the context here? What did they say? And how does the investigation continue once you've stood up in court and admitted that?
- [46:50]
Roger Parloff
Yeah, well, so the judge, Judge Boasberg directed that the hearing before him on, before he quashed the subpoena could be unsealed in a redacted form. And so those transcripts became available. The Post was the first to get them. I, I've got them now. And so we now have the back and forth and Boasberg put it to him. What false statements did he make before Congress and the ausa? I think he's now head of the criminal division, Masuko Latif said, well, we don't know is my first answer. However, there are certain areas that he addressed that caused concern. And so Judge Boasberg said, and then what evidence is there of fraud or criminal misconduct in relation to the renovations? And he said, again, we do not know at this time. However, there are 1.2 billion reasons for us to look into it. He's referring to $1.2 billion. The cost overruns, I don't know what he's. Are not 1.2 billion. They're about 600 million, I think. But it depends on whether you use Trump's figure or whether you use the real figure. But anyway, that's all they had. You had asked a question about. Oh, and, and Boasberg also said, invited, you know, you can submit under seal. I mean, ex party, just you and me, not, not the Federal Reserve's lawyers. What, what the evidence is, which I guess he's done in the past. And he's. He said no, he declined. So you had asked last time about, you know, what was the standard. And of course, the standard is the, the idea is that if, if the sole and dominant purpose of the subpoena is improper, that you can quash it and the burden is on the person seeking, you know, the defense, the target or the subject of the investigation. The what? The way Boasberg looked at it, and I don't think there's existing law on this, but it makes a ton of sense, was sort of a sliding scale. And he put it this way, the less evidence you have of wrongdoing, then the less the target has to show that there's an ulterior motive here. Or conversely, the more evidence you have of misconduct, then the more they would have to show a ulterior motive. So that's sort of the judgment he made. And here there was zero evidence of wrongdoing and a ton of evidence of misconduct. And so that's how he resolved.
- [50:26]
Benjamin Wittes
But I'm still hung up on an antecedent question that Boasberg doesn't address, which is, what is the predicate for an investigation at all? You know that there's the. You can't just open an investigation based on nothing and then say, well, this is relevant to it, and issue a grand jury subpoena on the basis of it. Under the Attorney General's guidelines, you have to have an articulable factual predicate for reason to think that there was a commission of a federal crime in the beginning. And otherwise you're just investigating a person. And clearly what's happening here, and of course, what's the motion to quash is for the subpoena, not the investigation. But what Boasberg is really saying here is I don't think there's a factual predicate for the investigation. And, you know, he doesn't get to say that because he's not supervising the investigation. He has a motion to quash the subpoena. But I'm saying it like there's no predicate for the investigation. The, the predicate for the investigation is Jerome Powell testified and there were cost overruns.
- [51:51]
Roger Parloff
Yeah, I, I think if you don't have evidence of vindictiveness, you know, if there are no tweets, if there's no history and somebody is just sort of curious, gee, that's a big cost overrun. I think that's a tough case to, to, to. Because you can't enforce the judicial manual or the, the justice manual or whatever they call it right now.
- [52:22]
Molly Roberts
Foreign.
- [52:26]
Benjamin Wittes
I am told that Anna Bauer is out of court and is on her way. So we will, we will add, we will break in and whenever she shows up with Fulton county stuff. In the meantime, let's talk about New York vs. Hegseth, New York Times vs. Hegseth. Speaking of cases in which the government is not complying with court orders, Judge Paul Friedman ordered the Pentagon to stop its highly discriminatory behavior toward, toward disfavored news organizations. And the Pentagon basically said, pound sand, what is the current status of this and where are we in the litigation?
- [53:33]
Molly Roberts
Yeah. So last Friday, while we were here on Lawfare Live, Judge Friedman ordered the Department of Defense to restore press access to these seven New York Times journalists. And then a bunch of the other disfavored organizations that had had their credentials yanked started pressing the Pentagon to get theirs back, too. And his ruling said that was a violation of the First Amendment, that they were effectively retaliating against news organizations that. Not that didn't like President Trump, but news organizations that wanted to ask hard questions and do the work of journalism and not just accept exactly what the Pentagon told it at any time and asks nothing further. So that's primarily First Amendment. But also he said that the Pentagon had given itself unbridled discretion to enforce the rules. And he said that there was a violation of journalist due process rights. And he said, well, he quoted himself at oral argument in his ruling saying this is what the First Amendment is all about, kind of now more than ever sort of language. So it was a pretty robust ruling. And Order. And the Department of Defense, by the way, this is New York Times versus Department of Defense. And he said Department of Defense in the hearings. So a little bit of contrast with what's going on in California there, but I believe that's because the New York Times did not decide to say Department of War in its complaint.
- [54:59]
Benjamin Wittes
Yeah, I think that Judge Friedman would have said Department of.
- [55:03]
Molly Roberts
Regardless of what the Times had said. No, I. Yeah, well, you know, more of a knock on Judge Lynn than I suppose. But in any case, the Department of Defense said, okay, fine, here are our new policies. We're going to change the wording of some of the rules. We're going to be more explicit about our definition of what activities were prohibited, because the judge had said, it sounds like you are saying that they can't even ask a question about any information. You don't want to be public. So the new version replaces the word solicitation with intentional inducement of unauthorized disclosure. And a special advisor to Pete Hegseth said in an interview the New York Times, I believe we used more words to say the same thing to foreclose creative misinterpretation, saying, hey, court, you misinterpreted, and we're basically giving you the run around here.
- [55:56]
Benjamin Wittes
I just want to say for all of you who are considering making public disclosures that you are evading court orders by using word games. This is not, generally speaking, a good idea. I'm not your lawyer, but when you are trying to evade a court order by playing word games, it's generally a good idea not to announce that you're doing that.
- [56:22]
Molly Roberts
Yes. No, not a good idea to announce it. Not a good idea to announce it to a journalist for the same paper who is suing you over this. Because then they, of course, went back into court and quoted that in their new complaint. But I'll get there. The other thing the Department of Defense is doing is closing the workspace for credentialed journalists entirely and setting up a new annex for the press. And the press can go hang out in the annex, and if they want to do anything in the Pentagon, they have to get a DOD escort. So that's what they're doing. They said they were trying to. They had to do that to preserve security without conceding the validity of the court's analysis. So that's what they said they did. And, of course, this was not pleasing to the New York Times. I don't really imagine it'll be pleasing to the judge either. But the New York Times said, we're Gonna go back to court because this still imposes unconstitutional restrictions on the press. It's a thinly veiled attempt to flout the court's ruling was their language. And it's trying to do the same thing. It's trying to prevent journalists whose editorial viewpoints the Department of Defense dislikes from doing journalism. And so now we are going to have a hearing on the New York Times new motion to enforce on Monday. So I will be at that hearing, and we will see exactly how pissed off Judge Friedman is.
- [57:44]
Benjamin Wittes
Well, Judge Friedman is an affable, friendly man, but I think this is gonna test his affability and friendliness. All right, Roger, let's do our immigration roundup for the week. It's a little bit more of it than last week. We have a New York Southern District of New York case about ICE arrests at immigration courts in which the Justice Department made a rather startling admission. Tell us about it.
- [58:24]
Roger Parloff
Yeah. Speaking about testing the affability of the judge, here's approximately what happened, and I'm still getting up to speed on this. But in August, this suit was filed August 1st. African communities together versus Lions. Kevin Castell. I don't know if that's the pronunciation in Southern District George W. Bush appointee. It was challenging a new policy of arresting non citizens when they came to their immigration court hearings. So this was reversing decades of policy and decades of policy that had been reduced to writing in 2021. And they were challenging this new policy basically as arbitrary and capricious under the apa and also some sort of common law privilege arguments and things in September. That's briefed. He issues Judge Castel rules for the defendant on this issue. As far as preliminary injunction, he says that, you know, the record's not fully developed, but at this time, the. They call it, the. The change was embodied in a. In a guidance that came out March 27 of 25. They call that the. The new guidance on arresting at courthouses. And he says, I can't say that on a preliminary injunction, that it's arbitrary and capricious. That's a high bar. So they continue briefing, and they're heading toward a summary judgment ruling. And then on March 24, the AUSA files a letter of, quote, material mistaken statement of fact, unquote. And I have to say, the AUSA's letter is a good letter. It does not gild the lily. It's sort of refreshing. It's frank. But it says, this Morning, counsel for US ICE informed the undersigned that in essence, the March 27, guidance does not and has never applied to civil immigration enforcement actions in or near immigration courts. In other words, the whole subject of this lawsuit was never covered by this guidance is what they're now saying. And then he attaches to it an email that he got that he was shown issued a few days earlier from the Assistant Director of Field Operations for ERO Enforcement and Removal Operations. That styles itself as a reminder that the previous guidance does not apply to immigration courts. So the government. The U.S. attorney goes on to say, so the portions of four briefs and oral argument that they gave were wrong and a portion of his earlier ruling will need to be reconsidered. We deeply regret this situation. And then he said it was not caused by lack of diligence by the undersigned attorneys. The undersigned were specifically informed by ice that the 2025 ICE guidance applied to immigration courthouse arrests. In addition, we discussed with and obtained the approval of assigned ICE counsel before filing every brief in this case and making any oral representations to the court. We also transmitted copies of the court's orders, the Transcript of the September 2nd oral argument and plaintiffs filings to ICE counsel throughout the litigation.
- [62:52]
Benjamin Wittes
Look at this unitary executive here. One arm throwing the bus.
- [63:02]
Roger Parloff
Based on our discussions with ICE today, this regrettable error appears to have occurred because of agency attorney error. It's signed by the two AUSAs and Jay Clayton as the U.S. attorney. And the next day, Judge Castle Issues issued a very brief order. It said that the U.S. attorney's office shall preserve all communications between and among a member of the U.S. attorney's Office staff and or any defendant in this action or his or her predecessor, a successor or subordinates or representatives, including the quote, assigned ICE Council the same regard. It's a preservation order. It's like everything that you have said up until now, you preserve it because I'm going to look into this.
- [64:03]
Benjamin Wittes
Well, again, for those of you who are considering long term misleading of federal judges through Justice Department counsel, this is a good cautionary tale. It may not be the best idea in the world. Roger. Speaking of government wins. However, the mandatory detention policy that Almost every non 5th Circuit court in the country has rejected has found a receptive audience in the 8th Circuit.
- [64:40]
Roger Parloff
Yeah, this was another. Not a big surprise. But this is that mandatory detention policy we've talked about before and Kyle Cheney has been all over it. But the government asked for expedited appeals in two circuits, the 5th Circuit and the 8th Circuit, and slow walked all the other circuits and now it has. It's 20 at the appellate level, even though it's about 2000 to 100 at the district judge level, and it was 2 to 1 in both courts. I can't really say political lines here. It was George Bush judge and a Trump judge against a Trump judge. The dissenter was a Trump appointee, Ralph Erickson. It's a pretty strong dissent. But anyway, that's where things lead. I think we're waiting to hear from the 7th Circuit will probably be next in a sort of messier case. We've heard from them already that they were doubtful of the Trump policy.
- [65:51]
Benjamin Wittes
But this is going to the Supreme Court, right? I mean, it's. Yeah, it has to be, because eventually they're not going to be able to keep it from every other circuit forever. And eventually you're going to get some circuit that's going to say what is the standard view of most judges who've looked at this? And at that point you're going to have a conflict in the circuits. Right?
- [66:16]
Roger Parloff
Yeah. Yeah. And we do have the first circuit is coming along and maybe the ninth. So. Yeah.
- [66:26]
Benjamin Wittes
All right. Also in the eighth circuit, we have movement in Mr. Ishihara's case. He is, I think his technical title is the poor schlub who got held in contempt for being the official sort of scapegoat of the Justice Department, even though he's a Defense Department lawyer for all the problems in habeas cases in Minnesota. Has he been taken out and put in the stocks yet?
- [67:03]
Roger Parloff
Not yet. Remember, there was a civil contempt order and it was purged because the outstanding issue was the property of the petitioner had not been returned to him after he was finally released and then returned to Minnesota. But they did get the property back to him within the 24 hours. And so he didn't have to pay a dime. And the U.S. attorney's office sued, appealed anyway. And the question was this. Well, was there standing and, and, and, and in fact, a pro bono attorney for Hogan Lovells filed a brief saying there was no standing and it was moot. Sort of different ways of analyzing it. And now they filed, right?
- [68:04]
Benjamin Wittes
Yeah.
- [68:05]
Roger Parloff
And, and there's some fairly good. It seemed like there was some good law on it. And the 8th Circuit, they have filed a lengthy brief trying to rebut that claim, saying he is based on reputation, damage to reputation. But they also give a hint of what their substantive defense will be, which appears to be that you can't punish Isihara for ISIS failures. Now, of course, Isihara did a plenty.
- [68:52]
Benjamin Wittes
He had some failures of his own.
- [68:55]
Roger Parloff
This is Also an argument that was never made at the hearing where the contempt order, so I think it's waived, but also because, precisely because it was purged, we don't know if she ever would have imposed it if it were truly ice's fault. You know, if ICE had not been able to return the property and Isihara had done everything conceivable, including like telling ICE what the order was, which, which he hadn't done before, I don't know if she would have held him in contempt. So I think that's why this is, you know, not justiciable. But anyway, that's where that one stands.
- [69:49]
Benjamin Wittes
All right. Finally, the government has not given up on deporting Kilmar Abrego Garcia to Liberia. And you know, you, you think for those of you who you know, who think you, you know, you may have to give up on a dream, let this be a lesson to you that, you know, you keep doggedly pursuing the oppression of a guy who just wants to get deported to Costa Rica, which is happy to have him. You might eventually get there, you might eventually get to send him to Liberia. What is stopping the government today from deporting Kilmar Abrego Garcia to the country he doesn't want to go to? And what does Polissini's long suffering federal judge Paul Polissini have to say about this quixotic motion?
- [70:56]
Roger Parloff
So the government moved to dissolve the injunction that is preventing them from removing him, among other things, saying they are now ready, willing and able to deport him to Liberia. They got a country to which he
- [71:20]
Benjamin Wittes
has no connection, doesn't speak the, I guess they speak a lot of English in Liberia, but, but he, you know, it's not a country that he's got ties to. Is that fair to say?
- [71:35]
Roger Parloff
That's right. And now they've said they attach an affidavit, a declaration saying they can remove him within five days of lifting the injunction. They can get him on a flight. And then also they've submitted an open question was why won't they send him to Costa Rica, where he is willing
- [72:04]
Benjamin Wittes
to go and which is willing to
- [72:06]
Roger Parloff
have him, which is willing to have him said, you know, this was part of the guilty plea he was offered. If he plead guilty, they would send him to Costa Rica. And so we got the answer in a, from Lyons, in a declaration. TODD Lyons and the it's two parts. One is first he, wait, he had to ask for this in 2019 when he went for his, when he went before the immigration judge in his first case when the order of removal and the withholding of removal were issued. Of course, that's unrealistic because nobody at the time was doing third country removals and neither attorneys nor judges were anticipating such things. And the immigration judge judges weren't really discussing such things. The second was this, that significant political capital has been expended in negotiating with Liberia. High stakes negotiations, political negotiations, and so abandoning agreements negotiated at the highest levels of government could, could cast doubt on the diplomatic reliability of the US So sending him to Costa Rica would be prejudicial to the United States in that sense. He did not mention anything about the earlier diplomatic negotiations with expended on Costa Rica. And he also did not, if you remember the position at court, the DOJ attorneys implied that Costa Rica would no longer take him and then that, and
- [74:05]
Benjamin Wittes
that turned out to be a lie.
- [74:07]
Roger Parloff
That evening, Costa Rica denied it. Yeah, and they did not raise that in Lyons. Did not raise that as an issue. They also asked for a ruling by April 17 and say that if they don't get that, they will treat it as a denial and obviously they will appeal it. One thing that's going on is that they are applying, you know, the, the guidance on third country removals that the DVD court has now ruled illegal in a summary judgment. That's Brian Murphy, who's been overturned twice at the Supreme Court. But nevertheless, that's going in front of the First Circuit and it's a fully developed record. And it's no longer issues like there's no longer an injunction involved, which is an important juris stripping issue. So it's, it is a different posture. And that's supposed to be, I think it's going to be argued in May. I think they want to get this wrapped away before the DVD case might possibly, you know, God forbid it's affirmed this whole theory of theirs. The third country removal would sort of evaporate, it would have to be reworked and so on. So I think they want to get that done.
- [75:44]
Benjamin Wittes
All right. We are still waiting for Anna Bauer. And so while we are waiting for her, we're going to deal with the one audience question that has cropped up, which is from Andrew, who asks the defense in US vs Coal, the January 6th pipe bomber filed a motion to dismiss based on the presidential pardon for January Sixers. Judge Ali has not yet set any schedule for briefing. Do you think this motion has a chance to succeed? Can the president clarify that the pardon was not, does not cover Mr. Cole. So let's, let's take the second question first. No, you cannot clarify a pardon after the fact. Once you've issued a pardon, the text of the pardon is what governs. But in this case, the text of the pardon is remarkably unfavorable to Mr. Cole. I don't have it in front of me, but it identifies two categories of people. One is 15 or 16 named individuals whose sentences it commutes. Stuart Rhodes, Enrique Tarrio, blah, blah, blah. And the other is all other persons convicted of crimes in connection on or around January 6th, the Capitol on January 6th. And Mr. Cole is not convicted of any crime. He's in fact, innocent until proven guilty. So unluckily for him, he was not caught until the Trump administration, because I suspect had he been caught earlier, he would have slipped through and been covered by that catch all. But it is limited to people who were convicted. He had not even been charged at the time. So I think he's. I think he's. I think the technical term is crap. Out of luck on this. It's a good try, and I would argue it, too, if he was. If I was his lawyer, but I don't think he's going anywhere. And we are joined by Anna Bauer, who has been freed from. From court in Georgia. Anna, give us the lowdown. You're muted.
- [78:23]
Anna Bauer
Oh, yeah. Freed is a great word to use because it was a long day. The hearing over the Fulton county motion for return of election materials began this morning at 9am before Judge Bully. Bully or Boulay? What did we decide?
- [78:44]
Benjamin Wittes
I think it's Boulay. But you were the one in court with him all day.
- [78:49]
Anna Bauer
You know, I don't know, though. Everyone just said, your honor, so. And I don't remember when they said the honorable presiding exactly how they pronounced it. So forgive us. Judge Bully or Boulay. I will go with Boulay. So this morning, the hearing started. It was an evidentiary hearing, and it came on the tail of Judge Boulay entering an order in which he quashed a subpoena that Fulton county had issued for the testimony of Hugh Evans, who is the FBI agent who swore out this affidavit that resulted in the seizure of Fulton county ballots. And, you know, I actually was a little bit surprised about that. But it, it's. If you read the order, it has to do a lot with the standard that applies in the 11th Circuit to a review of a denial of a TUI request. We talked about that last week, I believe, which is, you know, these regulations that kind of provide for considerations that the government must look at when they're deciding whether or not to allow someone within the department to testify. And in this case, the government said, sorry, we, we don't want Evans to testify because there's all these various privileges, including law enforcement privilege and other things. So they denied that request from the Fulton county plaintiffs. And the judge looked at it and said, oh, well, I can only, you know, say overrule that basically if it was arbitrary and capricious. And he ultimately decided that, you know, it wasn't. And so he quashed that subpoena and that right off the bat, kind of at least, you know, my gut instinct was that that did not bode well for the plaintiffs here because a large part of their argument centers on this question of the state of mind of the agent, you know, and the timing of the investigation. One of the big things that they allege was that there were a bunch of omissions in this affidavit about how election processes actually work, how the selective kind of cherry picked facts were misleading, the fact that there were a bunch of investigations into similar conduct already and that they ultimately determined that there wasn't intentional wrongdoing, that kind of thing. And they have to show callous disregard of constitutional rights. And that's a very high standard. And so if you can't even get to the point of questioning the agent about, you know, what he did or did not choose to include, then you're already kind of at a disadvantage. There was a possibility though, that maybe.
- [82:10]
Benjamin Wittes
So what did they spend the day on? If you're gonna. Yeah, if you're, if you're arguing about the integrity of a warrant and you're not gonna hear from the agent who wore out the affidavit, what do you have a day long evidentiary hearing about?
- [82:26]
Anna Bauer
Well, so, so the things that the agent could testify to was like his own state of mind, but you can still have someone testify to just generally, you know, what's not in the affidavit. Because. And then also the fact that the affidavit at various points mentions, will kind of reference these other investigations or will reference a contrary view, but won't include the like, specific exculpatory details that are actually really important to know or will kind of make a broad statement about the importance of ballot images, for example, but then won't explain really what a ballot image even is or how it fits into the election process, or the fact that it doesn't actually really have anything to do with tallying votes, which is important for the statute here. So what happened? And, but actually it was kind of surprising because we got into the hearing this morning and I'll kind of just take, take you step by step of what happened. We got into the hearing this morning, and I figured since this is an evidentiary hearing, that we'd start right off the bat with just a witness being called. But instead, Abby Lowell, I think, assuming that the judge would just be interested in judicial efficiency and that kind of thing, decided to start with a very lengthy kind of opening statement that lasted for nearly an hour or over an hour.
- [84:09]
Benjamin Wittes
Abby Lowell likes opening statements.
- [84:11]
Anna Bauer
Yeah, and he, he, he went through, you know, basically all their arguments without having presented any of the evidence and gotten it into the record. But he did that under the, I think, assumption that, you know, he said at the start, like, judge, I'm going to let you tell me whether you want to hear from Mr. Macius or, or whether that declaration, because Macius is the election experts, election expert whose declaration they earlier submitted. He said, you know, judge, you can just rely on the declaration. I'm going to let you tell me whether you want to hear from Mr. Macy's. But once he got through this whole argument that I'll, I'll come back to you in a minute. That caused some, you know, the government really objected once it finally stood up to respond to this idea that the plaintiffs could just have a declaration be admitted at an evidentiary hearing without the ability to cross examine him, that kind of thing. So then there was a whole side squabble about do the federal Rules of evidence apply here? Can the judge just basically admit the declaration, that kind of thing? Ultimately, later on, Lowell's team decided to call Macy's the elections expert, and then a second witness. But before we got to that point, Lowell started his argument that again, lasted over an hour by telling, talking about the timeline. And they're kind of making like a pretext argument here because, you know, back in, if people recall us talking about this, back in November or December, the Civil Rights Division filed this civil lawsuit in which they were seeking the same records that were ultimately seized from Fulton county related to the election. Fulton county. That suit was ongoing. And as it was ongoing, you know, after Fulton county made it clear, clear that they weren't cooperating with some of the letters. And in the suit that DOJ filed over getting these records, it all of a sudden, this search warrant materialized and the government seized the very same records that the Civil Rights Division was seeking through this civil suit. So Lowell's team is kind of making this argument of, like, the timing is fishy here. It seems like what happened is that DOJ couldn't get these records through civil litigation, and so as a last resort, they came up with this idea for a search warrant. Judge Bully actually seemed to actually take this pretty seriously, this argument. He had some tough questions for DOJ about it in terms of, like, you know, I do think that if this is true. True, it would go to callous disregard, which is the high standard that you have to meet here. So tell me, you know, Counsel, like, is this true? And DOJ said. The attorneys who were there said, oh, we're not aware of any, you know, meeting in which there was this conspiracy to, you know, come up with a search warrant because the civil litigation wasn't working out. But they also said that they only joined the case after this motion was made. You know, they. They were relatively new to the case, so they aren't aware, clearly, of all of the background of how the Fulton county search warrant came to be. So although Judge Boulley seemed to be kind of satisfied by the DOJ counsel representing that, you know, oh, there was nothing like this that happened. At the same time, Lowell's team was like, well, Judge, like, you know, not being aware of something is not the same as something not happening. And this kind of went to, like, a broader theme throughout the hearing that I felt was very noticeable, which is that Judge Boulee seemed to be operating under the old presumption of regularity, that, you know, this idea that a search warrant is facially valid, that the government's representations can be taken in good faith and so can the FBI agents. And it all kind of just gave you this feeling of, like, wanting to, like. Like, ah. Because, you know, you're sitting there, like, I mean, we all know what's going on here,
- [89:01]
Benjamin Wittes
right?
- [89:01]
Molly Roberts
And.
- [89:02]
Benjamin Wittes
And it's a. It's. We were talking about this, actually, before you came on, that, you know, there are judges for whom the world is the normal world, and there are judges for whom we're in a different world with respect to interactions with the government. So.
- [89:21]
Anna Bauer
Yeah.
- [89:22]
Benjamin Wittes
What is before him right now?
- [89:24]
Anna Bauer
Okay, so. So let me. And I'm sorry if I'm, like, going in too much detail. I just got out of this hearing, and so I'm, like, really in the weeds with it, thinking about it. But two things that I will say in addition to what I've already said. One is that in response to what you just mentioned, Ben, I think the Northern district of Georgia has been more insulated than some other districts from the erosion of the presumption of regularity in districts like, you know, in Minnesota, in New Jersey, in D.C. in Edva, places where there have been been these really highly politicized investigations and where there are these appointments issues with very politicized U.S. attorneys. So it may be the case that Judge Boulay, you know, has. Has not been confronted, as some other district judges, including Trump appointed district judges, with this kind of erosion of the presumption of regularity. That aside, what else happened at the hearing? We heard from. We ultimately heard, as I said, from Ryan Macias, who is the elections expert. And he walks kind of piece by piece through why. Why it is that there are all these omissions that are very misleading in the affidavit, basically kind of repeating many of the things that were in his declaration. I also wrote a piece that talks about some of these omissions that people can read if they're interested in it. And then we also heard from Shea Alexander, who is the clerk of court, who is the custodian of these records that was basically just for the plaintiffs to establish that she had an interest and custody in the records and then also a need for the return of the records. And that part, I think, is on the flip side of things in terms of Judge Booley's, you know, kind of attitude towards the parties is the thing he was. He seemed pretty skeptical of in the plaintiff's arguments is like, why do you need these original ballots returned? Because we learned in the course of this hearing that the Justice Department has provided what they say is a digital copy of the records that they seized. So the only question that remained at the hearing was, can Fulton county get the originals back? And Fulton county, you know, and the clerk on the witness stand, you know, made some arguments about, you know, I need them to fulfill open records requests. Need them, because there's all this other litigation that's ongoing about these records. There's some state court litigation that's ongoing about it. And I think that Judge Bully was. Was pretty skeptical of this idea that, like, you know, there's a real need looking at the balance of equities that could overcome, you know, this fact that there's an ongoing investigation that the DOJ is pursuing and then also harm as well that kind of ties into those arguments. I think that he just was not fully sold on this idea that there's irreparable harm and that there's a real need for something beyond the digital copies of the records for Fulton County. What else am I missing? So where did he leave it? He left it with, without telling us, you know, ultimately what he will rule, how he will rule. So I don't know. But my overall thought is that he seemed pretty skeptical of the idea that they of, of granting the relief requested for the return of the original ballots. He seemed willing to accept many of the government's arguments about the kind of facial validity of the warrant, the presumption of the agent acting in good faith. You know, in terms of the omissions, there was one omission that he was really concerned about, but otherwise, he kind of pointed out several times like, well, even though they didn't. They didn't mention this specific detail in these reports or investigations that have happened at the state level prior, they did at least reference that report. And so is that not sufficient, the fact that they kind of referenced the report? So I think ultimately, Ben, I would guess that he's not going to rule in favor of Fulton County. But he, he wasn't entirely, you know, it wasn't, it wasn't entirely straightforward in terms of how to read him. So I'm not sure. One other thing that I will mention is that we learned there were some cases, communications between the magistrate and the government prior to the issuance of the search warrant that related to a like, change in the language in the warrant. And in one specific paragraph that the government subsequently amended, that language was. Or those emails communications were admitted into evidence and so should become public record at some point. And there was a secondary hearing after the evidentiary hearing that related to that because a media intervener was seeking access to those. And then finally there was an argument that was raised by the NAACP in a related but separate suit. And unfortunately, I did not get to see that hearing because I had to leave to try to join this live. So I don't know what happened. It was a long day, and they were still going when I left around 4:45. So, yeah, that's what happened.
- [95:52]
Benjamin Wittes
All right, any questions, folks? We're going to leave it there. Thanks to Anna Bauer for heroic scurrying from court to where she could join us. Thanks to Molly Roberts. Thanks to Roger Parloff. Thanks to our redoubtable audio engineer, Anna Hickey. And we're going to be back next week, folks, because the trials will keep going. Trialing, the tribulations will keep tribulating. And this has been a production of the Lawfare Institute. You know, you should join us in the live studio where you can get your questions answered, become a material supporter of lawfare, and next week you can be like Andrew Asking your pardons Question to the live panel, folks. We'll be back next week, same time. 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 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 available only to our supporters. The podcast is edited by Goat Rodeo and our audio engineer this episode was Anna Hickey of Lawfare. Our theme music is from Alibi Music. As always, thanks for listening. Want to turn your timeline into a fast lane digital twinit to outpace the field with fast and confident decisions? Transform the everyday with Siemens.